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Journal of Education for Teaching:International research and pedagogyPublication details, including instructions for authors andsubscription information:http://www.tandfonline.com/loi/cjet20
Legal instruction within initial teachertrainingJohn Hunter‐Jones a
a University of Manchester , UKPublished online: 04 Sep 2006.
To cite this article: John Hunter‐Jones (2006) Legal instruction within initial teacher training,Journal of Education for Teaching: International research and pedagogy, 32:3, 259-268
To link to this article: http://dx.doi.org/10.1080/02607470600782302
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Legal instruction within initial teacher
training
John Hunter-Jones*
University of Manchester, UK
England’s Training and Development Agency for Schools (TDA) requires that students, in order
to qualify for teacher status, must undertake the study of law. This article reviews the TDA
standards and considers its rationale for the selection of law. Such selection and the need, if any, to
study law are contrasted with texts written for teachers wishing to study law. It is evident that the
need to study law is now even greater because of the increased role that regulations play,
particularly with regards to children’s rights, and the willingness of parents to challenge decisions.
Empirical research was undertaken to review the initial level of legal knowledge of trainee teachers.
This indicated that there is a need for a robust approach to law as there is evidence of trainees’
confusion about such matters. The article recommends that there should be greater emphasis
given to enabling students to further their studies through understanding legal principles, that
some subjects should be given greater priority in initial training whilst others, though introduced to
students, could be left to the induction period. It is also of concern that the current approach to the
subject ignores its potential for problem based learning and the use of case material.
Introduction
This article considers the position of legal instruction within England’s initial teacher
training (ITT) prior to the award of Qualified Teacher Status (QTS). The starting
point of the work is to consider the Training and Development Agency for Schools
(TDA) Standards and Requirements in Qualifying to teach (TTA, 2003a) and
associated guidance (TTA, 2003b). Such standards are then considered in the light
of literature and empirical research undertaken with trainee teachers.
Recommendations, on the basis of the research, conclude the work.
Initial teacher training
Consideration of the role of legal instruction within vocational training requires, as a
starting point, an examination of the aims and objectives of the training. Even then
any such training undertaken is limited by time, resources and competing demands.
*School of Education, University of Manchester, Oxford Road, Manchester M13 9PL, UK.
Email: [email protected]
Journal of Education for Teaching
Vol. 32, No. 3, August 2006, pp. 259–268
ISSN 0260-7476 (print)/ISSN 1360-0540 (online)/06/030259-10
# 2006 Taylor & Francis
DOI: 10.1080/02607470600782302
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The selection of the law (such as employment, health and safety, tort, school
governance, discrimination, child protection, human rights, copyright, etc.) is no
less difficult. It is not the intention of this work to rate law against other areas, but to
consider its value in preparing teachers and where the emphasis might be placed in
the selection and the teaching of the subject.
The above challenges are faced with the training of teachers in other countries
(Gullatt & Tollett, 1997) and in the training of other professionals. Analysis of the
issues involved in integrating law into teacher training in England provides a case
study that should be of interest to an international readership.
Initial teacher training: aims and objectives
In the foreword to Qualifying to teach (QTT) ministerial approval is given to
statements such as:
… helping to make sure that new teachers hit the ground running.
… the profession is changing and that ITT needs to make sure that new teachers, who
will help shape the future of the profession, are prepared for these changes.
… Standards and Requirements should ensure that all new teachers have the subject
knowledge and the teaching and learning expertise they need, and are well prepared for
the wider professional demands of being a teacher. (TTA, 2003a, p. 1)
So teachers should be well prepared, prepared for change and able to address the
wider ‘demands of being a teacher’. The TDA (prior to September 2005 the TDA
was known as the Teacher Training Agency) was established under the Education
Act 2005, which states, s.75 (3), that the Agency shall secure ‘the school workforce
is well fitted and trained—(a) to promote the spiritual, moral, behavioural, social,
cultural, mental and physical development of children and young people, (b) to
contribute to their well being, and (c) to prepare them for the opportunities,
responsibilities and experiences of later life’. These aims extend the remit of the
TTA (Education Act 1994; HMSO, 1994) and reinforce the broad function of
teachers. Given these changes it would be a good time for the TDA to review its
predecessor’s approach to legal instruction within ITT.
Teacher training is clearly more than teaching a subject. The specified aims of ITT
fall into three inter-related sections (TTA, 2003a, p. 3): professional values and
practice; knowledge and understanding; teaching. Each of these sections is divided into
sub-sections, 19 in total. All sub-sections can be regarded as objectives and ‘set out what
a trainee teacher must know, understand and be able to do …’ (TTA, 2003a, p. 3).
Legal framework
Legal knowledge is either directly or indirectly referred to in four of the 19 sub-
sections:
N S1.8: ‘They are aware of, and work within, the statutory frameworks relating to
teachers’ responsibilities.’
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N S2.6: ‘They understand their responsibilities under the SEN [Special Educational
Needs] Code of Practice …’
N S3.1: Planning, expectations and targets: makes reference to safe organisation of
resources (S.3.1.3) and ‘plan opportunities for pupils to learn in out-of-school
contexts’ (S3.1.5).
N S3.3: Teaching and class management: makes reference to safe organisation of
physical teaching space, tools, materials, texts and other resources (S3.3.8);
‘pupils’ behaviour and establishing a clear framework for classroom discipline’
(S3.3.9); and responding to equal opportunities issues (S3.3.14).
A feature of the above is that no specific body of law, either statute or common law,
is identified, the sub-sections leaving it open to local interpretation. It is not clear
why teachers’ responsibilities are only considered within the context of ‘statutory’
frameworks, when the primary responsibility to pupils is defined by the common
law.
The Handbook of guidance (TTA, 2003b, S1.8) states, ‘Teachers are not expected
to have a detailed knowledge of the whole legal framework, but they need to be
aware of their own statutory responsibilities and where to gain information, support
and assistance when they need it’ (p. 13). The assessment of such awareness is left to
‘a variety of means’ and ‘could include discussions with the trainee and written
assignments’. The following statutes are identified under the section guidance:
Education Act 1996 and Disability Discrimination Act 1995—both in relation to
Special Needs; The Children Act 1989, The Race Relations Act 1976 and The
Disability Discrimination Act 1995—all in relation to equal opportunities. No other
legislation or body of law is identified, although in the annex of the Handbook there is
a list of statutes and guidance documents which ‘is intended for reference …’ (p. 97).
It is not clear how these are to be used.
Within the Handbook it does mention that teachers should be ‘aware that they
have rights and responsibilities as employees as well as teachers’ (p. 13). Child
protection is mentioned, but only as an example of when they ‘may need advice’.
Health and safety issues are raised in relation to out-of-school trips (p. 31) and
resources (p. 50).
From the above one can see that the emphasis is on teachers being made aware of
legal issues that impact on the teaching profession and that they should also be able
to ‘judge when they may need advice … and know how to seek it’ (p. 13). How they
can demonstrate such skills prior to qualification is left open. The emphasis, with
regards to legal issues, is on: special needs, equal opportunities and pupils’ physical
safety. Other areas mentioned are ‘rights and responsibilities as employees as well as
teachers’ and child protection, each identified on the one occasion and with no
further comment. In short, Qualifying to teach (TTA, 2003a) and its Handbook
(TTA, 2003b) do not present a clear rationale for the selection of the legal content,
that the law has been selected on a piecemeal basis and is not considered as being
part of a body of knowledge. There remains a concern as to how the understanding
and knowledge of the law are to be assessed, if at all. It would help if the above
documents addressed these issues by bringing the strands together and provided
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some direction with regards to securing legal knowledge and its role in professional
development.
The selection of the law for the trainee teacher is a challenge that has been faced
by a number of authors, many of whom have been teachers. What follows is an
examination of what they have selected for teachers and how this compares with the
objectives of Qualifying to teach.
Review of literature
One of the challenges of incorporating law into any vocational training is knowing
what you are trying to achieve. Partington (1984) is quick to avoid creating the
barrack-room lawyer, but states that having knowledge of the law can improve
understanding of teaching issues. Gilliat (1999) adds: ‘However, just as a car driver
needs to have a rudimentary understanding of the law affecting their use of the
public highways, so any professional teacher needs to understand the legal
framework in which their role sits’ (p. 2). Barrell and Partington (1985) refer to
teachers being forewarned and forearmed and that knowledge of the law ‘should be a
general guide to help teachers to unravel some of the simpler problems, and to warn
them of the existence of some of the graver dangers’ (p. xxvi).
Adams (1984), over 20 years ago, referred to the increasing intervention of the law
in school life: ‘The growth of large comprehensive schools, the raising of the school
leaving age, the ramifications of present employment law, the increasing interest in
parental rights and concern over the accountability of schools have forced all
involved in the running of the education service to become more aware of the legal
implications of what they do (or don’t do!)’ (p. 13). Harris (1990) wrote: ‘The
Education system has entered a new era, and it is one of regulation. For those
working in the field of education … knowledge of the increasingly complex legal
framework is becoming supremely important’ (p. v).
Gullatt and Tollett (1997), reviewing teacher training across the United States of
America, raise the concern that teachers without legal education will see ‘rules,
regulations, restrictions and restraints as optional when, in fact, these concepts are
the legal obligations upon which they will be held accountable’ (p. 129). The article
emphasises that a background in law might also help teachers avoid mistakes and
events that could jeopardise a career.
There is also a widespread belief that society is becoming increasingly litigious and
parents more willing to challenge the authority of the schools. Teachers are more
likely to have to face the legal implications of their actions (Holland, 2003). Hyams
(2004), in reviewing education law and the need to understand the practical effects,
adds that on occasions: ‘… it is necessary to refer to theoretical underpinning’ (p. 8).
He also refers to the increasing willingness of the courts to apply legal principles
within education, for instance, redress in the cases of negligent teaching, and the
great increase in statutory instruments from central government.
There are two arguments for the inclusion of the subject. The first is to avoid
conflict with an increasingly broad body of law. The second is to make teachers
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better at doing their job through having the confidence and understanding of good
practice. A teacher who does not undertake school trips through a patchy knowledge
of the law may well be avoiding conflict with the law, but are they a better teacher?
Hunter-Jones (2005), in reviewing teachers’ willingness to undertake school trips,
found that those with a confident understanding of the law were more willing to
undertake such work. The House of Commons Education and Skills Committee
recently acknowledged that the ‘fear of accidents and subsequent litigation (whether
justified or not) is discouraging some schools from organising school trips’ (House of
Commons, 2005, para 28).
The idea of ‘awareness’ of the law may be helpful if teachers have the support
mechanisms readily available to secure further advice. But in a fast moving
environment such as a school playground or a dispute with parents there may not be
such backup at hand (Holland, 2003). A poor understanding of the legal system, so
that the teacher cannot understand the difference between statutes, statutory
instruments, guidance, circulars, and the common law, is likely to confuse the
teacher rather than make life simpler. Such knowledge can also assist the teacher in
keeping up with changes in the law (Nixon, 1999).
What areas should be covered in the training of teachers? An examination of texts
from the last 20 years (see Table 1), identifying key areas selected, reveals that there
remains a strong emphasis on areas such as employment law; school governance;
teachers’ authority; and the duty of care for pupil safety. However, the most evident
change during this period is the increase of law focusing on the rights of the child:
child protection; special needs; equal opportunities; out of classroom risk
assessments; data protection and human rights legislation have all increased the
duties of teachers and schools. This is reflected in the emphasis in QTT (TTA,
2003a, 2003b); clearly these all have to be covered, but without an increase in the
time for legal education there will be less time for matters such as school governance,
teachers’ conditions of employment and the legal basis for the teacher’s authority.
All of the above will be of significance at some stage of a teacher’s career. Indeed
the idea of being aware may be helpful as a trigger for the teacher to carry out further
enquiry, an example of which could be responding to copyright issues. In other areas
the teacher needs to have a working knowledge of the law, much in the same way
that sport’s players need to know the rules of the sport. In the former case, though,
there would need to be a reasonable grasp of how law is made and the role of the
courts in order to facilitate continuing professional development; this approach is
one taken by Adams (1984), Nixon (1999) and Gilliatt (1999). Teaching Unions,
too, can also build on a reasonable level of knowledge and understanding by
providing additional support and advice to members on specific issues.
There is often a need to understand the broader context of education law before
going into finer detail. Without any reference to generic employment law the Bristol
Guide (2004) allusion to The School Teachers’ Pay and Conditions Act 1991 gives
a misleading picture of the teacher as an employee. How is the teacher to discover
that they have common law employment duties and rights, rights regarding
dismissal, equal opportunities in the workplace, parental rights to leave or whether
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they are even an employee? In similar fashion a discussion of in loco parentis without
reference to the law of negligence is more likely to confuse than enlighten.
The teaching of law is made interesting to many law students because of its use of
problem-based learning and reference to case law as a means of establishing a
solution. There is no mention of this approach in QTT (TTA, 2003a). By contrast
Barrell and Partington (1985) refer to over 250 examples of case law and Gilliat
(1999) over 100. The use of problem based learning, as a means of learning the law,
can also provide trainees with an insight into many of the issues that they may have
to face in working within the law.
Methodology
A concern, in reviewing the TDA training material, is that there is an assumption
that teachers should be able to rely upon their common sense in responding to a
number of legal issues without the need for specific training. In order to consider this
approach research was carried out with trainee teachers in areas of law not identified
within the training material.
Table 1. Law covered by teaching law texts
A P T H G C B
English legal system * * *
Organisation of education * * * *
National curriculum * *
Conditions of employment * * * * * * *
Duty of care to the pupil * * * * * * *
Child protection * * *
School trips * * * * * *
Parent and schools * * * * *
Health and safety * * * * * * *
Equal opportunities (including
special needs)
* * * * * *
Human rights * *
Teacher/school’s authority
(including behaviour and disci-
pline)
* * * * * * *
School governance * * * * * * *
Handling information * * * * *
Copyright * * * * *
Key:
A: Adams (1984)
P: Partington (1984)
T: Barrell and Partington (1985)
H: Harris (1990)
G: Gilliatt (1999)
C: Cole (1999)
B: Bristol Guide (2004)
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A questionnaire was administered to 90 Primary Post Graduate Certificate of
Education (PGCE) students in 2005. They were given a week to answer the
questions. Sixty-seven of the questionnaires were returned and the results are based
upon those returns. The students had not completed their training and were only at
the halfway point of their nine month course, so the results could be seen as a
response largely guided by their common sense and professional interest in teaching.
The questions were chosen to reveal the degree of understanding of day to day legal
issues that they might face in their teaching but which have not been identified by the
TDA in its guidance. Drawing upon the works mentioned in the literature review,
eight questions were selected which covered the following areas:
1. Identifying any legislation affecting schools/teachers.
2. The significance of Department for Education and Skills (DFES) guidelines.
3. Identification of the employer across different schools.
4. The significance of in loco parentis.
5. The duty of care, if any, to assist an injured child.
6. Powers of detention.
7. The significance, if any, of parents signing an indemnity form.
8. The duty of a school to protect children from dangers within its premises.
Findings
First, the students’ awareness of legislation was limited in that:
N 42% could not identify any legislation
N 34% could only identify one statute
N 17% could identify two statutes and
N 0.7% were able to identify three statutes
The most commonly selected legislation was the Education Act followed by the
Children’s Act and Equal Opportunities legislation. There does not appear to be a
natural interest in law making and its impact on teachers.
Second, there was a limited understanding of the significance of guidelines.
Students were asked to identify the legal significance of the DFES guidelines in the
running of school trips. Only 5% stated that a failure to observe the guidelines could
be relevant in establishing a successful claim against a school. This confirms the
concern of Gullatt and Tollett (1997) that without background training in law,
students would not be able to understand the significance of government guidance.
Third, only 5% were able, in all three cases, to identify the employers in
community, voluntary aided and foundation schools. The majority (82%) were able
to identify the employer in community schools but most were unable to identify the
role of governors, as the employer, in voluntary aided and foundation schools.
Fourth, in loco parentis, as a standard of care, was understood by the majority of
the students (81%); however see 5 and 8.
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Fifth, the majority (84%) understood that the teacher’s duty could include
positive action to assist a seriously injured child. Of concern are the 16% who did not
agree with the statement.
Sixth, the majority (78%) were unable to identify that a parent must be given
‘written’ notification 24 hours in advance of a child’s detention. Although this is a
matter that would normally be covered by the school, ignorance of such a need is of
concern.
Seventh, only 22% recognised that the issue of an indemnity form to parents, with
regards to ‘any accidents’ on a school trip, would not, in itself, remove liability from
the school.
The question sought to establish whether students recognised that parents can
only give lawful consent to identified risks. Recently the House of Commons
Education and Skills Committee expressed concern at the time set aside during
teacher training for the planning of school trips (House of Commons, 2005).
Eighth, only 28% of the students recognised that the duty of care to children on
school premises can extend to those areas that are ‘out of bounds’. Both the 1957
and 1984 Occupiers’ Liability Acts are of significance to those in charge of premises
and identify the liability to lawful and unlawful visitors, in particular children. In
none of the TDA guidance is there any mention of this legislation. It is, therefore,
likely that it would not feature in any training.
There is no clear expectation from the TDA that any of these areas will be part of
the teachers’ knowledge at the end of their training; at what point such gaps will be
filled is not clear.
Conclusion and recommendations
Although there is general support for the inclusion of legal instruction in the training
of teachers, its significance within the training is open to debate. Legal intervention
in schools is increasing along with the willingness of parents to challenge teachers’
decisions. The training time allocated to traditional areas of input such as
employment law and health and safety has to compete with emerging concerns
such as children’s rights.
The empirical research reported here suggests that there are natural gaps in the
legal knowledge of those training to be teachers and it is not clear at what point these
gaps are to be filled. A case could be made that law needs to be given greater priority.
However, that would only be a partial solution. Another approach is to apply greater
thought to what should be learnt, when it needs to be learnt and appropriate learning
environments. One such approach is to examine how teachers can be taught to
improve their knowledge of the law and keep up to date with its developments, other
than in the staffroom and through the press. This requires a basic grounding in the
legal system, in particular how law is established through the courts and from
parliamentary bodies. An introduction to the law of negligence and employment law
would aid understanding of specific issues, for example, in loco parentis, and assist
the teacher’s professional development.
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Some subjects must be addressed at an early stage because they are, to use the
sport’s analogy, about the rules of the game; such matters relate to teacher authority,
duty of care, issues of child protection. Other areas, such as equal opportunities and
school governance, need to be raised at an early stage but could be developed during
the induction programme. There should, in any event, be a rationale for the
inclusion of law and the depth of study undertaken.
Whilst it would be wrong to regard the empirical work as a review of knowledge at
the point of qualification, the answers do demonstrate that there are many areas of
knowledge and understanding that, unless addressed prior to qualification, could
put the teacher at a disadvantage. The idea of the teacher ‘hitting the ground
running’ and being prepared for wider professional demands should be especially
true of the newly qualified teacher and their knowledge of the law. Having an
awareness of the law, with little insight into the law itself, is like knowing there is a
light switch in a dark room! Vocational training should be an opportunity to provide
students with confidence in how they approach their work. Knowing whether their
behaviour or that of others is lawful is more likely to improve that confidence.
Law is an ideal subject to teach through problem based learning. It would have
benefits in recognising this teaching style and could draw on real life cases from the
teaching profession. The present emphasis in QTT is on learning the law through
knowledge of statutes, a process unlikely to produce good understanding of the
subject matter. It would be helpful if the TDA produced case materials for training
institutions which could support problem based learning and role playing exercises.
Such an approach is successfully applied by the police service in training constables.
Proper assessment of students’ knowledge is important in that it can encourage
institutions to give proper attention to the subject and let the students know how
well prepared they are for the workplace. The present arrangement for assessment in
this area needs to be more explicit as to how the knowledge and understanding have
been reached.
References
Adams, N. (1984) Law and teachers today (2nd edn) (London, Hutchinson).
Barrell, G. R. & Partington, J. A. (1985) Teachers and the law (6th edn) (London, Methuen).
Bristol Guide, (2004) Teachers’ legal liabilities and responsibilities (Bristol, University of Bristol).
Cole, M. (Ed.) (1999) Professional issues for teachers and student teachers (London, Fulton).
Gilliat, J. (1999) Teaching and the law (London Kogan Page).
Gullatt, D. E. & Tollett, J. R. (1997) Educational law: a requisite course for preservice and
inservice teacher education programs, Journal of Teacher Education, 48(2), 129–136.
Harris, N. (1990) The law relating to schools (London, Fourmat).
HMSO (1994) Education Act 1994 (London, HMSO).
Holland, M. (2003) A view from the grassroots: head teachers—learning the lessons of the law,
Education Public Law and the Individual, 8(2), 38–39.
House of Commons, Education and Skills Committee (2005) Education outside the classroom,
Second Report of Session 2005–2005 HC 120 (London, Stationery Office).
Hunter-Jones, J. (2005) What future for school trips in a risk averse society?, in: P. Bramham
& J. Caudwell (Eds) Sport, active leisure & youth cultures, LSA Publication No. 86
(Eastbourne, Leisure Studies Association).
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Hyams, O. (2004) Law of education (2nd edn) (Bristol, Jordans).
Nixon, J. (1999) Teachers’ legal liabilities and responsibilities, in: M. Cole (Ed.) Professional issues
for teachers and student teachers (London, Fulton).
Partington, J. (1984) Law and the new teacher (Eastbourne, Holt Education).
Teacher Training Agency (2003a) Qualifying to teach (London, TTA).
Teacher Training Agency (2003b) Qualifying to teach handbook of guidance (London, TTA).
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