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Education: Not quite Measure for Measure

by
20 September 2019

Howard Dellar warns against potential pitfalls

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THE draft Diocesan Boards of Education (DBE) Measure passed through the General Synod in July. It will now go to a revision committee, which will report to the Synod in February 2020.

It is an important Measure because, once it becomes law, it will provide the framework within which Church of England dioceses will engage and work with church schools and government bodies for the next generation.

The Measure updates its 1991 forebear, which, by the time the new Measure expected to become law, will be more than 30 years old. It seeks to ensure that the range of “functions” and “powers” conferred on DBEs are sufficient to enable them to play their full part in the church-school system.

According to the official explanatory notes that accompany the Measure, areas remain under discussion with both the Charity Commission and the Department for Education; so further changes to the draft are possible.

There are two key changes brought about by the draft: a new constitutional structure is created for DBEs; and the Measure encompasses academies and the various statutory relationships that DBEs have with them.

 

THE most significant change relates to the DBE’s independence. The existing Measure expects DBEs to be either Incorporated (i.e. set up through a charitable company structure), or an unincorporated body. Under the new measure, it will be possible for the first time for DBEs to be constituted as a statutory committee of their Diocesan Board of Finance (DBF).

In reality, a minority of DBEs have already moved to this committee structure, despite the lack of underpinning law. Inevitable and inherent conflicts of interest will need to be managed carefully if this new structure is adopted, especially for those dioceses with sizeable operating deficits, or in cases where there are diocesan solvency issues.

In taking decisions about the future constitution of their DBE, dioceses will need to consider with care the advantages of ring-fencing liabilities in stand-alone corporate charities.

The Measure is expected to come into force on 1 January 2022, to coincide with the next triennium for those elected to serve on DBEs. The Measure includes transitional provisions in order to assist in its implementation.

If this Measure is passed, the DBE’s relationship with its diocese on the one hand, and with its community of schools and academies on the other, will change significantly. Specialist training and advice will be required to assist a diocese to make the best decision on the right constitution for the DBE, and for DBEs and diocesan directors of education as they seek to use their new powers wisely and responsibly in our complex educational landscape.

Howard Dellar is a partner in, and head of, the Education, Ecclesiastical and Charities Depart­ment at Lee Bolton Monier-Williams. He writes in a personal capacity.

 

Highlights in the new draft Measure: 

  • New functions and responsibilities to include academies, which will affect the relationship between the diocese and its multi-academy trusts.
  • A power for the DBE to provide specific “advice” on matters affecting church schools or academies in the diocese to its owners, governors, and trustees, etc. Those receiving the advice must have “due regard to it”. This means that, at the very least, they would need to have cogent reasons for not following such advice.
  • A power that sets out where a governing body of an academy trust etc. must obtain prior written consent of the DBE. And, again, the right to attend a DBE meeting where the matter is discussed.
  • The DBE may also give directions to schools and academies who have a duty to comply in certain circumstances. For example, the DBE is able to direct a church school to permit an inspection of the religious education or collective worship in that school, should concerns be raised. Any direction would need to be reported to the diocesan synod.
  • The Measure aims to support cross-diocesan activity, including the creation of joint DBEs.
  • There is a new power that requires schools to provide information to the DBE to enable it to undertake its functions.
  • The Measure also requires the members of the DBE to have “due regard” to the House of Bishops’ safeguarding guidance.
  • There is a new power to enable the Archbishops’ Council to amend the draft Measure once it has been passed.
  • There is a new requirement for the diocesan synod to keep the way in which the DBE exercises its functions under review.
  • The definition of “church school” is revised and expanded so that it is clear when such a school acquires a designation by the Secretary of State as a school with a Church of England religious character. 


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