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England & Wales Education and children's services

A requiem to the Schools Bill in three parts – Part 2

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Photo: John Fowler

The Schools White Paper Opportunity for all: strong schools with great teachers for your child (£) was published on 28 March 2022. Several aspects required Parliamentary legislation before implementation.

The Queen’s Speech on 10 May 2022 confirmed the Government’s intention to legislate and the following day the Schools Bill was published.

There was debate on eight days during the Summer in the House of Lords. The Bill was criticised for the excessive powers that would be given to the Secretary of State for Education over academies and also the local authority role in maintaining a list of home educators. Government supported amendments resulting in a major part (clauses 1 to 18) of the Bill being withdrawn for further work over the Summer. By the early Autumn, with the Truss administration installed, there were press stories that the bill would not proceed further, e.g. The Times (19 October 2022, the day before Liz Truss announced her resignation) Liz Truss to retreat on Boris Johnson’s school plans and strike curbs (£).

This part, Part 2, looks at what is and is not in the Schools Bill, what might be salvaged without further legislation and what happens to those areas where legislation was needed. Part 1 looked at the new Secretary of State’s announcement on the future of the Bill, parliamentary procedure and two examples of how education legislation has been handled in the past. Part 3 asks why it is difficult to legislate for full academisation?

Schools Bill – progress

The Government presented the Schools Bill to parliament (House of Lords) on 11 May 2022. A Second Reading was held on Monday, 23 May, there were six sessions in Committee from 8 to 27 June, and Report Stage was on 12 and 18 July. Third Reading was tabled for 14 September, but the slot was removed at the start of that month. The Bill remains in the Lords. The Secretary of State for Education (Gillian Keegan) announced on 7 December 2022 that “I can confirm that the Schools Bill will not progress in the third session”. The Bill has not been formally withdrawn and will lapse at the end of the current parliamentary session, thought to be in October 2023.

Where is the Bill?

Three prints of the Bill can be found on the Parliamentary website Schools Bill webpage: First as introduced (HL Bill 1, 11/05/22, 112 pages); Second as amended in Committee (HL Bill 35, 27/06/22, 114 pages) and Third as amended on Report (HL Bill 49, 18/07/22, 92 pages).

Not including the removal of the original clauses 1 to 18, there were about 50 government amendments to the Bill including new issues. For example, Secure 16-19 Academies (cl.15 in the Bill’s third print) and Education and childcare behaviour orders (cl.43 – the orders are a new legal device to prevent certain individuals from running independent schools).

Further information – Parliament website

Explanatory Notes on Lords first print of the Bill (66 pages)

Lords Delegated Powers and Regulatory Reform Committee 2nd report (26 May) and 8th report (Government response, 12 July 2022); DfE memoranda 12 May, 1 June and 6 July.

Lords Constitution Committee 1st Report (6 June 2022) and ministerial responses 17 June and 7 July

DfE Human Rights memoranda: 11 May (33 pages) and 7 July (5 pages)

House of Lords Library briefing Schools Bill (19 May 2022) and Schools Bill: Regulation of academies and trusts In Focus (19 October 2022)

Further information – DfE website

DfE news New Schools Bill to boost education standards across the country (12 May 2022)

DfE Press Release Next steps towards a stronger school system with all schools in strong trusts (25 May 2022)

DfE Press Release Review launches to future proof role of academy trusts (29 June 2022)

DfE Blog Everything you need to know about the Schools Bill (12 May 2022) and What the Schools Bill means for academies (24 June 2022), the latter was an attempt to support the original clauses 1 to 18. Baroness Barran announced Government support for withdrawal on 30 June 2002 (see below).

DfE speeches Education Secretary addresses Confederation of School Trusts Annual Conference (16 June 2022) where Zahawi says the current school system is “held together by rubber bands” and Education Secretary addresses LGA annual conference (30 June 2022). No mention is made about local government and academisation although LGC reports Zahawi claimed in the Q&A that ‘there has been an “overwhelmingly positive” response from local leaders to plans to allow councils to set up multi-academy trusts’.

DfE policy statements (12 May 2022, 11 statements were updated on 24 May 2022, one on 13 June – total increase of 90 to 229 pages). See below for further information.

DfE Impact assessment (12 May 2022, 106 pages)

What next?

In her evidence to the Commons Education Committee on 7 December 2002, Gillian Keegan MP, the Secretary of State for Education said:

“we do remain committed to the very many important objectives that underpinned the Bill, and we will be prioritising some aspects of the Bill as well to see what we can do”.

She noted

“A lot of the Schools White Paper is being implemented and did not require legislation in many cases, but we know that there has been interest, particularly in a couple of areas around legislating for children not in school and a register. … Let us just say, we have heard your concerns and it is definitely a priority.

She went on to say about one provision in the Bill (school funding)

“we can go quite a long way to achieving our aims to push this through non-legislative steps”.

The Bill

The Bill is in five Parts. For each part, a short description of the Bill is given, links to relevant DfE and LGIU publications, and also what is missing.

Part 1: Academies

Academy regulation

The original clauses 1 to 18 were withdrawn at Lords Report stage due to criticism from all sides that the provisions gave too much power to regulate the academy school system with the proposed Academy Standards. Government support for withdrawal of the clauses was announced by a letter from the Lords education minister Baroness Barran on 30 June 2022. The letter also announced that Baroness Barran is leading a review on the Regulation and Commissioning of Academies to try to meet the voiced concerns and bring back revised legislation. DfE press release is here (29 June 2022). (The review was announced in the Schools White Paper.) Baroness Barran’s letter of 18 July announced a ’Summer engagement on academy trust standards’ which included regional discussion meetings. An interim report was promised in September 2022 with a final report in December. It is understood the review body is still meeting but no report appears likely in the near future (January 2023).

The following DfE policy statements are available:

25 May 2022 announcements

Related to the academy regulation and developing a framework for the new school system, the DfE published on 25 May 2022:

Academy schools with a religious character

Remaining in the Bill are a number of provisions to safeguard the interests of foundations of Academy schools with a religious character over land, property, religious education and collective worship.

The following DfE policy statement is available:

Academies: other

Academy grammar schools will require an affirmative parental ballot before the school’s Multi-Academy Trust can achieve an all ability intake. Baroness Barran committed the Government to review the grammar school ballot regulations.

The following DfE policy statement is available:

In what is now clause 11 of the third print of the Bill, local authorities have the power to apply for an Academy order on behalf of one or more of their maintained schools. This was amended by the Government from the original version to add that the appropriate religious body must give consent to the application if the school has a designated religious character, e.g. the Diocesan Board of Education must give consent if the local authority applies for an order of a Church of England schools etc. The Government resisted amendments to require the consent of the governing body before an application was made. Clause 12, added by the Government at report stage, introduces a similar power to key bodies responsible for maintained schools with a religious character, e.g. the Diocesan Board of Education can apply for an Academy Order for a maintained school.

The following DfE policy statement is available:

Other provisions cover land swapping and acquisition between local authorities and Academy trusts and amendments to create a Secure 16-19 Academy (by a Government amendment). The main legislation for Secure 16-19 academies is in the Police, Crime, Sentencing and Courts Act 2022. The amendment would exclude Academies Act requirements on new and expanded Secure 16-19 academies and reduced the funding agreements to two years in length.

The following DfE policy statement is available:

What’s not in the Bill

There are several issues in the White Paper which might have merited primary legislation and parliamentary scrutiny. A non-exhaustive list is below. Each merits a separate blog.

Local authority Multi-Academy Trusts (LA MATs)

A DfE paper was issued on 25 May as part of the DfE school system reform package. LAs had to express an interest by 31 July 2022. The DfE LA MAT model provides for the rules on local authority-influenced companies to be changed to allow more than one-fifth of the members (but not directors) to be LA-influenced. No other rule change is proposed. The voting strength of LA-influenced directors/trustees must continue to be less than one-fifth. The TES claimed (2 September 2022) that 1 in 5 LAs wanted to establish LA MATs.

For information: the Bill contains the first statutory definition of a Multi-Academy Trust by way of defining a “master agreement” as an agreement between the Secretary of State and any other person (which can be a natural person or a corporate body) to carry on ‘more than one Academy’. The same definition appears in the Interpretation clauses of Part 1 and Part 2 (clauses 16 and 31 of the third print of the Bill).

Forcing local authority maintained schools and Single Academy Trusts (SATs) to join MATs

Two issues. There is no new Secretary of State power in the Bill (all three versions) to require a local authority maintained school to convert to academy status. The existing powers via the Schools Causing Concern legislation under the Education and Inspections Act 2006 and the Academies Act 2010 are not touched by the Bill.

The Secretary of State has the power through the funding agreement to require a Single Academy Trust to join a Multi-Academy Trust. This was debated in the Lords. The Minister confirmed that “it is not the Government’s policy to force stand-alone academies to join multi-academy trusts if they are performing satisfactorily and being managed properly”. Lords Hansard, 12 July 2022, col 1406.

School Admissions and local authorities:

Three issues were raised in the Schools White Paper (page 57) about giving local authorities additional power over the local school admissions process to (1) object to the Schools Adjudicator about a school’s Published Admissions Number (PAN) where an increase in the PAN would be possible to meet a shortfall in places in the area and the school had physical capacity; (2) manage in-year admissions; and (3) provide a backstop power to direct trusts to admit children, subject to an appeal to the Schools Adjudicator. The Government believes it can achieve these changes by amendments to the School Admissions Code. See this ministerial letters of 11 July and 18 July.

School place planning and falling rolls and the new DfE Regional Directors

The White Paper states (paragraph 158) that LAs will retain “the overall sufficiency duty to provide (sci) an appropriate place for every child”. Paragraph 159 states “Based on transparent standards, the Department for Education will be responsible for ensuring that these places are provided by the best possible schools” and that the new DfE Regional Directors will take local decisions. Although not mentioned in the White Paper, most local decisions will be about removing places as the school population declines over the next 10 years. It is difficult to see how these White Paper statements can be inferred from the current legislative framework for the school system and no amendments were proposed in the Bill to the current legislative framework. See LGIU Briefing Managing the school system – pupils and places to 2030 in England (January 2022).

Comment

The target of all getting all schools to academise by 2030, or at least in the process of academising, still stands apparently. Whether the Bill as originally proposed could have efficiently helped the DfE with this target is another question. In the vast volume of other legislation at the DfE’s disposal there are provisions which could be used to force LAs to support the academisation target although so far there is no sign that this might happen.

Part 2: School and local education funding: England

The ‘hard’ (now called ‘direct’) National Funding Formula is introduced in Part 2. However, it continues to permit (with Ministerial permission) locally determined funding for a limited period on specific issues. Surprisingly, it takes 15 clauses over 16 pages to achieve this end. In part this is to allow locally determined funding in case the nationally imposed formula is not sufficient to distribute funding fairly in a locality. As the policy statement below puts it ‘One element of this could be school supplementary funding, to be provided to schools as determined by local authorities (“locally-determined supplementary funding”), in circumstances where the Secretary of State believes local authorities are better placed to determine the amount of funding each school should receive, and which local authorities must pass on to schools.’

See DfE latest consultation: Implementing the direct national funding formula (7 June 2022; consultation closed on 9 September. DfE response had not been published by 17 January 2023), and LGIU Briefing School funding in England: NAO report and DfE consultation (August 2021)

The following DfE policy statement is available:

Comment

It is difficult to see how the National Funding Formula can be further developed without recourse to legislation. LAs can though be encouraged to use the formula for their locally determined formulas.

Part 3: School attendance

The school attendance provisions are perhaps the most advanced in terms of implementation. Improving school attendance following the pandemic was a stated priority of Secretary of State Zahawi and elements of the work have been under consideration for many years. This Part is divided into two areas: children not in school and not on a school roll, and children who are on a school roll but not in school regularly.

Children not in school

Two issues: the establishment by local authorities of a register of children in their areas of home educated children or children educated ‘otherwise’, i.e. in part-time provision etc. This proved the second most controversial part of the Bill in terms of Parliamentary scrutiny after Academy Standards (clauses 1 to 18) with MPs and Peers receiving large postbags on the issue mainly from home educators objecting to the register. See LGIU Briefing Children not in school – Home education and DfE policy (February 2022) and the DfE Consultation outcome Children not in school (3 February 2022)

The second issue is extending the scope of school attendance orders (SAO) to enable local authorities to name an academy. The school attendance order is the long-standing statutory mechanism available to local authorities to require the parents of a child not on a school roll to enrol the child at a named local authority maintained school. The Bill makes the existing law (four pages) on school attendance orders apply to Wales only and replaces that with nine pages of the Bill.

The main change is to introduce a “school nomination procedure” giving the school which the LA wishes to name in a School Attendance Order the chance to appeal to the Secretary of State. This has the advantage of bringing Academies into the process. Currently LAs cannot name an Academy; this must be a significant problem to those local authorities with only a handful of maintained schools although the new process will introduce time delays and additional paperwork. NB: grant-maintained schools were brought within the SAO arrangements from their inception.

The following DfE policy statement is available:

School attendance

The main changes are to place a general duty on LAs to use their existing powers to promote regular school attendance including having regard to DfE guidance on improving attendance. Schools must have a policy to promote regular attendance and a published attendance policy. Schools must also have regard to DfE guidance. The Bill also enables the Secretary of State by regulations to set national arrangements where fixed penalty notices can be issued to parents for the unauthorised absence of their children and to bring Academies within the regulations on granting leave of absence.

See DfE Press Release New measures to increase school attendance (25 January 2022) which also mentions the trial of a daily national collection of attendance data. The DfE response to the consultation is here. The DfE issued the statutory guidance prospectively for September 2023 on 6 May 2022 asking that it is followed from September 2022. See Working together to improve school attendance. There has been an Autumn training programme organised by the DfE on the new arrangements as well as appointing school attendance advisers to help LAs. Following the Secretary of States announcement that the Bill will not proceed the DfE issued this letter to LAs on 16 December 2022. The letter says there has been no change in policy and the DfE remains committed to progressing the Bill’s attendance measures noting ‘As with all government guidance, local authorities are legally obliged to take the new school attendance guidance into account in exercising their functions’ which presumably is a reference to s.571 (Publication of guidance) Education Act 1996.

The following DfE policy statement is available:

Comment

The Children not in School measures cannot progress which must be a blow to those LAs with few maintained schools. LAs will continue to monitor home educated children but without the new legal framework to compile the register envisioned by the legislation. LAs and schools should be able to develop their school attendance policies and contribute to the safeguarding task of getting children into school.

Part 4: Independent educational institutions

The need to tighten the law around the registration and regulation of educational settings has been an ongoing issue for nearly 20 years. Settings that should be registered have not been because the body (Ofsted) which is the regulating authority if the institution were registered has not had sufficient statutory powers to investigate. Part-time institutions have been without the registration and regulation system altogether for the quality of provision and have mainly been outside the law of registration and regulation of childcare albeit there is a ‘voluntary’ register where provision is available for up to 14-year olds. There has also been a growth in part-time provision during school hours where the provision is part of a child’s off-site education programme, often in unregulated provision. And if part-time provision is to be regulated, what does ‘full-time’ mean and what counts as part-time provision? (Registration and regulation of voluntary educational provision, e.g. sports clubs, drama clubs, faith groups has on the whole been excluded from the debate.)

The last Labour Government legislated to extend registration and regulation of independent educational provision in the Education and Skills Act 2008 although implementation plans were stalled by the incoming Coalition Government. However, the issue did not go away. In 2018, the DfE consulted on plans to provide greater regulation of the sector. See LGIU briefings Unregistered school and education settings and DfE consultation: Independent School Regulation. See also LGIU Briefing Children not in school – Home education and DfE policy (February 2022) The result of the final DfE consultation outcome is Regulating independent educational institutions (May 2022).

The following DfE policy statements are available:

Ministerial letter (7 July 2022) explains the Government amendments made at committee stage to introduce education and childcare behaviour orders.

Comment

Given the length of time this issue has been debated, if the Government thought it had the power to do so without primary legislation, it would have done so. The 2008 legislation could only partially meet the scope of the Schools Bill legislation although it could provide a basis for starting registration. The issue of safeguarding would not be tackled adequately with the 2008 legislation. The link to the register of children not in school is important. Children attending unregistered provision, unless the attendance is part of the educational programme of an independent (Academy) school or a local authority maintained school, are viewed as not in school. Registering such provision may mean fewer parents would need to register as home educators.

Part 5: Miscellaneous and final provisions

Apart from the usual ‘final provisions’ clauses in all legislation such as transitional arrangements and commencement, there is teacher misconduct.

Teacher misconduct

See the outcome of DfE consultation on Teacher misconduct: regulating the teaching profession (29 April 2022) and DfE policy statement Teacher misconduct: Schools Bill (11 pages). The Bill widens the scope of where disciplinary can be taken to include individuals who have previously been teachers but whose misconduct occurs when not teaching or have worked as teachers in a wider range of education settings, e.g. an online education provider. The Bill also enables disciplinary proceedings to be taken regardless of how the alleged misconduct comes to the attention of the Teacher Regulation Agency.

Another “Not in the Bill” issue

Mentioned in the White Paper (and published on the day the White Paper was published) is Minimum expectation on length of the school week: information note. This is the expectation that schools will be in session for 32.5 hours a week. Compliance will be through Ofsted inspection, publication on school website and national data collection but no new primary legislation.

Comment

Gillian Keegan, while “committed to the very many important objectives” in the Bill (in evidence to the Commons Education Committee) specifically named three areas: Children in School and the registers, formula funding of schools, and faith school protections on Academisation.

Children not in School

Keegan told the Education Committee “we have heard your concerns and it is definitely a priority”. LA voluntary registers (the Secretary of State incorrectly called them ‘non-statutory’) can continue although legislation is needed to require registration which the Bill backs with penalties for non-registration. Without legislation, safeguarding cannot be extended easily to those children who are currently not being efficiently home educated. The same with the School Attendance Order procedure. Without legislation, an Academy cannot be named in an Order and it is difficult to think of a way round it even if an Academy wishes to be named.

As mentioned above, other aspects of this part of the Bill such as having policies to promote regular attendance can continue to be implemented. Low attendance and persistent non-attendance are likely to pushed up the ministerial priority list. The Commons Education Committee has launched an inquiry. See SchoolsWeek MPs launch inquiry into persistent school absence (12 January 2023). If there is an opportunity for a short Bill in this lengthened Parliamentary session, it might be on school attendance.

Formula Funding

The Secretary of State said “we can go quite a long way to achieving our aims to push this through non-legislative steps”. Local authorities can be encouraged to adopt the proposed direct funding formula rather than continue to use their own formula. Many do although the DfE has not given an estimate recently of the number.

Academisation

On protections for faith schools, the Secretary of State said: “at the moment it is difficult for faith schools to join trusts and there are some complications around land and other issues as well. We do need to focus on that”. The other issues are likely to do with the collective worship and the school’s trust deeds. Ms Keegan concluded that “we do need to deliver” legislation in this area.

The White Paper goal of all schools in strong Multi-Academy Trust or in the process of joining one by 2030 apparently still stands. It is understood that DfE Regional Directors are trying to work with local authority colleagues to draw up plans. The issue seems to have dropped off the public agenda. See for example piece by Zofia Niemtus in the TES (16 December 2022) Why ideology is not the true barrier to a MAT-run system (£). Although “the Schools Bill has been ditched and with it the target for a fully academised, MAT-led system by 2030” a “tipping point” has been reached and “Labour has already acknowledged that, should it get into power, it won’t reverse the tide”. The issue now is “getting enough people into the sector to lead all these trusts – not just CEOs but finance managers, HR professionals, IT leads and more”. This is a “woefully under-recognised …key challenge”.

Part 3 of this blog will look at the difficulties of legislating for strong MATs.

In conclusion, we must not forget what the withdrawal of the Schools Bill means for schools and what it says about the direction of national education policy. The issue is summed up by ‘Lincolnshire Simon’ in a comment to the Times article on the likely withdrawal of Schools Bill referenced at the start of this blog.

You cannot tell schools they have to go through the painful, existential business of becoming part of a multi-academy trust and then back-track on that instruction six months later. The amount of hours wasted on this is now staggering. Utter, utter incompetence. This is why governments should not be in charge of education.

For further information, please visit www.lgiu.org or email john.fowler@lgiu.org



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