Drafting instructions for the new Education Bill

Authority	Department of Education, Sport and Culture
Date received	2019-02-25
Outcome	Upheld - partial
Outcome date	2019-05-22
Case ID	740265

Summary

A request was made for drafting instructions, correspondence, and legal advice regarding the new Education Bill, specifically concerning increased departmental powers and human rights impacts. The Department of Education, Sport and Culture partially upheld the request, releasing extracts of drafting instructions, correspondence, and draft bill text, while withholding specific legal advice and impact studies.

Key Facts

The request was received on 2019-02-25 and the outcome was determined on 2019-05-22.
The response included 77 pages across 15 documents.
Extracts of correspondence between the Department and the drafter were released, covering drafts from July to December 2018.
Specific legal advice requested regarding the increase of scope and powers was not disclosed in the provided text.
The response included text from the 'Education Bill 2018 – Draft 30 July 2018' outlining principles of education and enforcement notices.

Data Disclosed

2019-02-25
2019-05-22
77
15
30 July 2018
18 9 18
10 October 2018
16 10 18
28 October 2018
31 10 18
12 November 2018
21 November 2018
3 December 2018
5 12 18
11 November 2018
16 11 18
2001

Original Request

1. Please provide a copy of the instructions to the drafter of the new education bill, together with copies of relevant notes and correspondence (suitably redacted for personal information) between the department and the drafter(s). 2. What legal advice has been asked for, and received in respect of the changes to the increase of scope and powers of the department? 3. Where the increase in powers sought by the department, erodes, abolishes or significantly affects the rights of parents or children entitled to respect for a private and family life , have any impact studies been carried out to ensure that the changes comply with the Human Rights legislation in the Isle of Man, where any qualified rights may only be interfered with under the conditions set out below? 4. Please provide evidence that for each change in the scope and powers in the new education bill relate to; i - a legitimate aim such as national security; prevention of crime or disorder; and/ or the safety of the public, and ii - a pressing social need, and that the action is proportionate to address this pressing social need. https://www.gov.im/media/623879/humanrightsact2001briefintro1.pdf Interference with a person's Qualified Rights is allowed only if: * There is a clear legal basis (e.g. an Act of Tynwald) for the interference; * The interference is to achieve a legitimate aim. The legitimate aims are set out in each article of the Convention containing a qualified right, and they vary from article to article. Examples of legitimate aims include the interests of national security; prevention of crime or disorder; and the safety of the public. Any interference with the rights set out in articles 8 to 11 must fall within the relevant legitimate aims; and * The interference is necessary in a democratic society. This means that the interference must be in response to a 'pressing social need'. The action must also be no greater than is necessary to address that need ' it should not be 'using a sledgehammer to crack a nut'.

Data Tables (29)

that the mainstream educational system should so far as possible reflect and implement
the SEN principles (see section [SEN principles]);

(2) The Department must issue guidance as to the criteria to which it will have regard in
	determining the suitability of education for the purposes of subsection; and the guidance may,
	in particular, make provision by reference to—

that the mainstream educational system should so far as possible reflect and implement
the SEN principles (see section [SEN principles]);

[Is it possible to insert at this point?]	[The Department may issue regulations to assist in
determining if a child is receiving a suitable education]			[and then renumber the following. I
suspect that if we insert this it will be necessary to expand on what we expect from this but
you will be able to advise. We have realised that not only would we need to consider Home
Educated children but off-Island provision for children in hospitals for example, or secure
unit provision, hospital provision on Island, and possibly even private schools]

(2) The Department must issue guidance as to the criteria to which it will have regard in
	determining the suitability of education for the purposes of subsection; and the guidance may,
	in particular, make provision by reference to—

that the mainstream educational system should so far as possible reflect and implement
the SEN principles (see section [SEN principles]);

(2) The Department may provide advice and information [ ] to a parent of a child receiving
	elective home education if that parent requests such advice or information in relation to their
	obligations under this section.	[see point (2) below – could aspects of this be incorporated
	here and be of the form ‘may’ rather than ‘must’].

(2) The Department		must [	may]		issue guidance as to the criteria to which it will have regard in
	determining the suitability of education for the purposes of subsection; and the guidance may,
	in particular, make provision by reference to—

In this Act “home education” means education provided to a child in accordance with a
decision by the child’s parent to arrange for the child to be educated otherwise than at a
school or college.

(3) The Department must maintain a register of children in respect of whom the Department is
	notified under section [Duty to notify Department of arrangements] that the child is being
	home educated.

In this Act “home education” means education provided to a child in accordance with a
decision by the child’s parent to arrange for the child to be educated otherwise than at a
school or college.

(3) The Department must maintain a register of children in respect of whom the Department is
	notified under section [Duty to notify Department of arrangements] that the child is being
	home educated.

	, as defined by
there is no definition of what this means and there is a

the Department,
piece of work being done on it separately by the Department

(d)	Anything else the Department feels appropriate.	A catch-all suggestion was made by one
	of the Members

It was suggested that a new point could be inserted to say that failure to provide evidence
would be an offence.

It was requested during the meeting with political members that the Home Education section
be inserted at this point. Further suggestions have been made and a new set of instructions is
attached - it will have implications regarding section 71, which will need to be updated.


(1) The Department must carry out a periodic assessment of the educational development

of each child in the Island receiving home education.


(4) The Department must carry out an annual assessment of the educational development

of each child receiving home education.


(e)	Any other way the Department thinks appropriate and reasonable


In this Act “home education” means education provided to a child in accordance with a

decision by the child’s parent to arrange for the child to be educated otherwise than at a

school or college.


(3) The Department must maintain a register of children in respect of whom the Department is

	notified under section [Duty to notify Department of arrangements] that the child is being

	home educated.

	There was a
request to try and have a simpler process to hold people to account if they are seeking to
‘play the system’ in terms of stringing the process out and then ultimately turning up in
court and saying ‘here is the evidence of what we are doing educationally with our
children’.

The Department must make arrangements to allow children receiving home education to have
access to school or college facilities to the extent the Department thinks appropriate.

Full Response Text

Question 1 & 4 Extracts from the drafting instructions relating to the aims of the Education Bill and Home Education

Registration of Pupils

Question 1 Extracts of correspondence between the Department of Education, Sport and Culture and the drafter of the Education Bill

Following email had the ‘Draft Education Bill 30 July 2018’ attached:

Following email had the ‘Draft Education Bill 30 July 2018 Revised document’ attached:

Following email had the ‘Draft Education Bill 30 July 2018 Revised document 18 9 18’ attached:

Following email had the ‘Draft Education Bill 10 October 2018’ attached:

Following email had the ‘Draft Education Bill 10 October 2018 16 10 18’ attached:

Following email had the ‘Draft Education Bill 28 October 2018 changes 31 10 18’ attached:

Following email had the ‘Home Education - Education Bill Draft (2)’ attached:

Extracts from email dated 12 November 2018 00:16 continued:

Following email had the ‘Draft Education Bill 11 November 2018 16 11 18 v2’ attached:

Extracts from email dated 21 November 2018 17:59 continued:

Following email had the ‘Draft Education Bill 3 December 2018’ attached:

Following email had the ‘Draft Education Bill 3 December 2018 5 12 18’ attached:

Education Bill 2018 – Draft 30 July 2018

DIVISION 2 – PRINCIPLES AND DUTIES

6 Principles of education

(1) This section sets out the fundamental principles of education in the Island.

(2) A public authority must have regard to the fundamental principles when exercising a function under this Act or any other function relation to education.

(3) The principles are—

(a) that each child and young person should be enabled to receive an education that enables them to progress towards their full potential and to become a fulfilled and valued member of society;

(b) that the mainstream educational system should so far as possible reflect and implement the SEN principles (see section [SEN principles]);

(c) that education in the Island should include provision for vocational and other practical training so far as possible;

(d) that education in the Island should include provision for life-long learning so far as possible;

(e) that children and their parents, and young persons, should have a reasonable degree of influence over the kind of education which is provided to them;

(f) that the educational system should support the cultural integrity and identity of the Island;

(g) that the educational system should support the development of a diverse society based on mutual respect;

(h) that providers of education in or for the Island should make appropriate use of developing technology, including facilities for remote and virtual education;

(i) that education in the Island should be provided economically, effectively and efficiently.

(i) age,

(ii) abilities and aptitude, and

(iii) special educational needs (if any).

(1) The Department must enforce the duty under subsection (1) in accordance with the provisions of this Act.

Education Bill 2018 – Draft 30 July 2018

72 Enforcement: notice requiring information

(1) If the Department suspects that a child of compulsory school age in the Island is not receiving suitable education it must serve a notice in writing on a parent of the child requiring the parent to provide information satisfying the Department that the child is receiving suitable education.

(2) The Department must issue guidance as to the criteria to which it will have regard in determining the suitability of education for the purposes of subsection; and the guidance may, in particular, make provision by reference to—

(a) educational outcomes (including but not limited to examinations and qualifications);

(b) educational methods and processes;

(3) The notice must specify a period within which the parent must provide information under subsection (1); and the period must be not less than 15 days beginning with the day on which the notice is served.

(4) The notice may require the parent to cooperate with arrangements for the child to be examined or assessed; and if a notice includes a requirement under this section it must specify—

(a) the arrangements that the Department proposes for the examination or assessment, and

(b) a period within which the examination or assessment is to take place, which must be not less than 15 days beginning with the day on which the notice is served.

Education Bill 2018 – Draft 30 July 2018

DIVISION 2 – PRINCIPLES AND DUTIES

6 Principles of education

(1) This section sets out the fundamental principles of education in the Island.

(2) A public authority must have regard to the fundamental principles when exercising a function under this Act or any other function relation to education.

(3) The principles are—

(a) that each child and young person should be enabled to [receive an education that helps them make progress and become a fulfilled and valued member of society] receive an education that enables them to progress towards their full potential and to become a fulfilled and valued member of society;