THE present Government came into power in May 2010, seeing
education as a priority. The Academies Act raced through Parliament
by the end of July that year, and the first of its "new-style"
academies opened on 1 September.
The ink had not dried on its pages before Michael Gove's
officials were already drafting what, by mid-November 2011, was the
new Education Act 2011, which, among other things, replaced
Schedule 1 of the Academies Act after hardly a year of use.
Since then have followed, in a constant stream: revised
regulations and guidance on most of the areas of school life; a new
capital programme covering both schools and academies; revisions
(and revisions of revisions) of most academy-model documents; and
constant new versions of the Academies Financial Handbook
- and, of course, much elsebesides.
One might suppose that the DfE has been growing in size with all
this national activity. Far from it. It has been getting smaller,
even if you allow for the creation of the Education Funding Agency,
which carries out many DfE functions.
The policy is that legislation, regulation, and guidance should
be increasingly "light-touch". The Secretary of State appears to
want legislation to fade away, until nothing but a kind of Cheshire
cat's smile is left: a smile that speaks of freedom and autonomy
for schools, consequent on their removal from local-authority
control. Sounds great?
But what is less loudly said is that the legislation is also
getting increasingly centralist. Academies operate under direct
contract to the Secretary of State. Break the contract, and
The new Schedule 1 gives the Secretary of State increased powers
over school sites, and what should happen to them, even if those
sites are owned by charity trustees with private value in them.
Revised regulations and guidance are, indeed, shorter, and, in
consequence, leave awkward gaps within which it is difficult to
understand what to do. But there is never a gap in respect of the
powers of the Secretary of State.
Academy contractual documents do not become shorter, however.
They now include DfE instructions that go beyond company law, and
beyond charity law, and are not open to discussion or
The relationship between an academy and the Secretary of State
is contractual, but the contracts are changed by the Secretary of
State unilaterally; and, since this all sits outside schools
legislation (except for the small amount that governs independent
schools), it can be changed without any parliamentary process
Just look at the difference between the DfE guidance to schools
on making alterations (age-range, size, moving site - that kind of
thing), and then look at the same guidance for academies. The
schools guidance is long, complex, and, of course, based on law.
The academies guidance hardly needs do more than say "Ask the
Secretary of State."
Of course, academies sit not only within independent-school
legislation, but also within company law and charity law. But how
much impact do they, in fact, have?
As for company law, the Secretary of State, by controlling the
contracts, in effect controls the companies. If he puts it in the
Financial Handbook that an academy must make its Principal
the accounting officer, and a company director, and the
Handbook is (as it is) a part of the academy's contract
with him - well, accounting officer and director they become,
despite anything to the contrary in the academy company
If the Handbook says (as it now does) that a
multi-academy trust must have a chief executive who must be a
director, then the fact that the company articles say something
different is of no account. At least, that appears to be the
Secretary of State's view.
As for charity law, the Secretary of State has made himself
(through the Education Funding Agency) the "Principal Regulator" of
all academy companies in their charity capacity, thus setting the
Charity Commission at a distance. Fortunately, site trustees still
answer directly to the Commission, although the new capital regime
for both schools and academies makes a determined attempt to
undermine their private value and centuries-old position.
None of this goes entirely unchallenged, of course; and much may
become a battleground in the build-up to the coming General
Election. But we are already far advanced down a route leading to
the provision of schools' being determined by extra-statutory
contracts, and their capital provided through an extra-statutory
regime. Is that really the academy freedom that was promised?
Howard Dellar is head of the ecclesiastical, education, and
charities department at Lee Bolton Monier-Williams, and Secretary
of the Ecclesiastical Law Society.