Government Amendments to CNIS Register make it Less Bad

DECEMBER 2022: THE SCHOOLS BILL HAS BEEN DROPPED. THERE IS CURRENTLY NO MECHANISM IN LAW TO INTRODUCE ANY OF THE PROPOSALS OUTLINED BELOW. READ MORE HERE

This post sets out my interpretation of the government’s amendments to the Children Not In School Register which at the time of writing were scheduled to be discussed at Report in the House of Lords on July 18th 2022.

I’m aware some people take the view that there is a deliberate strategy to make prospective legislation look terrible at the beginning so that when concessions are wrung from the government we all stand down thinking it’s not so bad after all, but regardless of where you stand on the belief of some controlling intelligence in government, or on home educators EVER letting things drop because they aren’t QUITE as bad as they might have been, I think it is undeniable that these mitigations make the Schools Bill LESS BAD in respect of compulsory registration, which is NOT to say that I think compulsory registration is acceptable.

My post last week on the amendments for Report gives more links and information.

The first two government amendments to clause 49 (clause 48 in the original Schools Bill) REPLACE “any other information that may be prescribed” with a list of the information that may in fact be prescribed, and also adds the qualifier “to the extent that the local authority have the information or can reasonably obtain it”

At first sight it may appear that this has made things WORSE, when we look at the long list of things that could go on the register but I think the reverse is true. The original Schools Bill said “any other information that may be prescribed” which left the door open to “prescribe” – ie drop into regulations – anything and everything further down the line, whereas having a checklist in the parent Act means: 1/ that it is not legally possible for regulations to add anything which ISN’T on the list (see below re statutory instruments) and 2/ that it is all out in the open at this early stage before the Bill gets to the Commons – we don’t have to hunt for clues about the government’s “intentions”

The third government amendment deals with data protection and information sharing. A second Human Rights memorandum from “DFE Legal Advisors” published on July 7th says “A Government amendment to Clause 49 will prohibit the publication of information, as recorded on the registers, relating to an individual. Paragraphs 98-99 of the first ECHR memorandum address the ECHR implications of clause 49 (numbered 48 at the time) in respect of the sharing of information. This express prohibition against the publication of individual data will further ensure that the clause is ECHR compliant.“

I will leave it to data protection experts such as DefendDigitalMe working with Counting Children to evaluate the impact of 436C (4) and 436H(3) (c)

The fourth and fifth government amendments establish a new distinction between 1/ the information that the local authority might include on the register and 2/ the specific information that parents are required to provide for the register.

I interpret the effect of this as fewer parents getting tipped into the school attendance order process because if parents are asked for less information then there are fewer chances to fail.

I want to unpack a bit more about how I think it will mean fewer parents getting tipped into the school attendance order process and again, we need to look at the STARTING POINT. This is what I said in https://edyourself.wordpress.com/2022/05/20/school-attendance-orders-faq-part-2/ about how the original Schools Bill would operate (strikethrough to show it will no longer apply):

“What the government is ACTUALLY proposing is for a notice to be served EITHER if the parent has not registered at all, OR if some of the information is missing … We have absolutely no idea what information will be required [from parents] for the register. It could be very little or it could be a huge amount and it might vary from one area to another because it is all being left to be decided by regulation later… it could appear to the local authority that the registration information is incomplete. You would have 15 days to put this right and if you failed, this would trigger the serving of the preliminary notice to satisfy the LA within 10 days that your child is in fact receiving suitable education … before they issue a School Attendance Order”

Once the Schools Bill is amended this will be MUCH LESS BAD, ie more closely reflecting what I set out in https://edyourself.wordpress.com/2022/05/19/school-attendance-orders-and-compulsory-registration-faq/ although with the important caveat that we WILL know what information is to be required from parents, and it will be limited to basic identifying information … plus 436C(1) (c)

However, Section 436C (1) (c) is still there requiring parents to provide “such details of the means by which the child is being educated as may be prescribed” which is STILL TO BE RESOLVED as anything which is left to be “prescribed” in regulation later means the door is still open, and I don’t think that qualifying it by saying only “information that the parent has” – as per 436D(2)(a) above – is particularly helpful as there COULD EASILY be a scenario where a local authority would say “I know you have this information but you are just choosing not to tell me.”

The sixth government amendment refers back to the newly specified list to be covered by regulation, which has been introduced in section 1A as above

The seventh government amendment deals with how regulations and new statutory guidance will be scrutinised by parliament in future.

Regulations are a form of secondary legislation as explained here “created by ministers (or other bodies) under powers given to them by an Act of Parliament. It is used to fill in the details of Acts (primary legislation). These details provide practical measures that enable the law to be enforced and operate in daily life … Statutory Instruments .. are the most frequently used type of secondary legislation … They usually have either rule, order or regulation in their title.” 

This House of Commons Background Paper (published 2016) gives further information about the parliamentary process related to Statutory Instruments, such as the fact that “statutory instruments are subject to judicial review. The courts can question whether a Minister, when issuing an SI, is using a power he or she has actually been given by the parent Act; whether the purported exercise of the power is unreasonable, or insufficiently certain; or that there has been a procedural deficiency or irregularity“.

In respect of the seventh amendment above, dealing with how regulations will be scrutinised, it is noteworthy that only 10% of statutory instruments are subject to the affirmative procedure. It does make a significant difference whether the procedure is negative or affirmative, although by far the most important curb on secondary legislation is limiting the powers given by the parent Act (ie doing away with phrases such as “any other information that may be prescribed” )

MY WEBSITE LINK https://edyourself.org/articles/registration.php

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