A Christmas Tale of the Secretary of State and the Temporary Continuity Direction (or "Thou Shalt Not Close")

1 January 2021

The last few weeks has seen confusion without the Department for Education about the closure of schools before Christmas. But the legal threats and directions made by the Secretary of State in December may also be relevant to the re-opening plans from 4 January.

End of term blues

On 12 December 2020 The Guardian reported that the Schools Minister Nick Gibb had written to the headteacher of Presdales School, an academy in Hertfordshire, threatening to order the school to remain open for face-to-face teaching in the final week of term.

The school had apparently planned to teach most of its pupils remotely in that week while continuing to provide face-to-face teaching to vulnerable pupils, children needing extra support and any other pupils who wished to physically attend school, totalling an estimated 25 children.

However, the Schools Minister wrote to school stating that he was “minded to direct” the academy’s board of trustees to keep the school fully open for face-to-face teaching and stated that he had the power to do so under the Coronavirus Act 2020.

In the face of such threats the school’s headteacher understandably gave way, stating: “We can’t defend that – it’s not a good use of public funds, which we’re desperate for.”

On 14 December 2020 The Guardian further reported that the Secretary of State Gavin Williamson had issued a temporary continuity direction to Greenwich Council demanding the immediate withdrawal of a letter issued to schools advising them to switch to remote learning until the end of the term.

The Council’s request came following a surge in Covid-19 cases locally, particularly involving the new, more transmissible variant known as B117.

However, the Secretary of State defended his stance: “It is simply not in children’s best interests for schools in Greenwich, Islington or elsewhere to close their doors. I have always been clear that using legal powers is a last resort, but continuity of education is a national priority.”

Health and safety

Generally, an academy trust or, in the case of a maintained school, the local authority or governing body as employer is legally responsible for the health and safety of staff, pupils and visitors under the Health and Safety at Work etc Act 1974 and related regulations. Under the Education (School Premises) Regulations 1999 every part of a school building and of the land provided for a school shall be such that the health, safety and welfare of the occupants are reasonably assured.

In addition, under section 29(5) of the Education Act 2002 the governing body and headteacher of a community, voluntary controlled or community special school must comply with any direction given to them by the local authority concerning the health and safety of persons on the school’s premises or taking part in any school activities elsewhere.

In practice, the day-to-day management of health and safety matters, including operational decisions to close a school (or not), is usually delegated to the headteacher in accordance with the school's constitutional documents.

It is not clear on what legal basis the Secretary of State could in normal times issue any such direction or similar. Certainly, the Secretary of State has the statutory power to discontinue maintained schools in certain circumstances and various contractual rights set out in each academy’s funding agreement. But, ordinarily, it would not be within the Secretary of State’s powers to countermand health and safety decisions made by a school or public health advice issued by a local authority. The Secretary of State’s letter therefore merits legal analysis.

The Coronavirus Act 2020

The letter refers to the Secretary of State’s powers under section 38 of the Coronavirus Act 2020 to issue a temporary continuity direction to schools requiring the provision, or continuing provision, of education, training and childcare or to give notices disapplying or modifying law. In turn, paragraph 1(4) of Schedule 17 of the Act provides that the temporary continuity direction may, for example, require a school to open, to stay open, to re-open, or to open at times when it would not usually be open; and to make such other provision as the Secretary of State considers appropriate in connection with the giving of the direction.

Finally, the letter reminds the Council that under paragraph 1(6) of Schedule 17 the Secretary of State’s direction is enforceable against it by the Secretary of State making an application to court for an injunction. Such an application may be made without notice.

On the face of it the letter leaves little room for argument. However, the omissions from the letter are telling. In particular, while the letter states that Secretary of State considers the direction to be reasonable, the letter itself contains almost no reasoning. For example, there is no reference to local Covid statistics nor any explanation as to why remote learning would not be appropriate in the final week of term.

The respected legal commentator David Allen Green opined on 15 December 2020: “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.”

Furthermore, the Secretary of State’s direction appears to be misdirected because the Council merely advised closure rather than directing any schools to close; and, ultimately, it was a decision for each school whether or not to follow the Council’s advice. (That said, there is an argument that the Council’s advice may have induced schools to close when otherwise they would not have done so.) It is presumably for this reason that the Secretary of State also wrote to headteachers and chairs of governors in Greenwich threatening legal action if they followed the Council’s request.

What happened next?

Notwithstanding the deficiencies in the Secretary of State's letter and the Council’s detailed response, the Council did not apply for a judicial review of the Secretary of State’s order and the Secretary of State did not need to apply to court for an injunction to enforce compliance by the Council. Instead, the Council gave way and wrote to local schools, as directed by the Secretary of State. Given the costs risk, it is perhaps unsurprising that, like Presdale Schools, the Council promptly did as DfE required.

As it happens though, a few days later – in what must surely make Gavin Williamson’s bravado look rather foolhardy in hindsight – the Government announced the existence of the new, more transmissible variant known as B117, upended everybody's Christmas plans and placed London, Hertfordshire, Kent and other areas into tier 4.

On a personal note, as a school governor myself, I can confidently say that, if my local authority or my school’s headteacher advised that the school should close because of, for example, a significant rise in local Covid cases or exceptional staffing shortages, I would afford significant weight to that advice; and, if the Secretary of State then directed the governing body to stay open despite that advice, I would likely start drafting my letter of resignation as a governor.

In the meantime, let us hope that the Secretary of State opts to use his powers under Schedule 17 of the Coronavirus Act 2020 a little more judiciously. I have my doubts…

Afterword

On 30 December 2020 the Government announced that primary schools in specified Covid hot-spot areas would remain closed (except for children of key workers and vulnerable children) for an additional two weeks from 4 January 2021.

To date Greenwich Council, Islington Council and Hackney Council have published letters to the Secretary of State querying why they are not among the areas specified in the Government’s contingency framework guidance and requesting that they be added. However, it remains to be seen whether any primary school outside the listed areas will opt for remote learning from 4 January 2021 and, if so, whether the Secretary of State will issue a temporary continuity direction requiring them to open for face-to-face teaching, just as he threatened to do to Presdales School and to schools in Greenwich, Islington and elsewhere?

Post script

In the evening of 1 January the Department for Education confirmed that primary schools in throughout London will re-open with remote teaching from 4 January. What though of primary schools in other parts of Essex, Hertfordshire and Kent which are in tier 4 but not listed in the revised guidance? Perhaps school leaders and teaching unions will force the Government’s hand. We shall see...

Chris Hook is a solicitor practising in commercial, charity and education law. In his spare time he volunteers at Newcastle Law Centre and is a school governor.

Disclaimer: This article contains information which is necessarily general. It does not constitute legal advice. It is essential that, before proceeding with a particular course of action, you take specialist legal advice on any relevant considerations which may apply in your specific circumstances so that you can properly assess your options and any associated risks and benefits. The views expressed above do not necessarily reflect those of my employer.