“…[SoSE] will be running age appropriate RSE Sessions on the topic of “Consent” on Monday20th September 2021 . They run trusted, high quality sessions, which aim to give the students clear and important information regarding the topic. If you would rather your child not take part in this scheduled session. you do have the right to withdraw them under the DFE guidelines and within our Sex and Relationships Policy…If you do decide to remove your child from Monday's RSE session, please complete the attached Appendix 4: Right to Withdraw. We wish to continue to support all our students with a broad curriculum and provide them with high quality RSE in line with the DfE guidance. If you have any questions, or would like to discuss this further, please do not hesitate to contact me.”
“…[Daughter] explained to me that amongst reasonable guidance about consent, the visiting teachers still lectured her on heteronormativity. Could you please explain to me what that theory has to do with 'consent', why parents were not notified that the lesson would include the issue of heteronormativity, and whether this theory was introduced with suitable balance of opinion and opportunity for debate?”
“…I’d like to ask you directly - and I'm sure I am entitled to do so, and to have an answer: Please will you provide me with the PDFs or other plans for the PSHE lessons listed on the map recently circulated for consultation, including details of any third party providers and external resources that you plan to use? If the school cannot or will not provide this information, will you at least be good enough to explain why you are not prepared to tell parents exactly what you are going to teach their children about their culture, nation, sexuality, relationships and other matters that are contentious on both a political and personal level? … Can you therefore please explain to me exactly what this company taught about consent at Hatcham College and please direct me to any material and lesson plans they used?”
“… A recent third party provider called 'School of Sexuality' visited the school to discuss consent with my daughter's year group. I asked for the school to provide me with a detailed lesson plan of exactly what they taught my daughter, which she informs me not only dealt with consent, but with the subject of 'heteronormativity', which I believe parents were not informed about. The school has not replied to my request for details. Could I therefore ask the school leaders why I have not received that information?...”
“…[SoSE’s] teaching fits with our programme and published policy. We have shared the content information from that specific session (as attached). I am satisfied that it was age appropriate for the pupils and accessible to them… …From my enquiries, the facilitator stated that we live in a “largely heteronormative society” which can be argued to be correct, due to the fact that more people claim to be, and identify themselves as heterosexual…There was no preference being made and nor was there any judgement being made. It was an observation by the facilitator… A letter outlining details about the external provider’s name and how to withdraw from Sex Education (if a parent/carer wanted to) was sent to all parents and carers by the College in a letter dated Thursday16th September 2021 … …if a parent wishes to take on the responsibility of teaching sex education themselves, using another resource or do not wish for their child to be taught sex education within the College, they have the right to withdraw their children from the non-statutory components of sex education within RSE up to and until 3 terms before the child turns 16. …As our Sex Education provision is being taught during the Drop-Down Days, a child can be withdrawn from those specific sessions… …Details about how to request withdrawals from Sex Education lessons can be found in Appendix 3 of the RSE Policy. A letter (electronically) dated Thursday26th August 2021 was sent out to all parents and carers across all key stages within the College. They were also all given the opportunity to provide their comments or feedback. The RSE Policy was available on the website at the time and the updated version has been available on our website since September 2021. Complaint about The School of Sexuality In your email dated13th October 2021 , you complained about your experience in contacting the external provider directly. You asked them for copies of their lesson plans and as explained by them they had copyright concerns. It is important to note that The School of Sexuality had offered to write a more detailed overview of what was taught during the consent session upon our request to my Senior Teacher. However, on the same day, following an alleged phone call that you had with them, the manager [A] intercepted, raising concern that [D] is being harassed by a parent of the College. Hence, they have subsequently retracted from providing us additional detailed lesson plan information… Requested Lesson Plan Please see the attached the document that was shared with you via [Vice Principal]. This was made available to you and I have attached it again. This is what has been provided to us and we are satisfied with what was delivered…”
“64. She [CEO] then suddenly announced that she had a copy of the lesson slides with her but that she wouldn’t show them to me unless I ‘moderated my behaviour’… 65. She then offered her laptop to me with the slides on. I was very surprised and also concerned about the terms under which I was being given access to the material. I didn’t consider this a proper process – there was nothing on paper to confirm I had seen the slides, and I realised I couldn’t prove anything I saw and that I was viewing material that had been claimed to be commercially sensitive and so I might be entering a tacit non-disclosure agreement. I also was deeply uncomfortable that I hadn’t been told this was going to happen in advance so that I could consider the situation properly in consultation with my daughter’s father. 66. I looked at the first few slides that were open and noted that there was indeed reference to ‘heteronormativity’ and ‘sex positivity’, as my daughter suggested, and I think I recall ‘intersectionality’ too… but I instinctively returned the laptop after seeing just three or four slides out of 20+ and said I’d seen enough to confirm that the lesson breaches the Education Act. I purposefully didn’t look at the rest of the slides and explained that I needed to have a copy of the plan to take into a Stage 3 Complaint, I also wanted the space and time to consider it and to be able to show my husband, who was not there. Also I felt that without an actual copy I would only half remember it and therefore could not speak accurately to my daughter about the material.”
“…I have therefore completed enquiries rather than a thorough investigation and have focused on the areas we agreed when we met. These were: 1. Your request to have a copy of the PowerPoint used by the School of Sexuality in September… I have spoken with the CEO at the School of Sexuality and she is unwilling to give permission for their PowerPoint to be shared. I have pasted below her response and the reasons for their decision. They are aware that I have showed you the slides. If you wish to have ownership of the presentation, you should contact them directly. It is not unreasonable, or unusual, for an organisation – particularly a Charity – to have this stipulation… We would really prefer that you do not share our slides with the parent. You are welcome to say that 'School of Sexuality Education says that it does not share its resources including slides for copyright reasons'. (These slides are our intellectual property so such a procedure is completely normal and reasonable.) We have been happy to share the slides with Hatcham College but hope that this is just for the purposes of clarifying what was covered - though presumably the staff who attended the session can also provide this information and comment on whether anything concerning was said - and we would request that the slides are then deleted and not shared more widely. …”
“the SoSE have chosen to make the material freely available to all the pupils - none of whom have signed non-disclosure agreements and who are free to communicate the details to anyone they like.”
“Yes that would be fantastic thanks so much, and if you could a brief breakdown of what we covered?”
“Apologies, the consent session breakdown is below – Consent & Digital Consent • In this session students explored what ‘consent’ as a concept is, and agreed on an inclusive definition. • A part of the session guided students through the law around sexual consent both online and offline. • Students were given activities to examine how to know if someone is or is not consenting, building on their understanding that everyone has personal boundaries and how it’s our responsibility to seek consent. • The session looked at some scenario based discussion where students were guided through the role of ‘capacity’ and ‘freedom’ in consent…”
“…I’ve just had a call from a parent, Claire Page I think the name was, who was asking about the lesson plan… Were you able to share the plan I sent through via email for the consent lessons at all? Do let me know if there is anything else you need from us to send through to parents. I’m very happy to put more of a detailed lesson plan together if that’s helpful for the parent.”
“…Yes that is a parent of ours who has raised some concerns. [redacted] Please could you send me as much information as you can in terms of what was covered in the KS4 session [redacted].”
“They will not send us any lesson plans. They have their copyright [redacted]. But I am seeking to obtain the PowerPoint that was used on the day. This will be only for your and my reference. We have assured The School of Sexuality that we will not share this with any other party.”
“Please see the message below from [redacted] regarding the slides she sent over for the KS4 Consent Session and also her contact details. … “I’ve attached the slides, however could I request that these are not shared further, and that they are deleted once you’ve used them to clarify anything with the parent?” …”. “I’ve attached the slides, however could I request that these are not shared further, and that they are deleted once you’ve used them to clarify anything with the parent?”
“I understand your position and will not share it. I did show her the slides from my laptop when we met last week.”
“4. I called the SoSE on the13th October 2021 because the School had explained they would not be able to show me the resources used to teach my daughter, because of the SoSE’s position not to grant copyright to the school. They seemed to be saying effectively that the matter was out of their hands. I found this surprising and so wanted to understand SoSE’s decision and ask them to reconsider. I did not think it was unreasonable to call an organisation that was paid to deliver services to my daughter’s school, and which taught my daughter, and ask them what they had taught. …6. During the call I did ask to know what had been taught but I wouldn’t characterise it as “demanding”
“…I am not prepared to release the names of the facilitators. This again is something which you should request directly from the school of sexuality.”
“I found Ms Page to be quite confrontational…I found her views to be very much contrary to the SSE’s way of working, as well as our approach to inclusive education. Ms Page was firm that the suggestion of Heteronormativity was not based in fact, and that our activities were illegal and against the law. Due to her confrontational attitude, I tried not to engage with her views, and at no point did I inform her that I would provide her with a copy of a lesson plan. I contest that the call was in any way “civil” in nature.”
“15. The point that I was making in referring to the paper at §73 of my first statement was that the paper clearly demonstrates the kind of work the SoSE thinks is acceptable in the classroom and the intentions behind it. In this case it included discussion, potentially with children who are as young as 11, on biological sex as being non-binary, as well as having children draw sexually explicit images to process the trauma of being sent such images – and the SoSE seem to have undertaken this in part because they think the notion of childhood innocence is “false” and because they employ “risky practices”
“Yes, this information is commercially sensitive. Our income is reliant on delivering this lesson plan, and our commercial position is reliant on the confidentiality of the materials that we create. Furthermore, it is unclear why the school continues to hold this information, since it was provided exceptionally for the sole purpose of alleviating the parent’s concerns and was provided on the agreement that the information would be deleted immediately. It has been several months since we provided this information, [redacted] a meeting has even been had with the parent she was shown the slides. Therefore, as per the agreement, the lesson plan provided should not still be held by the school, and therefore should not be subject to an FOI. If the school discloses the information this would constitute a breach of confidence, since the information was obtained from us in confidence and on the condition of being immediately deleted and therefore should not still be held by the school. We understand that this constitutes an exemption to FOI under Section 41. We are a charity and so not subject to the same FOI rules as a school. If the FOI request was made to us directly we would not be under the same obligation to disclose. If the school discloses our intellectual property as a result of failing to delete them as per the agreement then we are in a position where commercially sensitive information has been disclosed that we would not have been obligated to disclose. In response to your questions: • We do not want our information to be shared with the parent. We are confident that both the school and our charity have made clear to the parent the content of the workshop. As far as we are aware, the parent has in fact already visited the school and been shown the slides by the Principle [sic] - so we do not believe the parent's request to be in good faith. It is unclear how providing the resource directly to the parent could add to what has already been established. The levels of disruption, irritation, distress and commercial harm are therefore disproportionate given the unclear benefits of the FOI. We therefore believe it would also be possible to refuse the request as vexatious. • No, the lesson plan is not in the public domain. • This information is commercially sensitive, since our income is reliant on delivering this lesson plan, and our commercial position is reliant on the confidentiality of the materials that we create. Finally, given the significant risk that this situation poses to our charity we would appreciate liaising with legal team directly regarding this. As explained, given that this our confidential information and our intellectual property covered by copyright, it is unclear why the school is in a position to disclose of the information which should no longer be held by the school.”
“18…I think it unlikely that showing the contents of one lesson plan to the public at large would be fatal to the charity, especially if the materials were of good quality and suitably protected by the charity’s enforcement of its own copyright for commercial reasons, which really should be a normal part of their occupation in my view, if they want to teach in schools.”
“[1] Please can I receive a copy of the lesson plan and accompanying slides and other written or visual material used for the lesson on Consent that was presented to my daughter last term. … [5] Please will the school inform me of which School of Sexuality Education staff members taught my daughter the lesson on Consent…”
“The information was provided by SoSE under an implied obligation of confidence, as when the SoSE provided it to the College, they confirmed that it should be kept confidential and deleted within a certain period. … At no stage did SoSE permit disclosure to you or generally under FOIA. Indeed, the SoSE have specifically said that they do not want the information to be disclosed under FOIA. As such, to share the materials would also be an unauthorised use of the information and one that would be to the detriment of the confider, the SoSE since, as demonstrated above, SoSE’s commercial interests would be prejudiced by disclosure. Therefore, I believe that the SoSE could bring an action for breach of confidence against the College. I do not consider that the College would have any public interest defence for such a breach of confidence and therefore believe that a claim from the SoSE for breach of confidence would succeed.”
“SoSE presented its materials to the College’s students (and not to the public) during the Consent Lesson, for the sole purpose of delivering the RSE / PSHE Lessons and not otherwise. No hard or soft copies of materials used were provided to students or left with them following the presentation. SoSE did not share records of the Consent Materials and/or Other Materials requested in the Lesson Plans Request with the Trust until the Trust asked SoSE to do so for its Consent Meeting with the Complainant to take place on4 November 2021 . … The Trust does not consider the SoSE’s sharing of its teaching materials (the Consent Materials and Other Materials) with the College’s students in the course of RSE / PSHE Lessons: • to have removed the confidential quality of the relevant materials (since such disclosure was limited to a private invited group of students for a limited purpose only and with no further disclosure or publication or rights granted); and/or • to be relevant to the ongoing obligation of confidence the Trust owes to SoSE, since the delivery to the College students of lessons involving the Consent Materials and/or Other Materials during the Consent Lesson (or any other lesson at the College) would not have and has not resulted in the information being put in the public domain and losing its quality of confidence…not least because the Trust itself did not receive a copy of such materials at this stage.”
“…the Trust…refused to provide the names of the Consent Staff…on the basis that doing so would involve a breach of the data protection laws. … the Trust considers that the information held falls within the exemption under section 40(2) FOIA. This is on the basis that providing information…would involve providing the names of individuals from the SoSE…in the context of activities that they had been undertaking at or for the College, in respect of specific lessons/events/involvement, at specific times. This would clearly involve a disclosure of such individuals’ personal data (individual name, plus connection to SoSE and/or the College and in the context of RSE/PSHE education and their involvement with relevant lessons/presentations). It should be noted that disclosure to the Complainant under FOIA would also involve disclosure to the world at large. … the individuals involved have not consented to the disclosure of their personal data in this manner, the Trust considered that the only potential lawful basis is that the processing is necessary for legitimate interests pursued by the Trust or a third party, in making the requested disclosure under FOIA (including trying to assist the Complainant under FOIA and being transparent about the RSE / PSHE Lessons). … The Trust does not feel that disclosure of any of the requested information about Consent Staff…is necessary for the legitimate interest(s) identified by the Trust. This is because the Complainant has already been provided with a great deal of information about the RSE / PSHE Lessons and the SoSE, including the information sought under the Lesson Plans Request (albeit she was only shown the Consent Slides in person, outside FOIA and in confidence, and has not been provided with a copy under the Request). …Details of the individuals comprising the Consent Staff…involved in delivering the Consent Lesson, would not add to the Complainant’s understanding of the content of those lessons or any of the other issues raised in her complaint… … The Trust notes that disclosure under FOIA is to the world at large and there would be nothing to prevent the Complainant, or indeed anyone else, from any further use, publication or disclosure of the individuals’ personal data. The Trust considers that employees have a reasonable expectation of privacy in their work life and should not, and would not, expect information about them to be disclosed publicly in this manner. The Trust has no evidence that would indicate SoSE, or relevant College/Trust, staff would reasonably expect disclosure of their details to the public on request. … The Trust has not asked any of the relevant individuals if they are willing to consent to disclosure of their personal data. The Trust did not consider it was appropriate or reasonable to approach the individuals in the circumstances, particularly considering the stress or upset it may cause…”
“140. We accept on the basis of this email that the slides were provided to the School in circumstances importing an obligation of confidence. The wording is akin to an express statement that the information is being provided in confidence. Any reasonable person would have realised on the basis of that email that the slides were being given to the School in confidence…”; (b). the Slides / information within them had the ‘necessary quality of confidence’ because “they are a unique product that has been created by SoSE. The slides were not public knowledge or publicly available” (paragraph 140); (c). SoSE would suffer a detriment were the Slides to be disclosed. Had providers been freely disclosing their materials in January 2022, it was unlikely that the Secretary of State for Education would have needed to write to schools in March 2023. The Secretary of State’s letter “strongly suggests that providers were not freely disclosing their materials at the relevant time” (paragraph 143). While there were many freely available resources about ‘consent’, “a ready-made set of slides created by an experienced organisation would be attractive to competitors and to schools” and “would be likely to significantly decrease the appeal of engaging SoSE to deliver this particular lesson on consent” (paragraph 144). Also, “enforcing copyright is slow, expensive and uncertain” (paragraph 144); (d). regarding the public interest defence to an action for breach of confidence, the Tribunal instructed itself that, “we are considering the public interest in disclosure to Ms Page as a member of the public i.e. we must consider the public interest in disclosure to the world” (paragraph 147); (e). the Tribunal found in paragraph 150 that “SoSE were willing to attend a meeting with a parent whose child had attended the session to show them the slides and to talk through the content” and “this offer accords with SoSE’s general practice of offering to run through the sessions with parents”
“162…Looked at as a whole, and taking into account the factors set out above, we find that the public interest in maintaining confidences is not outweighed by the public interest in disclosure of this set of slides to the world.”
“(1). Any person making a request for information to a public authority is entitled— (a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and (b). if that is the case, to have that information communicated to him.”
“1. Processing shall be lawful only if and to the extent that at least one of the following applies: (a) the data subject has given consent to the processing of his or her personal data for one or more specific purposes; …(c) processing is necessary for compliance with a legal obligation to which the controller is subject; (d) processing is necessary in order to protect the vital interests of the data subject or of another natural person; (e) processing is necessary for the performance of a task carried out in the public interest… (f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.”
“(8) In determining for the purposes of this section whether the lawfulness principle in Article 5(1)(a) of the UK GDPR would be contravened by the disclosure of information, Article 6(1) of the UK GDPR (lawfulness) is to be read as if the second sub-paragraph (disapplying the legitimate interests gateway in relation to public authorities) were omitted.”
“3. The basis for the processing referred to in point (c) and (e) of paragraph 1 shall be laid down by domestic law. The purpose of the processing shall be determined in that legal basis or, as regards the processing referred to in point (e) of paragraph 1, shall be necessary for the performance of a task carried out in the public interest…The domestic law shall meet an objective of public interest and be proportionate to the legitimate aim pursued.”
“Where the processing for a purpose other than that for which the personal data have been collected is not based on the data subject's consent…the controller shall, in order to ascertain whether processing for another purpose is compatible with the purpose for which the personal data are initially collected, take into account, inter alia: (a) any link between the purposes for which the personal data have been collected and the purposes of the intended further processing; (b) the context in which the personal data have been collected, in particular regarding the relationship between data subjects and the controller; …(d) the possible consequences of the intended further processing for data subjects…”
“(1). Information is exempt information if— (a) it was obtained by the public authority from any other person (including another public authority), and (b) the disclosure of the information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.”
“The action for breach of confidence must be likely to succeed 69. The final part of the test for engaging section 41 is whether the action for breach of confidence is likely to succeed. This is supported by the statements made by Lord Falconer (the promoter of the legislation), during a debate on the Freedom of Information Bill. 70. "Actionable', means that one can go to court and vindicate a right in confidence in relation to that document or information. It means being able to go to court and win." (Hansard HL (Series 5), Vol.618, col.416) “... the word "actionable" does not mean arguable … It means something that would be upheld by the courts; for example, an action that is taken and won. Plainly, it would not be enough to say, "I have an arguable breach of confidence claim at common law and, therefore, that is enough to prevent disclosure". That is not the position. The word used in the Bill is "actionable" which means that one can take action and win." (Hansard Vol.619, col. 175-176). 71. Section 41 is an absolute exemption, so there is no public interest test to be carried out under FOIA. 72. However, the authority will need to carry out a test to determine whether it would have a public interest defence for the breach of confidence.”
“…I have become aware of an increasing number of cases where parents have had concerns about the materials used to teach their children. Some have been prevented from viewing those curriculum materials because their children’s schools believed they were unable to do so for commercial reasons. The Department is clear that parents should be able to view all curriculum materials. This includes cases where an external agency advises schools that their materials cannot be shared due to restrictions in commercial law, or a school’s contract with the provider prohibits sharing materials beyond the classroom. Parents are not able to veto curriculum content, but it is reasonable for them to ask to see material if it has not already been shared, especially in relation to sensitive topics. …the Department would expect schools to avoid entering into any agreement with an external agency that seeks to prevent them from ensuring parents are properly aware of the materials that are being used to teach their children. Schools should not agree to contractual restrictions on showing parents the content used in RSHE teaching or agree to this being subject to a third party’s right of refusal. There is a strong public interest in parents being able to see the full content of RSHE teaching. Schools must ensure that their statutory duty to have regard to the RSHE guidance is communicated to third party providers, together with the expectation that the default position must always be that the content is shared with parents. We know that some schools will have already entered into contracts with providers that prevent them from sharing materials with parents. Even where this is the case, schools can show resources to parents in person on the school premises without infringing copyright in the resource, so this should not be an obstacle to sharing materials with parents who wish to see them. Having to come to the school is, however, likely to be inconvenient for parents and schools, so should not be a long term arrangement. We would expect schools to take urgent steps to either renegotiate these contracts or find an alternative provider at a suitable time, so that materials can be sent out or made available online to parents. … Curriculum materials may be copyright works owned by those external agencies, and we appreciate that schools will be concerned to avoid infringing an external agency’s intellectual property rights. This is why we hope it is helpful to clarify that we expect schools to adopt a transparent approach, and not work with providers whose copyright issues prevent this…”
“In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to secure such education and teaching in conformity with their own religious and philosophical convictions”
“(1) Where the doing of a particular act is specifically authorised by an Act of Parliament, whenever passed, then, unless the Act provides otherwise, the doing of that act does not infringe copyright.” …(3) Nothing in this section shall be construed as excluding any defence of statutory authority otherwise available under or by virtue of any enactment.”
“to decide whether to withdraw your child you must need to know what is going to be taught in each session (i.e. have the lesson plan), and what materials will be used in the teaching (i.e. have the slides)”
“45. A necessary implication is not the same as a reasonable implication as was pointed out by Lord Hutton in B v DPP [2000] 2 AC at 481. A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context. It distinguishes between what it would have been sensible or reasonable for Parliament to have included or what Parliament would, if it had thought about it, probably have included and what it is clear that the express language of the statute shows that the statute must have included. A necessary implication is a matter of express language and logic not interpretation.”
“the test is whether such an implication is necessary, not whether it would be convenient” (R (Piffs Elm Limited) v Commissioner for Local Administration in England[2023] EWCA Civ 486 at [93]); “courts should be slow to give a statute an effect that is not expressly stated”
“if “a person is obliged by law (an enactment) to provide the applicant — as opposed to the public — with the information requested then it is likely to be “readily accessible” to the applicant unless some feature of the access scheme indicates otherwise”
“The test in my view is objective - the question is were the circumstances such as to import a duty of confidence and, if so, the obligation is not to be avoided simply by not addressing the problem. On the other hand I accept that a factor, and it may be an important factor, is whether the parties did in fact regard themselves as under an obligation to preserve confidence, just as is a proven trade or industry usage in that regard but I do not accept that the test is exclusively subjective as to the parties' intentions.”
“where use of information in breach of intellectual property rights has beneficial as well as adverse consequences, the proposition that only the adverse consequences can be taken into account seems to me to run wholly counter to that scheme.”
“[a]t issue is whether there is a compelling social need to prevent disclosure in order to protect the confidential information; any restriction imposed on the art.10 right by a court must be rational, fair and not arbitrary, and the right must be impaired no more than is necessary.”
“The test of ready accessibility focuses attention in such a context to whether these are ideas that others can readily come up with or not, and if so with what degree of effort or expenditure. The concepts of how novel the idea is, what skill it involves to come up with it and, in some cases, how valuable it is may all be relevant to answering how accessible the information is, but they are not tests in themselves.”
“(f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.”
"… The test of necessity in the conditions means more than desirable but less than indispensable or absolutely necessary: see e.g. Goldsmith International Business School v Information Comr[2014] UKUT 563 (AAC) at [37]. A test of reasonable necessity should be applied: see the Goldsmith International Business School case, para. [38]. This test implies that the council [the data controller in that case] has an appropriate margin of appreciation. The parties agreed that the power had to be exercised proportionately. …"