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Education: Schools Bill — what might come next?

by
10 February 2023

Howard Dellar wonders if the Bill’s replacement will be any better

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TWO months ago, on 7 December, the Schools Bill 2022 was officially withdrawn by the new Education Secretary, Gillian Keegan. The move followed months of severe criticism, in Parliament and throughout the education sector, of various elements in the Bill that minor summer fixes had failed to remedy.

The Government now appears to be planning a replacement, and the Church of England Education Office has indicated in these columns that it would welcome one. They are right.

A Bill is surely essential if the Government remains committed to consolidating academies as the usual or only model for state-funded schools. The Churches, for their part, need the Bill to preserve and protect their ability to promote, govern, and manage schools in accordance with the requirements of the historic trust deeds on which the vast majority of the sites of their schools are held, and which are the ultimate guarantee of their religious character.

The Bill will need to provide a specific and detailed legislative structure for academies. The present mixture, made up of parts of different Education Acts, the Charities Act, the Companies Act, and contracts that the Government can change at will, is not fit for purpose now, let alone if all schools are to become academies.

 

THE 2022 Bill had two significant flaws that the House of Lords spotted. First, it heavily centralised control of schools at national government level. Second, it gave the Government huge powers to determine the details of the relevant legislation by way of Regulations, which receive very light parliamentary scrutiny.

Both of these policies were highly dangerous. The first would have reduced the links between schools and their local communities, turning parents simply into consumers.

It would also have weakened the autonomy of multi-academy trusts (MATs), which are formed as charities under the Charities Act, and as companies under the Companies Act. MAT autonomy is essential to respond to their particular local conditions. Each needs to have the independence to work flexibly and creatively to forge strong and effective links between its schools, families, parishes, and the wider community. All these relationships are necessary to achieve a calm and purposeful school that can provide the very best for its pupils.

The second flaw in the defunct 2022 Bill would have brought to an end the system under which — since 1870 — all significant changes in the provision, governance, and conduct, of schools are set out in primary legislation, and thus subject to full parliamentary scrutiny. The plan to regulate schools through Statutory Instruments, which can be laid before Parliament at any time without preliminary debate, would have removed an essential democratic safeguard for future of our schools.

 

FROM the Church of England’s perspective, there is also much legislation that was put in place to govern to voluntary and foundation schools and which needs to be re-enacted to apply to academies. The 2022 Bill was most inadequate in this respect. Those who drafted it gave far too much freedom to bring in future Regulations with minimal limiting requirements on the face of the Bill itself — thus giving any future government an easy mechanism to make fundamental changes that might, for example, have destroyed the essential character of church schools.

The land clauses, as drafted in the Bill, were open to being interpreted as changing the nature and scope of the existing trusts that govern the land on which schools stand, especially the trusts that apply to Church of England schools. It is crucial that any future Bill must include these matters within the Bill itself. Any Regulations must play only a minor part, and within prescribed limitations. Academy land provisions must be drafted clearly and unambiguously to preserve both the private value in sites and the nature and purposes of the underlying trusts.

Finally, any new Bill needs to preserve and re-legislate the concordat that was agreed between the Churches and the government, and led to the 1944 Education Act. That agreement modernised what had come to be called the “Dual System”, under which schools could be promoted and provided either by public bodies (local authorities) or by private parties (usually but not exclusively church trusts).

The 2022 Bill had the potential to create a situation in which only the Secretary of State could promote and provide a school, granting dioceses and trusts merely permission to govern and manage some of them under non-permanent contracts.

The Dual System should not be undermined by stealth. If the Government desires to bring it to an end, and wishes to propose something better, it must legislate clearly and unambiguously with that purpose in mind. Then Parliament can decide whether what is proposed really is better.

For the stakes are high. There are many aspects of our schools system which are failing pupils, but it will be pointless to tackle the more obvious ones — teacher shortages, financial stringency, inadequate buildings — if the underlying governance of our schools is flawed.

The 2022 Bill was framed on the principle that the answer was national provision and national control. But is the 80-year-old partnership between Church and State, between schools and their communities, really obsolete? The Schools Bill failed, I would argue, because parliamentarians resisted its creeping centralisation.

The Church of England, entrusted with management of one third of all schools in England, needs to engage vigorously and openly as the debate on the Bill’s replacement begins afresh.

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