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Education law ‘a complicated mess’

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We are frequently asked at the LGiU for the legal basis of an action that a local authority is proposing to take, and occasionally one that the authority has already taken.

With the general power of competence under the Localism Act 2011, this has become easier.

We now only have to consider whether there is a legislative provision that prevents the authority from taking action rather than one that permits the action to be taken.

Although thankfully rare, schools can decline rapidly with few warning signs. A recent query was about a school that had suddenly got into very serious difficulties. The education of pupils had become severely prejudiced. There was not the time to use the powerful, but widely misunderstood, legislative provisions on warning notices.

The local authority, acting as ‘the Authority’, had closed the school temporarily, had effectively dismissed the governing body and was seeking an experienced interim headteacher to reopen the school in a few days.

Was this legal I was asked? Yes, the local authority could do these things.

Local authorities have a reserve power to prevent breakdown of discipline in a maintained school (section 62, School Standards and Framework Act 1998).

Not long ago, the one volume standard text on education law was required reading for all local government officers working in education.

It is now seven volumes (and six for the law on children) with cost hikes of 20% a year. The law has now become a complicated mess, which few can be expected to grasp in full, and access to the text is ‘out of reach’: local authorities cannot afford to make it available to their staff working in children’s services.

Consequently, there is heavy reliance on civil servants interpreting the law through their drafting of advice notes and guidance from the secretary of state. This puts much practice outside the capacity of Parliament to scrutinise and makes it difficult for local government to respond directly to legislation.

Is this healthy for those who believe that a healthy democracy and effective schooling go together? Probably not.

John Fowler, policy manager, Local Government Information Unit

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