Challenge the Welsh Government’s Lack of Clarity

Draft databases regulations breach human rights and are unlawful, confirms QC

What’s been said?

We realise that these are uncertain times for parents and children. However once this crisis is over, it is certain that lobbyists will seek to use this experience to highlight families which have struggled during the weeks of enforced home schooling, in order to argue that elective home educators need even closer oversight.

Already Anne Longfield, Children’s Commissioner for England, is calling for schools to be open during the summer holidays. She justifies this by insisting that schools will have a really important role over the coming months, especially for vulnerable children, adding “to have schools consider opening in some form over the summer holidays to help children learn and catch up but also to offer them a safe place to play and socialise with friends.”

It is easy to see her belief that children do not learn when they are at home, and that they will not be safe, nor return to seeing friends, unless they are herded into classrooms.

Leading the call for monitoring of EHE in Wales has been Wales’ Children’s Commissioner, Sally Holland. She shares Longfield’s view that children’s safety and human rights cannot be protected unless they are under some form of state supervision.

Her website’s Home Education page lists the three tests for HE which she has been promoting. The first is “that all children in Wales can be accounted for and that none are invisible” – to state employees, one presumes. She is also concerned “that every child is seen and their views and experiences are listened to.”

In that light it is therefore ironic that Holland stands accused of not listening to children. In January Erika Lye, Chair of the charity Mountain Movers, which has encouraged EHE children to engage with the Children’s Commissioner and her staff, wrote to the Petitions Committee and pointed out that these young people had requested the trustees to ask,

“why an office that is primarily funded by government with the duty to listen to and stand up for children, is ignoring what they have been told directly from the, limited engagement, they have had with home educated children (even those who sit on their own panels) and continue to form policies that go against these children’s wishes?”

Education Minister, Kirsty Williams seems to have a similar degree of deafness towards voices which disagree with her. In her statement announcing a delay in response to last year’s consultation on new guidance on EHE, she made no direct mention of the excellent legal opinion submitted by Protecting Home Education Wales [PHEW]. Neither was this referred to in the summary of responses published on 21 January.

Now, in response to this second consultation, PHEW have raised funds for a further legal opinion and over the Easter weekend they published a summary of the brief provided to David Wolfe QC and of his legal advice. They announced its availability in a post entitled, “Draft regulations breach human rights and are unlawful, confirms QC.”

The summary document is concise, being less than three pages long. It focuses on “The Children Act 2004 Education Database (Wales) Regulations 2020 (draft),” which was published amongst the consultation documents.

Why does it matter?

Responding to the first point raised by PHEW, Wolfe advises:

“Whatever this regulation authorised would then be permitted within the Data Protection Act 2018 and the GDPR. But the regulations would still need to comply with the Human Rights Act 1998 (and its Article 8 in particular) so that becomes the focus of any legal challenge to the regulations.”

This is important for anyone still intending to respond to the consultation to appreciate. The focus of any objection must be a child’s human rights, in particular their right for private and family life. The Act and Article 8 are available online.

Wolfe also has concerns about the breadth of provisions in the draft regulations, saying that they therefore lack clarity and the necessary safeguards. For example, the list of acts being relied upon in 9(2) is so broad that it is potentially unlawful.

In response to PHEW’s point 5b, which questions the Welsh government’s assessment of the impact on human rights issues, Wolfe responds:

“The consultation document says that the regulations are proportionate because they support a legitimate aim. But that gets the law wrong. There must be a legitimate aim and then the regulations must be proportionate to that aim (including in not going further than is necessary to achieve that aim).”

These examples demonstrate the lack of thoroughness in the preparation of these regulations. When placed alongside the doublespeak of the Children’s Commissioner and others, they emphasise the need for the EHE community to respond to this consultation before it closes in a few days’ time.

What can I do?

Please don’t be distracted by the present lockdown and all it involves.

Download and read PHEW’s summary document. You need to be informed.

If at all possible, do make some form of reasoned response to the consultation. A list of our earlier comments can be found here.

Update 19 April:
We have been given permission to make this quick guide to responding to the consultation available to our readers. Thank you to those who prepared it.

Update 18 April:
Late yesterday Protecting Home Education Wales published a copy of their submission to the consultation via their website. The submission can be downloaded directly from this link.

We understand that Protecting Home Education Wales are planning to publish their submission to the consultation later today or sometime tomorrow. Please check their website. Obviously they will be referring to the QC’s advice in their submission, so you may wish to read their comments before making your own.

It is also acceptable to state that you have seen a summary of the legal advice they have received, and that you believe that the Welsh government should consider it carefully before proceeding with these proposals.

The consultation closes on Wednesday 22 April.