Memo to the NES: bring the mass contracting out of schools to an end – Ron Glatter

The draft charter for the National Education Service (NES), unveiled by Angela Rayner, shadow Education Secretary, at the Labour Party conference in Brighton on 26 September, says the NES “provides education for the public good” and that it will “be accountable to the public, communities, and parents and children that it serves. Schools, colleges and other public institutions within the NES should be rooted in their communities, with parents and communities empowered, via appropriate democratic means, to influence change where it is needed…”.

What would this mean for schools? It would bring them close to the concept of ‘citizen schools’ as propounded by a group of authors in a publication produced a few year ago by the Institute of Public Policy Research (IPPR)1. In their view a ‘citizen school explicitly creates a democratic culture through its role as a civic institution’. Citizenship ‘should be at the heart of the school as an institution’ they say.

A similar vision has been proposed more recently by Robert Tinker in a paper for the Fabian Society2. He argues that all publicly-funded schools should be regarded as ‘public interest institutions’ founded on a principle of “shared ownership” in which citizens, employees and all other stakeholders “have a sense of belonging and control”, requiring inclusive democratic and participative forms of decision-making. The reference to ‘public interest’ indicates that such institutions have purposes not just for themselves and ‘their’ students: they also have a wider remit in relation to their local communities and society as a whole. This too seems to fit well with the intended character of the NES.

Governance by contract.

There are some implications if this kind of perspective is to be followed through within the NES. In England in recent years there has been a large and unprecedented development of ‘governance by contract’3, whereby a substantial proportion of schools funded by the taxpayer are contracted out under the academies programme by the Secretary of State to an extremely diverse range of third parties via so-called ‘funding agreements’. Because the contracts are with central government the process raises fundamental issues of ownership, democracy and pluralism. Richard Pring has put the position in stark terms: “What is being created is the most personally centralized system in Western Europe since Germany in the 1930s – each school contracted directly to the Secretary of State”4.

In fact the government has now retreated somewhat from its original intention to force all schools to be contracted out in this way but this has meant that “maintained” schools (those still within the ambit of their local authority) and “non-mantained” schools (those covered by the academies programme) are governed and funded in entirely different ways without any clear rationale for the distinction.

If publicly-funded schools are to be conceived of as civic institutions, which the draft NES charter appears strongly to imply, then it becomes questionable whether the ownership of such an institution can legitimately be transferred from civil society to a third party by means of a commissioning and contracting process. For example the issue arises of whether such processes delegitimize citizen stakeholders, including parents and pupils, who are not party to the contract. Graham Clayton has provided an explanation of the legal position on this central issue in the technical note which follows.

The conception of schools as civic or public interest institutions seems incompatible with the system of government-issued contracts that has been introduced in England extremely rapidly and that now covers more than 5,500 out of around 20,000 schools. The radicalism of this change seems to have largely escaped notice. However a review conducted for the IPPR proposed alternative options for reform, including returning to a system whereby all schools are governed through statutory relationships rather than many operating on the basis of an individual contract5.

The way forward

This must be the way forward. The distinction between ‘maintained’ and ‘non-maintained’ publicly-funded schools is unfair, divisive and indefensible. The danger with this type of distinction is that the ‘tiering’ which has in any case long been a sharp feature of English schooling will be reinforced and that this will accentuate stratification based on social factors and academic ability. It is therefore essential that, under the NES, all publicly-funded schools should be placed within a common administrative and legal framework based on the principles of public not contract law. It follows that variations in levels of autonomy between different categories of school should be kept to an absolute minimum and a strong and convincing rationale should be provided for any such differences, which is not the case currently.

This proposal puts into strong focus the regime of outsourcing embodied in the mechanism of funding agreements applied to academies. The method – which is highly idiosyncratic for this type of purpose internationally – was not designed to be operated on the kind of scale at which it is now being employed. The problems of accountability, oversight and performance variability with which it is associated have been increasingly recognized within the system and among legislators, and have been reflected in research6. We cannot continue along this path. The aim should be to phase this system out as existing agreements come to the end of their life. In the meantime an approach based on over-riding the agreements by regulation and/or by primary legislation “in order to bring proper coherence and restore a schools ‘system’” as proposed by David Wolfe7 should be adopted.

Various models might be considered suitable for providing the common framework. An obvious one is that of the maintained school trust. This preserves that degree of ‘autonomy’ which has achieved such totemic significance in English policy discourse as well as allowing for the involvement of external bodies in governance which is claimed to have a beneficial impact. It also facilitates strong collaborative arrangements such as can be found under the best multi-academy trusts (MATs) and federations and enables wide stakeholder involvement as demonstrated, for example, by the Co-operative group of schools which now number around 600. It might also allow faith schools to be effectively integrated. Stronger regulation or reform of admissions might be required, since trust schools are their own admissions authorities. I want to stress that this is simply one possibility, and legal as well as educational and administrative expertise would need to be brought to bear on fashioning an appropriate framework. What is required above all is an inclusive and integrated set of arrangements which avoids favouritism and unjustified hierarchies. As the OECD has indicated, the most successful educational systems, combining high quality with equity, have such arrangements at their heart8.

October 2017

[Ron Glatter is a Council member of the New Visions for Education Group, Emeritus Professor of Educational Administration and Management at The Open University, a Visiting Professor at the University College London Institute of Education and Honorary President of the British Educational Leadership, Management and Administration Society. He also chairs the East Dacorum Co-operative Learning Trust in Hertfordshire]

The Consequences of Contracting Out –
a lawyer’s technical note

Graham Clayton

The education service used to be entirely operated under what we know as public law. That’s law which defines the responsibilities of the state and the rights of individuals in relation to the state. It is almost entirely derived from extensive legislation in the form of enactments debated and ultimately approved by our elected representatives in Parliament. In contrast private law, of which the law of contract forms part, governs relationships between individuals or institutions.

The difference matters. Public law is enforceable at the initiative of anyone who has a material interest in its operation. If any public authority, from a parish council or indeed a school governing body to the Secretary of State, has a public law duty anyone whom the courts may consider has a material interest in the performance of that duty can seek an order of the court requiring the public authority to do what it is legally required to do.

In contrast, contracts are enforceable only at the initiative of the parties to the contract. So when the law simply permits the Secretary of State to enter into contracts with private contractors (as opposed to public authorities) to deliver public services, only the Secretary of State can seek enforcement of those contracts, and indeed in some cases may not actually be able to secure performance but only obtain compensation for non performance. The individual citizen, parent, local council tax payer, local employer seeking a well educated output from the local school are all then dependent on the Secretary of State to act to secure enforcement. And of course Secretaries of State as politicians often have major conflicts of interest when deciding whether to seek enforcement of the contracts they have entered into, not least their reluctance to admit that anything is wrong.

It is true that in some circumstances the individual could take legal action against a Secretary of State seeking a court order requiring him or her to act to enforce a contract, but this would be so cumbersome, so expensive and so uncertain in the legal outcome that it would be way beyond the reach of the vast majority of people.

In the mid 1990s, short simple legislation, based on an earlier but previously abandoned statutory provision, was enacted to give the Secretary of State for Education the authority to enter into agreements (contracts) with providers to run schools and deliver our public education service. Since then the Secretary of State’s grip on the system has grown exponentially. This shift from a system based on public law duties to one of central commissioning by contract of public services provision has massively disenfranchised “the people” from access to law.

October 2017

Graham Clayton is formerly Senior Solicitor of the National Union of Teachers and now a Founding Director of the Steve Sinnott Foundation, a charity which promotes the United Nations Sustainable Development Goal for Education. He is a member and officer of the New Visions for Education Group and writes and blogs on education law issues.

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References

1 Audsley, J., Chitty, C., O’Connell, J., Watson, D. and Wills, J. (2013) Citizen Schools: Learning to Rebuild Democracy , pages 13-14. www.ippr.org/publications/citizen-schools-learning-to-rebuild-democracy
2 Tinker, R. (2015) Stakeholder Schools: why collaboration is key to the next phase of school reform, page 11. www.fabians.org.uk/publications/england-needs-a-national-constitution-for-schools-says-fabian-report/
3 Feintuck, M. and Stevens, R. (2013) School Admissions and Accountability: planning, choice or chance? Bristol: Policy Press.
4 Pring, R. 2013) The Life and Death of Secondary Education for All. London: Routledge, page 157.
5 Thorley, C. and Clifton, J. (2016) A Legal Bind: the future legal framework for England’s schools. www.ippr.org/publications/a-legal-bind-the-future-legal-framework-for-englands-schools
6 See for example Glatter, R. (2017) ‘”Because we can’: pluralism and structural reform in education’, London Review of Education, 15(1), pages 115-125 www.ingentaconnect.com/contentone/ioep/clre/2017/00000015/00000001/art00010;jsessionid=1qi3kpdeue6os.x-ic-live-03
7 Wolfe, D. (2013) Wolfe, D. (2013) ‘Schools: the legal structures, the accidents of history and the legacies of timing and circumstance’, Education Law Journal, pages 100-113page 112.
8 See for example OECD (2012) Equity and Quality in Education: supporting disadvantaged students and schools. www.oecd.org/edu/school/50293148.pdf

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