15th December 2020
Amidst the flurry of government regulations closing down various things during the current pandemic comes this very different legal instrument from Gavin Williamson, the Secretary of State for Education.
Gavin Williamson has written to Greenwich council ordering them to reopen schools under powers contained within the Coronavirus act. pic.twitter.com/Si0VBixdO1
— Adam Bienkov (@AdamBienkov) December 14, 2020
Instead of ordering a thing to close, the Secretary of State is ordering things to stay open.
It is an extraordinary letter, and it is worth examining carefully.
(As a preliminary point, however, please note I am not an education law specialist and so there may be sector-specific legal aspects of this of which I am unaware – the examination in this post is on general legal principles and based on my experience as a former government lawyer and as a public lawyer generally.)
*
First, let us look at the power on which the Secretary of State relies upon.
It would seem there is no general legal power for the Secretary of State to order that any school remain open (or close), and so the letter relies on a specific provision in the Coronavirus Act 2020.
(If there were such a general legal power to issue such a direction, then presumably the Secretary of State would rely upon that power instead of the Coronavirus Act 2020.)
The relevant section of the Act is section 38.
The relevant part of that section is section 38(1)(a) which provides for a power to enable the Secretary of State to give directions requiring the ‘provision, or continuing provision, of education, training and childcare’.
That provision in turn refers to a paragraph in a schedule to the Act.
(This is not a ‘paragraph’ as such – it is a wordy provision which goes on for three pages, like something from a W. G. Sebald book.)
The paragraph sets out in detail the requirements for a ‘temporary continuity direction’ under section 38 – like a checklist.
For example, the Secretary of State must have regard to medical advice (paragraph 1(3)(a) and the direction must be necessary and proportionate (paragraph 1(3)(b).
The direction can require the recipient to take ‘reasonable steps in general terms’ (paragraph 1(4)(a)) and require a relevant institution to stay open or to re-open (paragraph 1(4)(b).
There is also a catch-all power that the Secretary of State may make any other connected provisions which he or she ‘considers appropriate’ (paragraph 1(4)(i)).
*
What is the duty of the recipient of such a direction?
The Act provides that it is ‘the duty of a responsible body or relevant institution to which a temporary continuity direction…to comply with the direction’.
How is this duty to be enforced?
If the recipient does not comply with a direction, the government can make an application to the courts for an injunction.
(Both the above are in paragraph 1(6) of the schedule.)
This would, of course, be an unusual injunction – most injunctions prohibit a person from doing a thing, while this will be a rarer ‘mandatory’ injunction requiring a person to do a thing.
A failure to comply with an injunction is, at law, a serious matter and can be a contempt of court, with (presumably) sanctions such as imprisonment and unlimited fines.
A breach of a mandatory injunction may also result in a court directing that the required act be completed by another person at the expense of the disobedient party (CPR 70.2A).
*
This looks like a wide and arbitrary power for the Secretary of State to give directions, with serious sanctions for a breach of a direction.
But if you look carefully there are explicit statutory requirements for the Secretary of State to be reasonable and to use this power only where necessary and proportionate.
These requirements are also imposed by the general law.
These will be quite high hurdles for the Secretary of State to jump.
*
Going back to the letter, you will see that in paragraph 2 of the letter the Secretary of State asserts that he ‘considers [the direction] to be reasonable’ – but there is almost no reasoning other than a general reference to a general interest (‘of securing that schools…allow pupils to attend school full time’ ) and a general reference to the Secretary of State’s guidance (but with no specific guidance quoted).
There is also no local data.
Any court would expect to see far more reasoning than this before enforcing such a direction with a mandatory order.
For example, can the education of the pupils not be done remotely?
Has proper regard been made to local conditions?
Is it proportionate and necessary to mandate a school to remain open with only days left in the school term?
Is it fair and equitable (a test of most injunctions) to insist a state school remain open when many private schools remain closed?
These are not ‘gotcha’ questions, but points which one knows a court will ask before granting an injunction – and so should be anticipated and covered in a letter threatening an injunction.
But there is nothing in this letter to meet these obvious and foreseeable questions that would need to be answered in court.
*
This direction then, even if it is the right thing for the Secretary of State to order, is not a well-drafted piece of legal work.
If i were still a government lawyer I would have been embarrassed to have prepared this for a minister.
It is not enough to assert that a thing is reasonable, necessary or proportionate – these statutory requirements for a direction also need to be shown.
*
The recipient of this letter – Greenwich Council – has already published an initial response.
Their initial response is as detailed as the Secretary of State’s letter is not.
“Yesterday we asked all schools in the Royal Borough of Greenwich to move to online learning for most pupils, but keep premises open for the children of key workers, vulnerable children and those with special educational needs.
‘Other boroughs have asked schools to take similar measures, and the Mayor of London has also called for all secondary schools to close, with an extra week off in January to enable testing.
‘Our request was based on information from Public Health England and supported by the Council’s Public Health team. In the Royal Borough of Greenwich, we currently have the highest rates of COVID-19 since March, with numbers doubling every four days. Our seven-day infection rate for the borough is now 59% higher than at the same point last week.
‘Infection rates are particularly high amongst young people, with 817 children of school age testing positive for COVID-19. 4,262 children and 362 staff are self-isolating – that’s an increase of 640 people since Friday. In many cases, other members of the child’s household have also tested positive, impacting entire families.
‘Schools across the borough have now organised online learning from tomorrow, whilst others are opening their premises to all pupils. This evening we received a legal direction from the Government to withdraw our request to schools. We are in the process of seeking legal advice and will respond to the Government in the morning.
‘We have alerted schools, and will speak to them tomorrow. But given we received this notification just before 5pm, it was impossible to ask schools to change any of the arrangements they have in place for Tuesday.’
The person(s) who drafted that response have done a good job: they are showing how the closure is reasonable, necessary and proportionate.
The response is based on local data and shows that reasonable alternative arrangements have been made.
The response also shows the council is in a better position to asses the situation than the Secretary of State.
*
On the basis of information in the Greenwich Council response, the government would be hard-pressed to obtain an injunction in support of their direction.
None of the above is to say that the government’s ultimate position is weak – a better prepared direction, based on local data, and with proper and detailed reasoning, may have been – or still be – possible.
But such a direction letter was not sent, and this shoddy one was sent instead.
The Secretary of State may issue a better direction – or government lawyers may turn up to court with a better application for an injunction.
The government is even threatening to go to court ‘without notice’ so that the council may be subjected to an injunction without any say in court, which would be inappropriate given the council have set out already that it believes it is acting reasonably.
*
Ministerial directions are powerful legal instruments, but they should always be used with care.
When I was young I often had reports sent from school averring that I could do better.
But here we have what purports to be a formal government direction sent to keep schools open where one could say of the Secretary of State that they could do better.
*
POSTSCRIPT
Sadly – at least for the legal commentary (at least) the council has decided not to contest the direction in court.
Following the Government’s legal direction, here is an open letter to families in #greenwich. My main priority has always been children & families across @Royal_Greenwich not a courtroom battle with the Government, and I acted based on data that shows rising cases of #covid19 pic.twitter.com/75N6n00OU9
— Dan Thorpe (@DanLThorpe) December 15, 2020
The council, of course, is entitled to take such a decision.
But its decision to comply with the direction does not take away anything from the critique above.
*****
This law and policy blog provides a daily post commenting on and contextualising a topical law and policy matter – each post is published at about 9.30am UK time.
Each post takes time, effort, and opportunity cost.
If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.
Or become a Patreon subscriber.
You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
*****
Comments are welcome, but they are pre-moderated.
Comments will not be published if irksome.
Thank you, a pleasure to read.
The implications, however, are very troubling.
I’ve two questions:
1. Why is Williamson issuing this direction?
2. This has not been prepared professionally by the Civil Service. Have they given up and are just going through the motions for this government?
Williamson is Johnson’s bag-carrier. There are years of animus between Johnson and Greenwich Council (to do with Greenwich Park, cycle “superhighways”, and street trees). It is possible that, being the person we know he is, Johnson sees this as an opportunity to settle some of his personal “scores”: eg to break individuals already under extreme strain, because of the rising infection rates of COVID-19 (the neighbouring borough of Lewisham is already at almost 100% increase on the previous week), and to bankrupt the Council.
You make no mention of the scheduling of all these potential actions. My impression (as a former local authority manager) is that by the time these actions are taken, the schools will have re-opened anyway as it will be mid-January.
Without wishing to offend anyone, Williamson strikes me as engaging in an act of willywaving, and it put me in mind of some of Trump’s recent activity – exercising power just ‘because’.
I sincerely hope he fails in stopping the schools from closing. Schools are, sadly, vectors for virus spread, and the wider community must be considered in areas where there is a major spike in infection.
This virus respects nobody, but responsible officials act to protect communities. Williamson, in this action, is as disrespectful as the virus and is behaving with no thought to responsibility.
As an ex teacher, I feel for all the pupils and teachers who have been struggling through this dreadful period. There are no easy answers, but forcing schools to remain open when they know they are not safe is, frankly, shocking.
One issue is that the council’s letter is phrased as a request, but will clearly have been interpreted by many schools as an order based on a specific recommendation from Public Health England. Ultimately then, the schools have been put in the position by the council of making the decision individually – arguably the council haven’t made a decision at all.
I suspect that is why the direction is a bit of a fudge – it is asking for: i) the withdrawal of the letters sent (which only “asked” as opposed to ordered) rather than directing that schools open; and ii) that the separate letters which have been sent by Nick Gibb to the schools be included with the withdrawal. The point being to attempt to make the schools make the opposite decision, rather than enforce directly against schools (which would probably be a bad look, as well as putting direct costs on the schools and generally being more messy). Ultimately, as the council didn’t have power to order a closure, they’ve put the schools in the position of making a decision which they also potentially didn’t have the power to make, and now the whole thing is an almighty mess.
Underlying this is a broader concern about who has the expertise and the competence to make this decision. If councils make “decisions” they are not empowered to make, or are permitted to imply that they have the power to make those decisions, then the approach to Coronavirus has been devolved to councils. Whether that’s the right or wrong approach, it’s clearly not the approach envisaged at the moment in the middle of a national crisis. The risk then is that councils decide to prioritise different factors to the rest of the country (pubs over education, gyms over shops), or fail to understand the unintended consequences of actions whether on neighbouring areas, on individual families or on the country as a whole – PHE’s view may well be that asking schools to shut at short notice increases the chances of transmission to grandparents given the requirement for childcare on short notice (we don’t know). A facetious example perhaps, but what if one council decides to “ask” that all hospitals close having received a briefing from PHE that hospitals are clear centres of transmission for coronavirus….
Clearly the approach to Coronavirus as a whole has been a mess, but it is important that we (being the people trying to comply) understand who has the power to make those decisions and that, when they are made, those decisions are made with appropriate authority and expertise. Both the council and the government have made a mess of this, and it’s particularly frustrating that schools have been forced into making political decisions at a time of enormous stress.
Without going into too much detail, local councils’ relationship with their schools may explain this.
The schools wanted to make the decision anyway or for it to at least be in their hands. Last week Nick Gibb threatened schools in Hertfordshire with legal action if they closed early. Academies are supposed to be independent; that’s exactly what has been promoted for years; but when they have tried to use that independence, the Government has stepped in to enforce central control. Greenwich’s letter simply returned that decision to the Heads of the school. It is ridiculous to suppose that Nick Gibb knows better than the head of any one school what is best for their pupils and their wider community at this point. Indeed the Government have been saying as much since June when they pushed literally every health and safety decision onto schools to make, in addition to funding, intervention and provision of care – “Heads are best placed to make decisions for their individual school” and “There cannot be a one-size-fits-all approach to health and safety” and yet now…
It’s shamefully hypocritical, overreaching authoritarian lies as well as a questionable legal approach.
You may well be right, but I’m not sure all of the heads would have read the letter as returning the decision to them, but rather as an order from the council to all schools in Greenwich. It’s (to my mind, slightly too carefully) not worded as an order, particularly if analysed through a legal lens, but to a stressed headteacher on a Sunday night the position should have been made much clearer: “this is your decision”; “I have no power to order you to close”; “Public Health England have not directed that schools should close”; “my view is”. I’m sure the council thought they were acting for the best, but we’re in this position because there is clear confusion about who makes the decision which has not been helped by any of the various letters.
This just reeks of “The man in Whitehall knows best”. Though not geographically distant, Whitehall is politically remote from Greenwich, a Labour council.
It’s yet another example of the over-centralised nature of the UK state, where decisions taken far from where things are happening are then imposed. Far better to let those in the best position to know, the local people on the ground, take decisions and be responsible for them.
The letter is addressed to the “Royal London Borough of Greenwich”, and says that is to whom it applies. It is my understanding (as a resident) that the borough is called “Royal Borough of Greenwich”; however, it seems the government body is called the “Royal London Borough of Greenwich Council”. Splitting hairs, perhaps, but is this a significant difference?
No
It simply smacks of the level of incompetence to which we’ve now become accustomed.
Thank you, a most informative read, and made my headteacher friends aware.
The implications of the Coronavirus Act 2020 are worrying. Is there a sunset clause ?
Does it matter that the government letter is dated 10 years before the coronavirus regs were even written?
I suspect not, but it smacks of poor preparation and lack of any checking by the govt.
Have you noticed that the Secretary of State could not even get the date of his Direction correct – the date below his name is 2010!
I am in no position on this blog to complain about typos!
I cannot help but think that, should the secretary of state pursue this matter and should a court deny an injunction, it leaves the field clear for more accusations of ‘activist lawyers and judges’ interfering in government. Perhaps I’m being cynical but…
Keep up the good work.
“Arrogant and offensive. Can you imagine having to work with these truth twisters?”
The “direction” is petulant and pointless foot-stamping. At best the schools have three or four days left before the Christmas holidays. In my day, the last few days of term are rarely when the most important educational work is done. But this is a great opportunity for a lesson on law and policy.
Meanwhile the whole of London is moving to Tier 3 because coronavirus infections are increasing rapidly, which will lead to consequent hospitalisations and deaths. There are already thousands of pupils and hundreds of staff off school already, either with positive tests or self-isolating. That means in some cases whole classes, years or subjects. Some schools may have more people at home than present. Some many have no essential resources, such as first aiders.
We all want our children to be attending school, for the benefit of their education and their mental health, but not at all costs and particularly not at risk to their physical health. Each individual schools will be best place to made its own decision about how to balance the risks and most effectively deliver education to its pupils.
(Just as one data point, my son’s school in Hertfordshire had four years out of seven sent home to self-isolate, and last week decided to teach the whole school remotely as they considered that would be more effective than making teacher switch back and forth between teaching different groups at school or remotely. Other schools in my area have already had to close completely for several weeks this term.)
Given the third peak and third lockdown are impending, starting this time from a high base, I fear schools will struggle to reopen on time as expected in January. So, where are the laptops, Mr Williamson? And do you still think we will have a full suite of exams in the summer? How is the algorithm coming along?
Bumping my last paragraph here as we enter the all-too-predicable third lockdown that we should have had three or four weeks ago. (Yes, the previous one should have continued or been rapidly re-imposed until we actually got infections, hospitalisations and deaths down to a low level, rather than leaving things until too late. Yet again.)
So, Gavin, does every child who is now working at home again, and who needs one, have a working laptop? (Not just any old dross that the IT supplier wants to scrap – something that actually does the job.) If not, when can they expect to receive them?
And what are you doing about GCSEs and A-levels this summer? Many of these children won’t have taken mocks or any end of year exams last year. Are we granting A-levels this summer based on GCSE results from two years ago (and if so, how to estimate the progress that many 16-18 students make in those two years)? what about GCSEs – will they be awarded on the basis is exams sat in the third form?
What a steaming mess.
As a retired civil servant (around 47 years service) my immediate reaction was to question how reasonable Williamson’s Direction was in law.
How could it be defended as having looked at all relevant facts and features and taken them properly into account as Greenwich Borough could have argued it did in seeking school closures.
I should not to have wanted to be a civil servant trying to draft a defence of judicial review on the basis of his Direction.
T
Well said, Tom.
There is no junction at which this government won’t take the wrong turning.
In this case, they are using a draconian law to try to force an entity that has more knowledge of the situation to do something unwise. Very this government.
Meantime, a school close to me has sent out a note saying that the school will be open but so will all the windows, there’ll be no food, no school buses and all the teaching will be online only so could the pupils bring laptops please, and while they couldn’t tell the parents what to do they wouldn’t be pursuing any that kept their children at home.
David, you make a good point about Gavin W. But have you considered whether (legally) the Councils had the power to close schools? Or whether head teachers did? It seems to me that the Councils recognised they had no such power and so merely “asked” schools to close (what?) but that head teachers believed that (or acted as though) the Councils were telling them they had to close (they were not). I am not sure there is any legal basis for the school closures in the first place.
Thank you DAG for a brilliant and useful commentary.
Even at a political level this is mad. Clearly School is very important but all they are requesting is 2-4 days at the end of term which could be critical for infection rates while being almost irrelevant for education. Also they cancelled exams unnecessarily in March and then prioritised “foreign holidays” above school in the August having been late to start schools up in the relative safety of Summer. HMG picks and chooses when education is important
One concern, Greenwich, being on the river, is exposed to the threat of Gun boats being sent from Westminster to keep them under control. Gun boats seem to be HMG instrument of choice in negotiations.