Schools Bill [HL]

Baroness Chapman of Darlington Excerpts

Committee stage
Wednesday 22nd June 2022 Lords Chamber

[Lord Storey (LD)]

I was slightly diverted there. I am going to be very brief. I am diverted because—is Amendment 123 in this group? Yes, it is.

I will perhaps ask the Minister a question. Any teacher who is teaching children in a school has to have disclosure and barring clearance. Regarding the practice—and I do not complain about this—where some home educators use teachers either to teach their own children, not all the time but occasionally, and maybe a group of children, presumably those teachers have to also have safeguarding qualifications. What I am trying to say in this amendment is that there are cases—and this actually was raised with me by some home educators—where, for example, and I think this is very good practice, the children will meet other adults who are not qualified teachers but have particular expertise in a particular area to instruct or teach their children. What this amendment seeks is to ensure that those adults also have safeguarding clearance. I do not know what the current situation is on that.

I also want to respond to the point in Amendment 129, which my noble friend Lord Addington signed. This is the issue which I still struggle with. For those pupils who are permanently excluded from school—and in the vast majority of cases they are young people with special educational needs—if there is not a pupil referral unit on the site of the school, they get moved to an alternative provider. As we have discussed, I think in Written and Oral Questions, many local authorities, often because there is a shortage of places or because they have not got the money, look for the cheapest provider. I had a meeting yesterday with Ofsted, which told me—I was absolutely horrified by this—that one unregistered provider charges £50 a day plus taxi fares, including the £50, almost just to look after that child. That child could have special educational needs, so this cannot be allowed to go on. We need to take a firm hand. I am sort of having a second go at this, because I was chairing the session today at the All-Party Parliamentary Group for Education. The Minister on special educational needs spoke about this and I was very reassured, but hoped I could be reassured from our Minister on this issue as well. Other than that, that is all I want to say.

[Baroness Chapman of Darlington (Lab)]

I do not want to repeat much of the good stuff that has been said, but I shall just mention our Amendment 128, which amends Clause 48 on sharing data between local authorities when a child moves. We are just pointing out that we must have regard to child protection and the safety of their parents when this is done. We are concerned that, where there are circumstances in which a parent is moving as a consequence of domestic violence or is a victim of or witness to crime, that they are protected. To be absolutely clear, we want to make sure that information can be shared, and that it can be shared safely and quickly.

On Amendment 129, about the support provided by local authorities to children with special needs or disabilities, we are very interested in supporting this. We take the points raised on time limits and school days and would be sympathetic to any reasonable amendments along these lines at Report.

[Baroness Barran (Con)]

My Lords, I turn to the second group of amendments, starting with Amendment 128A, in the name of my noble friend Lord Lucas. I would remind the House that the law is already clear that parents have a right to educate their children at home. The Government continue to support this where it is done in the best interests of the child. Our guidance on home education for local authorities is clear that elective home education, of itself, is not an inherent safeguarding risk, and local authorities should not treat it as such. We are also aware that there are a number of reasons why parents may choose elective home education. Sometimes, as your Lordships have already raised this afternoon, this may not be their choice, for example due to off-rolling, which is why we believe it would be valuable to require the recording of reasons for home education, so we can identify some of the wider system issues which my noble friend rightly points to in his amendment.

On Amendment 128, from the noble Baroness, Lady Chapman, the information held in registers will of course be protected under UK GDPR, like any other data, and the Bill only enables data to be shared with prescribed partners where the local authority feels that it is appropriate and proportionate to promote the education, safety and welfare of children. I am very familiar with the issues that she raises in relation to domestic abuse and just how devious some people can be in trying to track down a former partner, which is why that proportionality of risk is so important.

I would like to thank again my noble friend Lord Lucas, the right reverend Prelate the Bishop of St. Albans and the noble Baroness, Lady Garden of Frognal, for Amendments 114A through to 119. We believe that the timeframe of 15 days in which parents or out-of-school providers must provide information for a local authority register strikes the right balance between minimising the amount of time a child would spend in potentially unsuitable education and allowing sufficient time to send the required information. In addition, defining the period in terms of “school days” would, we believe, be an inappropriate and impractical measurement for home-educated children who, as we heard in the debate, by definition do not necessarily follow a school calendar. But I think the issue with the timings and those proposed by my noble friend in later amendments on the school attendance order process is that, if you take them all together, it would more than double the length of time that a child would be without suitable education. It would take the total number of days to 120, instead of 51 on the Government’s proposed process. I think that is the way I would ask your Lordships to think about it. Each individual step may look tight to some of your Lordships, and to some home educators and proprietors of education institutions, but when we look at it in the round, the fact that a child could be in unsuitable education for 120 days, versus 51, is the point I would ask your Lordships to reflect on.

The noble Baroness, Lady Garden of Frognal, proposed Amendment 126. The monetary penalty for failing to provide information, contained in the new Section 436E, only applies to persons who provide out-of-school education to children without their parents being present. Parents who fail in their duty to provide information, or who provide false information, for the register would not be subject to any financial penalty. Rather, as I mentioned earlier, the local authority will be required then to initiate the process of finding out whether a child is receiving suitable education. That is obviously the central point of their inquiry. If they find that a child is not receiving this, then it could lead to a school attendance order. And if that attendance order is not complied with, it could eventually result in a fine being imposed, but only if the parent convinces neither the local authority nor the magistrates’ court that their child is being suitably educated.

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[Lord Storey (LD)]

I was not going to speak on this group, but I am now. My noble friend Lady Brinton is right: the tone is really important; we underlined that in previous debates.

I am very nervous that we said right at the beginning—I think there was agreement across the Committee—that this was about protecting the vulnerable and ensuring the rights of children. I guess that all noble Lords here have been bombarded with emails from home educators, and we must be careful that we do not believe everything that they tell us. As the noble Baroness, Lady Kennedy, was talking, I received an email giving a completely different view about how some home educators are suing one other over what they said; some are being told to be quiet. The noble Baroness mentioned a couple of organisations, but, for some people, there is more at stake here. We must remember—I repeat this—that the vast majority of home educators are doing a fantastic job; they want support and to work together. If we ramp up the fear that they will be threatened, they will feel threatened. We should try to ensure that they completely understand what we are trying to do to support them and their child.

[Baroness Chapman of Darlington (Lab)]

My Lords, we are respectful of the right of parents to educate their children at home, but we cannot agree that this clause should not be part of the Bill. There are clearly important measures that we support quite strongly and want to see enacted. We support the principle of a register. However, there have been some helpful suggestions for improvement—particularly on new Sections 436C and 436D(2), inserted by Clause 48—and the Minister has committed to go away and consider those further.

On the issues around data we raised in relation to Amendment 128 in an earlier group, having thought about what the Minister said and the issues raised by the noble Baroness, Lady Kennedy, and other noble Lords, I think it is worth some further consideration, because clearly there are risks and we would not want to rush into anything that would cause more problems. We hope that, with some improvements, this clause will be a helpful and necessary change that will safeguard children. It is not about forcing children back into school; it is about balance between freedom to decide and safeguarding.

On the comments that we have just heard from my noble friend, this Bill is not ready for Report. We do not think that the Government will have time to reconsider some of the issues that have been raised. It would seem appropriate, given everything that has been said, for us at least to wait for the regulatory review to be completed before we take this Bill to Report.

[Baroness Penn (Con)]

My Lords, I thank the noble Baroness, Lady Kennedy, for giving us the opportunity again to ensure that the tone we take when talking about this issue—as the noble Lord, Lord Storey, and many other noble Lords in this debate have said—is one of support, of explaining what the Government are seeking to achieve with these measures and of trying to allay some the concerns we have heard, while being clear that we do not lose sight of the importance of protecting a child’s right to education. In doing so, I can reassure the noble Baroness, Lady Kennedy, that the introduction of registers is not, in any way, intended to undermine or interfere with the parents’ right to educate their child how they choose. This clause includes no measures on monitoring or assessing the education that parents may be providing. Local authorities’ existing powers are already sufficient in this regard, and we have already provided guidance to support local authorities to determine whether education is suitable.

As many noble Lords have said, we know that many parents who home educate do it very well—often to a very high standard and in challenging circumstances. However, that is not the case for all. That is a key point I would like to emphasise: this Bill is about establishing registers so that we know who and where home-educated children are; it is not about forcing them back to school.

A school attendance order can be issued only if the local authority is not satisfied that the education provided for the child is suitable. The example raised by the noble Baroness, Lady Kennedy, of the little boy thriving at home with his new adopted family is clearly a case where the home education being provided is suitable and, if demonstrated as she described, the local authority could only agree with that. Similarly, on her example of a girl in year 1 who developed seizures, if the education being provided at home is suitable—and that is demonstrated to the local authority—the local authority could not reasonably issue a school attendance order. In addition, the current law, supported by guidance, already requires local authorities to take all relevant factors into account when taking a view on whether it is expedient for a child to attend school, including any medical grounds.

I turn now to the noble Baroness’s question about parents needing local authorities’ consent to home educate. I can reassure the noble Baroness that condition C in new Section 436B simply does not do that; it establishes that a home-educated child is eligible to be included on the local authority’s register. That is a statement of fact; there is nothing about consent involved in new Section 436B.

As we heard in an earlier debate, we must recognise that there are growing numbers of children not in school, particularly after the pandemic, and there are concerns that some of these children will not be receiving suitable education—and, in some cases, not at all. We need to be able to assure ourselves that they are receiving a suitable education, and that is what these provisions are all about. While parents of eligible children will be required to provide information to local authorities for inclusion on their registers, local authorities will be able to require only that information which is prescribed in legislation. Any additional information prescribed will be intended to support the promotion of the education, welfare or safety of children.

I have also heard the concerns about data sharing—which was raised not just in this group—and was sorry to hear about the specific situation the noble Baroness described; that absolutely should not have occurred. As my noble friend the Minister has explained, there will be protections in place: the clause allows local authorities to share information only with certain prescribed persons, to be set out in regulations, when they consider it appropriate for the purposes of ensuring the safety, welfare or education of a child—

[Baroness Chapman of Darlington (Lab)]

There is quite deep concern about this issue, and I wonder whether the regulations could be made available to us before Report.

[Baroness Penn (Con)]

I can absolutely take that point away and see whether it is possible. If that is not the mechanism by which we can provide further detail and assurance, I will look at what else we can do to explore, and reassure on, that issue further.

As my noble friend the Minister said, under UK GDPR, parents have the right to object to any processing where UK legislation requires such processing, which would include the sharing of information to prescribed persons. The organisation responsible for that processing would then need to review the request and decide whether the processing is in the best interest of the child or family, and either uphold the request in the specific circumstances or proceed with the processing. The parent also has a formal route of complaint with the Information Commissioner’s Office, which has a range of powers in this area. It is essential, however, for local authorities to be able to share information, if needed, to support multi-agency safeguarding and education efforts, with the appropriate safeguards in place.

On the question of statutory guidance, which the noble Baroness asked about also, this will help ensure the consistency of interpretation and implementation of duties across local authorities. As we said, we will ensure that it is created in close collaboration with local authorities and home educators, and includes advice on how local authorities can best promote positive engagement, as we have heard the concerns from parents where that has not been the case. We have also heard examples of best practice, and that is what we will seek to draw on in drafting the guidance.

There was a concern about financial penalties for tutors or childminders and home education groups. The duty on providers to share information on request will be important in helping to identify those children who are not—but should be—on registers, and those regulations will be used to set a threshold at which an education provider comes into the scope of the duty in Section 436E, ensuring the duty is only placed on providers that provide a substantial proportion of an eligible child’s education. There is also the power to make regulations to create specific exemptions to this duty, and we have indicated our intention to use that power to exclude informal groups of home-educating parents from the scope of this measure.

I thank the noble Baroness once again for the opportunity to reiterate some of those points, and I think we have heard the areas that the Government will take away and look at to ensure that we continue to have a message for support for home educators, but not lose sight of the importance of what we are trying to achieve with these registers.

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[Baroness Chapman of Darlington (Lab)]

I do not want to detain the Committee either, but my ears also pricked up at the question of six months or 12 months. I was part of the Bill Committee when we agreed that magistrates should have the power to hand down sentences of up to a year. This is a slightly odd one; I do not think I have ever seen an offence drafted quite like this, especially given the journey that people would go on to be subject to these orders. I absolutely accept that, for a situation to get this point, the circumstances would be extremely unusual. If you need to send a parent to prison for a year for failing to get their child to school, there is a lot more going on. There will probably have been multiple interventions from social services and elsewhere before we ever got to that point. Whether the child would still be in the care of a parent who needed to go to prison for failing to get them to school is an interesting question.

It is usual, I should think, with an offence such as this, for a Minister to explain why a penalty of a year will have any more of a deterrent effect then a penalty of six months, eight months or three months. I know they would be available to a magistrate, but it is unusual to see it done in this way. I do not know whether that is because it is a Bill of the Department for Education, rather than the MoJ, which is perhaps more used to dealing with such clauses. It would be helpful if the Minister said a bit more about this.

I am content that these clauses should stand part of the Bill, but I am sensitive to the concerns of home educators, particularly those who are doing a good job. We do not want them to feel undermined or threatened in any way by this. We can stand here and say “Well, they shouldn’t; there’s no need for them to”, but the fact is that that is how they already feel, so we have a job of work to do to meet them where they are on this. At this point, it would be helpful if the Minister said what she can on that, but we do not want the clauses removed from the Bill.

[The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)]

I shall speak to Clauses 49, 50 and 51 and Schedule 4, which the noble Baroness, Lady Jones, opposes. She asked me to summarise the purpose of this part of the Bill. The overarching purpose is that we should feel confident that every child in this country is getting a suitable education, that we should offer support to those home-educating parents who feel they need it, and that we should address the very small number of children who are not in school or being suitably educated at home, and who are exposed to a range of risks which we have discussed tonight.

The other point behind the noble Baroness’s very fair question was to ask us about the spirit in which we approach this and how we are doing it. As the noble Baroness, Lady Chapman, said, it does not matter whether we tell parents to think a certain thing: if we feel it, we feel it. I hope that the Committee senses that we acknowledge that. I feel it is our responsibility to try to address those anxieties and put ourselves in the shoes of parents who are worried about the proposals. It is material, in our commitment to develop guidance for local authorities, that we will do that in partnership with local authorities and home-educating parents, so both voices are there. I hope very much that we will reach a good place with them, and that that recap responds to the noble Baroness’s question.

I am afraid that I will have to write to the noble Baronesses, Lady Brinton and Lady Chapman, regarding their questions. My understanding is that we are bringing the offence in this Bill in line with other similar offences, but both noble Baronesses have asked extremely good and detailed questions and I will respond to them in writing.

Clause 49 amends the school attendance order process in England to make an order a more effective measure for parents who are not providing their child with a suitable education, or who fail to demonstrate that they are doing so to local authorities. If a local authority knows that a suitable education is not being provided, or cannot deduce whether it is, it is important that this be acted on quickly to make sure that children get a suitable education as quickly as possible. For this reason, additional timeframes have been introduced and in some existing cases, as the Committee has debated tonight, shortened. We are trying to bring more consistency by aligning the process for and effect of orders for academy schools more closely with that for maintained schools.

Clause 50 similarly seeks to increase the efficiency of the process where a parent fails to comply with a school attendance order in England, and to support the child’s right to education and minimise the amount of time that a child misses education. Today, if a child is registered at a school but their parent keeps them at home without a valid reason, the parent commits an offence and can potentially receive a heavier penalty than if they simply withdraw the child from school completely without providing any education at all and ignore a school attendance order. Equalising the maximum penalties for those two situations removes this perverse incentive to take children out of school without providing suitable home education. These changes are only being made to the school attendance order process in England. Therefore, Clause 51 and Schedule 4 make consequential amendments to help separate the two processes in England and Wales and to ensure they are reflected in relevant legislation such as the Children Act 1989 and the Education Act 1996.

With that explanation, I ask the noble Baroness not to oppose Clause 49, the other clauses and Schedule 4.

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[Lord Berkeley of Knighton (CB)]

My Lords, I want to embellish a couple of points particularly pertinent to the noble Lord, Lord Lucas, and my noble friend Lady Meacher.

Some noble Lords may remember that a few years ago we created care orders in cases of FGM for the family court. What emerged from the research that I did into that was that it was the family units that were espousing FGM but, furthermore, they liked to see themselves as a society—and, in certain cases, belonged to a society—that initiated and believed in female genital mutilation. I make this point because, as the noble Baroness, Lady Meacher, said, it is very easy for a small group of people to move from being a family unit to being accepted possibly as a “school” and thereby having the moral authority to take forward these practices and propagate them. I mention this as a point which we should bear in mind, given what my noble friend Lady Meacher and the noble Lord, Lord Lucas, were warning us about.

[Baroness Chapman of Darlington (Lab)]

The amendment tabled by the noble Baroness, Lady Meacher, is a characteristically sensible suggestion. I hope that the Government are mindful and assure the House that there is no loophole or that an amendment will be used to close it. The amendments tabled by my noble friend Lord Mendelsohn raise similar important issue. The Minister is nodding, so I am sure that she will have something positive to say about this.

The point made by the noble Lord, Lord Storey, about excluded children, is an important one. Maybe we cannot deal with everything in his remarks through this Bill, but I hope that we can attend to those issues that have been around for such a long time. We still see managed moves used far too frequently. It is gaming the system. We know that it goes on. I am sure that when we put in measures to deal with that there will then be another set of behaviours to tackle, but such is life.

On our Amendment 171G, I was very keen to get something in the Bill that has come out of Josh MacAlister’s potentially ground-breaking report. MacAlister’s argument is that in too many places the contribution and voice of education is missing from multi-agency safeguarding conversations. I hear often from partners, usually in health, how difficult it is to engage with schools. Schools want their voices to be heard and to have a statutory role but are unable to do so at the moment. The recommendation from the MacAlister report is that there should be the opportunity that there is in this Bill—well, I am saying that it is an opportunity in this Bill. If we do not take it, I wonder whether when we get the Government’s full response to the MacAlister report we will look back at this and regret that we did not take the opportunity of what is quite a simple recommendation.

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[Lord Lexden (Con)]

My Lords, I will comment briefly, following on from the noble Baroness. As usual in education debates, I declare my interest as a former general secretary of the Independent Schools Council, which accredits and represents some 1,400 schools, and as the current president of the Independent Schools Association, one of the council’s constituent bodies, which has some 580 of those schools in its membership. There is not a household name among them, and none of them is large in size: many have no more than 200 pupils, some less. But all of them are serving their local communities; responding to their parents’ wishes; striving to keep fees down; and fulfilling their charitable purposes, not just by providing education—recognised as a charitable purpose in law for over 400 years—but by delivering wider public benefit through bursaries, partnership projects with local state schools, and participation in local community projects. Because of the lateness of the hour, I will not give further details in full reply to the noble Baroness.

This amendment seems to have been dug out of the Labour Party’s archives.

[Baroness Chapman of Darlington (Lab)]

It has not been dug out of an archive. I expect it to be in our next manifesto, so I expect the noble Lord to have to engage with this on a regular basis.

[Lord Lexden]

I want to give some background, if I may. At the general election of February 1974 the Labour manifesto declared:

“All forms of tax-relief and charitable status for public schools will be withdrawn.”


With some redrafting, “private schools” being substituted for “public schools” for example, this remained the Labour Party’s position during the rest of the 1970s and throughout the 1980s. At the 1992 election, the threat to charitable status disappeared, 30 years later to suddenly come back now, a weary ghost from the past.

What has happened during the last 30 years? Something significant has occurred: schools in the two sectors of education have moved ever closer together. The credit for this, of course, belongs to the schools themselves. They were drawn together by a recognition of the mutual benefits of partnership in so many different areas—in teaching, particularly in specialist subjects, music, drama and sport. Today this large programme of joint work is underpinned by a memorandum of understanding between the Independent Schools Council and the Government. Details are available on the council’s Schools Together website. Extensive though the programme is, there is more to be done. The best thing that everyone who has the interests of education at heart can do is to press independent and state schools to do more together. Noble Lords opposite should perhaps visit some independent schools to see what partnership work they are carrying out with state sector colleagues—that is the word they use, “colleagues”.

When I was at the Independent Schools Council, years ago, I found it quite difficult to interest the Conservative Party in any of this; Tony Blair’s Government was a different matter. Education Ministers, including Charles Clarke and David Miliband, came to the council’s offices for discussions. An official independent/state schools partnership scheme was set up to encourage progress, backed by modest funding from the Department for Education. In 2000, the then Schools Minister wrote that there had been “a huge cultural change”. In January 2001, she wrote: “There are no plans to legislate to remove charitable status from independent schools.” The same Minister got independent schools seats in the General Teaching Council and introduced special fast-track arrangements to help teachers in independent schools get QTS. She referred to them earlier in these debates. Always listen carefully to everything the noble Baroness, Lady Morris of Yardley, says in this House. I am sorry she is not in her place at the moment.

For years, independent schools have used the benefits of their charitable status, and more besides, to give help with fees. Back in 2001, I used to say that for every pound of benefit received, they provided £2.30 in help with fees. What would be the effect of overturning a law that has stood for over 400 years by confiscating the schools’ charitable status? Fees would rise, bursaries would fall, and schools would become more socially exclusive. I think the policy embodied in this amendment should go back to the Labour Party’s archives.