[2025] UKUT 308 (AAC)

The Commissioner understands the Appellant’s argument to be that section 405 EA 1996 includes an implied obligation to disclose all sex education teaching materials to a parent, which includes “lesson plans, slides and visual and written resources”. The Commissioner asserts that, at no point, was it put to the School that this was required by section 405. The issue was first raised in proceedings before the First-tier Tribunal. Had the argument been put to the School, it was likely to have responded that section 21 FOIA applied so that the information sought was, on that basis, absolutely exempt from disclosure under FOIA.

According to the Commissioner, the test for determining whether an implication is to be drawn from a statutory provision is whether it is necessary. The Commissioner relies on Lord Hobhouse’s words in R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2002] 3 All ER 1:

“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.”

In R (Black) v Secretary of State for Justice [2017] UKSC 81, Lady Hale said, at [36], that Lord Hobhouse’s words “must be modified to include the purpose, as well as the context, of the legislation”.

The Commissioner submits that a high hurdle must be surmounted in order to establish a necessary implication: “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” NYKK v Mark McClaren [2023] EWCA Civ 1471 at [44].

The Appellant places significant reliance on the views in Bennion’s Statutory Interpretation. However, the passage relied on was expressly disapproved in NYKK:

“45.

Miss Ford relied upon a passage in Bennion…in support of a submission that the test is whether the implication is “proper” and that it need not be necessary: “It is suggested that the question whether an implication should be found within the express words of an enactment depends upon whether it is proper, having regard to the accepted guides to legislative intention, to find the implication; and not whether the implication is ‘necessary’ or ‘obvious’.”

46.

The suggestion that an implication may be made if it is proper, rather than necessary, is erroneous and apt to mislead. The authors appear to base it on a passing remark of Willes J in Chorlton v Lings (1868) LR 4 CP 374, 387; and a number of Commonwealth authorities which have adopted that formulation as expressed in earlier editions. The distinction between what is “proper” and what is “necessary” which the authors appear to be drawing is that what may qualify as “proper” is something which is not “logically necessary”: see p 404. The distinction between what is necessary and what is logically necessary is a narrow one. For my part I would accept that necessary does not mean “logically necessary”, because context and purpose have their part to play as well as logic. But the test is still one of necessity as the statements of principle from the House of Lords, Supreme Court and this court, cited above, make clear. Adopting a test of what is “proper” is unhelpful because the concept is elusive: it offers no guide as to what standard is to be applied; and is apt to mislead if interpreted to mean something different from necessity...”.

The First-tier Tribunal correctly held that section 405 EA 1996 does not impliedly confer on a parent the right to be provided with sex education teaching materials. Such a right would be difficult to reconcile with the express statutory requirement, in section 80B EA 2002, for maintained schools to make available for inspection and, on request, provide a parent with a copy of, a statement setting out their RSE policy. It is unlikely that Parliament, having turned its mind to the provision of information to parents and made express provision for parental access to sex education policies, impliedly legislated for schools to provide all written materials and lesson plans. Has Parliament intended such an outcome, it would have made express provision.

While access to all sex education teaching materials might be desirable or convenient for the exercise of the parental right under section 405 EA 1996, that does not make it necessary. The Commissioner submits that a school retains flexibility (or discretion) to decide what to provide the parent, and this is recognised in the Statutory Guidance: see its reference to “existing mechanisms” in paragraph 44 and the generally non-prescriptive approach taken. It is true that, at paragraph 42, the Guidance provides that parents “should be given every opportunity to understand the purpose and content of Relationships Education and RSE” but that is not a synonym for providing all written teaching materials. The First-tier Tribunal also correctly gave weight to the fact that the Appellant made her request for information after the Session had been delivered, and correctly instructed itself that there is a practical difference between ‘sufficient’ information and all information.

The broadly expressed duty in section 9 EA 1996, regarding education in accordance with parental wishes, cannot be construed so as to require parents to be supplied with all teaching materials on request. And, even if section 405 EA 1996 has the effect contended for, that does not mean that disclosure under FOIA would be necessary to give effect to it. Disclosure under FOIA is to the world at large but it is arguable that, if section 405 operates as the Appellant submits, the duty to provide information could be satisfied by providing teaching materials subject to conditions as to onward use / transmission.

The First-tier Tribunal correctly held that the Appellant’s statutory implication was inconsistent with the existence of other ways, set out in it reasons, by which parents may be provided with sufficient information to enable a meaningful withdrawal decision. In fact, the Tribunal could also have relied on:

the parental right to access a school’s sex education policy statement. The Statutory Guidance says that a sex education policy should “set out the subject content” and include “details of content/scheme of work and when each topic is taught, taking account of the age of all pupils”;

the statutory duty to consult parents before making or revising a statement of sex education policy under EA 2002. The Statutory Guidance says that consultation should include “examples of the resources that they plan to use” (and examples cannot possibly mean all resources).