UNCHARTED TERRITORY: EDUCATION LAW UNDER THE COALITION GOVERNMENT

July 21st, 2010

As in previous years, LGG’s annual Education Law Conference will be presented in association with 11 KBW.  This year’s chair, Tim Kerr QC, previews the day’s events.

A new government determined to “completely change the way this country is run” and make “the best schools open to the poorest children” (David Cameron on 8th July) calls for a fresh approach to this year’s conference.

Traditional topics such as exclusions and admissions, special needs provision, school transport and travel and school reorganisations are generating fewer ground breaking court and tribunal decisions.  We will not neglect the ever important case law update but the format is different this year with a sharp focus on legislative innovation.  For the first time we will include a case study in a litigious form, with submissions from 11 KBW advocates based on fictitious but not unlikely facts.

The coalition’s leading politicians have not yet lost the élan characteristic of those still new to office.  There is no sign yet of a “bonfire” of education laws to match CLG’s recently published modest hitlist.  But Mr Gove’s enthusiasm for change is unbridled: soon, almost anyone can set up a state funded school if they can persuade him to fund it.  Perhaps the money will come from savings on cancelled building projects, since the government is giving up Building Schools for the Future – for the present.

We will look carefully at the Academies Bill (by then, Act), also the subject of a separate 11KBW seminar in London on 21st July.  Maintained primary and special schools will be eligible to become academies, no sponsor will be required and academies will not be confined to failing schools.  Schools are reported already to be applying in droves to become academies.  What will be the role of the local authority where one of its schools does so?  Will any public consultation be required?

Can the authority itself become a founder member of the company that contracts with central government to run the academy?  Could local authority officers or members become directors of the company?  Are academies “public authorities” bound by the Human Rights Act 1998?  Do they owe the public duties to promote and defend equality?  Will contracts relating to the school’s premises transfer to the academy along with TUPE-transferred staff?  Will the Freedom of Information Act 2000 apply to academies?

If the government’s proposals are sufficiently developed and prove relevant to local authority lawyers, we will look also at the Swedish inspired proposal to allow parents, teachers, charities, religious groups (more controversy in the making there) and philanthropists to fashion new schools and classrooms out of disused offices and commercial premises.  Press reports suggest the first such “free schools” could open as early as September 2011.

Local authorities are again regarded with disfavour as providers and funders of education in this latest drive to reconfigure provision.  But the system cannot manage without them and their role will remain important.  We will look at the ways in which that role will change and the impact of the changes on the work of local authority education lawyers.

James Goudie QC will consider the Equalities Act 2010, squeezed into law just before Labour left office but not yet in force and now under review by the coalition.  By 9th November we should know more about how much of it will survive and its implications in the education field.  Will the legislature change the effect on faith schools, particularly Jewish ones, of the Supreme Court’s decision in R(E) v. JFS Governing Body [2010] 2 WLR 153?  What will become of Labour’s intention to overturn Lewisham LBC v. Malcolm [2008] 1 AC 1399, with its implications for educational provision for disabled children?

Nigel Giffin QC will grapple with staff misconduct, discipline and access to children, an increasingly difficult topic which will not go away.  Our case study will also feature teacher discipline issues and information rights in the education context.  It promises to be an interesting day as we hope regular attenders have found in the past.

The Education Law Conference, presented by LGG in partnership with 11kbw, takes place

at the Royal College of Surgeons in London on 9 November and carries 4.5 CPD points.

For further details and to book visit: www.lgg.org.uk .

Tim Kerr QC

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