The House of Commons Library has published a briefing paper: Every School an Academy: The White Paper Proposals. It’s a useful summary of the legal and policy background to the proposal that every school will be an academy by 2022. There’s also a section on the reactions to the proposal and concerns raised. Read more »
In all of the excitement about the proposals in the White Paper for all schools to become academies, there has been little discussion about the Guidance for local authorities and RSCs on Schools causing concern – Intervening in failing, underperforming and coasting schools. Alongside this guidance, the Government has published its response to the consultation exercise, which includes a useful summary of the amendments that the Government made to the Bill during its Parliamentary passage. Read more »
The Education and Adoption Bill was presented to Parliament on 3 June 2015. The proposed legislation would make the following changes to education law in England and Wales.No date has been announced yet for the second reading.
The circumstances in which the Secretary of State can intervene in a maintained school
The Bill would provide for intervention in maintained coasting schools (clause 1). Note that there is no definition on the face of the Bill of a coasting school, save that the school has been notified that the Secretary of State considers it to be a coasting school. There would be a power for the Secretary of State to include a definition in regulations. There has been much media coverage of this proposal e.g. in the Guardian here and here, the BBC here and here, and the Daily Mail here.
The Bill also would enable the Secretary of State (as well as the local authority) to give a warning notice to a maintained school about performance standards, a breakdown in governance or safety under section 60 of the Education and Inspections Act 2006 (clause 2). A warning from the Secretary of State would trump any previous warning notice given by the local authority and prevent the local authority from giving a warning notice.
Governing bodies would no longer have the right to make representations to the Chief Inspector about a warning notice given under section 60 of the Education and Inspections Act 2006 (clause 2). Similarly, governing bodies would not have the right to make representations to the local authority about a warning notice about teachers’ pay and conditions under section 60A of the Education and Inspections Act 2006 (clause 3).
Types of intervention
The Bill would enable the Secretary of State (as well as the local authority) to require a maintained school that is eligible for intervention (except in relation to teachers’ pay and conditions) to contract/arrange to receive advice from a specified person, to collaborate with another school or further education body, or to take steps to join/create a federation (clause 4).
Where a local authority was appointing interim executive members of a governing body, the Bill would enable the Secretary of State to direct a local authority about who to appoint as interim executive members, how many to appoint, their terms and conditions, and termination of appointments (clause 5).
There would be provision about the inter-action of the various Secretary of State and local authority interventions (clause 6).
Importantly, the Bill would amend the Academies Act 2020 to require the Secretary of State to make an academy order if a maintained school was eligible for intervention by virtue of section 61 or 62 of the Education and Inspections Act 2006 (schools requiring significant improvement or schools requiring special measures) (clause 7) – see media coverage in the Telegraph, Guardian and BBC.
The requirement to consult before academy conversion would be limited by the Bill. It would provide for the governing body (and not the proposed sponsor) to consult about whether an academy conversion should take place before a school is converted into an academy. However there would be no requirement for consultation about whether an academy conversion should take place where the Secretary of State was required to make the academy order by virtue of clause 7 (clause 8). Instead, the Secretary of State would have to consult the trustees, the person who appointed the foundation governors and any applicable appropriate religious body about the identity of the sponsor (clause 9).
Where there was an academy order, the Bill would require the governing body and local authority to take all reasonable steps to facilitate the conversion of the school into an academy and to facilitate the making of academy arrangements with any specified person (clause 10). The Secretary of State would have the power to direct the governing body and local authority to take specified steps to facilitate conversion (clause 11).
Finally, the Bill would enable the Secretary of State to revoke an academy order (clause 12).
One of the principal planks of the Academy schools programme is that Academies are ‘independent’ schools. The Coalition government’s aim was concisely expressed in ‘The Importance of Teaching’, the white paper which led to the Education Act 2011: “We want every school to be able to shape its own character, frame its own ethos and develop its own specialisms, free of either central or local bureaucratic constraint.”
The School Behaviour (Determination and Publicising of Measures in Academies) Regulations 2012 (SI 2012/619) could be seen as just such a constraint however.
In order to understand what they are about it is necessary to refer to section 550ZA Education Act 1996 which, as everyone knows, was inserted into that Act by section 242 Apprenticeship, Skills, Children and Learning Act 2009 and amended by section 2 Education Act 2011. Section 550ZA gives members of staff the power to search pupils for ‘prohibited items’ such as knives or drugs. One of the amendments introduced by the Education Act 2011 provides that ‘the school rules’ can identify ‘prohibited items’ beyond those prescribed by the statute. Mobile phones and ipods are perhaps obvious candidates.
What though, is meant by ‘the school rules’? In the nature of modern legislation this cannot be left to chance, or common sense. In the case of maintained schools they are “measures determined and publicised by the head teacher under section 89 of the Education and Inspections Act 2006.” What, though of Academy schools? Surely they can set their own rules without ‘bureaucratic’ interference?
Enter the School Behaviour (Determination and Publicising of Measures in Academies) Regulations 2012. These do not say what the rules should contain, but prescribe the process which the principal of the Academy must follow in setting the rules. So by regulation 2 the principal must consult pupils, parents, staff and the proprietor of the Academy before making any such rules. She must also have regard to any guidance issued by the Academy proprietor. By regulation 3 she must make them ‘generally known’ among parents and pupils and must publicise them ‘in the form of a written document’ and take steps to bring them to the attention of pupils, parents and staff ‘at least once in every school year’.
Surely this was not what was intended by freedom from bureaucratic constraint?
Eagle-eyed readers will doubtless have spotted that the Education Bill is now the Education Act. It received Royal Assent yesterday, 15th November 2011. Practitioners will no doubt warmly welcome a further 83 sections and 18 schedules of education legislation.
How much of it is already in force, and when the rest will come into force, is determined by section 82, to which readers should direct their attention. One provision which came into force yesterday is section 58, the late amendment designed to tidy up the confusion over local authorities’ continuing PFI payments in respect of Academies (see Clive Sheldon’s earlier post on the subject here).
The DfE has a webpage on the Act and supporting documents (including, for those who are interested in these things, the Equality Impact Assessment) here, and you can read and download a pdf copy of the Act from the legislation.gov.uk website here.
One of the more difficult legal problems surrounding the creation of an academy relates to the transfer of land. Schedule 1 to the Academies Act 2010 gives the Secretary of State a wide power to “make a scheme in relation to land” where certain conditions are met – being in short that the local authority owned the land, used it for a maintained school but is about to cease doing so. But what information does a local authority need to provide to the Secretary of State so as to ensure that all the loose ends (of which there are often many in real property law) are sewn up when the scheme is made?
That is the purpose of The Academies (Land Transfer Schemes) Regulations 2011 which are currently being consulted upon by the DfE in draft. They will require local authorities to provide the Secretary of State with information and documents – such as title documents, the register entry and plan (if the land is registered), the title deeds (if the land is unregistered) and so forth – when the Secretary of State asks for them.
The consultation will run until 18th January 2012, and local authorities (who are the only consultees) have until then to respond. You can read the brief consultation documents and the draft regulations on the DfE website.
There has recently been a degree of confusion surrounding the role of local authorities vis a vis PFI contractors when a maintained school becomes an academy (see Holly Stout’s post in September here). The Department for Education has therefore published an opinion it has obtained from leading counsel on the issue. You can view both the instructions and the opinion on the DfE’s website and read an article about the issue on the website of the Local Government Lawyer.
Michael Gove has made a statement today covering a number of education funding topics. There are various decisions, one ‘minded to’ decision and three consultation exercises.
First, the decisions. On schools capital, there will be £500 million to help local authorities provide extra school places to meet the extra pressures caused by increased birth rates. It is announced that there will also be a new (privately financed) school rebuilding programme, targeting those schools in the worst condition; applications can be submitted in October. School building regulations will be pared down significantly with the intention of cutting both costs and red tape. The Government has said that it will carry out a condition survey of all school buildings so that funding can be better targeted and that it will also improve the design of schools to achieve better buildings and better value.
The ‘almost a decision’ is that “The Government is minded not to fund the [Building Schools for the Future] projects which were the subject of a judicial review earlier this year, subject to further representations from the authorities involved“.
The three consultation exercises are on:
1. The recommendations of Sebastian James’s review on school building – the recommendations will be broadly accepted subject to consultation on the details and implementation;
2. Proposals for a new, fairer and more transparent school funding system – the current funding scheme for maintained schools will continue in 2012-13; and
3. On LACSEG academy funding – the webpage for the consultation paper states that “The Secretary of State for Education, in consultation with the Secretary of State for Communities and Local Government, has agreed to reconsider the appropriate reduction to local authority funding to be made to reflect the transfer of central services from local authorities to academies and Free Schools. This consideration will apply to the transfers for both the 2011-12 and 2012-13 financial years. We want to ensure that academies and local authorities are funded fairly and we welcome the opportunity to seek views on this reconsideration from local authorities, the Local Government Association and London Councils.”
The accompanying letter to local authorities explains that there will also be an open consultation on the 16-19 funding formula and methodology in the coming months.
More information from the Department for Education today on the progress of the Academies Programme. According to this press release more than one in ten schools is now an Academy. There are now 407 Academies, 203 set up by the last government, and 204 set up by the Coalition since September 2010 (the figures may be slightly misleading as it is not clear how many of the 204 were already in the pipeline to become Academies before the Coalition programme began). 46 schools are opening as Academies in this week alone. As at 5th January 2011 there were 390 applications to become Academies (including those which have already opened) and 248 Academy orders have been signed.371 secondary schools are now academies, which is 11% of the total.
It is also possible to read case studies on the DfE website of schools which have recently converted to Academy status. Perhaps needless to say, these are all very positive about the benefits of converting to Academy status, but this BBC news report contains some less complimentary views. The teachers’ unions are, generally speaking, hostile to the idea, with the deputy general secretary of the ATL union saying that the “academies policy leads to anarchy, breaking up the local education system, preventing sensible and efficient planning, and opening up free-floating schools to private firms with profit motives.“
S 12(4) of the Academies Act 2010 amends the Charities Act 1993 by adding qualifying academy proprietors to the list of exempt charities in Schedule 2 to the 1993 Act. S 12(4) was due to come into effect on 1st January 2011 – see art 4 of the Academies Act 2010 (Commencement and Transitional Provisions) Order 2010. However, this provision of the 2010 Order was revoked by the Academies Act 2010 (Commencement and Transitional Provisions) (Amendment) Order 2010 on 22nd December 2010. The explanatory note to the Amendment Order says:-
“This Order amends Schedule 3 to the Academies Act 2010 (Commencement and Transitional Provisions) Order 2010 by revoking the commencement of section 12(4), due to come into force on 1st January 2011.
Section 12(4) amends Schedule 2 to the Charities Act 1993 (exempt charities) to add a qualifying Academy proprietor to the list of exempt charities. An exempt charity does not need to register with the Charity Commission and is regulated, in the first instance, by its principal regulator (appointed by regulations made under section 13(4) Charities Act 2006). The Order has the effect of preserving the Charity Commission’s power to act for the protection of academy proprietors as charities under section 18 of the Charities Act 1993. At the point at which a principal regulator is appointed for Academy proprietors, section 12(4) will be brought into force.”
Peter Oldham QC