Wednesday, January 17, 2018

Baroness Morris'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 Baroness Morris'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, Lord Baker's and that of Lord Addington.


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:

Baroness Morris of Yardley: My Lords, I also welcome the Bill that has been put forward by my noble friend Lord Soley, and congratulate him on the work that he has done. I also want at the start of the ​debate want to recognise the work done by Graham Badman some time ago. I suspect that if Graham Badman’s report, which was about to be put into effect in 2010, had been allowed to come into force, we would have already addressed these issues. I know my noble friend Lord Soley said he tried to speak to Graham Badman and build on the work that he has done.

The Badman Review was supposed to be investigating "whether home education could be used as a cover for some forms of child abuse, such as forced marriage and domestic servitude". It found no such evidence. Instead, it raised questions about its author's integrity and collapsed in a pile of recriminations and counter recriminations. Its recommendations amounted to an annual licensing scheme for home educators, which would have breached their dutes as set out in Section 7 of the Education Act, because they would no longer have been the arbiters of their children's educational provision. By cheerleading this initiative so many years after it failed, Baroness Morris signals herself to be - at the very least - resolutely deaf to our children's educational needs. Perhaps it's what we should expect from the woman who failed her A levels, resigned her Education Secretary post because she failed to meet her own numeracy and literacy targets and who "generally voted for university tuition fees".

Also, Lord Soley tried to speak to Graham Badman..? That's intriguing, because it sounds like Mr Badman neglected to respond. Surely he hasn't changed his entirely principled and not remotely potentially personally profitable view that "changes in the regulatory and legislative frameworks are necessary"? That would be bizarre indeed.

The noble Lord, Lord Baker, was absolutely right. When he said he thought back to his time in office and what he did about home education, that made me think back to my own time in office. In truth, we did not do much either.

As Secretary of State for Education and Skills from only 8th June 2001 until 24th October 2002, I don't think she had chance to do anything at all, but luckily no action needed taking on this issue.

At that time, the principle of a parent’s right to educate their child other than at school trumped everything else, but times were different. It is not about justifying whether that was right or wrong, but things have changed since the noble Lord, Lord Baker, and I were in office. In two chief respects, the context now is different.

The context is not now different. The wording of Section 7 of the Education Act remains exactly the same and all of the pre-engineered mission creep in the world won't change it.

First, as a society, we do more now to accept our joint responsibility for the well-being and protection of every child. We have always thought we do that, but so many cases in recent years have shown that we have not always done it. That is at the top of everyone’s agenda. The obligation that we owe as adults, as a society and as policymakers to every child to do what we can to protect their well-being is paramount.

Instead of focusing their time and efforts into strengthening local authority's responses in cases where the current regulations are often not correctly acted upon, this group of people is instead choosing to cause upset, distress and educational disruption by attempting to compel every home educated child to be monitored unnecessarily. I suppose it's easier to drink tea and eat home made cakes every year in a typical home educator's sitting room than it is to face down the proprietor of an illegal school and force it to close, whilst still pretending to be "doing something", but the former causes unnecessary stress to families and unnecessary expense for the state, while the second directly addresses the issue of people who are actually breaking the law for their own profit.

Secondly, we accept more now the right of the child to have an education, which may sometimes trump the right of parents to decide that their child should be educated in a particular way.

Yes it might, and when every school child has his or her educational preference met, then we can begin to ask the home educated children too. My own children are regularly offered school or other provisions by the way, as are most home educated children I know. Strangely, they are not keen to uptake the opportunity! The younger ones have never tried school but they hear enough about it from some of their school-attending friends to know that it is best avoided and I've heard hundreds of school-related horror stories but am only aware of two or three home educating ones, about which the local authorities did not take the correct action, incidentally.

The third factor in play here is that if you are the Minister, you can claim that there is guidance of a sort that deals with this issue. However, the guidance was published a decade ago by two Ministers who are now sitting in this House and relies on a trick that often happens in government. It says that they have the right to check that every child is well and getting a decent education, but then denies them every power that they would need to carry out that job. You can tick the box and say that there is guidance, but the bottom line is that you say to a local authority that if it suspects anything is wrong, it must do something about it, but you deny it the right to collect the information, the right to go into the home, the right to ask questions, the right to speak to the child.

The level of misunderstanding inherent in this paragraph is quite astounding. Firstly, the guidance does not say local authority officers have the power to check every child is well and getting a decent education and nor should it. The safeguarding duty set out in law is a passive one, not an active one and this is for two very good reasons: to target resources on the children who really need it; and to allow a degree of trust and freedom for innocent people about whom there are no concerns. The first is important to avoid the needle in the haystack problem as well as protecting the public purse and the second to preserve the presumption of innocence.

Nor does the guidance deny local authorities "every power" to check on the safety of children and the quality of their education provision. Properly reflecting the law as it does, it explains that if there are concerns, then thorough checks can and should be made. This is why we have Section 437 of the Education Act and sections 17 and 47 of the Children Act. Baroness Morris is either scandalously ignorant of such provisos in law and guidance, or this part of her contribution to this debate is alarmist in the extreme. As for the argument that says, how can local authorities know about concerns before they're reported to them? The answer is: they can not, and nor should they try to because such a change would lead to innocent people being constantly checked without end for crimes they have not committed, just in case they have done something wrong. The infringment this would cause on our Article 8 privacy would be unacceptable and damaging for all concerned.

Times have changed and it is quite clear that there is a problem to be solved.

No. What is quite clear is that those who would have us more regulated for philosophical or political reasons will use every case they can to try to prove that we need to be more regulated because we somehow present an increased danger to our children than school-using parents when we statistically do not.

People will say we do not know the extent of the problem, because we have not taken the powers to collect the information.

People who, for reasons of politics or philosophy, disapprove of home education will apparently say anything that suits their argument, and the more emotive the issue the more likely they are to try to make use of it to achieve their ends.

I thought about the groups that could be included in this, and part of the problem is that, understandably and rightly, the most vocal group is that of parents who do the job well and who for whatever reason have decided that the type of education they want their child to have is better delivered outside the formal school structure. Often the children are very gifted or have great special educational needs, but the way the parent wants to structure that child’s learning is one that the system of education has not been able to deliver for them, or they have been dissatisfied with the provision of education they have had. They are the articulate group and the ones who complain whenever we try to address this ​issue. I do not want their rights threatened — they are doing a good job, although it is not what I would choose for my child, and I absolutely respect their right to do that. But their voice should not take away from our obligation to protect children who are not in that group.

I am perplexed about the apparent absence of logic in this point and will restrict myself to repeating patiently yet again: the obligation to protect children who might be in need of services is amply covered by Section 17 of the Children Act. The obligation to protect children who might be at risk from significant harm is amply covered by Section 47 of the Children Act, and the obligation to protect children about whose educational provision there are concerns is amply covered by Section 437 of the Education Act. What more do these people want? CCTV in our homes?

Another group being educated other than at school are those who are deliberately hidden from society and are mistreated and abused as a result. They are not supported to flourish and thrive in society and are maybe, as my noble friend Lord Soley said, radicalised, or brought up and educated in a way that does not give them the skills, the attitude or the social skills to thrive as citizens.

There are laws to protect this group, as listed above. They should be used properly in order to fully help those who need to be helped.

One growing group that absolutely appals me are those parents who feel obliged to educate their child at home because they have been excluded from school and are advised by the school that the best thing would be to educate them other than at school. This is not a deliberate choice on the parents’ part, but a set of circumstances brought about by a school that wishes to exclude the child, which leads to the child being educated at home. So there is a linkage, and I suspect the noble Baroness, Lady Morgan, might say something about this, between unregulated schools and children being educated at home, which I had not clocked until the previous HMCI spoke more about it last year.

Section 13 of the Education Act confers a duty on local authorities to: "contribute towards the spiritual, moral, mental and physical development of the community by securing that efficient primary education, [and secondary education] are available to meet the needs of the population of their area.". Are we just completely overlooking the Education Act nowadays, or ought we as a nation, particularly our local authorities, to at least consider adhering to the duties it sets out? It should go without saying that if a school is off-rolling less preferred pupils then that school is not meeting the needs of the population.

The principle in the Bill that we need to know more about these children — who and where they are and why they are not in school — has to be right, and I very much support the aspect of the Bill that would do that. If we want to collect those figures, we must have a way of doing so. If we want to safeguard the well-being of the child, we have to know about them and talk to them. We have to know who is educating them and where they are being educated. We have to check what is happening to them. But those provisions in the Bill have to be right.

No, because it would not stop with just knowing which children were being home educated. The real end goal of all of this obsessive tracking and tracing is to monitor the educational provision and to ban it wherever possible. This is the only conclusion we can reach when the protective laws are already so clear and being so blatantly ignored in so many cases.

Where the Bill is also right but far more contentious, and I was pleased that my noble friend Lord Soley indicated that in his opening comments, is on where we say to society, “Thou shan’t make judgments about the quality of education being delivered”. I think we should make some judgments but I do not pretend it will be easy. This is the most difficult part of the Bill. In the interests of every child and of safeguarding a child’s right to education — a child’s right to education is a United Nations provision — I think there are things that we as citizens can agree on: a child should be literate and numerate and have access to physical activity, the arts, culture, science and all those wondrous things. In truth, though, while the state is very good at inspecting within a very regulated framework, it is less good at exercising judgment and discretion where people are not absolutely following that framework and regulation but are nevertheless doing a decent job. Most of us have talked to teachers and head teachers who have complained about the present inspection framework, and I can well imagine how nervous some parents are that they are going to have that conversation with some sort of regulator.

Yes. You can see already how it begins: "A child should be literate and numerate and have access to physical activity, the arts, culture, science and all those wondrous things." Statements that seem on the face of it to be perfectly reasonable and appropriate and applicable to absolutely every child, but which a little more consideration shows are not. Parents know their individual children better than local authority officers can and decisions about the provision should be made by parents, with local authority officers only intervening where it appears that this might not be suitable. The law on this is very powerfully and subtly framed in the negative, to afford every freedom to the parent to choose the correct provision according to her knowledge of the child's educational needs. It does not need to be changed.

I say to my noble friend Lord Soley, the proposer of the Bill, that he was absolutely right to acknowledge that that is an issue, but it is not one that we should ​not take on. It is just one where we have to be sensitive, and I hope that in considering the implementation of the Bill we will talk to those parents who are doing a good job of educating their children and do not want to have to change too much. We should make sure we can accommodate their needs. To ask a state regulation system to accommodate innovation and quirkiness almost does not go together as a request, but somehow we have to get this right.

The law as it stands already accommodates our needs while at the same time protecting those children who are in need, at risk, or whose education might not be suitable. It just needs to be properly implemented. As Baroness Morris seems to realise on some level, improving it is no easy matter and any change - in accordance with the rule of good intentions and unintended consequences - is likely to cause more problems than it solves.

I welcome the Bill. I congratulate my noble friend on bringing it to the House; he has a long record of taking an interest in this issue. Primarily, it will set us on course to deliver more effectively our obligation to protect every child and ensure that every child has access to a good education. We should tread warily, however, and fear that we may damage some good provision, but these problems are no greater than those we face in implementing any legislation or bringing in a policy that we know at its heart is good. I hope the Bill will get a Second Reading and I look forward to the debates that might ensue.

It will damage a lot of good provision. This is not a risk people should take with children and their education. Laws are already in place to address the problems raised and sufficient arguments have still not been made to properly dispute this fact.