I was interested in a debate yesterday kicked off by Jessica Asato, writing at Left Foot Forward about the way Conservative opposition led to the government’s dropping provisions in the Children, Schools and Families Bill about personal, social and health education – sex and relationships education being its most controversial aspect. The plan had been to put “PSHE” on a statutory footing, and importantly, to make it compulsory for one year for schoolkids once they’re fifteen. But the Conservatives opposed this, and wanted to amend clause 14 to allow parents to withdraw their children not just up to 15, but all the way up to 16 years old. An amendment which would of course have wrecked the whole idea. Peers were miffed on Tuesday that in the face of this, the government caved in and took the provisions out of the Bill – which has now received Royal assent, by the way. I can understand peers’, and Jessica Asato’s, frustration at the opposition to and abandonment of a good policy.

What interests me though is that Jessica linked to a letter from Ed Balls to his opposite number Michael Gove about this, in which he claims that the Conservative policy breached Convention rights:

As I explained yesterday, your insistence that parents should have a right to withdraw their children until they reach the age of 16 – the age at which they are in many respects considered adults – makes it impossible for us to proceed. Both British and European case law do not support an opt-out up to the age of 16.  As I explained when we discussed yesterday, that amendment would have meant that the bill would not have been compliant with the ECHR.  Your insistence that the age limit must be increased to 16 would have made the entire bill non-compliant with UK and European law and, therefore, our lawyers advised me that, as Secretary of State, I had no choice but to remove all the PSHE provisions.

I can’t understand this at all – and it makes me wonder whether Balls isn’t “sexing up” the legal angle here for some reason. Balls says case law “does not support” an opt-out up to 16, but that isn’t the same as saying case law precludes such an opt-out. To say parents have no absolute right to withdraw their children from sex education, as Kjeldsen v Denmark makes clear and as Parliament’s Joint Committee on Human Rights said when scrutinising the Bill, is one thing. But to go further, and say that the ECHR requires the UK to deny parents a right of withdrawal is quite another. If it were true, we’d already be in breach now, and Ed Balls’s own policy would be difficult to defend as it affects children aged just under 15. The truth is that human rights law permits Ed Balls’s policy but it doesn’t, as he argues, require it. I think the Conservative education adviser Sam Freedman was right to call Balls’s legal point “dubious”.

It’s interesting that Ed Balls doesn’t actually say his lawyers had advised him the Tory amendment would breach Convention rights. I’d be amazed if they had.

What’s most extraordinary about the Balls letter, though, is that he does say his lawyers advised he had no choice but to remove the provisions because of the purported breach of the ECHR. How can this be? Any competent government lawyer knows that the Human Rights Act permits ministers to put forward legislation even if they know it breaches Convention rights. The Human Rights Act was deliberately designed to allow exactly that. Balls certainly did have a choice. Can DCSF lawyers really have made such an elementary blunder? I doubt it very, very much, having worked with a number of them over the years. So either Ed Balls misunderstood the advice, or else his presentation of it leaves something to be desired.

If government ministers distort the impact of the Human Rights Act for partisan gain, how can they complain, as they often do, that “myths” have grown up about it?