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Education and Inspections Bill

My Lords, I hope that I am not guilty of becoming a prisoner of institutional Whitehall. Most of my Whitehall colleagues would certainly not convict me of that offence, although they might convict me of others. I have given a very great deal of consideration to Amendments Nos. 1 and 2 since my noble friend first raised them in Committee, including extensively quizzing my department’s legal advisers. I say frankly to my noble friend that I am attracted to simplicity in the law, and to calling a spade a spade. I was instinctively attracted to a simple clause at the outset of the Bill which provided for a positive duty to secure the right to education on the lines that he has set out. However, having explored the issue exhaustively over the summer, I am persuaded by the arguments that we should not change the law in the way proposed by this amendment. While at best it would not confer any new rights over and above those which currently exist, although I accept that it would declare them more clearly, it might—for me, this is the decisive argument—have the perverse effect of requiring the state to make available types of education which we do not favour on grounds of equity, values or standards. I set out these points at length in a letter to my noble friend, to which he referred. I am sorry that he did not receive it longer before the debate, but let me summarise the arguments. Rights to education are already guaranteed in England through Article 2 of the First Protocol to the European Convention on Human Rights, for children by Article 28 of the UN Convention on the Rights of the Child, and in national law by virtue of the Human Rights Act 1998. The Act also sets out in detail the procedure for making a claim that a right has been infringed and the remedies available for a breach. To legislate along the same lines in an education Bill is at best superfluous and at worst might undermine the regime set out in the Human Rights Act 1998. However, the more substantial concern that I want to address to my noble friend is that the ““right to education”” in Article 2 of Protocol 1 of the European Convention on Human Rights, as given effect in national law by the Human Rights Act 1998, is phrased negatively. It states that, "““no one shall be denied the right to education””." The fact that the right is phrased negatively has crucially influenced the way in which the courts have construed the right. It has been held that the negative formulation does not require that member states establish at their expense, or subsidise, education of a particular type or at any particular level, but rather implies for those under the jurisdiction of a member state the right to—to cite the European Court of Human Rights in the Belgian linguistics case— "““avail themselves of the means of instruction existing at a given time””." Its primary objective has therefore been held to be to guarantee a right of equal access to the existing educational facilities. A positive right along the lines of that envisaged by this amendment would, I am advised, be likely to be construed differently by the courts. It might be interpreted as imposing an obligation on local authorities to ensure that children could receive education of a particular type or standard which the authorities were unable to provide, or which they considered it positively undesirable to provide. Taking, for example, the Belgian linguistics case, the European Court of Human Rights held that the right to education, as phrased negatively, did not give rise to a right to be taught in the language of the child’s or their parent’s choice, nor was there a right of access to a particular school of choice. Logically, therefore, a positive right might be held to require the state to make provision for teaching in, or schools for, languages other than English, or in any type of faith or cultural school—an issue which of course goes to the heart of debates we will have later, where I believe that my noble friend does not support an unfettered right of parents to any type of education, regardless of its impact on social cohesion. In the case of Scotland, my noble friend is right—there has been no case so far but, to some extent, that supports my argument. We simply do not know where such a right might go if cases were brought under it requesting types of education that the state thought undesirable. Existing rights to education of a character which we believe worthwhile appear to me entirely robust. They rest on a fourfold foundation: Section 7 of the Education Act 1996, which requires parents to cause their children to receive efficient and suitable full-time education; Section 10 of the Education Act 1996, which imposes a duty on the Secretary of State to promote the education of the people of England and Wales; Section 13, which requires local authorities to secure that efficient education is available to meet the needs of their populations; and the duty on each school’s governing body to conduct the school with a view to securing high standards of achievement. The effectiveness of this fourfold foundation was set out only this year by the noble and learned Lord, Lord Bingham, in the case of Ali v Lord Grey School. He said: "““This fourfold foundation has endured over a long period because it has, I think, certain inherent strengths. First, it recognises that the party with the keenest personal interest in securing the best available education for a child ordinarily is, or ought to be, the parent of the child. Depending on age, maturity and family background, the child may or may not share that interest. But the parent has a statutory duty. Secondly, the regime recognises that for any child attending school it is that school through which the education provided by the state is in practice delivered. The relationship between school and pupil is closeand personal: hence the restrictions on its interruption or termination. It is a relationship resembling, but for the want of consideration, a contractual relationship. But, thirdly, the regime recognises the need for a safety net or longstop to ensure that the education is not neglected of those who for any reason (whether ‘illness, exclusion from school or otherwise’) are not being educated at school in the ordinary way. It is plainly intended that every child of compulsory school age should receive appropriate education in one way if not another, and that responsibility rests in the last resort with the LEA””." Those are the unambiguous words of the noble and learned Lord, Lord Bingham, and, on that basis, I hope I may have persuaded my noble friend that the status quo is supportable. I will, however, continue to reflect further on his arguments. We believe that Amendment No. 7, too, in the name of the noble Baroness, Lady Walmsley, is unnecessary for two reasons. First, a duty already exists under Section 19(1) of the Education Act 1996 for local education authorities to, "““make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them””." Secondly, Section 7 of the 1996 Act places a duty on parents to ensure that every child receives efficient and suitable education. Parents can choose to send their children to school or ensure that they receive education otherwise. A parent receives support inthe exercise of this duty by virtue of duties placed on the Secretary of State and local authorities relatingto the promotion and provision of education, such as the safeguard in Section 19 of the 1996 Act, to which I have referred. Therefore, although we accept that the local authority should be obliged to make arrangements for the provision of suitable education where children of compulsory school age would not otherwise receive it, the primary responsibility to ensure that a child receives a suitable education rightly rests with parents. Clause 4 will be supported by new statutory guidance, a draft of which is currently available and has been published for consultation. In producing it, we listened carefully to the important issues raised by noble Lords in Committee. The draft guidance has been considerably strengthened in the area of placing children identified as not receiving suitable education. There is now clear reference to local authorities having a statutory duty to ensure that suitable education is provided for children who might not otherwise receive it. I hope that I have managed to reassure the noble Baroness that the effect that she seeks to achieve is fully covered by existing legislation.