My Lords, I shall focus on one very important part of the relationships and sex education regulations we are debating today. Some speakers have already referred to it, but I think it merits further comment. It is the right of parents to withdraw their children from RSE. At the heart of this debate is a simple question: do we trust parents? Do we trust parents to decide what is best for their children? Do we trust parents to steward their authority over their children’s education? Do we trust parents to ensure that such education is in conformity with their religious and philosophical convictions? My view is that the Government should do all they can to empower parents, not to undermine them and reduce their authority and responsibility over their children.
If we look back to the passage of the Children and Social Work Bill in 2017, we see that the Government made repeated assurances that they would uphold their trust in parents and maintain the right of withdrawal from sex education. At Second Reading—this has already been referred to—Edward Timpson MP, the Minister for Vulnerable Children and Families in the other place, said:
“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.]
The proposed change would mean that as a matter of law the final decision about whether to withdraw a child from school sex education would, for the first time, rest with the head teacher, not with the parents. I fully accept that the guidance says at paragraph 47 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, the Government have made little attempt to define “exceptional circumstances”, and ultimately the guidance is just that—guidance. The regulations define the law, and they remove the final decision from parents and place it in the hands of the head teacher. The regulations before us today therefore fundamentally alter the relationship between parents and the state.
This issue is consequently, in an important sense, much bigger than relationships and sex education. The far-reaching constitutional implications of the change in the way in which the state regards its relationship with parents has caused real concern in many quarters. As of yesterday, almost 117,000 people had signed a petition calling on the Government to maintain the right of withdrawal.
A similar message came from the Government’s own consultation, which shows that over half—54%—of respondents disagreed with the suggestion that the new right of parents to request the withdrawal of their children from sex education provides sufficient clarity and advice to schools in order for them to meet the legal requirements. Only a third of respondents—34%—agreed. What is the point of running consultations or having a petition process if the Government just ignore the feedback that they receive and carry on?
The Government have offered only the flimsiest of justifications for the far- reaching changes that they propose, simply stating in their consultation document:
“A right for parents to withdraw their child up to 18 years of age is no longer compatible with English case law or the European Convention on Human Rights”.
Crucially, the Government have not published their legal advice to back any of that up, which makes it impossible for us as lawmakers to properly scrutinise these proposals. In this context, I want to ask two things of the Minister. First, will he set out the relevant case law to the House? Secondly, is he saying that the Supreme Court has made a human rights declaration of incompatibility with respect to the right of parents in the existing legislation to withdraw their children from relationships and sex education? I am struggling to see how Parliament can be constrained by either.
In the first instance, if Parliament does not like the direction of case law, it is its prerogative to introduce new statutes to send the law in a different direction. In the second instance, even if the Supreme Court were to rule that our arrangements were incompatible with the European Convention on Human Rights, this would neither have the effect of changing the law nor require that Parliament should change the law. Section 4 of the Human Rights Act is absolutely clear that the only thing that Parliament must do in response to a declaration of incompatibility—and of course, none has been given here—is consider it.
In that context, although the Government could of course decide to shift, as a matter of law, the final decision about withdrawing children from the parents to the head teacher, I am not at all convinced that they are obliged to make this change by an irresistible legal imperative. The fact that the Government have chosen to make this proposal in the absence of any such imperative suggests to me that they have embraced a statist mindset alien to true Conservative political philosophy. Their instinct should be to trust parents first, not the state.
During the Children and Social Work Bill debates, the Minister said that the Government wanted children to decide about RSE from up to three terms before they turn 16. Rather than removing the right of parental withdrawal from that point, however, the regulations replace the right of withdrawal with a right to request withdrawal—with the head teacher making the final decision—from the age of 11. In this sense, the regulations treat 11 year-olds and their parents in exactly the same way as they treat 18 year-olds and their parents.
Particularly concerning is that when Labour tried unsuccessfully to make a similar change in early 2010, through Clause 14 of its Children and Families Bill, it provided far more and far better reassurances to parents. Specifically, Clause 14 proposed that the right of withdrawal should remain completely intact until a child is 15. The Conservative Front Bench opposed that more modest change because it undermined the role of parents, yet today we see a different approach from the Conservative Front Bench.
With that in mind, I conclude by quoting from the 2016 Supreme Court judgment against the Scottish Government and their profoundly misconceived statist “named person” scheme. The UK Government would do well to keep this in mind:
“Different upbringings produce different people. The first thing that a totalitarian regime tries to do is to get at the children, to distance them from the subversive, varied influences of their families and indoctrinate them in their rulers’ view of the world. Within limits, families must be left to bring up their children in their own way. As Justice McReynolds, delivering the Opinion of the Supreme Court of the United States famously put it in Pierce v Society of Sisters, ‘The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations’”.
I ask the Government to think again.