Faith schools are safe — for now

16 November 2011

The Church has successfully countered secularist threats in the new Bill, says Howard Dellar

The Education Bill 2011 has now finished its progress through the Lords, and will go back to the Com­mons, with the expectation that it will become law before the end of the year (News, 4 November). I had originally thought that it would have a serious negative impact on vital aspects of church schools, and further chal­lenges emerged in the shape of secularist amendments en route. In practice, however, close working with education ministers and their offi­cials has reduced my concerns.

The requirement for all schools to have local-authority school-improve­ment partners (SIPS) is removed. Instead, local author­ities will be allowed to sell school-improvement services in a wider market, alongside other providers. This focuses the power to challenge a school’s standards very much in the hands of the Secretary of State, and away from local authorities.

It also sharpens the focus on those bodies that provide schools, of which Church of England dioceses are by far the largest number. It is they who have to ensure that their schools and academies are performing well — or risk intervention from the Secretary of State.

At legal firms such as ours, we have had to battle during the year to pre­vent schools’ simply being taken away from the Church (albeit with appro­priate financial compensation where relevant) in such circum­stances. Dio­ceses can no longer rely on local authorities to ensure stand­ards: they must do so themselves.

Education and charity lawyers have drawn attention to the extent to which powers are becoming con­centrated within the Department for Education (DfE), partly in conse­quence of the abolition of external bodies such as the Young People’s Learning Agency (YPLA), the Gov­ern­ment’s funding agency for academies, and partly because of the evident intention of the DfE to make key aspects (such as the budgets) the same in schools as in academies, which would reduce flexibility.


Whereas school budgets have until now been determined by a local-au­thor­ity scheme, and academies have been funded accordingly, now acad­emies will be funded in ac­cordance with a national scheme, and the Sec­retary of State has given him­self power to amend local-authority schemes for schools. Hence the new Bill will bring in markedly greater centralisation.

Another aspect that gives me con­tinuing concern is that the erstwhile YPLA function as “Principal Regu­lator” of the governing bodies of voluntary and foundation schools and academy companies in their charitable capacity (a kind of stand-in for the Charity Commission) is now transferred to the Secretary of State. This gives him powers over an aspect of the life of church schools (and all schools with trusts) which he did not have before, and distances the Charity Commission more than I would wish.

Related to this new concentration of power is my concern that the Bill also contains clauses giving the Secretary of State power to direct what should happen to school and academy land on closure or partial sale — even if that land belongs to the church trustees, not to the state. This seems to me to have sig­nificant charity-law and potential human-rights im­plica-tions, as the trustees will have real private value in the vast majority of these sites.

So I am glad that re­assurance has been given in a ministerial statement in the Lords which sets limits on what the Secretary of State will in fact normally do. A joint working group will be established that will advise on practical details, such as valuations, if trustees’ sites are purchased by the state — a very rare occurrence.

There are also clauses that provide new arrangements for the establish­ment of new schools. These extend to some degree the ability of the churches to make proposals. One drawback, however, is that this Bill in­evitably further increases the com­plexity of making such proposals. Knowing which section of which Act under which to make proposals is be­coming a complex art-form in itself. I am pressing for simplification and con­solidation in subsequent legisla­tion.

The Bill was used by various secu­larist organisations and ACCORD (a coalition of anti-faith-school bodies which includes some religious indi­viduals and organisations) as an opportunity for amendments. These were on school worship in all schools and on admissions and employment powers in schools with a religious character.

All of these failed because they gained such low levels of support from peers, and the Government made some strong supportive state­ments about the “Dual System” (which is the concordat between the Church and State in respect of the provision of schools) and about the place of worship in the life experience of all children.


IN recent years, education lawyers have been faced with significant edu­cation legislation on a pretty much annual basis. I do not suppose that this stream is likely to cease. The church-state partnership in educa­tion (now in reality a multifaith partner­ship) is very much alive and well, but it needs constant vigilance to ensure that it continues to thrive.

There is every indication from the present Government that it values the partnership of the Church of England and other faith bodies in education. Secularists, however, will always gain media profile when they attack what they see as “discrimination” in admis­sions and employment, as well as wanting to remove any place for worship in state-funded schools.

This is part of the (surely now outmoded) secularist attempt to restrict religion entirely to the private sphere. All supporters should not leave it entirely to the Government to protect the church-school family. The Church must itself argue the value of the huge public contribution (part of the Big Society) that it makes, and get its many allies to voice their support.

In his final remarks in the Lords at the Third Reading of the current Bill, Lord Hill said: “There have been very important contributions on this Bill from all sides, and from the Cross Benches — particularly on SEN issues and the duty to co-operate, and from the Bishops’ Benches, which have un­der­lined the important role that faith schools play across our education system.”

Indeed they do, as all the Churches, in partnership with gov­ern­ment, seek year after year to deliver a better education for young people. Hence I conclude that the eventual outcome of the Bill has been positive for the continuing significant place of Church of England schools in the educational system in England and Wales. But we all need to keep our eyes open.

Howard Dellar is a partner in the legal firm Lee Bolton Monier-Williams.

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