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Education: What price academies?

07 February 2014

Is the academy model really delivering autonomy for schools, asks Howard Dellar


Increase in power: Michael Gove, pictured outside No. 10 Downing Street

Increase in power: Michael Gove, pictured outside No. 10 Downing Street

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 "Goodbye."

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 negotiation.

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 whatsoever.

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 articles.

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.

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