Isle of Man Education Bill – Legal Opinion

What’s been said?

Regular readers will be aware of the recent consultation in the Isle of Man [IoM] regarding a proposed new Education Bill. We highlighted what was happening on the Island in February and March. At the time parents there were crowdfunding a Legal Opinion on the compatibility of the sections concerning EHE with Human Rights legislation. The Opinion, which was prepared by Quinn Legal, (Douglas, IoM) and submitted before the consultation deadline, has now been made publicly available.

The document contains just under six thousand words and is an informative read.

The first section (§3-15) sets out the current statutory framework with regard to HE, quoting from the Education Act 2001. §16 to 22 review data relating to home education published by the Department of Education, Sport and Culture [DESC] from 2017 through to this year. Two sections (§23 & 24) reproduce the relevant text from the October 2017 consultation document. The authors then look at the proposed Bill, highlighting as they proceed eight “Key Proposals” regarding its treatment of HE children and parents (§25- 50). It is around these, listed in full in §51, that Quinn Legal based their expert opinion about the illegality of the Bill as it stands.

The remainder of the document addresses the compatibility of the eight Key Proposals with the IoM Human Rights Act 2001. Quinn Legal’s arguments however centre on several Articles of the European Convention on Human Rights 1950 [ECHR] which they considered of greatest relevance to the Bill, the three main ones being:

  • Article 8 – Right to respect for private and family life, home and correspondence
  • Article 9 – Freedom of thought, conscience and religion
  • Article 14 – Prohibition of discrimination

They also reference Article 6, Right to a fair trial, and Article 2 Protocol 1, Right to education, though in the latter case they recognise that this is subject to a reservation in the IoM. The provisions of the three bulleted clauses are described in §56 to 68.

All the above issues are brought together starting at §69, which describes the proposals of the Bill in regard to EHE as “generally prescriptive towards coercive”, and concludes that “the proposals fail the proportionality test.” The significance of the Key Proposals are examined individually in §73-79. They sum up their opinion in §81, “For the above reasons, we have concluded that, as drafted, the Key Proposals set out above do not comply with Article 8(1), Article 9(1) or Article 14 of the ECHR.”

The opinion concludes that the Bill will either need to be revised, or tested by “any person directly affected, claiming that he or she is or would be a ‘victim’ of the alleged unlawful act, to bring proceedings against the DESC, under section 7(1) of the HRA, seeking a declaration of incompatibility (under section 4(2)).”

Why does it matter?

It appears that there is a growing mindset amongst politicians and civil servants in the British Isles that the state has a prior right to prescribe certain aspects of the education which a child receives. On the IoM and elsewhere this is being justified through “safeguarding” concerns rather than educational considerations. This is resulting in the erosion of parental responsibility across the wider educational scene. The fact that some parents have been lulled into surrendering their responsibilities to the state has emboldened its representatives to assume parenting roles for all children.

Historically, the prime protectors of children have been their parents. Now, states are arguing that no parent can be trusted, so they must supervise every child. It is to protect against such intrusion by governments that Human Rights laws have been put in place.

Most HE parents cannot be Human Rights experts, but documents like this can help them to be aware of the key issues we should all try to preserve. The application of these laws is as relevant in other parts of the British Isles as they are in this Crown dependency. For instance, the authors twice (§58 & 65) cite the 2016 case which The Christian Institute and others pursued against The Lord Advocate over the Scottish Named Person Scheme. Though not specifically about HE – the scheme is intended to apply to all children – it is an important ruling. On that occasion, The Supreme Court acknowledged in regard to Article 8 that: “Within limits, families must be left to bring up their children in their own way.”

That is a freedom worth defending for all families, not just home educating ones.

What can I do?

Legal documents are not to everyone’s liking, but this well-reasoned and simply laid out opinion is not too demanding. We encourage as many people as possible to read the latter sections – say, §51 onwards. It will help you understand why the current debate isn’t simply about LA staff not understanding HE, but about a burgeoning mindset amongst politicians that they have the final say on what children are taught and how they are taught it.

No matter where you live, this document can inform your situation. Those in England are very aware at present of the recently published updated guidance and yet another consultation on registration. In Wales, the government has announced that it will consult again concerning EHE this spring. Even though the Named Person Scheme was dealt a serious blow by the Supreme Court in 2016, the Scottish Government is still trying to find a way to implement it. So do be grateful for those families on the IoM who took the initiative and found a way to commission this legal opinion, and do make the most of the outcome of their efforts.