A hard act to follow

The new Education and Inspections Act 2006, which received Royal Assent in November, can be characterised from a legal point of view by three Cs: confusing, comprehensive and centralising.

The 2006 act is confusing because, though it is of inordinate length (262 pages; ten parts; 18 schedules) it spends a great deal of time repealing or altering or inserting new clauses into previous legislation.

The difficulty is that when one finds a brief reference to a change in another act, it then requires a visit to the other act, a consideration of the case law surrounding it, and a judgement as to how the new clause will affect it before one can form a view as to what the law now may be.

This matters when it is a question, say, of a justification for failure to ensure a child attends school. One groans at the thought, but another consolidating act to supersede the 1996 Act is long overdue.

The act is certainly comprehensive. It includes provisions on:

• the functions of local authorities

• the establishment, discontinuance and alteration of schools

• foundations (and trusts, though they are not mentioned by name)

• the disposal of land

• restrictions on admissions

• sixth formers and religious worship

• charges for music tuition

• schools causing concern

• curriculum entitlement

• school travel and school food

• school discipline

• inspections

• a miscellaneous section which includes, among other things, early years education and consultation with young pupils

• prohibition on participation in the management of independent schools

• a Welsh framework power (Will the 'South Glamorgan question' soon join the 'West Lothian question' for constitutionalists?)

New rules on admissions

The admissions provision introduces a constitutional innovation: a code of practice which those concerned must 'act in accordance with' rather than 'have regard to'. It remains to be seen how the courts will react to this power to legislate through a code of practice rather than by statute or regulation.

The act continues the centralising tendencies of all legislation since 1986. In admissions, it appears to withdraw almost entirely the right of schools other than faith schools to determine their own arrangements and, in conjunction with the code of practice, constrains school admissions forums from agreeing local arrangements which do not fall in line with government views.

The curriculum requirements might appear to be an exception, with a move from prescription to entitlement. 'Entitlement' is defined by the ability of a pupil to follow a course directly provided by or through the school. Schools cannot refuse a pupil a subject because no one else has opted for it. Pupil entitlement will compel collaboration.

One of the most helpful parts of the act is that the teacher's common law powers to discipline are put on a statutory basis. There will be a greater emphasis on reasons, though, and schools may want to check their discipline codes and policies to be sure that they give a reasonable basis for action.

Local authority powers

One thing that ASCL will be keeping a close eye on is the range of powers now put into the hands of local authorities to act on schools 'causing concern', which of course includes that statistically nugatory category of 'coasting schools'.

This is the more so because the protection, admittedly fairly minimal, by the Code of Practice for Relations Between Local Authorities and Schools has been removed. The code stipulated that local authority intervention should be in 'inverse proportion to success'. ASCL argued vigorously to keep this principle in the new arrangements - time will tell whether LAs abide by it.

The expectations which the government has flagged up will make it more likely that LAs will intervene in schools more often and expect heads to turn schools round in less time.

The essential reason for the provision for 'trusts' is to place a strong trust body behind schools. How it will play in practice is anyone's guess. It completes a range of possible structures. As with all education legislation, though, it is a safe bet that the Law of Unintended Consequences will operate with its usual force.

An act as extensive as this will require more detailed guidance for members, which will be produced in the next few months. The implications for members will become clearer only gradually since, as with most legislation since the 2002 Act, much is left to be fleshed out by regulations or by codes of practice.

By Richard Bird, ASCL's legal consultant