Legal advice: Government can’t ban the use of facemasks in schools.

The Education Secretary doesn’t have the power to go over the heads of headteachers and ban the wearing of facemasks in school.

Last week, the Government changed its guidance to say that face masks would no longer be necessary in schools. The media has reported that, in unpublished correspondence with MPs, Nadim Zahawi, the Education Secretary, has gone much further and indicated that he proposes to go over the heads of headteachers and ban the wearing of facemasks in school.

Understandably, this caused concern for many students, parents and teachers about whether the Minister was allowing politics to interfere with the health of pupils and teachers.

In light of these issues, Good Law Project commissioned specialist advice from a leading education lawyer, Sarah Hannett QC, instructed by Dan Rosenberg of Simpson Millar, to assess what powers, if any, the Government had to ban schools from requiring masks.

In short, the legal advice says that – unless new legislation is introduced – it is unlikely that the Government has the power to ban the use of facemasks in school.

Moreover, while in some circumstances the Education Secretary can issue directions to a school which he believes is acting unreasonably, it will be difficult to override a school’s decision to require their students to wear masks, provided they have good reasons for departing from the guidance.

Based on the advice, we suggest that schools should properly record and evidence their decision-making process when asking pupils and staff to continue wearing facemasks. Schools may want to consider:

• Rates of infection, vaccination and heightened vulnerabilities in the school population and wider community
• The possibility of having different rules for classrooms compared with other communal spaces
• Any public health advice from the relevant local authority
• Potential ways to minimise the drawbacks of using masks in an educational setting
• Consultation with staff, parents and pupils
• The impacts on disabled members of the school community and any reasonable adjustments which might need to be made
• The time period of any decision and when it might be reviewed

You can read the full legal advice from Sarah Hannett QC here.

Going Further:

• Covid rules: Schools should not defy orders to drop face masks for children in classrooms, says Nadhim Zahawi | inews

Sources

• Text: This piece was originally published in the blog of the Good Law Project and re-published in PMP Magazine on 1 February 2022, with the authors’ consent. | The authors write in a personal capacity.
• Cover: Kelly Sikkema on Unsplash. (Licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.)