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

Lord McCrea of Magherafelt and Cookstown Excerpts

Wednesday 28th June 2023 Grand Committee

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I declare an interest as a member of the Secondary Legislation Scrutiny Committee. We are joined today by the chair of our committee, the noble Lord, Lord Hunt of Wirral. I speak in a personal capacity.

I concur with our committee’s report on this legislation. I know that the rule of the committee is to consider only instruments laid before the House of Lords and to draw the House’s attention to those that meet our reporting grounds. It is then for the House to determine what further action is required.

However, with reference to this SI and its controversial nature, and the need for proper, adequate consultation—as already indicated by the noble Lord, Lord Morrow—with schools, boards of governors and churches, which in many instances own the schools, I urge the Minister to bring forward the necessary legislation to push back the implementation date to allow that consultation to take place. I ask the Minister to consider that. It would allow time for a public consultation and ensure that the policy can be fully developed.

In fact, at the weekend, I spoke to one of the principals of a Catholic grammar school in Downpatrick. He was concerned about the outworkings of the action. He is fully cognisant that we now live in a more liberal world and he feels that the content probably can be delivered sensitively, but it would be preferable if there was consultation that allowed for informed choices to be made.

I contend that the manner and content of this legislation suggests a level of arrogance on the part of the NIO and a total disregard for schools, parents and their management structures, many of which are in the faith-based sector. I feel that they have been treated with total ignominy.

The Secondary Legislation Scrutiny Committee received representations from a broad range of bodies, including all the churches in Northern Ireland, the Catholic Schools’ Trustee Service—I declare an interest as I was taught in the Catholic sector—the Controlled Schools’ Support Council, Right to Life UK, the Christian Institute, the Presbyterian Church and the Transferor Representatives’ Council. They all raised several concerns, which have been reflected in the SLSC submission to your Lordships’ House. The lack of public consultation prior to the regulations coming into effect has caused immense concern. The NIO told the committee in its responses that there was “no legal requirement” to conduct a consultation—why is that the case?—but that it had

“engaged with a range of stakeholders and statutory organisations”.

Can the Minister say which stakeholders and statutory organisations? What responses did the NIO receive? Were these responses published? What did the responses state? Was there any engagement with those groups directly involved with young people—teachers, parents, boards of governors, the controlling bodies and the churches?

The SLSC, as the noble Lord, Lord Morrow, referred to, concludes that, given the controversial nature of this policy and strong views expressed in submissions to the committee, a full public consultation “would have been appropriate”. The report also points out that other comparable policy changes, including when similar regulations were introduced for England, were subject to a public consultation before implementation. Why was there no public consultation for Northern Ireland? Why was there no recognition of the need to work with all involved in delivering education, particularly those in faith-based environments—and particularly in Northern Ireland, where the subject of abortion is highly controversial. Why was there no recognition of the need to acknowledge and respect the ethos and faith-based nature of many of our schools?

There is no doubt that full public consultation can result in improved policy-making. Sadly, we are at variance in Northern Ireland with what happened in England. If I may, I just quote what the Catholic Schools’ Trustee Service said in its submission; Bishop Donal McKeown, the chair of that service, said:

“We have a particular concern regarding the Explanatory note to the Regulations which proposes a programme of RSE that does not advocate or promote any particular opinion. This requirement runs entirely contrary to the very existence of a faith-based sector which is committed to an ethos, one which parents & carers have specifically chosen for their children”.


The submission further states:

“We would highlight the contrast between this legislative requirement and that which applies to schools in England. The House of Commons Library Report”—


Relationships and Sex Education in Schools (England) from 23 March 2023—

“notes, ‘Schools will have flexibility over how they deliver these subjects, so they can develop an integrated approach that is sensitive to the needs of the local community; and, as now, faith schools will continue to be able to teach in accordance with the tenets of their faith’. Why are these rights, passed overwhelmingly in 2019, in the House of Commons by approval of 538 MPs being denied to schools in Northern Ireland?”

Noble Lords from Northern Ireland need answers to that question. That submission also says:

“The guidance for England also makes explicitly clear that provision for RSE is set, ‘within the context of a school’s broader ethos and approach to developing pupils socially, morally, spiritually and culturally’ The requirements set out in the legislation for Northern Ireland pose a very different and, indeed, contradictory approach to that approved for schools in England”.


While the regulations were laid by the NIO, much of the detailed implementation of the policy will fall to the Department of Education in Northern Ireland. Some aspects of the policy underpinning the regulations, including procedures to allow parents to withdraw their children from sexuality education, may apparently not be developed by the policy implementation date of 1 January 2024—but maybe the Minister has a different view on that. This will be of concern to parents, and it would be useful to fully tease out and get answers on it.

I believe that parents have the right to choose what sort of sexual education their children should receive. The failure to respect the autonomy of parents in this sensitive area is alarming and contrary to any elementary concept of democratic choice. We suggest that the Government should reflect on the European convention, which states that, in the exercise of education,

“the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions”.

To coincide with the trend of inadequate explanatory memoranda that we receive from other departments—the chair of our committee will be fully aware of that—the NIO has stated in its Explanatory Notes that these regulations would have

“no, or no significant, impact on the private, voluntary or public sectors”.

I would like to know this from the Minister: how was that conclusion arrived at, and on what basis was this assessment made?

The Assembly and Executive are the rightful places to deal with such issues, and I hope that there is a restoration. A pause would therefore be suitable to allow a consultation, which would then allow a reformed Assembly and Executive to formulate a policy with legislation on sexuality education matters which is specific to Northern Ireland and takes on board the ethos and faith-based nature of many schools.

This legislation places significant new responsibilities on boards of governors and principals. I feel that it directly undermines the rights of parents and challenges the rights of trustees to promote that faith-based education. What training will be provided to schools, boards of governors and teachers? What funding will be provided during this time of difficult financial challenges for schools, which we hear about daily?

More thought and reflection are required. I ask the Minister to give that and allow a consultation to take place, as well as meetings with all those involved, to ensure that a policy is put in place that fully reflects the needs of all.

[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, I am sure that the Minister knows that some things will have to be repeated as he listens to this debate. Perhaps after the Members from Northern Ireland have spoken a number of times, it will indeed affect his and the department’s thinking.

In my humble opinion, which I have a right to, I confess that the statutory instrument before us today is a disgrace to any Government. Forcing all primary schools in Northern Ireland, including faith schools, to teach girls that they have a right to an abortion and telling them how to get one without their parents finding out, even if they are under age, is unbelievable in what is supposed to be a democratic society.

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[Baroness Hoey (Non-Afl)]

I thank the noble Lord for giving way and I agree with what he is saying and with what the noble Baroness said earlier. He says that there is no elected Member from Northern Ireland in the government party. Is it not even worse, in that we could end up in a year’s time with a Labour Government who do not even allow their party members in Northern Ireland to stand for election, yet profess strongly to be interested in Northern Ireland?

[Lord McCrea of Magherafelt and Cookstown (DUP)]

The noble Baroness makes her point very clearly. It is beyond challenge. The Labour Party does not permit its members to stand in Northern Ireland, so it could not have an elected representative in the other Chamber, yet it wants to impose its will on the people of Northern Ireland.

The insertion of Section 9 was deeply controversial. I believe that a majority of the people of Northern Ireland find it an offensive amendment, for which there was no prior consultation or proper scrutiny. It was added to a Bill that was supposed to be subject- narrow to the formation of an Executive, yet that legislation was brought through. In fact, not only did the Government bring it through but they did so having presented it on that narrow basis, and it was then deemed appropriate to be granted accelerated passage.

As my noble friend Lord Morrow said, the situation with these regulations is even more anti-democratic and intolerable. As other noble Lords have pointed out, the Secretary of State decided that these regulations, on education provision regarding abortion and reducing teen pregnancy, were not even worthy of consultation. What kind of democratic society are we living in where even the people are not worthy of consultation? These regulations are being imposed over the heads of parents without being preceded by any primary legislative debate at all, in terms of the regulation-making powers as they applied to education. Indeed, the Secretary of State has not bothered to consult or even give himself the semblance of democratic cover before forcing this legislation through. That is arrogance.

As I said, the democratic deficit in relation to these regulations is even worse than that relating to abortion. That is in spite of the fact that, when the abortion regulations were taken to court, the point was made that the Secretary of State had consulted on them and the court stated that,

“in the event that Regulations or Directions are made in the future to deal with those issues”

of education and sexual and reproductive health and so on,

“there will be an opportunity for the Secretary of State to carry out a consultation”.

Whenever the NIO was asked about consultation and whether it was necessary, the response was, “No, it’s not. Why would you talk to those people?” It said that it was not necessary because each school must have a written policy on how it will deliver regulations and sexuality education, and that this policy should be subject to consultation with parents. The House of Lords Secondary Legislation Scrutiny Committee pointed out that,

“school policies will only be able to operate within the already-established government guidance, meaning that such consultation is too late to affect the framework of RSE delivery”.

However, the committee also noted that,

“when comparable regulations were introduced in England”,

a full consultation was carried out. I wonder whether that was because the elected Members in the other place would have to answer to their electorate. Maybe that was the reason: the electorate had the power to change them or remove them—but not in Northern Ireland. Our Secretary of State feels that parents in Northern Ireland are too far down the pecking order to be worthy of being heard or consulted. That is contrary to the European Convention on Human Rights, which states:

“In the exercise of any functions which it assumes in relation to education and to teaching, the State shall”—


not might—

“respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions”.

Notice the word “shall”. But it has not been done.

We are witnessing a deliberate abuse of parliamentary procedure in the development of these regulations. As the Minister listens to the debate today, in the light of what he is hearing, I ask him what he will do to stop any Secretary of State abusing the powers that they feel they have over the people of Northern Ireland.

The Northern Ireland Secretary of State and CEDAW have demonstrated a total lack of respect for faith, which is very important to many in Northern Ireland. Paragraph 43 of the CEDAW report states:

“The designated members observed that young people in Northern Ireland were denied the education necessary to enjoy their sexual and reproductive health and rights. Most children in Northern Ireland attend denominational schools, either Catholic or Protestant”,


but that is not true. It is not true. Of course, does truth really matter? It seemingly does not, because that statement is totally false.

It goes on:

“Church representatives play active roles in school management boards, and the result is that relationship and sexuality education, although a recommended part of the primary and post-primary statutory curriculum of the Department of Education, is underdeveloped or non-existent since it is at the school’s discretion to implement the contents of the curriculum according to its values and ethos”.


On the one hand, it is saying that schools are either Catholic or Protestant. It goes on to tell us that the contents of the curriculum are at the school’s discretion and accord with its values and ethos. It goes on:

“Where relationship and sexuality education is delivered, it is frequently provided by third parties and based on anti-abortion and abstinence ethos”.


This attack on Northern Ireland’s Churches, at the heart of the educational problem, lacks any sense of human rights balance or cognisance that religious freedom is also a human right, let alone any appreciation of the important and constructive role that Churches have played in education, including RSE.

Just because CEDAW is supposed to be a human rights body, it does not excuse its lack of concern for religious liberty. Religious liberty and freedom were hard fought for and obtained—and cost many a life. On the right to religious freedom, this stunning failure to attempt to understand the faith ethos beggars belief.

It seems that the NIO and CEDAW are unaware of Article 2 of Protocol 1 of the ECHR, which states:

“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions”.


There has certainly been no attempt to respect these rights, when one considers the lack of consultation with parents.

The attitude of the department in the Explanatory Memorandum exposes its ignorance to its human rights obligation under Article 2 of Protocol 1. It says:

“Timing for the Department to make regulations about the circumstances in which a pupil may be excused from receiving education on the updated curriculum is a matter for the Department. There is no guarantee this will be in place by January 2024, the point at which the Department is under a duty to issue guidance to schools on the content and delivery of the updated curriculum. This may attract criticism from faith-based schools, and some teachers and parents”.


It seems to say, “So let it be. Who are they?”

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[Baroness Barker (LD)]

My Lords, it is a pleasure to support the Minister today—I do not very often, but I do on this matter. I begin my remarks by declaring that I am the chair of the All-Party Group on Sexual and Reproductive Health and a co-chair of the All-Party Group on HIV/AIDS.

One of the reasons why I am proud to be chair of the former is because of a woman who I never met. When I was young, I listened to my mum and my beloved Auntie Betty talking about a girl who they were at school with in the 1940s in Scotland and who got pregnant. They sat there and said, “She didnae know”. That is what happened: lots of young women got pregnant and their lives were transformed, sometimes much against their will, because they just did not know.

As a young woman in my 20s, I began to watch friends and people I knew become sick. Then, some of them went on to die. In some cases, they died because of ignorance. They died because they became HIV positive and, at that point, there was no cure. Fortunately, in the intervening period, HIV has gone on to be a condition with which people live happy, well and fulfilling lives. But I have always believed that everybody in this world has the right to information to make the right choices, and safe choices, about their body and their life. I believe that wherever they are in the world, not just the United Kingdom, but I particularly believe that it should be a right across the four nations of the UK for every young person to have access to accurate information.

Let us go back to why these regulations are in front of us. The noble Lord, Lord McCrea, read this out in his speech, which I disagreed with in many ways. But let us be absolutely clear. The CEDAW report found that, in schools in Northern Ireland, where

“relationship and sexuality education is delivered, it is frequently provided by third parties and based on anti-abortion and abstinence ethos”.

Then there is the bit that the noble Lord did not read out:

“Those factors point to State negligence in pregnancy prevention through a failure to implement its recommended curriculum on relationship and sexuality education”.


Nobody has talked about the sexuality part of it today, but we are talking about young people and HIV as well. Let us bear that in mind.

Members talked about what the Government have come up with in response as being cavalier. It is not: it is careful and considered. It is an obligation on schools to provide information on sexual and reproductive health that is age-appropriate, comprehensive and scientifically accurate.

I happen to think that, should a parent wish to withdraw their child and prevent them accessing age-appropriate, comprehensive and scientifically accurate SRH education, they would be a bad parent. Children should have the right to access that information, which keeps them safe. I understand entirely that that view is not shared by everybody else. Therefore, we have to make sure that there is a right to withdraw. That right is quite clear. Members of the Committee have made a great deal about the procedural cases put forward by the Secondary Legislation Scrutiny Committee in particular, but that committee does not say—nor has anybody said so far—that there is any intention on the Government’s part to frustrate the rights of parents to withdraw their children. That is not the case at all. It is absolutely the case that the Government are upholding their rights.

When we analyse the regulations and the Secondary Legislation Scrutiny Committee’s report, it is important to see who was lobbying the committee so hard to point out flaws and faults in the process. It was the Catholic Church, the Christian Institute and Right to Life—organisations that, at every turn, have sought to prevent women, young girls and young people accessing comprehensive sexuality and relationship education, information about abortion and abortion services. The people bringing about that influence on the committee are some of those who have been guilty of providing information that CEDAW found to be wildly inaccurate and misleading. It is not just that young people run into trouble because of ignorance these days; a lot of organisations, which sometimes present themselves as crisis pregnancy advisers, now make a business out of providing information that is inaccurate and harmful.

There is much that I can and do disagree with—

[Lord McCrea of Magherafelt and Cookstown (DUP)]

I have sat through hour after hour of debate recently—in fact, sometimes until the early hours of the morning—in which the noble Baroness’s party in particular has demanded that legislation be stopped until the Minister comes to the House with an impact assessment. Because he had not done so, they berated him over and over again. We sat for hours going over that same thing. When was the impact assessment delivered on this legislation?

[Baroness Barker (LD)]

I listened to noble Lords talk about the impact assessment, in particular to what they said about it in relation to providers. I think that there will be an impact. The Government have actually been quite clear, because the people who will be impacted are those who have been providing inaccurate information that has harmed children.

I listened to the noble Lord’s speech. He talked about this legislation applying to primary schools. It does not; it applies to key stages 3 and 4. We are talking about supplying age-appropriate, comprehensive and scientifically accurate information to people aged 11 to 16.

[Lord McCrea of Magherafelt and Cookstown (DUP)]

The noble Baroness will get the report; I have the speech here. In fact, I did not say that about primary schools. I said that, as far as England is concerned, it was for primary and secondary, but not in Northern Ireland.

[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.

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[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.

[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.

[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.