Direct Engagement in Wales

Education Committee to discuss QC’s legal opinion on draft guidance

What’s been said?

The next meeting of the Children, Young People & Education Committee of the National Assembly for Wales [CYPE] is due to take place on Thursday 14 November. Home educators’ attention in Wales and elsewhere will be drawn to agenda item 3.1, “Letter from Protecting Home Education Wales regarding the draft statutory guidance for local authorities on home education,” which will be considered in private session.

Item 3.2 also pertains to home education: “Email from the Trustee and Welsh Liaison for Education Otherwise regarding the draft statutory guidance for local authorities on home education.”

As reported in a previous Byte, Protecting Home Education Wales had written to Minister for Education Kirsty Williams on 20 October, and her acknowledgement of that letter may be viewed here. In it she confirms that “the legal advice… will be considered along with all of the other consultation responses.” Williams states that the guidance is a “draft document” and therefore still “subject to change.” She emphasises that officials have already engaged with home educators and will continue to take consultation responses into consideration.

Assembly members Mark Isherwood North Wales Con (who has previously drawn the unlawful aspects of the guidance to the attention of the government), and Neil Hamilton Mid & West Wales UKIP (who had emailed Williams regarding the legal advice) received replies [MI, NH] in a similar vein.

Williams’ response to Hamilton also spoke of what she perceives to be the necessary balance between “parental choice” regarding education and “the best interests of the child.” More worryingly, she cites her “expectation that local authorities can assess the effectiveness of parental provision to ensure it will cause the child to receive a suitable education,” and concludes with the information that “the intention is to bring the statutory guidance into force in spring 2020.”

All AMs received personally addressed letters from Protecting Home Education Wales on 21 October requesting their support, summarising the eight issues which in the opinion of David Wolfe QC would render the draft statutory guidance unlawful, and asking them to demand that the Welsh Government withdraw the Guidance.

Further, Chair Lynne Neagle and all CYPE committee members were sent a subsequent letter on 1 November, expressing grave concern about “the stance that the Welsh Government appears to have taken in relation to home education.” The three main causes for concern cited are:

  • the draft guidance is unlawful if issued in its current form;
  • the consultation process “does not appear to have been carried out in accordance with well settled principles of procedural fairness”;
  • the (alleged) extant application of the draft guidance by Local Authorities in Wales.

With reference to the third point above, the letter goes on to require that “such activities cease with immediate effect; and a full investigation is carried out to determine who if any in the Welsh Government or the local authorities has given the instruction to apply the draft Guidance.”

Why does it matter?

The legal advice specifically states that if the Guidance were issued in its current form, it would be unlawful and/or lead to illegality by local authorities acting in the light of it, and this point was emphasised in Protecting Home Education Wales’ letter to AMs. Hence it is of the greatest concern to read in their 8 November update that “some local authorities appear to be applying the draft guidance on home education here in Wales, along with LA’s across the UK.”

Protecting Home Education Wales are assembling evidence of any LA misconduct in this regard, and would be pleased to receive any relevant information (redacted, please) via their contact form. Note that any such responses will be submitted to the AMs, so they will become public – though sources will not be disclosed unless this is specifically requested by the contributor.

What can I do?

As we observed recently concerning the challenge to the Children & Family Agency in the Republic of Ireland, “If an agency regularly exceeds its remit, the impression is gradually accepted that the new ground taken is actually legitimate ground, whether or not this is the case. A path is trodden and is assumed to be the way all future users will go.”

It is therefore really important that Welsh home educators urge their AMs to keep abreast of what is being discussed in the Children & Young People’s Education Committee.

Additionally HE parents and all supporters of parental freedoms should continue to bring any irregularities to the attention of their AMs (and/or MPs/MSPs/etc.). If draft guidance is being applied prematurely in any shape or form, blow the whistle long and hard!

What happens in one part of the UK has a knock-on effect in other parts, so it is important to remain vigilant to developments everywhere. Don’t view something as irrelevant just because it is not happening where you live. The underlying agenda of ramping up state control whilst diminishing parental freedom and input is common to all locations in the UK, and it will take a concerted and shared effort to stand against this.