DNR for fatally flawed Manx Education Bill?

The latest attack on freedom in education from the Isle of Man looks likely to fail following a second reading of its Education Bill, which included draconian provisions for the regulation of home education that were heavily criticised by lawyers for being non-compliant with children’s and parents’ human rights. 

Read our previous commentary here.

As reported by Manx Radio, the Tynwald has narrowly voted this week to send the Bill to a select committee for scrutiny after serious concerns were raised by stakeholders. 

A House of Keys committee will take evidence from teachers, parents and other interested parties over the next three months, on the future of education on the Island.

The committee will also look at the findings of the independent Beaman’s review into how the education department interacts with schools.

The BBC has also reported on the latest developments: Isle of Man education reform plans face extra hurdle.

Under the proposed legislation, the maximum fine for parents failing to ensure children attend school would increase from £1,000 to £5,000.

Meanwhile teachers found to be obstructing a school inspection could also face six months in prison.

The Education Bill will now be referred to the new committee after MHKs failed to agree on the subject.

Let that sink in. Elected representatives ‘failed to agree’ on the paramountcy of human rights in  education after ECHR and equalities contraventions were set out by lawyers in forensic detail.

Commenting on the development, a long-time campaigner for freedom in education likened the move to a DNR (‘do not resuscitate’) order: 

In Manx politics this usually kills a Bill stone dead. Last time they did it was with a Criminal Justice Bill. The select committee trashed it and they didn’t try again.

However, this time one of the key architects of the Bill was elected to the committee and has already tweeted: ‘a select committee now still lets us take evidence and will help provide a steer for Keys Members during deliberation of clauses’.

A committee, of course, is not supposed to toe the government line and should hear the evidence objectively. How such an obvious conflict of interest has been passed over beggars belief.

We have previously reported on communications, obtained in 2017 by FOI request, between this Member of the House of Keys (MHK) and the City of Edinburgh Council in relation to home education policy. Part of the problem for him was that he apparently believed that the council’s policy accurately reflected Scots education law and national guidance when it did not, and that compliance with overarching human rights and data protection legislation was somehow optional in the wake of the Supreme Court’s ‘named person’ ruling in 2016.

Again, in his own words:

Lawyer and social worker Allan Norman of Celtic Knot, who accurately predicted the outcome of that landmark judgment in his submission to the Scottish Government’s original consultation, had already visited the Isle of Man in 2016 to deliver a presentation to members of the Positive Action Group: ‘Children’s Social Services – Will we ever get it right?’ Clearly, the MHK had not gone along to listen and learn, but it is still available on ‘catch-up’ here

Allan Norman’s equally thorough report on Home Education and Human Rights on the Isle of Man, published in 2017, concluded:

Changes in legislation, like any other interference with human rights, need to fulfil all the staged requirements set out in the “named persons” case already explored. As there are no specific proposals to evaluate, I do not attempt to do so. Suffice to say if the nature of those proposals were, as those who have asked for this advice fear, to impose a blanket requirement upon home educators to report upon the nature of the education delivered to their children, such proposals are unlikely to be lawful. By way of reminder and in conclusion, the various requirements for lawfulness against which any proposals need to be measured, are set out […] below [paragraph numbers in square brackets]:

Requirements for Convention-compliant legislation, taken from The Christian Institute & Ors v The Lord Advocate (Scotland) [2016] UKSC 51 (28 July 2016)

“In accordance with the law”

[79]. In order to be “in accordance with the law” under article 8(2), the measure must. . .

      • have some basis in domestic law. . .
      • be accessible to the person concerned. . .
      • [be] foreseeable as to its effects. These qualitative requirements of accessibility and foreseeability have two elements: 
        • First, a rule must be formulated with sufficient precision to enable any individual – if need be with appropriate advice – to regulate his or her conduct. . . 
        • Secondly, it must be sufficiently precise to give legal protection against arbitrariness. . .
      • [80] . . .this court has explained that the obligation to give protection against arbitrary interference requires that there must be safeguards which have the effect of enabling the proportionality of the interference to be adequately examined. This is an issue of the rule of law and is not a matter on which national authorities are given a margin of appreciation. . .
      • [81] In deciding whether there is sufficient foreseeability to allow a person to regulate his or her conduct and sufficient safeguards against arbitrary interference with fundamental rights, the court can look not only at formal legislation but also at published official guidance and codes of conduct. . .

“Proportionate Interference”

[90] It is now the standard approach of this court to address the following four questions when it considers the question of proportionality:

      • whether the objective is sufficiently important to justify the limitation of a protected right,
      • whether the measure is rationally connected to the objective,
      • whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and
      • whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter (ie whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure).

As the select committee enters its deliberations on the Manx Education Bill, which goes far beyond arbitrary interference solely with the rights of home educators and has grave and chilling implications for every teacher, child and family, the question remains: Will they ever get it right on the Isle of Man? 

At the time of writing, we are aware of two home educating families who have left the Island and relocated to the UK due to the introduction of this home-eduphobic, authoritarian, anti-education Bill. 

 

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