Ministers and the Rule of law

The judgement of the High Court in the recent case concerning term-time holidays is now available for all to read at http://www.bailii.org/ew/cases/EWHC/Admin/2016/1283.html The issue itself is on the way to the Supreme Court, where it seems likely that they DfE may be joined as an ‘interested party’ to the case. That makes the remarks by the Minister of State, Mr Gibb, quoted by the Guardian on the 9th June that “schools should continue applying the current regulations that allow parents to be fined” all the more interesting.

The recent case turned on whether the pupil had ‘regular attendance’ as that is what primary legislation requires from parents that entrust their offspring to the state school system for their education. Parents, it must be noted, are not required to send children to school to be educated, but if they do so it must be ‘regularly’. There seems to be no similar legal penalty that appears to be enforced for those that decide to home school or educate their children in some other way than sending them to school and that issue may need to be looked at if the government loses in the Supreme Court and reconsiders the current legal position.

Under the ‘rule of law’ governments are bound by the actions of the courts. In England, our common law system is founded on the judgements of the courts, and especially the superior courts, and these decisions change legislation enacted by parliament, usually by clarifying them. This is often because the way parliament legislates can mean Acts of Parliament are badly drafted and not enough time is spent at the Committee Stage picking over the Bill during the discussions. Interestingly, the House of Lords generally does a much better job of scrutinising legislation that starts there than does the other chamber.

So, should a Minister tell schools to ignore the decision of the High Court? He certainly won’t be able to tell them to ignore the judgement of the Supreme Court even if he doesn’t like it and even if he intends to try and change the law in a new Act of Parliament. I wonder if it was ill-judged on his part to so strongly support the government’s current position on term-time holidays, especially as it is only backed by secondary legislation, when LORD JUSTICE LLOYD JONES at the High Court had said in the judgement on the recent case at paragraph 19 that, “the regulation does not have the effect of amending the statute. In my view, the nature and scope of the offence created by section 444(1) remain unchanged. In particular I would reject the suggestion that Regulation 2 has the effect that any absence without statutory excuse necessarily constitutes an offence under section 444(1).”[of the relevant Education Act]. On that basis, perhaps most parents who have felt hard done by where a fine has been issued will now take their case to the Magistrates’ Court and plead ‘not guilty’, at least until the Supreme Court has ruled in the matter.

Realistically, it seems to me that ‘regular attendance’ has to be looked at in the round. The common sense view would seem to be that where a pupil has a good attendance record and the time off for holidays doesn’t impinge on important learning activities it could be treated no differently to the similar outcome if a pupil suffered a common childhood illness or a severe bout of flu. Where a child has a poor attendance record, then the holiday might just tip the balance between regular attendance and a failure to maintain regular attendance. In this case because it seems from the judgement that the child’s parents were no longer together and the other parent had already taken the child out of school that year, one can understand why the Council acted as it did, even where the child had an otherwise apparently very good and regular attendance record.

It is important that any revision of the primary legislation must define what is meant by ‘regular’. That will be a challenge. However, with home to school transport there has been a clear distance definition for very many years, so, about attendance, it should be possible to say something like, unless the pupil is unwell or attending a medical or dental appointment the parent of a child where the parent has asked the State to educate the child will need to ensure the attendance at school of the child by the required time every day that the school is open for the provision of schooling.

Finally, I support the view that where an offence is one of strict liability, as attendance at school is deemed to be, then it needs to be clear exactly what is required; it isn’t at present. I also dislike fixed penalty notices as a punishment because they take no account of parental circumstances and bear down more heavily on those that are less well off.

Surely, the real solution is for parents to accept the need for pupils to attend all the time and for travel companies to seek out vacations that cost no more in school holidays than during term-time. But, that is easier said than done.

 

 

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