The DfE's Olympic call for more sport in state schools – coinciding with the relaxing of regulations for school sport accommodation – has left the sport lobby up in arms. Richard Bird examines the potential legal impact...

Field of dreams

The old regulations on school sport provision contained detailed tables that laid down, for example, that a school with pupils older than eight years should have 45,000 square metres of sports fields. When the school had more than 1,801 pupils, the number of square metres rose by 5,000 square metres for every so many extra pupils.

It was a beautiful example of the bureaucratic mind at work: reducing to precision the vagaries of life and providing an arithmetical basis for claims and arguments. These details took an entire schedule of the 1999 regulations whereas the new regulations could not be more different. In total they read as follows:

"Suitable outdoor space must be provided in order to enable:

• physical education to be provided to pupils in accordance with the school curriculum; and
• pupils to play outside

"This regulation does not apply to pupil referral units."

And that's it.

Suspicious minds

Those who are suspicious about free schools may believe that this will allow a proprietor to set up a school in a disused blacking factory and use the former despatch yard to recreate the world of those old photos of physical training for girls in Edwardian London Board Schools.

Cynics may also maintain that the government, aware of the cuts to come and looking for alternative sources of funding, spotted the possibility of schools eking out their income by selling a few acres of playing field.

So what is to stop the sales? It is obvious that numbers are easy to rule on. If there had been a requirement for two hours of curriculum PE a week, it would have meant a relatively simple calculation: multiply the number of classes of a set size by the space needed to teach those classes for two hours a week.

Once the requirement becomes as vague as the curriculum, the whole thing becomes a matter of judgement, not to mention whose.

The answer lies in the extreme reluctance of the British courts to interfere with the discretion of those who have to make decisions. In contrast, in the USA there is a well-established tradition of such interference in the name of the Constitution; hence the crucial importance of the Supreme Court in President Obama's health changes.

The British courts have emphasised the independence and apolitical nature of the judiciary. The idea of a British judge being subject to political appointment like a USA judge of the Supreme Court would send shivers down British ermine.

So if a challenge was made that the Secretary of State should not have given permission to sell playing fields as it left the school with unsuitable facilities, the judge will apply a test of reasonableness. This derives from the view that Parliament has given powers and discretions to ministers (and councillors and administrators) on the condition that they are exercised reasonably.

Parliament gave no power to act unreasonably, so if a public authority does so, then that authority is acting outside its powers and the decision or action by definition is unlawful.

What is reasonable

Of course that leaves unanswered the question of what 'reasonable' is. Where there is guidance or precise and specific numbers, this gives direction. Where there are not, the test where a public authority is concerned is whether a reasonable authority in possession of the facts could have made that decision. It is a very high test. Even ignoring experts is not decisive.

In fairness to government, one should note that the new regulations apply to the size, acoustics, and decoration of classrooms and the storage facilities in them, not just sports fields; and that the avowed aim is to bring the standards for state-funded and parent-funded schools into line.

The regulations also exemplify the general desire of this government, unlike the last one, not to tell everyone exactly what they must do – in other words, to trust the professionals.

With exceptions, such as the strange intrusion of phonics into the Teachers' Standards, this theme has been consistent. But for governors and heads, it means becoming subject to the reasonableness test in regard to their premises. Another thing to check with your lawyers.

• Richard Bird is ASCL's legal specialist

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