The Government is facing a legal fight over face masks in the classroom as more than a dozen Tory MPs and peers backed a court challenge against the measure.

Boris Johnson has been warned that there is “insufficient evidence” to support the policy and that it must be withdrawn with “immediate effect”.

The Government was sent Letter before Action by lawyers acting for the parent campaign group UsForThem which claims the current guidance is disproportionate, irrational and discriminatory.

The legal challenge is supported by several Tory politicians, including Sir Graham Brady, chair of the powerful 1922 committee of backbenchers, Robert Halfon, chair of the education select committee, and Marcus Fysh, chair of the all party parliamentary group on education.

It is exceptionally rare for MPs to back a legal challenge against their own Government, and the move will ramp up pressure on ministers to axe the policy.

On January 1, just two days before millions of pupils were due to return to the classroom following the Christmas break, the Government announced that all secondary school pupils would be asked to wear masks during lessons.

The move came just after teacher union bosses issued ministers with a series of demands which included asking why face masks were not required in classrooms in England while they were in Wales and Scotland.

Masks have ‘profound impact’ on children

Ministers said at the time that the decision to reimpose masks in classrooms for the first time since May last year would be reviewed on January 26.

The Letter before Action, sent from JMW Solicitors on Saturday and addressed to the Education Secretary, says the policy must be “immediately revoked”.

It points out that the pandemic has had a “profound impact” on children and says it is “imperative” that steps are taken to aid their mental and physical recovery.

The guidance on face masks in the classroom is “plainly discriminatory”, the letter says, since it put children with special education needs at a “significant” disadvantage.

The Education Secretary has failed to consider the impact on children’s wellbeing of “largely continuous” mask wearing for up to ten hours per day, it adds.

“To make this decision at this stage is to make a decision that no reasonable public body would make in all the circumstances,” the letter says.

“There is no rational basis to introduce this precaution at this stage. There is apparently no credible scientific evidence to support it and at the same time a large – and growing – volume of evidence which shows its harmful impact.”

Threat of judicial review

JMW Solicitors has given the DfE until 26 January to respond and say that if changes are not made to the guidance, they will launch a judicial review.

Other Tory MPs backing the letter include Steve Baker, deputy chair of the Covid Recovery Group, Chris Green, the MP for Bolton West, and David Warburton, MP for Somerset and Frome.

Dame Helena Morrissey and Baroness Foster are among the Conseravtive peers who have lent their support to the legal challenge. And several academies also endorse the legal letter, including Prof Carl Henegan, director of Oxford University’s Centre for Evidence Based Medicine, and Prof Sunetra Gupta, an epidemiologist and infectious diseases expert at Oxford University.

Sir Graham Brady said that masks are not a “cost-free” measure and that they get in the way of communication and social development.

“Just at the point when youngsters need to learn the subtle social cues that are such an important part of human interaction, all the faces around them are covered. Of course all this is even worse for those with hearing difficulties,” he said.

Mr Halfon added: “Whilst I acknowledge that the mask-wearing policy is intended as ‘guidance’, in reality, it is being treated as the rule of law. I am supportive of the actions taken by worried parents and I would urge the Government to listen to the concerns of many across the country when they revisit the new Covid restrictions later this month.” 

As daily cases fell to 81,713 on Saturday, the lowest level for a month, a Government source told The Telegraph that unless there is “absolutely compelling evidence”, the Education Secretary is “not minded” to prolong the measure beyond January 26.

Zahawi has ‘no ambition’ to extend masks in schools

“Nadhim Zahawi has always been very clear that he is evidence led and he doesn’t want to see children in classrooms wearing masks,” the source said. “Over the Christmas break in the build up to schools returning, he was willing to accept masks as part of that as a short-term solution.

“He will review the evidence and will be wanting to say on January 26 that they are no longer needed. He has no ambition to extend it, quite the opposite.” They added that staff numbers are “holding steady” which is “all the more reason” to revoke the policy on masks in the classroom.

Mr Zahawi said that the Government has done its “utmost” to ensure schools remain open for face-to-face learning. Writing for The Telegraph, he said: “Our schools will stay open, and exams will go ahead this summer as planned.”

Policy ‘based on evidence’

A Department for Education spokesman said that face masks will not be kept in schools “a day longer than necessary”.

They added that the policy was formed “based on a range of evidence, including observational studies in schools”.

The spokesman added: “We know face coverings can be challenging but this is a temporary, proportionate measure to maximise attendance in school and minimise disruption to face-to-face learning. Any benefits in managing transmission are always balanced with any educational and wellbeing needs.”

From Monday, 16 and 17-year-olds will be able to book their booster jabs online, and invites will be sent out to encourage eligible teenagers to come forward.