Standards in Scotland’s Schools Bill Stage 2 amendment: home education consent anomaly

Excerpt from the Official Record of the Stage 2 consideration of the Standards in Scotland’s Schools etc Bill by the Education, Culture and Sport Committee, in which an amendment to remove the home education consent anomaly was put forward by Tory Brian Monteith MSP and supported by Nicola Sturgeon and other SNP MSPs, but was not carried due to a no-show by one Liberal Democrat MSP and abstention by another. This was a deeply disappointing outcome for the home educating parents and home educated children who attended the meeting. 

Education, Culture and Sport Committee, 09 May 2000

  • Mr Monteith: 
    This amendment was the first that I lodged. Members will not be surprised to find that it is a probing—that ubiquitous word in my vocabulary—amendment. Its purpose is to tease out of the minister what possibility there might be of bringing forward an amendment at stage 3 to deal with home education. There has been significant lobbying of MSPs on this issue, specifically in regard to pointing out the difference in practice between Scotland and England. It is a Catch-22 situation, which subsection (3) of this amendment seeks to cut off—that is, that the child’s parent can notify the authority in writing that the child is receiving education by means other than the attendance at a public school, rather than the other way round, which often catches the parent out by having to prove that education is being provided.

    I will happily take it on the chin if I am told that the amendment is not competent or is not worded correctly, as may be the case, but I would like to know if there is a possibility of giving reassurance to the small minority of parents who believe that home education is, at least at the initial stages, the route by which they want to proceed with their children.

  • Karen Gillon: 
    I support Lewis Macdonald’s amendments. The letter that we received from the family on the island—I will not even attempt to pronounce it—was a powerful one. The eldest son is now going to high school and will have to be away from home for considerable periods of time. I know that a lot of young people who live in remote communities have to do that, but the specific difficulty is that this young man would have to be away for a length of time. To move from a small community to a relatively large town would be quite a stressful experience, especially at weekends. To be away from home at weekends with no friends or family support would be difficult.

    I remember when, aged 18, I left the relatively small town of Jedburgh to go to the bright lights of Glasgow to attend university. I found that a difficult experience, but at least I could go home at weekends. This young man would not even have that luxury in some of the winter months because of the inclement weather. We need to move to provide alternative education for him. I think that those amendments do that.

    I am interested in Nicola Sturgeon’s amendment 127. I would be interested in the minister’s views on whether that may be achieved through another means. Perhaps provision in guidance would suffice and meet the same objectives rather than putting it in the bill, given that we live in a changing environment and those arrangements may not be the most appropriate in 10 years’ time.

    I am interested in Brian Monteith’s amendment. I support the right of parents to educate their children at home, if they feel that that is in their interests. I have received letters and e-mails from, and had conversations with, not just parents but children who have benefited from being educated at home. They have lobbied powerfully. I would be interested to hear how the minister thinks that we can best serve those children and their parents.

  • Nicola Sturgeon: 
    I speak in favour of amendment 1, which relates to home-educated children. We must recognise that some people in Scotland choose to educate their children at home, for a variety of reasons. For some people, that is a positive choice, because they think that it is the best way to educate their children and that it will benefit their children in the long term more than sending them to school. For others, it is more of a negative decision: perhaps their child is being bullied at school, or the child may have special needs that the school or education authority is unable to cater for. For those people, the decision to educate at home may be less positive, but nevertheless has benefits for the child because it removes some of the problems that they would encounter at school.

    I do not think that Brian Monteith is arguing—I certainly am not—that we should encourage home education, but we should recognise that it is a reality. Given that, we have to ensure that the rules are both clear and consistent, and the problem with Scots law as it stands is that that is not the case. As Brian said, before a parent can withdraw their child from school for whatever reason, they have to have the local authority’s consent. The process of obtaining that consent can be lengthy and frustrating, and is not consistent across the country. Some local authorities respond quickly to parents’ requests, while others can be obstructive and drag out the process. That can create problems, especially for children whose parents want to withdraw them because they have difficulties at school. The effects of such delay on those children can be serious. They are made to attend school, possibly in circumstances that are damaging for them mentally and, in some cases, physically.

    There is much to be said for reversing that process, bringing Scots law into line with English law and allowing parents to withdraw children by notifying the local authority. That would also stop a situation that I am sure happens now—I have certainly heard anecdotal evidence of it—whereby, in effect, children slip through the net because the process for obtaining consent can be lengthy and frustrating. Those children appear in truancy statistics because they are not turning up for school, or simply slip through the net. Local authorities cannot ensure that the children are not at risk and are being educated and cared for properly. If we had a system in which parents could notify the local authority that they were withdrawing their child, then withdraw pending the local authority looking into the case, the onus would be on the local authority to ensure that the arrangements for the child’s education were satisfactory.

    I support amendment 1. As with all amendments, if the minister is worried about the technicalities, I am sure that we can re-examine it, but it is important to establish the principle that the law as it stands is a problem, which we could sort out without too much difficulty.

  • Fiona McLeod: 
    Amendment 127 deals with special arrangements for home education. If we are to commit ourselves to diversity of educational provision, which we talked about earlier, we must also ensure that resources are available to back up that diversity. Often in home schooling, there is a lack of access to educational materials. Remote supervision of the pupil’s education by a school or authority is also important, so that the parents who have decided to opt out of the school but stay within our framework can do so, but still have access to resources and supervision.

  • Ian Jenkins: 
    I, too, support broadly the theories behind the amendments. I get worried sometimes about schools supervising from a distance, when people are doing something different from what is being done in the school. It always used to annoy me terribly when parents said that they were going away on holiday for three weeks and would the teacher give them homework for while they were away. Dealing with kids who are not there takes up teachers’ time, as does looking after relationships with those who are being educated at home.

    As I said earlier, we should try to give some support to people who genuinely want to do things differently. If that support consists only of access to materials and such like, at least that is a gesture. I suspect, again, that the minister might say that he will have another look at the matter, because it is complex. There seems to be cross-party support for the approach that lies behind the amendments.

    I also worry about people abusing the facility by declaring that they are educating their kids at home when they are not, or using it as an excuse because they cannot be bothered sending their kids to school. We must be careful about how the facility would be supervised, but, given that we are considering the positive side, we should examine the matter more fully.

  • Peter Peacock: 
    These amendments cover quite discrete areas. I will try to address them in their natural groupings.

    First, I shall address the Orkney amendments—if I may call them that—or amendments 124 and 125, which were lodged by Lewis Macdonald and supported by Nicola Sturgeon. We welcome those amendments. I declare a personal interest. As someone who worked for Orkney County Council education department, quite a number of years ago, I understand the circumstances precisely. I know Stronsay, having organised the north isle sports on that island, which took place on a day just like this in 1974—the day that Scotland played Brazil in the world cup. I remember it vividly.

    The arguments that have been made for giving local authorities additional powers to provide education other than at an educational establishment, where it would be unreasonable to expect the child or young person to attend the establishment, are wise in the terms that I have indicated. The specific case that Lewis Macdonald referred to is an example of the circumstances in which the new power might be used. The power offers additional flexibility in how education can be offered, and I hope that members will feel able to support that. It clarifies the law and gives a permissive power to local authorities, but the decision on how to act in the circumstances is still for the local authority. We are happy to welcome that and ask the committee to support the amendments.

    Amendment 127, lodged by Nicola Sturgeon, is offered in a genuine spirit and is designed to help with, or expand on, the situation that I have just said we can support. As Nicola said, the list that is included in the amendment is not exhaustive and does not require, or forbid, any particular action on the part of an education authority. As such, the amendment would have no legal effect other than to offer the examples that are listed. Those examples certainly represent ways in which an authority might exercise its power, but there are many more ways, and it would be unfortunate if the examples that are listed were seen as setting expectations for all cases, or indeed as setting an expectation that could limit action in the future.

    As Karen Gillon said, such areas of technology or learning support are developing rapidly. Opportunities are arising from digital television and new satellite means of communication, and the new wireless application protocol phones, which are not computers, phones or televisions but a combination of technology, are on the horizon. We want to leave local authorities free to identify the best approach in every case.

    I hope that Nicola Sturgeon will recognise that we do not wish to set down in legislation a limited range of examples, if those examples could subsequently be seen as limiting in any way. In legal terms, the amendment has no practical effect. Having said that, I would be more than happy to consider guidance on the issue, in which we could set down the range more flexibly. That could be done with the local authorities where this might impact in any event. We could try to find a way of listing the range outwith the statute, while nevertheless giving a clear signal that we are not ruling out opportunities for local authorities. I hope to deal with amendment 127 in that way.

    Amendment 126 requires a more complicated explanation. Section 37 inserts a new version of section 14 of the Education (Scotland) Act 1980 into that act. Subsection (2) of the new section 14 requires local authorities to make educational provision for those young people who are not required to attend school because they are providing care for a sick or infirm relative. The subsection makes the duty subject to the proviso that the authorities should make special arrangements

    “in so far as is practicable”.

    There are two reasons for that. First, it would be unfortunate if a pupil granted an exemption from the obligation to attend school so that they could provide care for their relative was not able to provide that care because the obligation on the authority to provide them with a full education while at home conflicted with that need to provide care, which was the primary reason for the exemption. Under the section, the local authority can consider the extent to which education can be provided consistent with the need for the young person to provide care. Secondly, we want to avoid placing local authorities under a duty that might make them reluctant to grant exemptions in appropriate cases. We consider that the amendment would be unfortunate and likely to act against the interests of the young carers, so I invite Nicola Sturgeon not to press it.

    Brian Monteith said that he lodged amendment 1 as a probing amendment. Given the recurrence of such probing amendments, perhaps we should reinterpret MSP as “Monteith still probing”. I understand the intention behind the amendment. Education authorities have an important role in monitoring the provision of education in their areas. It is important to ensure that children who are withdrawn from school do not slip through the net, as Nicola Sturgeon and Ian Jenkins said. We believe that the law as it stands is an important safeguard for local authorities in ensuring that children do not slip through the net. We do not believe that changing the law is the best way forward, so we do not propose to accept the amendment.

    However, I accept that clear guidance would be helpful to all concerned. We will be consulting education authorities and others with an interest in home education with a view to issuing guidance on the circumstances in which authorities should give consent for a parent to withdraw their child from school. I hope that Brian Monteith will recognise that that is a genuine offer to improve matters while leaving in place the legal safeguards that we believe are important. Given that assurance on proper guidance, I ask him not to press the amendment.

  • Mr Monteith: 
    I seek clarification on a number of points. On amendment 127, was the minister’s objection based on the belief that the language was too definitive? The amendment refers to “computer-assisted distance learning”. Would he rather that it referred simply to distance learning or technologically based distance learning, without specifying computers? His objection seemed to be based on his view on the development of technology rather than on the overall tenor of the amendment.

    Amendment 1 is a probing amendment. I was trying to find out what the minister would do. I am not convinced that his response was fully helpful, although I recognise that he is trying to meet me halfway. I am generally reluctant to press matters, as I seek to reserve my position for stage 3. However, it would be useful to elicit from committee members their support for such an amendment, so I am minded to lose that option in this case and press the amendment to a vote. My intention is to ensure that local authorities follow what is in statute rather than simply make arrangements. The minister’s response suggested that he envisaged a partnership approach in which the local authorities had the lead hand. I am not convinced about that.

  • Peter Peacock: 
    On amendment 127, we believe that it is not possible to anticipate every circumstance through listing specific matters in the bill. Distance learning is moving on rapidly and dramatically. New technologies are arising and we do not fully know what the implications of that will be. We take a general view that we would rather not make the bill specific on this point—we do not want people to think that, because something is not listed in the bill, it is not appropriate. We want people to be able to make decisions about the most appropriate way in which to support children in these circumstances; we do not want to rule anything in or out. As I said, we are making a genuine offer to expand the guidance on this matter, which is a much more flexible approach and would give clear signals about what was felt to be appropriate.

    I am not clear whether the word “computer” has a specific definition in law: when is a computer a computer and when is it not? I do not want people to be caught up in technicalities so that their ability to provide a service is removed. I would much rather leave the matter open, while making our intentions clear.

    On amendment 1, let me make it clear that the law as it stands provides an important safeguard; it does not allow children to go unnoticed and to slip through the net. I reassure Brain Monteith that there is no intention that the local authority should take the lead hand in home education. What we need is a safeguard to ensure that we know that children are being educated at home. We need to be able to keep an eye on that. Our offer to issue guidance is genuine, as we recognise that greater clarification is needed.

  • Mr Monteith: 
    I am happy to hear the minister offer to issue guidance. However, in a spirit of realpolitik, I believe that pressing the amendment to a vote will re-emphasise our belief that such guidance is a necessity.

  • Lewis Macdonald: 
    I am pleased that the minister will accept amendments 124 and 125. I was interested to hear Nicola Sturgeon’s comments on amendment 127, but I believe that amendments 124 and 125 are simpler and will leave it open to local authorities to make the appropriate arrangements. They are in the spirit of the bill as a whole. Guidance that spelled out the appropriate arrangements for cases such as I have raised would be helpful.

  • Amendment 124 agreed to.

  • Amendment 125 moved—[Lewis Macdonald]—and agreed to.

  • Amendments 126 and 127 not moved.

  • Section 37, as amended, agreed to.


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