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Legislation in England is made by Parliament. This broad legislative framework
consists of:
Statutes (Acts);
Statutory Instruments (Regulations, Orders and Rules).
Statutory Instruments are supported by guidance.
Statutes
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:
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.
Duties and
powers
Legislation can be implemented by individuals and organisations through actions
that they:
Are required to undertake (these are duties); or:
May decide to undertake (these are powers).
These are sometimes referred to as mandatory ('must', 'shall') and permissive ('may')
gateways.
When to use
powers
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, local authorities may have the power to provide a specific children's
service, eg laundry assistance. If the authority is struggling to provide services,
it is not legally allowed to ignore this power.
Instead, having referred to the guidance, the local authority may then, after considering
each child, determine that it will provide these services to all, some or none of
the children within its area. It cannot, however, choose not to consider whether the
services are relevant for each child.
Changing
legislation
The legislative framework in England has a fluid nature. New acts and regulations
are formulated every year. These may:
Stand alongside existing legislation; or
Make changes to existing Acts; or
Remove existing Acts from the statute book.
Changes in government policies will often require new statutes to facilitate changes
in practice.
Legislative
context questions (1)
Q
In light of what you have read, which of the following may
be statutory instruments?
Regulations
Acts
Orders
Policies
Practice guidance
Rules
Click here to reveal
the correct answer.
A
Correct answer: a., c. and f.
Explanatory note:
Regulations, Orders and Rules may constitute SIs,
that is the secondary legislation used to apply statutes, providing detail of procedures
and specific requirements such as timescales.
Acts are the primary legislation, often referred to as Statutes.
Policies and Practice guidance may be published by a range of agencies,
including parliament, to provide context and guidance on how legislation should be
interpreted or implemented. However, they are not legislation.
Legislative
context questions (2)
Q
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.
Click here to reveal the correct answer.
A
Correct answer: b., c. and f.
Explanatory note:
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.
Legislative
context questions (2)
Q
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.
Click here to reveal the correct answer.
A
Correct answer: b., c. and f.
Explanatory note:
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.
Legislative
context questions (4)
Q
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
Convention
Click here to reveal the correct answer.
A
Correct answer: Case law
Explanatory note:
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.
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