Local Government

Stage 1 Report on the Ethical Standards in Public Life etc. (Scotland) Bill

SUBMISSION FROM OUTRIGHT SCOTLAND

Outright Scotland is Scotland’s national lesbian, gay, bisexual and transgender rights organisation. We have been campaigning with other groups for changes in Scottish society since 1969.

Outright has called for repeal of "Section 28" for many years and, as the Committee will be aware, we have been active with other LGBT groups in the debate. We warmly welcome the Executive’s commitment to repeal Section 28.

Our detailed arguments for repeal of Section 28 are set out in our submission to the Executive’s consultation (see below). We associate ourselves with the evidence submitted today to the Equal Opportunities Committee by our colleagues from other LGBT organisations.

We wish to highlight the impact on equal opportunities of the campaign to retain Section 28 and address some of the issues raised. This is important as such high-profile, well-funded negative campaigns may have a serious effect on Scottish society in the future. This should not, however, detract from the importance of the arguments FOR equality of treatment and FOR an inclusive democracy in Scotland.

1. Bullying in Schools

The most important problem with Section 28 is its effect on young people. Ronnie Convery, spokesperson for the Catholic Church, told this committee that those who support repeal are guilty of "shifting" the argument. "Originally [those supporting repeal] said that the section was a problem because it prevented teachers from talking about homosexuality in class, the counseling of pupils confused about their sexuality and proper measures against homophobic bullying. When those concerns are answered, the argument shifts and people say "It is not about that at all. It’s really about stigmatising a group in the population." (Official Report, 6/3/2000 Col 427/8)

Our argument has not shifted. Concerns about marginalisation and bullying of young people and about the restraints on teachers have not been answered. The true extent of homophobic bullying in Scottish schools is unknown. However, several recent academic studies have revealed the existence of wide-spread homophobic bullying in our schools.

A 1999 study in Edinburgh (see below) found that well over a third of interviewees reported that they had been bullied at school or college and 10% reported ill-treatment at the hands of school staff. A similar 1999 Glasgow study found almost one third of interviewees believed their education was negatively affected by homophobia and more than half experienced overt forms of homophobic social exclusion at school.

Ann Allen in her evidence to this committee (Col 419/20) asserts that there is no evidence to support the Executive’s view that Section 28 inhibits teachers. However, a University of London Report has shown that, in England and Wales, 80% of schools said that they would benefit from clarification of the implications of Section 28 and more that half said that Section 28 made it more difficult for them to meet the needs of lesbian, gay and bisexual students. Ann Allen’s support for further research would be welcome.

Despite the growing body of evidence, those opposed to repeal of Section 28 deny knowledge of homophobic bullying. A few anti-repeal campaigners who are teachers have stated that they have never been approached for support by a victim of homophobic bullying which is likely to say more about them than about the reality of anti-gay bullying.

Others point to a lack of evidence yet condemn attempts to monitor the incidence of homophobic bullying. When Edinburgh City Council proposed that physical and verbal homophobic bullying be monitored one Nick Seaton of the Campaign for Real Education was opposed (Evening News 8/1/2000). An unnamed teacher said "I’ve never found any evidence of actual homophobic bullying anyway. This is a witch-hunt in a lot of respects."

The Executive-sponsored Anti-Bullying Network says homophobic bullying is a problem in Scottish schools. Their chairman, Andrew Mellor notes that "by the careless use of words such as sissy or by simply failing to challenge homophobic name-calling [teachers] can be perceived as giving tacit approval" (Times 17/3/2000) to bullying. The same Nick Seaton is quoted as saying that attempts to

ban verbal homophobic bullying were "political correctness gone absolutely mad" and "totally unacceptable".

Failure to take proper steps to challenge homophobic bullying may in future result in large damages awards against schools and local authorities. Homophobic bullying demeans all pupils. All pupils have an equal right to education. Achieving this requires the repeal of Section 28.



2. Community groups

The other main effect of Section 28 has been to deny community groups access to local authority support, evidence for which is set out in Section 28 - the repeal of "vindictive Tory legislation" (1999 SCOLAG 144). Contrary to the assertions of those opposed to repeal, this is incompatible with equality of opportunity.

Campaign of misinformation on repeal of Section 28

LGBT people do not use the term "homophobe" lightly. Every group which complains about discrimination is accused of being over-sensitive by those opposed to equality. The campaigners who have promoted prejudice against LGBT people in Scotland are now implying that we call them "homophobic" without justification.

As shown below, most people in Scotland are in favour of tolerance and fair treatment. Following an intense campaign of misinformation they may be against repeal of Section 28 but that does not mean that they are homophobes.

The campaign against repeal began with Ann Hill of the Scottish School Boards Association (SSBA) saying that Section 28 protects young children from exposure to "gay" pornography (Scotsman 14/12/99). Section 28 does no such thing. As we know, exactly the same safeguards against inappropriate materials are there for both "homosexual" and "heterosexual" material and repeal of Section 28 simply has nothing to do with pornography in schools.

Some Church leaders have also seen fit to promote intolerance and discrimination against LGBT people: in other areas some of these leaders have taken a stance against bigotry. In particular, Cardinal Winning has allowed himself to become a focus for anti-gay prejudice by referring to lesbian and gay people as perverts (eg Scotsman & Times 18/1/2000) which is hardly the language of reasoned and respectful debate. The Cardinal later apologized for his comments (Scotsman 24/1/2000). It is important, however, to recognize that many other church leaders have supported repeal and have been willing to engage in reasoned debate.

Perhaps the clearest evidence for a lack of good faith on the part of those opposed to repeal is the Keep the Clause campaign, bankrolled by Brian Souter to the tune of £500,000. Keep the Clause was launched on the 19^th Jan 2000, AFTER the consultation period on repeal of Section 28 had finished. The man chosen by Souter to head the campaign, Jack Irvine, produces virulently homophobic material in his Daily Record column, referring to "slobbering old queers" and "sleazy old perverts". Clearly these campaigners had no interest in a reasoned debate.

There is a real danger that we will descend into the sort of divisive and emotive political campaigns seen in America where money and "negative advertising" seems to determine the outcome of elections.

Keep the Clause have used the slogan "Protect our Children" to demonise our community and portray lesbians, gay men and bisexuals as a threat to society and to children. This is a profound insult to our community, to parents and teachers who support repeal and to Scottish society as a whole. Such tactics have been used in the past to incite violence against other minority groups and should be firmly rejected.



3. Scotland remains a tolerant country

Scotland remains a tolerant country despite the tactics of Keep the Clause and others.

Certainly, opinion polls show that a majority of people are against "promotion of homosexuality" and the provision of "gay sex lessons" in schools. This is hardly surprising. However, as neither of these is being proposed such polls merely reflect a fear of something that will not happen.

The Daily Record, which has run a virulent and ill-informed campaign against repeal, conducted an "exclusive Record poll" and claimed "two-thirds [66%] of Scots believe the Government (sic) should drop their bid to allow gay sex lessons in schools" (D Record 19/1/2000). But no one is suggesting that "gay sex lessons" be introduced.

But in the same polls, when people are asked about tolerance of difference, they overwhelmingly support the promotion of tolerance in schools. Scotland is not the backward, prejudiced country Keep the Clause dream of.

Sunday Herald/Mori poll in January (SH 23/1/2000) A total of 83% said that schools should promote tolerance of homosexuality.

59% said schools should teach that homosexuality is morally neutral and should be tolerated. (68% of parents agreed). Only 14% said schools should teach children that homosexuality is wrong and should not be tolerated. (Only 11% of parents agreed). 60% said they disagreed with Cardinal Winning’s view that homosexual relationships were a perversion. 62% of Catholics disagreed with Cardinal Winning.

Despite this, 60% said that the ban on "promoting the teaching of homosexuality in our schools" should remain. This shows the confusion spread by Keep the Clause and the unfortunate effect of pollsters misrepresenting the very words of Section 28 which does not ban the "teaching of homosexuality".

When the Scottish School Boards Association finally conducted their own survey they found that 51.5% of school boards supported repeal either after consultation or without further ado (Sunday Herald 5/3/2000).



4. Conclusion

Scotland has witnessed its first attack on the principle of equality of treatment for all Scots which underpins its new Parliament. Those who oppose repeal of Section 28 have run a deeply unpleasant and potentially damaging campaign. However, as opinion polls show, Scottish people do not want Scotland to be an intolerant country.

In the interests of protecting ALL our children Section 28 must be repealed and prejudice and reaction rejected.

Brian Dempsey
Assistant Secretary


Outright Scotland’s submission on the Ethical Standards in Public Life etc. (Scotland) Bill for the Equal Opportunities Committee.

10^th January 2000
Stephen Wilson
The Scottish Executive



Dear Mr Wilson,

We should like to make the following submission to the consultation paper Standards in Public Life. Outright Scotland is Scotland’s democratic, national lesbian, gay, bisexual and transgender rights organisation. We have been campaigning for changes in Scottish society since 1969.

Our response is limited to expressing our support for the Executive’s intention to repeal Section 2A of the Local Government Act 1986. Please note that throughout our response we refer to "Section 28" rather than S2A as this is how the provision is generally known.

Section 28 must be repealed for two reasons. Firstly, and most importantly, it is seen as legitimizing homophobic bullying in schools. Secondly, it results in the refusal of local authority support to local initiatives based not on the merits of the application but on wrong-headed interpretations of the impact of Section 28.

We refer you to the enclosed article from the October 1999 edition of SCOLAG Legal Journal written by our assistant Secretary, Brian Dempsey.



1. Bullying at school

The extent of bullying in Scottish schools is unknown. More research and monitoring is required.

Two reports published in 1999 have, however, highlighted the damage done by Section 28 to people living in Scotland. Poverty and Social Exclusion of Lesbians and Gay Men in Glasgow found that almost one third of interviewees believed their educational achievements were negatively affected by attitudes to their sexuality. More than half the people surveyed experienced overt forms of social exclusion based on homophobia while at school.

The report Experiences and Perceptions of Violence and Intimidation of the Lesbian, Gay, Bisexual and Transgender Communities in Edinburgh shows that well over a third of interviewees reported that they had been bullied at school or college and 10% reported ill treatment at the hands of school staff.

A recent University of London Report has shown that, in England and Wales, 82% of schools surveyed were aware of homophobic bullying yet only 6% of schools made reference to the unacceptability of such attacks in their anti-bullying policy. 80% of schools said that they would benefit from clarification of the implications of Section 28 and more that half said that Section 28 made it more difficult for them to meet the needs of lesbian, gay and bisexual students. Only one in four schools consider their lesbian, gay and bisexual students and staff worthy of inclusion in their equal opportunities policies.



2. The school response

Failure to take proper steps to challenge homophobic bullying may result in large damages awards against schools and local authorities. While the Scottish case Scott v Lothian Regional Council (1998 GWD 33-1719) suggests that pupils cannot win damages when ineffective school policies have resulted in the denial of their right to education due to bullying, European Court of Human Rights jurisprudence would seem to be developing in the opposite direction.

In the cases arising from X (Minors) v Bedforshire County Council ([1995] 2 AC 633) the Commission has found that the local authority’s failure to protect four children who suffered abuse at the hands of their parents and the subsequent protection from damages claims given to public bodies in the UK was a breach of the convention. The protection from damages cases given by courts to inept public bodies was held to be a denial of the victim’s right to a fair trial.

If it is thought undesirable that education budgets be depleted by claims from current and former pupils whose life-chances have been undermined by bullying then the answer would seem to be to ensure that all schools have effective anti-bullying strategies. All pupils have the right to education. Achieving this requires the repeal of Section 28.



3. Community groups

The other main effect of Section 28 has been to deny community groups access to local authority support. Wendy Alexander comments that repeal will help such groups "not only in their work in the gay and lesbian community itself but through that work in making a wider contribution to our community life in general."

We would agree with Ms Alexander and refer you to the detail of the enclosed article which chronicles some instances of local government difficulty with Section 28. It should be noted that the very meaninglessness of the legislation which Professor Norrie exposes has allowed local authorities to deny grants in circumstances where Section 28 could not possibly be effectively invoked.

Campaign of misinformation on repeal of Section 28 There has been a degree of misinformation on the repeal of Section 28. For example, many commentators say that Section 28 bans the promotion of homosexuality. As you will be aware such an assertion cannot be justified by even a cursory examination of the text of Section 28. Section 28 bans the promotion of the acceptability of homosexuality as a family relationship (our emphasis) which is a different matter. The fact that those supporting retention of Section 28 are required to misrepresent the very terms of the legislation indicates the dishonesty of their position.

The leadership of an organisation called the Scottish School Boards Association (SSBA) was recently quoted in the Scotsman newspaper as saying that Section 28 protects teachers from being forced to expose young children to "gay" pornography. Section 28 does not say anything about pornography. The SSBA leadership seemed to imply that there are currently no safeguards against teachers being forced to expose children to heterosexual pornography. In reality, the same safeguards against inappropriate materials are there for both "homosexual" and "heterosexual" material and repeal of Section 28 simply has nothing to do with pornography in schools.

If the leadership of the SSBA knows that Section 28 has nothing to do with pornography then they are cynically using children for their own political ends. If the SSBA leadership really believe that repeal of Section 28 would bring gay pornography into Scottish schools then they are strangely deluded. It has been reported that the SSBA leadership did not consult its members before making this political intervention.

4. Commitment to repeal of Section 28

In the introduction to the Improvement in Scottish Education Bill, Education Minister Sam Galbraith said "The Scottish Executive ... will place children at the centre of its concerns. We will work to ensure that each and every child realises his or her potential." This requires the repeal of Section 28. A recent NOP poll carried out for Channel 4 which indicated that, despite the mis-information surrounding the issue, 61% of parents in the UK want Section 28 repealed.

Repeal of Section 28 is not about the detail of what gets taught in the classroom. Nor would repeal stop teachers from pointing out that some elements in society find the existence of LGBT people problematic or controversial. Repeal is about removing an obstacle to social inclusion and thereby raising attainment.

There is growing evidence that school can often be a place where the challenge for lesbian, gay, bisexual and transgendered people is simply to survive. Schools cannot achieve excellence if there are young people feeling isolated and frightened or are being bullied. The failure of schools to take effective action against homophobic bullying degrades everyone, victim and perpetrator, "gay" and "straight".

Section 28 is a barrier to ensuring that Scottish education is both equal and fair. It has a "chilling" effect on setting appropriate educational objectives and on the ability of schools to take corrective action when incidents of exclusion, bullying, harassment or assault occur. We support the Executive’s efforts to have Section 28 repealed.

Alec Deary
Secretary

SUBMISSION FROM THE PRESBYTERY OF ROSS

3 February 2000
The Chief Executive
The Scottish Parliament
George IV Bridge
EDINBURGH EH99 lSP

For the attention of the Scottish Executive

Dear Sir or Madam

I enclose an extract minute of meeting of the Church of Scotland Presbytery of Ross re clause 2A of the Local Governrnent Act 1986 which is Clause 28A in the Legislation South of the Border.

At Dingwall on 1^st February 2000 the Presbytery of Ross met and was constituted with prayer and resolved inter alia

"The Presbytery of Ross believes that the present statute (i.e. Section 2A of the Local Government Act 1986) does not inhibit the discussion and knowledge of homosexual matters, nor counselling regarding these matters within the School environment. Presbytery believes that this should be clarified. Presbytery, therefore, considers that the repeal of this section is unnecessary."

extracted by me at 27 Riverford Crescent, Conon Bridge

Roderick Mackinnon
Clerk of Presbytery

SUBMISSION FROM THE SALVATION ARMY

OUR REF: SS/JF/KD/2000 18th February 2000

The Salvation Army recently made a submission to the First Minister, Donald Dewar, on Section 2A. Clause 28. You may already have received the document but if not, I am enclosing a copy for the consideration of the appropriate Committee.

Also enclosed are two copies of The Salvation Army 'War Cry' dated 12 February which contains a public statement on this important matter.

Thank you for giving consideration to these documents.

Your sincerely,
John Flett (Colonel) SCOTLAND SECRETARY Enc

SUBMISSION FROM THE SALVATION ARMY

OUR REF: SS/JF/KD/SEC(28)/2000 10th February 2000

Rt. Hon. Donald Dewar MP MSP First Minister
The Scottish Parliament
EDINBURGH EH99 1SP

Dear First Minister,

RE:THEPROPOSED REPEAL OF SECTION 2A(28) LOCAL GOVERNMENT ACT1988

The Commissioner Alex Hughes, the United Kingdom leader of The Salvation Army, recently wrote to the Secretary of State for Education conceming the proposed repeal of Section 2A(28) of the above Act.

As the Salvation Army's Scotland Secretary I am writing to you on his behalf to share with you the views of The Salvation Army on this important matter.

We welcome your recognition that marriage is still the ideal context for raising children and your assurances regarding guidelines for teachers in recent discussion on the repeal of "Section 28". However, we believe that by repealing this clause, the Scottish Executive will potentially be harming both children and the family unit.

We are concerned that we cannot predict the result of a repeal, and feel the floodgates could be opened, ultimately causing great hurt to both parents, teachers and our children. We are also very aware of the increasing pressures on young people to experiment with heterosexual sex at a younger age, without the additional pressure of self-questioning regarding homosexual sex.

As an international church and charity which supports and helps any person regardless of sex, race or religion, The Salvation Army believes that, contrary to the Executive's view, the proposed repeal would increase discrimination and result in more bullying in our schools. We can easily envisage a situation where, due to active promotion of homosexuality in schools, children will grow up feeling alienated if they fail to conform.

We also have great reservations concerning certain materials which are currently available in print and on the Internet even with "Section 28" in place. It is of utmost importance that young people receive sex education in the context of commitment, fidelity, love and well thought through decisions. A considerable amount of these materials do not include any of the above. Tighter regulation and consultation with parents and governors would therefore be welcome.

In conclusion, we would like to ask the Scottish Executive to re-think this proposal and not repeal "Section 28". We would also like you and your parliamentary colleagues to be aware that many members of The Salvation Army will be thinking and praying for you all and the decisions that you will need to make in this matter.

Yours sincerely,
John Flett (Colonel) SCOTLAND SECRETARY

SUBMISSION FROM THE SCOTTISH CIVIC FORUM

Introduction

1. Following the announcement of the Parliamentary programme in June 1999, the Scottish Civic Forum conducted a survey of its registered organisations to establish in which of the legislative proposals they were interested. A number of organisations indicated that they would be interested in participating in a meeting with other interested parties to discuss the legislative proposals contained in the Ethical Standards in Public Life etc (Scotland) Bill.
2. The Bill establishes a Standards Commission; provides for the introduction of codes of conduct for local authority councillors and members of NDPBs; and gives councils and NDPBs a duty to help their members to comply with their code. It also repeals Section 2A of the Local Government Act 1986 which prohibits local authorities from intentionally promoting homosexuality or publishing material with the intention of promoting homosexuality or of promoting the teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship.

Methodology

3. Trudi Sharp of the Scottish Executive Local Government Division and Dr Alison Elliot, Convener of the Church of Scotland Church and Nations Committee were invited to participate in the meeting and to provide input from their respective perspectives.

4. Alison Elliot gave an introduction setting the context of the proposals and Trudi Sharp gave a presentation on the background, content and remaining timetable for the Bill. Workshop participants identified key areas of concern to them and discussion focused on those areas. The key points were then fed back to the plenary. Participants in the meeting were encouraged to take from the meeting the information they needed to be able to formulate their own organisation's response to the consultation. A summary of comments made during the meeting would also be compiled and submitted by the Scottish Civic Forum. A list of those organisations registered for the meeting is attached.

Comments on the Draft Bill

5. Discussion split into the two key themes of the Bill ie the Ethical Standards framework and repeal of Section 2A.

General Principles (Annex C) and Codes of Conduct

6. It was noted that the terms of the Nolan principles had been extended considerably in Annex C of the consultation. It was thought that the extension of the number of headings ran the risk of muddying the waters. Some of the headings covered very similar issues eg "honesty", "integrity" and "propriety" and could be combined. There were concerns that the current language used in the Annex could be open to interpretation and legal challenge. For example, under the heading of Propriety the Annex states "As well as avoiding actual impropriety, you should avoid any appearance of improper behaviour." The word "appearance" was a "soft" term which could not be effectively enforced and similar language was used elsewhere in the Annex. An additional key concern was that the

drafting to some degree created a perception that corruption was a regular feature of the system rather an abnormality. This could be a disincentive to people to stand for public service. A more positive style of drafting which set out the standards expected in a more "visionary" way would be desirable to support the concept of public service as an honourable profession.

7. There was particular concern over the use of the word "sanction" at Clause 20(3) which deals with action which can be taken by the authority on the basis of an interim report. It was considered that in this instance (as opposed to Clause 18 (5) which relates to circumstances where wrongdoing has been found to have occurred) it would be wrong to refer to action taken as being a "sanction" since that term implies a wrongdoing which, at that point, will not have been confirmed. In other words presuming that the councillor under investigation has already been found guilty.

8. There was a concern that there needed to be some form of protection for "whistleblowers" and that there should be some provision made in the Bill to secure that.

9. The draft Bill states at Part 1, Clause1 (4), that "Ministers may…..invite such association of councils as seems appropriate to them to draw up and send them a suggested councillors' code." In practice, this is likely to be COSLA. There were concerns about this limited range of consultation and views were expressed that there ought to be a much broader consultation on the content of the model codes, perhaps through the Scottish Civic Forum. The view was also expressed that the CSG principles of accessibility and openness should be applied to the codes.

Standards Commission/Chief Investigating Officer

10. There was concern that there is no requirement for all reports of the Chief Investigating Officer to be published ie when it was considered that no further action was required. It was thought that publication of a summary would be feasible and could be helpful to dispel any local speculation about the actions of members of local authority or NDPB which may be circulating. It was acknowledged that the reports would always be copied to the authority concerned and to the members concerned and it would be open to them to publish the reports if they wished. There was however, the question as to whether natural justice would be seen to have been served. In addition, the point was made that MSPs would be able to ask detailed questions about reports in the Chamber of the Scottish Parliament and how this aspect should be addressed was an issue that the Law Officers might usefully consider.

Repeal of Section 2A of the Local Government Act 1988

11. As might be expected, a range of views were expressed about the proposal to repeal Section 2A. There were strong views that the legislation contained at Section 2A was unfairly discriminatory. The legislation had been introduced on the basis of a couple of issues which had been grossly exaggerated by the media and tabloid press. Same gender relationships had been acknowledged by the House of Lords recently as constituting a family relationship (ie not a "pretended family relationship") and The Scotland Act contained language which secured the rights of gay men and women to non-discriminatory treatment.
12. There were genuine concerns, however, that the removal of the clause could lead to the active promotion of homosexuality amongst young people and a concern that portraying homosexual lifestyle as desirable could run the risk of encouraging youngsters to experiment when they might not otherwise have done so. On the other hand, it was pointed out that the intention of the removal of the Section was not to enable homosexuality to be promoted but to allow a sensitive education on all aspects of sexuality and to avoid homophobic bullying which has become evident in schools and elsewhere. It was also recognised that there were many other issues which it would be equally inappropriate to promote in schools but where it was left to parents to regulate their childrens' behaviour - these were not enshrined in legislation.
13. It would be necessary to put in place appropriate sensitive support material for teachers to use in dealing with the subject. One way of dispelling some of the concerns might be to implement the repeal from a later date to allow the appropriate guidance material to be put in place before it came into effect.

Scottish Civic Forum
13 January 2000

LIST OF ORGANISATIONS REGISTERED FOR MEETING

Amnesty International
Care for Scotland
Carers National Association
Church of Scotland Board of Social Responsibility
Church of Scotland Church and Nation Committee
Church of Scotland Education Committee
Equality Network
Inverclyde Council on Disability
Outright Scotland
Royal Society for the Protection of Birds
Scottish Churches Parliamentary Office
Stonewall Youth Project
VECTOR
Volunteer Development Scotland

SUBMISSION FROM THE SCOTTISH COUNCIL OF JEWISH COMMUNITIES

The Jewish Community, with its very particular experience of the effects of discriminatory legislation, well appreciates the concerns about the current Section 2A of the Local Government Act (1986). We therefore welcome the intention to prepare sensitive and non-discriminatory guidelines in this area, which recognise the deeply held ethical and religious convictions of many in society.

The stress placed in the proposed new clause on the 'value of stable family life in a child's development' is particularly in keeping with the traditional Jewish emphasis on family values and relationships. We therefore welcome this, alongside the commitment to developing appropriate guidelines. These should inform both school guidance systems as well as classroom teaching.

I hope these comments are of some use to the Committee. Unfortunately, the Council will have to decline your invitation to give oral evidence.

Ephraim Borowski
(Hon. Secretary)

SUBMISSION FROM SCOTTISH HUMAN RIGHTS CENTRE

Response to the Scottish Executive’s
‘Standards in Public Life’
- Consultation on the Ethical Standards in Public Life etc. (Scotland Bill)

Codes of Conduct

The Scottish Human Rights Centre welcomes the introduction of new codes of conduct for local authorities and members of relevant public bodies. The Scottish Human Rights Centre has consistently argued that there is a need for government to be open and accountable and we would see the introduction of such a code as an important step in this direction.

The codes of conduct also provide an opportunity for rules to be simplified and clarified. It is also vital that a national standard is adopted so that there can be greater consistency in dealing with ethical issues within local authorities and public bodies.

Standards Commission for Scotland

We agree that there is a need for an effective enforcement mechanism for the codes of conduct but have some concerns as to the procedure which could be adopted by the Standards Commission.

The right to stand for election and participate in public life is an important one and is recognised in Article 25 of the International Covenant on Civil and Political Rights.

Article 25 of the International Covenant on Civil and Political Rights

Every Citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions:

1. To take part in the conduct of public affairs, directly or through freely chosen representatives;
2. To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
3. To have access, on general terms of equality, to public service in his country.

The Commission’s power to disqualify a person for up to 5 years is a powerful sanction and would have the effect of denying a person rights that are protected under a UN Covenant to which Scotland is under obligation to apply. It is therefore vital that appropriate procedures are in place to ensure the fairness of any proceeding which could take away that right. Whilst we would agree that a breach of the code of conduct would be a ‘reasonable restriction’ in terms of this article, there does require to be a fair process by which a decision is made on whether the code had been breached.

The Commission will operate as a quasi-judicial body with powers to impose sanctions. Therefore the same protections should be provided to councillors and members of public bodies who are under investigation as would be available to them in a court process.

In particular we are concerned by the fact that there is no statutory right to appeal the decision made by the Commission. This includes no right to appeal on the finding of the Commission as well as no opportunity to appeal on the sanction imposed. We are also concerned that there is no explicit provision made as to the standard of proof required. Furthermore there would be a question as to whether an individual under investigation would be entitled to Legal Aid for the purposes of securing representation.

In clause 20 of the Bill, the Commission has the power to suspend someone from attending meetings without the requirement to hold a hearing. We would argue that before the Commission imposes any sanction, even if it is for an interim period, it is proper that a fair and public hearing should take place.

Furthermore we would suggest that further statutory provision needs to be made in relation to the terms of appointment and tenure of office for members of the Standards Commission. It is not clear what the terms of appointment would include and we would argue that it is not proper that terms of appointment be left to the discretion of the Ministers. In light of the recent court decision relating to security of tenure for temporary sheriffs it is essential that more detail is provided in Schedule I of the Bill as to terms of appointment and re-appointment.

Repeal of Section 2A of Local Government Act 1986

We are fully in support of the clause which would repeal section 2A. The section as it currently stands only serves to legitimise discrimination against an already marginalised group in Scotland. We agree with the main arguments set out in the consultation paper and feel that this particular piece of legislation is long overdue.

Scottish Human Rights Centre
January 2000

SUBMISSION FROM THE SCOTTISH PARENT TEACHER COUNCIL

17th January 2000
To All SPTC Members

Dear Member,

Clause 28

In the light of the recent controversy surrounding Clause 28, I would like to take this opportunity to explain the facts and SPTC's position.

Facts

• Clause 28 was introduced in 1988 - there was no comparable measure prior to that.
• It states "that a local authority shall not (a) intentionally promote homosexuality or publish material with the intention of promoting homosexuality; (b) promote the teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship".
• There have been no prosecutions under the Clause and so no legal definitions of terms like "promote" "acceptability" or "pretended family relationship" have ever been established.
• Because the meaning of the Clause has never been clarified in law, some teachers have been uncertain as to how they might deal with homosexual issues if and when they arose.
• The Scottish Executive proposes to repeal the Clause and this has the backing of all political parties except for the Conservatives.
• The change has been the subject of a consultation, which has just ended.
• SPTC's view at the time of the consultation was that the Clause had never been used and in that sense was redundant. However, it was prejudicial to a group of people in a way that would immediately be seen as unacceptable if it were about disabled or black people. We therefore supported the proposal to abolish it.

• The opposition to the abolition of Clause 28 has been largely led by religious groups who take a particular view on homosexuality, in some cases regarding it as a sin.
• The Scottish School Board Association suggested that repeal of Clause 28 would force teachers to use inappropriate sex education material in schools. They cited examples of such material from England which required pupils to role-play homosexual situations. This material has never been used in Scottish schools and indeed was deemed unsuitable for use by the authorities who had purchased it.
• It has been suggested that if Clause 28 is abolished, teachers will be required to mention homosexuality every time they discuss human sexuality. There is no such "equal time" requirement at present nor any proposal to introduce such a requirement.
• It has also been suggested that inappropriate homosexual material which exists on the Internet will be forced on children if the Clause is repealed. The Internet carries all manner of inappropriate material on a range of issues including heterosexual pornography, drugs and violence. Schools and teachers are very aware of this and have been very careful to protect children from such material. Indeed, the Government has recently issued guidelines on safe use of the Internet. Teachers, schools and authorities take care to ensure that all the material which they use is appropriate for the age and stage of the children and teachers act as effective gate-keepers to the Internet.

SPTC's position

• SPTC is very alive to the need to protect children from inappropriate material of any sort. However, we are satisfied that there already exists adequate protection quite independent of Clause 28.
• We are aware that homosexuality is very much a part of everyday life. It often features in news stories and on television programmes, including TV soaps which many children watch on a regular basis. Children do not exist in information vacuums. They are well aware of such matters and discuss them with each other. It is therefore important that they can also ask questions at school and get accurate answers without teachers feeling under threat of prosecution.

• Finally schools are not just for small children. Secondary schools cater for adolescents and young adults, some of whom may themselves be having difficulty in coming to terms with their own sexuality. It is important that teachers are able to help and support such youngsters without fear of prosecution.

On balance, therefore, SPTC feels that Clause 28 should be repealed and that there are enough safeguards in place at present to protect children from unsuitable material.

Judith Gillespie
Development Manager

SUBMISSION FROM THE SCOTTISH PARENT TEACHER COUNCIL

Section 2A/Clause 28

1. Local Authorities have responsibility for the curriculum.
   At present, under the 1980 Act, local authorities are responsible for what is taught in schools. Section 1(1) states that "it shall be the duty of every education authority to secure that there is made for their area adequate and efficient provision of school education" and section 5 (a) states "'school education' means progressive education appropriate to the requirements of pupils in attendance at schools, regard being had to the age, ability and aptitude of such pupils"
   
   
2. School Boards have no responsibility for the curriculum
   Section 15 (2c) of The School Boards (Scotland) Act states "There shall not be delegated (to school boards) under this section the regulation of the curriculum".
   
   
3. Parents have individual rights
   Section 9 of the 1980 Act states that every public school is open to pupils of all denominations but it gives parents the right to withdraw their child "from any instruction in religious subjects and from any religious observance". It goes on to add that "no pupil shall… be placed at any disadvantage with respect to the secular instruction ….by reason of the denomination to which such pupil or his parents belong...."
   
   It was understood at the time of the 1980 Act that this "conscience clause" - as it is described - applied only to conflicts over religious matters. However, during the national test campaign, the right of parents to withdraw their children from testing was established de facto, although not de jure. The latest circular to education authorities now applies this principle on parental rights to sex education.
   
   
4. Children's rights
   The new Education bill will place children's rights above those of parents. This is in line with European law. In a 1976 case, Kjeldsen Busk Madison and Pederson v Denmark, which was a challenge on to the compulsory sex education provided in Danish schools, the European Court ruled that a child's right to education takes priority over parents' convictions.
   
   Similarly Section 28 of the 1980 Act makes the duty on authorities to have regard to parents' wishes secondary to their primary duty to provide suitable instruction and training.
   
   
5. Catholic Schools
   Catholic schools exist to guarantee the rights of Catholic families to have their children taught according to the beliefs of the Catholic Church. Consequently religious and moral education (including sex education) is determined by the Catholic Church. Contraception is taught differently in Catholic and Non-Catholic schools. At the time of the AIDs scare in the eighties, when educators and health workers were extremely anxious to get the message of safe sex and the need to use condoms through to all youngsters, Catholic schools developed their own, quite different AIDs education packs.
   
   Non-Catholic schools are not Protestant schools; they are non-denominational schools. Religious education is multi-faith and does not advocate any one faith. It would therefore be completely inappropriate for non-denominational schools to have any teaching determined by reference to Catholic theology.
   
   
6. Scottish Parent Teacher Council's Position
   We are a non-prejudicial body. We are interested in parents and children as parents and children. We do not enquire into their politics, race, religion, ability or sexuality. Accordingly, we felt the only issue arising from Section 2A was whether pupils at school were protected from inappropriate material of any nature. We felt that there were adequate safeguards and that, in this sense, Section 2A added nothing extra and was redundant. We wrote of our position to all our members. This was not a consultation, but some people have taken the trouble to respond. The majority have thanked us for writing and supported our stand. A few have question the fact that we did not undertake a formal consultation. To all of these we have explained our reasoning and have had no further feed-back. A handful Catholic schools have written to object to what we have done but without explaining their reasoning. One Catholic school board has written to us with their reasons for wanting to retain Section 2A. They do not raise the issue of child protection but rather state their objection to homosexuality.
   
   "We do not believe that Section 28 encourages bigotry, intolerance etc. We believe it is not inconsistent to disapprove of a homosexual lifestyle and yet treat people living in that way with tolerance and respect"
   
   However, such views are completely outwith our remit and the remit of any parents' group.
   
   
7. Scotland Act - definition of equal opportunities
   We note that the Scotland Act defines equal opportunities as "the prevention, elimination or regulation of discrimination between persons on grounds of sex or marital status, on racial grounds or on grounds of disability, age, sexual orientation, language or social origin or of other personal attributes". We assume that all legislation passed by the Scottish Parliament should conform to this.
   
   
8. View of homosexuality
   Section 28 only has any validity if homosexuality is a learnt behaviour. However, the overwhelming evidence is that this is not the case. Homosexuality is an innate part of a person in the same way that heterosexuality is. Moreover, evidence from homosexuals, including the interviews with young gay people detailed in the Times Education Supplement Scotland (3rd March 2000), shows that most homosexuals understood they were gay before the age of 12, before they fully understood the terminology and before they engaged in any sexual activity.
   
   When Alan Turing the totally brilliant mathematician, who, in cracking the enigma code, did so much to win World War II, was fed hormones to change his sexual orientation, the treatment was unsuccessful, resulted in him growing breasts and was such a torture to him that he subsequently committed suicide.

SUBMISSION FROM THE SCOTTISH SCHOOL BOARD ASSOCIATION

SECTION 2A(28)

On the 3rd February 2000 SSBA issued a questionnaire, associated with the government’s consultation paper on the repeal of Section 2A(28) of the Local Government Act 1986 and the Ethical Standards in Public Life (Scotland) Bill.

Enclosed with the questionnaire were extracts from the Local Government Act 1986 and the Guideline issued by the Scottish Office to local authorities in May 1988.

School Boards were encouraged to gauge the views of those they represent. Based on their understanding of Section 2A and the extract from the guidelines Boards were asked to respond to one of the following statements by ticking one of the three boxes:

cont/…

The Association received 777 responses:

1). 90 School Boards responded that Section 28 should be repealed;

2). 310 School Boards responded that Section 28 should remain in place until the Scottish Executive had fully and formally consulted upon and agreed revised guidelines; and

3). 358 responded that Section 28 should not be repealed.

Another 19 respondents were either undecided or felt that they did not have time to consult with parents.

After receiving and considering the responses SSBA considers that these results reflect the very high level of dissatisfaction of Scottish parents with the Scottish Executive’s decision and process on the repeal of Section 2A.

SSBA would urge the Scottish Executive to circulate the draft guidelines for consultation to all School Boards and Parent Associations. Any decision on repeal should be deferred until this process has been completed and cognisance taken of parental opinion.

Enclosed with this letter is a detailed table of the returns and comments received from School Boards.

The results of the survey has been sent to the Minister for Children and Education along with a detailed table of the returns and comments received from School Boards.

I would be grateful if you would circulate this letter and enclosures to the members of the Education, Culture and Sport Committee to which SSBA has been invited to give evidence on Wednesday 15^th March 2000 at 10.30am.

Ann Hill, Chief Executive SSBA

RESULTS OF SECTION 28 QUESTIONNAIRE AS AT 2 PM ON 3 MARCH 2000

Scottish School Board Association
Results of Section 28/2A Questionnaire
Sample of comments made by School Boards

Question 1 - "Section 28 should be repealed" -

There is no place for this in a modern society where equal opportunities are to be promoted.

Education should promote understanding and respect.

Repeal should be on the basis that full consultation takes place, all necessary precautions are taken and legislation is put in place to protect children from any unsuitable material being used or made available in schools.

Feel that society should encourage tolerance and acceptance regardless of sex, race or religious views including gender preference.

Living in a society where homosexual couples are legally allowed to adopt children and raise them as a family and accepting that the care of these children frequently exceeds the care children of heterosexual couples receive, Section 28 should be repealed.

Education Authorities and teachers will require clear guidelines included in national curriculum for health education.

There is a strong feeling that guidelines should ensure that heterosexual family relationships are the best situation in which to bring up children.

Scottish Executive should be applauded for announcing its intention to repeal this discriminatory legislation.

Section 2A is deeply offensive to any child who has a homosexual parent. Children do not choose their parents.

Question 2 - "Section 28 should remain in place until the Scottish Executive have fully and formally consulted upon and agreed revised guidelines".

The vast majority who want the repeal of Section 2A are single and gay groups who themselves are not parents, therefore cannot speak for the majority of parents.

Parents have expressed concern about the speed the government are trying to push this repeal through.

Teachers need guidelines and to know that they can discuss these matters without fear of misunderstanding.

Parents need more information on what would happen if Section 2A was repealed, before a proper decision could be made.

We need to reassure parents that inappropriate materials/teaching methods will not be forced upon our children.

No wish to be intolerant but are concerned about child protection issues and feel there should be some statutory back-up.

Keeping the act in its present form does not restrict school from explaining homosexuality to pupils, the threat of publications concentrating on this subject and its promotion for use in schools is of great concern..

Guidelines must be legally binding.

Every human person has the right to be free from bigotry, intolerance and fear.

We believe a problem did not exist until the repeal issue was raised.

Teachers and management staff in schools should have the opportunity to comment on this controversial topic.

Catholic schools will be guided in classroom practice in this matter by the advice and guidance from the catholic archdiocese.

Traditional family values combined with a normal heterosexual family structure should been seen as the norm.

Guidelines must be agreed by School Boards in advance of repeal and must be mandatory.

The Scottish Executive should circulate copies of any draft guidelines to School Boards. Guidelines should be legally binding on teachers and/or local authorities.

Question 3 - "Section 28 should not be repealed".

The Board were unanimous in backing the views of the Bishop’s Conference of Scotland.

We object to the comparison of homosexual relations to that of marriage between man and woman.

We feel that the fact so many people are debating, talking and writing about this issue when there are so many other things to consider is scandalous and that we should not have to be fighting this hard.

Parents are not willing to accept guidelines as opposed to statutory legislation.

I feel children of school age should be protected from the promotion of homosexuality by the force of law.

Guidelines suggested by First Minister gives no guarantee that will reassure parents that there will be no promotion of homosexuality in schools.

Angry at the way politicians think they can just steamroller through legislation without either statutory guidelines or consultation with the people.

There is nothing in the present clause to prevent schools from discussing homosexuality or from providing counselling and support to pupils.

Current legislation does not prevent a tolerant society.

Time the government listened to the majority.

Guidelines mean nothing. Section 28 is enshrined in law so why change it for something that isn’t.

Disappointed that School Boards and parent organisations have not been consulted on this issue by their local authorities.

The so called gay lobby has a disproportionately loud and strident voice as it is. The law should stay as it is. Parents will withhold children from class and school.

Why has the vote in the Scottish Parliament taken place before we have had reasonable time to respond to Sam Galbraith’s letter.

Section 28/2A Questionnaire comments
Scottish School Board Association
4 March 2000