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Legislation
Dictionary page

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
Signed legal contract with pen
                  alongside

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:

 

Equality Act 2010

Statutory Instruments
Neo classical columns of a legal establishment

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
Lady Justice at the Old Bailey,
                  London

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
Dictionary page

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.
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.
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.
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.