Not that we need a court to rule on it, but here it is, and thankfully the court makes a distinction between recommendations or “guidance” and law. In a recent case, a school academy trust was told it could not require masks on children at school.
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The United Kingdom’s Jackson Osborne Ltd. brought the case against Tipton School Academy Trust.
According to Law or Fiction at CrowdJustice:
It is good news that it seems masks will no longer be encouraged in classrooms from 17 May. Thank you for your help in this which is in part due to pressure caused by this case, the laworfiction template letters that helped give rise to it and the consequent publicity highlighting the harms we and millions of others believe they are causing to our children.
Analysis of the case may reveal some gaps in the law as we explain below.
The simplest headline is the judge decided the injunction sought, to protect this 12 year old girl was not necessary to prevent harm to her; she had taken her mask off and the school was not going to require her to put it on. She was ‘treated as being exempt’ from school rules that she wear a mask, even though she did not have any exemption status under government guidance or the school policy.
The decision does not make any findings in respect of the school’s risk assessment. Neither did the judge express any view as to the experts’ evidence except to note it appeared to be “inconsistent with the Government’s advisers’ views as reflected in the Guidance issued by the Government.” That is absolutely correct but it raised these questions: Who is advising regarding the potential harms of mask wearing? What are their views? Are those views reflected in the Guidance?
We know from the school’s evidence in this case that it, like most others, relied on the government Guidance in respect of its risk assessment. But we also know, from government responses elsewhere, that the government admits to making no assessment of the harms from masks other than to survey of the views of ‘stakeholders’ such as teachers unions. So who is assessing the risks?
The decision suggests this may be a matter which needs a response from Government within a Judicial Review process. That is a process in which the Court can be asked to examine the reasonableness of the decision to issue or promote the Guidance. However, the well known limitation of Judicial Review (in rough terms) is that the Court will not examine in any detail the evidence in support of that decision, provided there is some evidence to indicate the decision was not wholly unreasonable.
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It is complicated but this appears to lead to the following conclusions:
1. An individual child (like AB) who takes her mask off is considered not to need protection;
2. A individual child who gives in to pressure to follow Guidance to wear a mask, is considered not need protection because the Court says ‘pressure and Guidance is not a requirement, just take the mask off’;
3. A child who wants to challenge the pressure to wear a mask but does not wear one herself must do so via Judicial Review, but where the factual assessment on evidence – what harm do they cause harm and is that justified by benefits achieved – will not be made because of the limitations of the Judicial Review process.
If the above is correct, it would seem to leave a government free, via Guidance and campaigns, to encourage and pressure children to wear masks without anyone having taken responsibility for conducting the assessment of benefits and harms which health and safety laws require.
Can the Courts, our Courts, accept that as a state of the nation? Or is this one of the many moments in history where the Courts step in and develop common law – the law as it emerges from cases as opposed to legislation – to plug the gap and to protect the public.
The next step, therefore, is to consider whether to appeal the decision to restrict the Court’s consideration to this particular child and/or whether to progress the case via the Judicial Review. That step will need to be taken within weeks.
Meanwhile and more simply, everyone can take note from this decision this simple point: the school’s defence to its policy was it would not enforce its policy; no child can be required to wear a mask in school.
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Everyone knows that some teacher will have a hissy fit and attempt to pressure the kids to wear masks anyway, and so that needs to be put to a stop as well. It’s none of their business in the first place. However, at least the mask mandate was seen for what it is: an authoritarian means of making children submit to something that is unlawful.
Read the ruling below.
Read all the updates on the case here.
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