Personal comment: Implementing the Education White Paper and the Education for All Bill announced in the Queen’s Speech

In what could be a crucial year for the future role of local government in education and children’s services, John Fowler looks at the implementing of the Education White Paper (EWP), Educational Excellence Everywhere, in the light of the Queen’s Speech on 18 May and the forthcoming Education for All Bill.

The Queen’s Speech is short, outlining Government policy and legislative intentions at the start of a new session of parliament. The Cabinet Office has published background notes to the speech and this blog uses the two pages on the Education for All Bill.Education for All Cabinet Office background notes to the Queen’s Speech 2016

The Government has reaffirmed its commitment to the academisation of all schools, fair funding through a national funding formula and educational excellence everywhere, including provision for pupils excluded from school. A commitment is given to reform technical education which will be announced in a forthcoming ‘Skills Plan’ and implemented through ‘a strong employer-led system with high quality qualifications which support clear line of sight to skilled employment’.

Education for All Bill

By tradition legislation in the UK is rarely given a title which includes a qualification about its contents, thus we have the Education Acts of 1997, 2002 and 2011, interspersed with the Education and Inspections Act 2006, Education and Skills Act 2008 and Education and Adoption Act 2016. Occasionally, an Act’s title makes claims about its contents given the breadth and nature of the legislative reforms it contains, for example the Education Reform Act 1988, and the School Standards and Framework Act 1998. And presumably the Government wants the Education for All Act to be seen in this light.

However, details in the Cabinet Office’s background notes do not indicate that the Bill will be a significant measure. There will be legislation to support the academisation of all schools and also to deal with other pressing matters although the only one listed for legislation in the Cabinet Office notes is provision for excluded children.

Academisation for All

Legislation to complete full academisation is a massive task which the Government has quite rightly postponed to the 2017-2018 parliamentary session, or later, and possibly covering several more Bills. The law relating to local government and maintained schools has been painstakingly assembled over the last century, and since the expansion after the Education Reform Act 1988 covers perhaps 1,000 to 2000 A4 pages, much of it supporting the Academy school structure through the funding agreement. Version 6 (April 2016) of the model Funding Agreement for Single Academy Trusts has 36 references to maintained schools. All of this will need amending.

Apart from the ‘big’ issues of the National Curriculum (where the Education White paper refers to the National Curriculum providing a ‘benchmark’ for Academies), and Teachers’ Pay and Conditions (which is probably used to determine pay for the vast majority of teachers in Academies, and written into these teachers contracts of employment), there are a host of issues where the law constructed for maintained schools is applied directly or indirectly to Academies, and others where Academies have chosen to adopt voluntarily maintained school regulations.

The surprise is that forced academisation for 2022 – as a target – was contemplated for legislation in in the 2016-17 session. Legislation rarely contains targets especially as much legislative work, in this case, will need to be done to achieve the target. The proposed Bill in this session will therefore pave the way for more significant legislation in future Parliaments.

The 2016-17 Bill is likely to include:

  • Secretary of State powers to convert all schools in a local authority area to academy status when (1) schools are ‘underperforming’ or (2) the local authority becomes ‘unviable’. See paragraph 1.42 of Education White Paper and DfE Press Statement Next steps to spread educational excellence everywhere announced (6 May). A commitment was given by Secretary of State to consult on the ‘thresholds for performance and unviability’ for local authorities (Commons Hansard, col.394, 9 May 2016). There may be powers for the Secretary of State to make consequential changes to Academy funding agreements where reference is made to the local authority’s policies for maintained schools, e.g. charging and the interaction of the authority’s remission policy and Academy trust’s charging policy. There may be powers to make consequential changes to any other education legislation in those authorities with no maintained schools. Arguably, the ‘unviable’ local authorities can be seen as pilots to test out full academisation, and the powers needed to implement the three continuing duties of local authorities on securing sufficiency of school provision, vulnerable pupils and championing parents and families including provision for pupils with special education needs and disabilities (para 4.77).
  • Duty on local authorities to facilitate the academisation process. See paragraph 4.7(b) of the EWP. The Cabinet Office notes do not mention the transfer to a national land bank of land currently owned by local authorities for education purposes (para 4.12) or preventing a community school converting to foundation status (para 4.13).
  • Removal of local authority duties, and perhaps clarification of powers, to assist school improvement following the removal of Education Services Grant (ESG) for school improvement from September 2017 (para 1.54(a)).
  • Removal and/or amendment of local authority duties to fund maintained schools, for example with respect of the Schools Forum and the duty to have a local funding formula, to pave the way for the National Funding Formula from April 2019 when the ‘hard’ National Funding Formula commences (para 8.10). There will be a need to amend funding agreements to break the link between the current maintained school funding arrangements and those that apply to academies.

Other matters

Cabinet Office notes commit the government to legislating on one other matter:

  • Transfer of some duties and powers from the local authority to the maintained school/Academy Trust for excluded pupils, which is likely to cover alternative provision and continuing responsibility for the ‘home’ school for the performance of excluded pupils.

No specific legislation is mentioned to do with the Skills Plan. It could be done in part by secondary legislation by commencing ss. 17A to 17C of the Education Act 1996 (as inserted by the Apprenticeships, Skills, Children and Learning Act 2009, as amended by the Education Act 2011). Arguably, it would be consistent with the role of championing parents and families, and the specific duties connected to Raising the Participation Age (RPA) to 18 in education and training for the local authority to commission provision for 16 to 19 year olds in the Further Education sector. There may be legislation on careers education. See here.

The EWP makes commitments to legislate on other matters on admissions (paras 1.51(c) and 4.61), complaints to a public service ombudsman (paras 1.51(b) and 4.58), Qualified Teacher Status (para 2.32 onwards) and possibly on removing a school from a Multi-Academy Trust where there is parental dissatisfaction (para 1.51(d)).

And there is almost certainly legislation involved in the commitment to ‘redesign the legal framework for academies’ (para. 4.42). It is likely to be a year before the result of the DfE’s ‘engagement’ with the sector is known. Will it be tinkering with the current arrangements or the removal of the vast majority of the highly bureaucratic contracting system and the transfer of much of what funding agreements contain to Parliament approved regulations or codes? And the Government has committed itself to change the law on term-time holidays.

The future

Rarely in the last 30 years has a Government educational initiative lasted more than four years without a major revision, so it would be surprising if the Government’s commitment to full academisation by 2022 happens. As suggested above, the paving Bill in the current parliamentary session will be the start of a four or five year legislative programme to achieve full academisation during which the Government’s plans will come under further scrutiny. The 2017-18 session will presumably contain the legislation for the new framework for Academies, and there will probably need to be a further paving Bill once the proportion of primary Academies reaches a tipping point. Finally, there will be the massive undertaking of rewriting the whole of school education legislation which will also need to review the continuing local authority education functions as well as the children’s social care functions on well-being and safeguarding. This is a massive task which will continue to put the public spotlight on education reforms.

The task could be lessened by a commitment to allow maintained schools to continue in perpetuity. The argument in para 4.6(c) that it is inefficient to have a dual system of running schools does not stand up to scrutiny. Educational administrators will no doubt continue the 150-year old task of seeking consistency and coherence within the English school system, and will no doubt describe the current arrangements as an ’embarrassment’ as the War-time Education White paper Educational Reconstruction (Cm 6458, para 43) did, but the system should be judged not by its structure but by whether there is fair access to sufficient schools with sufficient qualified teachers where children can learn, parents are happy, and the nation believes the schools equip young people for their future roles in society irrespective of background.

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