The development of the law of education in England – an unacceptable concentration of power

Graham Clayton – formerly Senior Solicitor,  National Union of Teachers

A Cinderella subject

The law of education is not widely practised by lawyers nor is it widely studied as part of any degree or training course in law.  The number of those who do work in education law has increased in recent years,  but most of the practising lawyers are rights claimant solicitors or barristers, or advisers to education institution employers.  Few if any of them will have studied education law academically.  There are still very few specialists for  whom the law of education is their main area of work and a subject of expert commentary.

Much of the proposed legislation which appears before Parliament deals with areas of law in which there are a large number of practitioners, academics and students very eager to comment in fine detail on the wisdom or otherwise of the proposed measures. That has never been true of education law.  Outside Parliament, proposed new education law receives very little scrutiny by lawyers, and those few who do give it careful  scrutiny include lawyers who are either directly employed by unions operating in the education sector or lawyers who are frequently instructed by those unions.  All too often, supporters of new education law measures have considered criticisms from these lawyers in some way politically ‘tainted’ despite their experience and developed expertise.

Nor in fact do new education laws receive all that much scrutiny within Parliament. The time allocated to the Bill Committees considering new primary education legislation has at no time in the last 25 years been sufficient to do justice to the complexity and importance of  the legislation proposed. Further, since a very large amount of this primary legislation has been ‘empowering’. that is it has authorised the making of further  and even more detailed law by regulation and order, a vast quantity of new education law has been made with very little scrutiny at all by those who might have doubts about its wisdom and good sense.

The torrent of new laws

None of this, however,  has deterred governments from making education law.  Prior to the Education Reform Act 1988, the published volume of ‘The Law of Education’ was a bound volume of around 3 cms thickness. It contained all the relevant primary and secondary legislation, important case summaries and all the Department of Education’s guidance circulars.

The Law of Education is now six regularly updated loose-leaf volumes plus an index.  Assuming that each section of an item of primary education legislation contains five rules, and that each clause of secondary legislation contains a similar number, then together with all the directions that are now given effect  in DfE ‘statutory’ guidance, it is possible to calculate that the public education service in England and Wales is now governed by a total of, at the very least, 30,000 rules and that is without  taking account of the fact that many of the rules differ as between England and Wales.

This astonishing number reveals a culture in the approach of government  towards education law.  The Government of 1988 which claimed to be rolling back the frontiers of the state unleashed in education a frenzy of legal rule-making which has continued unabated  to the present day.  As each of the parties in government claimed to have the answer to the country’s education problems, their choice was to drive their own agenda forward by making more and more legal rules. Not long after 1988, those of us who were working with the law in education came to feel that the civil servants had quite forgotten how to direct the nation’s public education system in any other way. The constant rotation of senior civil servants around government departments meant that the new people simply adopted the practices of their predecessors as the only way of maintaining some semblance of control over an increasingly labyrinthine structure. At the NUT, we used to joke and fantasise that within Sanctuary Buildings, there must be a floor at which the lift did not stop where the staff were engaged solely on the production of regulations and orders and not allowed to leave in the evening without having fulfilled their day’s quota.

To be fair, the Parliamentary draftspersons, whose responsibility it is to express all these rules in appropriate legal language, have done a remarkable job in retaining consistency , but despite their best efforts, there are inevitably flaws. Most obvious are the problems surrounding the ill thought through arrangement which first appeared in 1988 and which has governing bodies exercising the powers of employers of school staff members even though in the majority of cases, they have no legal contractual relationship with them.  Twenty four years on, there remain major legal problems with this arrangement which have never been resolved.

The causes of the problem are quite perverse. It is non-lawyers who generate this huge volume of law lacking an understanding of what law is really for and how it should work. Lawyers who advise the DfE may despair at what they see but they have little influence to do anything about it.

Education law in disrepute

With so many rules governing a system of such complexity, there is of course widespread non-compliance.  Many thousands of the education rules place obligations on school governing bodies made up of people from the local school community  who meet together a few times each term to make decisions on school business. There is little chance that they can even know what the rules are let alone ensure compliance.  Already overburdened head teachers  have scarcely any better chance of ensuring full compliance.

But of course these are rules many of which have no practical enforcement system behind them anyway. Despite having the force of law, many of the rules are no more than items on a wish list to which OFSTED inspectors may from time to time draw attention.   To a lawyer it is an appalling misuse of the law making process that laws should be made which cannot be practically enforced as law.  Again however  this  reveals a belief  within the culture of the Department for Education that policy must be translated into law regardless  of how it may impact. Governments claim credit for having enacted the rules with relatively little concern for whether the rules work or even if they have actually ever really taken effect.

For me, the unwieldiness of this highly regulated system was displayed by the Department itself by its constant  habit of referring to what ‘schools’ were obliged to do and what they must not do. ‘Schools’ have no legal personality. A school is legally an institution for providing primary or secondary education.  It has no transitive capacity. It cannot act.  Legal duties could only ever be discharged by people or groups of people with some kind of legal character – generally the governing body or the head teacher. Reference to the duty of a school is often more confusing than enlightening  because the reader cannot tell who exactly is required to act.  It is very tempting to think that this device is so commonly used because the authors of the guidance either do not know upon whom the duty falls or are fearful of saying that it is the school governing body because  to do so would terrify governors about the real extent of their legal responsibility.

The deregulation myth

We have of course now entered an era of supposed ‘deregulation’ and it would be encouraging to think that this might mean restoring powers and authority to professionals and community decision makers. Of course it doesn’t – for the simple reason that having propagandised on education as a political contest for so long, clearly no party in government can afford failure in education and conventional thinking dictates that the only way to prevent  it is to legislate.  ‘Deregulation’ clearly does not mean the surrender of power.  In all probability, it is only another word for privatisation.

The drift of power

So we have a culture of excessive rule-making. The rules are generated by people caught up in that culture without real understanding of what law is for and how it should work. Some of the law is incoherent and unenforceable.  Much of it is unknown to those who have responsibility to put it into effect. It is poorly explained to them and there is widespread non-compliance. There are few lawyers with the expertise to impose restraint on the excess and such lawyer as there are with the required experience are generally ignored because of their backgrounds.

This is very, very unhealthy. The various factors that have come to determine how education law is made have given alarming power and authority to the Secretary of State for Education as Michael Gove’s tenure of the office has so openly revealed.

The potential  for excessive power to reside with the Secretary of State was apparent at the outset of the new wave of education legislation in 1987. The legislation then enacted to dispose of negotiating structures in relation to teachers pay, duties and working time created in its place a review body which teachers were told could be relied up to act fairly independent of government. The legislation however allowed  the Secretary of State to dictate the remit of the review body and gave him or her a power to override  its recommendations.

As the ILO has since twice found, the measure was clearly in flagrant breach of the UK’s obligations to comply with International Labour Office conventions to which the UK is signatory,  but governments of both major parties  have ignored the ILO’s findings knowing that they are unaccompanied by any serious penalty .  Kenneth Baker did at least have the courage to admit in his autobiography that his measures to override by legislation the basic principles of contract law in the formation of teachers’ contracts of employment were heady stuff which he himself approached with some caution.  None of his successors have been so modest and cautious in their approach to the legal principles which underpin democratic freedoms.

Before long the Review Body’s independence had been whittled away to the point now that the Chancellor of the Exchequer is happy to declare that public sector workers including teachers will suffer a pay freeze, or will have their pay increases capped, as if the statutory powers of the Review Body and the statutory obligations of the  government  not to decide anything without first hearing from the Review Body simply did not exist.

In 2000, the then Secretary of State for Education, David Blunkett, unsuccessfully defended legal action by the NUT over his claim unilaterally to set the criteria for progression by teachers through the threshold  to higher pay levels which he had introduced.  In court, when asked from what source the Secretary of State might have acquired this power, his counsel  answered with some surprised uncertainty that it came from the Queen, a claim on the royal prerogative over Parliament which many thought had been disposed of as long ago as 1688. Up to that point , the Secretary of State’s advisers appeared to believe that the NUT’s challenge was an ill-considered irritant that they could not possibly lose.   David Blunkett’s embarrassing defeat , which  reportedly caused him some very justified outrage directed at his advisers, illustrated the arrogance  of some in government in their approach to the law.

Unfortunately despite the NUT’s efforts to drive the point home,  the shock felt by government advisers was short-lived.  Instead of accepting the need to allow Parliamentary scrutiny of proposed criteria for increasing teachers’ pay, the government  brought forward amending legislation enabling the Secretary of State unilaterally to make rules which he considered ‘incidental ‘ to the main thrust of  the measure he had persuaded the Review Body to accept. This was a very clear illustration of the use of Parliament to consolidate the drift of power over the education service to the centre of government.

Propaganda and deception

Government  has also developed the habit of describing  their ‘new policy’ schools in a deceptive propagandist way which bears no relationship to the laws under which they operate. The Education Acts know nothing of ‘Trust’ schools. They are, in legal terms, foundation schools constituted under arrangements described in statutory terms in the Education Act 1944 and only modified by recent legislation.  All foundations supporting schools were ‘trusts’ in the legal sense in that they owned property for someone else’s benefit. Is it then just cynical to suggest that the phrase ‘trust school’ was used to  give the impression that this is a school that could be trusted.

Similarly with ‘free schools’.  Again this is not legal terminology, but has been adopted by government behaving like an advertising agency.  From what exactly are these schools ‘free’ ?  The word means nothing of real substance, but  it has popular appeal, and few question any more that government presents its education policies subliminally to attract favourable reactions.  The possession of power to act in this way without challenge is dangerous.

Replacing statute with contract

The development of education law  after  1988 led in 1996 to a quite remarkable new development which has further increased the power of the Secretary of State for Education. It is generally supposed that  amongst the 30,000 plus rules governing the public education service are a lot of rules and regulations approved by Parliament for the operation of the controversial Academies, and now ‘Free Schools’  structure. There are not. Academies were first introduced by the Education Act 1996 with one single section in primary legislation.

The legal device under which Academies have been introduced has a background in the constitutional theory of our law making processes.   That theory leans towards the idea that legislation of the kind we have in the form of the Education Acts is made to ensure democratic accountability for the services provided by the state.  Such complex legislation, it is argued by the constitutional traditionalists, has no place in the regulation of undertakings which are independent of government and it is certainly not to be used to shackle the private sector.

The volume and extent of company, consumer and much other financial regulatory law clearly place the purity of this approach  in question,  but for governments wishing to speed up a process of major structural reform in education, all this has been very convenient.  So instead of legislating extensively to create ‘statute’ law to govern the operation of Academies and now ‘Free’ schools, all Parliament has done is give the Secretary of State power to enter into agreements with people who undertake to provide schools  in exchange for state funding.  In short statute law is being overtaken by contract law as the legal basis for providing educational institutions paid for out of public funds.

That might well look like a bit of legerdemain of fascination to lawyers who need to get out more and  quickly to be passed over by educationalists  preoccupied with important and significant concerns.

It  isn’t. I argue that it is a profoundly  alarming development for the public  education service  which Michael Gove has taken to new heights of concern.

The difference is this.

Statute law is made in Parliament by the elected representatives of the whole electorate. There are of course serious problems for democracy in the drift of power from the legislature to the Executive and in the growing volume and complexity of legislation such as to prevent proper and detailed scrutiny in Parliament.  However  these are problems which should be resolved in ways which seek to preserve democratic accountability, rather than adopt devices which treat Parliament as increasingly irrelevant.  Though we may well be experiencing problems of democratic deficiency in the Parliamentary process, it remains the place where law making can be scrutinised on behalf of the people.

Contract law is private to the parties to the contract. Agreements between the Government and the sponsors of education establishments are enforceable in contract law at the initiative of the parties not at the initiative of the people.  The provision and operation of an Academy is the responsibility of a contracting party chosen by the government , not by an accountable body elected by the people.

Elective dictatorship in education authorised by law

This then is the legal device now being used by Michael Gove and being extended to exercise legal powers for the direction of the public education service which amount, quite frankly, to powers of elective dictatorship.  Mr. Gove  effectively has the legal power to do as he pleases  – and there is no shortage of  comment attributed to him showing that he feels little restraint. He seems disposed to translate his own personal experience of education into education  policy for the whole country. He seems to want to apply public school models of teaching and discipline to inner city comprehensives in problem areas  oblivious to the lack of evidence that teaching quality at public schools is better than nor even as good as that in those same comprehensive schools.  Indeed he appears now to be the embodiment of the unhappy reality of our times that opinion is valued above evidence.

It was not a Labour government  which began  the process of excessive rule making for the education service, but it was of course a Labour government which encouraged the process and developed it.  Former Labour Education Ministers will say, and not without some justification  that it was with good intentions, but  a monster has been created. The centralisation of legal power which we have is unhealthy in any government.

Restored devolution of power

In circumstances such as these, the consideration of radical options is justified.  Since the mid 1980s, politicians have been accusing their opponents of failure in education. Despite all the experimentation, despite all the regulation and direction, members of the New Visions for Education Group, very senior figures in education receive without astonishment reports that England’s education service is considered a laughing stock around the world. Professional practitioners  in the education service frequently describe how they are incentivised not by commitment but by fear, whilst some commentators apparently favoured by government suggest that it is a good thing that their managers cause them to be in fear. Many practitioners conspire to work as they believe they should whilst presenting a veneer of compliance with the rules imposed on them. It’s not easy to find a professional practitioner who actually agrees with the entirety of government demands. Government is widely seen as the  friend of the consumer of education who is in turn a natural critic of the provider.  Michael Gove appears to be the champion of those who believe they can run the education service because they all went to school themselves.

If therefore none of the policies have actually delivered the promised  ‘cures’ it is sensible to argue that some features  which have been consistent in the policies of all the governments which have promised cures are defective. Those features I believe are excessive regulation and alongside it , the repeated attempts to find effective managers and regulators of schools.

The reforms of the 1980s were based on a belief that local government management  of schools was inefficient and failing. I argue that whilst there may have been evidence that local authority structures  as they impacted on education might have been in serious need of reform to meet the  needs of an increasingly complex economy for both academic and skills achievement,  the  belief that  the solution lay in separating  education from local democratically accountable  authorities was only doctrinaire.  In attempting to make virtue of the education reforms begun by its Conservative predecessors for the benefit of economically disadvantaged students , the  Labour Governments of the 1990s and 2000s in my view allowed a Conservative agenda to prevail.  The alienation from Labour of a  teaching profession which ought to have been its natural ally supports my case.

Trusting Communities

Labour may still fear that the abandonment of its policy of fragmenting the management of the education service will be a vote loser.  If so then, in my view,  Labour is still allowing itself as a party to  be led by what is essentially a Tory agenda, showing no confidence in its ability to demonstrate to the electorate that it can be a supporter and promoter of genuine community involvement in the management and delivery of  a public education service. John Bangs’ observation (with which I agree) that our schools are at the moral heart of our communities  was doubted but only on the grounds that  they are less so than they should be. The idea is certainly not strange to Labour’s way of thinking.

John Bangs also recalled that in 2008 the NUT attempted by way of an amendment to the Education and Skills Bill (tabled  incidentally by the Liberal Democrats) to open debate on a modernised form of School Boards.  I imagine that, as I do,  John welcomes the interest shown in the idea by other members of the New Visions Group.

Clearly members of the New Visions Group are deeply concerned about the direction being taken by the Coalition Government and by Michael  Gove in particular, and they look to Labour to offer  real alternatives.  Fiona Millar has rightly discouraged the Group against positioning itself as a critic of Labour. The Group is urged rather to try to persuade Stephen Twigg that there is no need for the party to draft towards a modified  and softened version of free schools to secure continuing public support.

I agree. There is obviously a lack of clarity in Labour’s position  as the party uses its time in opposition to develop policy carefully and gradually.   However if the party is prepared to keep its options open on ‘free’ schools,  it can be assumed that  Labour is well aware that community involvement in schools is attractive to voters.   If, in turn, the members of the New Visions Group  hold to the values of local democratic accountability in education, the common ground should be to re-engage in a debate about School Boards.

The School Boards solution

I argue  that School Boards present a far better opportunity for genuine community involvement in the running of schools than ‘free’ schools.  As I believe the ‘local management’ experiment clearly showed, the drift of power  on school governing bodies is always towards community activists  who are willing to volunteer but who do not necessarily represent the aspirations of the community as a whole.  The notion of an education service being run by an army of  volunteers with time to spare meeting a couple of times a term to  discharge  very onerous legal responsibilities  was always rather absurd, and has never actually happened as the law anticipates. The enlargement of the idea  into the ‘free school ‘ concept is no less populist and no more practical.

My experience, limited though it may be in relevant areas,  is that democratic accountability of elected representatives within  communities is perfectly satisfactory to most people who can then get on with their own busy lives making their contributions in other ways.  The one thing that has never been wrong with local government is local democratic accountability and getting rid of it in the drive for greater efficiency in the running of our schools  was surely a classic case of throwing the baby out with the bathwater.

School Boards can, I believe, restore that accountability with a clear focus on education in the community.

Graham Clayton

8 December 2011