Lord Soley’s Home Education Bill

Fiona Nicholson
January 2018

There are three things I want to cover in relation to Lord Soley’s Home Education Bill which proposes compulsory registration and monitoring.

The first is the progress of the bill in parliament.

The second is the announcement by the Department for Education about new guidance on home education, explaining to local authorities what powers are available. 

The third is what we have recently discovered about how certain local authorities are helping and encouraging Lord Soley.

In a follow up article I also want to look at media reports mentioning home education, what Ofsted, parliamentarians, the Children’s Commissioner, local authorities etc  have been saying about safeguarding children out of school and what impact this might have either on Lord Soley’s bill OR on the Government’s proposed update to the home education guidance.

Progress of the Bill

Last summer I posted here about Lord Soley’s private members bill to register and monitor home educated children. I said that after second reading, the bill might go on to committee stage, and indeed we now have confirmation that this will take place, most likely in early March 2018. We will probably only find out about the precise date a week or so in advance, and the best way to track timings and amendments is to register for email updates on the bill page here https://subscriptions.parliament.uk/service/subscribe.html?code=UKParliament_Bill_2000

Calling something “committee stage” is somewhat misleading because in the House of Lords there isn’t a separate committee.  What happens is that any member of the Lords who turns up on the appointed committee day (always a sparsely attended Friday for this type of bill) is deemed to be a member of the committee. All present then go through the bill line by line deciding whether they agree with what it says or whether it should be changed. You can watch this live on parliament TV or read the transcript online within a few hours of the debate.

There is a special process for this line by line scrutiny. The way it happens is that peers put forward – or “table” – amendments in advance of the committee day, proposing changes to the bill and these form the subject of discussion on the day. The outcome might be that the bill is changed to reflect the amendment, if the person in charge of the bill accepts the proposal. If the person in charge of the bill doesn’t accept the proposed change then technically it could go to a vote but in practice this is not generally what happens with private members bills in the Lords, it is more a case of the person in charge of the bill gauging how much support there is for the change and how strongly everyone in the chamber feels about it.

We know from the debate at second reading that nearly all the peers who turned up – with the notable exception of Lord Lucas – were in favour of increased regulation and monitoring of home education, and we can predict that this is likely to be replicated in the next debate.  Having said that though, other topics also kept creeping in during the last debate, such as special needs, offrolling and illegal exclusion (where schools make pupils so unwelcome that parents end up taking them out for home education) and also illegal unregistered schools. It is worth noting in this context that there have been far more parliamentary questions about these subjects than there have been about home education, which suggests that home education keeps getting dragged in where the concern is really about something else.

By the end of the committee debate it is usually possible to tell whether the peer in charge intends to carry on with the bill or let it drop. Factors which may influence this are whether peers become more motivated to switch focus to the associated topics I have mentioned above such as offrolling and unregistered schools, and also the fact that the Government has already said it plans to take its own action on home education in due course, so Lord Soley’s bill could now be seen as redundant.

However, if Lord Soley is minded to keep going with his bill in the hope of influencing the government and/or of remaining a rallying point for those in favour of increased regulation and monitoring, then there will be two further stages of the bill in the House of Lords which might or might not be fitted in before the summer break.  After the bill  has completed all the stages in the Lords it would then have to go through the same cycle in the House of Commons, and as I indicated here,

At this point I need to say that there is an unusual feature of this current parliament, which is that instead of the parliamentary session lasting one year and all private members bills falling at the end of the year, the session we are having at the moment will go on for two years. Looking at this from one angle, it gives Lord Soley more parliamentary time to go through the necessary stages, with all the readings and committee stage and so on in the House of Commons. But from another angle, the reason why the Goverment said this would be a two year session is because of being so consumed by all the demands of Brexit, meaning that they would be very restricted in terms of any other legislation or activity. This I believe is why the Government has recently said that there will be no change to the law on independent schools for two years, not because they intend to leap in at the end of two years, but because they are not thinking beyond two years. (NB the parliamentary session is different from the parliamentary term. The parliamentary term is the period from one General Election to the next, whereas the parliamentary session can be understood as the period between one Queen’s Speech – setting out the legislative programme – and the next.)

New Home Education Guidance

The second area I want to cover is the announcement by the Department for Education about new guidance on home education, explaining to local authorities what powers are available. This happened at the end of the second reading debate.

One way of looking at this is that Lord Soley’s bill pushed the Department for Education into making a statement about new guidelines. This seems to me the most likely scenario, although an alternative view is that the Government was itching to do something about home education and welcomed Lord Soley’s bill as a pretext.

In respect of these new guidelines, the Minister said that local authorities need to be able to act, but he also added that the Government thinks local authorities “already have the tools for the job.” The Minister has said is that there will be a public consultation which means that a draft version of the guidance will be published and the Government will ask for comments and in due course after the consultation closes the government will publish its official response to the consultation. Beyond that, we really have no idea how long it might take before the new guidance is officially confirmed.

We know from freedom of information requests (see below) that Hampshire LA is positioning itself to be involved in early drafting stages of the guidance, although there is no indication at present that the Department for Education favours going down this route.

I must also stress that any type of guidance cannot legitimately go further than the law. What this means in practice is that since there is no law compelling registration then guidance alone cannot bring this into being. In addition, guidance may be statutory or non-statutory.

Some sections of the 1996 Education Act have enabling clauses which allow the Secretary of State to issue statutory guidance at some future date. The enabling clause will say something like ““In exercising their functions under this section a local education authority must have regard to any guidance given from time to time by the Secretary of State.” There is nothing about guidance on home education. The presence or absence of an enabling clause making provision for statutory guidance is the only definitive test; there is no change to the legal status for example if guidelines or advice start being called “guidance” as has happened with the re-named School Attendance guidance which remains non-statutory, ie something cannot become statutory and impose new legal duties simply by the government choosing to refer to it as “guidance”. The School Attendance guidance is a useful example, since on page 3 the Government specifically notes that it is non-statutory guidance.

If guidance is statutory it means public bodies MUST have regard to it when carrying out their duties. Non-statutory guidance (sometimes but not always referred to as government or departmental “advice”) has a lower status in law and the government will tend to phrase it as designed to “help” public bodies, although the government certainly intends for it to be followed, not just ignored. Perhaps even more important for home educators though is the fact that non-statutory guidance cannot serve the same function for the Government as statutory guidance in terms of carving out a whole new area of Government policy, because there is no provision in law for this to happen. Hence in assessing the impact of any possible future guidance on home education we must remain mindful of the legal limitations of “guidance”, despite how it might be talked up in the media.

Local Authorities Helping Lord Soley Behind The Scenes

We have recently discovered how some local authorities are helping Lord Soley.  In his speech at second reading on Friday November 24th 2017, Lord Soley said “two of the councils that have been most helpful to me on this are Hampshire and Kent.” I flagged this up on my blog and as a result, people put in some freedom of information requests. The main local authority person liaising with Lord Soley is Dave Harvey who is Chair of AEHEP.  Dave Harvey also consults with the AEHEP committee which consists of Jenny Dodd Staffordshire, Kevin Grant Bromley, Fiona Lowery Doncaster, Frances Molloy Lancashire, Viv Trundell Buckinghamshire, Tony Waller Somerset and Venetta Buchanan Sheffield.

Lord Soley attended a meeting of the AEHEP committee on October 11th 2017. Stephen Bishop from the Department for Education and Daniel Monk from Birkbeck were also invited. Lord Soley held a meeting in Westminster on October 17th which was attended by members of the AEHEP committee; Kent became involved separately after sending Lord Soley a supportive email. There is to be another meeting on January 23rd 2018 and members of the AEHEP committee were particularly keen for Daniel Monk to attend. Daniel Monk provided a commentary on the bill to assist Lord Soley at second reading.

Lord Soley met with Lord Nash, the Minister responsible for home education, as did 5 members of the Association of Directors of Children’s Services including Hampshire. The message from Lord Nash seems to have been for local authorities to stretch the guidelines as the goverment was not minded to change the law. However, between first and second reading of Lord Soley’s bill, Lord Nash retired from his ministerial post and was replaced by Sir Theo Agnew which appears to  have been a bit of a setback for Lord Soley, as nobody quite knew what line the new minister would take until it was revealed at second reading that the minister favoured issuing updated guidance as discussed above.

I have heard that Lord Soley is having a meeting with up to 60 home educators on January 30th. Invitations appear to have been sent to those people who emailed Lord Soley directly, and will apparently be decided on a first come first served basis for responding.

Summing Up: A Personal View

It seems to me that the wind has been taken out of Lord Soley’s sails by the new minister saying the government will issue updated guidance, although Lord Soley may decide that there is some benefit in continuing publicity for greater regulation of home education.

Meanwhile, any new government guidance can only have the status of “non-statutory” guidance, which means it cannot extend the law for example by introducing compulsory registration. I have not seen any evidence that the government is in any great hurry with this updated guidance.

All the while, many other issues keep getting mixed up with home education such as illegal schools, offrolling, and lack of provision for children with special needs, and even when the headlines are about home education or “homeschooling” when you look at it more closely or read the whole report, it often turns out to be one of those topics and not home education itself.

Through freedom of information requests we have gained a valuable insight into Lord Soley’s thought processes at this early stage. The FOIs have also shone a spotlight on the activities of a vocal minority of local authorities who appear to be claiming to speak on everyone’s behalf, in some cases while trying to evade scrutiny from what they refer to as “the EHE lobby”,  and again this is intelligence which we do not usually obtain until after the event.

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