Fixed penalties for school absences: a case for judicial review

One government policy which has attracted considerable attention, perhaps because it has particularly upset middle-class parents, is Michael Gove’s tightening up of the rules regarding term-time absences from school. The Sunday Times reported last month that a campaign for judicial review of the policy was being organised by group of parents under the banner, ‘Parents Want a Say’. The campaign was being supported by the Liberal Democrat MP, John Hemming, and is based on the argument that the penalty represents a breach of the right to a family life, which is protected under the Human Rights Act. This week’s Sunday Times reported that ‘a high flying executive’ (a banker from JP Morgan), was about to mount a test case, by refusing to pay a fixed penalty notice issued by his local authority when he took his children out of school to attend a memorial service for their great-grandfather in America. By refusing to pay the fixed-penalty fine of £60, the parent can be fined up £2500 or be given a custodial sentence.

I’m not a lawyer and the case may very well succeed. However, it is far from clear that this will open the door to further cases from those who have been fined for taking their children out of school to take advantage of cheaper holidays. If the case has been reported accurately then this would seem to be based on an exceptional family event rather than a simple holiday, and one wonders why the headteacher involved did not exercise the discretion which the regulations permit, and  authorise the absence in the first place. It seems to me, rather than basing a case on the Human Rights Act, more appropriate grounds for a judicial review of the policy of imposing fines on parents who take children out of school for holidays may be to argue that the Secretary of State for Education, has exceeded his powers by changing the rules to such an extent that they are now being applied in a way which was never intended when the legislation permitting such fines was passed by Parliament.

While media attention has often focused on legal challenges based on the Human Rights Act, the most common form of judicial review, and the one on which politicians have most often found themselves hung up, is the doctrine of ultra vires. This is based, not on the notion that in pursuing a particular policy, politicians or public bodies have transgressed the law, but that they have gone beyond the powers given to them in legislation. The application of this doctrine by the courts has created considerable tensions between politicians and the judiciary for a number of reasons:

• firstly, arguments often revolve around the interpretation of  particular pieces of legislation and what parliament did, or did not mean, when the legislation was passed. Politicians who have fallen foul of judicial review on the basis of ultra vires, such as the former Labour Home Secretary, David Blunkett, often argue that they are merely applying the law as Parliament meant it to be applied, and as Members of Parliament, they are much better able than judges, to determine what Parliament intended;
• another potential source of conflict, and one explanation for the increase in the number of cases of judicial review, is the process of amending the law by the passing of Statutory Instruments, sometimes referred to as delegated or secondary legislation. These are in effect alterations to Acts of Parliament, by a Secretary of State without recourse to Parliament, that is without the need to introduce new legislation, which would, therefore, be subject to Parliamentary scrutiny and debate. Statutory Instruments are passed on basis that the changes being introduced fall within what was allowed by the original legislation. Cases of Judicial Review often involve challenges to changes introduced through Statutory Instruments,  on the grounds that they have exceeded the aims of the original legislation. In such cases it is argued Ministers have sought to introduce substantive changes, effectively through the back door, without proper Parliamentary scrutiny.

In the case of Mr Gove and fixed penalties for school absences, penalty notices were introduced by the previous Labour Government, as part of the Anti-Social Behaviour Act 2003. This amended the 1996 Education Act to allow for the imposition of a penalty notice, (a fine payable to the local education authority) by parents for ‘failure to secure regular attendance at school of registered pupil’. The Anti-Social Behaviour Act did allow for the subsequent drafting of regulations regarding the form and content of the penalty notice, including the amount and the circumstances in which it might be applied.  Regulations were passed as part of a Statutory Instrument in 2006, to allow headteachers to grant leave of absence for up to ten days holiday in each year. The form of the penalty notices were set out in another Statutory Instrument in 2007, which gives headteachers authority to impose fixed penalty notices, but appears to allow considerable discretion, and differential practice, by leaving it to local education authorities to draw up codes of practice with regard to the consistent application of penalties within an LEA area.

The new regulations, were introduced by Mr Gove, as Statutory Instrument 756, which came into force on 1 September 2013. It tightened up the rules regarding when headteachers could authorise an absence, by stating that headteachers could only grant leave of absence in ‘exceptional circumstances’ and that these would no longer include up to ten days a year for a family holiday. As a result absence for holidays would now be classed as unauthorised absences, this placed them in the same category as truancy and left parents who take their children out of school for holidays open to the imposition of the same fixed penalty applied to the parents of children playing truant.

The test case currently being considered under the Human Rights Act may well stand or fall on the basis of whether the absence of the children in question should reasonably be classified as a family holiday or as an exceptional circumstance. This does not, however, get to the heart of the matter which is that parents can now be fined, and notionally imprisoned, for taking their children out of school for one day’s holiday in a year. This, it seems to me, may be more appropriate grounds for judicial review, on the basis that this was not what was intended when fixed penalty notices for absences from school were introduced, and that by changing the regulations in this way Mr Gove has exceeded his powers. Fixed penalty notices were introduced as part of the Anti-Social Behaviour Act as a means to combat repeated truancy from school. Taking children on holiday, whatever schoolwork they may miss (which in itself is a moot point), surely cannot be construed as anti-social behaviour, and to take children out of school for a small number of consecutive days in a year can hardly be considered as persistent or repeated absence.

The proposal to introduce fixed penalty notices for truancy was the subject of considerable debate, and indeed opposition, when the Anti-Social Behaviour Bill was making its way through Parliament in 2003. Several MPs raised questions about the desirability and practicalities of making teachers responsible for imposing and collecting fines from parents. The Opposition Conservative education spokesperson, Oliver Letwin, was particularly critical of ‘the mind-numbing idea that teachers could hand out fixed penalty notices to the parents of children at their school’ concluding that, ‘I cannot imagine how the Home Secretary imagines that such a provision would be workable’ (Hansard – Commons, 8 April 2003 col.152).  The Conservative MP, John Bercow, now Speaker of the House of Commons, was critical of the ‘breast-beating Home Secretary’ who appeared to be legislating ‘simply to feel better or to appeal to the Daily Mail or other tabloid newspapers’ (Hansard – Commons, 8 April, 2003, col.195). The Conservative MP, and former teacher, Liz Blackman, expressed ‘grave concerns’ about the notion that teachers would be responsible for imposing fines on parents (Hansard – Commons, 8 April 2003, cols.177-179), a view which was echoed by several members who felt it would would damage the relationship between schools and parents, including the Liberal Democrat MP, Annette Brooke, who observed that, ‘it is incredibly undesirable for head teachers and teachers to impose fines for truancy: a separation is needed between enforcers and those who are trying to work with children and their families’ (Hansard – Commons, 8 April 2003, col.185)

Of course the point is not that the current government is doing something which they opposed in Opposition, governments do this all the time, although it is always worth pointing out. However, the grounds for judicial review of Mr Gove’s change in the regulations lie in the clear implication during the passage of the Anti-Social Behaviour Act, that fixed-penalty notices were solely designed to deal with persistent and problematic truancy, and at no point was it suggested that they should be used to prevent parents taking their children out of school to go on holiday or take part in other supervised activities. In introducing the Bill, the Home Secretary David Blunkett referred to the need to tackle ‘the few parents whose behaviour is not only a terrible example to their children and others, but a disruption to the life and work of schools’ (Hansard – Commons, 8 April 2003, col.144). Far from suggesting that parents were taking children out of school to attend other supervised activities such as holidays or family events, the debate centred on the notion that children who were playing truant were not under the supervision of anyone else and a result truancy was seen a route into bad behaviour.  The Labour MP, Ann Coffey, argued that the package of measures in the Bill were designed to help children from ‘chaotic families’, in order to ‘keep those children from failing at school, turning to criminality and costing the state thousands in secure accommodation, youth custody and years in and out of jail’ (Hansard – Commons, 8 April 2003, col.188). It hardly seems credible that the same legislation is now being used to prevent children from going on holiday, attending family weddings, memorial services and sibling’s graduation ceremonies.

It is important to remember that the point here is not that taking children out of school in order to take advantage of cheap holidays is not damaging to their education. An additional ten days holiday each year throughout a school career adds up to more than 20 weeks of schooling, which may have a profound effect on the education of some children. However, taking children out of school to attend other supervised activities is not the same as children absenting themselves from school in order to hang around on street corners or play video games at home. Crucially, in applying legislation designed to combat truancy in this way Mr Gove appears to have gone some way beyond what Parliament intended when the legislation was passed. The Government is perfectly entitled to bring forward new legislation to combat this problem, if indeed it is a problem, but it should be the subject of new legislation, and the requisite parliamentary scrutiny which this would entail. Until that point, I would argue that Mr Gove’s application of the Anti-Social Behaviour Act in this way remains open to judical review.