Education Bill

January 31st, 2011 by Edward Capewell

As readers of this blog may have seen, the government’s new Education Bill had its first reading in the House of Commons on 26th January 2011. You can view the Bill and the Explanatory Notes to it (prepared by DfE) from this page. The Bill makes amendments to the existing education law statutes (interestingly, as you can see from the Glossary in the explanatory notes, there have been, excluding the Children Act 1989, 16 education statutes in 18 years, from the Further and Higher Education Act 1992 to the Academies Act 2010. The torrent of legislation seems set to continue under the present government) and takes forward proposals in the White Paper The Importance of Teaching, published in November last year.

There has, so far, not been a lot of media coverage of the Bill, although there is a good general introduction on the BBC news website. That article includes a number of quotes from the Secretary of State which can also be read in the press release on the DfE website. It also notes that the Labour party has accused the government of “going back to the 1950s” in the Bill, although Stephen Ball in this article in the Guardian finds the Bill taking us “back to the 19th century”. The Daily Mail meanwhile focuses on the Bill’s proposals to give pre-charge anonymity to teachers facing accusations from pupils.

Away from the political controversy that the Bill will undoubtedly generate, 11KBW’s education law group will soon be hosting a seminar on the legal changes that the Bill will bring if passed. Watch this space for details.


Michael Gove launches a review of the national curriculum

January 20th, 2011 by Michael Lee

The Conservatives’ 2010 Manifesto, “Invitation to Join the Government of Britain” promised to “restore rigour to the curriculum”, as part of a commitment to raising standards in schools. Following the General Election, the Coalition Agreement then recorded the Coalition’s commitment to giving schools greater freedom over the curriculum.

More details have emerged today as to how the potentially competing aims of increasing both rigour and flexibility are to be met, as Education Secretary Michael Gove launched an expert panel tasked with reviewing the national curriculum.

Reducing the number of compulsory subjects appears to be one possible means of giving schools more flexibility on curriculum matters. The panel will consider which subjects ought to be compulsory for pupils of different ages, with only English, maths, science and PE guaranteed to remain so for those of all ages (though religious education will also remain a statutory requirement). Mr Gove has also indicated that the new curriculum will be less prescriptive in relation to teaching methods, another way in which flexibility may be increased.

However, whilst the number of compulsory subjects may be cut, the new curriculum looks set to contain more detail as to the specific facts which are to be taught in schools. Writing in the Daily Telegraph today, Mr Gove criticises, for example, the absence of historical figures and country names from the current history and geography curricula. With the new curriculum set to address this issue, it appears that whilst teachers may be given more flexibility about how they teach, they may face greater regulation in relation to what they teach.

Mr Gove announced that the new curriculam for English, science, maths and PE is to be introduced from September 2013. Other subjects’ new curricula will be introduced the following year. Precisely how the balance between rigour and freedom is eventually struck remains to be seen.


Ali v Lord Grey School goes to Strasbourg: The Right to Education, A2P1 and School Exclusions

January 13th, 2011 by Joe Barrett

The European Court of Human Rights has handed down judgment in Ali v United Kingdom (Application no. 40385/06, 11 January 2011). The decision is the final instalment of the litigation which culminated at the domestic level in the judgment of the House of Lords in Ali v Lord Grey School [2006] UKHL 14.

Perhaps unsurprisingly, the ECtHR has upheld the conclusion of the HoL (Baroness Hale dissenting in part) that no violation of the A2P1 right to education occurred.  However, in certain significant respects the reasoning of the ECtHR diverges from that of the HoL. In particular, it provides important guidance on: (i) the circumstances in which school exclusions are compatible with A2P1 rights; and (ii) the content of the right to education.


The applicant was suspected, having been spotted in the vicinity, of setting fire to a bin on school premises and became the subject of a police investigation. The school determined that he must be excluded until the investigation was complete.

There were various procedural defects in the exclusion process. Amongst other things, in breach of statutory requirements, the applicant was not initially informed of the term of his exclusion. This is perhaps unsurprising, as the school could not predict when the police investigation would be complete. The exclusion resulted in the applicant being absent from school in the run up to important exams, albeit that he was allowed to return to school to take the tests.

The school made efforts to provide alternative educational support during the exclusion, but this was not taken up. The school also tried to bring the applicant back to school at the earliest possible opportunity (as soon as the police investigation was complete). However, the applicant and his parents did not cooperate, failing to attend a scheduled meeting. Ultimately, the applicant was removed from the roll at Lord Grey and later transferred to another school.

The HRA 1998 and the right to education: money, money, money…

The applicant initiated a damages claim under the Human Rights Act 1998 relying on the A2P1 right to education. The school had breached his A2P1 rights during the course of his exclusion, so it was said. Monetary compensation was asserted to be the appropriate remedy. The claim enjoyed some success before the Court of Appeal, but was unanimously rejected by the HoL.

Off to Strasbourg

As is now the norm for unsuccessful HRA claimants, the claimant promptly sought a more advantageous, and lucrative, outcome from the European Court of Human Rights in Strasbourg.

The ECtHR accepted that disciplinary measures such as suspension or expulsion are inherent in any system of organised schooling and that such arrangements allow schools to achieve the very object for which they exist: educating their students. However, the rules concerning exclusions, and the manner in which they are imposed, must be foreseeable (reasonably clear and certain) and proportionate to the aim pursued.

The exclusion in this case pursued a valid legitimate aim – facilitating the criminal investigation. Moreover, the term of the exclusion was foreseeable. The applicant was told at the outset that he could not return until the investigation was complete and, objectively, it was reasonably apparent that the process was unlikely to be concluded before the end of the school term.

In assessing the proportionality of an exclusion the ECtHR will consider a number of factors: (i) extent of applicable procedural safeguards; (ii) duration of the exclusion; (iii) extent of applicants co-operation with any re-integration efforts; (iv) steps taken to minimise the effect of the exclusion; (v) adequacy of any alternative education provided; and (vi) extent to which the rights of third parties are engaged. The last two factors will be given particular weight.

In a nutshell, as is so often the case with the Strasbourg Court, judicial scrutiny will be highly fact sensitive. Maximum flexibility is reserved to the reviewing court, albeit at a regrettable cost to legal certainty. To a very considerable extent, each case will turn on its own facts.

Applying its analysis to the facts, the ECtHR had no difficulty in dismissing the claim. The head teacher had attempted to bring the applicant back at the earliest possible opportunity, but the applicant and his parents did not cooperate. The school offered alternate educational arrangements but these were ignored. It was true that there had been procedural shortcomings but these must be viewed in light of the exceptionally difficult circumstances which the police investigation created. For these reasons, the exclusion was proportionate.


The multi-factorial approach adopted by the ECtHR may provide some encouragement to HRA damages claimants, as it signals that a sufficiently ‘strong’ set of facts may found a successful claim. However, this is offset by the Court’s treatment of the application. The ECtHR’s approach is commendably pragmatic, and not insensitive to the invidious position in which the school was placed by the police investigation. Notably, the Court rejected an overly fastidious approach in its review of the various procedural defects during the course of the exclusion process.

Provided schools reserve exclusion for serious cases in which less intrusive measures are inadequate, restrict the removal to as short a period as possible and make sensible efforts to provide alternative educational support, they should find themselves on sound legal footing.

It should also be noted that the Court accepted that A2P1 does not require that students have access to the entirety of the national curriculum during temporary exclusions (this is most immediately relevant to the pupil referral unit, where the full national curriculum is not available). However, the ECtHR gave a strong indication that the position would differ in respect of permanent expulsions.

The judgment is also of wider interest as regards the content of the A2P1 right to education. It has long been debated (see the previous blog posts by Peter Oldham QC and Ed Capewell covering the 2010 decisions of the Supreme Court in A v Essex CC and JR 17) whether the content of the right which A2P1 protects is fixed by reference to the standard of education guaranteed by law in the domestic legal system or, rather, is restricted to some (lower) objective minimum standard. The ECtHR, without detailed reasoning or reference to authority, now appears to have departed from its previous case-law and to have accepted the former formulation. Consequently, in principle, it would seem that a student might be able to pursue an HRA damages claim if educational provision to which he is legally entitled under domestic law is not forthcoming e.g. consider certain legal rights to SEN provision. It can be expected that this argument will be further explored in the domestic courts in the near future.

Joe Barrett


Health and Safety gone mad?

January 11th, 2011 by James Goudie QC

The Parc Hotel Cardiff is the venue for a 2 day hearing before the Professional Conduct Committee of the General Teaching Council for Wales.  Unacceptable professional conduct is alleged on the part of a teacher at the Cefn Hengoed Community School in Swansea.  The teacher was Head of Technology at the School.  He was dismissed when he took a racing sledge into the School to demonstrate design technology to his class of 15 year olds.  He demonstrated the sledge himself on a snowy slope. He then let 2 boys follow suit.  They were unharmed; but he was dismissed and now faces being struck off the teaching register.  Why?  Because he took the sledge to the School without the Head’s authorisation; because he failed to provide a written risk assessment; and because he did not ensure that the pupils were wearing protective headgear and protective clothing.

James Goudie QC


Teacher Rankings

January 11th, 2011 by James Goudie QC

A Manhattan Judge of the New York State Supreme Court has ruled that New York City may release to the public the performance rankings of thousands of teachers.  The Union, which is now appealing, had sought to keep the teachers’ names confidential.  The rankings are being withheld pending the appeal.

The rankings, known as Teacher Data Reports, grade more than 12,000 of the City’s 80,000 public school teachers based on how much progress their students made on standardized tests. They were developed four years ago as a pilot programme to improve instruction.  They have also become a factor in tenure decisions. Several news organizations, including The New York Times, requested access to the data.

Because the rankings are based on limited snapshots of student work, many education experts caution against making them the sole or primary measure of teachers. In practice, the rankings of many teachers in the city have varied widely from year to year, and their performance generally falls within a broad range. The City’s Department of Education agrees that the rankings should not be used in isolation, but it has defended them as the best available quantitative measure of teacher performance, particularly for teachers who rank consistently high or low.

 “This information is of interest to parents, students, taxpayers and the public generally,” the Judge said.

This is a hot topic throughout the United States, and may well cross the Atlantic.

James Goudie QC


One in 10 schools is now an academy

January 6th, 2011 by Edward Capewell

More information from the Department for Education today on the progress of the Academies Programme. According to this press release more than one in ten schools is now an Academy. There are now 407 Academies, 203 set up by the last government, and 204 set up by the Coalition since September 2010 (the figures may be slightly misleading as it is not clear how many of the 204 were already in the pipeline to become Academies before the Coalition programme began). 46 schools are opening as Academies in this week alone. As at 5th January 2011 there were 390 applications to become Academies (including those which have already opened) and 248 Academy orders have been signed.371 secondary schools are now academies, which is 11% of the total.

It is also possible to read case studies on the DfE website of schools which have recently converted to Academy status. Perhaps needless to say, these are all very positive about the benefits of converting to Academy status, but this BBC news report contains some less complimentary views.  The teachers’ unions are, generally speaking, hostile to the idea, with the deputy general secretary of the ATL union saying that the “academies policy leads to anarchy, breaking up the local education system, preventing sensible and efficient planning, and opening up free-floating schools to private firms with profit motives.


Academies and charities regulation

January 6th, 2011 by Peter Oldham QC

S 12(4) of the Academies Act 2010 amends the Charities Act 1993 by adding qualifying academy proprietors to the list of exempt charities in Schedule 2 to the 1993 Act.  S 12(4) was due to come into effect on 1st January 2011 – see art 4 of the Academies Act 2010 (Commencement and Transitional Provisions) Order 2010. However, this provision of the 2010 Order was revoked by the Academies Act 2010 (Commencement and Transitional Provisions) (Amendment) Order 2010 on 22nd December 2010.  The explanatory note to the Amendment Order says:-

“This Order amends Schedule 3 to the Academies Act 2010 (Commencement and Transitional Provisions) Order 2010 by revoking the commencement of section 12(4), due to come into force on 1st January 2011.

Section 12(4) amends Schedule 2 to the Charities Act 1993 (exempt charities) to add a qualifying Academy proprietor to the list of exempt charities. An exempt charity does not need to register with the Charity Commission and is regulated, in the first instance, by its principal regulator (appointed by regulations made under section 13(4) Charities Act 2006). The Order has the effect of preserving the Charity Commission’s power to act for the protection of academy proprietors as charities under section 18 of the Charities Act 1993. At the point at which a principal regulator is appointed for Academy proprietors, section 12(4) will be brought into force.”

Peter Oldham QC



Reintegration of excluded pupil

January 4th, 2011 by James Goudie QC

The Education (Reintegration Interview) (Wales) Regulations 2010, SI 2010/2953 (W.245), made by the National Assembly for Wales, which come into force on 5 January 2011 prescribe the circumstances in which a Head Teacher must request the parents of an excluded pupil of compulsory school age to attend a reintegration interview under Section 102 of the Education and Inspections Act 2006 (“the 2006 Act”), and the procedure by which the interview must be arranged. Regulation 3 requires the Head Teacher to request an interview with a parent of a pupil of compulsory school age who has been excluded from a primary school for any fixed period, or from a secondary school for a fixed period of six or more school days. The parent must be an individual who resides with the child. The Head Teacher need not make such a request if the exclusion starts within ten days of the end of the summer term or the pupil is expected to leave the school for a reason other than behaviour (for example if the pupil is moving to a school in a different area). Regulation 4 requires that the request is made by a notice in writing and specifies what information must be contained in that notice. It prescribes a period within which the interview must take place and requires the interview to take place on a school day within that period, though it may take place on a non-school day within that period if the parent and Head Teacher agree. The Head Teacher must use reasonable endeavours to arrange the interview for a date and time within the period suggested by the parent. The notice must be given no later than six days before the interview is to take place. Regulation 5 allows a notice from a Head Teacher under these Regulations to be combined with the notice informing the parent of the exclusion (under regulations made under Section 52(3)(a) of the Education Act 2002).  Section 572 of the Education Act 1996 makes provision for how the notice may be given. It may be delivered to the parent, left at the parent’s usual or last known address, or sent in a prepaid addressed letter to that address. It may be sent by e-mail if the parent has agreed to use e-mail to receive notices.

James Goudie QC


Academy proprietors as charities

January 4th, 2011 by James Goudie QC

The Academies Act 2010 (Commencement and Transitional Provisions) (Amendment) Order 2010, SI 2010/3037, pursuant to Section 19(2) of the Academies Act 2010 (the 2010 Act), amends the Academies Act 2010 (Commencement and Transitional Provisions) Order 2010, SI 2010/1937, by revoking the commencement of Section 12(4) of the 2010 Act, which had been due to come into force on 1 January 2011.  Section 12(4) amends Schedule 2 to the Charities Act 1993 (exempt charities) to add a qualifying Academy proprietor to the list of exempt charities.  An exempt charity does not need to register with the Charity Commission and is regulated, in the first instance, by its principal regulator.  The Amendment Order has the effect of preserving the Charity Commission’s power to act for the protection of academy proprietors as charities under Section 18 of the Charities Act 1993.  At the point at which a principal regulator is appointed for Academy proprietors, Section 12(4) of the 2010 Act will be brought into force.

James Goudie QC