No longer a presumption that new schools will be academies?

The legal presumption that new schools should academies is in tatters after a court judgment given on 14 December 2012.

On 16 November 2012, the British Humanist Association (BHA) and Richmond Inclusive Schools Campaign (RISC) learnt that they had lost their legal challenge to Richmond’s decision to give the go ahead a Catholic Voluntary Aided (VA) secondary school and primary school on a Council site, rather than seek proposals for academies.

On 14 December 2012 the judge explained why they lost. Here is a copy of the judgment if you want to read the whole thing.

The judgment has very wide implications for academy proposals more generally by completely undermining the presumption (as it appeared) that, where a new school was needed, it would be an academy.

That presumption was introduced by – and was one of the major headlines arising from – the Education Act 2011, Michael Gove’s big Education Act. The 2011 Act created a new ‘section 6A’ (amending and, in so doing, completely changing the direction of the last Labour Government’s big Education Act, the Education and Inspections Act 2006 which gave the push to ‘competitions’).

The new provision said that:

“If a local authority in England think a new school needs to be established in their area, they must seek proposals for an academy”.

That seemed pretty clear.

But what was less clear was the relationship between that provision and section 11(1A) of the 2006 Act which allowed ‘proposers’ to publish proposals for to establish a VA school (which, by section 11(8) and Schedule 2 of the 2006 Act, the local authority needed to consider and could potentially approve).

Section 11(1A) was also new (arising from the 2011 Act). Previously, such proposals would have needed the Secretary of State’s consent, but the requirement for consent was removed in the 2011 Act because, in practice, the Secretary of State had always consented, so it was considered to be an unnecessary bureaucratic step, which could be dispensed with.

Anyway, the new section 6A and section 11(1A) came into force on 1 February 2012.

On 2 March 2012, The Roman Catholic Diocese of Westminster published proposals under section 11(1A) for two new VA schools, a primary and a secondary, to be established on a site which Richmond Council had bought in 2011. The site was to be leased to the Diocese for a nominal amount and, although the Diocese would pay the costs of setting up the secondary school, the primary is to be paid for by the Council. And, because VA schools are ‘maintained schools’ the running costs will be met by the Council.

On 24 May 2012, Richmond approved the proposals.

BHA and RISC said that was unlawful. Their main argument was that, because the Council had proceeded on the basis that new schools were needed it should – by virtue of section 6A – have sought proposals for academies rather than approving the VA school. That mattered to them because the current model agreement for academies means that the new schools would only have 50% of places reserved on a faith basis rather than the 100% which is possible for a faith VA school.

The judge rejected that argument. He held that, even thought the Council’s documents had used the word ‘need’ that was not in the technical sense and, in fact, the Council had only thought new schools were ‘desirable’, not needed.

But what he then said is of much wider implications.

Firstly, he held that the Council had been entitled, when deciding whether a new school was ‘needed’ to take into account the overall impact on educational provision in its area which a new academy (i.e. the likely consequence of the section 6A process) would have.

In this instance, the impact about which the Council was concerned was that inviting proposals for a new faith academy would not only lead to places reserved for children of Catholic parents but (because of the 50% rule) create non faith places, thus (so Richmond argued) leading to a surplus of such places in its area which could undermine the other non-faith schools in the area (all academies as it happens).

In other words, a local authority could decide that a new school is not needed because it thinks a new academy would be harmful. That is a very interesting outcome.

But the second big point of wider importance came in response to arguments which the Secretary of State had made in the case. Oddly, the Secretary of State had intervened in the case to go even beyond what Richmond had argued.

He argued that, even if Richmond had in fact decided that a new school was needed in the section 6A sense, then, faced with a section 11(1A) proposal, it was not under an obligation (by section 6A) to seek Academy proposals (indeed it could not legally do so) and was, instead, required to consider (and potentially approve) the proposal for a VA school.

The judge agreed.

That has very profound effects, particularly when you bear in mind that VA schools need not be faith schools.

We tend to think of VA schools as being religious (probably because almost all of them are). But they need not be. Specifically: they are only faith schools if the Secretary of State designates them as “having a religious character” section 69 of the School Standards and Framework Act 1998.

So what now?

That means that if an organisation (perhaps established by local people in an area) was aware that a new school might be needed in a particular local authority area, they could put forward proposals for a VA school which was not a faith school. Indeed, they could even do it in discussion with the LA itself, potentially on an LA site and with the LA paying the capital costs (as happened here). The LA would then have to consider – and could approve – that proposal. If it did, then what would be created would be a new maintained school. What we all thought was the legal ‘presumption’ that where a new school is needed it should be an academy, would simply never arise.

Of course, such a school would not be a ‘community school’ in the technical sense (it would set its own admissions policies and employ its own teachers, unlike in a community school where those things would the responsibility of the LA). But it would still be a new non-faith maintained school – something which everyone thought would be a thing of the past (or at least extremely rare in practice), following the Education Act 2011.

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