Helping you understand Welsh law

Education

Education includes school education (primary and secondary), further education and higher education.  Further education focusses on education and vocational training for 16 – 18 year olds, although it may be provided to anyone who is over compulsory school age. Higher education typically leads to the award of a degree, and is usually provided at universities.

Education and training is largely a devolved topic and the Welsh Ministers regulate almost all areas of education in Wales. Amongst other things, they regulate the education workforce, the National Curriculum, the apprenticeship framework, the system of qualifications and school examinations and most educational institutions.

Local authorities also have a range of responsibilities in relation to education, under the guidance and regulation of the Welsh Ministers.  For example, their duties include making sure that there are sufficient schools in their area and ensuring that pupils with additional learning needs (special educational needs) are properly provided for.

There have been a number of National Assembly Acts and Measures relating to education and training, and devolution has led to divergence between the education systems in Wales and England.  For example, Wales has a distinct system of student support and grants, as a result of regulations made by the Welsh Ministers. 

The Qualifications (Wales) Act 2015 has been passed by the National Assembly. When implemented the Act will establish an independent body (Qualifications Wales) to be responsible for the regulation and quality assurance of non-degree level qualifications available in Wales.

The Welsh Government also proposes a Bill to create a new framework for children and young people aged 0 – 25 with Additional Learning Needs (ALN).

Section 1

Legislative framework

The core of education and training law is to be found in primary legislation (or 'statutes') made by either the UK Parliament or the National Assembly for Wales. The principal statutes which contain provisions that apply in relation to Wales are listed under 'key legislation'.

The term 'Education Acts' has a statutorily defined meaning in education law. It includes most, but not all of the Acts referred to under 'key legislation'. The Education Act 1996 (EA 1996) was a consolidation Act, setting out the key defined terms of the legislative scheme for education (like the meaning of 'school', 'registered pupil', 'primary education' and 'secondary education'). Section 578 of EA 1996 defines the 'Education Acts', principally for the purpose of applying these defined terms to past and future Education Acts so that the definitions do not need to be restated on each occasion.

Each subsequent 'Education Act' contains provision to the effect that it is to be included in the list of Education Acts set out in section 578 of EA 1996 and that the new Act, and EA 1996, are to be construed as one. The purpose of EA 1996 is to ensure that provisions of general application in EA 1996 (like the Ministerial intervention powers) can apply in relation to each new Act as they apply to EA 1996.

The provisions of the following Acts are not to be treated as Education Acts; wholly, in the case of the School Sites Act 1841, the Education Act 1962 and the Learning and Skills Act 2000 and partly in the case of the Education and Inspections Act 2006 and the Apprenticeships, Skills, Children and Learning Act 2009.

In addition to the statutes dealing with education and training, there is large amount of subordinate legislation made under those Acts (such as orders, regulations, schemes and codes).

The domestic courts have produced a large volume of case-law on education matters and there is a significant amount of jurisprudence from the European Court of Human Rights in Strasbourg as a result of the specific provisions about education in the European Convention on Human Rights. Article 2 of the first Protocol to the Convention guarantees a right of access to education and the articles of the Convention itself have an impact, notably Article 14 on discrimination.

The European Union does not have full competence in respect of the harmonisation of Member State laws in the field of education; schools, colleges, vocational training, higher education and so on are matters for the Member States. Nevertheless EU law has a major impact. The EU has legislated in respect of the mutual recognition of qualifications and it operates programmes for co-operation between Member States and promotion of the core objectives of the Union. The direct effect of the four freedoms (freedom of goods, capital, services and people) has also been felt, particularly the right of establishment and freedom of movement; for example, the case law of the European Court of Justice in this area has required Member States to shape their student support regimes to further secure these EU rights.

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