Second talk by Neil Taylor at the European Home education Conference 2011 on Law and Liberty
I am not a lawyer and have no legal training or qualifications, but like many home educators I have had to try to understand the law as it relates to our unwanted choice to home educate. Indeed it is widely recognised in the UK that home educators and not lawyers, even specialists in education law, may know the law better, and many solicitors have been successfully briefed by unqualified home educators.
In attempting to better understand the law in Spain and its different relationship of semi-autonomous regions to national government, and the relationship of national education law to regional education law, I found that my particular questions about this relationship, such questions as can the regions legally impose schooling, effectively banning home education when national law only prescribes education not schooling, were not being answered. I concluded that it was hopeless for me to attempt a good enough understanding of the legal landscape here, and that I had better confine my observations to general principles learned from our English experience and hope that they may be of some value. I also found myself wondering as I read, if Spanish home educators might still need to learn more about the law than seemed evident to me. What I can say is that until we were blessed with the wholehearted engagement of a home educating barrister in England, our knowledge of the law, while basically mostly correct, was perhaps also rudimentary in some respects, and certainly not as nuanced as it was enabled to become through this expert help.
The idea that home education, or anything for that matter, can be neither legal nor illegal seemed like an error to me, as does the idea of ‘un vacuo legal’, which I take to mean a legal vacuum, meaning the law is silent about the activity in question.
Where the law is silent about something, this is where our liberty resides. If something is not unlawful then it is by default lawful, and there is liberty to pursue the thing in any way one chooses so long as doing so does not break other laws as a consequence.
To take the English legal situation, parents are under a legal obligation to ensure ‘suitable education’ is ‘received’, and suitable is defined in the statute as ‘efficient, full time’ and ‘suitable to age, ability, aptitude and any special educational needs’. This is to be ensured by means of ‘regular attendance at school or otherwise’. Those wonderful two words ‘or otherwise’ are as far as the law goes, it does not go on to specify those other ways. So long as we meet the criteria of ‘suitable’, we can do what we like, and we do. The term ‘home education’ or anything similar meaning that, is not used in the statute, it is by default one possible legal means to meet the parental obligation to ensure suitable education is received.
Where the law does not regulate, neither can government nor local authority. It cannot lawfully fill that vacuum the phrase almost invites, and there can be no doubt that the activity is lawful if it is not proscribed in law. Welfare laws require parents to adequately feed and clothe and shelter their children, but they do not specify a diet, a minimum standard of clothing, or dwelling. So long as these don’t appear to be insufficient to ensure the general welfare of the child, parents are left to get on with it. Despite school being the largest economic sector on earth, with all the vested interest and elite agendas determining it, school in most countries remains merely one of the ways to provide an education, that’s all.
And that as I understand it is how matters should be in both our countries, with the choice left to parents who should only come to the attention of the authorities, if, in the words of the English statute, ‘it appears that a child…..is not receiving a suitable education’. Only then are they put on enquiry for breach of the general law.
But sadly, we all know that in both our countries life is not as it should be, and the authorities tend to be far more intrusive than their powers lawfully allow, and that a fight through the courts, which is usually successful here I read, may be necessary to obtain the law. The problem would therefore seem to be essentially one of either simple ignorance of the law by local enforcement officers, or willful misunderstanding of the law, resulting in unlawful harassment of law abiding parents.
As I have previously argued, the institution of forced state schooling is built on lies and is vulnerable to exposure to the truth that it is not needed in order to produce productive well socialised adults. This is reason enough to explain its hostility. Forcing you to do what you don’t want to do, or falsely imprisoning you is bullying, and the system therefore is a bully. It seems to me that it would be a grave mistake to effectively appease the bully by fudging the issue of whether it has the law on its side, where it does not, by asking it to specifically legislate to enable home education to be practiced. In England home educators simply asserted the right as a reasonable interpretation of the ‘or otherwise’ clause by showing that it met the ‘suitable’ criteria for an education.
There was an amusing incident in an early 1950s court case where an LEA was attempting to prosecute a home educator for not obeying their school attendance order and sending her children to school. The wretched jobsworth in the LEA as he was running out of arguments, complained bitterly that, ‘parliament never envisaged a Mrs Baker, there has never been a Mrs Baker’. (1) Well it was probably true that parliament never intended the non-aristocracy to notice that there really can be one law for the rich and another for the rest but only if the rest can be kept ignorant of the law! Sadly fooling most of the people for most of their lives with a non-existent obligation to send ones child to school has been only too successful.
If the state is hostile to home education, which it is, because it sees it as a form of leakage or escape from its absolutist ambitions for the totally planned society, and if that state is a consummate deceiver with a hidden workforce/predictable consumer moulding agenda, which it is, then it is surely neither realistic to expect its regulation of home education not to be subverted to these system ends, nor to hope for further improvement once regulation has been obtained. Indeed gradualism or incrementalism, a process of slow social change that takes the long view and accepts two steps forward and one step back, the way outlined by the English Fabian society, which of course is now international like everything else, and the principle modus operandi of bringing about change, will be put to work by government in the opposite direction from the one we desire to go in. Don’t give them the opportunity to get started on the destruction of this essential liberty wherever they haven’t already usurped it.
State absolutism achieved in education is a truly frightening and evil thing. In Germany where this system was born in absolutism to more efficiently serve it, they have achieved that, and that country’s state dictionary defines home education as child abuse, and no one knows any better, because there is almost no one who has not been schooled to be able to know from their own experience the truth of the matter. It is not only OK to snatch children from their beds in the middle of the night to foster them to strangers and not tell their loving parents where they are, it is their duty to do so to protect them from such parents. (2) Mass psychosis is my word for it.
Our experience of dealing with our own increasingly hostile government in England shows us that it is possible to defend the primary legislation that grants arguably good enough freedom, for now at least to successfully prevent the government from making us apply for licences to educate our children ourselves, which is what compulsory registration would mean. It is even possible to make the government admit in writing as it did in the last guidelines document it issued in 2007 ‘Local authorities have no statutory duties in relation to monitoring the quality of home education on a routine basis.'(3) This was a suggestion from us for a change!
So, if at all possible obtain from government, statements confirming the legality of home education, the nonexistence of statutory duties to monitor, or whatever, in preference to actually changing the law to say these things, because in the former scenario you still have your liberty under the law, plus this protection from local despotism of a government telling them what the law means. I suspect the suggestion from the Spanish constitutional court in 2010 to write enabling legislation for alternative ways to educate including home education, might come under Huxley’s ‘suggestions from the state’! If there is the possibility that the lack of proscription can be understood as liberty in this aspect of life, and a statement made by government to that effect, then this would be infinitely preferable to loss of that liberty.
The French political economist Frederic Bastiat (4) around 1850 stressed the importance of the law embodying justice, because without that it had no natural legitimacy. Justice should be the only business of law he maintained, but he also stressed that justice is achieved not by legislating for it, but by legislating to prevent injustice. Law he said should be negative, not positive, or by implication enabling. Under his system of law, if you can overlook the sin of coercing education in the first place, within that context in England we have negative law protecting our liberty, not regulation ensuring we comply by a system of licencing and inspections.
It only seems possible to lobby government either for what it already wants you to lobby it for, and has brainwashed us into doing, or if it is something that isn’t wanted, but you are persistent enough, it will find ways to appear to give you what you want, or the hope of eventually getting it in order to keep ‘government by consent’ going. Only for as long as it can keep you talking can it claim its fake democratic listening credentials, so if there is to be talk make that talk count for something, not just treading water. Only the government benefits from that as it continues to advance against you on other fronts. Distraction burglary is one of their ways.
Credibly threaten to break off talks that are going nowhere, or refuse cosy chats in their corridors of power that have no clear purpose or prior shared agenda. Let them know there is a line they can cross that if they cross it, then they risk losing this constituency and their faked appearance of listening which is so important to them. Be aware for eg. that consultations are not consultations at all, they are SATS, standard assessment tests to determine how well or how poorly we have understood what it wants us on board with, and provides them therefore with useful intelligence as to any problems the prior agenda may run into, and how best to spin the PR. With this in mind it is none the less possible to respond to their rigged exercise on your own terms. Colluding with trying to make a silk purse out of their sows ear, to use an English expression is doomed to failure as the original agenda gains its appearance of consent thereby. Destructively testing their love, is better than imagining we have to be ‘good’ to avoid being punished. That’s just a projection from unhappy childhood.
It is three decades since the Westminster government first expressed a desire to force home educators to register with local government. They tried to sneak through withholding de-registration from schools only this year, hoping we wouldn’t notice, and then dropped it like a hot potato the minute they got caught. It was almost comical.
Despite such telling behaviours our common fear is that they will just bulldoze something unwanted through regardless of our feelings about it, but brute force, direct head on confrontation like that never seems to get closer than threat, and had they succeeded they must have known that they would be pushing us too far and into civil disobedience territory. Such acts of domestic terrorism by our own government upon us serve they hope to make us grateful for lesser attrition, but we do not have to be so manipulable.
Withdrawing consent then would seem like a way to neutralise the preferred modus operandi of government which is to keep you on board, while tricking you into believing you might be getting somewhere in obtaining what you want. Find ways to say no to it that you personally feel able to do. Easier said than done I know, but just saying it on publically accessible forums will rattle them, and even provide good entertainment sometimes in their response, which is another story I don’t have time for now! They do not want their games exposed.
A change of intolerable scoundrels every five years serves to keep the illusions of democracy going while the real agenda, along with the new despots, con artists and honest dupes enjoys a honeymoon period as it carries on without a pause. Had the new legislation in 2010 succeeded then it would almost certainly have moved into the territory of open defiance of the measures, such as Australian home educators demonstrate by recognising that there is the ‘permissive’ and ‘non permissive’ routes into home education.
In Australia breaking the law has a recognised name for a choice! (3) In Queensland alone between 7,000 and 11,000 children are home educated by otherwise law abiding people who will not stomach this imposition because they know it is wrong. A dangerous precedent for any government to set surely, educating its citizens on the limits to its own power.
Government seeks legitimacy and consent and this is so deeply embedded now in the modus operandi of modern government that it will go to extraordinary lengths, including removing hated impositions like the children’s database or ID cards in England in order not to suffer widespread civil disobedience. We are far from being as powerless as the monolith of government would like us to believe is the case.
Negotiating with government is never legitimate if it results in negotiating away liberties, because they are not yours to concede and belong to everyone and to future generations. You will be rightly hated and vilified if you do this, and what is more you will have yourself become part of illegitimate government. Pragmatic ideas of ‘this is the best we can get’ may or may not be self-fulfilling prophesies. If your approach is of this fatalistic kind, and this is fatalism, then this is what you will get and so will our children and their children, and they might not thank you for it.
We are not in the enviable position of being able to choose a safe and easy way to protect our children from such an exploitative and abusive system. There are also obvious limits to the potential for direct civil disobedience if it empowers state kidnap of our children by way of response, but that does not mean we are powerless and can do nothing because of this exploitable vulnerability. While the law remains on our side where it does, it is vital to keep it that way and law breaking authorities and government itself can be called to account for its law-breaking and misrepresentation. Better to be on the right side of good enough law, and the authorities on the wrong side of it, than to end up on the wrong side of bad law. No one wants to have to fight in order to enjoy liberty of course, but there is a much worse scenario.
1. Children in Chancery, Joy Baker, Hutchinson & Co (1964)
3. Elective Home Education Guidelines for Local Authorities,