Relationships and Sexuality Education (Northern Ireland) (Amendment) Regulations 2023

Lord Caine Excerpts

Wednesday 28th June 2023 Grand Committee

Moved by

[Lord Caine]

That the Grand Committee do consider the Relationships and Sexuality Education (Northern Ireland) (Amendment) Regulations 2023.

Relevant document: 44th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

[The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)]

My Lords, the regulations before your Lordships today seek to update the education curriculum in Northern Ireland to make age-appropriate, comprehensive and scientifically accurate education on sexual and reproductive health and rights, covering contraception and access to abortion, a compulsory component of the curriculum in all grant-aided schools in Northern Ireland.

I understand and respect that there will be differing views on this issue. I also recognise the will of this Government to deliver on their statutory obligations. In passing the Northern Ireland (Executive Formation etc) Act 2019, Parliament decided to implement the recommendations made by the 2018 report of CEDAW, the UN Committee on the Elimination of Discrimination against Women. Section 9 of the Northern Ireland (Executive Formation) Act 2019, which passed with a majority in the House of Commons of 232 and one of 145 in your Lordships’ House, places a legal duty on the Secretary of State to ensure that the recommendations in paragraphs 85 and 86 of the CEDAW report are implemented in full. This is a specific and unique duty which arose from a vote in Parliament. In implementing this decision, the Government have always sought to ensure that the education provided would be similar to that already provided in England with regard to contraception and abortion, and these regulations do this.

It has been widely reported that there is a problem with how sexual education is being taught in schools in Northern Ireland. This has been highlighted by a number of recent studies, including by the Northern Ireland Human Rights Commission. In its report into relationship and sexuality education in post-primary schools in Northern Ireland, it recommended that a standard level of RSE be introduced throughout all schools in Northern Ireland. That was in June this year. Separately, a survey commissioned in September 2022 by a health charity, Informing Choices NI, highlighted that 78% of MLAs agreed that there should be a standardised curriculum, regardless of a school’s ethos.

I am acutely aware that education is a devolved matter in Northern Ireland—indeed, I am looking at a former Education Minister, in the form of the noble Lord, Lord Weir of Ballyholme, right now. It has always been the Secretary of State’s and this Government’s preference that the Department of Education in Northern Ireland updates the curriculum. However, with nearly four years having passed since the executive formation Act, adolescents in Northern Ireland are still not receiving comprehensive and scientifically accurate education on sexual and reproductive health and rights. This is why, on 6 June, the Secretary of State, my right honourable friend Chris Heaton-Harris, laid these regulations in Parliament to comply with his statutory duty.

This SI has the following effects. It amends the Education (Northern Ireland) Order 2006, and the Education (Curriculum Minimum Content) Order (Northern Ireland) 2007 for adolescents, to make age-appropriate, comprehensive and scientifically accurate education on sexual and reproductive health and rights, covering prevention of early pregnancy and access to abortion, a compulsory component of the curriculum. It places a duty on the Department of Education to issue guidance by 1 January 2024 on the content and delivery of the education required to be provided and places a duty on the board of governors and principal of every grant-aided school to have regard to the guidance. Also, the Department of Education is required to publish a report by 1 September 2026 on the implementation of the updated curriculum in grant-aided schools and to lay the report before the Assembly. I say in parenthesis that I trust that there will be an Assembly back in place and fully functioning well before that date.

The Government recognise the sensitivity of this topic and that some parents may wish to teach their child about sex education or to make alternative arrangements to be provided in line with their religious background or their belief about the age that their child or children should access sex education. In recognition of this, this SI also place a duty on the department to make regulations about the circumstances in which a pupil may be withdrawn from education on sexual and reproductive health and rights, or elements of that education, at the request of a parent. This follows the approach taken elsewhere in the United Kingdom.

It is important to state that this Government believe that educating adolescents on issues such as contraception, the legal status of abortion and how relevant services may be accessed should be done in a factual way that does not advocate a particular view on the moral or ethical considerations of abortion or contraception. While schools will be under a duty to teach the updated curriculum within the 2023-24 school year, there will also be a period of implementation and a need for meaningful engagement with parents and teachers. The amendments to the curriculum come into force on 1 July, in preparation for the 2023-24 academic school year. As I said, the duty on the department to issue guidance on the content and delivery of the required education will come into force on 1 January 2024.

Officials in my department, the Northern Ireland Office, will continue to work closely with those in the Department for Education. They have also been engaging with relevant educational bodies to make them aware of the changes to the curriculum. We understand that further engagement with schools, parents and young people is also very important so that they feel reassured about the content of this updated curriculum. However, it is important that children and adolescents are given the correct information so that they can make informed choices.

That summarises the changes that are introduced by these regulations, and I commend them to the Committee. I beg to move.

[Baroness Thornton (Lab)]

My Lords, I thank the Minister for introducing these regulations. Of course, the Secretary of State is not only empowered to make these regulations but legally obliged to do so. With the regulations, the Secretary of State is making a statutory duty to implement recommendation 86(d) of the report of the Committee on the Elimination of Discrimination against Women. As a result, as the Minister has told us, age-appropriate, comprehensive and scientifically accurate education on sex and reproductive health and rights, covering the prevention of early pregnancy and access to abortion, will become a compulsory component of the curriculum for adolescents in Northern Ireland.

The Labour Party fully supports these measures. On these Benches, we believe that they are a critical step in ensuring that all parts of the United Kingdom meet their human rights obligations to children in this area. All adolescents deserve age-appropriate, comprehensive and scientifically accurate relationship and sex education. For too long, relationship and sex education has been unavailable to adolescents in Northern Ireland. In May 2019, Sir John Gillen’s independent review into how the criminal justice system in Northern Ireland deals with serious sexual offence cases made a series of recommendations, including the need to include in the school curriculum for RSE matters such as consent, personal space, boundaries, appropriate behaviour, relationships and sexuality. In April this year, an evaluation by Northern Ireland’s Education and Training Inspectorate found that 44% of schools reported that they were delivering the topic of consent

“to a small extent or not at all”.

Earlier this month, the Northern Ireland Human Rights Commission, as the Minister told us, published a report into its investigations of relationship and sexuality education in post-primary schools, and found that the curriculum on relationship and sexuality education does not meet human rights standards. According to the commission, most schools are not providing

“age appropriate, comprehensive, scientifically accurate education”

on access to abortion services. The investigation also found that some schools actively contribute to the shame and stigma surrounding unplanned pregnancy and abortion by making statements such as abortion is not a means of contraception and those who knowingly engage in casual sex must bear the consequences of their actions. It revealed that some schools are teaching children that homosexuality is wrong.

In England, Scotland and Wales, compulsory RSE that embeds reproductive rights and choices within the curriculum, implementing the CEDAW recommendations, is already in place. The Labour Party welcomes the fact that today’s regulations will help to ensure that the curriculum for children in Northern Ireland meets that standard too. The Northern Ireland Human Rights Commission has welcomed the new regulations and emphasised that implementation and monitoring will be critical. Schools should support and develop their capacity to deliver RSE, and the commission and other expert independent organisations have offered their expertise to help with that.

I have read with care the Secondary Legislation Scrutiny Committee’s report on these regulations and the debate that took place in the Commons yesterday. I of course agree with my honourable friend Peter Kyle and the Minister in that debate about the need to move forward on this matter. However, there are a few matters from this report that particularly concern us. The first is the question of consultation—or lack of it, as the committee says at paragraphs 54 to 56. The Minister needs to clarify that and address it. The second is the use of outside contractors to deliver RSE. How will the Department of Education in Northern Ireland ensure that the delivery of RSE meets the updated curriculum that these regulations set in motion? Thirdly, will the Northern Ireland Office liaise with the Department of Education to provide detailed information about implementation, which the report mentions at paragraph 43? Finally, is the Minister assured that the Department of Education will have the necessary regulations in place regarding parents withdrawing their children from RSE?

With those questions, which I am sure the Minister will be happy to address, we offer him our support.

--- Later in debate ---

[Baroness Barker (LD)]

I will go back and read Hansard. I am sorry; I did not hear that distinction. I thought the noble Lord said something different.

I want to come back to the purpose of these regulations, which is to prevent unplanned pregnancies and promote sexual health and well-being. The only question I want to ask is about the evaluation of this. It is to be evaluated and a report will be presented to the Northern Ireland Assembly, which we all hope will be back up and running by then.

This is an education matter but it is also a health matter. Why was the Department of Health not included in the evaluation? If this legislation has the effect that we hope it will, there should be an increase in health outcomes for young people in Northern Ireland. The Minister may have a technical reason why that was not the case, but will he write to me at some stage about what the process of evaluation will be?

This is far from cavalier: it is a careful and considered piece of legislation and I am happy to support it.

[Lord Caine (Con)]

My Lords, as ever, I am grateful to all noble Lords who have contributed to the debate. I particularly thank the two main opposition parties for supporting the Government on regulations which earlier today passed the House of Commons by 373 votes to 28. I am also pleased to welcome to our proceedings my noble friend Lord Hunt of Wirral, chair of the Secondary Legislation Scrutiny Committee.

There is no doubt that the issues before us have generated a good deal of passion and conviction on all sides of the Committee, which I respect completely. I will endeavour to address as briefly as I can some of the points raised. The first question is about why we are doing this and bringing forward the regulations. To some extent, I addressed this in my opening comments regarding the statutory duty under which the Secretary of State is placed by—I gently remind some noble Lords who questioned the legitimacy of the legislation—an Act of the sovereign Parliament of the United Kingdom: in this case Section 9 of the Northern Ireland (Executive Formation etc) Act 2019.

For clarity, this is not an amendment or a change to the legislation that was sought or brought forward by the Government at the time. Noble Lords will remember that it was a Back-Bench amendment from a Labour Party Member of the other place, but I remind them that it was passed by resounding majorities in both your Lordships’ House and the other place. We really must respect that.

As noble Lords will recall, that legislation passed almost four years ago, yet little or no progress had been made so far in implementing it, despite extensive discussions between my department and the Department of Education in Northern Ireland, including correspondence last July from the former Secretary of State to the then Education Minister in Stormont. When officials began engaging with the Department of Education in 2019 following the passing of the Executive formation Act, they were assured that the CEDAW recommendations would be implemented—assurances that continued until around February last year. I am sorry that the noble Lord, Lord Weir of Ballyholme, is not in his place because I understand that it was while he was Education Minister in Northern Ireland that his department established a working group to amend the curriculum minimum content order.

In February 2022, the department shifted its position in a briefing paper it provided to the Northern Ireland Office, effectively arguing that the curriculum on RSE should be a matter for schools and teachers to determine —how it should be delivered, which resources to use and what specific topics should be covered. That was in conflict with the Secretary of State’s legal duties, which require that certain elements of RSE, as set out in the CEDAW report, must be compulsory components of the curriculum. Noble Lords will understand that, for a Secretary of State to fail in fulfilling his or her statutory duties is a serious breach of the Ministerial Code, and therefore it was imperative that action had to be taken. That is why these regulations have been introduced now. I contend that, given that it is four years since the legislation was passed in Parliament, we can hardly be accused of rushing.

That, of course, leads to one of the major themes of the debate this afternoon—

[Lord McCrea of Magherafelt and Cookstown (DUP)]

Can I ask the Minister for some clarification? What debate on paragraph 86(d) was held in the other place? Was there a debate?

[Lord Caine (Con)]

The amendment to the executive formation Act, as it became, was put down by Stella Creasy MP in the other place, debated and passed by a resounding majority.

[Lord McCrea of Magherafelt and Cookstown (DUP)]

I am talking not about abortion but about education.

--- Later in debate ---

[Lord Caine (Con)]

It placed a statutory duty on the Secretary of State to introduce CEDAW-compliant regulations in respect of both abortion services and relationships and sexual education.

[Lord McCrea of Magherafelt and Cookstown (DUP)]

For clarification, was education mentioned in the debate?

[Lord Caine (Con)]

I do not have the Hansard from June or July 2019 in front of me but the amendment was very clear in the obligations that it placed on the Secretary of State for Northern Ireland to introduce CEDAW-compliant regulations, which are now enshrined in statute.

I was about to go on to the major themes of the debate, which is why the laying of the regulations was not preceded by a public consultation—a criticism made by many noble Lords this afternoon and contained in the report of the Secondary Legislation Scrutiny Committee. A number of factors led the Northern Ireland Office to the conclusion that a public consultation was not required in this instance. First, the CEDAW recommendation—I repeat: under the executive formation Act, the Secretary of State has a duty to implement it—is clear that it requires topics such as abortion and contraception to be compulsory components of the curriculum. That is what these regulations will introduce; no amount of public consultation will change the statutory requirement to comply with CEDAW.

While we are on that, the noble Baroness, Lady Ritchie of Downpatrick, asked me about the number of stakeholders that the Northern Ireland Office had discussed. I will just read out one or two of the organisations. There was Love for Life, Common Use, Amnesty, the National Society for the Protection of Young People, the Northern Ireland Human Rights Commission, the Equality Commission for Northern Ireland, the Alliance for Choice and Parentkind.

Secondly, my department conducted an equality assessment under Section 75 of the Northern Ireland Act 1998, in consultation with the Equality Commission for Northern Ireland, and concluded that there was no need for the NIO to consult publicly as it is actually for the Department for Education to issue the guidance on how these issues are taught in schools and for monitoring and collecting any equality data.

[Baroness Ritchie of Downpatrick (Lab)]

The Minister has highlighted the various organisations that were consulted as stakeholders. Does the Northern Ireland Office not consider schools and their governing bodies across the board to be required stakeholders? If so, why were they not considered? Is that not a level of disrespect?

[Lord Caine (Con)]

If the noble Baroness will forgive me, I shall address that issue in a second or two.

Thirdly, we were also informed by the Department of Education in a briefing paper that significant stakeholder consultation haud taken place on the RSE Progression Framework that it has been developing with the Council for the Curriculum, Examinations and Assessment over a number of years. This is the document that will be updated and used as guidance issued by the department.

Although the current law and circumstances dictate that it falls to the Northern Ireland Office that CEDAW-compliant RSE is a compulsory part of the curriculum, it is rightly for the Department of Education in Northern Ireland to take that requirement forward. In that context, I can inform noble Lords that the Department of Education has now assured us that it aims to launch a public consultation on both the guidance and the opt-out scheme at the beginning of the 2023-24 academic year—that is, in September—to meet the duty to issue guidance by 1 January 2024.

[Lord McCrea of Magherafelt and Cookstown (DUP)]

In reference to consultation, the court noted that

“the consultation which did take place in the context of the Regulations was limited to the issue of abortion but did not deal specifically with the issue of education on sexual and reproductive health or a strategy to combat gender based stereotypes as set out in paras 86(d) and (f) of the CEDAW Report. However, these paras are not referred to in the 2020 Regulations nor are they contained in the 2021 Directions under challenge. In the event that Regulations or Directions are made in the future to deal with those issues then there will be an opportunity for the Secretary of State”—

not the Department of Education—

“to carry out a consultation”.

Why did he not do it?

[Lord Caine (Con)]

I thank the noble Lord for his speech but I have addressed the Government’s position in respect of the public consultation.

[Lord McCrea of Magherafelt and Cookstown (DUP)]

I read out the judgment of the court, not a speech from me.

[Lord Caine (Con)]

I am grateful for the noble Lord’s clarification. I set out the rationale behind the Government’s decision not to proceed with the public consultation in advance of the laying of these regulations. I am not sure whether he was listening to me but I made it very clear that the Department of Education in Northern Ireland will now take forward a public consultation on these matters at the start of the next academic year, in September, with a view to meeting the 1 January deadline. I do not think that I could be clearer in my comments on that.

In addition, the Department of Education also aims to make regulations for parents to withdraw their children from the required education by 1 January 2024, thus ensuring that there will be an option for parents to withdraw their children on issues such as abortion and contraception should they so wish. That deals directly with issues raised by, among others, the noble Lord, Lord Browne of Belmont.

The regulations are not intended to be overly prescriptive—

[Lord McCrea of Magherafelt and Cookstown (DUP)]

Even if parents—

[Lord Caine (Con)]

I am sorry; I have been very generous to the noble Lord. He spoke for a long time earlier in the debate. I am conscious that other Grand Committee debates need to take place after this one so, if he will forgive me, out of respect for other colleagues —including my noble friend Lord Johnson, who is sitting patiently—I will continue.

The noble Baroness, Lady Thornton, mentioned external providers. I can assure her that my officials are in constant contact with the department and will continue this engagement, although it is principally a matter for the Department of Education in Northern Ireland.

I hope that this gives some reassurance to a number of noble Lords that the views of the public will be properly taken into account before the final guidance is issued by 1 January 2024. I can confirm that that is very much the target for publication.

I will try to be as quick as I can. A number of noble Lords raised issues in relation to the rights of parents and the ECHR. We of course respect and recognise the rights afforded by Article 2 in the first protocol to the ECHR. We assess that the regulations have been drafted in accordance with convention rights. It is the Government’s firm view that it is compatible to inform children of the legal right to an abortion in Northern Ireland and how relevant services may be accessed without advocating a particular view on the moral and ethical considerations. Providing such information would not affect the ability of parents to provide advice and guidance to their children in keeping with their religious and philosophical views, which we all respect, and therefore we are, in our view, also compatible with Articles 9 and 10 of the ECHR.

Noble Lords referred to the slight differences between England and Wales and Northern Ireland throughout the debate. The statutory guidance in England references prevention of early pregnancy and abortion and, as such, is similar to what is required under CEDAW. We believe that the regulations are the most appropriate way of meeting our statutory obligations and what CEDAW requires, while keeping as closely aligned as possible with other parts of the UK.

The noble Lord, Lord Dodds of Duncairn, referred to the Explanatory Memorandum. He has the advantage of me, in that I do not have a copy in front of me. I will endeavour to provide greater explanation of the Explanatory Memorandum in due course. My understanding is that there will of course be an impact on the department because of the duty to provide guidance, but the exact nature of that impact will not be known until the guidance has been more fully developed and is published.

I have tried, in as brief a time as possible and with respect to colleagues who are coming after me, to deal with a number of points this afternoon. If there are any issues outstanding, I will of course write to any noble Lord who requires further clarification. On that note, I beg to move.

Motion agreed.