Legislation by stealth

There was considerable surprise when just before Christmas the London Oratory School won its case to continue interviewing prospective pupils to ensure that they were sufficiently committed to Roman Catholicism.

Most people believed that interviews had been outlawed by the Code of Practice on Admissions.

The Court of Appeal has agreed to hear the case and it may well be that the first decision will be overturned. However, the case is a reminder of the status of the various codes of practice that now surround us.

That status is fairly woolly. You 'must' obey an act of Parliament. You 'may or may not' follow guidance issued by the DfES. In the middle is the code of practice, which you 'must have regard to'.

Judges interpret the law, but sometimes that bears little resemblance to what the government meant when they put the act through Parliament.

Issuing a code of practice helps to define what is expected. For instance, the Highway Code defines a standard for a careful driver and it is useful in court if a driver is accused of acting carelessly or recklessly.

On some matters, though, the government does not want to risk parliamentary scrutiny or the controversy that may arise from it. In this case codes of practice have be used as 'legislation by stealth'. The admissions code is a classic case of this.

Stealth legislation

The government was confronted with a situation where many schools possessed the right to set their own admissions policies. They were unwilling to challenge this outright.

Hence, the combination of creating adjudicators with the right to overturn school or LEA admissions policies and a code of practice to guide them in their adjudication allowed government to modify the powers of admission authorities without the need for legislation - legislation by stealth.

However, the courts have shown themselves increasingly willing to challenge government where in their opinion it has gone beyond the powers granted to ministers by statute.

While a code of practice that simply defines good practice may be uncontroversial, legislation by stealth is likely to receive closer attention and that is what happened in the Oratory case.

The judge in the case was quite explicit: "'Have regard to' means take account. It does not mean slavish obedience on every occasion."

'Have regard to' means that there should be serious discussion about the provisions of the code. The admission authority should give reasons for disregarding it. Adjudicators have to take these reasons into account when reaching their decisions.

Reliance on the code alone is not sufficient.

Oratory's argument

The Oratory put forward a number of reasons for their intention to continue holding interviews. Most of them were rejected.

The one which did convince the judge, and may possibly convince higher courts, was that the Oratory drew its pupils from across the whole of London and there was no way that it could moderate the different standards applied by parish priests from across the whole of London with regard to religious commitment.

Interviews were the only way that the school could fairly judge all applicants for admission.

It is important to stress that the court was not substituting its judgement for the judgement of the adjudicator. It has no power to do that.

It was insisting that the adjudicator gave proper attention to the arguments that the school had put forward. The judge was not convinced that she had.

If this judgement is upheld, will it drive a coach and horses through the admissions code of practice? Probably not. The adjudicator still has to give regard to the code of practice and it is probable that in most cases this will be enough.

The adjudicator has his or her own expertise and the courts recognise that the legislation gives the adjudicator the power to use that expertise to overturn the decisions of admissions authorities.

It is only where the adjudicator's decision has been seen as inconsistent or speculative that the courts will decide to quash that decision. For instance, in a case in Wandsworth the adjudicator could not be sure that his decision to reduce the partial selection at Ernest Bevin School would help Battersea Technology College, but he did it anyway.

In any event, it appears that even if a school wins its case, the adjudicator can come back, as many times as she or he likes, with a better constructed argument for the same thing and win.

Admissions to school is, of course, a particularly controversial area, but the same rules apply to all codes of practice. They are more than persuasive, but they are not binding.

By Richard Bird, SHA's legal consultant