The Schools Bill
a power grab, car crash, worst Bill ever seen*
The Schools Bill
The Schools Bill is a huge Bill which covers regulating academies, funding, school attendance and independent educational institutions. In each part the legislation grants unprecedented power to Whitehall.
The measures around school attendance and children ‘not in school’ are outlined below.
The Bill grants the Secretary of State unprecedented numbers of Henry VIII powers, which will enable the government to grant themselves even more power than the already excessive powers included in the Bill. Moreover, even though the measures in the Bill are ones long intended by the government, it is full of holes and requires extensive explanatory factsheets and assurances from the government that they wouldn’t abuse it in the way it is open to being abused.
Even Lords in favour of measures such as the ‘children not in school’ registers have spoken out against the dangers inherent in the registers as this legislation puts in place, the wide data sharing, the lack of precision is what is required from parents, at the risk of fines and prison.
The Schools Bill must be stopped.
*As described by Lord Baker and Lord Addington.
“This house has never been asked to pass a bill the guts of which have been taken out. We have no idea what is going to be placed into it later.”
~ Lord Baker
Figures from 2021/22
Unauthorised non-attendance was 1.6%.
Overall absence at 6.9%. “The majority of the increase in absence was due to illness” (Covid now included in figures.)
Figures from 2020/21
Overall absence was at 4.7%. 2.1% from sickness (covid excluded),
New statutory attendance guidance
It introduces a national framework for responses to absence which include fines, parenting contracts – both voluntary and court enforced – prosecution and also referral to social services.
The guidance states that if support is offered and the child still does not attend school this will be considered parental neglect.
Headteachers are only authorised to grant leave for exceptional circumstances which does not include family holidays. Any holiday in term time is highly likely to be unauthorised absence and subject to penalties.
States that schools are “strongly advised to sign up to” the live attendance tracker which it says the “Secretary of State intends to make a statutory requirement when parliamentary time allows”.
Fines, prosecutions and referrals to social services already happen but are set locally.
The pressure from government on local authorities to take a tough line on absence was relaxed because of lockdown. The Department for Education’s data shows that many schools and local authorities have responded by not issuing fines nor any of the other measures. The government are not happy and former Secretary of State Zahawi wrote to local authorities to encourage them to step up fines and other measures.
Currently 14 per cent of authorities issued half the total fines. Fifteen councils issued 10 or fewer notices, and seven issued none at all.
Criminalising families / pulling greater number of families into social services investigations / parent blaming / harming children and families / data protection / tracking of children / widespread distribution of children’s data, including to police.
The focus in the guidance is on the child and parents as responsible for the child’s non-attendance, whereas we know that wider factors, outside of control of the child or parents, are often responsible.
Families whose children experience barriers to attending school – often children who have special educational needs or disabilities – already experience threats of fines and punishment but headteachers are currently able to apply discretion and do not actually fine these families at high levels.
In the government’s School Attendance – School’s Bill Factsheet they state that local authorities would still have discretion about the usage of fines and that it would make authorities decide on a case by case basis if support not engaged with. Groups campaigning in this area say that they have serious concerns that it will lead to much higher levels of fines and that families report that the ‘support’ does not help.
The live tracking of children’s attendance and location – buried in the document – is seriously concerning. The government will soon be able to see where eight million children are in real time. There is no good reason for the Department for Education to have data of individual children at named level, let alone know where each child is. The information is intended to be shared with agencies including the police and parents haven’t even been consulted.
“I think that this is really sloppy, particularly when you are talking about something that could lead to imprisonment. I have done a lot of justice Bills, and I do not think I have ever seen anything quite like this”
Baroness Chapman of Darlington
“Subsection 2 is devastating.
It allows the local authority to invent anything.”
The ‘Children Not in School’ registers
ind The Schools Bill introduces a duty on local authorities to have registers of any children ‘not in school’. This is intended to include home educated children, flexi-schooled children, some children educated in alternative provision when not organised by a school and any children missing education the local authority might become aware of. (The wording of the legislation is broad enough that it could include many school children, even children out of school on an educational field trip or swim session. The government intends to use secondary legislation to explain exactly who is in or out of remit. This can be changed without any parliamentary oversight.)
The legislation creates a duty on parents to register and supply prescribed information, or be issued a school attendance order and also a duty on education providers (type unspecified) to provide information about the child to the local authority.
The register is to contain information including a child’s protected characteristics, education and safeguarding information and includes that the Secretary of State can prescribe any other such information as they “thinks should be included in the register for the purposes of promoting or safeguarding the education, safety or welfare of children”.
Local authorities already have duties and powers around safety and welfare, and they have duties to identify any children suspected to be missing education. However ‘promoting and safeguarding education’ is much broader.
The register “may also contain any other information the local authority consider appropriate”.
The government’s factsheet makes clear that it will add requirements for more information with “local authorities signalling where further information would be necessary, or useful in carrying out their aims, to ensure a suitable education and that all children are safeguarded”.
The legislation states that individual children’s records and information are to be shared with the Secretary of State.
We already count children extensively. Contrary to the government’s factsheet in which they claim ‘some’ authorities maintain voluntary registers, in fact every local authority which responded to Counting Children’s freedom of information request had registers for both home educated children and for children missing education, and so collected information about children who had left school in every scenario. The only gap for some local authorities was for children moving between independent and State education. Not every home educated child will be on these registers but the vast majority are. This legislation is using a hammer to crack a nut. There is zero evidence to suggest that the children who are not on this specific database are in any way ‘unknown’ to ‘the system’ or ‘invisible’. ‘The system’ uses huge numbers of databases and the majority of children will be on a number of these.
The government claims that they need this information about children, at individual named child level, and that it is justified despite serious concerns. Yet currently the Government does not even ask local authorities for their figures on either electively home educated children nor on children missing education. There is no reporting mechanism, even though the CME register is a statutory requirement.
Children’s rights / data protection / distribution of children’s confidential information / civil liberties / potential for breach of human rights / significant distress, serious mental health impacts on both child and wider family
- The inclusion of a child’s protected characteristics – ethnicity, religion, sexual orientation – is deeply concerning. Such information is unnecessary at national level for non-direct care of children. The local authorities and Department for Education should receive such data as statistics, not raw data attached to individual names so that they are unable to give away this highly sensitive data at identifying pupil level.
- The Department for Education has shown it cannot be trusted. In 2018 it included children’s nationality and country of birth on data collections, which it shared with the Home Office and which was used in the hostile environment. In 2020 the ICO issued a damning report of the Department for Education’s many failings around data practice.
- That the register “may also contain any other information the local authority consider appropriate” is a blank cheque for huge amounts of children’s personal information to be stored and distributed. There seems to be no limit, nor intention for any limit to be placed on this power, which leaves it open to the retaining of subjective opinion as well as deeply personal information about children to be stored. Families must be able to challenge false information about themselves.
- Baroness Barran (the government) also made clear that this register would not be a minimal one, containing just basic details. She stated that: “Amendments that limit this ability could cause local authorities to act with unnecessary caution in relation to the collection and inputting of information. There may be cases where data, such as special category data, is collected that may not be initially deemed directly relevant to safeguarding a child or in their best interests but could in future be critical to protecting that child from harm.” This is to encourage information to be gathered ‘just in case’ and is a threat to all families by the precedent it sets.
- There is no oversight of how Local Authorities powers will affect families or outcomes and no safeguards on the unlimited powers to collect unlimited highly sensitive personal confidential data on demand.
- The Schools Bill grants the Secretary of State the power to decide what other information should be included in the register, without any parliamentary scrutiny.
- The Schools Bill grants the Secretary of State the power to decide who children’s personal information should be shared with. “We envisage that local authorities will be able to share relevant information with organisations such as the police, Ofsted, National Health Service and other local authorities where appropriate to carry out their shared objectives of protecting children and ensuring they receive a suitable education.” This is data sharing at a much lower threshold than that upheld by the UK Supreme Court in 2016 ‘Named Person’ ruling.
- The Schools Bill includes powers for the Secretary of State – this one or any future one – to amend the information included as part of these registers without having to get parliament to agree. It is clear from the discussion in the House of Lords that the government already has intentions to include unique identifying numbers which they are attempting to introduce via other legislation.
- Not having mandatory registers is a matter of civil liberties. A proponent of a compulsory register for electively home educated children, Ofsted’s Amanda Spielman, said: [A register] “is a relatively difficult thing to establish in this country because we are permissive by default and always have been, not just in education. We do not have a national identity card requirement. People do not have to prove their right to exist every day or to access any service.” There are extensive reasons for objecting to national identity cards and not wanting to live in a society where one must “prove their right to exist every day”. Read Big Brother Watch’s history of Britain’s fight against national ID to remember what we are fighting for.
- This register is not a solution to the real problems that exist. If children are being kept deliberately away from authorities, for example trafficked children, the adults who control them will not sign up to this register. There is a real fear that with police accessing these records that this will put some more vulnerable families off getting support from services including public health.
Parents said no to all of the measures
Consultation on school attendance
The new guidance on attendance, ‘Working together to improve attendance’ which the Schools Bill will make into law, is a HUGE change from the previous guidance. It will impact large numbers of families across different groups. The government consultation which ran for just five weeks was responded to by 919 parents, 56% of the total.
The majority of respondents disagreed when asked “Do you agree that a national framework for the use of attendance legal intervention, including a new regulatory framework for issuing fixed penalty notices for absence should be set?”44 per cent of respondents strongly disagreed, 8 per cent somewhat disagreed.
When broken down the DfE found that 75 per cent of parents strongly or somewhat disagreed. 81 per cent of school or academy trust staff strongly or somewhat agreed with the plan.
Parents responses discounted as not being ‘representative’ yet no effort was made to reach a larger number
The government commented that: “Even though the majority of respondents were parents, the findings reported in this document are not representative of the views of all parents, where pupil population size is over 8 million.”
The government stated that “the 178 local authority respondents from 118 local authorities (78% of LAs) are likely to be more representative of the overall population of 152 local authorities”. They did not comment on whether they felt the 362 responses which came from school and academy employees were representative.
The government has not listened to parents and has gone ahead with the measures anyway as part of the Schools Bill.
“94% of all respondents reporting school had negatively impacted their child’s mental health and well-being. Clear evidence pointed to the harm coercive attendance policies have with parents citing both Local Authority and school responses as escalating needs and exacerbating mental ill health.”
Square Peg and Not Fine in School response to government’s attendance consultation.
Children not in school consultation
- 74% of the 4,784 respondents were parents, who voiced strong opposition to the proposals.
- 74% of total respondents disagreed with the proposal that local authorities should be obliged to maintain a register of children who are not registered at specified schools.
- 75% of total respondents disagreed with the proposal to implement a duty on parents to register their child with the LA if not registered at specified types of schools
- 76% of total respondents disagreed with the proposed duty on proprietors of defined settings to supply information about relevant children in scope of the register
The government noted that the majority of parents disagreed with the proposals but that the majority of the 145 local authorities who responded agreed with proposals. The government has not listened to parents and has gone ahead with the children not in school register anyway.
Consultation on the thresholds for fines and prosecutions and the registers
The government held a consultation on what the actual thresholds for legal intervention should be, and how the live attendance registers should work. This time parents were not even invited to give their views, the consultation was set up to be answerable ONLY by professionals. Organisations Square Peg and Not Fine in School did ask parents to email responses.
This consultation asked at what point fines and other measures should be triggered and asked questions such as whether two fines should be the maximum per year. It also consulted on other vital questions such as whether children with EHCPs should be allowed to be deregistered from school without the consent of local authorities or the Secretary of State and whether electronic registers, accessible by both central and local government should be kept. The electronic registers in question are already being rolled out.