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Written Question answered on 16 December

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On 9 December 2022 Laura Anne Jones MS (South Wales East), Shadow Minister for Education, tabled Written Question WQ86963 in which she asked:

“What assessment has the Welsh Government made of the legal advice David Wolfe QC provided on the elective home education proposals in response to the consultation on new home education guidance in Wales?”

This was answered by Jeremy Miles, Minister for Education and the Welsh Language on 16 December.

His response reads as follows:

“All responses received as part of the consultations held in 2019 and 2020 on the draft statutory guidance and home education handbook and the database regulations, have been considered by my officials, including those responses that referenced human rights and data protection legislation.”

It was no surprise that the Minister offered a generic response, as it avoided having to provide an answer to the specific question posed by Jones. She had referred to a particular submission from David Wolfe QC obtained by Protecting Home Education Wales [PHEW], and had specifically asked for the Welsh Government’s assessment of the barrister’s advice. But she remains none the wiser.

When evaluating political answers, it should be remembered that Ministers and their departmental staff are often experts in obfuscation, smokescreens being standard political practice. In political speak ‘considered’ is often a weak word which means nothing more than ‘read and thought about,’ but does not necessarily or usually imply ‘taken seriously.’ Is that the situation with the current Government?

The previous administration published a Summary of responses in December 2019. In it there are a four references to “human rights,” the most notable being found on page 6:

“A fifth of responses also considered that the proposed guidance and the accompanying process that it supports runs counter to elements of the UNCRC, the Human Rights Act and the 1996 Education Act. Responses considered that the guidance ‘cherry picks’ or ‘distorts’ aspects of these key legislative acts whilst ignoring other key elements which are considered to support a parent’s right to home educate their child. The proposed process promoted through the guidance was therefore considered to be currently beyond the legislative powers of both the Welsh Government and local authorities.” (Emphasis original)

Whilst this document contains no specific reference to the legal opinion referred to by Jones, that same month the then Education Minister, Kirsty Williams, issued a written statement announcing a delay to the “proposed consultation on the draft database regulations, the timescales for publishing the final statutory guidance for local authorities on home education and the coming into force date for the database regulations.” Explaining the reason for the delay, she said:

“However, because a significant number of the many responses also raised complex technical, policy and legal matters which require careful consideration, we need to ensure the final guidance and the draft regulations fully take these into account.”

Again no direct reference to Wolfe’s observations, but the Government had clearly encountered significant problems. The role of said legal opinion was highlighted in February 2020 at a meeting of the Petitions Committee. Details of why the draft proposals were under discussion were reported at the time by the HE Byte. The minutes of the meeting are available on the Senedd’s website, and discussion on the two relevant petitions starts here – Petitions P-05-922 & P-05-923. In her introduction Chair, Janet Finch-Saunders MS, recounted the Committees’ considerations to date:

“We also agreed to write back to the Minister for Education to ask for details of the response rate to the Government’s consultation on proposed new guidance. We also wanted to seek confirmation that the legal opinion provided by the petitioners is being considered as part of this, and for an indication of the timescales for determining the next steps.

A response was received from the Minister on 23 December, and the petitioners for both petitions have provided further comment. All the comments are there in your pack. How would you like to take this forward? There are a number of possible actions going forward.”

All relevant documents are available from the agenda page and these include a letter from the Minister referencing her recent statement quoted above. Of most relevance are the comments from the ensuing discussion. In particular, Michelle Brown MS stated:

“I’d like to hear from Welsh Government about why they are seen to be not paying this legal opinion from – I think the gentleman was a QC who gave the opinion. I would dearly like to understand from Welsh Government why they don’t seem to be giving that the attention that I think they should be giving it, given the issues that it’s raised. So, I’d support an evidence session, and then afterwards, a debate in the Chamber.” (Emphasis added)

The Committee did agree to write to the Minister requesting she attend an Evidence Session, but within weeks Covid lockdowns had suspended normal business, and the session never took place. In her written statement Williams had promised, “The publication of the statutory guidance and coming into force date for the database regulations will be autumn 2020.” However, in June that year she had to make a further statement, in which she said that due to the pressures caused by Covid 19:

“It will not now be possible to complete the planned work on the home education statutory guidance and database regulations within this Government term.”

She later added:

“While I am disappointed we cannot continue the development of these proposals I hope that the planned reforms can be taken forward by the next Government at the earliest opportunity.”

Since taking office the current Minister, Jeremy Miles, has indeed been seeking to fulfil Williams’ wishes, but has provided very few details of the Government’s response to the important issues raised by Wolfe. Jones’ recent question furnished him with an ideal opportunity to commit his department to publishing their response, and so to evidence that they are giving it the attention Brown believed they should. Does his reluctance to be more specific indicate that he would prefer not to be reminded about it?

Wolfe provided further legal advice to PHEW, and they included some of his comments in their response to the 2020 consultation on the Local authority education databases. Jones didn’t reference this second submission in her question, but it has to be asked whether she might receive a more informative answer were she to table a follow-up question. It would give the Minister a further opportunity to make clear what legal advice they have received rebutting Wolfe’s two opinions.

It has to be remembered that as recently as July last year, the Government were writing to those who had contacted them saying that their proposals in regard to home education included:

  • Establishing a database of all children using data from healthcare sources and health authorities, for the purposes of identifying a particular group.
  • Mandatory regular meetings with both parents and children without consent of child or parent.
  • Definition of suitable education to be determined by the Government rather than by the parents/caregivers.

These represent very significant changes in the relationship between all families and the state, and have to be fully justifiable legally. The Government therefore cannot be allowed to brush the concerns raised by Wolfe under the Senedd’s carpet. They have had plenty of time to truly ‘consider’ them, and should be able to explain clearly whether or not they are pressing ahead regardless.


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