The Policy of Promotion: The Clash of Rights . . .

77

THE POLICY OF PROMOTION: THE CLASH OF

RIGHTS IN SEX EDUCATION LAW
Martina Gillen, Lecturer in Law, University of Reading

INTRODUCTION
This paper briefly analyses the nature and impact of section 28 of the Local
Government Act of 1988 (hereafter “Section 28”) in England, Wales and
Scotland; before looking at how sex education is governed in Northern
Ireland. The central tenet of this paper is that in Northern Ireland there has
been a failure to resolve the questions surrounding the practical need to
discuss homosexuality in sex education. This issue may prove a complex
and thorny one for the burgeoning human rights regime here since this area
involves a number of competing rights, including:
• the rights of students to education and information;
• those of the gay community to equality under the law; and,
• those of parents and schools to have the curriculum taught in a manner
harmonious with their religious and moral beliefs.
Another potential legal difficulty is the malleability and indeterminacy of the
word “promote”, which has been used to give Section 28 impact beyond its
official scope, and may similarly obfuscate the level of quantifiable action
required to comply with the equality provisions in section 75 of the Northern
Ireland Act 1998. As a case study, the recent guidelines from the Scottish
Parliament will be examined as an example of the work of a devolved
government bound by equality provisions.

Section 28: Its Implementation And Scope

It is widely admitted that the introduction of Section 28, which amended the
Local Government Act of 1986, was a response on the part of the
Conservative government of the time to the actions and attitudes of some
Labour controlled local authorities. It was also a piece of legislation very
much in keeping with the wider global trends in conservatism at that time. A
notable parallel can be drawn between Section 28 and the Helms
Amendment to the legislation governing the American National Endowment
for the Arts (hereafter the “NEA”). The wording of the Helms Amendment
and the wording of Section 28 are remarkably similar. The Helms
Amendment to the NEA provided that, none of the funds authorized to be
appropriated pursuant to that Act may be used to promote, disseminate, or
produce obscene materials, including, but not limited to, depictions of
sadomasochism, homo-eroticism, the exploitation of children or any
individual engaged in sex acts. Section 28 reads as follows:
“(1) A local authority shall not intentionally promote
homosexuality or publish material with the intention of
promoting homosexuality; promote the teaching in any
maintained school of the acceptability of homosexuality as a
pretended family relationship.
78 Northern Ireland Legal Quarterly [Vol. 53, No. 1]

(2) Nothing in subsection (1) shall be taken to prohibit the

doing of anything for the purpose of treating or preventing the
spread of disease.”
As Stychin notes the Helms Amendment was largely a knee-jerk response to
the emergent gay and lesbian arts culture, and especially the work of gay
artists notably, Robert Mapplethorpe and Andres Serrano, which was
considered unacceptable and pornographic.1 This ‘knee-jerk’ reaction was
not a uniquely American phenomenon and Section 28 is evidence of the
desire of some sections of the British government of the time to limit the
emergent gay cultural scene by choking off its funding and support from the
more liberal local authorities. It is perhaps this fact, coupled with the
ambiguity of Section 28’s approach to schools, which has allowed both
supporters and detractors alike to claim at various times that Section 28 does
not concern schools. Indeed, a spokesperson for the Department of
Education went so far as to assert to the media during the discussion
surrounding the government’s recent attempts to repeal Section 28 that:
“Section 28 does not apply, and never has applied, to the
activities of individual schools in England. It applies only to
the activities of local authorities. But it is clear that it has
caused much confusion and many teachers believe that it does
apply to schools.” 2
Nevertheless, every debate concerning Section 28 or its equivalents has
centred around schooling, and the figure of the child, innocent, vulnerable
and in need of protection has become totemic for all sides in this perplexing
debate. Furthermore, the homosexual has taken on a totemic role in this
debate. For the proponents of Section 28 the homosexual is not only the
permissive ally and seducer of the left wing but also the dangerous infectious
recruiting pervert who preys upon children. There is a conflation of the
homosexual with the paedophile. At its most extreme, and violent, this
attitude may be illustrated by the comments of one Leader of the South
Staffordshire County Council:
“Those bunch of queers that legalise filth in homosexuality
have a lot to answer for. I hope they are proud of what they
have done . . . It is disgusting and diabolical. As a cure I
would put 90 per cent of queers in the ruddy gas chamber. I
would shoot them all. Are we to keep letting these queers
trade their filth up and down the country? We must find a way
of stopping these gays going round.”3
Compare this to the comments of Baroness Knight of Collingtree, one of the
original supporters of Section 28, during the second reading of the
government’s proposed bill to repeal that clause:
“I referred earlier to the noble Lord, Lord Haringey. Haringey
council made a video called “How to become a lesbian in 35
______________________________________________________________
1 Stychin, Law’s Desire: Sexuality and the Limits of Justice, (1995), p 14.
2 Available online at:
http://news.bbc.co.uk/hi/english/education/newsid_689000/689288.stm.
3 Kaufmann and Lincoln, High Risk Lives, Lesbians and Gay Politics after the
Clause , (1991), p 4.
 The Policy of Promotion: The Clash of Rights . . . 79

minutes”. It was intended to be shown in a school for mentally

handicapped girls, some of whom were extremely young. In
the course of my years as a local councillor I took a great
interest in the mentally handicapped children in my area; I
served on the board of schools and had a great deal to do with
them. From my experience of those children, it is difficult
enough for them to understand normal sexual relations without
having homosexuality foisted upon them. I find it horrifying
that anyone would support that. All of that was stopped dead
by Clause 28. Clause 28 was introduced for that purpose and
that purpose alone.” 4
Although Baroness Knight was undoubtedly well intentioned, her comments
are disturbing because not only are they factually inaccurate as Lord Harris
of Haringey pointed out in a later debate5 but they retrench the notion of the
homosexual as predator, and homosexuality as something abnormal and
infectious. Homosexual relations are not the natural expression of adult
homoerotic desire and bonds of love but rather something abnormal to be
“foisted” upon children. The Baroness does go on to clarify that she has no
wish to marginalize or be unfair to those who “choose” a homosexual way of
life. However, the notion of choice, of choosing a homosexual lifestyle, is
itself a contentious and divisive issue, not least because the notion that
homosexuality is chosen buttresses the idea that it can be “foisted” upon the
innocent and unwary.
In sharp contrast to this image is the image of the homosexual as a member
of a persecuted minority. Those in favour of repeal often argue from the
perspective of protecting children from homophobic bullying and giving
them proper advice about the difficult issue of sexual orientation, or from the
perspective of removing the inherently discriminating legislation from the
statute books. In either scenario, the homosexual is characterised as victim,
as outsider. Either role ultimately pushes the reality of gay life to the
margins and replaces it with an image acceptable to the majority
heterosexual community thus dis-empowering the gay subject. Gays and
lesbians are forced to be either passive victims in need of legal protection
and the patronage of the concerned liberal majority or vilified as criminals.
Either position robs them of status and control over their own lives because it
describes and identifies them solely in relation to how the heterosexual world
chooses to view them.
Schooling and in particular sex education has thus become the arena for an
intense political and moral struggle.

The Impact of Section 28

One of the major sources of contention during the recent repeal debate was
the efficacy and scope of Section 28. There are essentially two approaches
to the impact of Section 28. The first is to assert that, since no litigation has
ever arisen Section 28 has not impacted upon the actions of schools or other
bodies. The other is to assert that it has been an effective barrier to schools
______________________________________________________________
4 Hansard, 6th December, 1999, col 1103.
5 Hansard, 7th February, 2000, col 474.
80 Northern Ireland Legal Quarterly [Vol. 53, No. 1]

and authorities disseminating material discussing homosexuality. Some view

this as a positive development. Lord Moran for example quoted the
following letter he had received from a schools inspector:
“Section 28 greatly strengthens the hand of officers. If they
have a proposal before them from a Council committee which
clearly promotes homosexuality then if reason and common
sense fail the officer can appeal to Section 28. Councillors
know that officers cannot be made to act against the legal
advice they have received.”6
Others view this restriction as pernicious and damaging:
“Perhaps I may record a few of the facts of life, if I can use
those words. The first facts are legal facts. Section 28 is
probably one of the worst drafted clauses on our statute book.
Reference has been made to how badly the Section is drafted
and the fact that the word “promote” is subject to a wide range
of interpretations, and how that has led to some of the
difficulties in discussing this issue. The other part of Section
28 refers to “pretended family relationships”. Those, too, are
not the words of calm parliamentary draftsmen. Those are the
words used by those in the saloon bars in the Home Counties.
It has nothing to do with precision in legislation. It is the kind
of terminology used by two middle-aged gentlemen in florid
ties who with one breath claim that they have never met a
homosexual since they left boarding school and in the other
claim that the BBC is absolutely crawling with them.”7
Certainly, the academic literature cites a number of instances where local
authorities have withdrawn or refused funding for projects on the basis of
potential Section 28 liability. Edwards notes a number of instances notably
the example of a head teacher cancelling a performance in a secondary
school of the play “Trapped in Time” because the drama contains a scene in
which a male character “comes out” as gay because it was feared such a
scene was in contravention of Section 28.8 Indeed, in the House of Lords
debate one peer noted that:
“I even heard of someone leaving a maintained comprehensive
school six years ago who had taught Shakespeare at A-level
and had been told that it was impossible to discuss any
question of a homosexual relationship in regard to
Shakespeare’s work. How the Sonnets can be discussed
without that question being considered is beyond me. That
teacher was told that Section 28 prohibited such discussion.” 9
Clearly, the key impact of Section 28 is not merely the practical import that
its framers intended but also its symbolic significance, which has extended
its shadow far beyond the arena of the local authority. As one peer (Earl
Russell) astutely noted:
______________________________________________________________
6 Hansard, 7th February 2000, col 413.
7 Lord Whitty, Hansard, 7th February 2000, col 477.
8 Edwards, Sex and Gender in the Legal Process, (1996), p 75.
9 Earl Russell, Hansard, 7th February 2000, col 422.
 The Policy of Promotion: The Clash of Rights . . . 81

“If one believes, as I do, that most people do not have a choice
about their sexual orientation, one must believe that, whatever
is their sexual orientation, they should make as good a job of
living that way as they possibly can. If one is to do that, one
must be entitled to the respect of being an equal citizen - equal
before the law and equal in moral esteem. If one is to be
denied that, one finds that life is very difficult indeed.
Precisely what annoys most homosexuals about the section is
that they see it as being a badge of inequality.”10
It is this fostering of a sense of division and difference between the
homosexual and heterosexual members of the community which may prove
the undoing of Section 28.

Section 28 And Its Impact Upon The Official Guidance On

Homosexuality
Regardless of the actual legal impact of Section 28, there has been an evident
sea change in Government policy during its lifetime. This is clearly
indicated by official guidance circulars. Circular 11/87 made no attempt to
proscribe coverage of homosexuality in sex education, but did advise schools
that such coverage may cause offence. Furthermore, it stated that:
“There is no place in any school for teaching which advocates
homosexual behaviour, which presents it as a norm, or which
encourages homosexual experimentation by pupils.”11
The 1994 Circular (5/94) contains no specific reference to homosexuality
beyond reasserting the legal position as regards Section 28. The only
possible sign of governmental relent may be found in paragraph 8, which
stresses the need for teachers to acknowledge that whilst sex education
should be taught in the context of heterosexual marriage and reproduction,
many children come from very different backgrounds and therefore efforts
should be made to avoid ‘causing hurt and offence. . . and to allow such
children to feel a sense of worth.’ This is undoubtedly a sop to the much
more fearsome Cerberus of common-law partners and single parent families
than any attempt to assuage the alienation of the gay community. Despite
this sanguine repetition of, and reliance upon, Section 28 there are some
inherent problems with its approach.

Section 28: The Areas Of Legal Contention

There are two major legal difficulties with the interpretation and
implementation of Section 28. The first is the ambiguity of the word
“promote” and the second is that Section 28 is on a collision course with the
blossoming human rights culture prevalent in Europe today. There is strong
legal precedent to indicate that the test for “promoting” something is a
stringent one with a high threshold. As Thomas and Costigan12 have noted

______________________________________________________________
10 Hansard, 7th February 2000, col 421.
11 DES 1987, para 22.
12 Thomas and Costigan, Promoting Homosexuality, Section 28 of the Local
Government Act 1988, (1990), p 11.
82 Northern Ireland Legal Quarterly [Vol. 53, No. 1]

the Gillick13 case seems to be authority for suggesting that to make

something easier is not necessarily to promote or encourage it. This difficulty
of interpretation was recognised during the House of Lords debate on clause
28 (as it then was). Lord Falkland remarked:
“It is just not possible (and I dare say we shall argue the point)
to understand what is meant by the word ‘promote’ . . .”14
The Minister replied to that comment with an explanation that might have
proven key had any litigation tested the meaning using the rule in Pepper v
Hart.15
“But we think that “promote” has a clear meaning. If one
promotes something, one is deliberately doing something to
give what is promoted a more favourable treatment, a more
favourable status or wider acceptance, than other things or that
thing hitherto.”16
This explanation did little to clarify the meaning of “promote” and
potentially opened up local authorities to a broad liability for any new project
or funding for a homosexual cultural group or for any educative purposes
with any content concerning homosexuality whatsoever. Thus the
fundamental subjectivity of the concept of promotion remains.
Lord Lester highlighted the second difficulty concerning the drafting of
Section 28 during the repeal debate.17 He drew the House’s attention to the
European Court of Human Rights decision in the case of Sagueiro da Silva v
Portugal.18 In that case the Court ruled that the refusal to grant custody of a
child to the father during divorce proceedings simply on the basis of his
being in a homosexual relationship was contrary to his rights under Article
14, read with Article 8, of the ECHR and amounted to unjustifiable
discrimination. Thus, homosexual relations based on love and affection and
long-term commitment have been recognised as capable of constituting real
family relationships. Section 28, with its assertion that homosexual
relationships are not and must not be treated as such by local authorities, flies
in the face of the Convention. Furthermore, Section 28 must also be viewed
as an interference with free speech and an unjustifiable act of discrimination
against homosexuals. Lord Lester warns that although it is legitimate to
protect children from immoral or harmful influences, Section 28 may not
have been drafted conservatively enough to stay within these bounds of
legitimate action.
Despite these warnings, the repeal of Section 28 was rejected by the Lords
and the government declined to push the Bill any further within that
legislative session. The issues therefore remain unresolved although the
legal position is clear since Section 28 is still firmly in place in England and
Wales. This may be illustrated by the governments’ recent sex education
guidelines. On the topic of the nature of relationships, the guidance is that:
______________________________________________________________
13 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112.
14 Hansard, 1st February, 1988, col 867.
15 Pepper v Hart [1993] A.C. 593
16 Lord Caithness, Hansard, 1st February, 1988, col 890.
17 Hansard, 7th February, 2000, col 465.
18 REF00001264 12/12/99
 The Policy of Promotion: The Clash of Rights . . . 83

“Within the context of talking about relationships, children

should be taught about the nature of marriage and its
importance for family life and the bringing up of children. The
Government recognizes that there are strong and mutually
supportive relationships outside of marriage. Therefore,
children should learn the significance of marriage and stable
relationships as key building blocks of community and society.
Teaching in this area needs to be sensitive so as not to
stigmatise children on the basis of their home
circumstances.”19
Thus, the Government has attempted to temper the stringencies of Section 28
with recognition of relationships outside of marriage although this may also
be read as referring to single heterosexual parents as well as gay parents. The
question, however, cannot remain in stasis long because of the issue of
European rights involved. It is at this point that we shall turn to Northern
Ireland, a jurisdiction with a tabula rasa in relation to legislation like Section
28, but with equally a well-known connection between its schools and the
various churches of Northern Ireland, which has nurtured a laissez faire
attitude toward sex education. How can this jurisdiction cope with the
demands of its new devolved rights culture?

Sex Education in Northern Ireland: the impact of Section 75

Historically, Northern Ireland’s education system has been inseparable from
its religious life. As Lundy has noted:
“. . . the most distinctive factor about Northern Ireland’s school
system is that it is de facto although not necessarily de iure
religiously segregated.”20
This division is entrenched by the administrative system for schools in
Northern Ireland. On the one hand are voluntary schools which are almost
overwhelmingly Catholic in their ethos, and thus, predominantly fall under
the control of the Council for Catholic Maintained Schools, and on the other
are controlled schools which were Protestant church schools which
transferred their assets and obligations to the Government for funding in
exchange for guaranteed places on schools’ governing boards. This
arrangement means that with a few rare exceptions, the relevant church holds
a majority of the places on the board of governors of any school in Northern
Ireland. Furthermore, because of a wide degree of satisfaction with Northern
Ireland’s academic achievements among their constituents, politicians are
reluctant to interfere with the current schools system.
However, the influence of the churches and the general conservative tenor of
Northern Irish society has meant that in the area of sex education there has
been little or no guidance in recent years. DENI Circular 1987/45 provides
that sex education should be taught in all schools but “ in a sensitive manner
which is in harmony with the ethos of the school or college and in

______________________________________________________________
19 Department for Education, Sex and Relationship Education Guidance, Document
Reference Number DfEE 0116/2000, s 1.21.
20 Lundy, Education Law, Policy and Practice in Northern Ireland, (2000), p 6.
84 Northern Ireland Legal Quarterly [Vol. 53, No. 1]

conformity with the moral and religious principles held by parents and
school management authorities.”21
Many of the main Christian denominations are of the view that
homosexuality is sinful and abhorrent. Indeed, in the Papal encyclical
Veritatas Splendor, His Holiness asserted that acts of sexual perversion are
acts that are intrinsically evil and this means that whatever the circumstances
they are not capable of being ordered to God or to the good of the person
involved.22 This notion of disorder was precisely the protest His Holiness
made against a Gay Pride Parade in Rome in 2000 on which occasion he
gave a short speech reasserting that the Catholic view on homosexuality is
that it is intrinsically evil.23
The Catholic Church is not alone in this attitude as many Protestant
denominations also hold that the Bible enjoins us to view homosexuality as a
grave and terrible sin. Prior to devolution, article 8 of the Education Reform
(NI) Order 1989 was to be balanced against the guidance from DENI that
“schools and colleges cannot ignore consideration of sexual practices which
run counter to the moral standards of society in Northern Ireland”. However
as Lundy has noted:
“The influence of the churches on the schools system and the
moral tenor of society in Northern Ireland is such that it is
unlikely that a school or even an individual teacher would
provide sex education that was anything other than suitably
moral. It is almost inconceivable that schools would promote
homosexuality or even sex outside marriage.”24
How then will this situation be effected by the limitations placed on local
authorities (including the Education and Library Boards which manage
schools) under section 75 of the Northern Ireland Act 1998 (hereafter
“Section 75”)?
“75. - (1) A public authority shall in carrying out its functions
relating to Northern Ireland have due regard to the need to
promote equality of opportunity –
between persons of different religious belief, political opinion,
racial group, age, marital status or sexual orientation;
between men and women generally;
between persons with a disability and persons without; and
between persons with dependants and persons without.”
Again we must note the use of the word “promote” which has still not been
satisfactorily defined and is further confused by the addition of “having due
regard”. We have already seen from the debate on Section 28 that “promote”
is a contentious and ambiguous word. Furthermore, the rights enshrined in
the ECHR are also part of the foundation of the new Northern Ireland
______________________________________________________________
21 Education Reform (NI) Order 1989 art 8(2).
22 His Holiness Pope John Paul the Second, Veritatis Splendor, 1993.
23 An account of His Holiness’ Speech can be found at:
http://news.bbc.co.uk/hi/english/world/europe/newsid_825000/825852.stm.
24 Lundy, Education Law, Policy and Practice in Northern Ireland, (2000), p 143.
 The Policy of Promotion: The Clash of Rights . . . 85

government, which is constrained in its legislative competence to adhere to

its principles.25 There is an almost immediate conflict of rights apparent then
in this issue arising from the competing rights entailed in the ECHR.
The first and in this issue central right is that enshrined in Article 2 of the
First Protocol of the ECHR, the right to education. It is essential that this be
read in conjunction with the United Nations Convention on the Rights of the
Child (hereafter the “CRC”), also because the right to education raises two
important issues. Article 2 asserts that no one should be denied the right to
education and that the state should respect the right of parents to ensure
education and teaching in conformity with their own religious and
philosophical convictions. This must be read in conjunction with the
provisions of the CRC. The United Kingdom’s obligations under the CRC
have been described as enshrining the four Ps: participation by children in
decisions about their lives, protection of children from abuse and neglect, the
prevention of harm to children, and provision to meet their basic needs.
While the desires of parents and children are usually harmonious, what
would happen if a gay child wished to receive appropriate information and
instruction on homosexual relationships within the broader context of general
sex education, but the parents felt that that type of education or indeed any
type of sex education was inappropriate? As it currently stands, the situation
in Northern Ireland is unclear because in practice it is rarely tested. One
piece of case law, which is perhaps pertinent, is the case of Kjeldsen, Busk,
Masden and Pedersen.26 In that case parents with strong Christian beliefs
objected to compulsory sex education lessons in Danish state schools and
challenged the policy before the Court. In affirming that Article 2 of Protocol
No. 1 enjoined the state to respect parents’ religious and philosophical
convictions in their children’s education, the Court explained that the state is
obligated to ensure the communication of information and knowledge in an
objective and pluralistic manner. States are not allowed to seek to
indoctrinate. However, the sex education lessons, which the legislation had
intended to be imparted to pupils, did not amount to indoctrination or
advocacy of a specific kind of sexual behaviour. This raises some interesting
issues as to whether this can be applied negatively? Can failure to deal with
homosexuality amount to heterosexual indoctrination? Or does existing
practice, though respectful of parents, contravene this prohibition? Is this
case really a charter for parent’s rights since it is unlikely that an educational
programme could be considered indoctrination?
There is certainly a substantial body of parental opinion in Northern Ireland
that is against the inclusion of homosexual issues within the sex education
curriculum. A Health Promotion Agency survey has indicated that 2% of
parents feel any sex education is inappropriate to the degree that they would
withdraw their children from sex education lessons and 21% feel any sex
education which includes any homosexual content is inappropriate and
should not be taught in schools.27 Despite this, there is no statutory right for
parents to withdraw their children from sex education although in practical

______________________________________________________________
25 Northern Ireland Act 1998 s 42(2).
26 REF00000094 07/12/76
27 The Health Promotion Agency for Northern Ireland, Sex education in Northern
Ireland, Views from Parents and Schools, (1996), pp 35 and 25.
86 Northern Ireland Legal Quarterly [Vol. 53, No. 1]

terms most schools still require consent. However, it would be better if a

clear legislative statement were made as to the rights of parents and children
in this area. In England and Wales, the provision of sex education is
mandatory for all schools but parents have a right to withdraw their children.
This however may be in contravention of the CRC because the child is not
consulted. There are a number of suggested solutions but none has
satisfactorily balanced the need for safe sex education for the modern world
dealing with the crisis of Aids, and the need to respect both parents and
children. In Northern Ireland this may be exacerbated by the presence of
devolved legislative bodies. The Westminster Government could formulate
policy and then face any challenges that may arise from the Human Rights
Act or the ECHR, because it is a sovereign body and not constrained in its
legislative powers. The Northern Ireland Assembly is prohibited from
making such legislation in the first place because its devolved nature makes
creating legislation in breach of the ECHR ultra vires. It might also be
difficult to formulate a policy that could not be construed as discriminating
against a particular religious grouping. Any discussion of the difficult issues
of abortion, contraception or homosexuality, could be viewed as
discriminating against Catholics whose religion forbids such practices, while
a failure to touch upon such topics could discriminate against some of the
Protestant denominations or indeed humanists and agnostics who labour
under no such prohibition.
The second issue is the right of homosexuals to equality before the law. This
is not only suggested by the “promotion of equality” provisions of Section
75, but is also contained within the ECHR in that under Article 14 the rights
and freedoms set forth in the Convention shall be secured without
discrimination on any ground. Certainly, the right to education and the right
to freedom of expression, and freedom of thought, conscience and religion
are impinged upon if the gay community is not permitted to have sex
education on an equal footing with their heterosexual counterparts. Although
the right to freedom of expression is limited and expressly includes provision
for the protection of public morals, the other rights are not. There is, of
course, the question of margin of appreciation in the implementation of the
ECHR provisions and indeed the need to clarify what the term “promote
equality” in Section 75 actually means. For the most part, these practical
decisions and policy formulations will rest in the hands of the Northern
Ireland Human Rights Commission (hereafter the “NIHRC”). However, the
recent NIHRC report on “Enhancing The Rights Of Lesbian, Gay And
Bisexual People In Northern Ireland,” is decidedly muted upon this issue,
merely noting that although there is no formal legal requirement to provide
sex education in Northern Ireland, failure to do so may be a breach of the
requirement under the Education Reform (Northern Ireland) Order 1989 that
schools’ curricula prepare pupils for the “responsibilities and experiences of
adult life”.28
However Northern Ireland, is not the only devolved government wrestling
with these issues. Scotland has recently repealed its equivalent of Section 28
and is setting about formulating its own sex education policy within a human
rights framework.
______________________________________________________________
28 Art 4.
 The Policy of Promotion: The Clash of Rights . . . 87

The Scottish Model: A Case Study In The Policy Of A Devolved

Government
The Scottish Parliament has opted for an informal arrangement embedded
within a strong rights framework. The guidelines assert quite clearly that the
specific content of the sex education curriculum will not be laid out by
government policy and that the responsibility for sex education delivery rests
with education authorities and school managers. However they have also
been equally clear that the Executive Education Department has, after
consultation, drawn up guidelines to ensure that sex education has a secure
place within the curriculum. Section 56 of the Standards in Scotland’s
Schools Act 2000 is explicit in asserting that because the Minister issues
guidelines a schools actions may be open to challenge if it is found that they
do not follow them and are acting unreasonably in doing so.
The thrust of this advice to school authorities is that sex education is best
planned and delivered within a wider health education programme and as
part of a programme of religious and moral education.
The recently published Scottish Guidance on Sex Education makes some
attempt to deal with a number of the problematic issues already discussed.
The first is an explicit acknowledgement of the rights and responsibilities
implied by law in this context:
“The right of the child to education.
The right of the young person to have their views increasingly
taken into account as they mature.
The right of pupils to have their views taken onto account
when the school is preparing its development plan.
The right of parents to have their religious or philosophical
convictions taken into account, within specified limits.
The responsibility of parents to provide their child with
efficient education.
The responsibility of the local authority to secure provision of
education that takes into account the development of the
personality, talents and full potential of the child (this means a
statutory duty to consider each child individually).
The responsibility of schools to consult with parents on
programmes for sex education.”
This clear statement, supported by a structure of legislation in the form of the
Standards in Scotland’s Schools Act 2000, solves many difficulties
highlighted in the Northern Ireland model.
With regard to the parents’ right to withdraw their child, they have that right
but are advised to discuss the matter with the head teacher. Sex education in
this scheme is treated as a matter of general personal development and has
many of its elements holistically scattered throughout the curriculum to
provide a grounded moral social and emotionally secure learning context.
The parent’s actions are not permitted to prevent the child from receiving an
efficient education. Furthermore, the Children (Scotland) Act 1995 requires
authorities to educate the child with regard to the parent’s religious and
philosophical beliefs although the child’s welfare is paramount. The 1995
88 Northern Ireland Legal Quarterly [Vol. 53, No. 1]

Act also requires authorities to give regard to children’s views in line with
their age and maturity. This provision also requires a subtle change in the
role of the parents once a child reaches the age of sixteen: the parents then
cease to give directions to children but instead offer them guidance. This
provision may prove invaluable when dealing with a conflict of rights
between the needs of the child and the wishes of the parent.
The repeal of Section 28 does not appear to have caused Scotland to fall into
moral decline. Rather the emphasis is on a partnership between parents and
schools to educate children in how to have responsible self affirming and
supportive relationships in a stable and committed (preferably marital)
context while fostering tolerance and understanding of those whose
backgrounds and desires differ. There is also provision for those of different
religious beliefs to foster this kind of understanding in a manner that is
appropriate to their belief structures. Denominational schools are expressly
permitted to draw up their own guidelines. A vital element in the ethos
building is that:
“Pupils should be encouraged to appreciate the value of stable
life, parental responsibility and family relationships in bringing
up children and offering them security, stability and happiness.
Pupils should also be encouraged to appreciate the value of
commitment in relationships and partnerships including the
value placed on marriage by religious groups and others in
Scottish society. At the same time teachers, must respect and
avoid causing hurt or offence to those who come from
backgrounds that do not reflect this value. All pupils should
be encouraged to understand the importance of self-restraint,
dignity, respect for themselves and the views of others.” 29
This broad policy statement is a good beginning towards equality in sex
education since the emphasis is placed on the quality and emotional
commitment of the relationships involved. Although marriage is to be
discussed and valued, so also are other relationships. This seems to be an
excellent compromise to the clash of interests between religious groupings
and the gay community. It is of course yet to be seen what the
denominational schools will do within this framework. However, the
protections concerning the need to meet the needs of the individual child, and
to respect the wishes of the parents, may well do much to prevent any serious
rights abuses occurring, either to those who wish to receive education
different from the spiritual ethos of their institution, or to those who wish to
provide educational establishments who act in harmony with their spiritual
beliefs. However, the question is still unresolved as to the potentiality that
fostering an atmosphere where certain types of sexual desire and action
which are legal and permissible in the state are vilified might not in itself in
some extreme cases constitute an abuse of rights, especially if such teaching
directly led to a hate crime. How responsible a teacher or preacher would be
for the actions of those who acted upon their anti-gay rhetoric, is a question
admitting of no clear answer.

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29 Scottish Executive Department of Education Circular 2/2001
 The Policy of Promotion: The Clash of Rights . . . 89

CONCLUSIONS
Sex education concerns some of the most fundamental principles and values
of our society. It also involves the needs of one of our most precious and
vulnerable groups, our children. Because of this we have a most pressing
and urgent need to clarify our policies, particularly on clashes of rights, so
that the best interests of our children may be served. Thus far both the
NIHRC and the Assembly have failed to provide guidance on this crucial
matter. The rights asserted by Section 75 do not of themselves solve any of
the contentious issues surrounding this topic. A flexible framework of
guidance as in the Scottish model may be the answer although any solution
must deal with the clash of rights within the social context of Northern
Ireland. To conclude, the words of the Quaker Representative Bronwen
Currie to the Scottish Equal Opportunities Committee during the Section 28
repeal debate, may be quoted:
“Education is about preparing children and young people to
live in a plural society.
Our education policy needs to prepare them for that society by
developing clear policies on sexual education and the conflict
of rights.”30

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30 Scottish Parliament Equal Opportunities Official Report, Meeting 6, 2000,
available online at http://www.scottish.parliament.uk/official_report/cttee/equal-
00/eo00-0602.htm.