First Impressions of the Committee Stage of Lord Soley's Bill. 27th April 2018

Lord Soley's Home Education (Duty of Local Authorities) Bill went through Committee Stage in the House of Lords yesterday.  The proceedings as they are recorded in Hansard are here. They may also be viewed on Parliamentary TV here:

It's a complicated business working out who said what in relation to which bit. It seems you to have to read the Bill as it was originally introduced alongside the list of amendments and then need to remember which amendments were passed, but in the end, it is likely to be academic as Lord Agnew, the Parliamentary Under-Secretary of State for the DfE had this to say (key messages in bold):

"We are interested in it [the Bill] and welcome the debate it has engendered in this House and elsewhere, but the position remains that the Government are not formally supporting it. I made a commitment to consult on drafts of revised departmental guidance, ​and that consultation started on 10 April. In answer to the noble Lord, Lord Watson, the guidance looks at specific issues such as the role of safeguarding by local authorities and whether that extends to this area.

The consultation is open until 2 July and we hope for responses from a wide spectrum of families, local authorities and others. This will give us a much firmer basis for considering whether any changes are needed. In the meantime, I shall listen to today’s proceedings with interest and note the point. It is of course open to the noble Lord, Lord Soley, not to progress his Bill further until the Government’s consultation has concluded."


The following are some of the key messages that we imagine that Lord Agnew will have heard:

On exclusions and off-rolling:

From Lord Lucas:

There seems to be evidence that some schools are making it a practice to tip children into home education.​ That is not, in itself, a wrong thing. In the circumstances of an individual child, family and school, home education may be the best alternative. Some children who have been suffering in school will flourish in home education. You just do not know, without going into the details, whether this is malpractice or good practice. In too many places in this country, the alternative to home education is exclusion, and the pathway from exclusion is into desolation. We ought to provide, but do not, a strong system of alternative education for children who are persistently excluded.

Lord Adonis replied:

Does the noble Lord think that, rather than parents being obliged to home educate their children because of the danger of exclusion, a better solution would be to be much more restrictive about exclusions in the first place and not to allow them except in extremis? In that way, we would not have this huge extension of home education that is taking place at the moment, which is a covert form of excluding pupils from school.


Lord Adonis clearly sees the need to take action on the above and proposed meetings with Lords and Academies in order to try to sort the issue of exclusion by making it less easy to do.

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On Suitability of Educational Provision:

Lord Adonis recognised the difficulty of being prescriptive about the suitability of educational provison:

He said:

"it is quite difficult for the state to start making judgments about the philosophical preferences of parents when it comes to home education. The point I seek to make to the Committee is that while there are some forms of home education of which I personally strongly disapprove, I do not believe that is the big social issue facing the country. The major issue is home education that means no education, not home education that means better education. It is about getting at the fundamental problem of home education that means no education and throwing children on to the scrapheap that we have to deal with."

Lord Lucas explains why assessment is such a problem:

"There is not any sensible way to assess this in a light-touch way by some sort of standard assessment. Assessments are designed to evaluate what is happening in school, where there are a lot of children and statistics are in your favour; the oddities even out and you get some sort of pattern emerging that tells you how the school is doing as a whole. Even then, there are problems, as we have with Progress 8 at the moment, where the system means that the outliers have far too much influence on the average. If you draw Progress 8 out as a bell graph, however, you can see where the weight of a school is and can make a reasonable judgment on the quality of education being provided there. You cannot do that when looking at an individual child, not simply and not just by putting them through a SATs test. You need far more information. If a parent gets to a point where they are arguing with a local authority about a school attendance order and getting the independent advice needed to establish where their child is and what they have achieved, that could cost a couple of thousand quid. This is an immense resource to apply just to check where a child is. It is entirely pointless and destructive to emphasise assessment carried out by those sorts of means. "

Lord Addington also stressed the problems of anyone assessing for ability and aptitude, particularly in relation to special needs.

Lord Lucas said that the "supervised instruction" should not be included in the Bill because it is not how many HE children learn.


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On how funding could be managed:

Lord Lucas:

"I urge the Government to consider the idea that a budget should be given to local authorities to provide educational assistance to home-educated children. The Government are saving so much by these children coming out of school: £5,000 per year per child. The Government should not pocket the whole of that. There is no reason to. The Government should recognise that they have a continuing duty actively to support these children.

Having that fund and local authorities having that duty would produce a supportive attitude and a real reason for parents to engage with the local authority. It means that, rather than being hidden from sight, the vast majority of these children will be seen because they will be engaging in an activity sponsored by the local authority. They will be seen by independent professionals in doing that. There will be very good visibility and the whole problem of how we know that these children are being properly educated becomes easy to solve. It is solved as a side effect of educating them. That surely must be the best way to approach this. Supportive means actively supporting their education, not just directing what it should be.

There is a wide range of good practice out there that we could borrow from and, with good funding, produce something that results in a very large proportion of home-educating parents actively wishing to register. Most of them are not state phobic. Most of them just think the state has done a very bad job for them, and they do not trust some of the individuals involved. If we get to a position where the state is providing a range of helpful services, and there is a decent budget behind that, we would solve most of the problems covered in the Bill."

Baroness Morgan did her best to put the kibosh on that idea however.

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On an HE Register: 

Most Lords think the idea of a register a good one though Lucas recognises that:

"We should not just pick on home education—or, rather, those parents who choose to declare themselves at home educators—because the people who will register are probably not the ones who are causing us trouble. The ones who might cause us trouble are the ones who are not registered, or the ones that schools have chosen to abandon and their parents are really not capable of picking up. I do not think registration just for home education answers the case. I hope the Minister, in all that he is thinking through, when he comes to registration will look at the wider question of how local authorities are supposed to have proper information on which children they are supposed to be paying attention to."


UPDATE:  On the matter of registration, just before 11.45 in the Committee Stage of his Bill, Lord Soley said:

"I am of the view that it would be better if we had a system where, when a child becomes of school age, they have to be registered at a school of some type.... It is a matter for thought and discussion in government as to whether we consider that further down the line. It is part of the discussion with government."

Given that Lord Soley claims this is part of a discussion with government, it seems worth the effort to try to work out what he actually means here. What would registering every school age child at school actually involve?

Would every family have to register themselves and if so, how would this be policed to make sure everyone had done it?

Given the difficulty of policing a parental registration scheme, the plan to register all children must presumably therefore involve local authorities finding the location of every child in the land in a massive data sharing exercise, presumably cross referencing health and benefits records, and the LA then placing each child on a register of a school.

However this way of going about things would almost inevitably result in a muddle of epic proportions as all those parents who didn't want their child registered at their local primary for one reason or another would have to deregister in a flurry.

However it was implemented, such a scheme would result in schooling being the norm, and, assuming that home education remained a legal option, would make home education the anomaly.  This, on the face of it, would subvert the essence of parental responsibilities encapsulated in s7 Education Act 1996 and make the state the de facto parent, since the state would be determining where a child will be educated without the input of the family. The spirit of the state taking over parental responsibilities would continue apace.

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On Radicalisation and Illegal Schools:

There was a general consensus that the Bill could not cope with dealing with these matters but that they did need to be dealt with by government.

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Links to Legislation, Guidance and Consultations that are relevant to the EHE Consultation and Soley's Bill

Current Consultations and Related Briefings: 

* The Home Education Consultation

* The Casey Review on Integration and Opportunity.

* The Consultation on the Casey Review

* The Consultation on School Exclusions

* Falling through the Gaps in Education Nov 2017 (A Briefing)

* Special Needs and Disability Consultation

* The Labour Party Consultation on Education Policy

* Government Consultations on Principles of Conduct

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Human Rights:

Equality before the Law:


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Lord Soley's Bill:

* Lord Soley's  Home Education (Duty of Local Authorities) Bill 2018

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Primary Legislation and Current Guidance re Home Education:

*  Lord Adonis on the Fourfold Foundation of the Right to Education

* Suitable education: Section 7 Education Act 1996.

* Duties of the Secretary of State to promote education: s10 Education Act 1996

* Elective Home Education Guidance for LAs

* EOTAS Legislation: Section 19 Education Act 1996

* Education Supervision Orders  s.36 Children Act 1989

* Education Supervision Orders explained.

* School Attendance Orders: Section 437 Education Act 1996. 

* Duty to identify children missing education: Section 436A Education and Inspections Act 2006

* Guidance on Children Missing Education 2016

* The Donaldson Judgment

* The Tweedie Case 1963

* Guidance for LAs on Funding HE

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Definition of Schools, School Standards and Pupil Registration Regulations:


* Definition of Schools:  Section 4 Education Act 1996

* Definition of Schools:  Section 14 Education Act 1996

* Pupil Registration Regulations 2006

* Guidance on Pupil Registration Regulations 2016

* School Inspection Handbook (Ofsted Guide for School Inspection) S8 Education Act 2005

* Independent School Standards Regulations (suitable education in Independent Schools)

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Safeguarding: 

* Local Authority Duty to Investigate abuse: Section 47 Children Act 1989

* LA Duties re Preventing people being drawn in to Terrorism: Section 26 Counter Terrorism and Security Act

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Data Protection:


* Principles of the General Data Protection Act 2018, Article 5 + 

* Information Commissioner's site on General Data Protection

* General Data Protection Regulation - How it applies in UK and Europe.

* Local Authority Guidance on General Data Protection (from May 2018)

* The Supreme Court Judgement about Data Sharing in the Named Person Scheme.

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Comment on Education Law:

*Lord Adonis on the Fourfold Foundation trumping the Right to an Education. 2006

*Lord Adonis on the Anomaly of the State not Prescribing a form of Education. 2010.

*Ian Dowty's View on Lancashire LAs HE Protocol and Procedures. 

Who is Responsible for Determining the Nature of a Suitable Education? The Argument in 2007.

From Lord Adonis, (the Schools Minister), we hear that:

"The state does not currently prescribe what form of education parents should provide, whilst all maintained and independent school provision is prescribed in legislation and subject to inspection. This anomaly is at odds with Every Child Matters reforms, supported by the Children Act 2004, which set out the Government's aim to improve educational outcomes for all children, regardless of where they are educated, and to narrow the gap between those who are doing well and those who are not."

Ok, so here goes! Let us go down that potentially rocky road which deals with the issue of who is responsible for what, shall we, Lord Adonis?

I would argue that in the act of determining what kind of education can take place, and in the act of delegating the responsibility to provide such an education to our children, the state would ultimately be entirely responsible for the education of our children. How could it be otherwise? If something goes horribly wrong with the education of a child when they are being educated as the state prescribes and delegates, then who is ultimately responsible for this failure?

The answer seems clear. It is the state who must answer the case.

So Lord Adonis, if you make us, we will do exactly what you say. We will make our children follow your educational prescriptions, but it will fail a significant proportion of them (just as it does in schools). Indeed, I can very confidently predict that it will fail at least one of my children SO badly that I will come after you to prove that it is your responsibility that his education has not worked for him. You may try to screw us on the basis of provision, but when we are forced to do your bidding, it seems almost impossible to see how you won't escape culpability when we screw you for responsibility for an unsuitable form and content of education.

That is not an empty threat. We will do it if we have to.

Lord Adonis on the Fourfold Foundation

From Andrew Adonis
Parliamentary Under Secretary of State for Schools

Lord Judd
House of Lords
London
SW1A OPW

13 October 2006

Since Committee stage I have given a great deal of consideration to your amendment to introduce a simple statutory 'right to education' at the outset of the Education and Inspections Bill.

Let me say that I was strongly attracted to this idea in principle. I understand the potential declaratory value of such a statement; and since there is nothing more central to the society we wish to create than excellent education for every young person, it seemed to me a right and valuable thing to do. However, my officials and lawyers have persuaded Alan Johnson and myself that the declaratory value would be outweighed by the legal uncertainty that such an apparently simple change would involve, and that it might perversely have the effect of jeopardising or qualifying the well-established rights to education which are now very well embedded in case law. They are also concerned at the potential effect such an amendment might have in extending rights to minority forms of schooling which do not conform to the legal framework required to safeguard the national curriculum, fair access and community.

Let me set out the arguments - and case law - in the way that it has been presented to me. As I have already mentioned, the right to education is guaranteed by Article 2 of the First Protocol to the ECHR and, for children, by Article 28 of the UN Convention on the Rights of the Child. The right to education provided by the ECHR is already part of national law by virtue of the Human Rights Act 1998, which sets out in detail the procedure for making a claim that a right has been infringed and also sets out the remedies available for a breach. To legislate along the same lines in education legislation would undermine the regime set out in the Human Rights Act 1998, as it would not be clear which should prevail. Moreover, a free standing right with provision neither for the procedure for claiming a breach nor for remedies would not be as effective as the Human Rights Act 1998 right.

I have previously mentioned the "fourfold foundation" and how such foundation fulfils right to education.

The first element is the duty of parents under section 7 of the Education Act 1996 to cause their children to receive efficient and suitable full time education either by regular attendance at school or otherwise.

The second element is the Secretary of State's duty under Section 10 of the Education Act 1996 to promote the education of the people of England and Wales;

The third is that LEAs are required by section 13 of that Act to secure that efficient education is available to meet the needs of the population of the area;

and The fourth is the maintained schools themselves: each such school is under direction of its governing body who must conduct the school with a view to promoting high standards of educational achievement at their school.

I am advised that this is more effective in securing the right than would be a free-standing right to education in English law. Not only is it flexible enough to allow for various different arrangements for education (for example, education provided by LEAs, by the independent or at home, but it also places clear and positive duties on the various parties (parents, local education authorities, Secretary of State and governing bodies) which are much more easily enforceable.

The effectiveness of the fourfold foundation was set out by Lord Bingham in the Ali case (Ali v Lord Grey School [2006] UKHL 14) when he said:

"This fourfold foundation has endured over long period because it has, I think, certain inherent strengths.

First, it recognises that the party with the keenest personal interest in securing the best available education for child ordinarily is, or ought to be, the parent of the child. Depending on age, maturity and family background, the child mayor not share that interest. But the parent has statutory duty.

Secondly, the regime recognises that for any child attending school it is that school through which the education provided by the state is in practice delivered. The relationship between school and pupil is close and hence the restrictions on its interruption or termination. It is resembling, but for the want of consideration, contractual relationship.

But, thirdly, the safety net or longstop to ensure that the education is not neglected of those who for any reason (whether "illness, exclusion from school or otherwise") are not being educated at school in the ordinary way. It is plainly intended that every child of compulsory school age should receive appropriate education in one way if not another, and that responsibility rests in the last resort with the LEA.

In a sense, therefore, the fourfold foundation goes beyond what a free-standing right to an education would provide, as it takes into account the different and complementary roles of parents, local authorities, the Secretary of State and governing bodies in the education of children.

As well as being less effective than the current provisions (and potentially weakening them), legislating for a right to education for children in England and Wales could also have other undesirable implications.

The Courts, if tested, will assume that Parliament did not legislate in vain and that a new, positive right to education is meant to be a change in the law. They may, therefore, seek to import something more into the law than is currently provided. This has a number of ramifications.

First, the ECHR "right to education" (Article 2 Protocol 1 ECHR), as given effect in national law by virtue of the Human Rights Act 1998, is currently phrased negatively ("no one shall be denied the right to education"). The fact that the right is phrased negatively has influenced the way in which the Courts have construed the right. It has been held that the negative formulation does not require that Member States establish at their expense, or subsidise, education of a particular type or at any particular level, but rather implies for those under the jurisdiction of a Member State the right to "avail themselves of the means of instruction existing at a given time. Its primary objective has, therefore, been held to be to guarantee a right of equal access to the existing educational facilities. A positive right, along the lines of that envisaged by the amendment which you tabled at Committee Stage, would I am advised be likely to be construed differently by the Courts. It might be interpreted as imposing an obligation on local authorities to ensure that children could receive education of a particular type or standard which the authorities were unable to provide (or which they considered undesirable to provide). Taking, for example, the Belgian Linguistics case itself, the Court held that the right to education, as phrased negatively, did not give rise to a right to be taught in the language of the child's (or their parent's) choice, nor was there a right of access to a particular school of choice.

Logically, therefore, a positive right might be held to require the State to make provision for teaching in, or schools for, languages other than English. Furthermore, a provision along the lines suggested in your amendment would not make clear whether the right was being conferred on the parent or the child. Conceivably, conflicts could arise where the parent wanted to educate the child at home, or at an independent school and the child had a legally enforceable right to be educated at a maintained school. In the light of these issues, I have also considered whether we could legislate in the Bill to provide that no person/child of school age can be denied the right to education. However since this is already provided by the Human Rights Act 1998 ("no person shall be denied the right. .. ") to do so would, in effect, be replicating a provision of primary legislation in another provision of primary legislation, which would normally require a repeal of the earlier legislation.

You will appreciate the undesirability of seeking to amend the Human Rights Act and the rights which it gives effect to: indeed, it could not be amended without the agreement of the European member states. If both rights remained in place, not only would there be questions as to which right should prevail (the wider Human Rights Act right or the narrower education law right), but there would be a disparity between the regimes for claims and remedies, as mentioned above.

You rightly pointed out in Committee that Scotland have legislated for a statutory right in favour of every child to have a school education. As far as we know, this right has not actually been invoked yet: no one has relied on section 1 of the Standards in Scotland's Schools Act 2000 ("the Act"), so it has not yet been tested by the Courts. In other words, it has not been relied upon by parents or children wishing to advance their rights. As regards the risks of changing the meaning of the existing right to education highlighted above, the Scottish Executive took the view that the declaratory benefits were worth the risk of legal challenge this is not a view that, on serious reflection we share.