DfE Draft Advice Legally Flawed?
In The Times this Friday, a leading academic and public law barrister is quoted in an article headlined – Making schools teach about same-sex marriage ‘would be unlawful’. Christopher McCrudden, a professor of human rights and equality law at Queen’s University Belfast, has said that the Department for Education’s Independent School Standards Draft Advice “is legally flawed and would be open to challenge in respect of the effective prohibition on teaching that suggests that same-sex marriages or civil partnerships should not be recognised as being lawful unions under civil law”.
The draft advice, from the Government, states that a school would fail to meet its obligations under the Independent School Standards if the curriculum “suggests that same-sex marriages or civil partnerships should not be recognised as being lawful unions under civil law”. In his opinion for the Christian Institute, Mr McCrudden questions whether the draft guidance “would be compatible with the European Convention on Human Rights and with the public sector equality duty were it to be adopted in its current form”. His opinion says: “The answer, in brief, is that it would not. Nor, as a separate matter, does it appear to be consistent with previous political commitments given by ministers during the passage of the Marriage (Same Sex Couples) Act 2013”.
Mr McCrudden cites Article 9 of the convention, which he says “recognises not only the right to hold a belief, but the right to manifest the belief, which has been interpreted to mean, to ‘bear witness in word and deed’”. He argues that the freedom to manifest religious belief applies not only to protect individuals but also churches and faith schools. “Teaching the faith is, for some religions, a way of manifesting their religion, and as such falls under the protection of Article 9. “Preventing the teaching of religious doctrine as true, and either requiring that faith schools teach their truth as simply one truth among other equally valid truths when others are offended by it, or requiring faith schools to teach that their truth is less valid when it runs contrary to government policy as currently reflected in legislation, amounts to a significant limitation on the ability to manifest religious belief protected by Article 9.”
Safe at School have produced a detailed briefing about the Independent School Standards draft advice and its dangers for parental rights and civil liberties. Indeed they have called the ISS draft advice a ‘manifesto for state totalitarianism’. You can read the briefing here:
Analysis of Independent School Standards Draft Advice