Three weeks ago, we published a blog on key issues for education providers in response to the spread of COVID-19. It goes without saying that the situation has changed significantly since then, both in terms of the seriousness of the spread of COVID-19, and the legal and practical responses required to contain that spread.
On 25 March 2020, the Coronavirus Act 2020 (the "Act") received Royal Assent. The Act makes substantial but temporary changes to the law in a wide range of sectors, including education, to enable the UK Government to respond to COVID-19 as an emergency situation and "manage the effects" of the pandemic.
The Scottish Government has separately issued guidance on school and early learning and childcare centre (ELC) closures for key workers.
In relation to education, the Act allows for measures to be taken to temporarily close educational institutions, or for the temporary continuity of education, and empowers the Scottish Ministers to make directions about both.
What powers do the Scottish Ministers have under the Act?
- The Scottish Ministers may make an "educational closure direction", which requires the operator of an educational establishment to take "reasonable steps to restrict access to the establishment for a specified period". This may require education providers to take action in general or for specific terms, and the Act allows for an order to be made for certain types of people, for whole or part of a premises, and in relation to specific activities.
- The Scottish Ministers can also make an "educational continuity direction", which requires the "continuing operation of an educational establishment for a specified period". This can confer additional functions on an educational institution relating to the provision of early learning and childcare, school education and further or higher education, and include related services (such as 'out of school' care). The direction can also relate to the use of premises "for the purpose of protecting public health" and require the institution to open at times that it does not usually open, and the alteration of term, holiday and examination dates.
- In relation to boarding schools, the Scottish Ministers can make a "boarding accommodation closure direction". As with educational closure directions, these may require boarding school operators to take reasonable steps to restrict access to the establishment, or they may require pupils for whom boarding accommodation is provided to be confined within the accommodation for a specified period.
- For student accommodation, the Scottish Ministers may make a "student accommodation closure direction". This can provide for students to be confined to student accommodation for a specified period, or for the manager of student accommodation to take reasonable steps to restrict access to the premises.
The Scottish Ministers may make one of these directions where they are satisfied that it is necessary and proportionate to do so and will be able to enforce compliance through the courts. The discretion given to the Scottish Ministers to make directions is wide, and directions may be made in relation to early learning, childcare and out of school care as well as school education and further and higher education.
The duty to have regard to medical advice
The Act also places a legal duty on education providers to have regard to any advice relating to the incidence or transmission of COVID-19 by the Chief Medical Officer of the Scottish Administration or any other person designated by the Scottish Ministers. The duty to have 'due regard' does not require absolute compliance with medical advice, but from a practical perspective, education providers should consider noting instances where compliance with advice is not practically possible and why.
Interaction with other legal obligations
Lastly, the Act states that an educational closure direction may provide that any failure to comply with a legal duty will be disregarded, to the extent that the non-compliance is attributable to the direction made by the Scottish Ministers. This will be an important consideration for education providers where they are simultaneously required to consider duties of care and comply with the terms of a direction. The Act addresses specific failure to comply with obligations on schools, including the duty to provide education and provision of free school lunches.