Response to Welsh Consultation Delayed

Minister says submissions “raised complex technical, policy and legal matters which require careful consideration.”

What’s been said?

On Wednesday 11 December Welsh Minister for Education, Kirsty Williams, published a statement updating Assembly Members on the promised consultation about a database of all children in Wales, and her Department’s response to the recent consultation on new EHE Guidance.

The reason for the statement was her inability to keep to the promised timetable both for responding to the first consultation and for publishing a second one about the desired database. The latter should have commenced in November and lasted for eight weeks. This has now been rescheduled for the early part of next year and extended to twelve weeks. Despite this delay, Williams is still committed to her proposals stating, “The publication of the statutory guidance and coming into force date for the database regulations will be autumn 2020.”

It is very good news that this delay has been forced upon the Welsh Assembly Government, and Protecting Home Education Wales should be thanked for raising funds for a substantial legal opinion about the draft guidance, as well as the effort they made to bring it to the attention of every AM. It also appears that Wendy Charles-Warner’s petition, which obtained over five thousand signatures and was discussed at a meeting of the Petitions Committee on 3 December, has contributed significantly to bringing about this decision.

At that meeting the Petitions Committee agreed to write to the Minister asking for “details of the response rate to the consultation, confirmation that the legal opinion provided by the petitioners is being considered by the Welsh Government and for an indication of the proposed timescales for determining the next steps.” Williams’ statement addresses all three points, recognising that she needs “to ensure the final guidance and the draft regulations fully take these [complex technical, policy and legal matters] into account.”

Readers should however note the tone of this statement in other respects. About the concerns expressed by the HE community, she recognises that responses to the consultation have “clearly demonstrated the heightened sensitivities and emotive nature of any proposals regarding home education. In particular, matters related to data protection and human rights were prominent amongst responses from home educators.” By contrast, she observed that she needed to balance these against “the views of local authorities and other stakeholders, who have shared reasonable expectations that the statutory guidance and regulations will ensure all children in Wales receive a suitable education.”

Why does it matter?

This statement by the Minister matters because the guidance is a real threat to the privacy of family life which is meant to be guaranteed by Human Rights legislation. The proposed database has every possibility of mirroring the discredited Named Person Scheme in Scotland. It is important that both are kept within legal restraints.

Her announcement also matters because, whilst recognising the need for any legislation to be legal, Williams also signalled that she considers LAs are being reasonable in their expectations, whilst implying that HE families are being over-sensitive and emotional in their concerns. This is not the first time she has described respondents to the consultation in this way. In her initial reply to the Petitions Committee on 28 October, she concluded:

“This is a highly emotive and contentious matter for some home educators and I am sensitive to their concerns. This is also an area of considerable concern for local authorities, who have sought legislative and policy change on this matter for a considerable time. We are seeking to strike a balance between the expectations of local authorities to discharge their duties in assuring themselves of the suitability of education being delivered, while protecting the choice to home educate and the flexibility home educators have in choosing how they educate their children.”

Her repeated insinuation that HE parents are emotional, over-sensitive and contentious contrasts with what she describes as LAs’ reasonable demands to monitor your children’s education. Perhaps she thinks it impossible that any LA should act in the same way as the Ombudsman ruled Leicester City Council did in one instance. Home educators know from experience that LA staff often overreach their legal responsibilities or, as in the case of Khyra Ishaq, fail to safeguard those who are brought to their attention because of genuine welfare concerns.

Finally, this statement matters because the Minister makes clear that she considers “local authorities and other [agencies]” to be “stakeholders” in your children. Really! What stake have they in your children’s futures which is superior to that of their parents? By nature the majority of parents invest far more in their children than any government employee could ever do, no matter how benevolent their motivation.

It is impossible for politicians or children’s professionals to have the same level of commitment as most parents have to their children. The majority of HE parents make many sacrifices to prepare their children for their adult life and are therefore the main stakeholders in their lives. Consequently governments should respect and not malign HE parents!

What can I do?

Whilst this statement by Kirsty Williams is to be welcomed in many ways, do not be lulled into a false sense of security. Although there is acknowledgement that the proposals need to be legal, there is no commitment to abandon them if that proves difficult. Section 3 of the UK Human Rights Act 1998 does allow for legislation to remain valid even when it cannot be interpreted in a manner which is compatible with Human Right legislation.

In case legislation is tabled in order to circumvent international law (though the requirements of GDPR may be more difficult to ignore), the HE community in Wales need to continue bringing their concerns to the attention of their local Assembly Member. Please make doing this a priority in the early months of the new year, particularly if your AM is a member of the Petitions Committee.

Finally, take time to think carefully about the implications of state employees being described as “stakeholders” in your children’s futures.