COHERENT STRUCTURES AND GOVERNANCE FOR EDUCATION: economy, accountability and improving educational performance.

This statement has been endorsed by the Group and was published to the Press and Media on 27 July 2012. Click here for the Press Release

This is the first public contribution made by the Group to the debate on how the public education service in England should be organised and governed. There is already critical comment over the absence from this framework of coherent, area based, structural planning with statutory accountability to local electorates. The New Visions for Education Group has a very deep concern about this trend of government policy, and has a significant contribution to make to the debate. This statement does not however purport to express fully the views of the Group’s members. The Group will have more to say on wider aspects of this statement, both as individual commentators and collectively, as the debate progresses.

Introduction

1. We believe that there is a great need for a more rational and coherent approach to the organisation and governance of education. We recognise that the progressive devolution of power to schools since 1988 has been a force for educational improvement and is firmly here to stay. Nevertheless we do not believe that the current structure within which that autonomy is exercised is fit for purpose. It cannot deliver what has been promised. Partly because it is, in fact, over-centralised. For strategic purposes, there are some important complex matters that neither individual institutions nor central government, can effectively deliberate and resolve.

2. The true test of a good education structure is whether it ensures quality education for all children and young people. It is not fit for purpose if it fails to do so. Children and parents collectively need champions of their interests over and above those of any one school. They cannot count on a remote central government as their champion. They must have some more local authoritative body to plan and deliver a well-co-ordinated and well balanced education service in every area of the country.

3. The Secretary of State is committed to academy conversion and the creation of new institutions in response to the desires of individual or group promoters. He seeks to introduce a market under the banner of increasing ‘school autonomy’ via creation of publicly funded private schools. The structure is flawed and the market that has been created is actually a ‘monopsony’, in which only one buyer faces many sellers, under the absolute control of the Secretary of State.

4. Undiminished dictation from the centre limits the real autonomy of schools and weakens the position of individual parents and children. The removal of schools from a clear statutory legal framework describing the rights and responsibilities of pupils, parents and schools, and the suppression of information behind confidential commercial contracts, seriously weakens accountability. It leaves the ordinary taxpayer out of the equation altogether.

5. We support the proposition that there should be a diversity of providers of educational services, including autonomous Schools and other institutions. There is merit, too, in giving a higher level of professional autonomy to those who work in these institutions; matched by a more radical reduction of central government prescription. But none of this requires a diversity of structures. The desirability of professional autonomy should not be a pretext to deny that any publicly financed institution providing essential public services should also have a public legal status.

6. Institutional autonomy is not in conflict with strategic organisation and planning. Properly understood, institutional autonomy is the freedom for professional educators to pursue excellence and maximise the achievement of learners within common, and nationally agreed, objectives and boundaries. Autonomy in this sense should be the accepted norm as the basis for quality in education. Greater autonomy should not be granted only as a reward for perceived success. All institutions should have the maximum level of autonomy consistent with the wider public interest. Intervention which curtails professional autonomy should only be used when necessary to rectify objectively identified inadequacies in performance.

7. The public interest, particularly in education, is diverse. It can never successfully be mediated entirely from a single central point of authority. It is necessary to have appropriate structures in place at institutional, local and/or sub-regional level. We do not attempt to prescribe in detail the features of these structures. However any effective set of structures that are fit for purpose would need to meet the following criteria:

  • The powers and responsibilities of each body should be appropriate to its competence and the level at which it operates;
  • The wider public interest must be recognised through some form of popular electoral process – whether by direct election or nomination via other democratic structures
  • Decision making bodies must have access to relevant professional and technical advice and support – either from permanently employed officials or from external specialist agencies.
  • They must comprehend the fact that those who confront the greatest barriers in securing a full and successful education are most likely to be relatively disadvantaged in a more market-driven or fragmented education system.

Although there is no optimal size for bodies or agencies of this nature; they must be sufficiently ‘local’ to be responsive to a natural community (or groups of communities) but large enough to have the capacity to discharge their given functions cost effectively.

8. Services, training provision, health and housing – should be included, where relevant, in the oversight and consultative functions of governance arrangements.

The Role and Functions of Governance

9. In relation to public services ‘Governance’ is not the same as operational management of ‘provision.’ Governance involves making strategic policy decisions at the appropriate level to secure the proper provision of services. Current policy appears to confuse them as it tends towards a structure in which there is only national government and institutional governance. That is, in our view, a serious structural flaw. There is a range of necessary services and governance/policy decisions which, for one reason or another, cannot be delivered/decided at institutional level but which are not easily or effectively provided or determined nationally.

Service Provision

10. A number of education related services require a critical mass of expertise beyond the capacity of a single school or other educational institution, especially if value for money is an important objective. Examples include: more complex SEN services (both diagnostic and support); more advanced sports and arts provision; and, dedicated centres for alternative provision.

11. In current policy, perceived inadequacies in the public education service are attributed to a bureaucratic and inefficient public sector. It is argued that the remedy is greater involvement of the private sector, with an entrepreneurial spirit and motivated by the opportunity to profit. Rather than tackle perceived weaknesses by enhancing technical and democratic accountability, the strategy is instead to rely on competitive forces to raise standards. But there is no evidence to support this analysis. Private and community voluntarism can contribute valuable energy and enterprise to public services; but the democratic accountability baby should not be thrown out with the bureaucratic bathwater.

12. It is true that many of the services required by educational institutions, but not internally available to them can be organised by specialist agencies and ‘bought-in’ by institutional budget holders on behalf of the pupils/students. Whether such an approach is always the most efficient and cost effective way of delivering a service is open to question. But, more importantly, when there is a public guarantee that services will be available, there must be an accountable public agency to act as the commissioner and, in some instances, provider of last resort.

13. If a public agency must exist as a ‘last resort’ it will provide a better service and value for money if it has developed expertise and capacity via routine delivery of relevant functions. Whilst there is no intrinsic need for such services to be provided or commissioned by a democratically established authority, neither should such a body which may exist for other reasons be prevented from doing so when appropriate.

Governance

14. An element of supra-institutional governance is properly required where certain kinds policy or resource allocation decisions need to be made. Quintessentially this is necessary to guarantee the rights of parents and Children, and the public at large, to expect that the educational offer is of the highest possible quality. The need for governance at this level will arise when:

  • There is a potential conflict between the institutional interest of the provider and that of the consumer – i.e. parents and children.
  • There is a need for longer term planning and oversight to meet the continuing needs of a geographical area.
  • The outcome of decisions will affect a community beyond those families currently accessing the particular institution/service.
  • The equitable allocation of scarce public funding between institutions is at stake.

In all such cases a combination of technical expertise and democratic legitimacy is necessary to achieve sound decision making. Whilst in theory these matters could be decided by central government; experience has repeatedly shown that the remoteness of central bureaucracies leads to slow and poor decision making.

15. Responsibilities which fall into this category include:

  • Provision of independent information, advice and advocacy on behalf of parents and children.
  • Predicting, and planning for, demographic change including:
  •  Securing sufficient provision to ensure that every child has a school place;
     Managing the impact of declining or shifting population.

  • Determining the location of new institutions and, where necessary, expansion, contraction or closure of existing provision.
  • Monitoring of school admissions and ensuring that all local institutions comply with the School Admissions Code.
  • Home to school transport policy and implementation.
  • The acquisition/disposal of land and allocation of capital resources for significant planned development as well as responding to emergencies (e.g. major fires or natural disasters).
  • A broader ‘scrutiny’ role; recognising that where a complex set of services are delivered by a diverse array of providers, a public body with the capacity to take an overview can provide important checks and balances within the system.

16. There is then a further set of responsibilities which can be identified as ill-suited to being left entirely to individual institutions, or which are related to education but not within the core function of all schools. Although they do not necessarily require high stakes policy decisions; they are both ‘resource hungry’ and sensitive to local conditions and might therefore sensibly be secured (if not directly provided by) a local strategic body created to discharge essential functions at a local/sub-regional level.
These might include:

  • Working with schools (and groups of schools/school providers) on school improvement, drawing up action plans and monitoring implementation where schools are identified as under-performing. The particular merit of a ‘localist’ function here is that light touch early support can anticipate and forestall larger failures that would otherwise result in major intervention. [A point recently made by HMCI before the Education Select Committee – see minutes of oral evidence 29 February 2012]
  • Special Educational Needs, both diagnosis and provision in more complex and costly cases.
  • Monitoring pupil exclusions and overseeing (if not arranging) independent appeals and brokering local agreements on hard to place pupils.
  • Early Years provision and Youth Centres.
  • Services for ‘looked after’ children
  • Services for 14-19 year-olds:
  •  careers advice;
     work experience liaison & employer engagement;
     co-ordination across and between schools and colleges for 16+ courses;
     Support and development strategies relating to progression rates and access to higher education;
     The continuing education (full or part-time, irrespective of locus) of all young people, whether or not enrolled in schools and colleges.

Wider children’s services also fall into this category. These currently remain the responsibility of Local Authorities and it would clearly be necessary for there to be continued regular and systemic liaison with any local/sub-regional body/bodies set up to discharge functions in education.

17. Such bodies could also offer school support services where it is possible to demonstrate value for money relating to economies of scale and effectiveness. It is not necessary to enumerate such services because they are neither essential functions, nor central to the case for creating local/sub-regional bodies. The overriding principle is that functions which individual schools are unable by virtue of their systemic position to fulfil satisfactorily, must be carried out at this level.

18. It follows from this that there would need to be a coherent network of bodies with contiguous borders and the legal duty (backed by the necessary capacity and authority) to discharge key functions in the interest of a geographically defined population. Additionally, services which enhance children’s educational success but which are not, or not fully, provided in schools should be co-ordinated, and, if necessary, commissioned or provided at this level. The provision of further support services should be within the powers, but not the duties, of these bodies to provide at their discretion and subject to individual institutions’ wish to purchase them.

19. The government has in fact already conceded the central logic of our case. By promoting the idea of ‘chains’ of educational institutions, the government has accepted that many of these institutions cannot be fully effective as isolated units.

The Case for a Sound and Stable Legal Framework

20. There is overwhelming evidence that the most important factor in successful education systems is the quality of professional staff. We strongly believe that future progress in school depends on high quality school leadership focused on teaching and learning. But if good leaders are to flourish within the system they need to be challenged as well as supported. The present administration recognised this in the sub-title of its first education White Paper “The Importance of Teaching” and the previous one in the slogan “Standards not Structures”. And yet successive governments have expended time, energy and public money on constant structural changes. Clearly frameworks are necessary but, of themselves, they have a relatively small impact on what goes on in the classroom. Complex, opaque and constantly changing structures militate against ordinary citizens’ ability to navigate the system and bear most heavily on those who are already disadvantaged. Change is intrinsically expensive and potentially disruptive. It therefore makes sense to settle on a set of structural arrangements that are clear, simple and fit for purpose and then direct energy and resources to those aspects of policy –e.g. curriculum and professional quality – that can make a real difference to outcomes.

21. Beyond this general case there are good reasons why the present policy agenda is making the position worse not better. The present government has rightly condemned the ‘over regulation’ it inherited. However the policy response has been to leave most of the pre-existing regulation in place whilst encouraging favoured institutions to ‘opt out’ of it. However this ‘opting out’ is actually a process of ‘opting in’ to central control via a contract with the Secretary of State. This contract (an academy ‘funding agreement’) selectively re-imposes much of the regulation by other means but with less transparency and reduced accountability.

22. For example the School Admissions Code applies by statute to all maintained schools but must be followed by Academies only to the extent required as a condition of their funding agreements. This dual structure increases complexity and uncertainty in the system. If, as has been said by DFE, exemptions are minor and rarely agreed, the duality serves no useful purpose; but if Code exemptions were to become more common the system would become fragmented. The legal ‘commercial confidence’ status of parts of the funding agreements, not to say their general inaccessibility, would also make it difficult for anyone except the Secretary of State to know what set of rules any given school is expected to abide by.

23. If, as seems to be the intention, all schools achieve academy status a legal anomaly will be created. Although education regulations “apply” in a legal sense, only to themaintained sector, they would still have to be retained because academies were originally conceptualised as an adjunct to a larger public sector which they are broadly required to mimic. Thus a body of redundant education regulation that no longer applies directly to any real institution (because no maintained schools would then exist) would have to be maintained as a template for academy contractual compliance.

24. There is an important constitutional reason for adopting a legal framework where public services are delivered by “public bodies”. Parliament confers powers and imposes duties by statute upon public authorities which are themselves creatures of statute. For example, the Education Acts impose duties on school governing bodies (public authorities created by statute). Bodies which are not public authorities, companies, charities, trusts etc may of course be regulated by statute but statute does not describe in detail their rights and duties. The legislation which authorises the Secretary of State to enter into agreements (i.e. contracts) with private organisations to run Academies means that Parliament as “the legislature” has handed over its regulatory role to “the executive” and surrendered its power of scrutiny. The executive in government then has the power to enter into agreements with such private bodies as it chooses on contractual terms, many of which remain confidential because they affect the business interests of the other contracting party. The executive of course does remain nominally accountable to Parliament; but this is otiose after Parliament has authorised the government to do largely as it pleases. Parliament’s continuing accountability to the electorate has been seriously undermined by this process.

25. The proper way to deal with an over-complex regulatory framework is to simplify it; not to invent elaborate mechanisms which appear to allow some institutions to circumvent it. Similarly the antidote to excessive micro-management from the centre is real devolution of power through the system. This has not been achieved by the most recent legislative changes, which have left the present Secretary of State with greater powers of direct intervention than any of his predecessors.

Possible New Structures
National

26. At the national level there is an urgent need for Parliament to re-assert its control over the Executive in the interests of the electorate. At the same time it would be highly desirable to clear away the accretion of legislative and regulatory clutter accumulated by successive legislative activity adding to, amending and partially replacing what has gone before. Transparent democratic accountability and the need to deliver a high quality education system within constrained public finances demand nothing less.

27. That process of consolidation and simplification needs to include setting out clearly the legal status and structural parameters for front line delivery institutions, as well as the powers, duties and geographical jurisdiction of the local/sub-regional agencies and bodies that are required to discharge necessary intermediate functions.

Institutional

28. For schools (and other front line institutions) the direct responsibilities of Head-teachers/Principals for service delivery are generally well understood and equivalent across all types of institution. But ‘governance’ is a different matter. There is a plethora of different types and categories of publicly funded school. They are divided between those that are ‘public bodies’ (all ‘maintained’ schools –community, voluntary and foundation) and those that are not (three kinds of academy and non-maintained special schools). Within each of those two broad categories there are those where the governing body stands alone (e.g. Foundation schools without a ‘foundation’, some converter Academies and some free standing Voluntary Aided schools) and others where there is another legal entity behind the Governing Body with supervisory powers (Church VA & VC schools, Sponsored Academies, Foundation schools with a ‘foundation’ – i.e. ‘Trust schools’- and Community schools). Within those two sub-categories there are significant differences in the permitted composition of governing bodies and the extent of the powers they wield.

29. There is no sensible or logical reason why this should be so. It is partly a result of historical accident; but more recently there seems to have been a tendency for governments to invent new categories of school in an attempt to persuade the electorate that this is a vehicle for improvement. Despite frequent claims, there is no evidence for this – nor is there any logical reason why there should be. All observed improvement can be traced back to changes that could equally well have been effected under a different structure. In reality the new and extended re-categorisation of schools has led to widespread fragmentation and confusion. [By the same token, any attempt to discredit a particular structure on the basis of individual failures is also a fool’s errand. Examples of both success and failure can be found within all types and categories of school.]

30. Multiple categorisations of schools is a diversion from the real issues, and something of an insult to the intelligence to the general public who are assumed to be unable to make choices without having ‘brand’ descriptions to persuade them. A school is quite simply a school. All schools should have their professional autonomy, in the sense described above, under a single coherent structure of professional leadership, management and direction. There will continue to be differences at the institutional level in the ways in which schools are influenced by their local communities. For example we are not advocating the abolition of faith schools. However we do not see this as a cause for multiple categorisation. It is simply a matter of formulating the statutory rules that will apply to certain schools in certain circumstances with a flexibility that allows all ‘supporting agencies’ to maintain their contribution to the maintenance of a healthy and dynamic system.

31. Nor are we suggesting the abolition of school governing bodies and their replacement by professional autonomy on one side and area strategic planning on the other. We do however strongly advocate a rationalisation and a clarification of the role and functions of governing bodies so that they can most effectively make their contribution where it has been shown to be most valuable. The status of governors as hardworking volunteers must be acknowledged as it has not been since 1988. Governing bodies as ‘public bodies’ bear a very large number of the often very complex and technical statutory duties and responsibilities which have been heaped on schools since the Education Reform Act of 1988 first legislated for ‘local management’. However the idea that these duties can actually be discharged by lay volunteers meeting and working in whatever time they might have available is, and always has been, absurd. The problem has escalated as government has legislated to centralise and increase the Secretary of State’s power of direction over maintained schools.

32. Essentially what is needed is a formally constituted body of regulation to ensure that all appropriate interests in the school community are represented and with powers sufficient to enable that body to hold the senior managers of the school to account to its community. As now, parents, staff and members of the wider community need to be represented. Faith school governing bodies would have specified additional powers as would perhaps particular sectional interest groups in particular circumstances; but overall the structure would be unified into a coherent and well understood whole.

33. There is much historical evidence, as well as recent experience, that would suggest that a two tier approach is a more robust structure than all powers being vested in a free-standing Governing Body. There would be a need for a legal framework requiring all schools to have their land and buildings vested in a body with charitable status which may also have nomination rights to the Governing body. But this is largely a technical legal matter and, where there is no pre-existing body that already performs this function, the role could well be filled by an area authority such as we propose in the next section.

34. Stability and coherence and a wider understanding of the common framework could be achieved with minimal disruption. Provided there was sufficient flexibility within the common framework there would be no obstacle for beneficial future innovations to be implemented within it.

Local & Sub-Regional

35. There is currently a live debate about the need for a so called ‘middle tier’ to sit between central government and schools. The implication of a hierarchy in that terminology is unhelpful and it should, we believe, be abandoned before misunderstanding of its meaning distorts this important debate. This section of our paper is, nonetheless, a contribution to the debate currently under that heading.

36. For the reasons articulated above we believe it is a mistake to construe this aspect of the system as either acting on behalf of central government or managing or supervising groups of institutions. Rather it is our contention that there are important discrete functions that cannot, or cannot effectively, be carried out at any other level. Whilst we accept that ‘academy chains’ or other voluntary agencies can provide useful services, it is inappropriate to regard such bodies as capable of adequately fulfilling the necessary ‘governance’ role.

37. The range of functions we identify have in the past been, and to a significant extent still are, delivered by local authorities; but that category itself has been exemplified in different ways – small and large; upper tier or unitary, directly elected and/or nominated; free standing or part of a body with broader functions. At the same time local authorities have lost their distinct identity as local education authorities. Where they were once education specific authorities, they are now just local authorities with functions in relation to education.

38. Whatever may be said of the role in education of local authorities as we have known them, we are convinced that there remains a very strong case that the functions we have identified should be delivered by area based and education specific bodies with common features. Again, however, we do not attempt to describe in detail a structure for such local and/or sub-regional authorities. Rather we advocate that having such a structure is essential, and we offer what we consider to be the key features of local/sub-regional governance in the education system. What is important is that there should be a stable, consistent and widely understood structure, or set of structures, set up by statute to discharge defined functions for the benefit of the whole population without gaps or overlaps.

39. Options which have so far been considered in the ‘middle tier’ debate include:

  • a separately constituted ‘School Board’ or ‘Education Council’ (if functions extend beyond schools);
  • an individual local “School Commissioner” –whether appointed or directly elected; and
  • local offices of a national non-governmental agency similar to the former Learning and Skills Council, or perhaps by giving enhanced responsibilities to the regional offices of Ofsted.

40. We do not favour the third of these options. Inevitably offices of that kind would be seen as extensions of central government without any sense of local or area ‘ownership’ or accountability. Indeed if they had those characteristics they would be the same as ‘school commissioner’ offices.

41. As between the first and second options we do not see them necessarily as alternatives to each other but rather as complementary. There are some distinctions to be made between, on the one hand, strategic planning in some of the areas of work we have identified and, on the other, the tasks necessary to support schools and other educational institutions including those which are not achieving to an acceptable level. The former is rather more the role of an elected Education Council for an area, whilst the latter may be more suited to an appointed School Commissioner and his or her team of professionals and specialists.

42. It is a matter for detailed consideration as to whether each of the various functions outlined in the ‘Governance’ section above would better fall within the remit of an Education Council or that of a School Commissioner. There are certainly inter-relationships such that the functions of the Council and the Commissioner should be discharged in respect of the same geographical area. It may be that a Commissioner should be an appointee of a Council, but this should be with the proviso that the independence of the Commissioner in monitoring performance and in intervening professionally in schools in difficulty should not be unduly compromised by his or her status as an employee of the Council.

43. There will remain scope for some functions to be discharged by specialist agencies, consortium arrangements or through sub-units of larger bodies, but we do not think it necessary to legislate extensively other than for the authorities described above. Again a degree of flexibility and permissive powers within new legislation would allow effective existing arrangements to be subsumed within a new coherent framework; at the same time as creating space for new solutions to be found where the current situation is unsatisfactory.

44. If new bodies are to be created (as opposed to building on existing ones) determining size and geographical boundaries will be problematic. Though we advocate authoritative area bodies with common features, we do not ignore the fact that different constraints apply as between, for example, urban and rural areas. A greater critical mass would certainly enhance the likelihood of expertise, at manageable cost, being available; but increased size attenuates the literal and metaphorical ‘distance’ from electorates and communities served. Legislation must again allow sufficient flexibility to acknowledge these different constraints. Ultimately fitness for purpose should be the main determinant of the shape of these new authorities. They must be sufficiently ‘local’ to be responsive to a natural community (or group of communities) but large enough to have the capacity to discharge their given functions cost effectively. Other incidental structural changes, e.g. the current devolution agenda or the creation of ‘city regions’ may need to be taken into account for pragmatic reasons.

45. We have written in this paper of ‘new bodies’, but it is obvious that many features of these new authorities could also be found in local authorities through which education was provided to communities for over five decades following the 1944 Education Acts. In looking forward as we do to new policy and new models suited to a 21st century high quality public education service, we do not abandon what those authorities have stood for. Much of the criticism that has been made of them to justify turning them into service commissioning bodies rather than providers has been doctrinaire and politically motivated on the part of national governments seeking to limit and control local government inclined to resist national government policies particularly in education. The alleged inadequacies of local government involvement in education has become an accepted mythology which now deserves re-examination in forward looking and creative reform. No blanket condemnation of local authorities as providers of education services beyond the individual institution has ever been objectively justified.

46. Until 2009, local authorities throughout England and Wales were nominally identified as local education authorities giving them a clear education specific identity alongside their broader local authority identity. The name change in 2009 was said to be no more than the removal of an anomaly, but that was an anomaly which had resulted from a steady erosion over a decade of local government’s direct role in education. It is that which we challenge. We are now quite openly advocating a restoration of education specific democratically elected authorities with powers and responsibilities to deal with area wide strategic and general issues of the kind we describe. We do so because we believe that there are features of the existing local authority structures which have proved themselves to be of real value and benefit to the education service and should be restored with the necessary adaptations to ensure their greatest effectiveness in a 21st century education system.

47. Electorally accountable local/area authorities have another rather more subtle, but nonetheless vitally important, function. The best local authorities are champions and supporters of their own local communities. That is something which can and should evolve into a new educational role for authorities in the so-called ‘middle tier’ as we envisage them. It is a feature which is sadly lacking from the present government’s model. A two tier structure involving highly centralised control of the kind of monopsony we have identified provides no easily accessible support for communities, for pupils, parents and ‘citizens’ in general.

48. It is the proper function of central government to determine, after consultation and proper parliamentary debate, the shape of new legislation. We are not advocating a specific solution; but it is vital that a new settlement should establish a coherent framework that is capable of meeting those key criteria with which this paper began and which we now repeat:-

  • The powers and responsibilities of each body should be appropriate to its competence and the level at which it operates.
  • The wider public interest must be recognised through some form of popular electoral process – whether by direct election of individuals or nomination via other democratic structures.
  • Decision making bodies must have access to relevant professional and technical advice and support – either from permanently employed officials or from external specialist agencies.
  • They must comprehend the fact that those who confront the greatest barriers in securing a full and successful education are most likely to be relatively disadvantaged in a more market-driven or fragmented education system.

Share