In Isle of Wight Council v Platt [2017] UKSC 28, the Supreme Court considered the correct interpretation of section 444(1) of the Education Act 1996, and in particular the definition of attending “regularly” at school. In allowing the appeal, the Court held unanimously that “regularly” could not mean “sufficiently frequently”, but must mean “in accordance with the rules” prescribed by the school. As a result, criminal liability can be founded on even one day’s absence outside the rules.
While most commentary has focused on the practical effect on parents of school-age children, the case is of legal interest for illustrating the Supreme Court’s current attitude towards statutory interpretation and the influence of policy.
Background
The Respondent, Mr Platt, sought permission to take his seven-year-old daughter on a term-time holiday to Florida. Permission was refused by the head-teacher but Mr Platt took his daughter on the holiday regardless. A £60 penalty notice was issued by the Local Authority under the Education (Penalty Notices) (England) Regulations 2007; upon Mr Platt’s failure to pay it, summary proceedings were brought for the offence contrary to section 444(1) of the Education Act 1996 (“the 1996 Act”).
Section 444(1) of the 1996 Act states:
If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence.
At the close of the prosecution case, the magistrates held that Mr Platt had no case to answer as his daughter’s attendance still fell above the 90% rate deemed satisfactory by the Local Authority in its published literature. Her attendance was sufficiently frequent as to be regular.
The Council appealed by way of case stated, and the magistrates certified the following question for consideration by the High Court:
“Did we err in law in taking into account attendance outside of the offence dates…as particularised in the summons when determining the percentage attendance of the child?”
A Divisional Court of the Queen’s Bench Division answered that question in the negative. Under section 1 of the Administration of Justice Act 1960 appeal lay straight to the Supreme Court.
The Supreme Court shifted emphasis away the regularity of attendance within and without the specified period, determining that “the essential question for this court is the meaning of “fails to attend regularly” in section 444(1) of the 1996 Act”.
In a judgment delivered by Lady Hale, the Court conducted a historical analysis of the legislation and considered competing meanings of the word “regularly”. It held that “regularly” could not mean “sufficiently frequently” and must mean “in accordance with the rules”, such that even a single day’s absence outwith the rules could contravene the criminal law. It relied principally on these reasons:
(i) The historical arc of legislation bent towards increasing the scope of compulsory education and reducing absences;
(ii) Other provisions of the 1996 Act relating allowed criminal liability to arise from a single day’s absence;
(iii) Any other interpretation would be too uncertain;
(iv) Policy justifications dictate that unauthorised absences must not be condoned.
Analysis
Of the three main rules of statutory interpretation – the literal rule (give a word its plain and ordinary meaning), the golden rule (depart from the literal rule where an absurd result would ensue) and the mischief rule (interpret to address the mischief that Parliament sought to remedy by this law) – the mischief rule has traditionally been of the narrowest application, invoked only where the other two are deficient. The judgment in Platt is of interest for the Court’s willingness to consider only the mischief rule, even where that requires the imputation to Parliament of a very uncommon meaning of the word. Although a wide application of the rule has historical detractors (it was once colourfully labelled “redrafting with a vengeance” by Lord Edmund-Davies: Royal College of Nursing v DHSS (1981) [1981] 2 WLR 279 [1981] AC 800) it has been described by the Law Commission as the “rather more satisfactory approach” to statutory interpretation, and has long been favoured by European courts for its pragmatism. The disadvantages of a literal interpretation shine especially bright where, as here, the law must be tightly defined: a summary only offence – punishable with a fixed penalty notice – of wide application to the population calls for clarity.
The respondent’s interpretation also suffered in the strong tide of policy considerations against him. Counsel for the intervening Secretary of State for Education explicitly invited the court to focus on whether a parent has the right to take a child out of school for any reason they judge appropriate. The Court agreed with this focus, pointing out the “very good policy reasons why [any other] interpretation simply will not do”, including the disruption to both the affected pupil and others in the class. The court’s interpretation was guided by a policy principle that school cannot be compulsory merely when it is convenient.
The court’s interpretation was guided by a policy principle that school cannot be compulsory merely when it is convenient.
Also striking is the Court’s brief paragraph addressing whether it should merely make a declaration or should remit Mr Platt’s case to the magistrates for inevitable conviction. A court will usually give the benefit of any doubt to a criminal defendant, and here the law on section 444(1) of the 1996 Act had been interpreted in Mr Platt’s favour by all concerned before this case – from the High Court in the earlier case of London Borough of Bromley v C [2006] EWHC 1110 (Admin), to prosecutors and the Local Education Authorities whose own published policies treated “regularly” as meaning “sufficiently frequently”. However, this case should set down no general rule of disposal. Harsh as it is, it was an egregious example of undermining the school’s rules: Mr Platt had sought permission and deliberately ignored its refusal; his daughter had been taken on a week’s term-time holiday just two months before by her mother; the mother had been issued with a penalty notice and paid it.
Finally, this case may encourage debate of the utility of section 1 of the Administration of Justice Act 1960 – the law of a relatively minor criminal offence was considered only by lay magistrates and the Divisional Court before adding to the Supreme Court’s already heavy workload.
