Wednesday, 16 September 2009
Is the law on home education going to change?
There seems to be real and genuine anxiety among some parents about proposed changes in the law which might allow children to be interviewed by local authority officers without the parents' presence. How likely is such a law to find its way onto the statute books? Well, not at all likely really. Let us look closely at the process.
Transforming a recommendation from a review conducted for some government department into a new law is quite a big step. The Badman report made a number of recommendations and there is no way of telling which parts of them will be chosen as the basis for new legislation. Often, the laws that emerge from such reviews are all but unrecognisable when compared with the original ideas that were suggested. The chance of one sentence taken from the twenty eight recommendations of the Badman Report eventually ending up as the law of England is slim. More probable by far is some bland and anodyne statement that local authorities should make every effort to establish that children are receiving a suitable education. However, let us assume a worst case scenario and take it for granted that this is the intention of the lawmakers, that they really want the right of LA officers to see children alone.
The next hurdle is that the government is rapidly running out of time. The next election will be held next June at the latest, so I would say offhand that there is only a fifty fifty chance of this being dealt with during the life of this parliament. If it does make it into law then we can say one thing with complete assurance; that it will be a hasty and poorly worded law. This is good, for reasons which I shall explain later. For now, let us again assume a worst case and that the law has been passed. What now?
It is important to realise that many laws are passed and then virtually ignored by everybody. Easter, for example, was fixed by an Act of Parliament in 1928 as being the Sunday after the second Saturday in April. It is legally not a moveable feast at all and has not been for over eighty years! You were probably not aware of this, because nobody took the least bit of notice of the law. More recent and relevant to us is the Caravan Sites Act 1968. This laid a statutory duty on all local authorities to provide campsites for Gypsies. Many councils simply ignored it and there has been no consequence at all for them. Central government often pass laws like this which require local authorities to do this or that. Many of these laws are disregarded. So even if the law is passed, there will be a good deal of discretion for local authorities as to how strictly it is enforced.
Let us pretend though that all this has happened. The law has been passed, it includes the right of local authority officers to interview children alone, everything is settled now, surely? No, this is where the fun begins! The first thing that will happen is that the law will be tested in the courts and the test here when a public authority is carrying out what it sees as its functions is not just whether the body is acting in accordance with its powers, but if it is being reasonable and proportionate. This means that even if the local authority is acting within the law, the courts can tell them to lay off on the grounds that their behaviour is unreasonable. I can't see it being five minutes before this ends up in a Judicial Review. In short, the courts will have to decide whether expecting to enter a home against the wishes of the parents and speak to a child alone is a reasonable requirement. They will make their decision in the light of precedent and also the test of what is reasonable and proportionate. I can't see such a clause surviving, even if it was in the new legislation. This would be made even more likely because this law, if it is passed, will be a typical rushed job, cobbled together and pushed through in haste. Such laws tend to be very easy for the courts to reject.
To summarise, there is a long way to go before anybody needs to get het up about all this. My personal view is that some new legislation would not come at all amiss. I realise that not everyone agrees with me on that point, to say the least of it. But it does not really matter, because the chances of local authorities actually ending up with specific powers about interviewing children alone are negligible.