Remember 1944

by
05 June 2015

The Church-State partnership has lasted a long time. Don't mess it up, Howard Dellar warns

AS EDUCATION lawyers specialising in church schools, we offer here our personal "Yes Minister/No Minister" list for Nicky Morgan. 

Yes Minister: please reaffirm the fundamental principles of the 1944 settlement: a partnership between the Churches (and now a range of other religious and secular bodies) and the State in providing schools. The Churches are your partners, not a set of delivery agencies under your control. Respect the partnership and make it work. 

At the heart of that partnership are the church trustees who provide charitably one third of all schools sites in England. So, Yes Minister, protect them, as successive governments have done since 1944 by legislating to bring church site trusts for academies within the same statutory framework as those for voluntary schools. This especially affects extended or new sites (when church academies expand or move), and the sites for Free Schools. The present lack of legislation distances and disadvantages site trustees and dioceses, and threatens the character of church academies. It undermines the partnership.

Site trusts safeguard the religious character of church schools and academies. But recently, for the first time, the Secretary of State has removed a Church of England academy from the list of schools designated as having a religious character without first closing the academy in question, thus bringing the site trust (or, in this particular case, the academy trust, which is also a trust with a religious character) to an end.

We do not believe that it can be lawful to remove designation while the conditions that require designation still subsist. No Minister, do not attempt to change legislation to make de-designation just an administrative decision on your part.

Ever since 1944, it has been impossible for maintained schools to gain or lose a religious character without closing and reopening. Any attempt to change this will represent a grave danger to the partnership.

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IN THE same vein, No Minister, do not attempt to legislate to extend your powers to direct what should be done with private, charitable trustee land over the heads of the trustees. That, too, will change the partnership into a controlled-delivery mechanism. 

Church of England site trusts are education trusts (not ecclesiastical trusts), and are normally specific to an individual school in a named parish or wider area. As such, they are permanent parts of the nation's educational assets unless and until the school is closed. Then they become available to support other existing church schools, or to help create new ones. They represent a huge capital asset, and are the living sign of the working partnership.

Yes Minister, provide a proper legislative basis for capital investment in schools. 

The statutory powers and responsibilities that have worked well in grant regimes since 1944 are being ignored and overridden. Please route significant church school and academy capital finance through the mechanisms that have worked well for voluntary aided schools. There is a strong statutory framework for this: use it, Minister.

 

AND, Yes Minister, bring the governance of academies more within statute as well. At the moment, academies are mainly governed not by statute (as maintained schools are), but by contracts - the Funding Agreement and the associated Academies Financial Handbook.

But these are constantly changed unilaterally by the Education Funding Agency (EFA), and are becoming more and more instruments of control rather than true contracts between partner organisations. Nor does the EFA appear really to understand the difference between operating under statute, and operating by contract.

So, Yes Minister, let us have some legislation that modernises the 1944 settlement, but of a kind that carries forward the 1944 principles of partnership into the academies era; that enables site trustees to play a continuing constructive part; and that ensures that C of E schools and academies are here to stay.

 

Howard Dellar is Head of the education, ecclesiastical, and charities department at Lee Bolton Monier-Williams.

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