Schools Bill

Legal references on this page apply to England.

NB the following applies to ENGLAND ONLY.

Updates can also be found on my News Page.

In Autumn 2022 the government began to ask local authorities for "termly aggregate data returns on EHE children and CME on a voluntary basis." Read more here

On May 11th 2022, the day after the Queen's speech, the government published the Schools Bill which puts forward sweeping changes to the way schools in England are to be run. Part 3 of the Schools Bill contains proposals for the compulsory registration of children not in school - which the government calls the CNIS Register. It is intended that these changes will add new subsections 436B - 436Q to Part 6 of the Education Act 1996.

Proposals for registering and monitoring home educated children were first mooted in 2018 with a call for evidence but in April 2019 the government changed tack and since that point it has NOT been about home education registration and monitoring but instead about establishing a register of children not in school. The pre-2019 monitoring proposals DO NOT APPEAR in the Schools Bill.

At the time of writing on November 12th 2022 the Schools Bill is still with the House of Lords awaiting Third Reading. There is a useful one page summary of the Bill's progress on the UK parliament site here (the url says May 2022 but it keeps being updated after every stage in the Lords).

A number of government amendments making the compulsory registration clauses of the Schools Bill less bad were passed in the House of Lords on July 18th. As it stands currently, the Bill says that where children are eligible to be registered (mostly, but not exclusively, home educated children who aren't already on a school roll) parents will have to supply the child’s name, date of birth and home address; the name and home address of each parent of the child (insofar as they have that information) plus "such details of the means by which the child is being educated as may be prescribed."

Government ministers in the Lords have said "The measures in the Bill do not give local authorities any new powers to monitor, assess or dictate the content of education ... We are of the view that local authorities’ existing powers are already sufficient to assess the suitability of the education being provided. Therefore, I would like to be clear that the phrase in the Bill “the means by which the child is being educated” does not include the content of the education itself ... It is limited to matters such as whether the child is taught entirely at home or also attends education settings, which settings they are, and how much of their time the child spends there."

If parents say that an education setting is delivering the majority of the child's education, the named provider will have to confirm the information supplied by parents. This could include private tutors.

Ministers have also said "as part of the implementation of the Bill we will be reviewing our existing guidance and publishing new statutory guidance for local authorities on their “children not in school” responsibilities, which will include advice on how they should discharge their new support duty ... we will develop this collaboratively, prior to public consultation, with the new implementation forum we are establishing of local authorities, home educators and safeguarding partners to support the introduction of the registers, ensure the system works for everyone and that parents have the support that they need ... statutory guidance is the appropriate medium to outline best-practice examples of how local authorities and home-educating parents can engage positively to achieve the best outcome for the child, while also encouraging local authorities to maintain a consistent approach ... there are at least two more stages to go on the guidance. One is a collaborative process to produce the draft guidance, and then a consultation process." [See]

If parents fail to register or don't supply the registration information, the government is proposing to use the school attendance order process as a sanction ie parents will receive a preliminary notice. Read more here.

The Schools Bill will require the register to hold a great deal of other information, which you can read about here.

How A Bill Becomes Law

A law is a Bill until it receives Royal Assent and becomes an Act of Parliament. During what is called "Passage of a Bill" there are specific opportunities for members of the House of Commons and House of Lords to debate the proposals and to ask questions of the Minister responsible for seeing the Bill through, possibly with a view to pushing the government to make changes.

The following is a very useful link for explaining parliamentary words and expressions

There are two main types of parliamentary scrutiny before a Bill becomes an Act. One type of scrutiny is called a "Reading" where there is a chance for any MP (or member of the House of Lords) to comment on whichever bit of the Bill they find questionable (they may have to get their name on a list in advance to be called to speak) The other is called "Committee".

In the House of Commons the Bill Committee means that a selected group of MPs have the specific task of going through the Bill line by line. Typically this Committee may meet several times a week and you can watch on Parliament TV and subsequently read a transcript of the proceedings.

In the House of Lords Committee tends to be "Committee of the Whole House" which means that scrutiny is not hived off to a small Committee Room with selected members of the House, rather any member of the House of Lords can speak to the part of the Bill under scrutiny at the time, with the proviso as above that they will have to get their name on a list in advance to be called to speak.

Bills have to go through both Houses of Parliament before they can become law, but they can start in either House. It is to a large extent a timetabling issue to spread out the workload so everything is not happening at the same time with no space on the parliamentary calendar.

NB if people are conditioned to expect a Bill to have to go through the Commons first, they might be quite alarmed when they see it is due to be debated in the Lords already, wrongly assuming that this means it is near the end of the process. The Schools Bill is one of the Bills which starts in the Lords ie it will have to go through all the stages of Readings and Committees in the House of Lords before reaching the House of Commons.

Since the first covid lockdown in March 2020 we have got used to certain types of public health law being put in place at lightning speed but this is a wholly exceptional way to make laws and is only permitted in very specific circumstances.

We have also recently seen the cap on personal contributions to Adult Social Care being brought into law virtually instantaneously. Again this was exceptional and only possible because the measure were on the statute books already but had never been brought into force.

Both of these are the exception rather than the rule and the normal passage of a bill through parliament typically takes around a year, although this emphatically does NOT mean that everything changes straight away.

Timescale for Changes Following New Law

When a Bill has passed all stages in both Houses of Parliament and become law - ie an Act on the statute books - this does not mean that all the provisions of the Bill come into force immediately. Typically there will be a few sections that do come into force the day the law is passed, but most sections will be waiting for a later start date, and some sections will never be started.

Further detail about what is called "Commencement" can be found at the end of PART 5 of the Schools Bill under the heading ""MISCELLANEOUS AND FINAL PROVISIONS." NB since the CNIS Register and associated provisions do not fall into the named sections coming into force immediately, therefore they will "come into force— (a) for the purposes of making regulations, on the day on which this Act is passed; (b) for remaining purposes, on such day as the Secretary of State may by regulations made by statutory instrument appoint."

Importance of Regulation Making Powers

In the original version of the Schools Bill there was very little detail on what is called the face of the Bill so we simply had no idea of any limits as to the information the local authority might be allowed (or indeed required) to collect for the register, all this was to be set out in regulation later.

As the Bill now stands, following amendments at Report on July 18th, parents will only be in breach of the law if they fail to provide certain basic information. Following this, the local authority will be empowered to issue a preliminary notice for a School Attendance Order. There are also to be harsher penalties for failing to comply with a School Attendance Order.

By way of background, there are two ways that a parent can break the law in respect of school attendance. One way is where the child is a registered pupil and the parent fails to ensure that they attend regularly (ie truancy) There is a completely DIFFERENT set of rules for cases where a child is NOT on roll at a school.

In law the only person who is able to register the child is the parent. A child does not "become registered" by virtue of a School Attendance Order. It is somewhat of a misnomer to call it an "Attendance Order" since it is actually a registration order "requiring him [the parent] to cause the child to become a registered pupil at a school named in the order." Read more here.

(As an aside and although widely misunderstood this is precisely why a child does not "become registered" by virtue of the school being named on an EHCP even where this naming is directed by a special needs Tribunal. The parent can refuse to register the child on the basis that the child is to be home educated instead, see LB Richmond upon Thames v AC 2017 as per HHJ Ward "There is no obligation on a parent to send a child to the school named in the statement but there is an obligation to secure that the child is properly educated.")

Contents of Schools Bill Part 3 School Attendance, Children not in school

NB as explained here a clause is part of a Bill. A Bill is made up of individual clauses which may be debated separately in Parliament. Any clause can be removed or amended - and new clauses may be added - before a Bill is passed. If a Bill becomes an Act of Parliament its clauses become the sections of the Act.

The numbering for the registration proposals is a bit confusing but the main thing you need to remember is that Part 3 seeks to amend the Education Act 1996 by INSERTING a block of new text after the current section 436A hence the appearance in the Schools Bill of 436B, 436C etc.

Useful Links

Link Reference

This article is The following links to other websites are contained in the article, displayed as citations to aid you in printing the document.