What do I have to do?
December's Leader report from Northern Ireland, on schools ignoring the 'regulation' to end selection, highlighted an interesting legal point with regard to what schools do and do not have to obey. Obviously acts of Parliament have to be obeyed and ignorance is no excuse. At the other end, 'advice' can be taken or left.
Where there is statutory guidance or a code, that is, where the primary law says that the secretary of state will issue guidance, then schools must 'have regard' to it, which means that they must follow it unless there are good reasons why not.
Interestingly, admissions authorities in England have been told that they must 'act in accordance with' the Admissions Code. How that is distinguished from the others in law has not yet been tested.
Finally, there are regulations. An act will say that on certain matters the secretary of state will make regulations. These regulations have the force of law, but only if approved by Parliament or an Assembly Government.
In the case that Jim McBain referred to in December's Leader, the minister has made a regulation, but the Northern Ireland Assembly has been in suspended animation and so unable to approve it. The regulation consequently is of no effect.
© 2013 Association of School and College Leaders