Legislation has many components. The relationships between these components are outlined in this section.
We will identify how rules (what to do) are supported by procedures (how to do it), and explore how different levels of legal status apply in different areas of guidance.
This section will help you to:
- Understand the basis of the rights of the child and his/her family.
- The source of the procedures to realise those rights.
- How the consequent duties of the people involved either in or beyond the school are established.
Legislation in England is made by the UK Parliament. This broad legislative framework consists of:
- Statutes (Acts).
- Statutory Instruments (SIs) (Regulations, Orders and Rules).
- SIs are supported by guidance.
Statutes (sometimes referred to as 'primary legislation') form the backbone of UK legislation and provide courts with the principles upon which government policy is enacted.
Significant statutes that apply to children with disabilities and/or SEN include the:
SIs provide further detail, such as procedures and timescales.
They are often termed 'secondary legislation', but carry the same legal force as statutes.
For example, the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001, include the legal requirements concerning the making and review of Statements of SEN under the Education Act 1996.
Guidance may include Codes of Practice and Standards. Guidance may be statutory or non-statutory (often termed practice guidance).
It is possible to choose alternative actions from those laid down within guidance without contravening the law. This is under the proviso that actions taken, or not taken, can be justified.
In general, where a statute or SI instructs to 'act in accordance with' a set of guidance, then there is little reason for not doing so. If the instruction is to 'have regard to', then there is more room for flexible interpretation. However, this does not mean that the guidance can be completely ignored.
Legislation can be implemented by individuals and organisations through actions that they:
- Are required to undertake (these are duties).
Through actions that they:
- May decide to undertake (these are powers).
These are sometimes referred to as mandatory ('must', 'shall') and permissive ('may') gateways.
Although a 'power' might not always be used, it should never simply be 'put to one side'. Every time that a situation occurs where a power can be used, the agency holding the power (eg a local authority) must decide whether or not it is appropriate to exercise that power.
For example, LAs may have the power to provide a specific children's service such as counselling or laundry assistance. If the authority is struggling to provide services, it is not legally allowed to ignore this power simply to save costs.
In the case of each child, the authority must only consider whether or not it is appropriate to exercise this power in terms of the guidance provided. If this guidance is appropriate, the authority must exercise the power and provide that service.
A distinctive feature of English law is the principle of judicial precedents – often referred to as Case Law. Through Case Law the detail of how legislation applies in practice is established.
The decisions of all court cases are recorded, along with the reasoning that led to them. Once made, these decisions then form a legal reference point. Judges in future cases must then consider the decisions of previous similar cases when making judgements.
In light of what you have read, which of the following may be statutory instruments?
- Practice guidance
If a local authority has the legal power to carry out an assessment of the needs of all children within its area, then it:
- Must assess all children within its area.
- May assess all children within its area.
- May assess some children within its area.
- Can ignore this part of the legislation.
- Must only assess some children within its area.
- May assess none of the children within its area.
Correct answer: b., c. and f.
- This power allows assessments to be undertaken.
- Whether these assessments are undertaken will be decided by the local authority according to available guidance.
- Having referred to the guidance, the local authority may then, after considering each child, determine that it will assess all, some or none of the children within its area. It cannot, however, choose not to consider whether an assessment is relevant for each child.
The law in England does not reflect international treaties.
Correct answer: False
- English law operates within an international context.
- The United Kingdom has signed several treaties, such as the European Convention on Human Rights (ECHR), which determine that English law upholds the articles of these treaties.
- The Human Rights Act 1998 brings the ECHR within UK legalisation.
The decision of a Court of Appeal can form the basis of future legal judgements. This judgement is typically referred to as:
- An Order
- Good practice
- Case law
Correct answer: Case law
Case law is the common term applied to the process by which the interpretation of a law by a judge making a decision during court proceedings forms a precedent for all later judgements on the same point of law.