Public Law

On 21 May 2020, the Scottish Ministers published an educational continuity direction (the Direction) with an associated guidance note. This is intended to provide a legal basis for the strategic framework for reopening schools, early learning and childcare provision. The Coronavirus Act 2020 conferred powers on the Scottish Ministers to direct education establishments to operate for a specified period and for specific purposes. This is the first time that the Scottish Ministers have made such a direction and will be particularly significant news to the education sector.

Duration and scope

The Direction applies to local authorities as education authorities. However, the guidance note indicates that the Direction is expected to be the “first of several” over the coming months, and so independent schools and higher education institutions should also take note of the Direction.
While the Direction has effect until 10 June 2020, the Scottish Government expects to make a further direction by that date to modify, replace or supplement the Direction.

Planning and preparation for the reopening of schools

The Direction requires each education authority in Scotland to plan and prepare for children to begin to attend school again “at the earliest time it is safe to do so”, taking into account any guidance issued by the Scottish Ministers. The Scottish Government has indicated that measures that will allow schools to reopen in August include the implementation of physical distancing and reduced class sizes, which will inform education authorities’ preliminary assessments around the safe reopening of schools. To facilitate that assessment, education authorities are permitted to allow access to schools for teachers and staff (and other authorised personnel such as contractors) to plan and prepare for the return to school from June 2020. It is important to note that the exact timing of the date of return in June is dependent on further Scottish Government guidance.

The continuing provision of education

In the meantime, education authorities are required to support home learning by pupils “in accordance with appropriate local arrangements”, which will afford discretion to education authorities as to how to support that education. Specific provisions are made for the education and childcare of children of key workers and vulnerable children, and in relation to the provision of free school meals.

Access to premises

Education authorities are required to restrict access to education establishments except where access is required to perform functions under the Direction or for certain other purposes.

Decision-making and compliance with statutory duties

In carrying out functions under the Direction, education authorities are required to balance various duties including the objective of preventing the transmission of COVID-19, the welfare of children, young people and staff, and the importance of continuity of education. The Direction also addresses statutory duties that education authorities may be unable to comply with in light of the Direction, and states that non-compliance with those duties or time limits will be disregarded where the failure to comply with those duties is attributable to the Direction. Examples of those duties are the duty to provide additional support needs and its related timescales, the duty to secure early learning and childcare, and duties in relation to the provision of free school lunches. Education authorities should be careful to ensure that such a failure to comply with a duty is attributable to the terms of the Direction. To demonstrate compliance with the Direction and their other duties, education authorities should review their decision-making procedures and record their approach towards balancing duties.

Guidance

The Direction obliges education authorities to have regard to guidance issued by the Scottish Government when they exercise their functions under the Direction. We anticipate that there will be a significant amount of guidance published to inform education authorities on the safe re-opening of schools and compliance with this Direction, which education authorities should carefully note and factor into their decision-making.

You can read more on educational continuity directions or other considerations for education providers posed by the Coronavirus Act 2020 here.

If you have any questions on the issues raised in this update, please contact Niall McLean or your usual Brodies contact.

Niall McLean