HK Government has no power to suspend school classes
22 March 2020
The HK Government's Education Bureau (EB) yesterday announced that "classes of all schools will remain suspended until further notice", abandoning its previous 20-Apr-2020 target date for re-opening.
Note the choice of words "will remain". Is that an opinion, a forecast or an order under a statutory power? Stop and think. Throughout the coronavirus outbreak, the Government has been behaving, and making statements, implying that it has the power to order schools to suspend classes but without explicitly claiming that power. The media, in their reporting, have without question assumed that the Government has that power, and all schools have complied with the purported directives.
But who actually has the right to decide whether school classes should be suspended or resumed? Is it the management of each school, or the Government? Is the EB merely expressing an opinion, one which non-Government schools can take into account in their own decisions, or does the Government have statutory powers to order class suspensions? To remind you of the timeline:
- On 25-Jan-2020, the day after schools closed for the Chinese New Year holidays, the EB announced that "all schools... will extend their Chinese New Year holidays to February 16 (i.e. class resumption on February 17)".
- On 31-Jan-2020, the EB announced that "all schools...would resume classes on March 2 [at] the earliest pending further assessment".
- On 13-Feb-2020, the EB announced that "the Education Bureau decided today that schools will not resume classes before March 16".
- On 25-Feb-2020, the EB announced that "the Education Bureau (EDB) decided today that classes of all schools will continue to be suspended until end of the schools' Easter holidays, i.e. classes will be resumed on April 20 the earliest. The exact date of class resumption is subject to further assessment.
- On 21-Mar-2020, the announcement of indefinite class suspension above.
The wording of those announcements implies that the Government has the power to decide and direct the suspension of classes. However, close examination of the Education Ordinance (EO) and its Education Regulations do not reveal any such power. The EO requires schools and their "Managers" to be registered, and application processes for both. For those with a "sponsoring body" and an "incorporated management committee", their functions are set out in Section 40AE, while for an unincorporated management committee, its responsibilities are set out in Section 33. It is, implicitly, a matter for the management committee to decide on in-school class suspensions. It is their duty and responsibility.
On 15-Feb-2020, we wrote to the EB with this simple question:
"For those schools which are operated by entities other than the Government, please explain what statutory powers (if any) you are invoking in order to decide, require and order that non-Government schools will suspend and not resume classes prior to the respective dates announced above."
Other than an acknowledgement 9 days later, there was silence until a final reminder prompted a reply on 13-Mar-2020 which failed to answer the question. They have no such powers! Long-time readers of Webb-site should not be surprised by this. In 2014, during the "Occupy" movement, the Government purported to order schools to suspend classes, and as we reported on 13-Jan-2015 (Occupy school suspension order was invalid), they had no power to do so. The EB gave evasive replies to our queries about its authority then, and the Ombudsman subsequently upheld our complaint that the EB had not properly answered our query.
If the Government wants statutory powers, then it can always propose them to the Legislative Council. The UK Government is doing just that with its 329-page Coronavirus 2019-21 Bill introduced on Thursday 19-Mar-2020, which seems likely to pass through Parliament on a fast track in the next few days, temporarily imposing drastic curbs on civil liberties, including the power to order any premises, commercial or not, to close. The HK Government has not proposed any such legislation.
What should schools managers do?
We urge school managements and their governing bodies across Hong Kong to take note of this. We place them on notice that in suspending in-school classes, they are not acting under Government directions, nor can they claim to be. At best, each school is voluntarily following Government advice when making its own decisions. Any decision to continue suspending classes is the school management committee's legal responsibility. They can certainly take the Government's views into account, but the decision is for the school management committees, and the consequences to the education of their students as well as the mental and physical health risks should also be taken into account.
Unfortunately, the Government has not provided any evidence-based justification for its views on suspensions. It operates as a black box, periodically issuing purported directives without any public analysis.
Fortunately, we can take evidence from a parallel control study in another densely-populated international Asian city that has kept its schools open. Singapore schools have been operating on their normal timetable throughout the crisis, with appropriate precautions to reduce the physical interaction of students. Overall, Singapore has had a similar number of COVID-19 cases to HK, particularly when measured in terms of clusters - for examples, one cluster from a dinner function in Singapore produced 47 cases, and 2 churches with connected congregations produced 34 cases. Notably, despite detailed contact tracing, there have been no clusters emanating from the Singapore school system. Children, who are remarkably resilient to the virus, have not been acting as intermediate vectors between adults - not to teachers or parents of their schoolfriends. This lack of transmission through the school system also suggests that asymptomatic transmission of COVID-19 is very low. HK should learn from the Singapore experience.
In Australia, the Government has reached a similar view, urging schools to stay open, guided by the published and reasoned advice of the Australian Health Protection Principal Committee. There's far more transparency downunder than in HK. The downside risks of closure include that having kids at home would keep some parents in critical sectors (including healthcare) off work, and that some kids would stay with vulnerable grandparents while parents work, so if the kids do turn out to be good at transmission then this would expose the grandparents.
Of course, there is the basic fear of being different, or peer pressure. If one school opens its doors and then suffers a single case of COVID-19 amongst its students and staff, it could be (unfairly) accused of recklessness, even though businesses around the city, including restaurants, bars and cinemas, are still operating, with occasional closures to sanitise after a case visits them. So schools should co-operate in a joint approach to the problem, and agree amongst themselves a re-opening date, and also a sanitisation protocol in the event of any case of COVID-19 at the school. The after-Easter date of 20-Apr, with sensible, Singapore-style precautions in schools, would be the most feasible. Multi-school operators such as the English Schools Foundation or the Catholic Diocese could take the lead on this.
The virus may loiter in our community for months or years, but HK needs to follow Singapore's example and get back to school.
The Government may have one irrelevant factor in mind when continuing to advise school suspensions, namely the fact that thousands of Chinese children, born in HK but neither of whose parents have right of abode here, were commuting daily across the border to HK schools and currently cannot do so. That birthright-of-abode game was nearly ended by then-Chief Executive C Y Leung in 2012, but its legacy lives on and is now aged 8 and above. We don't see why the interests of non-resident children should stop classes resuming for those who live here. Arrangements could be made for non-resident children to participate in classes via video-link if schools see fit to do so.
HK should ban entry to non-residents, for now
HK and Singapore have seen a surge in COVID-19 cases in the last few days, almost entirely due to people returning from more heavily-infected countries before a mandatory 14-day home-quarantine on arrivals took effect in HK on 19-Mar-2020 and Singapore on 21-Mar-2020. The rate of new infections will fade over the next few days, as long as our valiant contact-tracing teams keep up their stellar work. Singapore has today gone further, banning entry or transit by non-residents starting Tuesday morning (24-Mar-2020). Australia and New Zealand have already done so, to prevent non-residents fleeing chaos at home and potentially overloading the healthcare system with inbound cases. HK should do likewise.
Building a safe network of countries
After about 2-3 more weeks, new cases in sealed countries and territories which have been early and successful at contact-tracing and containment, including Singapore, New Zealand and HK, will be down to sporadic background levels, with the occasional imported-but-quarantined returning resident. At that point, these places can, on a bilateral basis, re-open air passenger traffic without quarantining arrivals from each other, leading to a network of "safe" countries and territories while the chaos continues elsewhere. The safe zone may eventually include mainland China, which is already reduced to mostly-imported new cases, although some caution is needed while we learn whether tens of thousands of discharged cases still have reservoirs of virus in their bodies.
Other countries, such as the USA, which left contact-tracing and containment too late to be manageable, will have to go through Hubei/Italy-style urban lockdowns for a few weeks, at huge economic cost, while they work to find households with infections and quarantine them. Only when they get the numbers of new infections down to around 1-5 per day per million of population will they be able to adopt the tracing and containment approach to terminate the chains of transmission. Typically each case has around 20 "close contacts" during their symptomatic phase before being identified, so a day of 50 new cases can generate around 1,000 close contacts to be located and tested before they can become symptomatic and start spreading.
Herd immunity: through infection, or vaccination?
Some poorer countries may not have the resources or political ability to force a lockdown and will just settle for letting the virus run through their population. Poorer countries typically have younger populations, so the inadequacies of their healthcare maybe offset by more resilient subjects, but they will lose perhaps 1-2% of their people, mostly elderly or with pre-existing conditions, until the remainder have herd immunity, which might be achievable with a 60-70% infection rate.
Amazingly, the UK (not yet a poor country) briefly flirted with the objective of developing herd immunity through coronavirus infection, before swiftly being reminded by the public that they would rather lock down, suppress the virus and wait for a vaccine than kill half a million grannies and overwhelm the health system. Yes, old people are (on average) economically unproductive and represent pension liabilities and a future burden on the healthcare system, but no open society can deliberately pursue such a policy.
© Webb-site.com, 2020