Lord Baker's contribution: 2nd reading of the bill debate in the House of Lords

Lord Soley's bill was read for the second time in the House of Lords last week, during which a scheduled debate on the subject took place. In this post, after a short overview, I'm going to go through Lord Baker's contribution to the debate interspersing it with my comments as they come up. In future posts I will cover the other contributions, as time allows.

I have already covered Lord Soley's first contribution to the debate.

Overview:

The debate was mainly monopolised by people who are in favour of the bill, with the notable exceptions of the Lords Lucas and Agnew, who spoke on behalf of the government. The speakers in favour of the bill listed recent news stories and bureaucratic reports calling for more regulation but mostly avoided mentioning the already existing remedies for concerns, as did the news stories and bureaucratic reports themselves. Lord Lucas mentioned the need for more evidence and the absence of need for more regulation. Lord Agnew announced a forthcoming public consultation into the wording for updated new guidelines, which will clarify the legal position for parents and local authorities. We assume the bill will therefore be deemed unnecessary.

The debate:

Lord Baker of Dorking: My Lords, I warmly congratulate the noble Lord, Lord Soley, on devising the Bill and on securing a Second Reading and debate. Home education is an unknown part of the education system. A debate such as this allows a searchlight to be directed to what is a very clouded, obscure and unknown part of the education system. Very little is known about home education.

On the contrary: by those who practice it and their children, a great deal is known.

It is rather different from Victorian times, when home education was very strong indeed.

It is hardly weak now.

The only schools that taught beyond the age of 11 in those days were the grammar schools so, as noble Lords will know from Victorian biographies and memoirs, many middle-class families educated their children at home with the advice of the tutor. A tutor was often employed by them and often lived in the home. It was a career for many thousands of people in Victorian England.

And many of them home educated without the advice of a tutor. Nowadays, some families choose to use tutors and others do not, just as then.

Home education is not like that today at all. In my time it was very small. The only cases that ever came my way concerned special educational needs, where parents felt their children were not getting the proper attention in an ordinary school and they could not get into a specialist school, so they asked what they could do. There were also complaints about the curriculum. In those days there was no national curriculum. Every school could devise its own curriculum. If you had a good school you had a good curriculum, a mediocre school a mediocre curriculum and a poor school a poor curriculum. Some of the curriculums were so poor that parents decided they would do better if they educated their children privately. They were very small in numbers.

It was also very little known about and quite difficult to undertake without the Internet. Also, so few families were doing it one had to travel for many miles to arrange meet-ups and we needed things like phone trees to have any hope of maintaining a network between each other.

I quite agree that there should be a right for parents to withdraw their children. There might be cases where the children have been bullied at school and it has not been properly dealt with. Parents might be deeply offended by the teaching on a very sensitive matter and withdraw their children. I can understand such cases.

This is very good of Lord Baker, but in law - and in fact - our reasons are irrelevant.

Parents have rights, but children also have rights. Children have the right to a well-informed education that goes well beyond reading, writing and arithmetic. That is the first right. Their second right is that they can study in a community, however small or large, that is secure and safe, with safeguarding of their interests.

This idea of competing parents' and children's rights is definitely a theme: it ran through the Badman Review like the words in a stick of rock and Lord Soley mentioned it quite a lot in his contribution to this debate. In response to Lord Baker's mention of it, I'd like to quote lawyer and social worker Allan Norman, on non-consensual adoption and the law when he said:

'...the atomisation of the interests of the child and the interests of the parents, setting the human rights of one in conflict with the human rights of the other is a peculiarly Western approach. Note in particular that whereas human rights may be conceived as privileging the rights of humans over the rights of States, this atomisation approach puts the State straight back in the picture as the arbiter of the dispute between the conflicted interests of parent and child.'

It is a dubious political tactic, which also completely overlooks the parents' vested interest in the long term future health and prosperity of their offspring.

Back to Lord Baker again:

Safeguarding is critical in education. If a school is found in an inspection not to have done the safeguarding of its pupils, it goes straight to special measures — it is as important as that.

Government inspections of schools began in 1837, "..to monitor the effectiveness of the grant.." which was being provided for the earliest state funded schools. Ofsted exists to check that public money for education is being properly spent.

I am not at all satisfied that there ​is proper safeguarding in the present arrangements for home-educated children.

No public money is being spent on home education, so there is no reason for checks to happen where no concerns have been expressed.

Home education is awfully difficult for a family.

Says the man who has done it? I suspect not.

In every family there has to be a breadwinner, so the breadwinner does not see the child for eight or nine hours a day and it is left to the other parent. It does not matter whether the breadwinner is male or female, the husband or the wife. So it is very challenging, particularly for secondary age children, to secure a really good education.

It can be, or it can be easy. Much depends on the child as well as the parent, and circumstances vary as widely as people's financial and working arrangements. Some couples both work part-time so there's always someone with the children and it's not always the same person. Some people have the traditional arrangement but many others work from home now with flexible hours, perhaps with self-employment. And what Lord Baker seems to not know is that many home educating parents make use of the many organised activities that are organised by home educators for home educators in their local area. These usually require the attendance of the parent to supervise their own child, so they are not alone with their children all day long and have the chance to mingle with other home educating parents while their children socialise and learn together. And even if they sometimes are alone together, in this age of the Internet both company and advice are never more than a click away.

What stage have we got to at the moment? There was an improvement in the Education (Pupil Registration) (England) (Amendment) Regulations 2016, which ensured that schools have a duty to report to the local authority the names of pupils who are withdrawn. That is quite a big step forward; at least we have the basis of a database, but that is about as far as it goes.

And Section 436A - added to the Education Act in 2007, if memory serves me correctly. This will eventually encompass most home educators.

There have been two reports recently on this problem—the Casey report and the Wood report. The Wood report made some very interesting recommendations on home education that have not really ever been mentioned by the Government. It said:

“They point to the fact that public agencies do not have the right to gather information on the children in such settings and have no way of assessing the level of risk children face. This issue is not covered in multi-agency arrangements” —

this is not only on the education side, but the social services side, the police and others —

“and it needs to be”.

It acknowledged that some parents co-operate very closely with the local authority while some do not. However, the report said:

“In both of these cases the local authority is not able to assess either the quality of education being received by the child or whether there are any safeguarding issues that require attention. This needs to be addressed urgently”.

The local authority is able to assess both the quality of education being received when it has concerns that this might not be suitable and any safeguarding issues that may need attention in carrying out "the functions conferred on them in their capacity as a local education authority" as per section 175 of the Education Act. This does not give them the power to do spot checks or otherwise force entry into the private family homes of people about whom they have no concerns, but it does give them the duty to take action when concerns are raised. The law is balanced perfectly well in this respect and applies to everyone equally.

There has been no comment from the Government on those recommendations in the Wood report, which is very disappointing.

The Wood Report's suggestion for a solution to the issues it raised about home education was: "New guidance should be provided which makes clear the responsibility of parents to ensure information about their child’s education is provided to the local authority.." Lord Agnew's assurance later in the debate that the government will carry out a consultation about this new guidance is obviously the response, to the section on home education at least. The new guidance cannot vary greatly from the current EHEGLA if it is to keep within the law as nothing much has changed since it was published, but should perhaps be updated now as it is ten years old this year.

As the noble Lord, Lord Soley, said, there is no real number of those who are in home education. The Guardian did a survey of local authorities and came up with a figure of about 30,000—17,000 of secondary school age and 13,000 primary. These are infinitely higher than any of the figures in the past—there is absolutely no doubt about that. It has become a really big issue and I do think that the Government can remain so ignorant about it as they are at the moment.

The UK's population is at its largest ever. We have at least ten million more people in the country now than we had in the 1980s, so numbers are bound to have increased even if other factors stayed the same. But they have not stayed the same, as I commented in my previous post in this series. Schools are a lot less relaxed and accommodating of children's individual needs, absolute full-time attendance is now required of all pupils and this is enforced by hefty fines and threats of parental imprisonment, which was not formerly the case. The evolution of the National Curriculum, league tables and SATS tests have all profoundly changed the nature of schooling in the UK since the 1980s and many families either do not like or cannot cope with the current regime, which seems to have lost all of its previous flexibility and creativity for addressing such problems. In the light of all of these changes, the rise in numbers of home educators is hardly surprising - and still, the increased numbers should make no difference to the regulations, which should be based on principles and not panic.

The Minister who is about to reply answered a Written Question as to how much the Government know about this and the answer was that they do not keep any record at all of home education. That is simply unacceptable.

I disagree. According to Section 7 of the Education Act it is for parents to cause their children to receive efficient, full-time education - not governments. If Section 7 made it a responsibility of governments to cause this to happen, then I would take Lord Baker's point. But as it is, parents are rightly trusted to carry out this function unless there is an appearance that it might not be the case.

However, the most devastating evidence of what is wrong comes from the letter that Sir Michael Wilshaw wrote to Nicky Morgan a little over a year ago, in 2016. He was looking to the unregulated schools that suddenly emerge in the background in large conurbations particularly. He said:

“In January, I recruited a team of seven experienced inspectors to work exclusively on this critical area of child safety. Since then, these inspectors, working closely with Department for Education (DfE) officials, have identified more than 100 suspected unregistered schools across the country”.

He goes on to say that the inspectors have already asked for seven to be closed, and I expect that he will ask for more. He said:

“The evidence that they have gathered so far during this short period firmly reinforces my belief that there are many more children hidden away from the view of the authorities in unregistered schools across the country than previously thought”.

Many of the parents of children in home education cannot cope, so they send them to the little school around the corner, which is unregistered.

If they are doing this and if the school is unsuitable or illegal, then according to current laws the school should be shut down and under section 437 of the Education Act the parents served with a School Attendance Order. As Lord Agnew said later in this debate, local authorities already have the tools with which to resolve these problems.

In the work that Sir Michael Wilshaw did examining these schools, he said that the accommodation and the buildings were usually totally inadequate and that staff and volunteers who were working in these schools,

“have not been properly checked or cleared to work with children”.

That is a fundamental need for every school. Every teacher and anybody who comes to work there, even on a temporary basis, has to be cleared. The non-teaching staff have to be cleared but nothing of that happened at all.

Is this a debate about schools, or home education? Lord Baker appears to have wandered quite a long way off topic at this point.

He went on to say:

“Evidence inspectors have gathered over recent weeks has also reaffirmed my belief that there is a clear link between the growth of unregistered schools and the steep rise in the number of children recorded as being home educated in England over the past few years”.

My explanation for the steep rise in the number of children recorded as being home educated in England over the past few years is above. I doubt that unregistered schools amount to more than a tiny proportion of it. If these are illegal then the remedy is simple: shut them down. I fail to see the difficulty or why genuine home educators should be penalised and treated as criminal because this is apparently not happening, and I am not the only one who fails to see it. One could almost be forgiven for thinking the illegal schools are being left open deliberately in order to target home education instead of the real problem, which would of course be completely unacceptable.

We could put an equal sign between home education and unregistered schools, as most of them will be in those sorts of schools — and they are pretty grim.

Most home educated children will be in these sorts of schools? And the award for the most baseless sweeping statement for the entire debate goes to Lord Baker for this one. If there are tens of thousands of home educated children and most of them are in illegal schools then that must mean there are about 500 such schools around the country, being allowed to carry on their business unabated. If this is the case, then this is obviously the source of the problem and not the home education regulations. Drastic action must be taken to root out these schools and shut them down, for how have 500 of them been allowed to stay open? I am shocked. I am also puzzled, because hundreds of home educators in my area are known to me if not the local authority, and not a single one of them uses an illegal school, so something has gone wrong with somebody's reckoning somewhere.

I had to close some

Oh, it is possible to close them, then?

and I am sure that the present Secretary of State will be closing some.

Yes please. Local authorities DO have rights of access to inspect such places and should be using this power to investigate and take proper action against them.

Sir Michael went on to say this, which is very important:

“I have previously voiced concern that many of those operating unregistered schools are unscrupulously using the freedoms that parents have to home educate their children as a cover for their activities. They are exploiting weaknesses in the current legislation to operate on the cusp of the law” —

a nice phrase, that.

Although it's open to different interpretations in various places, the law in general is clear. There are no weaknesses in the current legislation, as has been painstakingly and repeatedly explained by myself and many others including Lord Agnew on behalf of the government. If it is reported to local authorities that illegal schools are operating, the schools should be visited, inspected and shut down. If it appears home educators are not providing their children with suitable education and sufficient information to change the appearance is not forthcoming from the home educators, school attendance orders should be issued. If this does not happen, it is not due to a weakness in the law so much as a weakness in the people who are paid to enforce it.

He continued:

“Many are charging parents thousands of pounds to send their children to these unregistered schools. In doing so, many are providing a sub-standard education, placing children at risk and undermining the government’s efforts to ensure that all schools are promoting British values, including tolerance and respect for others”.

Good Lord. Close the schools already!

That series of inspections was very much done in the wake of the Trojan schools issue in Birmingham, where the governing bodies of certain comprehensive schools were trying to turn them into Muslim faith schools. Sir Michael said that that was also happening in home education, so something has to be done.

Sir Michael's letter is here. I do not think it says anything of the sort. What it does say is: "I am particularly concerned about the failure of these local authorities to address the problem of children missing from education and to satisfy themselves that these children are not being exposed to harm, exploitation or the risk of falling under the influence of extremist views," which is hardly the same thing. Home educated children are not missing education - section 437 ensures this - so are not the group referred to in that sentence.

The Bill will set up greater surveillance, which I think would work without eroding a parent’s right to remove.

The meaning of this is obscure. Without eroding a parent's right to remove - their child from school? It seems like our right to deregister is not the focus of this current move against us.

As the noble Lord, Lord Soley, has said, the Bill is capable of being amended but the principle is there.

The principle that some officials seem to be either unwilling to enforce the law or ignorant of the powers they already have within it, or both, is certainly there, though I do not see how this bill, amended or otherwise, can cure the problem.

I do not expect the Minister to say that he will accept the Bill willy-nilly. But I hope he will not say that nothing should be done

Lord Baker will have been pleased to hear he did not: he proposed a public consultation on updated guidelines, which seems to solve the problem of officials not being clear on their duties.

because if we go on as we are, and if one or two really serious cases of the sexual abuse of children who are at home occur, that will blow up under the department — and, I may say, under the Minister as well.

If officers have followed regulations and regulations are as sensible as they currently are, this will not blow up under the department any more than situations of child abuse with pre-school children currently do and considerably less than child abuse in schools. Section 47 of the Children Act protects home educated children in exactly the same way as it protects school children. Neither registration nor regular visits from education officials protect children from abuse, as the case of Eunice Spry clearly demonstrated, which makes home educators wonder about the real motive behind those wishing to mandate the two things for us. I think we need to read no further than Baroness Deech's contribution to the debate to find it, which I will address in a future post in this series.

The line the Government are taking is, “We will wash our hands of it. It is not really part of our job or responsibilities”.

That is not my perception of the government's line. To me it seems perfectly sensible: the current law is sufficient - which, as I've shown, it is. "Local authorities need to be able to act in such cases. We think they already have the tools for the job."

That is totally unacceptable, so I hope that the Minister will be able ​to say that his department will do more work on this. There are three things that we should ask him to consider.

First, he should consider whether to give local authorities the power to see the children and check on them. That is key to safeguarding, probably including talking to the children in the absence of their parents.

They already have this power, under section 47 of the Children Act:

"Where enquiries are being made under subsection (1) with respect to a child, the local authority concerned shall (with a view to enabling them to determine what action, if any, to take with respect to him) take such steps as are reasonably practicable —

(a)to obtain access to him; or

(b)to ensure that access to him is obtained, on their behalf, by a person authorised by them for the purpose,

unless they are satisfied that they already have sufficient information with respect to him.

If regulations demanded such checks on all children, including those about whom no concerns have been expressed, this would:

• be prohibitively expensive;
• create a 'needle in the haystack' situation, where real abuse became less likely to be noticed and acted upon;
• deny people their legislated right to a peaceful, family life.

Back to Lord Baker:

Secondly, he should give local authorities power to enter homes and assess the standards of education. That would be entirely reasonable.

No it would not, for the reasons given in the list above.

Thirdly, he should ensure that some form of inspection is available.

It is available, under section 437 of the Education Act. I imagine members of the Department for Education are as weary of pointing this out as home educators are.

The noble Lord, Lord Soley, has devoted a lot of his active political life to this issue, apart from being the chairman of the Labour Party in the House of Commons, and I wish him well. He has done good service by presenting the Bill and I hope that it will lead to significant changes.

Perhaps the noble Lord, Lord Soley, could devote some of his time in future to familiarising himself with the current regulations before wasting all of our time by bringing bills asking for new ones.