John Fowler, Independent Commentator, and Policy Manager, Local Government Information Unit, looks back at recent legislation on school education, and what might come next.
The last 10 years have been a relatively light period for new education legislation compared to the previous 20. The period of mammoth education Acts every four or five years, with smaller ones in between, stared with the Education Reform Act 1988 and ended with the Apprenticeships, Skills, Children and Learning Act of 2009. However, subsequent legislation may have been modest in length but sorting out the implications will take years.
Noteworthy post-2009 Acts
The Academies Act 2010, which created a new sector of independent schools funded by contract with the Secretary of State, has led to on-going debate about, and change to, the school system’s governance and accountability structures with, for example, the creation of Regional School Commissioners and the emergence of the Multi-Academy Trust as the Government’s preferred method of managing schools.
The Children and Families Act 2014 which reformed the law on the education of children with special educational needs and disability was in page length only a small part of the Act but enormous in its consequences both for school practice, providing support for young people up to their 25th birthday, the creation of more special schools and the financing of provision still being worked out.
However, this column has covered many other Acts during recent years. A selection in chronological order follows.
Education Act 2011, a relatively small piece of legislation covering 47 separate issues (See Education Now, Issue 22, January 2012, for a summary).
Serious Crime Act 2015 legislated for a specific offence of child sexual exploitation as well as clarifying the law on child cruelty.
Counter Terrorism and Security Act 2015 put the prevent strategy on a statutory footing: schools and their staff are under a duty to prevent people being drawn into terrorism.
Deregulation Act 2015, a cross-Government Act which removed: the school target setting regime implemented by the previous Labour Government; the need to provide statutory guidance on maintained school staffing and home-school agreements. It also permitted community schools to set their own term dates although this is not yet commenced.
Childcare Act 2016 giving access to 30 hours state-supported childcare when parents are working.
Education and Adoption Act 2016 introduced coasting schools as an accountability measure (but now abandoned) and what happens to schools which receive an inadequate Ofsted judgment.
Technical and Further Education Act 2017 contains a provision requiring schools to allow education and training providers access to pupils to inform them about technical education qualifications or apprenticeships.
Children and Social Work Act 2017 has reformed the arrangements for safeguarding children (as well as introducing the new relationships, sex and relationships, and PSHE curriculum).
National Citizen Service Act 2017 put the National Citizen Service on a statutory footing, the scheme for providing adventure activities for 16 and 17-year-olds and volunteering experiences.
The Queen’s speech sets out the Government’s legislative programme at the start of each session of Parliament. Normally sessions are for one year but, exceptionally, the Queen’s speech after the 2017 general election set out a two-year programme reflecting the volume of legislation required to implement the UK’s withdrawal from the EU. Other legislation was minimal and has now been enacted. There was no specific education legislation (hence no 2018 Acts in the list above).
At the time of writing (late April 2019), the Withdrawal Bill has not commenced its Parliamentary scrutiny although this might be relatively quick once the terms of the withdrawal agreement with the EU and the political declaration on future relationships have been approved by Parliament. There will be pressure on the Government to start a new Parliamentary session with another Queen’s speech by the second anniversary of the last Queen’s speech held on 21 June 2017. So what education legislation might be announced in the summer?
Government ministers have promised further legislation. Justine Greening, when Secretary of State for Education, told the Commons Education Committee in September 2016 that a Bill, entitled the “Education for All Bill” was in preparation which would implement sections of the White Paper “Educational Excellence Everywhere” (March 2016) and the Green Paper “Schools that work for everyone” (September 2016). Plans were scaled back soon after with the publication of the Technical and Further Education Bill only.
A prominent aim of the 2016 White Paper — to require all schools to become academies by 2022 – was substituted within two months. In its place, “the Government believes that all schools can benefit from becoming an academy as part of a multi-academy trust (MAT). The department does not think it is necessary at this time to set a timescale for this ambition to be realised”. The White Paper’s commitment to “engage MATs, sponsors, academies, dioceses and the wider schools’ sector to ensure that the legal framework for academies is fit for the long term” has become a review of the Academies Financial Handbook and Governance Handbook. It would be surprising if this was the end of the matter.
The 2016 White Paper contained proposals which have been progressed without legislation, for example on teacher workload and the development of the recruitment and retention package for teachers, and the Achieving Excellence Areas (remanded Opportunity Areas) which focus on supporting areas with weaker educational outcomes. The White Paper sought to develop the accountability arrangements for alternative provision, and the DfE’s 2018 vision for alternative provision “Creating Opportunity for all” held out the prospect that this might require legislation. The White Paper also looked to reviewing admission arrangements including the local authority’s (LA’s) role in in-year admissions and restricting those who can refer an objection to admission arrangements to the schools adjudicator. These proposals would require legislation.
The DfE announced in May 2018 that the proposal in the 2016 Green Paper — new grammar schools — would not proceed because “there are no plans for an education bill in this Parliamentary session and therefore the legislation preventing the creation of new selective schools will remain in place”. This leaves the prospect of a Bill in the next Parliamentary session.
One area where the DfE has announced (April 2018) legislation, subject to consultation, is home education. Proposals include: requiring LA to maintain a register of children who are not registered at specified schools; parents to be put under a legal duty to provide information to their LA under certain circumstances if they home educate their children; and requiring LAs to provide support on request to parents who educate children at home. The consultation suggests that the roll-out timetable is dependent on gaining Parliamentary time for the legislation which “means that the full roll-out might be two to three years away”.
Getting to grips with the law relating to managing schools is difficult. One problem is that legislation is now spread over many Acts of Parliament which in turn have been amended. For example, the law relating to pupil and student behaviour and discipline in the widest sense, ie including confiscation of certain items, is now spread across four Acts of Parliament, and some of these Acts have already been amended. And this is an area where English common law is still important especially the principle of in loco parentis, and the need to understand important case law.
Periodically, Governments consolidate legislation, that is all existing law on a specific area is repealed and a single Act formed. This last happened for education in 1996. Given that there is a long queue for consolidation, unless the Government makes it a high priority, it is likely to happen for another 10–20 years.
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