April 29th, 2016 by Peter Oldham QC
In R ota Ben-dor v University of Southampton  EWHC 953, a judgment handed down earlier this week, the Administrative Court dismissed a challenge that the University had breached s 43 of the Education (No 2) Act 1986 and Arts 10 and 11 of the ECHR in barring a conference entitled “International Law and State of Israel: Legitimacy, Responsibility and Exceptionalism” unless the organisers paid for the added security arrangements needed to meet assessed risks of disturbance to which the conference might give rise.
S 43 provides:-
43.— Freedom of speech in universities, polytechnics and colleges.
(1) Every individual and body of persons concerned in the government of any establishment to which this section applies shall take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers.
Under s 43(3), the University had to have a code for facilitating the exercise of the s 43(1) duty.
Art 10 concerns freedom of expression, and Art 11 freedom of assembly and association. Neither are absolute rights, but the Supreme Court in R ota Lord Carlile of Berriew v SSHD  3 WLR 1404 unsurprisingly said that freedom of expression was an essential foundation of democracy.
The judge dismissed the claim. The University had relied on evidence-based risk assessments, both internal and from the police, which had warned of a real risk of disturbances. It had not barred the conference absolutely. It had followed its s 43(3) code. In short it had acted proportionately in the interference of rights of freedom of speech and assembly.
Peter Oldham QC
April 12th, 2016 by Rachel Kamm
The House of Commons Library has published a briefing paper: Every School an Academy: The White Paper Proposals. It’s a useful summary of the legal and policy background to the proposal that every school will be an academy by 2022. There’s also a section on the reactions to the proposal and concerns raised. Read more »
April 7th, 2016 by Rachel Kamm
In all of the excitement about the proposals in the White Paper for all schools to become academies, there has been little discussion about the Guidance for local authorities and RSCs on Schools causing concern – Intervening in failing, underperforming and coasting schools. Alongside this guidance, the Government has published its response to the consultation exercise, which includes a useful summary of the amendments that the Government made to the Bill during its Parliamentary passage. Read more »
March 26th, 2016 by Rachel Kamm
The dust has started to settle on the Government’s education white paper: educational excellence everywhere. After a relatively slow start, the number of newspaper articles and interest on social media has picked up. Perhaps the most interesting proposals are to: Read more »
March 15th, 2016 by Claire Halas
Secretary of State for Education v NUT (14 March 2016, Kerr J)
The Court has decided that a challenge to the lawfulness of strike action may be brought by the Secretary of State for Education upon an application for an interim declaration pursuant to CPR r25.1(1)(b), even though the Secretary of State had no legal cause of action, or ‘lis’, against the union for inducement of breaches of contract; any such claim resting with the employer. In the instant case, the NUT called upon teachers in sixth form colleges to undertake a day of strike action. The teachers were employed directly by the colleges, not by the Secretary of State. Nonetheless, in what is understood to be the first case of its kind, the Court (Kerr J) accepted that the Secretary of State had standing to bring the challenge in light of the public interest involved and her status as both the target of the strike action and guardian of education in England and Wales. Although, on the facts, a declaration was not granted, and the strike will be going ahead, this case represents recognition of the Court’s willingness to grant declarations, including interim declarations, in appropriate cases.
Clive Sheldon QC and Marcus Pilgerstorfer represented the Secretary of State.
March 8th, 2016 by James Goudie QC
The School Standards and Organisation (Wales) Act 2013 sets out the process for establishing, altering and discontinuing schools in Wales. R (Edwards) v Flintshire County Council  EWHC 459 (Admin) was an unsuccessful judicial review challenge of a decision by the Defendant LEA to issue statutory notices under Section 48 of that Act to close a High School. The ground of challenge was that the Council failed, in its consultation process, to comply with its obligation under Section 38(4) of the Act to act in accordance with the Welsh Ministers’ Code of School Organisation. The Act requires the Welsh Ministers to issue a code on school organisation. It may contain requirements and/or guidelines. By Section 38(4), those who exercise functions in relation to school organisation in Wales, including local education authorities, must, when exercising those functions, act in accordance with any relevant requirements contained in the Code, and have regard to any relevant guidelines contained in it. Section 48 requires a proposer for change to publish the proposals, consult and publish a report on the consultation, all in accordance with the published code. In April 2013, the Welsh Ministers published a Code on School Organisation. It came into force on 1 October 2013. Read more »
February 29th, 2016 by Peter Oldham QC
The Local Government Association and the DfE are in a row about school places. The LGA says that there is a looming crisis, with huge numbers of secondaries oversubscribed and primaries hard pressed to meet growing population trends. The DfE has accused the LGA of scaremongering, and says that sufficient places can be assured through appropriate planning. It says that it allocates funding well in advance so that local needs can be met.
This throws the spotlight on authorities’ powers and duties to provide school places. They have to ensure a sufficiency of places in their area under section 14 of the Education Act 1996. That power has to be exercised with a view to securing diversity in the provision of schools: section 14(3A). Section 14A requires them to consider parental representations as to the exercise of the section 14 power.
Section 6A(1) of the Education and Inspections Act 2006 provides:-
6A Requirement to seek proposals for establishment of new Academies
(1) If a local authority in England think a new school needs to be established in their area, they must seek proposals for the establishment of an Academy.
The effect of this section, along with sections 7 and 10 of the 2006 Act, is that authorities cannot publish proposals of their own to set up a maintained school unless (1) SoS’s consent is obtained and (2) the proposed school would replace another school or there has been no response, or no approved response, to an invitation for proposals from anyone else.
Peter Oldham QC
February 26th, 2016 by Peter Oldham QC
On Tuesday this week, the Education and Adoption Bill completed its passage through Parliament, with the Commons considering the Lords’ proposed amendments. Some were agreed. These were largely clarifications of the Secretary of State’s powers to take action on “coasting schools”.
The Bill gives a new power of intervention in such schools by adding to the grounds on which SoS can take action in the Education and Skills Act 2006.
Peter Oldham QC
February 21st, 2016 by Rachel Kamm
The DfE has published new advice for local authorities and new school proposers on the free school presumption. The background is that if a local authority thinks that a new school needs to be established, section 6A of the Education and Inspection Act 2006 requires it to seek proposals to establish an academy (free school) and to specify a date by which proposals must be submitted. The new advice covers the consultation process, impact and equalities assessments, seeking proposals, funding arrangements, notifying the Department, sponsor approval, assessing proposals, scoring, the funding agreement, sponsor consultation and communication.
Rachel Kamm, 11KBW, @kamm11kbw