Despite recent and oft repeated signalling by the Department for Education that parliamentary time had not been allocated for the introduction of CNiS registers, the Schools Bill came quickly out of the blocks after the Queen’s Speech, being designated as the first of eight new pieces of legislation which have been published.
What’s been said?
Anyone who has tried keeping track of the documents relevant to the Schools Bill since the Queen’s Speech will not expect this piece to provide a full summary of all that they contain. Updated information about the Bill’s progress is available on its home page – the Publications tab lists all the official documents.
The Bill itself is divided into four main parts, with Part 3, School attendance (page 40), being the section of most interest to EHE families. However, Part 4, Independent Educational Institutions is also relevant as this concerns settings across the range from unregistered “schools,” which are therefore illegal, through to educational facilities which are not presently required to register with Ofsted because they do not meet the criteria for being a “school.” The latter are sometimes used by families as part of the education they provide for their children.
The legislative style of the Bill is not easy to follow. The CNiS Factsheet is more readable, though certainly no more agreeable. Reading this will leave you in no doubt that the DfE are determined to establish Local Authority registers of every child not on a school roll and, in the case of flexischooled children, also those who are!
Another major concern is the draconian overhaul of the School Attendance Order [SAO] system. Failure to register within fifteen days or the provision of incomplete information will trigger an immediate SAO. Breach of an SAO “would attract penalty on conviction of up to £2,500 fine or up to 3 months’ imprisonment (51 weeks after the commencement of wider changes to sentencing legislation) or both.” (pages 6 & 13) Additionally, if a parent has been convicted for an initial failure to comply with an SAO, there will be no need for a LA to initiate a new one before they can prosecute them again for a continued failure to comply with it. (pages 5 & 12)
Why does it matter?
This Bill sees possibly the most significant change in education law with regard to parental responsibilities since the introduction of the state education system (Elementary Education Act 1870). The planned changes to SAO legislation are draconian, but the registers are alarming examples of a data-hungry modern state. One need look no further that the Bill itself for proof of this over-ambitious appetite for private information about children and their families.
Section 48, Registration, proposes several new clauses for insertion into the Education Act 1996 to follow section 436A. The second of these, Clause 436C, concerning the “Content and maintenance of registers,” reads:
A register under section 436B must contain the following information
in respect of a child registered in it-
(a) the child’s name, date of birth and home address,
(b) the name and home address of each parent of the child,
(c) such details of the means by which the child is being educated
as may be prescribed, and
(d) any other information that may be prescribed. [Emphasis added]
Category (d) and the phrase “may be prescribed” are alarmingly large loopholes for the state to leave open for stepping into the privacy of a home in future and requiring details of the family’s life. It could be anything as wide ranging as children’s bedtimes, a list of friends, or (given the desire to ensure that parents provide their children with a state-approved diet as well as an authorised education) a copy of the weekly shopping list. You may say that’s improbable, but there are no checks and balances in this Bill as the details are left to be worked out, and later changed, in secondary legislation (i.e. guidance) by future ministers, without parliamentary scrutiny!
The Department does however give some insight into its current thinking in this regard in its Delegated Powers Memorandum (page 37):
“there may be other types of data that it would be helpful to capture in registers – for example a child’s ethnicity and other key demographics, whether they have special educational needs or have an education, health and care plan, reasons behind their parent’s decision to home educate, or whether there are any safeguarding concerns or ongoing action – to assist local authorities in targeting support to those families who need it most…” [Emphasis added]
Section 287 of the Explanatory notes also gives leeway for LAs to further expand the information collected:
“Section 436C(2) allows a local authority to also include any additional information they consider appropriate within the register that has not been stipulated in legislation.”
For LAs to informally ask parents why they decided to home educate may legitimately supply helpful insights to assist in the provision of genuine support, but that is very different from the Secretary of State defining it as essential data to be collected as part of the registration process. It is even more terrifying for them to delegate the same authority to LA officials!
Enabling such powers seem very much like an unjustified intrusion into parents’ thinking – especially as the intention is not to constrain the scope of data in primary legislation. How will this enable the DfE to make good its commitment in the recent response to the CNiS consultation that establishing these registers “does not mean that parents need state approval to educate their own children?”
One further irony: this is the time of year when many HE families are busy preparing children for national examinations. The DfE ran consultations relevant to EHE candidates right through the exam seasons in both 2018 and 2019. Since then exams, particularly for external candidates, have been disrupted by lockdown measures. Just as we return to something like normal, we now have a major change to education freedom being dropped on home educators when many are in the midst of negotiating exams and exam centres for the good of their children!
On top of this inconsiderate timing is the increasingly hollow, promised duty on LAs to provide support to HE families “on request.” The one form of support most requested from the state by HE families is help with accessing local examination centres for GCSEs and A Levels. Perhaps the second most common is help with the costs of sitting such exams. Neither of these are mentioned in any of the Bill documents to date.
If you were in any doubt that the state and its officials are really not listening to either you or your children , this failure to have ears which hear should dispel it.
What can I do?
This is not the time for panic, or ranting. Rather, take a deep breath and think carefully how you and your family can best resist this undermining of your natural and historical responsibilities. These are theoretically respected in human rights treaties and national laws, but are increasingly being pushed aside under the guise of “the rights of the Child.” This juxtaposition is well illustrated in the Bill’s European Convention on Human Rights Memorandum which reads thus in Part 3 (a):
“the Department considers that any interference with Article 8 or Article 9 is necessary and proportionate in the interests of protection of the right of a child to an education and for the protection of health and morals.”
Before rushing into action, try to at least begin to grasp the issues behind the proposals for these registers, and also the process the Bill will follow through Parliament. There is a very useful summary of both on the EdYourself website. We also plan to make more detailed comment on various aspects of the Bill in coming weeks.
It is important that EHE families engage with politicians at all levels. Because the Bill has begun its journey in the Lords, it may not be debated in the Commons until the autumn. This allows a little time for you and your family to get to know your MP if you do not already have contact with them. Establishing a meaningful connection with MPs is crucial in order to get beyond being “just another constituent who writes to me”. It may help them to see that you are a real family who has the welfare of all its members at heart.
Some may also wish to write to Peers ahead of the Bill’s Committee Stage in the House of Lords. Lords are not constituency-based, unlike MPs, so identifying those whose interest areas tally with our issues of concern about this Bill is the key thing here. Education is the obvious area, though most politicians will view this as a responsibility of the state, so convincing them otherwise will not be easy. But other peers are interested in matters such as civil liberties or data protection, and they may be willing to engage with you about the dangers embedded in this Bill. You could at least offer them the opportunity of dialogue. Once you have your own thinking straight about the issues involved, you can find out quite a bit about the affiliation and interests of Peers from here.
Resources to help you access all the relevant documents as well as understand the progress and content of the Bill are available on our Schools Bill 2022 page. They include this flow chart of the different stages in the House of Lords.
updated December 2022