COMMONS AMENDMENT (Hansard, 8 November 1989)

§ The Lord Chancellor
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 330. I spoke to Amendment No. 330 with Amendment No. 111, and there is now a question of the amendment to it.

§ Lord Prys-Davies
My Lords, on behalf of my noble friend Lord Mishcon, I beg to move Amendment No. 330A.
864 I believe that Amendment No. 330 is one of the many amendments brought in very quickly at Report stage in another place and has really not been discussed. On these Benches, we believe that Amendment No. 330 is rather surprising. It provides that non-compliance by a parent with the directions of an education welfare officer could be an offence punishable by a fine. Even if the education welfare officer were a qualified social worker —and many education welfare officers have no qualifications —we believe that it would be wrong to make non-compliance with a direction of an official an offence punishable by fine.
I understand that currently the local education authorities are placing less and less emphasis on court action to tackle the problem of truancy. They seek to explore more fully the reasons for truancy. They then seek to tackle the problem by other means.
Against that background, it seems to us very surprising that the Government should be introducing this offence. Moreover, in discussions on this Bill, the noble and learned Lord the Lord Chancellor has consistently pointed out to your Lordships that it is a central principle of the Bill that the state should not intervene compulsorily in family life without very good reason. That has been one of the central principles of the Bill.
Should the state intervene to punish a parent because of non-compliance with a direction of an official? We fear that this provision would bear down unfairly on the under-privileged parent who may not have fully understood that he had received a direction within the meaning of this clause and who could be prosecuted and fined.
As I understand it, it is not a defence for a parent to say that he had not understood that the communication from the education welfare officer was a direction. How is an under-privileged person to distingish between a piece of advice on the one hand and a direction on the other hand?
We have often said that this Bill is a forward-looking Bill. However, on these Benches we fear that Amendment No. 330 —which was rushed through another place —is turning the clock back. I do not expect that the Government will accept our amendment at this time of the day. Nevertheless we hope that they would not rush into implementing the amendment. We hope that by regulations they can find ways and means of mitigating the impact of the amendment.

§ Lord Renton
My Lords, I have a good deal of sympathy with what the noble Lord, Lord Prys-Davies, said in moving the amendment. However, I am particularly concerned because Amendment No. 330 shifts the burden of proof from the prosecution —which is the usual case —to the defence as regards whether the direction was reasonable. Normally we should not shift the burden of proof in that way. It would have been perfectly possible to draft the provision in such a way as to keep the burden of proof upon the prosecution by enacting in the second line of subsection (1) the word "reasonable". That subsection of the amendment would then read: 865 If a parent of a child with respect to whom an education supervision order is in force persistently fails to comply with a reasonable direction". Then the provisions contained in subsection (2)(b) would be unnecessary and the burden of proof in that respect would not have been shifted on to the defence.
As the noble Lord has already said, at this hour we are not likely to get the matter changed. However, I believe that for future reference we should put down a warning that shifting the burden of proof in that way should be avoided if possible.

§ The Lord Chancellor
My Lords, the proposed amendment would remove the provision for sanctions against parents who persistently fail to comply with a direction of a supervisor administering an education supervision order. I wish to emphasise the fact that the offence is not just failing to comply with the direction; it is persistently failing to comply. We believe that an offence provision is a necessary and reasonable sanction against parents whose persistent failure to comply with directions is likely to damage their child's education.
Under Section 36 of the Education Act 1944 parents have a clear duty to ensure that their child is properly educated. If they fail to do so —for example, by failing to comply with a school attendance order—they may be liable to commit an offence. Where an education supervision order is in force the duties of parents under the education Acts are superseded by the duty to comply with any directions in force under the education supervision order. It is therefore appropriate that parents who persistently fail to comply with the supervisor's directions should be liable for an offence under the Children Bill since this supersedes their liability for an offence under the education Acts.
As regards the point made by my noble friend Lord Renton, the burden of proof is appropriate to be on the prosecution for the matters which are the substance of the offence. The substance of the offence is persistently to fail to comply with a direction. But it is also reasonable to allow a defence that the original direction was not a reasonable direction or that one of the other defences could be made out. Therefore, while I understand his concern about the matter, it is not right to describe it as a shifting of the onus of proof, the onus of proof being in respect of the substance of the offence which is described in that way.
I certainly understand the concern expressed but we feel that in the circumstances the education supervision order requires that the directions made under it should be capable of being enforced. However, I rely on and point to the fact that persistent refusal is necessary before any offence would be committed under this provision.

§ Lord Prys-Davies
My Lords, I am grateful for the contribution of the noble Lord, Lord Renton, and I follow the emphasis which the noble and learned 866 Lord has placed on the word "persistently" which appears in subsection (1).
It is still our view that if an education welfare officer is to be empowered to issue a direction which is envisaged in this amendment, it is premature to do so until the education authorities have been adequately staffed by trained welfare officers who can properly investigate the cause of the truancy. That is still our judgment. Nevertheless, I do not propose to press this amendment and I therefore beg leave to withdraw it.
Amendment No. 330A, as an amendment to Amendment No. 330, by leave, withdrawn.
On Question, Amendment No. 330 agreed to.