Relationships Education, Relationships and Sex Education and Health Education (England) Regulations 2019

Debate between Lord Farmer and Lord Mackay of Clashfern

Wednesday 24th April 2019 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, it is natural for me to want to start at the protocol—which the noble Lord, Lord Curry, has just mentioned—to the European Convention on Human Rights. In 1977, I lost the action under that protocol that the UK Government took in relation to corporal punishment in schools, so I am reasonably familiar with that provision. In this connection, under the human rights legislation, it is still the law here that the Government—the state—have a duty to ensure that the teaching is in accordance with the religious and philosophical convictions of the parents. That is a very strong right.

Of course, it is difficult. If you have parents with different religious convictions, how do you go about it? There is a European Court of Human Rights case that deals with this—it is even older than the one that I lost. It deals with statutory provisions introduced in Denmark. One of the arguments used against the provisions was Article 2 of Protocol 1. The court said this, which I think is very useful:

“The second sentence of Article 2 implies on the other hand that the State, in fulfilling the functions assumed by it in regard to education and teaching, must take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner. The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions. That is the limit that must not be exceeded”.


In relation to the state’s duty, it points out later on that, although it is always possible that something may go wrong,

“competent authorities have a duty to take the utmost care to see to it that parents’ religious and philosophical convictions are not disregarded at this level by carelessness, lack of judgment or misplaced proselytism”.

That is a very useful way of looking at this. As the right reverend Prelate the Bishop of Durham said, religious convictions vary: different people have different convictions. Therefore, if you are to teach according to those convictions, you have to be mighty careful. The answer appears to be that you do it in such a way that is “objective, critical and pluralistic”.

The mailbag that I have had has been mainly from people objecting to the replacing of the withdrawal right with an option to request withdrawal and asking me very strongly to vote against these regulations. I have decided not to do that, because these are very difficult matters that are required to be dealt with. Your Lordships will know that my primary concern is the best interest of the children, and it is very important that that be safeguarded. As has been said, we live in very dangerous times, and children grow up in difficult situations with many temptations, grooming and what not. It is mighty difficult to deal with these without help. I strongly support what was said by the noble Lord, Lord Russell of Liverpool, about the need for teachers to be very well provided for in this. I cannot think of a more difficult area than this in which to teach.

Another point has been brought to my attention by experienced doctors in this area. The health implications of various aspects of this matter can be very serious indeed. Accordingly, it is important that that aspect should be taught and is compulsory under these regulations. That is extremely important, but extremely difficult for teachers. I notice that the assessment says that there will be no effect on any other department, but I would have thought that the Department of Health might have a strong interest in providing the necessary help to teachers to be able to deal with these serious issues.

So far as I am concerned, what has been said to me is mainly about withdrawal, and I do not see that withdrawal has much bearing on the protocol. The protocol is not on requesting withdrawal but on teaching in accordance with the religious conviction of the parent. That is where the difficulty arises, as the court saw. Therefore, it has to be objective in every respect.

This is a very difficult area and a great deal of thought has been given to it. I am glad to think that there is time for even more thought in the light of all that is said today and what was said in the debate in the House of Commons before the perfect solution is found.

[Lord Farmer (Con)]

My Lords, it is a great honour to follow my noble and learned friend Lord Mackay of Clashfern and I agree with much of what he said.

I will touch on three issues: first, on the specifics around parental rights to withdraw children, much of which has been spoken about already; secondly, on whether the Government will help to develop the relationships and sex education curriculum through an innovation fund; and, thirdly, on the role of the inspectorate, as the noble Lord, Lord Storey, mentioned earlier, in applying the new curriculum requirement.

On the first point, can the Minister clarify whether the Government’s intention is the same as was stated in 2017 by the then Minister for Vulnerable Children and Families during the passage of the Children and Social Work Act:

“We have committed to retain a right to withdraw from sex education in RSE, because parents should have the right, if they wish, to teach sex education themselves in a way that is consistent with their values”.—[Official Report, Commons, 7/3/17; col. 705.]


That would mean, for example, that if for reasons of religious belief a parent withdraws their child from sex education up to age of 15, the right of withdrawal will be respected. Currently, the proposals seem to put the final decision firmly in the hands of head teachers not parents, as they are given a power of veto on parents’ wishes. The Secondary Legislation Scrutiny Committee quoted the draft guidance, which states that,

“except in exceptional circumstances, the school should respect the parents’ request to withdraw the child, up to and until three terms before the child turns 16”.

However, no attempt is made to define “exceptional circumstances”. We need definition of this phrase and specifics, otherwise these will be defined on an ad hoc basis. Any business contract including such language would be rejected by a good lawyer because of the vulnerability that it introduces. I understand that this is guidance, not legislation, but guidance is where the specifics should be.

The Secondary Legislation Scrutiny Committee suggested that the House might wish to invite the Minister to provide further clarification about how the ability of parents to withdraw their children will operate in practice in relation to different age ranges. I do so now because, after these draft regulations were laid before Parliament, the Secondary Legislation Scrutiny Committee received evidence from over 430 members of the public. All expressed concern about the regulations and many made it clear that they were Christians and that their concern arose out of their religious belief.

The committee set out the main issues raised in these submissions, including,

“a very widespread concern to protect the right of parents to educate their own children on matters such as relationships and sexual health”.

One particular quote stood out to me:

“The assumption seems to be growing that it is the state which educates children, assisted by parents. It should always be the other way round. It is the parents’ job to educate, train and guide their children”—


And, as the right reverend Prelate emphasised, those relationships should be formed at home—

“and the state should not take this upon itself”.