The short answer is that the process by which free schools (or ‘academies’ being set up from cold) are set up is one of the least transparent and least partipative around.
Despite being a product of a Government (the Coalition Government) being committed to ‘The Big Society” and “localism”, the process of setting up a free school is probably the least transparent and least participative pieces of public process I have ever come across.
The general legal background in relation to free schools is in another post. In short, free schools are just another word for an academy. It a the word used (by the Department) to describe an academy set up from cold, rather than from the conversion of an existing maintained school. Some academies ‘from cold’ are also being set up as UTCs or studio schools.
When it comes to the legal requirements for setting up a free school (or for that matter a UTC or studio school or an ‘academy from cold’ (rather than a converter)):
- Section 1 of the Academies Act 2010 allows the Secretary of State to enter into ‘academy arrangements’ – in practice that means signing a funding agreement with whoever is setting up the free school;
- Given that ‘free schools’ (and UTCs/studio schools) are simply academies being set up from fresh, they are ‘additional schools’ within the meaning of section 9 of the Academies Act 2010 which means that, before agreeing to set up a free school: “The Secretary of State must take into account what the impact of establishing the additional school would be likely to be on maintained schools, Academies and institutions within the further education sector in the area in which the additional school is (or is proposed to be) situated.” – I will comment further on what that means below.
- Section 10 of the Academies Act 2010 also specifies that: “(1) Before entering into Academy arrangements with the Secretary of State in relation to an additional school, a person [i.e. the person who wants to set up the free school] must consult such persons as the person thinks appropriate. (2) The consultation must be on the question of whether the arrangements should be entered into.” -I will comment on that too further below.
But that’s pretty much it in terms of process.
And the lack of any detailed requirements for how those things work has meant that, in practice, people have often felt that free schools have popped up out of nowhere, with no real public involvement, let alone any local democratic input.
Of course, there are legal issues and legal detail which flow from those general requirements. But those things are not spelled out in the legislation (as above), so they are often overlooked:
- what the promoters need to do by way of consultation (and if they do not then the decision to go ahead could be quashed by the court in a judicial review)
- how the Secretary of State finds out what the impact on other schools would be – it is hard to see how he could do that without asking them directly, giving them proper information about what is proposed and a proper opportunity to respond (and if he does not then the decision to go ahead could be quashed by the court in a judicial review)
- what information the promoters and Secretary of State must make available to the public – the standard response from the Department to any request for even the basic information set out in the proposer’s application is to refuse it relying on various of the ‘exemptions’ within the Freedom of Information Act. I don’t believe that the reasons being given would stand scrutiny if a complaint was brought to the Information Commissioner. But that takes time. It seems to me that the Department is hoping that no-one will challenge the refusal to provide that information, or that if they do, the funding agreement will be signed before the challenge gets dealt with (thus keeping the information out of the public eye until it is perhaps too late).
- what other legal requirements are in play? Basic legal principles require that the Secretary of State and the promoters of the school must act in the light of accurate information and a full picture of what that means. If he ignores key things, or proceeds on the basis of important factual or legal errors, his decision to go ahead can be unlawful.When he makes the decision, he must consider its impact in equality terms. Another post describes the ‘public sector equality duty’which means that the Secretary of State needs to give proper consideration to the potential impact on BME communities, disabled students, particular religious groups (including children who are not religious), and so on. He is likely to have to consult them on the point as part of that. If he does not do those things his decision could well be be unlawful (and the decision to go ahead could be quashed by the court in a judicial review).