The government has “accidentally banned the schooling of children” in tier 4 areas because of a mistake in the way legislation was drawn up, according to a legal expert who advises Parliament on Covid-19 laws.

Legislation listing the exemptions under which people are allowed to gather in the new highest tier of Covid restrictions did not include children attending school.

For other tiers, exemptions on people gathering include the “educational activities of a school”.

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But in the education section of exemptions for tier 4, schools have been omitted, despite gatherings being allowed in early years, 16-19 academies and both further and higher education.

The Department for Education said that this was an administrative error that would be amended shortly.

Barrister Adam Wagner highlighted the problem after he was alerted to the omission on social media.

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The human rights and public lawyer, who is a specialist adviser to Parliament’s Joint Committee on Human Rights Covid-19 inquiry, wrote on Twitter that it looked like “an obvious error”.

But, he said, the effect was that “schools could not open in tier 4 for general education as gatherings for [the] purpose of that education aren’t an explicit exception”.

He added: “I imagine that we will see this error corrected well before schools can go back. But it demonstrates the dangers of legislation at speed when policy is decided at the very last minute possible.

“Just to get some perspective here, a law was drafted, in the middle of the night without any parliamentary debate or scrutiny, published the minute it came into force and it accidentally banned [the] schooling of children.”

That is indeed weird. https://t.co/mdP6y9BF7a pic.twitter.com/DvxjZf4rL5

- Adam Wagner (@AdamWagner1) December 23, 2020

Just to get some perspective here, a law was drafted, in the middle of the night without any Parliamentary debate or scrutiny, published the minute it came into force and it… accidentally banned schooling of children.

- Adam Wagner (@AdamWagner1) December 23, 2020

The Department for Education published guidance yesterday on how schools will operate in tier 4.

It has said that clinically extremely vulnerable staff and pupils should not attend school.