A letter from Baroness Smith to Baroness Barran emphasises why understanding the nuances behind a minister’s comments on a matter is important
What’s been said?
It’s a long time now since last September when members of the House of Lords returned from the summer recess to be faced with an extra-long Committee Stage debate on the misleadingly named Children’s Wellbeing and Schools Bill. It is over a year since this problematic piece of legislation was introduced in the Commons, with most of the unexpected delays having occurred in the Lords. Even so, back in September no-one expected that the Bill would only start its Report Stage in January and have its Third Reading in February.
In preparation for the Bill’s expected return to the House at the start of October, the Minister for Skills, Baroness Smith of Malvern, had attended to dozens of letters which she had promised to write to fellow Peers during the Committee Stage debates.
Amongst this batch of correspondence sent over a two week period were several items which have relevance for home educators; We focus below on just one of these, addressed to Baroness Barran, the Conservative’s lead on the Bill in the Lords. Filed in the Library as Deposited paper DEP2025-0673, its long title on Parliament’s website reads:
“Letter dated 13/10/2025 from Baroness Smith of Malvern to Baroness Barran regarding the Children’s Wellbeing and Schools Bill committee stage debate (ninth day): provisions relating to the information that local authorities will be able to record on their Children Not in School (CNIS) registers.”
The ninth day of Committee was 2 September. It was a long day, and the sitting was divided into two parts. It is helpful to consider portions of this debate, as they clarify the order of Smith’s statements in the letter and give more context for them.
The minister had begun her response to the previous group of amendments debated in Part 1 shortly before 1:30pm [transcript | video], and part way through Barran asked [transcript | video]:
“Very briefly, in new Section 436C(3) local authorities already have the power in legislation to include, ‘any other information the local authority considers appropriate.’ My Amendment 260 limits the power of the Secretary of State to expand it in any way that the Secretary of State sees appropriate.”
To this Smith responded, “I will come back to the noble Baroness about whether that provides the flexibility I am arguing potentially needs to be in the Bill.” This was another way of saying that she would write to Barran to explain why limiting the power of the Secretary of State [SoS] was considered by the Department for Education to be a bad idea. It was this commitment Smith was keeping to in her letter of 13 October.
Smith continued:
“The point I was going to come on to, which I think is important, is that I must stress that parents are under no obligation to provide any further information, even if local authorities ask for it. I think there has been concern by some parents about the extent to which they will be expected to provide that information. That is not the case; it is, as several noble Lords have rightly argued, simply about how we can ensure that these registers are effective and useful while being as unburdensome as possible.” [Emphasis added here and below]
This may seem encouraging on an initial reading, but to understand what she was getting at we should also consider aspects of Part 2 of that day’s debate. When responding to a subsequent group of amendments, the Minister referred to the above exchange [transcript | video]:
“Just to reiterate, as I did on the last group, parents need to provide only certain limited information about their child: their name, date of birth, address and how they are educated. All further information which the Secretary of State may prescribe for inclusion in the registers is voluntary for parents to provide.”
Does this statement, which could be cited in any future legal action, really mean what some people might take it to mean? As we shall see, it would be wrong to assume that “how they are educated” means just a brief descriptor such as “electively home educated” or “at two or more non-school settings,” though that is exactly how a casual listener may have understood the Minister’s assertion.
When she next rose to her feet, Smith did allude to what she considered “basic information” about “how they are educated” [transcript | video].
“However, for the basic information, such as where the child is being educated and by whom, it is essential that there is a level of consistency in how this is submitted, collected and maintained. Parents of home-educated children in almost all other western countries must, as a minimum, provide details for a register. Children in England and Wales deserve the same level of assurance.”
The places where a child is being educated and the names of every person who shares in that endeavour is certainly not required in “almost all other western countries,” but adding this emphasis served to portray Britain as behind the curve when it comes to child protection.
Those unfamiliar with Parliamentary terminology may find themselves rather confused by these seemingly conflicting statements. So exactly what did the Minister mean by “how they are educated” in the context in which she spoke those words?
Why does it matter?
To answer this, it should be recognised that the letter cited above is not addressing the information to be provided by a child’s parents, but that which the SoS might “prescribe[d] for local authorities to include on registers, where they already have the information or are reasonably able to obtain it.” These are those areas of data about a child, potentially therefore your child, in the new section 436C(2)(a)-(l) to be added to the 1966 Education Act. (This is now found in Clause 40 of the post Lords Report Stage edition of the Bill (page 70).) It should also be noted that the information listed in new section 436(C) has not been reduced by any of the Government amendments agreed to at Report stage.
The reasoning in this letter about the information the SoS can demand that LAs place on the register also clarifies why the DfE wish to know “where the child is being educated and by whom.”
To understand their approach, we need to turn to the new sub-section, 436C(2)(m) – a classic Henry VIII power:
“any other information about the child’s characteristics, circumstances, needs or interactions with a local authority or educational institutions that the Secretary of State considers, or the Welsh Ministers consider (as the case may be), should be included in the register for the purposes of promoting or safeguarding the education or welfare of children.”
We should also consider Smith’s words in the third paragraph of her letter to Barran:
“This provision is deliberately designed to be responsive and help future-proof the CNIS registers… These examples provide a clear demonstration of the evolving nature of the information that may be relevant to understanding and supporting this cohort of children effectively. “
Decoding her language is not hard. What the Minister is arguing for is that the DfE needs flexibility to respond to the changing landscape amongst home educators. No-one will dispute that we live at a time of rapid social change, so the Government’s claim that they need to be able to make rapid adjustments to legislation is unsurprising. But whilst that may be so in this instance, it may not be the whole reason the DfE want to “future-proof the CNIS registers.” There is a hint of a different purpose in the second sentence quoted above. What exactly does the Minister mean by “understanding… this cohort of children?”
As we reported twelve months ago, then Minister, Stephen Morgan, had rejected amendments intended to limit the amount of information required from parents for the registers during the Commons Committee Stage. He was very clear about the Department’s desire to know everything about home educated children:
“Information on the amount of time that a child receives education from their parents, combined with information on where the child receives education other than with their parent, is a crucial part of building the picture of home-educated children’s circumstances. Amendment 62 would mean that that picture could not be built.”
Later in the same response, Morgan turned his attention to “out-of-school education providers,” referred to in the Bill as Independent Educational Institutions (IEI). He was extremely clear:
“Six hours per week at a provider could represent a large proportion of a child’s learning, especially for children with additional needs that limit their ability to engage with teaching for prolonged periods…
There is too much potential for unregistered independent schools to exploit this to avoid detection.“
This last comment appears to be a further recognition of Ofsted’s longstanding campaign to be able to reduce the numbers of hours per week provided to a child at what the DfE describe as an unregistered setting before they are considered to be providing them with a “full time education.” Schools are required to provide a minimum of thirty-two and a half hours to a pupil in order for that education to be considered “full time,” but for unregistered providers eighteen or more hours per week provided to any single child brings them into that bracket. This is why many of these settings limit themselves to seventeen and a half hours of provision for each child.
In its Annual Report 2021–22 (page 53), Ofsted described this practice thus:
“However, many of these institutions operate without oversight because they do not meet the current rigid definition of a school. They remain on the cusp of the law by exploiting loopholes.“
Morgan’s phraseology may not be as direct as Amanda Spielman’s (she was Ofsted’s Chief Inspector in 2022,) but it amounts to the same thing. On p55 of her next Annual Report, Spielman lamented:
“The Schools Bill was intended to close loopholes in the registration system and to strengthen Ofsted’s powers to investigate unregistered schools. However, it was unfortunately dropped in December 2022. The weaknesses in the legal framework that were publicised during debates on the Bill are now common knowledge. These weaknesses continue to hamper our efforts to investigate unregistered schools and prosecute offenders.”
There can be little doubt that the DfE has taken on board the desire to retain flexibility in this and who knows what other areas. Imagine if the police could issue you with a fine for driving at 28 mph in a 30 zone on the grounds that you were “driving on the cusp of the speed limit.” If Ofsted, supported by successive Ministers, want flexibility to treat those who are acting lawfully as if they are law-breakers on this matter, in what other areas does the DfE wish to adjust legal thresholds without the full Parliamentary scrutiny of putting clear proposals on the face of a Bill?
When these two matters are considered together, it should be clear that despite the Minister’s assurances in her letter to Barran and in the 28 January debate about future adjustments to CNiS provisions being restrained by being subject to “the affirmative procedure” for Statutory Instruments, her words do not guarantee the same level of engagement from Members of Parliament as primary legislation would. (Further details available from the Institute for Government’s website.) Generally speaking, ministerial statements often mask their Department’s real objectives.
In that respect it is important to note Keir Starmer’s recent speech in Hastings [transcript | video]. Out of nowhere he attacked home educating parents, bringing old accusations out of the DfE’s cupboard:
“It means tougher regulation of home schooling…
Because schools are so important for integration…
And so we need a higher bar for people who want to opt-out of that responsibility.”
This is not the place to unpack the foundations of his totalitarian rhetoric but simply to note that in response to complaints from concerned citizens, the DfE has been sending out replies not suggesting further legislation planned for the future but referring to the powers that will be available to them once this Bill receives Royal Assent! This will not surprise those who heeded Lord Wei’s words during the Bill’s Second Reading on 1 May last year.
“I am informed by a reliable source that the team in charge of home education policy at the Department for Education has overseen counter-extremism and Prevent delivery.”
What can I do?
Read the letter from Smith to Barran. The first thing is to recognise that generally, ministerial statements should not be taken at face value. We queried earlier whether Smith’s “and how they are educated,” could be answered satisfactorily in just a few words. As explained, the level of detail being sought in the first instance, and the almost unfettered ability to increase it if deemed insufficient demonstrates that only a significant amount of detail about a HE child’s educational provision will actually suffice.
Following the acceptance of the Minster’s other Report Stage amendments, that information will now in most cases include a home visit to ‘consider’ the environment in which you are educating your child. Consent for such visits cannot be freely given however, because any refusal “must” be taken into account by the LA, which introduces a level of coercion into the request. Therefore,whilst the Department’s recent amendments come with a whisper of generosity, they resonate with a roar of authority, the justification for this being to enable the State to assemble a comprehensive “picture of home-educated children’s circumstances.”
Whilst such a picture is much easier to construct for those children who are on a school roll, the State is seeking to fill in the gaps by introducing the Consistent Identifier. This will enable data about every young person to be shared without consent across services. Yet the majority of families have no idea of the dangers of what is already being collected on them by the State. If you know families who are unconcerned about the DfE’s data-hungry approach, please share with them the five minute Southampton University video we highlighted in 2023.
Your children’s and your family’s privacy are what is really at stake here, so even though the Bill has now finished its progress through the Lords, don’t stop raising your concerns with others. It’s good to see organisations like Together and CitizenGo picking up the matter of the Single Unique Identifier, so please share their materials widely. When people show interest in this aspect, you could help them to see that the planned CNiS registers also seek to build a database about children, and there is no firewall promised between the two. Remind them too of the Prime Minister’s assertion that those who exercise their parental responsibility directly are in fact “opting-out” of an assumed responsibility to hand over their children to the State.
Finally, the Bill now goes back to the Commons for consideration of all amendments added in the Lords – those tabled by the Government and those tabled by other Peers which were agreed to by a majority of the House. As yet, no date has been announced for this process to begin. There is now therefore a further opportunity to engage with your MP, but time is short. You can find descriptions of the most relevant amendments on the Ed Yourself website: Government and Opposition. The official list of these amendments and the DfE’s explanatory notes are also available from Parliament’s website. You may also find this draft letter helpful in writing to them.