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.
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.
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