Joint Committee on Human Rights Appendices to the Minutes of Evidence


Memorandum by the Secretary of State for Education and Employment

1.   What efforts has your Department made so far to implement the Act and what have you done to build a Human Rights culture?

  In DfEE we have undertaken an extensive training programme, offering tailored presentations to all divisions. Every policy division received Human Rights training by October 2000. In addition to policy specific training sessions, the department held a major Seminar on Human Rights with speakers from well-known firms giving talks on the Act and its implications for education and employment legislation. This event was transmitted live throughout the Department, as well as to education colleagues in Northern Ireland, Scotland and Wales.

  We also concentrated on helping our associated bodies to become more aware of and understand the HRA and its implications. Working with external legal and publicity sources helped us develop a multi-layered approach to external communications, as we know our providers obtain their information from more than one source.

  All the Public Authorities for whom we are responsible have been sent, as a minimum, the Human Rights Act Guidance and leaflets. In addition, DfEE has been in touch with all the authorities to ask on their training provisions. Most of them have their plans well in hand and are liaising closely with the Department.

  Our biggest public authority group is LEAs and Schools. We continue to work systematically to ensure that they get the message by using various media: articles in their magazines (for example, for school governors, for school teachers etc); DfEE representatives speaking at various seminars organised by the LEAs; mounting information stands at conferences organised by the DfEE (eg school governors' conferences). We also sent out more detailed guidance to schools in September 2000.

  As far as hybrid bodies are concerned, we have numerous providers who fall into this category. Our policy teams are working to identify all the companies and organisations which could be included and are sending out information, including reference to the HRA in their contracts and offering assistance if they need it. Where the hybrid organisations have a single representative body—eg Unions or the LEA—this job is made easier.

2.   How has the Act affected your Department's approach to human rights issues and what have been the consequences both for policy formulation and service delivery?

  In the DfEE all policy teams continue to ensure that their public authority is kept up to date with the Act; DfEE representatives have spoken at some of their events and we know of many other organisations who themselves have conducted training on the HRA. Our training has allowed policy teams to understand that the Human Rights Act defines what the basic rights are and sometimes requires us to be robust about an individual's rights if we are to maintain the rights of others.

  Part of the strategic approach to implementation of the Act in DfEE was to engage with those who were most likely to challenge us after 2 October. We listened carefully to representatives from special interest groups and various prominent Counsels and were also assisted in exposing vulnerabilities by the Human Rights Task Force. This was done with a view to challenging our own thinking and to avoid any complacency about our legislation, policies and procedures. We found it a very useful process, giving us a valuable additional perspective. By 2 October we were satisfied that our legislation, policies and procedures were compatible and that, where we may remain vulnerable to challenge, we had sufficient justification for our approach to be prepared to defend any challenge that might arise.

  Our overall assessment has not changed greatly since October. We remain satisfied that there is nothing of such immediate concern as to require amendment to legislation although procedures and guidance continue to be examined to see whether improvements could be made. As indicated before, the major concerns relate to areas where the outcome of any challenge is uncertain and we will continue to improve at the level of procedure and guidance until or unless a high level court gives a ruling on legislation. In areas where discrimination is alleged as being the consequence of our polices, we believe we have positive reasons to justify policies where the prospects of those who are less well represented in certain education environments are enhanced.

3.   What have been the implications of your Department of any court judgements on human rights matters since the Act came into force on 2 October?

  Two Court of Appeal judgements since 2 October are relevant to DfEE's education interests. The In re K (a Child) judgement on 15 November 2000 was not directly about education. Section 25 of the Children Act 1989, on secure accommodation orders for a minor, was challenged as incompatible with Article 5 on the liberty of the minor since the specific exception in Article 5 for detention of minors relates to detention for educational supervision. Section 25 says nothing about educational supervision; its criteria for an order are safety of the child and safety of society. The Court followed its duty to interpret domestic legislation as far as possible as being compatible with the Convention. Because there is a general duty in the Education Act 1996 to ensure the education of children of compulsory school age, the Court decided not to find section 25 incompatible, since there could be instances where an order could be made to ensure that a child would get educational supervision. The impact on DfEE's interests is an acknowledgement by the Court of the basic comprehensive coverage in our statute law of the right to education (Article 2 of Protocol 1) of all children of compulsory school age.

  The second case was Holub v Secretary of State for the Home Department, 20 December 2000. This case was about immigration. A Polish family facing a deportation order argued that their daughter's education would suffer if she was deported to Poland. She had been in England for a few years: it was argued that she would be put back to the schooling level she had last been at in Poland. Since that would blight her prospects of catching up with peers and seriously damage her education, they argued that deportation contravened Article 2 of Protocol 1. The Court of Appeal dismissed this argument, recognising that the right to education under Article 2 of Protocol 1 was a right to an effective education, but case law had established no threshold of effectiveness. It was also clear to the Court that the education in question had to be the education on offer in that particular State. Therefore the question of the level of education in another State (Poland) was irrelevant. In any event, the Court was not persuaded that the child's education would be damaged: there was evidence that she would resume schooling in Poland at an appropriate level. The Court also held that, even if a case had been made that her education would suffer, that would not suffice to override domestic immigration law. This judgement makes it clear that the right to education relates only to access to the education on offer in that particular State; and that arguments based on this right would not be sufficient to set aside a deportation order.

4.   What impact has the Act had on every day life in your fields of responsibility?

  In DfEE we are very clear that the HRA is about rights and responsibilities. That is why we ensure that our policies are very clear that one set of rights may need to be balanced against the rights of others—or for the good of everyone.

  That is why the introduction of the new National Curriculum order for Citizenship education will help bring to life Human Rights issues to young people. Citizenship was introduced in primary schools in September 2000 and will become a statutory national curriculum subject in secondary schools from September 2002. The new order provides the basis for teaching pupils about responsible action as citizens. For the first time in secondary schools, pupils will be taught about legal and human rights and responsibilities; the diversity of national, regional, religious and ethnic identities in the UK and the need for mutual respect and understanding. They will learn about how legal and human rights underpin society and relate to citizens, and consider the role of international institutions such as the UN.

  The Secretaries of State for Education and Employment and the Home Office co-launched a special Human Rights Edition of the Young Citizen's passport to mark the introduction of the HRA, with a section explaining all about the Act as it affects young people. The booklet was produced by the Citizenship Foundation who sent it to all secondary schools in England and Wales for distribution free of charge to pupils.

  The Citizenship order also provides the framework for pupils to learn about the political institutions that underpin our society including the work of parliament, government and the courts as well as the opportunities for individuals and voluntary organisations to bring about change. The programme emphasises community involvement by young people, including learning by active participation in the life and concerns of their community and neighbour.

5.   How have you addressed (where it has arisen) the duty under section 19 of the Act to make statements of compatibility or non-compatibility with the Convention in relation to Government bills; what problems has this created?

  This duty has been in force since November 1998 and therefore DfEE is well used to taking it into account in the formulation of policy for legislation. The duty has been interpreted across Government as not having to provide an absolute assurance of compatibility (which would be unrealistic) but rather a statement that, on balance, the provision would be compatible. Given the uncertainty as to how the case law will develop domestically over time, this is still quite a high threshold. It does not cover a situation where the compatibility may or may not be upheld by the Court but where the department would wish to put the point to the test nonetheless. The Minister responsible for the Bill has positively to believe that the chances of compatibility are better than even.

  Human Rights considerations are taken into account in any event in formulating policy and therefore section 19 statements should not normally pose any problems. There is a formal process of checking the section 19 statement before introducing the Bill but the issues would all have been dealt with at an earlier stage. No DfEE Ministers have yet had to say that they cannot give a view that the provisions of the Bill would, on balance, be compatible.

David Blunkett

February 2001

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