One Unhappy Children’s Commissioner

Professor Holland fears the need for primary legislation will thwart her plans

What’s been said?

On Wednesday 6 November 2019, the Welsh Assembly’s Children, Young People and Education Committee [CYPE] met, and their agenda included “Scrutiny of the Children’s Commissioner for Wales Annual Report.”

Professor Sally Holland’s report – though dated 31 March – was not published until October, and was accompanied by a Quarterly Update. (Reports available from this archive.) In the report (p 51-54) Holland continues to press strongly for the Welsh Assembly Government [WAG] to introduce monitoring of all HE children, by implementing her “three tests in full.” In the update (p 12-13) she threatens, “I retain the option to use my formal powers of review at any point should I have concerns that Government are not exercising their functions to ensure appropriate policy aims will be met.”

During the CYPE meeting, HE was mentioned in passing in connection with Children’s Rights Impact Assessments, and by Holland with regard to bullying in schools. However, it was mainly discussed in a ten minute period (transcript and video) when Holland was questioned by Siân Gwenllian AM (Plaid Cymru, Arfon), Shadow Minister for Education and Welsh Language. Her initial question was about progress over the last year. Holland said she was pleased that things had moved forward, asserting that:

“all children should be known about and seen in Wales, that they should get all of their rights, including, of course, the right to an adequate education, a suitable education. And to do those things, we need to see children and meet with them.” [Emphasis added]

Later (para 208) Gwenllian referred to correspondence she and other AMs had received, including the legal advice which claims that “making it obligatory to hold meetings with families or with the child individually… is not lawful.” Holland, who acknowledged that she was already aware of those concerns, went on to say:

“The key issue, and the key discussions I’ve had with the Minister, when I’ve had the chance to discuss this with her, has been how much they can do under secondary legislation – which is what they’re attempting to do this under, which was an attempt to do it quickly. It hasn’t actually been very quick, but it was an attempt to do this more quickly and proportionately – and what would need primary legislation.” [Emphasis added]

It is unclear whether Gwenllian was supportive of her fears that primary legislation would be needed, or if she was simply trying to find out as much as possible about Holland’s own intentions. When she suggested, “It may have been easier to introduce primary legislation from the outset,” Holland quickly asserted “Absolutely, if you look back.”

Why does it matter?

In early October we observed that the Welsh draft guidelines are currently “the most aggressive threat to HE parental freedom that we have seen in the UK.” In her testimony before the CYPE Holland made it clear that whilst she is encouraged by the proposals, she believes they are not strong enough. Many HE parents however are unsure why she has been lobbying hard and threatening to use her legal powers, if the WAG does not concede to her demands.

The role of Children’s Commissioner is a response to children’s human rights legislation. Theoretically they exist to protect children by protecting their rights. The Welsh Commissioner’s website reads, “Her job is to tell people why children’s rights are so important, and to look at how the decisions made by public bodies in Wales, including Welsh Government, affect children’s rights.” The website adds that under the UNCRC there are forty-two rights which “give children and young people what they need to grow up happily, healthily and safely.” However, the summaries of the forty two articles provided are flawed because in essence they are exactly that – summaries. Could it be that those who drafted the revised guidance referred to this over-simplified list, rather than to the actual text of UNCRC?

From the problems highlighted in David Wolfe’s legal opinion, it certainly seems that the authors of the proposed guidelines had a selective understanding of children’s human rights. What is more revealing though is that the person charged with defending those rights for children in Wales appears to be looking for a way to circumvent them.

It would have been encouraging to hear Professor Holland responding to the question about the legal opinion by saying that both her office and the WAG needed to look carefully at the proposals again to ensure that they really do conform to the protections afforded to children. Instead, she insisted that she was right in her assertions and that the government could comply by using primary legislation rather than secondary!

[Update: A few hours after this Byte was published, Protecting Home Education Wales added a copy of their letter to the Shadow Minister for Education explaining Holland’s mistakes. We encourage you to read it.]

Her view is reminiscent of those of the Scottish government, when they sought for three years to circumvent the Supreme Court’s ruling that their Named Person Scheme was unlawful. In September they finally said they would “withdraw our Bill and repeal the relevant legislation.” Whilst the NP Scheme fell foul of data protection legislation, it is worth remembering that it was primary legislation rather than secondary. That alone should alert anyone with Holland’s responsibilities that what matters is the consequences of any proposals, not how they are implemented. Her expressed view suggests that she has not read the legal opinion, or if she has, she has not understood it.

What can I do?

Once again we highlight the need for parents not to become weary in standing against the tide of state interference in family life. If the EHE community throws in the towel at this time, who will be left to safeguard children from state overreach?

If you live in Wales, keep bringing the potential unlawfulness of these guidelines to your AM’s attention and don’t forget all your potential MPs.

Wherever you live, keep raising the barrage of negative press about EHE with national and local politicians, ask them to defend the natural and historic responsibilities of parents.

If the thought doesn’t terrify you, reach out to your local media (print and radio) to get your positive accounts of HE into the public sphere.