ANYONE with an interest in law who reads Educational Excellence Everywhere and subsequent statements will probably have experienced a sense of increasing concern. They suggest fundamental changes to the provision of schools in England.

School governing bodies are created by specific statute and subject to a specific body of law: the Education Acts. Academy Trust Companies, however, are not the creation of statute in the same way. They are, instead, companies under the Companies Act and charities under the Charities Act, although they are partly exempt from the provisions of the latter. In addition, they are subject to the terms of a contract with the Secretary of State (the funding agreement) and to the requirements of the Academies Financial Handbook. Except for the Academies Act, they are not directly subject to the provisions of the Education Acts. Instead, selected requirements from the Education Acts are incorporated into the funding agreement.

If, as remains clear government policy, all schools are to become academies and the statutory underpinning provided by the Education Acts is not appropriately re-enacted, then academies appear destined to become ever more the creatures of contract, not of statute. And, because the funding agreement appears to make each academy company effectively no more than an agent of the Secretary of State for Education – which is neither a charitable purpose nor a secure basis for the business plan of any company — this raises fundamental questions. Are the requirements of the funding agreement and the Academies Financial Handbook such that the directors of an academy are prevented from properly fulfilling their duties under the Companies Act or the Charities Act? Will the directors in fact have sufficient autonomy to carry out these functions?

THERE is also considerable concern that, if the White Paper proposals are enacted, the only person in the future who can “establish” a new school will be the Secretary of State. There will be no continuing power for local authorities and dioceses to establish new schools, as they do at the moment. The Church will simply run some academies under temporary contracts. Historically, all schools have been established by local bodies; now establishment will be by national government only, and voluntary schools will no longer exist. These changes are so fundamental that they require a much greater degree of national debate than seems likely.

All decisions about which academy will be run by which academy trust are ones for the Secretary of State through the regional schools commissioners. There is no statutory process and little by way of objective criteria. The commissioners are advised by head teacher boards, the members of which inevitably have some degree of conflict of interest. There will be little remaining local input or control into the creation and location of new schools, into the choice of who will run them, or into their continuing governance. This represents another big change.

THE WHITE Paper emphasises the part to be played by “autonomous leaders” in improving educational standards and appears to see multi-academy trust (MAT) chief executive officers as these leaders. CEOs, however, are in law answerable to their MAT directors and the most recent Department for Education models for the articles of MATs are no longer drafted with a designated place for the CEO as a director. The members have to take a separate decision so to appoint him or her if they wish to do so. The Charity Commission has never seen it as acceptable that a charity should be dominated by its paid senior officer.

Yet comments by the Secretary of State since the White Paper have suggested that local authorities and “school leaders” might jointly be the “owners” of MATs. If this is indeed being seriously considered, it would be absolutely contrary to the present wording of the model articles, which explicitly forbid any employee of a MAT to be a member of the company. To have head teachers/CEOs owning academy trust companies would be a clear commercialisation of delivery. We would have a nationalised system in respect of the establishment of academies but linked to a commercialised system of short term rolling contracts to provide delivery. This would be a very big change indeed.

The White Paper and the subsequent statements suggest a completely new structure of school provision in England. The Churches will need to watch and act with care to ensure that they have a continuing statutory role for the future.

 Howard Dellar is head of the Ecclesiastical, Education and Charities department of Lee Bolton Monier William, Solicitors