Posted by Ed Macnair / 10 October 2016
The Department for Education’s statutory guidelines (“Keeping Children Safe in Education”) are now in force. For the first time the guidelines include the subject of the legal obligations on the school arising under the Counter Terrorism and Security Act 2015. On this subject the statutory guidelines are explicit:
“Protecting children from the risk of radicalization should be seen as part of schools’ and colleges’ wider safeguarding duties, and is similar in nature to protecting children from other forms of harm and abuse.”
But it’s much more difficult than that. And I make that assertion since the actual law, the actual Act of Parliament that generates this important statutory duty is silent on the concept of ‘radicalization’. In fact the word isn’t used at all!
So if one was an officer of an Academy responsible for the discharge of this statutory duty, or a head teacher; what are they to do to ensure they understand the duty and then put into place procedures and technology to enable the discharge of it?
Well – it’s obvious isn’t it? Look at the Act and read section 26 of the Counter Terrorism and Security Act 2015. But that isn’t about radicalization – is it? It doesn’t mention radicalisation. It’s about Terrorism. So what’s Terrorism in law? Well section 26 of the Counter Terrorism and Security Act 2015 doesn’t say what Terrorism is!
No – it essentially ‘says’ go look at section 1(5) of the Terrorism Act 2000 and see
sections 1(1) to (4) of that Act.
And what about “Due Regard”? What is the legal meaning of that? The legal truth is that the legal meaning of the obligation to ‘have due regard to’ is to be found in court decisions concerning other Acts of Parliament that generate statutory duties.
How on earth is any qualified and professional educator going to have the time to undertake this exercise in statutory interpretation? Even if they had such an opportunity – what legal skill set are they going to deploy?
No – this statutory duty is too important for guesswork.
Back at BETT last year I proposed that Parliament heaps Laws upon educators in such a higgledy-piggledy fashion that they have produced a maze of legal obligation and duties that cannot be navigated in the real world. It concerns me that the Department for Education and Parliament do not understand that they have the opportunity, as they have done elsewhere, to codify “Education Law” into one integrated whole.
There is no reason why, as in other areas of the law, Parliament can also codify the common law (such as the Law of Negligence).
But that would be hard. And that would be expensive.
All that is left is this tortuous maze. I do not believe the average, intelligent, prudent professional who devotes their working life to the education of children has the real-life capacity to discharge a legal duty which is impenetrable and unexplained.