Viewpoint: Untangling the next steps in DfE education legislation

academies-chalkboard

Many commentators were rushing to hail the ending of the government’s policy on forced academisation – but, wonders John Fowler, were they a bit premature? The devil, as always, is in the detail.

There was much delight in the education Twittersphere following Secretary of State for Education Justine Greening’s Ministerial written statement on Technical and Further Education on 27 October.

The delight was not about Technical and Further Education but about what it did and did not say about the Government’s schools’ policies. The Association of Teachers and Lecturers claimed the Ministerial statement is a “victory for common sense”. The Bow Group welcomed the “Government’s decision to end the coercive conversion of schools into academies”. The BBC reported that the “Government formally drops academies legislation”. The Local Government Chronicle (£) heralded the Government for scrapping “a bill which would have both forced many council run schools to become academies and removed the role of councils in driving up standards in education”. And SchoolsWeek concluded that the Secretary of State “will shelve plans to force all schools in ‘unviable or underperforming’ council areas into academies, with experts claiming the government has dropped the Education for All bill legislation altogether”, a claim repeated by the Daily Mirror Tories quietly scrap remainder of ‘forced academies’ education bill, which was publicised in the 28 October weekly newsletter of the Association of Directors of Children’s Services.

But are they correct? Ministerial written statements often need untangling.

Skills, and the management of Government Parliamentary business

The Queen’s Speech on 18 May announced that the Education for All Bill would contain legislation on skills. The Cabinet Office background notes said the Bill would:

“Deliver the vision that will be set out in the forthcoming Skills Plan through ambitious reform to technical education. These changes will focus on closing the major productivity gap between our economy and other leading economies.”

Speculation in the run up to the speech suggested that the skills legislation would be dealt with in a separate Bill, e.g. the Daily Telegraph (14 May). The Education White Paper Educational Excellence Everywhere (March 2016) proposed a massive programme of legislative change which, in my view, would take at least four Bills, with two of significant size, in three or four Parliamentary sessions. Tacking skills on to this legislation might delay the technical and further education reforms.

Large complex Government Bills take time to get through Parliament, and Bills are like trains: every bit arrives at the same time and non-contentious provisions cannot leap ahead of those where MPs want to do a thorough scrutiny. The modestly-sized Education and Adoption Act 2016 was before Parliament for 10 months even though the adoption provision proved relatively uncontentious. As a standalone provision, the adoption clause could have been on the statute book in a couple of months.

On school legislation, the Cabinet Office notes state that the Education for All Bill would support “Moving towards a system where every school is an academy …”. In other words, the Government recognised that ‘paving’ legislation is required in the 2016-17 session to start implementing the White Paper so adding skills on to this legislation appeared sensible.

The Skills Plan (see the LGiU briefing (£)) was published in July.

The decision to go ahead with the modest Technical and Further Education Bill is because the DfE

  • did not want to lose its allocated slot in the limited time available this Parliamentary session (which is due to finish March/April 2017)
  • wanted to avoid the delay in tacking skills on to a contentious schools bill (a contentious bill could be brought forward next session)
  • is still trying to work out the implications of White Paper, which has been complicated by the addition of the Green Paper Schools that work for everyone.

The Technical and Further Education Bill deals with three relatively minor and/or uncontentious matters:

  • extends the remit of the Institute for Apprenticeships to deal with technical education in FE colleges and employer-led training;
  • safeguards for future public use the assets of colleges which become bankrupt; and
  • requires the new combined authorities, e.g. Greater Manchester, that have a devolved budget for skills and adult learning to provide activity data on the same basis as other bodies.

The ‘100% Academy strategy’

The Government’s position on academisation during the Coalition was to offer Academy ‘freedoms’ to all schools. There was no compulsion except for ‘failing’ schools. The Conservative Party 2015 general election manifesto was silent on the issue of full academisation. The then Prime Minister’s 100-day article in the Daily Telegraph in August 2015 contained the first indication that the newly elected Conservative Government was going to depart from the Coalition Government’s position. See Viewpoint: What “We will make local authorities running schools a thing of the past” might mean for further information. A “100% Academy strategy” had been reached, to use Whitehall-speak.

The Secretary of State’s 27 October statement repeats this strategy: “Our ambition remains that all schools should benefit from the freedom and autonomy that academy status brings”. A prime function of the Whitehall machine is to advise on, and prepare, legislation to meet Ministerial ambitions. It must be assumed that legislation to achieve this end is being written albeit without the earlier compulsion to achieve full academisation by 2022.

The rest of this Viewpoint takes a closer look at the last seven months of Government school policy development.

March 2016

March 2016 was a busy month. See LGiU briefings (£) DfE Consultation – Schools national funding formula, DfE White Paper: Educational Excellence Everywhere, and, following enactment of the Education and Adoption Act 2016, Schools causing concern: April 2016 DfE guidance.

The funding consultation confirmed the Government’s intention of removing the last specific funding for local authority school improvement work, and the White Paper Education Excellence Everywhere confirmed the Government’s intention of achieving full academisation by 2022 through legislation.

May 2016

The DfE statement Next steps to spread educational excellence everywhere (6 May) announced that

“the government has decided, while reaffirming our continued determination to see all schools … become academies in the next 6 years, that it is not necessary to bring legislation to bring about blanket conversion of all schools to achieve this goal.”

In addition, the statement promised legislation for the blanket conversion of all maintained schools in a local authority area where the local authority was “unviable” or where the local authority is “underperforming”, i.e. it “consistently fails to meet a minimum performance threshold across its schools”.

Following the Queen’s Speech on 18 May, my blog Implementing the Education White Paper Educational Excellence Everywhere and the Education for All Bill announced in the Queen’s Speech looked at the legislative task of implementing the Education White Paper. As there was still a Ministerial ‘determination’ to see all schools become academies, it would take perhaps four Acts over at least three Parliamentary sessions, some of the Acts would need to be of significant length as 1000 to 2000 pages of legislation would have to be rewritten to allow for the possibility that one day there will not be any maintained schools. The legislation needed to force full academisation is short and simple to write; the important, constitutionally significant and complex task is constructing a legislative structure for a fully academised system and the consequential transitional arrangements.

A paving Bill?

I concluded that a ‘paving’ bill would be needed for the current 2016-17 session although calling it the Education for All Bill was pretentious given the tasks it needed to achieve. There were some immediate tasks to achieve academisation for all. I expected it to put a duty on local authorities to facilitate academisation (yes, there is not one on the statute book currently), prevent community schools becoming foundation schools (because of the consequent complexities of land ownership) and establish the land bank of local authority owned land used by schools. Local area forced academisation was also a possibility was specifically promised in the Queen’s Speech.

Other matters flagged up in the White Paper or elsewhere, might be included: excluded pupils, alternative provision, admissions (strengthen the local authority role, and reduce opportunity to refer to Schools Adjudicator), public service ombudsman, Initial Teacher Training, Qualified Teacher Status, removal of a school from a Multi-Academy trust (vis a parental petition?), and careers education and guidance.

National Funding Formula and local authority school improvement work

Legislation is needed to pave the way for the National Funding Formula (changes to the role of the Schools Forum, for example) and deal with the consequences of terminating central government funding of local government school improvement work via the Education Services Grant from September 2017. Funding for this work has long been linked to specific Government grant, and not to locally raised revenue.

There are relatively few local government duties relating to school improvement. The Part 4 (Schools Causing Concern), Education and Inspections Act 2006 powers are since the Education and Adoption Act 2016 mirrored, and overridden, by the Secretary of State and/or Regional Schools Commissioner (RSC). If a warning notice needs to be served, the RSC’s decision take precedence. The main duties are in the Education Act 2005 to develop and implement an action plan for a maintained school which has had an inadequate Ofsted rating, which is a nonsense as the 2016 Act requires forced academisation. The Education Act 1996 has a catch all duty requiring local authorities to use their powers to promote high standards and the fulfilment of potential of children (not schools) in the local authority area. The introduction of the Power of General Competence in the Localism Act 2011, which applies to all local government functions, makes the 1996 Act duty wide-ranging, and puts beyond doubt that a local authority can provide a school improvement service directly or as a traded service, or via a third party. Ken Clarke, when Secretary of State, and the only lawyer to hold the post in recent memory, claimed in debate, when removing the local education authority power to inspect schools under the Education (Schools) Act 1992, that the local authority as the maintaining authority had an inherent duty to secure high quality provision that it maintained.

The DfE Ministerial Statement on School Funding (21 July), which postponed the National Funding Formula by a year, was silent on the future of central government support for local authority school improvement duties. It is the author’s view that the conclusion of the LGC briefing (£) Academies U-turn offers hope for councils’ prestige that Minsters have scrapped a bill which would have “removed the role of councils in driving up standards in education” is not correct. All the statement says is that legislation will not be introduced during the remaining months of the current session. Yes, local authorities will still be able to provide school improvement services on a traded basis, and yes, local authorities will still be able to provide a service using council tax raised revenue, but the Government has not said that it will legislate to stop local authorities procuring school improvement activity. There has not been a Government U-turn. Martin Tett, Leader of Buckinghamshire County Council, sums up the position in the Guardian article Tory councils warn of £600m black hole after demise of education bill (30 October 2016):

“The government has to, in my view, either remove the statutory responsibilities or restore the funding. It can’t leave us in limbo, where we have responsibility but no money. The obviously better outcome, in terms of schools and children, is that government restores the funding.”

September 2016

September saw the publication by the new Secretary of State of a green paper Schools that Work for Everyone (see LGiU briefing (£)) and give evidence to the Commons Education Committee. On the latter, the Secretary of State confirmed that the Education for All Bill is being prepared and that it will come forward ‘later in the year’. It will be a ‘strong’ Bill and that it is where the Secretary of State’s ‘focus is at the moment’. The Secretary of State did not say, as has been claimed, e.g. the weekly newsletter of the Association of Directors of Children’s Services weekly newsletter of 28 October, that the Secretary of State used the evidence session to withdraw the proposal to legislate for area blanket forced academisation.

Ministerial statement on 27 October

The statement says “Our ambition remains that all schools should benefit from the freedom and autonomy that academy status brings”. The ‘all’ is significant. Originally, after the Academies Act 2010, Ministers urged schools to take advantage of the ‘freedom’ of academy status, they did not publicly say they had an ambition that all schools should be become academies.

Although schools will not be forced to become academies, Government policy, unless amended, must now be based on the ambition that all schools will become academies and there will be no local authority maintained schools. We can start debating what such a system will look like. Consequently, nearly all the legislation that was required to implement full academisation by 2022 (except forcing schools which had not made plans by 2020) will still be required given that so much of our school system is dependent on legislation predicating maintained schools. Therefore, the Government cannot shy away from what happens to the big issues such as the National Curriculum, and the School Teachers’ Pay and Conditions, and another couple of dozen other issues from religious education agreed syllabuses to school term dates.

In addition, the Ministerial statement continues:

“The Schools that Work for Everyone consultation … asks how we can create more great school places in more parts of the country – including selective places for local areas that want them … No changes to legislation are required for these purposes and therefore we do not require wider education legislation in this session to make progress on our ambitious education agenda.”

The Government has a problem in needing to create nearly 600,000 secondary school places over the next 10 years. However, the implication of the Ministerial statement is that the Government has received legal advice enabling the creation of selective places, possibly only in Academies, without recourse to legislation in this session of Parliament. It would be interesting to see the advice the Government has received which allows Academies (apart from those that were former maintained grammar schools) to select on grounds of ability. The Academies Act requires such schools to provide “education for pupils of different abilities”, which is the legal basis of requiring schools to admit pupils of all abilities. Does the Government now have a different interpretation of the law?

Conclusion

The Ministerial statement

  • Faces up to the inevitable that there is not sufficient time to get initial legislation through Parliament in the 2016-17 Parliamentary session to begin ‘academisation for all’
  • Probably recognises the massive legislative and political task involved in ‘academisation for all’ (but without system wide enforcement);
  • Does not say, as the Guardian What does the dropping of the education bill mean? (29 October 2016) claims, that the Bill has been “quietly ditched … after some oblique remarks” and the “non-announcement does kill off the government’s stated determination to convert all schools into academies, even without a time frame”.

Plans for some selective education continue in this Parliamentary session continue, and can be introduced without immediate legislation (although the earliest a new selective place could be created is September 2018).

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