Lockdown Sceptics’ Legal Experts on Covid Testing in Schools

The post that follows is by Dr David McGrogan, Associate Professor of Law, Northumbria University, and Dr John FanningSenior Lecturer in Tort law at the University of Liverpool. Both are regular contributors to Lockdown Sceptics.

This week’s news that schools in England will reopen on Monday March 8th is welcome. The return to school is the first phase of the prime minister’s “cautious but irreversible” lockdown exit plan, which should culminate in the restoration of our freedoms on June 21st. What may be less welcome is the news that secondary school pupils will be “strongly encouraged” to undergo multiple asymptomatic COVID-19 tests as part of their return to the classroom. Pupils who test negative can return to face-to-face education; those who test positive must self-isolate in accordance with current public health rules. For families keen to return to normal, the risk that a false-positive result might ground them for a further 10 days might dissuade school pupils from taking a test. This raises an interesting question about whether schools can compel pupils to undergo COVID-19 testing as a condition of their return to the classroom.

According to the Department for Education’s COVID-19 Operational Guidance, secondary schools should offer three on-site asymptomatic tests, at a rate of one test every three to five days, from Monday March 8th. In addition, staff and pupils will receive take-home Lateral Flow Devices with which to test themselves twice a week. The guidance suggests that secondary school pupils should undergo as many as seven COVID-19 tests within the first two weeks of their return. Some may wonder with all this testing whether there will be any time left over for educational purposes.

The key message is that testing “remains voluntary but strongly encouraged”. In other words, pupils can refuse to take a COVID-19 test and schools have no powers to override that refusal or refuse their admittance. The guidance expressly states that pupils not undergoing testing should still attend school, so their return to the classroom will not be contingent upon a negative swab result. Schedule 21 to the Coronavirus Act 2020 does contain compulsory testing powers relating to potentially infectious persons – including children – but they remain unused in this crisis. The Government clearly prefers the principle of “testing by consent”, rather than resorting to more coercive interventions.

The Department for Education expects independent schools will follow the same guidance. Yet by their nature, independent schools are free to set their own priorities as part of their contractual relationship with their fee-payers. There is nothing to stop an independent school from going even further than the Department for Education’s guidance, e.g. by making a pupil’s return to school conditional on a mandatory COVID-19 test. This would likely be a controversial move, not least because it would go beyond the Government’s guidance without any apparent justification. Generally speaking, laws that protect the health and safety of school pupils apply regardless of the type of school they attend. And the courts have shown a willingness in recent years to harmonise rules so that state and independent school pupils enjoy the same legal protections (see Woodland v Essex County Council [2013] UKSC 66). This is not to say that an independent school cannot insist on a higher standard – of course they can – but this would buck recent trends and risk creating disparities where none need exist.

Anyone concerned about the legalities of a school’s testing policy should speak to a solicitor.

Stop Press: Professor Russell Viner, an expert in adolescent health at University College London and a scientific adviser to the Government, has said that school closures risk permanent scarring, the Telegraph reports.

The question of when it is ‘safe’ to reopen schools has focused on the risk that having children back in school will raise COVID-19 infection rates, putting us back where we were in December. Yet when we focus on infection risk we forget the potential for harm that can occur when schools are closed.

“We know that closing schools harms children’s education. Our research provides clear evidence for the first time that school closures and lockdown also bring a wide range of serious harms to children’s health and well-being.

Stop Press 2: Once open, schools must stay open for good, says year 12 student Qais Hussain in an excellent article for Schools Week.

The Prime Minister’s announcement that I and my peers can return to school on March 8th is perhaps the best news I have received throughout this pandemic – better even than my GCSE results.

Truth be told, I have been struggling. If schools were closed for much longer, I don’t know if some of my cohort would have coped. In fact, I and many others wish the announcement had come earlier. While schools have looked after the most vulnerable admirably, the pandemic response has created new vulnerabilities. If I’d been born to key worker parents, my lot would have been so different.

Every day, my motivation has been decreasing. Every day, I have witnessed my friends getting stressed out about falling behind on their schoolwork or failing their exams. People who were unassailably confident in school before the pandemic have been reduced to tears by this pandemic.

Stop Press 3: In other parts of the world, such as Los Angeles, a negative test is a condition of being allowed to return to the classroom, as this helpful video makes clear.