Hewitt leaves Cabinet health job

Patricia Hewitt will not be health secretary in new Prime Minister Gordon Brown’s first Cabinet.

She was widely expected to lose her post after increasing pressure over NHS deficits and doctor training schemes.

It is not yet known if she will be given another job in government, or will return to the backbenches.

File under ‘least surprising announcement of the day’…

Right, I said I’d look at the legal side of the Playfoot’s case for religious discrimination under the Human Rights Act.

The basic contention is that the school’s decision to ban the wearing of chastity rings amounts to a breach of Playfoot’s rights under Article 9 of the European Convention on Human Rights, as enacted by the Human Rights Act 1998. Article 9 reads as follows:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Okay.

With that goes the comparisons drawn with the school permitting the wearing of Sikh religious artifacts, specifically a bracelet called a ‘Kara’, and headscarves in line with the Muslim practice of Hijab (modesty) but not these rings, which the Playfoots contend amounts to a breach of article 14:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Okay, lets start to unpick this by looking at article 9, the second section of which ‘qualifies’ the rights according the first section by noting that the “freedom to manifest one’s religion and beliefs shall be subject only to such limitations as are prescribed by law…”

And, no doubt, the Playfoot’s barrister has argued that these chastity rings are a means of manifesting a certain element of religious belief.

But, this qualification on the right to manifest one’s beliefs is a secondary clause, which implies clearly that the particular protected forms of manifesting religious belief covered by ECHR are specified by the primary clause, which is confirmed by this statement:

to manifest his religion or belief, in worship, teaching, practice and observance.

So, to qualify for protection under article 9, these rings have to constitute an act of worship, be an element in the teaching of religious beliefs, a religious practice or a religious observance.

Is an ring an act of worship? No. Going to church is an act of worship and prayer is an act of worship, but a not a ring - that’s an ‘artifact’ and fails to stack up even as an adjunct to worship, as one might argue in respect of Catholic rosary beads.

So that’s the worship proviso out of the picture.

What about teaching? Again, no. The mere existence of, or wearing of, a ring teaches one nothing whatsoever about religion or religious belief and, in any case, the term teaching implies not only an intellectual exercise but one conducted by an individual who is suitable qualified or experienced in their understanding of religious belief to reasonably be thought capable of imparting knowledge to others, which is hardly a faculty one would reasonably ascribe to a fourteen year old girl, not to mention that the qualification about protecting the rights and freedoms of others implies that any such teaching should be voluntary and not rammed down people’s throats whether they like it or not.

So that’s teaching out of the window.

What about a religious practice or observance, the last two options?

We’ll tackle these together as the dividing line between the two is perhaps a tad unclear. An observance is a rule or custom that followers are expected to follow - the Catholic Church define an observance in terms of it being a rule or discipline, while a practice is either the act of complying with an observance or simply an habitual action or custom.

So to be an observance, there must be some rule or discipline attached to wearing of these rings that, additionally, I would argue, has some basis in scripture or long-standing church tradition - one cannot simply have religions making up new rules on the spot and then claiming that they’re matters of religious liberty deserving of legal protection, such rules have to have some foundation is clerical tradition or a sound theological basis.

So one can argue that chastity itself could be thought a form of religious observance, and the school certainly aren’t banning kids from not shagging, but not the wearing of ring as a symbol of chastity, despite the Playfoot family’s fatuous attempts to draw parallels between their franchised baubles and wedding rings and the claim attributed to the father, which I saw in one report, that Christians have been wearing rings for centuries - that they undoubtedly have, and so too have lots of other people who aren’t Christians, which means there has to be more to it than merely the wearing of ring, the ring has to have clear, significant and scripturally mandated significance.

Damn that dozy St Paul for not mentioning rings!

Wedding rings have an established ritual significance in marriage practices stretching back into pre-history, and even though the practice was initially shunned by early Christians as a pagan ‘thing’ they came around to the idea quite long enough ago to make the whole business at least an accepted practice, if not a legitimate matter of observance given that rings play a part in the marriage ritual.

None of which is applicable to chastity rings, which originated in the United States in the 1990s.

The only other Christian tradition surrounding rings that has any real standing is the use as a symbol and seal of authority, as in the Catholic ‘Ring of the Fisherman’ (commonly called the Papal Ring) for which the earliest recorded reference dates to 1265, and the practice of rings serving as a badge of office, itself, derives from the common practice of mounting a seal (as in denoting the source and authenticity of documents type of seal) into a ring as a matter of convenience.

And as there’s no mention in any of this of young Lydia signing her homework in wax or having been annointed the high priestess of some latter day order of vestal virgins, I think we can rule that argument out as well.

The Playfoots can’t even try the old ‘nuns wear rings’ line of argument as the ritual significance of that is as a component of their presumed ‘marriage to god’ and not as a simple symbol of temporary chastity while awaiting the appearance of an all too corporeal husband.

Whether this whole ring business has been wrapped up in cant and ritual by its supporters is entirely immaterial - if you are going to lay claim to the religious rulebook argument then there still has to be some long-standing foundation or basis for your rules, otherwise what’s to stop someone getting a priest to say a few of blessing over a teapot and then proclaiming that the blessed teapot has to be on permanent display on your school desk at all times or your religious freedoms have been infringed. The idea is nonsense, as is the claim that the wearing of chastity rings should attract the protection of human rights law.

So, that said, what of the discrimination claim in regards to the school permitting the wearing of the Kara or observance of the practice of hijab.

More nonsense.

The Five Ks of Sikhism, Kesh (uncut hair) and Kanga (wooden comb - together these account for the religious significance of the wearing of the turban), Kara (bracelet), Kachhera (cotton underwear) and Kirpan (curved sword or dagger) are expressly mandated matters of religious observance and articles of faith, as commanded by the tenth Guru, Guru Gobind Singh - hence they attract the full protection of article 9.

Hijab, which actually refers to the Islamic practice of modesty and not to a specific garment, is similarly mandated in both the Qu’ran and under Islamic law and jurisprudence, and although there are a number of variant cultural interpretations of the precise requirements of sartorial hijab within in Islam, the practice itself is, again, a matter of religious observance in which the practice of women covering their hair is more than sufficiently widespread and commonplace as a tradition, if nothing else, for these garments to fall legitimately under the definition of a religious practice, if not for them to be entirely regarded as a matter of observance (and then only because in some Islamic countries, such as Tunisia, the covering of the hair at all time is not part of local interpretation of the practice.

In no sense is the wearing of a ring as a symbol of chastity comparable to either the 5Ks or the practice of Hijab - for this to be the case the Playfoots would have to show that the wearing of rings as a symbol of chastity is either mandate in the Bible or rooted in the teachings of a major theological or historical figure in the history of the Chrisitan faith. Sainthood would almost certainly be the minimum qualifying requirement, and even then the expectation would likely be that the individual in question and, therefore, their teachings would have to be pretty well known and accepted as a core element or major contribution to Christian teaching - we’re looking here at the level of Jesus, the biblical apostles, St Paul and his immediate associates and then maybe the likes of Patrick, Augustine, Aquinas, Luther, Calvin, etc.

(The latter two would probably have loathed the idea of chastity rings and considered them to be idolatrous examples of errant Popery in line with the whole business about Moses and graven images)

Find a reference to chastity rings in amongst the theological heavy hitters, and you might have a marginal case. Without such a reference there’s no case, no infringement in religious freedom and no discrimination, just a bunch of evangelists on the make and wasting the time of our courts and the money of the school (taxpayers’ money, of course) on a futile, publicity-seeking exercise in self-aggrandisement.

Here endeth the lesson…

Third post on the Playfoot case and Silver Ring Thing, and this times its more of a quickie.

One of the arguments being put up by Lydia Playfoot about the ring ban at Millais School has been that other pupils of different religions are allowed to wear their religious ’symbols’, which makes the ban on chastity rings discriminatory.

I’ve got one more post in mind on this case, which will cover the ‘legal arguments’ and claims that this case is about religious liberty, but before I get round to that, I’d just like to put Playfoot’s claims of discrimination into context:

From the 2001 census -

Horsham had a total population of 122,088, which, broken down by religion, amounted to the following:

Christian - 93196
Buddhist - 268
Hindu - 232
Jewish - 223
Muslim - 451
Sikh - 94
Other - 440
No religion - 18854
Religion not stated - 8330

In the same year, the ethnic profile of Millais School (recorded in an Ofsted inspection) was:

Black – Caribbean heritage: 2
Black – African heritage: 3
Black – other: 2
Indian: 7
Pakistani: 11
Bangladeshi: 3
Chinese: 6
White: 1316
Any other minority ethnic group: 14

This was the year before before Playfoot started secondary education, and while a more recent Ofsted note a small increase in the number of ethnic minority pupils attending the school in recent years (and all girls school is bound to a popular choice amongst Muslims, in particular) the population trend data for those communities one would expect to account a sizeable chunk of local Muslims (Pakistani & Bangladeshi) is growing pretty slowly and its impact on local school age population is only really noticeable because of the age demographics in these communities is skewed towards children and young people.

In 2001, the school had 38 ethnic minority pupils out of 1354 - less than 3% of the school population across all years, which suggests that if Playfoot’s little coven of ostentatious virgins were all drawn from the same school year then they probably had the very small number of Muslim and Sikh pupils in the same school year pretty much outnumbered.

Sadly, there’s no current data on school population and ethnicity but this data does add a bit more context to the claims of religious discrimination laid against the school.

In which a report in the Independent provides yet more evidence of systematic stupidity and rampant bansturbation amongst the managerialist classes…

Teachers angry over reinstated pupils as exclusions increase

There has been a sharp rise in the number of pupils excluded from secondary schools, taking the annual total to more than a third of a million.

But teachers’ leaders are angry that more than 100 pupils successfully appealed against their exclusion and were allowed back into their classrooms. Headteachers said this was undermining their attempts to instil discipline in schools.

Huh? Okay, before we get into this, lets actually look at the numbers.

There were 343,840 exclusions last year, a 4 per cent rise on the previous year and the equivalent of one in every 10 pupils, national statistics pubished yesterday showed. The number of permanent exclusions for serious disruptive behaviour or assault fell by 3 per cent to 9,440…

…The proportion of successful appeals against exclusion rose by 9 per cent to about a quarter, with 130 out of the 240 pupils involved being reinstated.

So we’ve got 343,840 exclusions in total, 9,440 permanent exclusions, 240 pupils appealing a decision (most likely on a permanent exclusion) of which 130 won their case - and that’s ‘undermining [Headteachers’] attempts to instil discipline in schools’?

Apparently…

John Dunford, general secretary of the Association of School and College Leaders, said: “I find it astonishing and worrying that more than half of successful exclusion appeals result in the pupil being returned to the same school. Heads need and deserve better support than this if they are to maintain the standards of discipline that society expects. It is undermining schools’ ability to discipline.”

Well, yes, there are some worrying elements to this story, but these have rather more to do with Dunford’s ‘Do what the headmaster wilt shall be the whole of the law’ attitude than with the relatively small number of cases in which exclusions are overturned on appeal.

Let’s get a bit of perspective here. Based on these figures, a mere 2.5% of decisions to permanently exclude a pupil were appealed and only 1.3% of all such exclusions were overturned on appeal - not exactly a huge percentage of all permanent exclusions then, let alone of the total number of exclusions on the year.

Then there’s the business of these appeals, themselves.

So we’re clear, what were talking about here are appeals to [notionally] independent panels, which all local authorities, and voluntary-aided/foundation schools are required to provide by law, that hear only appeals against permanent exclusions after a final decision to exclude a pupil has been taken by a disciplinary panel made up of governors of the school from which they’re being excluded.

No I don’t know what you think goes on in these appeals hearing - one suspects the impression that some in the teaching profession would like to give is somewhere along the lines of the scene in the Blues Brothers where Jake grovels for his life, in a storm drain, before a gun-toting Carrie Fisher - but these are actually formal hearings held before and formally constituted and [notionally] independent panel.

And who sits on these panels?

Well, under the current regulations, an exclusion appeals panel must consist of either three or five individuals who are:

(a) persons who are eligible to be lay members;

(b) persons who are, or have been within the previous five years, head teachers of maintained schools; and

(c) persons who are or have been governors of maintained schools, provided they have served as a governor for at least twelve consecutive months within the last six years, and who are not teachers or head teachers.

For a three person panel, one of each category is required and for a five person panel it must be one lay member and two members from categories (b) and (c).

Eligibility for lay members is defined as follows:

…a person is eligible to be a lay member if he is a person without personal experience in the management of any school or the provision of education in any school (disregarding any such experience as a governor or in any other voluntary capacity).

While eligibility for the ‘experienced in education’ category is defined by a set of exclusions under which Panel members cannot be:-

(a) any member of the authority or of the governing body of the school in question;

(b) the head teacher of the school in question or any person who has held that position within the previous five years;

(c) any person employed by the authority other than as a head teacher;

(d) any person who has, or at any time has had, any connection with -

(i) the authority or the school, or with any person within paragraph (c), or

(ii) the pupil in question or the incident leading to his exclusion,

of a kind which might reasonably be taken to raise doubts about his ability to act impartially.

The more observant amongst you will have already figured out by now that under those rules, its not exactly difficult to come up with an ‘independent’ appeals panel that, if its not a hangman jury, is at least pretty well pre-disposed to come down on the side of the school, especially when you consider that the panel is also required to balance the interest of the appellant against those of the other pupils of the school and precluded from considering any actions taken by the school prior to the final decision of the governors to exclude a pupil, leaving only two applicable grounds for appeal:

(1) You got the wrong kid, or

(2) The decision to exclude was excessive, as in ‘the punishment didn’t fit the crime’.

Little wonder, then, that one of the more common complaints made by parents who’ve been through the appeals process is that they find themselves in an environment in which everyone but them is on first name terms or that the Council on Tribunals, a permanent standing advisory body (i.e ‘watchdog’) that oversees the procedural aspects of about 80 different tribunals, has raised extensive concerns about the operation of these panels:

6. In May 2003 the Council on Tribunals published its special report ‘School Admission and Exclusion Appeal Panels’. It repeated its previously expressed concerns about the lack of independence of these panels, their constitution, the need for greater consistency in the clerking arrangements, the need for a clear and uniform policy on training, the need for better guidance and information for parents, the need for better and more appropriate accommodation, and particular concerns about the operation of appeals for voluntary-aided and foundation schools.

…

9. Finally the House of Commons Education and Skills Committee looked at these issues. It reported on 22nd July 2004 – HC 58-1. They too were concerned about the system. They were complimentary about the reports of both the Council on Tribunals and the Ombudsmen, and expressed disappointment that the DfES had so far been reluctant to act on many of the Council’s recommendations. Taken together they said that “the two reports provide compelling evidence of the need to establish and enforce a common framework for the admissions and appeals process”. They were particularly concerned about the difficulties with appeals conducted by voluntary-aided and foundation schools, and in this context pointed out that “parties should be mindful of the need for the appeals process to be, and to be seen to be, independent from any admissions authority, including LEAs.”

And despite all that, schools lose a very small number of exclusion appeals and then whinge to high hell that this whole appeals business is getting in the way of school ‘discipline’ without any murmur of concern or recognition when it comes to the question of why these 130 cases have been successful on appeal and what that might say both about the conduct of the relevant schools and the impact that a wrongful exclusion may have had on the successful appellant.

And if the self-regarding attitude of a representative of the teaching profession were not enough, along comes David ‘Two-Brains’ Willetts to add his twopennorth:

David Willetts, the shadow Education Secretary, said it was “disturbing” that so many appeals were successful.

“How can you possibly maintain order when a child you have expelled from your school wins an appeal and is back in your classroom?

“It is not fair on teachers or the vast majority of children who are at school to learn without being distracted by a badly behaved minority.”

To be clear on the political dynamics here, the Tories opposed the introduction of ‘independent’ exclusions appeals panels and would rather that kids who may have been wrongfully excluded for school take their chances in court if they want to overturn a wrongful exclusion.

What neither Dunford or Willetts is displaying here is any apprehension of, or regard for, the importance of one of the core principles of the UK’s common law tradition; that of natural justice.

It is natural justice that dictates that decisions of exclude a pupil permanently from a particular school must be made subject to an independent appeal under the principle of Nemo iudex in sua causa or ‘No man may be judge in his own cause’ and because the construction of these tribunals requires that a finding in favour of the appellant must, by default, strike down the decision to exclude them from school as if it had not been taken, the only valid redress the tribunal may offer to right the wrong done to the appellant is their reinstatement at the school from which they were wrongfully excluded, unless it can be shown that there are exceptional circumstance which might reasonably preclude reinstatement.

These tribunals are not permitted to consider or rule on purely procedural defects in the process by which the decision to exclude was made and therefore cannot enter a judgement against the school on technical/procedural grounds (except, perhaps, where the original decision was taken via a process that was so so egregiously unfair as to make the entire proceedings ultra vires) and yet uphold the punishment on the grounds that the procedural failings were insufficient to merit overturning the decision to exclude other than in exceptional circumstances.

In others words, what both Dunford and Willetts are arguing for is the near complete disapplication of the common law and the principle of natural justice from the education system in favour of a system in which schools become judge, jury and executioner and anyone who is wrongfully excluded from school has recourse only to the High Court, with all the attendant costs that go with it. One the key purposes of this tribunal system is to try and avoid disputed exclusions ending up in court and ensure that anyone who feels themselves to have been wrongfully excluded from school has a means of seeking (and obtaining redress) that is not contingent on their parents having sufficient disposable income to meet the costs of litigation, not to mention that these tribunals also help to keep schools out of court and, therefore, minimise costs to the taxpayer.

Far from waving around a bunch of largely unilluminating general statistics - nothing in this report explains why, and on what grounds, 130 pupils were successful in appealing exclusion decisions, both Dunford and Willetts would be better served by seeking to review and develop an understanding of why these appeals were successful and what implications they might, therefore, have for the manner in which decisions on permanent exclusions taken and reviewed on appeal. By far the best way of avoiding losing appeals on exclusions is to ensure that all such decisions are taken correctly in the first place.

Still, its not just teaching unions and the Shadow Education Secretary that can be proven to be the fount of dumb ideas:

New measures would be introduced in September compelling parents to ensure their children stayed at home for the first five days of an exclusion, Mr Knight said. Schools would be be told to set homework for pupils to stop them roaming the streets and fines of £50 would be imposed on parents if they allowed them to do so. “We want to stop fixed-term exclusions being seen by some as an unofficial holiday,” he said.

Right, so not only are 340,000 kid excluded from school each year, but now they’re also to be given homework and placed under daytime house arrest?

Anyone really think this is likely to work? Or it is more likely that we’ll see kids returning to school with an encyclopaedic knowledge of of daytime television and the appearance of an ‘excluded from school’ group on Facebook, not to mention the obvious problems facing working parents who are likely to find themselves forced to take time off work to supervise their recalcitrant teenagers or take the risk of ending the week under a slew of £50 fixed penalty notices.

How long do you think it’ll be before its discovered that this is all sufficiently ineffective to merit a further exercise in bansturbation under which parents of kids on temporary exclusions are charged with taking the plugs of any TV’s, radios or hi-fi equipment in the house, confiscating all iPods, MP3 players and mobile phones and shutting down their internet connection for the duration of their kids’ temporary exclusion, all on pain of a visit from the school exclusion (entertainment) police and yet more fixed penalty notices?

Some might think that maybe a mandatory period of attendance at a local specialist exclusion unit,  which would be similar to a pupil referral unit but handle kids under short-term exclusions, might be a more sensible and productive approach to dealing with such exclusions than a policy of homework and house arrest - at least you’d know that kids were (a) actually getting some work done and not vegging out on ‘Bargain Hunt’, chatting on MSN and surfing for porn, (b) spending their days in a properly supervised environment and (c) might just get a bit of support and an opportunity to  work through whatever issues they have that led to the their exclusion in the first place.

And finally…

Meanwhile, the National Association of Schoolmasters Union of Women Teachers called on ministers to classify mobile phones as potentially offensive weapons and to ban them from schools. Chris Keates, general secretary, of the NASUWT, told a meeting of a government task-force aiming to stamp out cyber-bullying in schools that they were being used by pupils to denigrate their teachers on internet sites such as ratemyteacher.

Sorry? Classify mobile phones as potentially offensive weapons???

Okay, it you we’re talking about the kind of house-brick mobiles that were around in the early 1980s and there was evidence of these being used to batter the crap (and dinner money) out of kids in the playground then you might have a point, but still potentially offensive weapons?

What next? A new charge of ‘assault with a deadly Nokia’?

Look, if we’re going to head down the road of banning things from school because they’re potentially offensive weapons, then we’re going to end up with kids doing their schoolwork with heavily cushioned wax crayons and the complete removal of geometry from the mathematics curriculum, not to mention the closure of all science (and domestic science) facilities and any school workshops, with all practical lessons in these classes being carried out only by teachers and only then behind a thick screen of bulletproof glass. If a mobile phone is a potentially offensive weapon, then so too are biros and pencils - trying jamming one up your nose or in your ear, hard, if you don’t believe me.

So far as mobile phones go in school time, its up to schools to set their own policies and I can’t imagine that many permit them to be used in the classroom. Yes, the new generation with built in cameras and video capabilities can be used to pull off the ‘winding up the teacher and videoing them losing the rag’ stunt, with the video then being uploaded to YouTube, and pupils can make use of sites like RateMyTeacher, and personal blogs, MySpace pages and Facebook groups to make offensive, libellous and harassing remarks about their teachers, which schools can (largely) prevent during school time (and using school equipment) by controlling internet access through their own net gateway.

Outside of school hours, however, there’s basically fuck all they can do other than complain to websites and service providers about offensive, harassing or libellous material - and good luck to them if the site its posted on is in the US and covered by the First Amendment as, in many cases, they’ll need a court order to get shot of the offending material - unless teachers plan to go down the road of constantly sicking the police on their daytime charges and suing kids in the High Court for libel.

Its yet more pointless bansturbation - banning mobile phones in schools isn’t going to prevent ‘cyber-bullying’, in fact to stop that using prohibition would necessitate a complete ban an children using the internet, and schools aren’t going to buy into that because, for starters, they’d all have to go out and spend a shedload of money on textbooks and a proper fucking library rather than directing kids to Wikipedia.

Catching a few of the worst of the little scrotes using the internet to hassle people and hauling their sorry asses through court might, just might, have a bit of deterrent effect, but efforts to tackle ‘cyber-bullying’ by prohibition and censorship are doomed to failure, because the one thing you can’t censor is the contents of kids’ heads and if they think you’re a miserable shite and a lousy teacher the only way you can address that is to work with them to change their perception of you and prove them wrong.

Prohibition, as ever, just doesn’t work.