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Citizenship teaching: the legal context

This page attempts to provide an overview of legislation relevant to the teaching of citizenship in the classroom and to related off-site activities.

The law is not always set in stone.
The law may not be set in stone but it's important to know how it affects our work.

Note: this page does not deal with those generic areas of law with which all teachers should be familiar, solely those of specific significance to teachers of citizenship.

It is important to realise that this is not a legal document and cannot not be relied on as providing a definitive view of the law. Teachers should always seek detailed legal advice from competent sources when the need arises.

—Don Rowe, Citizenship Foundation, May 2005.

Teaching controversial issues, and the political activities of students in school

The Education Act 1996 (section 406) places a duty on Local Authorities, governors, and headteachers to forbid the promotion of partisan (one-sided) political views in the teaching of any subject in schools and also to forbid making arrangements for pupils under 12 to take part in political activities. Section 407 of the same Act requires teachers to ensure that students are offered a balanced presentation of opposing views when discussing controversial issues.
Anyone believing that these requirements are not being met has the right to complain to the school’s governing body in the first instance.

For more on this see the Crick Report (pdf), pages 56–61.

The right to freedom of conscience and respect for parental convictions

The Human Rights Act 1998 places legal duties on governments, public authorities and their agents not to infringe those basic human rights included in the European Convention on Human Rights. (The Act does not directly apply to private individuals or companies not engaged in public functions.) Under the Act, every adult has the right to freedom of thought, conscience and religion and state schools must respect parents’ right to ensure that their child’s education is in conformity with their own religious and philosophical convictions. This does not mean that a parent can require their own beliefs and convictions to be taught. Rather it means, in practice, that schools must not deliberately undermine parental religious or philosophical convictions. However, parental views which promote crime or disorder (for example encouraging the use of cannabis or tolerating truancy), undermine health or morals or which damage the reputation or rights of others are not protected under the Human Rights Act.

Further, an individual’s right to “manifest†her or his beliefs can be restricted by law so far as is reasonably necessary in the interests of society. On this basis, extreme racist views could be held to promote race-related crime or undermine the rights of ethnic minority citizens and can be forbidden to be expressed in school. Homophobic attitudes, even if recognised as part of a teacher’s or parent’s religious beliefs, cannot be supported by teachers in a discriminatory way as this is unlawful.

Some teachers have been under the impression that Section 28 of the Local Government Act 1988 prevented them from discussing the issue of homosexuality in class. In fact, the Act prohibited Local Authorities from ‘promoting’ homosexuality. This Act never applied to schools and, in any case, was repealed in 2003.

Race Relations (Amendment) Act 2000

The Race Relations (Amendment) Act 2000 places a positive duty on public bodies, including schools, to:

  1. promote race equality in all they do,
  2. promote good relations between racial groups,
  3. eliminate any unlawful racial discrimination from their own practice.

Schools and Local Education Authorities must have race equality policies in place which comply with the legislation and must take steps to ensure that their staff are aware of the Act and its implications. They must also monitor the operation and impact of their race equality policies.
Note that, whilst other equality legislation forbids schools to behave in discriminatory ways towards staff or students on grounds which include race, gender, sexuality, special needs and disability, the positive duty of the Race Relations Amendment Act arguably means that schools have to ensure that opportunities to address issues of race relations including those offered by the curriculum, must be reasonably taken.

Protecting the Health and Safety of Children and Young People

There has long been a common law ‘duty of care’ placed on teachers to ensure the welfare of the children and young people in their charge. This has been supplemented by statutes and supplementary guidance (for example circular 4/95 on drug prevention) setting out in more detail the standards expected of teachers and others who have these responsibilities. Citizenship teachers, because of the nature of the subject, may become aware of issues concerning the health, safety and conduct of students in their charge, whether this relates to child protection, drug use, physical violence, sexual activity or other criminal or anti-social activities. At all times, the duty of care will mean that professional judgements must be made about what to do with such information. For example, there is no legal duty to inform the police if a teacher knows a student has stolen something. Nevertheless, a teacher would be negligent if he or she knew that a student was involved in under-age prostitution and did not report the matter.

All teachers and volunteers should be aware of the detailed guidance on such issues developed by the school and the local child protection committee and they can seek advice from a member of staff with lead responsibility for such matters. Teachers discussing controversial or sensitive issues in class should encourage students to respect the privacy of other students but they must make it clear that not everything disclosed in class can be in complete confidence. Teachers are encouraged to listen sensitively to students in one-to-one conversations, but must not promise complete confidentiality. Where concerns arise, conversations should be noted and reported to the designated member of staff.

Teachers encouraging students to undertake ‘active citizenship’ projects with adults who are not attached to the school must ensure that procedures are in place to protect the student from harm, focusing greatest protection on settings in which young people may be most at risk, for example, where children may spend periods of time in one-to-one situations with an adult. Schools may decide for example that up to date CRB (and List 99) checks are required. If so, these checks can only be carried out with the consent of the adult concerned, in the same way as for teachers and volunteers in school and time must be allowed for the process to be undertaken. Additional safeguards may be needed regarding vulnerable children such as those with special needs.

The citizenship and PSHE curricula both provide opportunities for the discussion of issues relating to the health and welfare of young people and it is one mark of a well-developed whole school health and safety policy that such opportunities are taken. Arguably, the duty on schools to prevent all kinds of bullying (including homophobic bullying) means that the citizenship curriculum should be considered an important location for ensuring students are all made aware that bullying is unlawful and that students who are bullied are aware of sources of confidential help and advice should they need them.

Where teachers draw on the support of external agencies to supplement or enrich the citizenship curriculum, they should be aware that they remain responsible for pupils’ behaviour, health, safety and child protection throughout and a teacher or teaching assistant should always be present during activities (see Citizenship and PSHE: working with external contributors (pdf)). Visitors should be briefed about the relevant school policies and procedures. Judgements need to be made about whether it is necessary to ask visitors to undergo CRB checks. These are not normally required for infrequent visitors to the school unless, unusually, they are to be left in sole charge of a pupil or pupils. A range of useful guidance documents on safeguarding students is available on teachernet.

Note: Common Law
Common Law arises from judicial decisions in cases brought before the courts which then become binding, by precedent, on subsequent cases where there are substantially the same facts (unless the decision is later overruled by a more senior court). Increasingly, statute law is replacing or refining common law. Statute law always takes precedence over common law when conflicts arise. Statutes are, in turn, interpreted by the courts when their meaning is unclear and decisions about what they mean in similar circumstances also become binding for the future, unless overruled by more senior courts.

Note 2: List 99
List 99 is a list held by the DfES of people considered unsuitable to work with children and young people for misconduct or medical reasons. The list is confidential but is accessed by the CRB as part of the checking process.

Supervision of citizenship activities in the community

Local Education authorities, governing bodies, headteachers and teachers have a legal duty of care for the health and safety of students undertaking activities organised or supervised by the school as part of its curricular or extra-curricular programmes. In order to avoid prosecutions or claims of negligence, Local Education Authorities have issued detailed guidance to their schools about minimum standards to adopt when organising educational visits and off-site activities.

These local guidelines are designed to meet general standards and guidance offered by DfES in a range of documents on Health and Safety issues (see Heath and safety on educational visits on teachernet).

Teachers organising active citizenship visits or activities should be sure they have the approval of the headteacher and the school’s Educational Visits Co-ordinator (EVC). If there is any uncertainty as to the advisability of a visit, advice should be sought from the Local Education Authority’s Outdoor Education Adviser (OEA). All visits and off-site activities should have written parental permission and have undergone a risk assessment. Risk assessments should include ‘generic’ risks arising from the type of activity, ‘site-specific’ risks arising from the locations in question and ‘on-going’ risks which may arise during the activity, eg as the result of an accident.

All staff supervising these activities should be competent and appropriately trained. There should be adequate first aid equipment and expertise available and staff should be aware of procedures for reporting and recording accidents. Advice should be sought on the appropriate staff-student ratios which vary according to the type of environment in which the activity is to take place. Issues concerning who will be in contact with students during a visit or activity should be reviewed to assess the possible need for CRB checks (see above).

Discrimination against students with Special Educational Needs and disabilities

Under the Special Educational Needs and Disability Discrimination Act 2001 schools must take all reasonable and practical steps not to exclude students with disabilities or special needs from activities offered to mainstream students.

(For example, in 2000, a school refused to take a diabetic boy on an adventure holiday. On a previous holiday, he had unexpectedly had a serious hypo and the head felt that this placed too great a responsibility on teachers running such trips.

The boy and his parents contested this and a court found that, given reasonable precautions, there was no reason why the boy should not go on adventure holidays. The school had discriminated against the student.)

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