Wednesday, June 20, 2018

Should I Sign these Petitions?

The short answer to that is "Yep, you most definitely should!"

Here is the e-petition.   Please sign it now!   And then share it wherever you can. It only takes a few seconds and we only have until Thursday 22.00 hours before we print it off and send it to some ptb, though the petition should keep going after that! 

There is an explanation with links for why you should bother here.   Please do share the consultation and/or this blog post widely and get as many others to sign as you can.  NB: The arguments here and below also apply to the local petitions that are doing the rounds.

For a slightly longer answer as to why you should sign it, you might want to understand a little bit more about the petition.

Let's review the situation. The petition says:

On 10th April 2018, the Department for Education (DfE) published draft Guidance for Home Education for LAs and Parents for consultation:

https://consult.education.gov.uk/school-frameworks/home-education-call-for-evidence-and-revised-dfe-a/
These draft Guidance documents were written following significant consultation with Local Authorities and no consultation whatsoever with the home education community, to whom it is presented as a fait accompli.
The subsequent consultation is consequently for little more than show as an intention to implement the content has already been stated.
These Guidance documents seek to encourage Local Authorities to breach the ECHR Article 8 and the GDPR.
They provide no accessible means for a parent to address disproportionate, unreasonable or ultra vires behaviour by their Local Authority, where many of those authorities already act routinely in such ways.
They are oppressive and encourage the use of draconian measures to control and fetter the civil liberties of a minority section of society.
They are divisive and will lead to segregation of communities by treating home educating families as lesser than their peers.
They undermine the rights of children and the duties of their parents.
The petitioners therefore request the DfE to withdraw the draft Guidance documents and the procedure of or results from the related Call for Evidence until:
1. it has put in place an accessible and workable complaints procedure and
2. it has consulted with home educating parents, as it has with Local Authorities, as to what the contents should include.

That really could be self-explanatory, except sometimes it isn't and in fact it has come to our attention that the Department of Education has attempted to dismiss some of the assertions in the petition, for example, issuing a denial that LAs were consulted in advance of the new draft guidance being drawn up
Let's look at the DfE claims. We heard from Stephen Bishop at the DfE who has responsibilities with regard to the drafting of the guidance and the consultation whose communication contains the following assertion:

"The two draft guidance documents do not constitute new policy but rather a restatement of local authorities’ existing powers."

Hmm, OK, that isn't how we see it from this end. First off, if the draft guidance documents really are just a restatement of existing LA powers, why should there be any consultation about them at all? DfE lawyers would surely have advised that such a consultation was unnecessary as per part B of the Guidance on Consultations: "B. Consultations should have a purpose Do not consult for the sake of it. Ask departmental lawyers whether you have a legal duty to consult. "  
Given that we actually are invited, in questions 29 to 45 to comment on the Draft Guidance in what seems like a consultative sort of a way, this in its own right seems to suggest that there ARE changes that constitute new policy in the Draft Guidance, that these DO that matter and therefore SHOULD receive a proper and full consultation, rather than just a few comments at the tail end of the Call for Evidence on other matters. And yes, a pretty cursory glance at the draft guidance will tell you that this is indeed the case: there are very significant differences in interpretation of the law between the current guidance (EHEGLA) and the draft guidance documents and these proposed changes would have a huge impact on the way LAs implement the law and about how HEors experience the impact of the law.

Members of the EHE community have undertaken a close analysis of the differences. They've produced spreadsheets galore comparing the past and present documents and have thrashed out the differences in long but nonetheless productive discussions which reveal, amongst many other examples of differences between past and present guidance, that:

1.  There are significant changes with regard to how a suitable education is defined. At least one paragraph of the new guidance even looks as if it could be used to impose a de facto ban on home education altogether. By way of but one comparison between the two guidances on this point:

What EHELGA says about Article 2 Protocol 1.  

2.2 Article 2 of Protocol 1 of the European Convention on Human Rights states that: "No person shall be denied the right to education. 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 ensure such education and teaching is in conformity with their own religious and philosophical convictions."

From Draft Guidance on the same subject;

9.4 d. the first sentence of ECHR Article 2 of Protocol 1 quoted above confers the fundamental right to an effective education, and relevant case law (16) confers very broad discretion on the state in regulating that law.;”

The above paragraph references at (16) a case from Germany which rules out the right of parents to educate their children in conformity with their own religious and philosophical convictions, and in calling it “relevant case law” it in effect could rule out home education altogether, since local authorities could interpret this to mean that a “suitable education” takes no regard for parental religious or philosophical convictions, and sets any standard they so chose by which to adjudge home education provision.  

If that isn’t a change of policy in guidance, we don’t know what is.

This is all quite aside from the fact that the case referred to is not relevant case law, since that case is German and relied upon other local German law to support it and there is no equivalent in English law.

2. The draft guidance repeatedly encourages LAs to use legislation, ie: 436A Education Act 1996 with regard to HEing families when  current guidance (EHEGLA) at s2.6 states that 436A does not apply when a child is known to be EHE. This is a significant change of emphasis between the two sets of guidance and will result in very different approaches by the LA towards EHEors, since where LAs now at 2.7 of the EHEGLA only have to act if there is an appearance that a suitable education is not being provided, LAs are in new guidance effectively being given duties to assess the provision of all HEors, whether or not there is any suggestion that a suitable education is being provided.

3.  Given the stretching of the powers of LA at 436A in the draft guidance, it could imply a concomitant extension of safeguarding powers as a result of s175 Education Act 2002 which states:

1) A local education authority shall make arrangements for ensuring that the functions conferred on them in their capacity as a local education authority are exercised with a view to safeguarding and promoting the welfare of children.
This again would involve a vast difference in policy interpretation and implementation between the current and draft guidance.

4. The draft guidance encourages the use of data sharing in a way that is not encouraged in EHEGLA and which is highly likely to be in breach of GDPR.  See section 4.4 of Draft Guidance.

There are other significant differences on top of this, but for the moment this should suffice to show that there are substantive and important differences which should require extensive consultation rather than simply a few comments which, given that the DfE say there aren't any policy changes to the guidance, will probably be ignored anyway.
The letter from the DfE then goes on to assert:

“Nonetheless, we are giving everyone involved an opportunity to comment on the way those documents are worded before they are published.”

Given that the DfE have just asserted in the same letter that there aren't any new policies in the new guidance, they must think that there is next to nothing which requires significant change in the draft guidance, so it looks as if the comments which are invited won't be taken terribly seriously by the DfE and therefore don't really constitute a formal consultation process and there will not be any resulting alteration of the guidance by the DfE. Is it a wonder that HEors are concerned that they are not being properly consulted about the guidance in the consultation and are signing the e-petition in droves. (The petition hasn't done badly, given the very short time it has been running by the way!)

The DfE letter then goes on to say:

“Local authorities were not ‘extensively consulted and involved in the drafting’ of the proposed guidance. On the contrary, the two draft guidance documents were drafted from start to finish by DfE officials, drawing only on external legal advice provided by individual lawyers. Indeed, the department expressly did not show the drafts to local authority representative organisations - or any other bodies or persons outside government - before publication on 10 April.”

The quoted phrase “extensively consulted and involved in the drafting” of the proposed guidance it is not what is said in the e-petition, which instead states:

These draft Guidance documents were written following significant consultation with Local Authorities and no consultation whatsoever with the home education community, to whom it is presented as a fait accompli.”

This is different to the phrase that is quoted in the DfE letter which therefore does not offer any sort of critique of the e-petition which does not assert that LAs had contributed directly to the drafting of the guidance but rather that, in the run up to the drafting, the DfE, in the form of Stephen Bishop et al. had had extensive consultations with LAs and LA representatives such as the Association of Elective Home Education Professionals (AEHEP), as evidenced by numerous FOI responses.  It is also clear from these FOI responses, that the views of these bodies are reflected in the writing of the Guidance documents. Therefore the petition wording appears incontestable.

See below, by way of just a few examples of the sort of consultations the petition describes between the DfE and LAs:

DfE Westminster Council, November 2014

"Ministers are agreed that the department should talk at official level to local authorities. SB has had meetings with ADCS policy committee, also talked to 1 LA in the north and visited 2 regional forums of local authorities. SB has come with no commitment about what might change and when it might change, he has come to listen to people's views..."
And: Report for November Meeting Notes from Home Educators Council Minutes.
Minister Nick Gibb:

"The Department for Education officials have met with the policy committee of the Association of Directors of Children’s Services; officers of Darlington Borough Council; the children’s services scrutiny committee of the City of Westminster, and two regional forums of local authority elective home education officers; one for London and the South East and the other for the West Midlands"

In September 2017, Jenny Dodd of the AEHEP stated that the

“Problem with Lord N [Lord Nash] suggesting LA’s stretch the guidance is that this needs to be communicated to EHE community.”

Even further evidence of the degree to which LAs were consulted can be found in the draft guidance itself with numerous references as to what LAs have told the DfE as regards to their problems with the EHELGA, eg:  

6.19 The department is aware that some local authorities have been reluctant to prosecute for non-compliance with a school attendance order, for reasons connected with costs, and the behaviour of some parents who deliberately withhold information about home education provision but are then able to easily satisfy the court that the home education is suitable.”

Or

"A number of problems arise from lacunae or shortcomings in the current legislation which have been drawn to the department’s attention by local authorities and by local children’s safeguarding boards - in correspondence and in meetings both with directors of
children’s services and with forums of local authority officers who deal with elective home education on a day-to-day basis:"
ie: the draft guidance repeatedly refers to LAs telling the DfE about various concerns, which adds further weight to the argument that LAs have been consulting with and lobbying the DfE, which has led to the draft guidance being written on the basis of LA concerns. All in all, it looks as if the petition makes not just a number of good points, but that these points need to be shouted from the rafters if stakeholders, (ie home educators) are to be properly heard in a consultative process with government.
Please sign and keep sharing, and share this explanatory post, just in case anyone is still curious. 

3 comments:

Anonymous said...

I sent a email off to our M>P D Hinds he told me in a meeting he would think very carful about any change in law on home education and often thinks of Peter and what happend to us all the nonsense we had with our LEA Hampshire i let you know what he says i have a meeting with him to if answer is no good iuse your blog to quizz him!

Elsa Wood said...

I also have the similar problem with this, but I asked QandA and they answer me for all my questions

Anonymous said...

I had a reply from our M.P so i have sent a follow up to his email i will put them up on here when he answers again if he is willing to allow me to share the email i have told him to remember us and what he said to me when we met at my house and the church he holds meeting at the church.