We wanted to update you on where we are. Before we formally issue a judicial review of the Department of Education’s new guidance on the curriculum for PHSE, we had to send a letter to the Secretary of State for Education to explain our position and to invite them to withdraw the guidance. The Secretary of State responded to our letter on 16 October 2020 and they have confirmed that they will not withdraw the guidance.

In our letter we set out four arguments: Firstly, the Secretary of State has purported to use a statutory power to set the curriculum in the wrong way. They replied that the Secretary of State has said that they don't need a statutory power to publish the guidance, they haven’t said what power they do have, or whether this guidance is consistent with that and the statutory guidance.

Secondly, the guidance is so poorly written and vague that it interferes with the rights of educators (namely Article 10 ECHR – freedom of speech). On point 2, they have cherry picked terms from their guidance, but they failed to explain what these mean. We gave them a list of things that we think might fall foul of the guidance, and their response seems to suggest that they do not know whether it would do or not. They say things that would not fall in guidance by quoting one part of the guidance, but ignoring another part of the guidance which may apply

Thirdly, we have said it's straightforwardly irrational. Finally we have said they've failed to think properly about discrimination matters when publishing this guidance. Finally, in terms of discrimination, they said they complied with this by preparing an equality impact assessment prepared for the statutory guidance. They do not say that they completed an assessment when they published this guidance. They have simply said the Secretary of State is aware of the public sector equality duty. They have not demonstrated to us how this duty has been fulfilled.

Next steps: we need your help 

Call out for Evidence 

We would like to have more information as to how educators and school pupils are impacted by the new PHSE guidance. We would like you to send information to our legal team directly, particularly if: 

1. You are a school educator who has previously distributed materials or relied on teaching aids in the class room which you think may now be prohibited under the PHSE guidance (or you’re simply confused as to whether they would be prohibited)

1.  What materials or teaching aids did you use?
2. Were they from an external organisation?
3. Do you know if they are prohibited under the new guidance? Why?
4. Would you rely on the same materials now in light of the new PHSE guidance?

2. You are a school educator who has materials you would like to distribute but you are now hesitant to do so

1. What materials or teaching aids would you like to use?
2. Are they from an external organisation?
3. Do you know if they are prohibited under the new PHSE guidance?
4. Are you hesitant to distribute? Why?

3. You are a school educator who thinks they may need to change the way that they teach in order to comply with the PHSE guidance (or you are confused as to whether you should be)

1. What do you think you will change and why?

4. You are a school pupil or parent of a school pupil who has benefitted from class room discussions/activities, external speaker talks and distributed materials which you think schools/educators may now avoid due to the new PHSE guidance.

1.  Please provide examples and how you/your child has benefitted.

Please get in touch with Rachel Harger of Bindmans LLP [email protected] if you are an educator or school pupil who feels impacted by the new guidance, where possible please use the points between 1 and 4 above as a guide for information that would be useful for us to have.