Thread by @tribunaltweets

Good afternoon. We are due to resume live tweeting at 2pm on DAY 2 of the Judicial Review brought by Public Child Protection Wales (PCPW) v Welsh Government (WG).

Our thread from this morning & further info can be found on our substack:

tribunaltweets.substack.com/p/judicial-rev…

Abbrevs:
J: Judge, the Honourable Mrs Justice Steyn

Petitioner -
PCPW: Public Child Protection (Wales), the petitioner. (four mothers and one father)
PD: Paul Diamond, Barrister for PCPW
C: the claimants: four mothers and one father

Respondent -

WG: Welsh Government /Senedd the respondent
RB: denotes barrister for WG (‘respondent’s barrister’). We have requested this barrister’s name and will update our substack when known
WM: Welsh Ministers

Court rises, resuming. RB: Re your question on the Jiminez case - it was subsidised. J: Thank you RB: Main theme of C's case is 'controversial socio-sexual theories' eg man can become a woman - nothing in the code or guidance that says that

In fact guidance says range of religious stances should be covered. PD complains no reference in code to man woman, boy and girl. But where would these actually go? We do see sex referred to repeatedly

PD complained about several paras in the code (RB goes on to explain why not an issue from his point of view eg one complaint that wide ranging, or mandatory but reflects the Act)

Para C11 - PD criticises whole school approach but that doesn't work unless he can find fault with the underlying teaching

Further areas of the code show respect for different faiths is inherent. It allows for plurality of views.

PD criticised word 'explore' in C14 eg explore sex/gender - try and see if you like it. Thats not what it means. It means study, think about.

PD also criticised para C21. 'Gender equality' phrase objected to. I cant see how this is a issue re Art 2 - its about fair treatment. He also objected to 'advocate' as meaning indoctrination. Its about teaching children to advocate for rights of all

PD also objected to 'accurate terminology for all body parts'. As we saw must be appropriate for stage of child. One aim of RSE is to protect children from abuse.

That is not helped if it is done by way of euphemism and labels for body parts which might be misunderstood. So important reason for teaching this.

PD says only factual matters should be taught in RSE, well that also applies to body parts. Again cant be a breach of Article 2

Next part he criticised was C36/38. Refers to LGBT+ based bullying. This makes children aware this can happen and that its harmful and that inclusivity includes different sexualities.

It's not saying a man can be a woman, it's saying be nice to people who are different and look out for them. Consonant with Art 2 and the convention as a whole.

Moving to guidance. Focussing again on passages that PD objects to. G2 he complains mandatory - but that's what the Act says, so goes no further than Act

G5 is descriptive and reflects the Act
J: Objection to mandatory is the first issue its the right of excusal
RB: Yes, G7 - reference to religious norms G8 - sets out why RSE is important

G9, PD didn't like 'transformative'. But its not indoctrination its empowering learners and developing their critical thinking

Positivie outcomes of RSE in guidance: reducing bullying, informed decisions about reproductive health, promote equality re sex and gender. How can this be objected to? Ppl do identify as different genders

G10: PD criticises reference to gender but again it's about empowering learners, it's not indoctrination. Eg 'support their rights to enjoy safe relationships' i.e. supporting children. PD didn't like 'misconceptions' as could refer to parents. Nothing in G11 that suggests that.

G14 to G16: whole school approach. Don't agree with PD objections here unless he can specify what is wrong with underlying teaching.

(RB discusses another couple of paras from the guidance)

Para G23: again we see a reference to religious beliefs should be taught. Not whether right or wrong just to be taught about.

C's case is that all about indoctrination but I hope I have shown the opposite. Starting early eg sharing toys and being cooperative.

Not about ideology pervading the curriculum. Document points to children being empowered. G36: provides for dialogue and communication of information (eg with parents) that PD says isn't going to be provided. Not good enough to say this is weasel words

None of this breaches Article 2. Its all within the margin of appreciation that the Strasbourg Courts have marked out in relation to Art 2. Whatever test C picks, they cannot succeed on Art 2 grounds.

Moving to PD point on 'prescribed by law'. We deal with this in our skeleton argument. Its a misapprehension as to how Art 2 works. RB gives a case reference concerning a Russian Orthodox priest who gave a service in school. This breached domestic laws.

However Strasbourg Court found no breach of Art 2 as no impact on child, v brief event etc.

RB gives further case ref on this topic.

So prescribed by law doesn't apply. Even if it does code and guidance satisfy it

J: How far does the code and the guidance need to go to say what a head teacher needs to include?

RB: Lets look at a further case. Hospital policy on exercise of discretion for placing someone in exclusion. Its an analogy that we can apply here to see code and guidance governs the discretion

In summary -

We say no common law right to refusal and court should not create one.

Re Article 2 - states have wide margin of appreciation.

That is the end unless you have questions

J: [missed a Q]

RB: If the argument is that an individual child's art9 rights are engage, we say claimaints have no standing as they are not the child in question

J: And the updated evidence?

RB: We say not relevant, but have no objection to admitting.

PD: [begins responding]
RB has given me much to address. Few housekeeping points. He talks of campaigns of misinformation and poo-poos claimants concerns. Yes they are "tiger" parents - great care for welfare of children.

Discussion that this is all home grown, done by the WG. It is a fact that ALL the countries of UK are introducing similar legislation. RB mentioned UNESCO doc - it was this that raised claimant concerns. Highly sexualising of children.

The UNESCO doc is mentioned in correspondence, we have put in evidence. This is an international, global thing. Mentioned in WS of one of claimants too.

Draft code from 2019 also refers to the doc; and it is also referenced in a case study here.

This has been a tense case - parents trying to care for their children. They have frequently asked, "What is 'age appropriate'?". Response from WG [page] is tautologous and nothing more. [quotes para]

What is appropriate is determined by WG; no adjustment for those like claimants with more traditional views. "Children are sexual creatures" - parents don't think that *is* appropriate for 3 year olds, WG does. WG says "we can teach your children whatever we like".

WG say "if you don't like it, get out of the schools. If you're rich you can send to private school or get a tutor or homeschool because you don't have to work". Those are not options for claimants; they can't afford those.

WG appears to just be saying "we don't care".

Not right for a modern liberal democracy to say that.

RB is I think misrepresentating claimants concerns. Writes from child protection point of view. Very worried about move away from "Just say no" teaching, to an atmosphere of complex sexualised interaction with adults.

Claimants *want* RSE for their children - but they want objective, accurate RSE.

J: I think was put that state should not be involved in RSE?

PD: There are many parents involved / interested - I think demo outside yesterday - the most conservative Christian view is *allowed* to be held. I think point is that you don't need "LGBTQplus focussed curriculum" to teach children that having two mothers is fine, to share toys

Very difficult to be neutral and descriptive of sexual acts without offending *somebody*. One side of coin - yes there are people with multiplicity of genders. Other side - but a child could be influenced by that.

The good things - tolerance, plurality - of course, but, as soon as you get into details it becomes more complex. WG say transmitting knowledge but this is about influencing young minds.

Claimants are not opposed to RSE but it must be of highest standard and if it is not, the whole-school approach cannot stand. Parents must be respected.

Perhaps nobody is very interested in sexual orientation of historical figures, or in geography class. Just want objective teaching.

Misinformation is all from WG. They could have disclosed what materials would be used, who would be presenting. Instead has been very obscure.

Of course this obfuscation raises fears - espectially when told "if you don't like it get out of the schools".

Want to thank RB for all the authorities cited re parental rights - clarified my position. 1840s was different world. State role has grown hugely since then. Education, healthcare.

Family life, parental rights only recognised according to RB in c2000 with Human Rights Act - this is clearly nonsense, much older concept than that.

We say of course parents control their children - it is a bundle of rights - we have age of discretion eg re marriage.

Here we are talking children up to the age of 12, primary school. Parental discretion is entire at that age.

We say there is a common law right here, and it is not any of the analogies RB made.

Moving on. Principle of legality is in the statute. Schedules can be part of an Act, an Act can allude to further documents or to its own sections.

We submit that it does *not* work as WG argue.

To violate fundamental common law rights or convention rights is self evidently a breach of law

It is the limitations of rights, interference with them, that we say must be defined. We say principle of legality attaches to the authorisation in law for future limitations on parental rights.

Purpose is that WG must specify the conditions under which rights will be limited; and all the 2021 Act does is permit a system of RSE. And we say that system must comply completely with commonlaw and convention rights, because WG have not specfied exceptions.

Only Q for us in this case is do Education acts 1870 1944 2002 (Wales) - do those enable the WG to subject your child to whatever they want under name of education? We say no - common law rights still apply, other laws still apply.

We say WG does *not* have right to teach no matter what, and that parents have right to determine in areas like religion, ethics, what child learns. If a school wishes to teach something parents think morally unacceptable, school can't claim parental rights don't exist.

If WG insists on this teaching it must allow opt-out; and if not then it must offer proper details of what is to be taught.

Normally any Act is fairly detailed. An Act has a high status. But WG can't override Westminster / the law. [Not following this bit well - discussion of passage of laws in WG vs WM I think]

Is the subordinate legislation outside the legislative framework is the Q. WG have not detailed anything to let that Q be answered.

Would normally expect much detail. Statutory instruments, all sorts of things.

Henry VIII power. [OK am completely lost here]

Process in parliament - 2021 Act had no detail, all referred to guidance not yet written.

Since 1993 brought in sex education, treated exactly like religion teaching. Diverging from that principle should have been specifically addressed

J: Henry VIII power. Do you mean different test here?

PD: Yes very exceptional situation - my understanding is courts can only go as far as the primary Act here.

So our submission is that subordinate legislation can only fill in details. We say 2021 Act creates no underlying law so this court's position very different.

If law had no safeguards at all, I think courts would find it was bad law.

Going back to RB's submission. Re Gillick. Not quite as comprehensive as presented - judgment says there will be cases not as clear as the case actually brought.

We focus on procedural elements of Art2 rights, its about taking active steps to identyify and accommodate parental views. A lack of process can't be met by bland statement that that lack meets Art2. Needs active state engagement.

J: Some elements might be procedural but right to object or withdraw are substantive not procedural.

PD: Yes. Some parents might welcome the new RSE and it should be taught to them, but we say whole-school approach (or leave) is indoctrination.

There is a lower threshold than "indoctrination" which is balanced and neutral curriculum requirement. This is not.

Cases cited - note availability of practical private alternative. WG is of course free to pay for children that wish to opt out to go to private schools - many countries have subsidised private sector, we don't

So yes this is a substantive challenge. Has to be opt out available to meet requirement for objectivity.

J: thought you were drawing distinction between RA = substantive and this case procedural?

PD: More that RA not appropriate test.
J: ?
PD: Bcs no underlying law. The guidance is subordinate legislation. Incorrect drafting, and of primary Act.

PD: I think that is all.

J: Can I ask RB re the Henry VIII thing

RB: I understand H8 = power of legislature to amend primary legislation, no details to hand, could look up. Power to amend primary legislation. I don't think that's what PD suggesting. Think he says scope of powers for Welsh ministers is broad but limited by all sorts of things.

RB: Don't think 2021 Act confers any powers to amend the 2021 Act. Not classic H8

J: Thank both parties.
J: Going to reserve judgment; will notify you when ready.

[END]

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