The Act: Overview Part 2: Education Chapter 1: Educational establishments etc. Section 8: Regulations on continuing operation of educational establishments
42.This section confers a power on the Scottish Ministers to make regulations applying to educational establishments on their continued operation during the subsistence of threats to public health in Scotland. This follows the use of a direction-making power with a similar scope under schedule 17 of the Coronavirus Act 2020, which was used during the coronavirus pandemic in 2020 and 2021 to secure the continuing provision of education.
43.Subsection (3) places a limit on the scope of regulations under this section: where they apply to further education institutions or higher education institutions, the regulations may not relate to the non-educational functions of the institution, as defined in subsection (4): for instance, functions relating solely to research and not to teaching are excluded.
44.Subsection (5) sets out the preconditions for making regulations under this section: Ministers must have regard to any advice from the CMO about protecting public health, and, in that context, must also be satisfied that making the regulations is a necessary and proportionate action for or in connection with the continued provision of education.
45.Subsection (6) states that regulations under this section may provide that any failure of compliance by an educational establishment with statutory or common law rules relating to education is to be disregarded where it is attributable to the regulations: the effect of this is that, where regulations under this section contain such provision, they effectively override other legal requirements on educational establishments while in force to the extent required by the regulations.
46.Subsection (7) sets out the substantive content of what regulations under this section may provide for, including: the conferral of additional functions on an educational establishment relating to the provision of education or (only where an education authority or a further or higher education institution is concerned) the use of an educational establishment’s premises for the purpose of protecting public health, for example for testing or vaccination; the alteration of term dates and of opening times; the direction of service provision; the restriction or prohibition of access to an educational establishment’s premises (or part of such premises). The restriction or prohibition of access may be framed in terms of specified activities. Furthermore, the regulations may require actions to be taken by educational establishments in general terms, or may require particular actions to be taken.