Schools Bill [HL]

Lord Wei Excerpts

Committee stage
Wednesday 22nd June 2022 Lords Chamber

[Lord Knight of Weymouth (Lab)]

My Lords, this is an important group of amendments, very well introduced by the noble Lord, Lord Lucas; like the noble Baroness, Lady Garden, I do not propose to spend much time going over the points that he has made. I read the somewhat testy exchanges—when everyone was a bit tired, I think—at the end of the day on Monday, so it is nice to be having a debate about how we can better support parents rather than causing them any anxiety, if that is the concern.

In that context, having some means of appeal is really important. That might be through the ombudsman that the noble Lord, Lord Wei, is proposing in Amendment 171X or by some other means. I have been sat here wondering whether the Office of the Schools Adjudicator might be another possibility of a pre-existing office that could perform the function of refereeing and providing some kind of safeguard against the possibility that some rogue local authorities might overuse some of the powers being talked about; that is a worry, given the variety among local authorities that the noble Lord, Lord Lucas, talked about.

Amendment 130 from the noble Baroness, Lady Garden, about exams, which I put my name to, is important. It is really important that parents have a positive reason to register and are not just doing it because the law tells them to and that if they do not then they will be subject to penalty. This would be one of those positive reasons that we could offer. I am not sure whether the local authority having to find the funds itself is the answer because, as we know, local authorities struggle to find the funds to do much these days. If the Minister were to agree with this, perhaps she could reflect on the national funding formula or some other means whereby the money could find its way to elective home educators so that their children can have a link with a school and an examination centre. That all seems very positive in the wider scheme of things.

I share the concerns of the noble Baroness, Lady Brinton, about the scale of change regarding the penalties being proposed for parents who fail to abide by this. There is a further amendment on school attendance orders and there having to be some kind of judgment about what is suitable education from someone who at least knows something about education; that is also an important safeguard that we could put in to protect parents.

[Lord Wei (Con)]

My Lords, I shall speak to my Amendment 171X on the proposal for an ombudsman to provide protection for home educators. I support many other amendments in the group. I pay tribute to my noble friend Lord Lucas for putting this focus on the need to provide protection from overzealous local authorities.

I also need to apologise for not speaking at Second Reading due to a variety of home and personal health matters. I also need to declare an interest, in that I am part of a family that home educates. I cannot disclose all the details, which are private, but I have two sons whom primarily my wife home educates. She is incredibly well qualified for that work. They are teenagers and their education is going incredibly well. I fear I might be the only Peer in that situation, but if there are any others we might be able to form a little club.

I want primarily to speak from this perspective, as somebody from a home education family, on the Bill and the relevant clauses. First, as many others have done, I honour the many parents and caregivers, including my wife, who work tirelessly to raise their children, often at no cost to the state, for their outstanding outcomes and work in a variety of different contexts and for a variety of different reasons. If noble Lords want to find out more about how amazing home education can be, an exhibition has just been announced in Parliament in the Upper Waiting Hall, commencing the week of 4 July, which I highly recommend noble Lords pop in and see.

I need to start by saying that I cannot support the Bill. I believe much of it was designed after consultation merely to make the lives of officials in the department and at large in local authorities easier. Not enough is in it to help parents and families, or indeed society. It feels like it was a bit of a one-sided consultation.

We shall see how colleagues in the other place view the Bill. Arguably, the way it is currently drafted in many parts is an affront to freedom and makes a mockery of our claims to be about rolling back the state and enabling ordinary citizens to take back control. If it transpires, as has been reported in the press, that the Bill was launched without proper political vetting and that it will be radically altered by the other place when the politicians have time to look at it, then we all have to ask why our time is being wasted with what appears to be an incredibly lazy piece of legislation, designed to make officials’ lives easier, not those of citizens.

Frankly, I would rather that this part of the Bill, on registration of children who are not at school, which includes many in home education, did not exist, especially in its current form. It has not been thought through; more consultation is needed. Registration is a hammer to crack a nut, the nut being bad actors—I commend the noble Lord, Lord Soley, on raising this very real issue; it is not one that we want to sweep under the carpet—such as those in informal schools who, frankly, would raise children to oppose the existence of this country, or commit future generations to violence against citizens of this country, or inflict neglect and abuse. Many of these situations have been talked about.

Largely, I feel that this has been designed to fix an IT problem. As much was confirmed to me by a government representative, who I will not mention, who I discussed this with. I said that the Government could get this data anyway: we have birth certificates, local authorities ask who is in households and we have pupil registration in formal schools. We could triangulate that data—I come from an IT background; that is the kind of thing we can do with IT—to find out who was not in school. But of course, that is too difficult for the Government to do right now; IT is a very difficult area. So, to make us do all the work for local authorities and government, a registration programme is to be brought in when we could have fixed it with good IT and good use of the powers that already exist to safeguard children who are suspected of being abused or neglected. This is on top of a risk that the data, once collected, could be used intentionally or unintentionally to harm, or get hacked, which has happened.

I will not say much more on this point because I want to get to my amendment, but I suggest that registration could be voluntary to begin with but highly incentivised, perhaps using the Oak National Academy, the online school set up by the Government, as a resource and a referrer, which could provide amazing data if parents consented to it being provided and analysed.

What incentives might there be for signing up voluntarily to such a scheme? We talked about the cost of exams and paying for them. It costs £150 to £200 per GCSE; I am feeling the pain of that right now. Many families have to fork out a huge amount of money for those exams.

Another incentive might be the provision of forecast grades in the event of situations such as Covid. This was brought home for many home-educating families, whose children basically had to resit because no resource was available; children in school could get forecast grades from their teachers. The Oak National Academy might be a place that could provide such forecasts, based on its data.

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[Baroness Whitaker (Lab)]

My Lords, I may have omitted to declare an interest as chair of the Department for Education stakeholders’ group and other similar interests listed in the register. If so, my apologies.

I have added my name to Amendment 143I in the name of the noble Lord, Lord Lucas. I should make it clear that it is the increase in fines and custody that I have difficulty with. It might be better to do away with fines altogether.

I am heartened by the statement in the department’s factsheet that

“The government does not intend to criminalise parents”


in respect of school attendance orders. But Clause 50 does not achieve this aim.

When I was a magistrate, I recall cases of parents who, with the best will in the world, simply could not control their children. They were rarely parents who could manage the fines prescribed. As for the custodial option, the Farmer review emphasised how

“disruptive and costly short sentences are to family life”

and ties. What does the imprisonment of a parent do for a child’s attitude to school?

There are deep reasons for school refusal that should be investigated, as I also recall from my time as a teacher. Different means to ensure the essential participation in education that children must have must be developed, and indeed in some schools are adopted, but in this time of a cost of living crisis, at least we should not increase the penalties, which can be justified in very few cases.

In conclusion, I take issue with the “hammers and nuts” of the noble Lord, Lord Wei. The nut of not being in school is a very large nut indeed. Of course there are parents who educate their children well and who are going to have no trouble with a register, although I quite understand that there needs to be some clarity, but children who are badly educated or not educated account for a much larger number. It may be that noble Lords do not come into contact with these children very often. In other debates in this Committee, we have spoken about where these children are and why they are not educated. It would take a lot of time to go through this, but it is a much larger number than the number of children who are well educated. We really must do something about this. That is why the register is a good idea.

[Lord Wei (Con)]

My Lords, I will clarify my position. A number of noble Lords have mentioned—and perhaps implied—that what I was trying to say was that we do not go after these bad actors and do not pursue those using home education as an excuse to provide a poor, non-existent or abusive context for learning or non-learning. That is not what I am saying. I am actually in favour of strengthening the use of other means for the identification and pursuing of families, parents or caregivers who are not home educating and are instead using it as a cover for their practices. Personally, I think we should be as hard as we can on that and strengthen our response as much as possible, whether through data, local authorities or other action.

Right now, some people are using home education as an excuse to say, “Stay away; don’t look here; go away”. However, if the ombudsman, or any other mechanism, were to agree with the local authority that there are good grounds to pursue families such as these and ask for any kind of information it wants—and if, on the evidence, if it looks as though home education is not happening—then, yes, let us go after those many families who are thought not really to be home educating. In addition, let us support those families who are struggling. I did not want to be misunderstood on that front.

However, my main concern is about where there are miscarriages of justice and we get into matters of educational philosophy. I ask noble Lords to consider Finland, where education is not really monitored until the very end. Nevertheless, Finland has pretty much the best education in the world because it does not spend 30% of time in education—as we do—monitoring, testing and checking the learning; the Finns just let the learning happen and train the teachers. I believe teachers there are given the equivalent of bankers’ salaries to make them some of the best education and learning facilitators—if you like—in the world. I would therefore just caution against this monitoring and the need to know what people are doing—I do not think we need to do this. If we have suspicions that what is going on is bad, we need to pursue this and use every power we can to sort that out. However, I am not sure that it is the right approach to ask about everyone in the country who is doing home education—whether good or bad—just because they might be doing something wrong. The ombudsman would make sense of this; it would also make sense not to put families under such an investigatory lens for too long. I have friends who have waited two years for national insurance numbers for their teenagers. Imagine a home-educating family having to wait two years, just to be told that they are not abusing the system but are instead teaching well.

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It is hugely important that we get this right. I quite agree with the noble Lord, Lord Grocott, and would rather go the extra mile, even if it means another week or whatever it is, so that we do what is best for our children. This is not a race to get to the finishing tape; it is about making sure that we end up with legislation with which we all agree.

[Lord Wei (Con)]

I am sorry to interrupt again, but the point about Finland is important, because many of us in education policy—I helped to set up Teach First—have studied this material and I do not believe Finland is as exceptional as people make it out to be. I brought Professor Hattie over 10 years ago, who is a researcher who studied 15,000 randomised control studies on education—the noble Lord, Lord Knight, knows what I am talking about. He looked at 30 million children across thousands of studies and found three things that affected their education the most by a standard deviation. They were simple: how well does the teacher, or the parent in home education, know the child? How difficult is the work? If it is too hard or too easy, it makes a big difference. And when they mark their work or give feedback, how good is that feedback? Those three things can work in any system or country, whether private or public. All the things we argue about in politics—private/public, the size of the class and teacher pay—were shown to make a limited difference in the randomised studies. Incidentally, televisions and screens were very bad, and keeping kids back a year took things back by a standard deviation.

We could debate Finland for a long time, but I would argue that home education has many of the hallmarks that the Finnish enjoy. They are: an incredibly great relationship between the well-paid teacher and the child; and the time, because they are not being monitored all the time, to set work at an appropriate level; and to give great feedback.

[Lord Storey (LD)]

I thank the noble Lord for that and would, at some point, like to talk to him about Finland. One of the other things we forget is that, just as a teacher in the classroom—I still miss teaching and miss my time in the classroom, because I got a great deal from that—home educators get a great deal from being with their children, learning with them and teaching them. We forget the importance that can have for the family home and for parents, whether they are a family or a single parent.

I end by going back to the point I was making: it is really important that we get this right. This is an opportunity to reset the dial, so that we achieve what we are all trying to get.

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[Baroness Barran (Con)]

So, as the noble Lord knows extremely well, is the spectrum of educational needs. I know that one is not allowed to have props in the Chamber, but I commend to the noble Lord the flowchart at the back of the policy notes on this part of the Bill. It sets out the process, including where a child has special educational needs. I think it is easier to follow than me trying to explain at the Dispatch Box.

Turning to Amendment 130A from my noble friend Lord Lucas, individuals already have the right to ask local authorities for copies of their personal information and inquire how they are using it by submitting a subject access request. A parent can demand that inaccurate information is corrected, and if the local authority fails to do so, the parent can complain to the Information Commissioner, who has significant enforcement powers.

Turning to Amendment 134A, I repeat that it is not possible for fines or penalty notices to be given to parents for failing to provide information for the registers and the Bill does not provide for that, but if parents fail to demonstrate that their child is receiving a suitable education, it is right that the local authority begin the process of issuing a school attendance order. If the parent is unable to evidence that the education they are providing is suitable, the process will lead to an order being issued. If the parent then breaches the order, they may be fined by the magistrates’ court. On collecting and publishing data on this, the Bill already provides flexibility to require this through regulations.

I now turn to Amendments 136ZA, 136B, 136C, 137B, 138ZA, 138A, 139 and 140, from my noble friend Lord Lucas, the noble Baroness, Lady Garden, and the noble Lord, Lord Shipley. My department’s guidance for local authorities highlights that the authority should initially attempt to resolve doubts through informal inquiries.

The noble Lord raised the point of expediency, and I am grateful, because I absolutely understand why, and why it sounds anything other than what one might expect. The current test for issuing a school attendance order is that the child is not receiving a suitable education, in the opinion of the local authority and, as the noble Lord said, that it would be expedient for the child to attend school. That is the test contained in the existing Section 437 of the Education Act 1996, and new Section 436J mirrors that test, so this will keep the test for issuing a school attendance order the same in both England and Wales. I again point the noble Lord to my favourite flowchart, from which he will see that, prior to issuing a school attendance order, there needs to be a preliminary notice, which is covered at new Section 436I(3)(c), where it says that one of the conditions for issuing a preliminary notice is:

“the child is not receiving suitable education, either by regular attendance at school or otherwise”.

I absolutely understand his question, but I hope I have reassured him and the House that, while it may appear to be one thing, it is covered absolutely properly in the legislation dating from the 1996 Act. The current law, supported by guidance, requires that local authorities take all relevant factors into account when considering whether it is expedient for a child to attend school, and that includes where the child has expressed an opinion about attending school—the voice of the child was something that a number of your Lordships raised.

Local authorities should have the in-house expertise to make these decisions, but if they do not, they can and should consult a suitably qualified external expert. We will make this clear in our guidance. It is crucial that the time a child is in receipt of unsuitable education is minimised, and therefore it is right that local authorities move to initiate formal school attendance order procedures as soon as possible where home education appears unsuitable. The noble Lord, Lord Storey, rightly mentioned the work of many charities; we may be thinking about the same ones. If he goes back to the schools White Paper, he will see that our approach on attendance is: support first, support second, support third, with enforcement very much down the line. We are working with a number of charities which are leaders in this field.

Amendment 143B from my noble friend Lord Lucas is unnecessary, because if local authorities were to refuse to revoke a school attendance order on an unreasonable basis, that refusal would in itself be unlawful.

My noble friend’s Amendment 143F would mean that if a parent was found guilty of breaching a school attendance order and continued to breach it, the local authority could take no further action to enforce it: it would have to restart the process and make a new order. That would obviously be a waste of public resources, but, more significantly, would add to an already lengthy timeframe in which a child may be in receipt of an unsuitable education. I should be very happy to follow up with my noble friend on the specific example he gave, where that home education may have changed, to check that we have that very reasonable point covered.

Finally, I speak to Amendment 143I, also tabled by my noble friend and the noble Baroness, Lady Whitaker. A breach of a school attendance order is currently punishable by a fine of up to £1,000, compared to a maximum fine of £2,500, or up to three months’ imprisonment, for the offence of knowingly failing to cause a child to attend the school at which they are registered. This means that there is currently an incentive for some parents to remove their child from school under the guise of home education rather than incur the greater penalty associated with non-attendance. By aligning the penalties, we can increase the deterrent and help ensure that as many children as possible are in receipt of a suitable education.

The noble Baronesses, Lady Whitaker and Lady Brinton, asked about the change in custodial sentence. Wider criminal justice legislation, which has not yet come into force, will raise sentences in magistrates’ courts from three months to 51 weeks. New Section 436Q is simply in line with that wider change, and until it comes into force, the maximum sentence under new Section 436Q will remain at three months, as set out in subsection (9). The noble Baroness, Lady Brinton, also raised the issue of publication of individual data, and I am happy to repeat that we are taking that away to consider it.

I hope that I have answered the bulk of the points raised in this group and I ask my noble friend to withdraw his Amendment 112A—

[Lord Wei (Con)]

I think that my amendment might have been missed out. I would be grateful if my noble friend the Minister had any thoughts on Amendment 171X and the idea of an ombudsman with the expertise to adjudicate and mediate to prevent any expensive court cases that might otherwise occur.

[Baroness Barran (Con)]

I apologise. I referred to my noble friend’s amendment right at the beginning of my remarks and reflected that we will consider what options there are to make sure that there is a system that feels fair to parents and in which parents have trust and confidence. With that, I ask my noble friend Lord Lucas to withdraw his Amendment 112A and hope that other noble Lords will not move theirs.