Know your musts from maybes

9th November 2007 at 00:00
"Do I have to?" may seem a very childish question, but it is always useful to know whether, in the last resort, one can be compelled by law.

So what is law? It is the law if it is in statute, either in one of the multifarious Education Acts or another act. It is the law if it is a regulation made as a result of a statute: for example, it saves parliamentary time if the basic principles on school financing are in statute but the details are in regulations that can be changed annually without legislation.

But it is not always clear how legislation should be applied, or how two pieces of legislation interact, or whether legislation conflicts with the Convention on Human Rights. In these cases, what the judges decide is law. So judges have ruled that legal exclusion from school does not violate human rights (though an unlawful exclusion does); and judges have ruled that governors may decide on school uniform policy and make reasonable rules, even if these prevent some "manifestations of religious belief".

And what about government guidelines? Guidance is not law. If it is laid down in statute that a secretary of state or the Welsh Assembly Government may or shall issue a code or guidance, then schools must have "regard to" the guidance. This means following the guidance unless there is a good reason not to (the exception is the admissions code, which authorities have to "act in accordance with" - we have yet to see what judges make of that).

And other guidance? Up to a point, schools can please themselves - something co-ordinators and officers sometimes forget - but powers must be used reasonably and a judge may take the view that government guidance represents a standard of reasonableness.

Richard Bird, Legal consultant to Association of School and College Leaders.

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