Education, Law and Diversity: Schooling for One and All? 9781509906703, 9781509906734, 9781509906727

This new edition of Education, Law and Diversity provides extensive updated analysis, from a legal perspective, of how t

227 68 10MB

English Pages [617] Year 2020

Table of contents :
Preface
Table of Contents
List of Abbreviations
List of Tables and Figures
Table of Cases
Table of Legislation
1. Children’s Education and the Law in a Diverse Society
I. Introduction
II. Rights
III. Integration, Identity and Multiculturalism
IV. Conclusion
2. Responsibility for Children’s Education
I. Introduction
II. The State's Role in Supporting Access to Education
III. Conclusion
3. Institutional Diversity in a Developing Schools System
I. Introduction
II. State Education: Separate National Systems within the UK
III. Schools and Education: The Role of the State 1870–1980
IV. Towards a More Diverse Schools System: 1980–1997
V. Diversity and Control of Schools Under 'New Labour' 1997-2010
VI. A New 'Moral Order'? Education Reform Since 2010
VII. Conclusion
4. Equal Access for Children to Education Settings
I. Introduction
II. Equality and the Right to Education
III. The Equality Act 2010 and Children's Education
IV. Conclusion
5. School Admission Policies and Decisions
I. Introduction
II. 'Pupils are to be Educated in Accordance with the Wishes of their Parents'
III. Fair Admissions?
IV. The Implications of School Preference
V. Conclusion
6. Secular Education in the State Sector: A Curriculum for All?
I. Introduction
II. Centralisation and a National Curriculum
III. 'Fundamental British Values' and Countering Extremism
IV. Sex and Relationships Education and Health Education
V. Conclusion
7. Religion in the School Curriculum
I. Introduction
II. Religious Education
III. Collective Worship
IV. Creationism and 'Intelligent Design'
V. Conclusion
8. Education Outside the State Sector
I. Introduction
II. Regulation and Control of the Curriculum in Independent Schools
III. Home Education and Unregistered Schooling
IV. Conclusion
9. Special Educational Needs: Voice, Place and Choice
I. Introduction
II. SEND and Children and Young People in England
III. Voice
IV. Place
V. Choice
VI. Conclusion
10. Conclusion: Schooling for One and All?
Index

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EDUCATION, LAW AND DIVERSITY This new edition of Education, Law and Diversity provides extensive updated analysis, from a legal perspective, of how the education system responds to social diversity and how the relevant social and cultural rights of individuals and groups are affected. It spans wide-ranging areas of school provision, including: types of school (including faith schools), the school curriculum, choice of school, out- of-school settings, and duties towards children with special needs and disabilities. It gives extensive coverage to children’s rights in the context of education and includes considerable new material on issues including relationships and sex education, exclusion from school, home education, equal access, counter- extremism and academisation. The new edition also retains and updates areas of debate in the book, such as those concerned with multiculturalism and the position of religion in schools. It continues to focus on England but also makes reference to other jurisdictions within the UK and internationally. It is essential reading for anyone interested in the legal and related policy issues surrounding children’s education today.

ii

Education, Law and Diversity Second Edition Schooling for One and All?

Neville Harris

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK 1385 Broadway, New York, NY 10018, USA 29 Earlsfort Terrace, Dublin 2, Ireland HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2020 Copyright © Neville Harris, 2020 Neville Harris has asserted his right under the Copyright, Designs and Patents Act 1988 to be identiﬁed as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2020. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Harris, Neville S., 1954- author. Title: Education, law and diversity : schooling for one and all? / Neville Harris. Description: Second edition. | Oxford, UK ; New York : Hart Publishing, Bloomsbury Publishing Plc, 2019. | Includes bibliographical references and index. Identiﬁers: LCCN 2019039787 (print) | LCCN 2019039788 (ebook) | ISBN 9781509906703 (hardback) | ISBN 9781509906727 (EPdf) | ISBN 9781509906710 (EPub) Subjects: LCSH: Educational law and legislation—England. | Classiﬁcation: LCC KD3600 .H37 2019 (print)

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LCC KD3600 (ebook)

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LC record available at https://lccn.loc.gov/2019039787 LC ebook record available at https://lccn.loc.gov/2019039788 ISBN:

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PREFACE This new edition has the same aim as the first: to explore education, law and diversity, focusing on the rights and responsibilities within the relationship between the state, parents and children. As with the first edition this edition concentrates primarily on education in England but draws selectively for the purposes of comparison on developments elsewhere in the UK and internationally. Over a decade on from the previous edition, the scale of new legal and policy developments in this field and the amount of additional research data that has been published has made the preparation of the manuscript an even more complex task than I had first imagined would be the case. It also became clear that in order to accommodate analysis of the many new areas of importance some restructuring of the book was needed. Many parts of this edition are new or have been largely re-written. One of the most important developments has been the transformation of the law on special educational needs, the subject of Chapter 9, as a result of the Children and Families Act 2014. On equal access to education, the Equality Act 2010 was not on the statute book at the time of the first edition but is now central to Chapter 4 on equality. Large areas of the law and policy governing the school curriculum have also changed, including a new framework on relationships education and sex education and requirements on the promotion of ‘fundamental British values’ (Chapter 6). This book also now includes analysis of the Prevent Strategy and the Counter-Terrorism and Security Act 2015 and their implications for schools and pupils (also in Chapter 6). Religion and the school curriculum form the subject of a discrete chapter, Chapter 7. The schools system itself has been transformed with the advance of academisation – one of the areas of conflict and controversy concerning schools, which also include expansion of selective education and the ‘Trojan Horse’ affair (Chapter 3). The book offers extensive coverage of children’s rights and human rights throughout, so they are no longer the subject of a separate chapter but are integrated into the substantive areas of discussion. There are new chapters dealing exclusively with the state’s role in ensuing children’s education and upholding the right to education (Chapter 2) and with education outside the state schools sector (Chapter 8) – including home education and provision in unregistered institutions, which are both the subject of current policy initiatives aimed at tightening up considerably the regulatory framework. As in the previous edition, there is also a chapter on school choice (Chapter 5), which has been fully updated. This new edition also includes a sub-title, in the form of a question, intended to reflect a core theme of the book. In light of the considerable diversity within

viii Preface society and across the pupil population (discussed in Chapter 1) there is a q uestion as to how far the law not only guarantees that all children receive education, at school or in another setting, but also whether it ensures that the education system is responding appropriately and in a rights-upholding and inclusive way to the wide-ranging educational, social and cultural needs of the diversity of children having access to it. The final Chapter (10) focuses on the ‘schooling for one and all’ question in offering some conclusions about the role of the law in this field. The author acknowledges the support of ESRC Research Grant ES/P002641/1 which funded a collaborative project with the University of Edinburgh on Autonomy, Rights and Children with Special Educational Needs, some of the findings from which are included in Chapter 9. I also wish to express my sincere gratitude to Hart Publishing for their excellent support and patience while the work was completed. Above all, thanks to Marie, who has been with me all the way on the journey towards completion of this book and whose wonderful support has been so important to me. Neville Harris August 2019

TABLE OF CONTENTS Preface�� vii List of Abbreviations�� xi List of Tables and Figures��xv Table of Cases�� xvii Table of Legislation�� xxxiii 1. Children’s Education and the Law in a Diverse Society��1 I. Introduction��1 II. Rights��7 III. Integration, Identity and Multiculturalism��15 IV. Conclusion��27 2. Responsibility for Children’s Education��29 I. Introduction��29 II. The State’s Role in Supporting Access to Education��30 III. Conclusion��92 3. Institutional Diversity in a Developing Schools System��94 I. Introduction��94 II. State Education: Separate National Systems within the UK��95 III. Schools and Education: The Role of the State 1870–1980��99 IV. Towards a More Diverse Schools System: 1980–1997��107 V. Diversity and Control of Schools Under ‘New Labour’ 1997–2010��114 VI. A New ‘Moral Order’? Education Reform Since 2010��148 VII. Conclusion��177 4. Equal Access for Children to Education Settings��181 I. Introduction��181 II. Equality and the Right to Education��183 III. The Equality Act 2010 and Children’s Education��192 IV. Conclusion��225 5. School Admission Policies and Decisions��228 I. Introduction��228 II. ‘Pupils are to be Educated in Accordance with the Wishes of their Parents’��233

x Table of Contents III. Fair Admissions?��241 IV. The Implications of School Preference��276 V. Conclusion��286 6. Secular Education in the State Sector: A Curriculum for All?��287 I. Introduction��287 II. Centralisation and a National Curriculum��288 III. ‘Fundamental British Values’ and Countering Extremism��345 IV. Sex and Relationships Education and Health Education��362 V. Conclusion��387 7. Religion in the School Curriculum��389 I. Introduction��389 II. Religious Education��394 III. Collective Worship��408 IV. Creationism and ‘Intelligent Design’��415 V. Conclusion��421 8. Education Outside the State Sector��423 I. Introduction��423 II. Regulation and Control of the Curriculum in Independent Schools��424 III. Home Education and Unregistered Schooling��432 IV. Conclusion��446 9. Special Educational Needs: Voice, Place and Choice��447 I. Introduction��447 II. SEND and Children and Young People in England��452 III. Voice��458 IV. Place��489 V. Choice��503 VI. Conclusion��514 10. Conclusion: Schooling for One and All?��516 Index��523

LIST OF ABBREVIATIONS A2P1

Article 2 of the First Protocol (ECHR)

ACM

Attendance case management

ADCS

Association of Directors of Children’s Services

ASC

Agreed syllabus conference

BESD

Behavioural, emotional and social difficulties

BHA

British Humanist Association

CEDAW

Convention on the Elimination of All Forms of Discrimination against Women

CFA

Children and Families Act

CRPD

United Nations Convention on the Rights of Persons with Disabilities

CTC

City technology colleges

DCSF

Department for Children, Schools and Families

DD

Disability discrimination

DES

Department of Education and Science

DfE

Department for Education

DfEE

Department for Education and Employment

DfES

Department for Education and Skills

DRS

Disagreement resolution services

EA

Education Act

EANI

Education Authority of Northern Ireland

EAZ

Education action zone

EBacc

English Baccalaureate

ECHR

European Convention on Human Rights

ECtHR

European Court of Human Rights

EHC

Education, health and care

xii List of Abbreviations EHCP

EHC plan

EHE

Elective home education

EHRC

Equality and Human Rights Commission

EIA

Education and Inspections Act

EiC

Excellence in Cities

EMA

Educational maintenance allowance

EqA

Equality Act

ERA

Education Reform Act

ESO

Education supervision order

FE

Further education

FSM

Free school meals

FSQ

Free-standing functional skills qualification

FtT

First-tier Tribunal

GoW

Government of Wales (in GoW Act 2006)

GTC

General Teaching Council

HAC

Home Affairs Committee

HE

Higher education

HMI

Her Majesty’s Inspectorate of Schools

ICESCR

International Covenant on Economic, Social and Cultural Rights

IPPR

Institute for Public Policy Research

JCHR

Joint Committee on Human Rights (House of Lords and House of Commons)

JFS

Jews Free School

LGBT

Lesbian, gay, bisexual, transgender

LEA

Local education authority

LGA

Local Government Association

LGO

Local Government and Social Care Ombudsman

MAT

Multi-academy trust

List of Abbreviations xiii MWRF

‘Manifestly without reasonable foundation’

NAO

National Audit Office

NC

National Curriculum

NCC

National Curriculum Council

NEETS

Young people not in education, employment or training

OAA

Own admission authority

ONS

Office for National Statistics

OPSHE

Other personal, social, health and economic education

OSA

Office of the Schools Adjudicator

PAN

Published admission number

PRU

Pupil referral unit

PSED

Public sector equality duty

PSHE

Personal, social, health and economic education

RBV

Religion, Belief and Values

RE

Religious education

RSC

Regional Schools Commissioner

RSE

Relationships and sex education (see also SRE)

SACRE

Standing advisory council on religious education

SEMH

Social, Emotional and Mental Health

SEN

Special educational needs

SENCO

SEN co-ordinator

SEND

Special educational needs and disabilities

SENDA

Special Educational Needs and Disability Act 2001

SENDIST Special Educational Needs and Disability Tribunal SENT

Special Educational Needs Tribunal

SEP

Special Education Provision

SLCN

Speech, Language and Communication Needs

SRE

Sex and relationships education (see also RSE)

xiv List of Abbreviations SSEF

Selective Schools Expansion Fund

SSFA

School Standards and Framework Act

STA

Standards and Testing Agency

TA

Teaching Agency

UNCRC

United Nations Convention on the Rights of the Child

UTJ

Upper Tribunal Judge

VA

Voluntary aided

LIST OF TABLES AND FIGURES Tables Table 2.1 Table 2.2 Table 3.1 Table 4.1 Table 9.1

Penalty notices for non-attendance issued in England, years from 2009–10 to 2017–18�� 85 Pupil absences from state schools in England by ethnicity, 2017–18�� 89 Religious profile of free schools in England, September 2016��153 Disability Discrimination Claims (Education) and Outcomes: First-tier Tribunal, 2011–12 to 2017–18��225 SEN Appeals Registered with the First-tier Tribunal 2015–18��487 Figures

Fig.1

Percentage of permanent exclusions from schools in England within each ethnic group, 2017–18�� 43

xvi

TABLE OF CASES A v Birmingham City Council [2004] EWHC 156 (Admin) �� 510 A v Governing Body of Hob Moor CP School [2004] EWHC 2165 �� 205 A v Headteacher and Governors of The Lord Grey School [2004] EWCA Civ 382; [2004] All ER (D) 544 (Mar) �� 14 A v Special Education Needs and Disability Tribunal and London Borough of Barnet [2003] EWHC 3368 (Admin); [2004] ELR 293, QBD �� 454, 513 A Local Authority v Y [2017] EWHC 968 (Fam) �� 359 Abington v Schempp; Murray v Cartlett, 374 US 203 (1963) �� 412 AH (Sudan) v Secretary of State for the Home Department [2008] 1 AC 678 �� 257 Ahman v Inner London Education Authority [1978] QB 36 �� 226, 411 Akru v Turkey, Application Nos 4149/04 and 41029/04, 15 March 2012 �� 334 AKT and Another v Westminster City Council [2018] UKUT 47 (AAC); [2018] ELR 247 �� 494 Ali v Head-teacher and Governors of Lord Grey School [2006] UKHL 14; [2006] ELR 223 �� 14, 53–54, 183 Ali v United Kingdom Application No 40385/06 [2011] ELR 85 �� 55–56, 298 Anderson and O’Doherty, In re an application for judicial review by [2001] NICA 48 �� 186, 255 Angeleni v Sweden (1988) 10 EHRR 123 �� 189 Anufrijeva and anor v Southwark London Borough Council; R (on the application of N) v Secretary of State for the Home Department; R (on the application of M) v Secretary of State for the Home Department [2003] EWCA Civ 1406; [2003] All ER (D) 288 (Oct) �� 70 B v Gloucestershire County Council and the Special Educational Needs Tribunal [1998] ELR 539 �� 510 B v London Borough of Harrow and Others [2000] ELR 109 �� 509 Barnfather v London Borough of Islington Education Authority and the Secretary of State for Education and Skills [2003] EWHC 418 (Admin); [2003] ELR 263 �� 73 Bath and North-East Somerset District Council v Warman [1999] ELR 81 �� 74 Baumbast, Case C 413/99 �� 63–64

xviii Table of Cases Belgian Linguistics (No.2) (1979–80) 1 EHRR 252 �� 30, 49–51, 53, 189, 327, 344, 383, 500, 513 Bethel School District No.403 v Fraser 478 US 675 (1986) �� 342 Birmingham City Council v Asfar [2019] EWHC 1560 (QB) �� 5 Bradbury v London Borough of Enfield [1967] 3 All ER 434 �� 103, 106 Brown v Board of Education of Topeka 347 US 483 (1954) �� 182–83 Buckingham et al v Rycotewood College Warwick Crown Court, 28 Feb 2003 �� 429 Buckinghamshire County Council v SJ [2016] UKUT 254; [2016] ELR 350 �� 465 Burke v The College of Law and the Solicitors Regulation Authority [2012] EWCA Civ 37; [2012] ELR 195 �� 222 C and C v The Governing Body of A School and Others [2018] UKUT 269 (AAC); [2018] ELR 554 �� 206 C v Buckinghamshire County Council and the Special Educational Needs Tribunal [1999] ELR 179, CA �� 510 C v London Borough of Brent [2006] EWCA Civ 728; [2006] ELR 435 �� 36 Çam v Turkey, (2016) Application No 51500/08 �� 184 Campbell and Cosans v United Kingdom (No.2), Application Nos 7511/76 and 7743/76 (1982) 4 EHRR 293 �� 52, 305, 327, 329, 343, 501–2 Carson v United Kingdom, Application No 42184/05 �� 188 Catan v Moldova and Russia, Application Nos 43370/04, 8252/05 and 18454/06 [2013] ELR 197 �� 344 CB v London Borough of Merton and Special Educational Needs Tribunal [2002] EWHC 877 (Admin); [2002] ELR 441 �� 503 Choudhury and Another v Governors of Bishop Challoner Roman Catholic Comprehensive School [1992] 3 All ER 277 �� 250, 262–63 Christian Education South Africa v Minister of Education (Case CCT 4/00) [2001] 1 LRC 441 �� 332, 431 City of Bradford Metropolitan Council v A [1997] ELR 417 �� 457 CJ, JJ and EJ v Poland, Application No 23380/94, Commission on Human Rights �� 403 CL v Hampshire County Council [2011] UKUT 468 (AAC); [2012] ELR 110 �� 487 CM v London Borough of Bexley [2011] UKUT 215 (AAC); [2011] ELR 413 �� 510 Cohen v United Kingdom (1996) 21 EHRR CD 104 �� 500 Çölgeçen v Turkey, Application Nos 50124/07, 53082/07, 399/08, 776/08, 1931/08, 2213/08 and 2953/08 [2018] ELR 464 �� 52 Costello-Roberts v United Kingdom, Application No 89/1991/341/414, [1994] ELR 1 �� 78, 383, 429

Table of Cases xix Coster v United Kingdom, Application No 24876/94 (2001) 33 EHRR 479 �� 51 Crump v Gilmore (1970) 68 LGR 56 �� 73, 77 Cumings v Birkenhead Corporation [1971] 2 All ER 881 �� 236, 238 Cyprus v Turkey, Application No 25781/94 (2002) 35 EHRR 731 �� 52, 292, 344 Dbies and Ors v Secretary of State for the Home Department [2005] EWCA Civ 584; [2005] All ER (D) 283 (May) �� 70 DC and DC v Hertfordshire County Council (SEN) (Special Educational Needs: Description of Special Educational Needs) [2016] UKUT379 (AAC); [2017] ELR 27 �� 457 DH v Czech Republic, Application No 57325/00 (Grand Chamber, 13 November 2007) [2008] ELR 17 �� 182, 190, 518 Dimmock v Secretary of State for Education and Skills [2007] EWHC 2288; [2008] ELR 98 �� 293 Diocese of Menevia, the Governors of Bishop Vaughan Catholic Comprehensive School, and W (By Her Litigation friend SC) v City and Council of Swansea County [2015] EWHC 1436 (Admin); [2015] ELR 389 �� 186, 200 Dogru v France, Application No 27058/05 [2009] ELR 77 �� 52, 328–29 Dojan and Others v Germany, Application Nos 319/08, 2455/08, 7908/10, 8152/10 and 8155/10, 13 September 2011 �� 91, 327, 383–84, 518 Dudley Metropolitan Borough v Shurvington and Others [2012] EWCA Civ 346; [2012] ELR 206 �� 508 E (a child) (AP) (Appellant) (Northern Ireland), In re [2008] UKHL 66 �� 12, 48 E, In re the application of [2004] NIQB 35 �� 48 E Application for Judicial Review, Re [2006] NICA 37 �� 48 E v LB Newham and SENT [2002] EWHC 915 (Admin); [2002] ELR 453, QBD, and [2003] EWCA Civ 09; [2003] ELR 286, CA �� 487 E v Rotherham Metropolitan Borough Council [2001] EWHC Admin 432; [2002] ELR 266 �� 487 Ealing London Borough Council v Special Educational Needs and Disability Tribunal and Mr and Mrs K [2008] EWHC 193 (Admin); [2008] ELR 183 �� 511 East Sussex CC v Philip [2019] 19 January 2019 �� 74 East Sussex County Council v JC [2018] UKUT 81 (AAC), [2018] ELR 383 �� 482 East Sussex County Council v TW [2016] UKUT 528 (AAC) �� 487 Edwards v Aguillard 482 US 578 (1987) �� 389, 417 EH v Kent County Council [2011] EWCA Civ 709; [2011] ELR 433 �� 240, 511 Engel v Vitale 37 US 421 (1962) �� 412

xx Table of Cases Epperson v Arkansas, 393 US 97 (1968) �� 417 Equal Opportunities Commission v Birmingham City Council 1989] 1 All ER 769 �� 102, 192 Erkki Hartikainen v Finland Communication No 40/1978, UN Doc CCPR/C/OP/1 �� 405 Essex County Council v SENDIST [2006] EWHC 1105 (Admin); [2006] ELR 452 �� 508, 511 European Committee for Home-Based Priority Action for the Child and the Family (EUROCEF) v France, Complaint No 82/2012 (2013) 57 EHRR SE21 �� 84 Family H v United Kingdom (1984) 37 DR 105 �� 501 Fisher v University of Texas 136 S Ct 2198 (2016) �� 227 Folgerø and Others v Norway, (Application No 15472/02) [2007] ELR 557 �� 333, 383, 401, 405–7 Freiler v Tangipahoa Parish Bd. Of Educ 185 F3d 337 (5th Cir, 1999) �� 418 FS (Re T) v London Borough of Bromley [2013] UKUT 529 (AAC), [2014] ELR 1 �� 509 F-T v The Governors of Hampton Dene Primary Primary School [2016] UKUT 468 (AAC), [2017] ELR 38 �� 213 G v London Borough of Barnet and the SENT [1998] ELR 480 �� 454 G v The Headteacher and Governors of St Gregory’s Catholic Science College [2011] EWHC 1452; [2011] ELR 446 �� 197 G v Wakefield Metropolitan Borough Council, 29 January 1998, QBD (unreported) �� 454 Garardo Ruiz Zambrano v Office national de l’emploi (ONEm), (Case C-34/09) (8 March 2011) �� 63 Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112; [2006] 2 WLR 1130 �� 364, 367–68, 384–86, 414 Governing Body of the London Oratory School v Schools Adjudicator, Secretary of State for Education and Skills and the Governing Body of Peterborough Primary School [2005] EWHC 1842 (Admin); [2005] ELR 484 �� 248–49, 256–58 Governing Body of X School v SP and Special Educational Needs and Disability Tribunal [2008] EWHC 389 (Admin); [2008] ELR 243 �� 221 Graeme v United Kingdom (1990) 64 DR 158 �� 500, 503 Gratz v Bollinger 123 S Ct. 2411 (2003) �� 227 Grutter v Bollinger 123 S Ct. 2325 (2003) �� 227 H v A London Borough [2015] UKUT 316 (AAC); [2015] ELR 503 �� 457 H v Kent County Council and the Special Educational Needs Tribunal [2000] ELR 660 �� 450

Table of Cases xxi Haining v Warrington Borough Council [2014] EWCA Civ 398; [2014] ELR 212 �� 240, 512 Hampshire County Council v E [2007] EWHC 2584 (Admin); [2008] ELR 260 �� 73 Hampshire County Council v R and SENDIST [2009] EWHC 626 (Admin); [2009] ELR 371 �� 506 Harvey v Strathclyde Regional Council 1989 SLT 612 �� 239 Hasan and Chaush v Bulgaria, Application No 30985/96 (2002) 34 EHRR 55 �� 343 Her Majesty’s Chief Inspector of Education, Children’s Services and Skills v The Interim Executive Board of Al-Hijrah School and Others [2017] EWCA Civ 1426; [2018] ELR 25 �� 173, 210, 212, 390, 431 Hinchley v Rankin [1961] 1 WLR 421 �� 73 HM Chief Inspector of Education, Children’s Services and Skills v The Interim Executive Board of Al-Hijrah School and Others [2017] EWCA Civ 1426; [2018] ELR 25 �� 390 Hoffman v Austria (1993) 17 EHRR 293 �� 403 Holub and Holub v Secretary of State for the Home Department [2001] ELR 401 �� 68 Hopwood v State of Texas et al (1996) 78 F 3d 932 (US Ct of Apps (5th Cir)) �� 227 Horváth and Kiss v Hungary, Application No 11146/11, 29 January 2013 [2013] ELR 102 �� 49, 191 Huang and Ors v Secretary of State for the Home Department [2005] EWCA Civ 105 �� 70 Human Rights Act 1998, s 6(2) �� 183 Humphreys v The Commissioners for Her Majesty’s Revenue and Customs [2012] UKSC 18 �� 188 HW and W v Bedfordshire County Council [2004] EWHC 560 (Admin); [2004] ELR 586 �� 512 Ibrahim, (C-310/08) [2010] E.C.R. I-1065 �� 63 Inam Anwar v National College for Teaching and Leadership and the Secretary of State for Education [2016] EWHC 2507 (Admin) �� 172 Interim Executive Board of X School v Her Majesty’s Chief Inspector of Education, Children’s Services and Skills [2016] EWHC 2813 (Admin); [2017] ELR 54 �� 210 International Association Autism-Europe (IAAE) v France, European Committee of Social Rights, complaint No 13/2002 �� 8 İrfan Temel and Others v Turkey Application No 36458/02, 3 March 2009 �� 52 Isle of Wight Council v Platt [2016] EWHC 1283 (Admin); [2016] ELR 268; [2017] UKSC 28; [2017] 1 WLR 1441; [2017] ELR 413 �� 76–78, 83, 85, 92–93

xxii Table of Cases Ivanova v Bulgaria, Application No 52435/99 [2007] ELR 612 �� 192 J (Child’s religious upbringing and circumcision), Re [1999] 2 FCR 345 �� 402 J v Devon County Council and Strowger [2001] EWHC Admin 958 �� 487 Jarman v Mid-Glamorgan Education Authority (1985) 11 February �� 74 JD v South Tyneside Council (SEN) [2016] UKUT 0009 (AAC); [2016] ELR 118 �� 487 Jenkins v Howells [1949] 2 KB 218 �� 74 JW v Governing Body of Sinai Jewish Primary School [2019] UKUT 88 (AAC); [2019] ELR 259 �� 221 K v London Borough of Hillingdon [2011] UKUT 71 (AAC); [2011] ELR 165��512 Karus v Italy, Application No 29043/95 (1998) �� 50, 189 KC v London Borough of Hammersmith and Fulham (SEN) [2015] UKUT 177 (AAC); [2015] ELR 317 �� 506, 510 KE v Lancashire County Council (SEN) [2017] UKUT 468 (AAC); [2018] ELR 196 �� 510 Kebede and Kebede v Secretary of State for Business, Innovation and Skills [2013] EWHC 2396 (Admin) �� 186 Kenney v Strathclyde Regional Council 1986 SLT 490 �� 239 Kitzmiller et al v Dover Area School District et al (USDC MD Penn), 20 Dec 2005 �� 417–18 Kjeldsen, Busk Madsen and Pedersen v Denmark (1979–80) 1 EHRR 711 �� 52, 293, 305, 327, 330, 363, 383–85, 401, 407 Klerks v Netherlands (1995) 82 DR 41 �� 500 Konrad and Others v Germany, Application No 35504/03, 11 September 2006 �� 91, 327, 384, 435–36 L, Re [2003] UKHL 9; [2003] ELR 309 �� 35 L v Clarke and Somerset CC [1998] ELR 129 �� 487 L v Hereford and Worcester County Council and Hughes [2000] ELR 375 �� 502 L v Worcestershire County Council and Hughes [2000] ELR 674 �� 492 Lautsi v Italy, Application No 30814/06 [2011] ELR 176 �� 192, 327 Lavida v Greece, Application No 7973/10 �� 191 Lee v Weisman, 505 US 577 (1992) �� 412 Lemon v Kurtzman, 403 US 602 (1971) �� 417, 419 Leuffen v Germany Application No 19844/92 Commission decision of 9 July 1992 �� 91, 436 Leyla Şahin v Turkey App No 44774/98, 10 Nov 2005 �� 50, 52, 61, 185 London Borough of Bromley v C [2006] ELR 358 �� 77 London Borough of Hammersmith v L; London Borough of Hammersmith and Fulham v F; O v Lancashire County Council; H v Lancashire County Council [2015] UKUT 523 (AAC); [2015] ELR 528 �� 240, 511

Table of Cases xxiii London Borough of Hillingdon v WW [2016] UKUT 253 (AAC); [2016] ELR 431 �� 465 M and M v West Sussex County Council [2018] UKUT 347 (AAC); [2019] ELR 43 �� 379, 484–85 M School v CC, PC and Another [2003] EWHC 3045; [2004] ELR 89, QBD �� 214 MA v Borough of Kensington and Chelsea [2015] UKUT 186 (AAC); [2015] ELR 326 �� 495 McCreary County v Am. Civil Liberties Union 354 F3d 438 (6th Cir, 2004) �� 389 McLaughlin, In re [2018] UKSC 48 �� 188 McLean v Arkansas, 529 F Supp 1255 (ED Ark 1982) �� 417 Mandla v Dowell Lee [1983] 2 AC 548, HL �� 215–16, 218 Matin v University College London and Another [2012] EWHC 2474 (Admin); [2012] ELR 487 �� 50 Mayor and Burgesses of the London Borough of Wandsworth v National Association of Schoolmasters/Union of Women Teachers [1994] ELR 170, CA �� 300 ME v London Borough of Southwark [2017] UKUT 73 (AAC); [2017] ELR 209 �� 507 Meade v Haringey London Borough Council [1979] 2 All ER 1016 �� 33, 103 Medical Disability Advocacy Center (MAC) v Bulgaria, European Committee of Social Rights, complaint No 41/2007 �� 8 ML v Kent County Council [2013] UKUT 125 (AAC); [2013] ELR 364 �� 221 Mount v Oldham Corporation [1973] 1 QB 309 (CA) �� 429 Multani v Commission scolaire Marguerite-Bourgeoys and Attorned General of Quebec and World Sikh Organisation of Canada and others [2006] SCC 6 (Sup Ct of Canada) �� 331 Mürsel Eren v Turkey Application No 60856/00, 7 February 2006 �� 50 NA v London Borough of Barnet [2010] UKUT 180 (AAC); [2010] ELR 617 �� 506 O (A Minor) (Care Proceedings: Education), Re [1992] 1 WLR 912 �� 91 O v London Borough of Lewisham [2007] EWHC 2130 (Admin); [2007] ELR 633 �� 512 Oršuš v Croatia, Application No 57325/00 (Grand Chamber, 13 November 2007) [2008] ELR 17 �� 190–91 Osmanoğlu and Kocabaş v Switzerland Application No 29086/12, 10.01.2017 �� 328, 338, 390 Oxfordshire County Council v GB and Others [2001] EWCA Civ 1358; [2002] ELR 8 �� 240, 511–12 P v East Sussex County Council [2014] EWHC 4634 (Admin); [2015] ELR 178 �� 200 P v Governing Body of a Primary School [2013] UKUT 154 (AAC); [2013] ELR 497 �� 206

xxiv Table of Cases P v NASUWT [2001] ELR 607 �� 35 P v NASUWT [2003] UKHL 8; [2003] ELR 357 �� 35 P v The Schools Adjudicator [2006] EWHC 1934 (Admin); [2006] ELR 557 �� 256 PD and LD v United Kingdom (1989) 62 DR 292 �� 500 Pepper v Hart [1993] AC 593 �� 239 Ponomaryovi v Bulgaria (Application No 5335/05) (2011) 59 EHRR 799 �� 7, 31, 61, 188 PP and SP v Trustees of Leicester Grammar School (SEN) [2014] UKUT 520 (AAT); [2015] ELR 86 �� 205 Price v Dennis, 29 Jan 1988 (CA) �� 429 Queen on the application of B v Head Teacher of Alperton Community School and Others; The Queen v Head Teacher of Wembley High School and Others ex p T; The Queen v Governing Body of Cardinal Newman High School and Others ex p C [2001] ELR 359 �� 260, 268, 275 Queen (The) on the application of Williamson v Secretary of State for Education and Employment [2001] EW HC Admin 960; [2002] ELR 214, QBD �� 502 R v Appeal Committee of Brighouse School ex p G; same ex p.B [1997] ELR 39 �� 267 R v Beatrix Potter School ex p K [1997] ELR 468 �� 243 R v Birmingham City Council ex p Equal Opportunities Commission (No 2) [1994] ELR 282 (CA) �� 102, 192 R v Birmingham City Council ex p L [2000] ELR 543 �� 243 R v Bromley LBC ex p C [1992] 1 FLR 174 �� 252 R v Chair of Governors of A and S School ex p T [2000] ELR 274 �� 509 R v City of Bradford Metropolitan Borough ex p Sikander Ali [1994] ELR 299 �� 215, 250–51 R v Cleveland County Council and Others ex p The Commission for Racial Equality [1994] ELR 44 �� 209 R v Cobham Hall School ex p S [1998] ELR 389 �� 14 R v Commissioner for Local Administration ex p Croydon London Borough Council [1989] 1 All ER 1033 �� 264, 266–68 R v Cumbria County Council ex p P [1995] 337 �� 487 R v Downes Ex p Wandsworth LBC [2000] ELR 425 �� 256 R v East Sussex County Council ex p T [1998] ELR 251 �� 34 R v Education Appeal Committee of Leicestershire County Council ex p Tarmohamed [1997] ELR 48 �� 268 R v Essex County Council ex p Jacobs [1997] ELR 190 �� 267 R v Fernhill Manor School ex p A [1994] ELR 67 �� 14 R v Governors of Haberdashers’ Aske’s Hatcham College Trust ex p T [1995] ELR 350 �� 14, 110

Table of Cases xxv R v Governors of John Bacon School ex p Inner London Education Authority (1990) 88 LGR 648 �� 110 R v Hampshire Education Authority ex p J (1985) 84 LGR 547 �� 454 R v Inner London Education Authority ex p Ali and Murshid [1990] 2 Admin LR 822 �� 33, 103 R v Inner London Education Authority ex p Bradby, 30 Jan 1988 (Lexis) �� 101 R v Kingston upon Thames Royal London Borough Council ex p Emsden [1993] 1 FLR 179 �� 273 R v Lancashire CC ex p CM (A Minor) [1989] 2 FLR 279, CA �� 454 R v Lancashire CC ex p F [1995] ELR 33 �� 237, 250, 283 R v Leeds Magistrates Court and Others [2005] EWHC 1479 (Admin); [2005] ELR 589 �� 74 R v London Borough of Greenwich ex p Governors of John Ball Primary School [1990] Fam Law 469 (1990) 154 LGR 678, CA �� 250–53 R v London Borough of Islington ex p Rixon [1997] ELR 66 �� 101 R v London Borough of Lambeth ex p G [1994] ELR 207 �� 239 R v London Borough of Lambeth ex p MBM [1995] ELR 374 �� 457 R v London Borough of Richmond ex p JC [2001] ELR 21, CA �� 260, 264, 269, 275 R v Muntham House School ex p R [2000] ELR 287 �� 14 R v Northamptonshire County Council and the Secretary of State for Education ex p K tate for Education ex p K [1994] ELR 397 �� 102, 192 R v Portsmouth City Council ex p F [1998] ELR 619 �� 454 R v Rotherham MBC ex p Clark [1998] ELR 152, QBD and CA �� 251, 261 R v Rotherham Metropolitan Borough Council ex p LT [2000] ELR 76, CA �� 253 R v Royal Borough of Kingston upon Thames ex p Kingwell [1992] 1 FLR 182 �� 252 R v Schools Adjudicator Ex p Wirral MBC [2000] ELR 620 �� 256 R v Secretary of State for Education and Science ex p Chance 26 July 1982 (unreported) �� 103 R v Secretary of State for Education and Science ex p Keating (1985) 84 LGR 469 �� 102, 192 R v Secretary of State for Education and Science ex p Malik [1992] COD 31 �� 102, 192 R v Secretary of State for Education and Science ex p Talmud Torah Machzikei Hadass School Trust The Times, 12 Apr 1985 �� 338, 429–31, 443–44 R v Secretary of State for Education and Science ex p Yusuf Islam [1994] ELR 111 �� 129, 145 R v Secretary of State for Education ex p C [1996] ELR 93 �� 454 R v Secretary of State for Education ex p R and D [1994] ELR 495 �� 410 R v Secretary of State for the Home Department ex p Doody [1994] 1 AC 531 �� 259

xxvi Table of Cases R v Sheffield City Council ex p M [2000] ELR 85 �� 267 R v South Glamorgan Appeals Committee ex p Evans 10 May, 1984, CO/197/84, Lexis Nexis �� 266 R v South Gloucestershire Education Appeals Committee ex p Bryant [2001] ELR 53, CA �� 264, 270 R v West Sussex County Council ex p S [1999] ELR 40 �� 510 R v Wiltshire County Council ex p Razazan [1997] ELR 370, CA �� 253 R (A) v National Asylum Support Service and London Borough of Waltham Forest [2003] EWCA Civ 1473 �� 68 R (Academy Trust for Hockerhill Anglo-European College) v The Office of the Schools Adjudicator [2016] EWHC 1642 (Admin); [2017] ELR 187 �� 256 R (AD) v London Borough of Hackney [2019] EWHC 943 (Admin); [2019] ELR 296 �� 466 R (Axon) v Secretary of State for Health and the Family Planning Association [2006] EWHC Admin 37; [2006] QB 539 �� 368, 384–85 R (B) v Head Teacher of Alperton Community School and Others; R v Head Teacher of Wembley High School and Others ex p T; R v Governing Body of Cardinal Newman High School and Others ex p C [2001] ELR 359 �� 35, 503 R (B) v Hertfordshire County Council [2004] EWHC 2324 (Admin); [2005] ELR 17 �� 276 R (Baker) v Secretary of State for Communities and Local Government [2008] EWCA Civ 141 �� 199 R (Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15; [2006] 2 WLR 719 �� 51, 330–31, 343, 358, 388, 403 R (Ben-Dor) v University of Southampton [2015] EWHC 2206 (Admin); [2015] ELR 590 �� 292 R (British Humanist Association and Rodell) v London Borough of Richmond upon Thames and Others [2012] EWHC 3622 (Admin) �� 161 R (Brown) v Secretary of State for Work and Pensions and Another [2008] EWHC 3158 (Admin) �� 201 R (Carmichael and Rourke) v SSWP; R (Daly) v SSWP; R (A) v SSWP; R (Rutherford) v SSWP [2016] UKSC 58 �� 188 R (D) v Davies and Surrey County Council [2003] EWHC 2682; [2004] ELR 416 �� 508 R (D) v Governing Body of Plymouth High School for Girls [2004] EWHC 1923 (Admin); [2004] ELR 591 �� 220 R (DA) v Secretary of State for Work and Pensions; R (DS) v Secretary of State for Work and Pensions [2019] UKSC 21 �� 189 R (Douglas) v North Tyneside Metropolitan Borough Council and Secretary of State for Education and Skills [2003] ELR 117; [2004] ELR 117 �� 61, 187

Table of Cases xxvii R (Drexler) v Leicestershire County Council [2019] EWHC 1934 (Admin) �� 186, 188 R (DS) v Wolverhampton City Council [2017] EWHC 1660 (Admin); [2017] ELR 630 �� 35 R (E) v London Borough of Islington [2017] EWHC 1440 (Admin); [2017] ELR 458, QBD �� 59 R (E) v The Governing Body of JFS and the Admissions Panel of JFS; R (E) v Office of the Schools Adjudicator [2009] UKSC 15; [2010] ELR 26, �� 209, 216–219 [2009] EWCA Civ 626; [2009] ELR 407, CA �� 216 [2008] EWHC 1535/1536; [2008] ELR 445, QBD �� 201, 216, 237 R (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293 �� 195 R (Fox and Others) v Secretary of State for Education [2015] EWHC 3404 (Admin); [2016] ELR 61 �� 334, 394, 400–402, 407 R (G) v Westminster City Council [2004] 1 WLR 1113 �� 36 R (Governing Body of Drayton Manor School) v The Schools Adjudicator [2008] EWHC 3119 (Admin); [2009] ELR 127 �� 256 R (Governing Body of the Warren Comprehensive School and the London Borough of Barking and Dagenham) v Secretary of State for Education [2014] EWHC 2252 (Admin); [2014] ELR 530. �� 161 R (H) v Chair of the Special Educational Needs Tribunal and R School [2004] EWHC 981 (Admin); [2005] ELR 67 �� 205 R (Hurley and Moore) v Secretary of State for Business, Innovation and Skills [2012] ELR 297 �� 7, 31, 61, 186–87, 199, 255 R (Interim Board of X School) v Her Majesty’s Chief Inspector of Education, Children’s Services and Skills [2016] EWHC 2813 (Admin); [2017] ELR 54 �� 173 R (JR 17) (Northern Ireland) [2010] UKSC 27; [2010] ELR 764 �� 55 R (K) v London Borough of Newham [2002] EWHC 405 (Admin); [2002] ELR 390 �� 250, 261 R (KE, IE and CH) v Bristol City Council [2018] EWHC 2103 (Admin); [2018] ELR 502 �� 202, 507 R (KH and Others) v Surrey County Council [2019] EWHC 618 (Admin) �� 202, 466, 507 R (Khundakji and Salahi) v Admissions Appeal Panel of Cardiff County Council [2003] EWHC 436 (Admin); [2003] ELR 495 �� 270 R (London Borough of Richmond) v AQA and Others [2013] EWHC 211 (Admin); [2013] ELR 281 �� 200 R (M) v Worcestershire County Council [2004] EWHC 1045 (Admin); [2005] ELR 48 �� 35 R (MA and Others) v Secretary of State for Work and Pensions and Birmingham City Council [2013] EWHC 2213 �� 12

xxviii Table of Cases R (MA) (Pakistan) & Ors v Upper Tribunal (Immigration & Asylum) and Anor, etc. [2016] EWCA Civ 705 �� 69 R (McDougal) v Liverpool City Council [2009] EWHC 1821 (Admin); [2009] ELR 510 �� 187 R (MH) v Special Educational Needs and Disability Tribunal and London Borough of Hounslow Borough Council [2004] EWCA Civ 770; [2004] ELR 424, CA �� 493, 506 R (N) v London Borough of Barking and Dagenham Independent Appeal Panel [2009] EWCA Civ 108; [2009] ELR 268, CA �� 214 R (O) v St James RC Primary School Appeal Panel [2001] ELR 469 �� 250, 264 R (O) v The Governing Body of Parkview Academy and Another [2007] EWCA Civ 592; [2007] ELR 454 �� 35 R (P) v Liverpool City Magistrates [2006] EWHC 887 (Admin); [2006] ELR 386 �� 80 R (Playfoot) v Governing Body of Millais School [2007] EWHC 1698 (Admin); [2007] ELR 484 �� 343 R (R) v Kent County Council [2007] EWHC 2135 (Admin); [2007] ELR 648 �� 36 R (R and Others) v Leeds City Council [2005] EWHC 2495 (Admin); [2006] ELR 25 �� 186 R (Razgar) v Secretary of State for the Home Department [2004] UKHL 227 �� 70 R (Reading Borough Council) v Admissions Appeal Panel for Reading Borough Council and 15 Parents [2005] EWHC 2378 (Admin); [2006] ELR 186 �� 269 R (RG) v London Borough of Ealing and SENDIST [2005] EWHC 2335 (Admin); [2006] ELR 197 �� 507–8 R (S) v Head Teacher of C High School and Others [2001] EWHC Admin 513; [2002] ELR 73 �� 35 R (SB) v Headteacher and Governors of Denbigh High School [2005] EWCA Civ 199; [2005] ELR 198, CA �� 330 R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16; [2015] 1 WLR 1449 �� 189 R (South Gloucestershire Local Education Authority) v The South Gloucestershire Schools Appeal Panel [2001] EWHC Admin 732; [2002] ELR 309 �� 251 R (T) v Governing Body of OL Primary School [2005] EWHC 753 (Admin); [2005] ELR 522, QBD �� 214 R (Tigere) v Secretary of State for Business, Innovation and Skills �� 60–61, 186–88, 207 R (TP, AR and SXC) v Secretary of State for Work and Pensions [2019] EWHC 1127 (QB) �� 187

Table of Cases xxix R (W) v The Special Educational Needs and Disability Tribunal and the London Borough of Hillingdon [2005] EWHC 1580 (Admin); [2005] ELR 599 �� 509 R (Wandsworth LBC) v Schools Adjudicator [2003] EWHC 2969 (Admin)�� 256 R (Watford Grammar School for Girls and Watford Grammar School for Boys) v Adjudicator for Schools [2003] EWHC 2480 (Admin) �� 256 R (Watkins-Singh) v Governing Body of Aberdare Girls’ High School and Rhondda Cynon Taf Unitary Authority [2008] EWHC 1865 (Admin); [2008] ELR 561 �� 196, 198, 214 R (West and Others) v Rhondda Cynon Taff County Borough Council [2014] EWHC 2134 (Admin); [2014] ELR 396 �� 199 R (Williamson) v Secretary of State for Education and Employment and Others [2005] UKHL 15; [2005] ELR 291; [2005] 2 AC 246, HL �� 12, 329–32, 343, 384, 431, 501–2 [2002] EWCA Civ 1926; [2003] QB 1300; [2003] ELR 176, CA�� 78, 502 R (Wiltshire County Council) v YM and Special Educational Needs and Disability Tribunal [2005] EWHC 2521 (Admin); [2006] ELR 56 �� 508, 511 R (X) v Y School [2007] EWHC 298 (Admin); [2007] ELR 278 �� 331, 344 R (ZK) v London Borough of Redbridge [2019] EWHC 1450 (Admin) �� 466 Regents of the University of California v Bakke 438 US 265 (1978) �� 227 Richardson v Solihull Metropolitan Borough Council and the Special Educational Needs Tribunals [Etc] [1998] ELR 319 �� 493 Roddy (a child) (identification: restriction on publication), Re [2003] EWHC Fam 2927; [2004] 2 FLR 949 �� 384 S and S v Bracknell Forest Borough Council and the Special Educational Needs Tribunal [1999] ELR 51 �� 510 S v City and Council of Swansea [2000] ELR 315 �� 487 S v London Borough of Hackney and the Special Educational Needs Tribunal [2001] EWHC Admin 572; [2002] ELR 45 �� 511, 513 S v Special Educational Needs Tribunal and the City of Westminster [1996] ELR 228 �� 462, 480 S v United Kingdom, Application No 11674/85 (1986) 46 DR 245 �� 292 S v Worcestershire County Council (SEN) [2017] UKUT 92 (AAC); [2017] ELR 218 �� 483 Sampani and Others v Greece, Application No 59608/09, 11 December 2012 �� 191 Sampanis and Others v Greece, Application No 32526/05, 5 June 2008 �� 191 Santa Fe Independent School District v Doe (Santa Fe) 528 US 290 (2000) �� 412

xxx Table of Cases SB v Herefordshire County Council [2018] UKUT 141 (AAC); [2018] ELR 537 �� 487 School Admission Appeals Panel for the London Borough of Hounslow v The Mayor and Burgesses of the London Borough of Hounslow [2002] EWCA Civ 900; [2002] ELR 602 �� 250–51, 270 Scopes v State, 278 SW 57 (Tenn 1925) �� 417 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 (HL) �� 102–3, 106, 237 Secretary of State for the Home Department v CS, (Case C-304/14) (13 September 2016) �� 63 Selman v Cobb County Sched. Dist., 390 FSupp.2d 1286, 2005 WL 83829 (NDGa) �� 418 Simpson v UK (1989) 64 DR 188 �� 51, 499, 513 Slough Borough Council and the Special Educational Needs and Disability Tribunal v C [2004] EWHC 1759 (Admin); [2004] ELR 546 �� 507 SN v Nottinghamshire County Council [2014] UKUT 2 (AAC), [2014] ELR 286 �� 212 Somerset County Council v RS [2019] EWFC B12; [2019] ELR 364 �� 74 South Glamorgan County Council v Land M [1996] ELR 400 �� 492 SP v United Kingdom, Application No 28915/95, European Commission of Human Rights, 17 Jan 1987 �� 51 St Helens BC v TE and another [2018] UKUT 278 (AAC); [2018] ELR 674 �� 483, 485 Staffordshire County Council v JM, [2016] UKUT 0246 (AAC); [2016] ELR 307 �� 454 Stec v United Kingdom, Application Nos 65731/01 and 65900/01 �� 188 Stevenson v Secretary of State for Work and Pensions [2017] EWCA Civ 2123 �� 188 Stoian v Romania (2019) Application No 289/14 �� 51, 184, 500 Stone v Graham 449 US 39 (1980) �� 389 Sulak v Turkey (1996) Application No 24515/94, 17 January 1996 �� 52 Sürek v Turkey (1999) 7 EHRC 339 �� 292 Surrey County Council v P and P [1997] ELR 516 �� 508 T v Special Educational Needs Tribunal and Wiltshire County Council [2002] EWHC 1474 (Admin); [2002] ELR 704 �� 501 Tarantino and Others v Italy, Appln Nos 25851/09, 29284/09 and 64090/09 [2013] ELR 375 �� 50 TB v Essex County Council (SEN) [2013] UKUT 534 (AAC); [2014] ELR 46 �� 495 Teixeira, (C-480/08) [2010] E.C.R. I-1107 �� 63 Timishev v Russia Application Nos 55762/00 and 55974/00, 13 December 2005 �� 52–53

Table of Cases xxxi Valsamis v Greece, Case No 74/1995/580/666 (1996) 24 EHRR 294; [1998] ELR 430 �� 192, 305, 327–28, 330, 338, 363, 403 Vogt v Germany EHRC 339 �� 292 W and KL v Sweden, Application No 10228/82 (1985) 45 DR 143 �� 51, 500 W v Leeds City Council and the Special Educational Needs and Disability Tribunal [2004] EWHC 2513 (Admin); [2005] ELR 459 �� 454 Wardle-Heron v London Borough of Newham and the SENT [2002] EWHC 2806 (Admin); [2004] ELR 68 �� 512 Watt v Kesteven County Council [1955] 1 All ER 473 (CA) �� 103, 236–37, 239, 325, 409 Webster and Others v Governors of Ridgeway Foundation School [2009] EWHC 1140 (QB) [2009] ELR 439 �� 12 West Sussex County Council v E [2013] EWHC 1757 (Admin); [2013] ELR 561 �� 74 WH v Warrington Borough Council [2013] UKUT 391 (AAC); [2013] ELR 568 �� 512 Wisconsin v Yoder 406 US 205 (1972) �� 339–43 Wood v Ealing London Borough Council [1967] Ch 364 �� 106, 238, 326 W-R v Solihull Metropolitan Borough Council and Wall [1999] ELR 528 �� 510 Wunderlich v Germany, Application No 18925/15, decision of 10 January 2019, [2019] ELR 149 �� 78, 90–91, 435 X, Y and Z v Federal Republic of Germany, Application No 9411/81 (1982) 29 DR 224 �� 330 X and X v Caerphilly Borough Council and the Special Educational Needs and Disability Tribunal [2004] EWHC 2140 (Admin); [2005] ELR 78 �� 454 X v The Governing Body of a School [2015] UKUT 0007 (AAC); [2015] ELR 133 �� 206 X v United Kingdom (1979) 16 DR 101 �� 292 X v United Kingdom Application No 7782/77 (1978) 14 DR 179 �� 50 Y (Risk of Young Person Travelling to Join IS) (No.2), Re [2016] 2 FLR 229 �� 359 Yanasik v Turkey, Application No 14524/89 (1993) 74 DR 14 �� 52 Yousef v Netherlands (2003) 36 EHRR 345 �� 384 Zengen v Turkey, (Application No 1448/04) (2008) 46 EHRR 44 �� 333, 407 ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 �� 12, 68 Zylberberg et al v Director of Education of Sudbury Board of Education; League for Human Rights of B’nai Brith Canada et al, Intervenors Re (1988), 65 OR (2d) 641; (1988) 52 DLR (4th) 577 �� 404

xxxii

TABLE OF LEGISLATION Table of Statutes Academies Act 2010��156, 160, 169, 175 s 1(6)�� 159, 296 s 1(8)��159 s 1A��158, 258, 296, 424 s 1A(1)(c)��175 s 1B��165 s 1C��165 s 1D��165 s 2E��33 s 3��160 s 4(1)(b)��160 s 4(4)��156 s 4(A1)��162 s 5��156 s 6��160 s 6(2)��157 s 6(2A)��157 s 6(3)��175 s 6(4)��175 s 6A��161 s 7��157 s 8��157 s 9��156 s 10��156 Additional Learning Needs and Education Tribunal (Wales) Act 2018�� 99, 447, 463 s 70��463 Anti-social Behaviour Act (ASBA) 2003�� 82–83 s 19��82 s 20�� 82, 133 s 21��82 s 22��82 s 22A��82 s 23��83

xxxiv Table of Legislation Apprenticeships, Skills, Children and Learning Act 2009�� 34, 146–47, 301, 310 s 134��311 s 248��129 s 249��123 Sch 2, para 3�� 32, 146 Borders, Citizenship and Immigration Act 2009, s 55��68 Care Act 2014��472 Care Standards Act 2000��131 Charities Act 2011��179 Childcare Act 2006�� 256, 308 s 7��254 ss 39–48��308 Sch 1��308 Sch 3��308 Children, Schools and Families Act 2010�� 35, 481 s 3��35 Children Act 1989�� 87, 402, 427, 442, 462, 480 s 3(1)��402 s 8��402 s 10��402 s 22(1)�� 248, 462 s 23ZZA(1), (2), (4)–(8)��33 s 23ZZA(3)��33 s 36(3)��87 s 36(4)��87 s 36(5)��87 s 36(6)��87 Sch 3 para 12(1)��87 para 13��87 para 15��87 para 18��87 Children Act 2004��147 s 11��440 Sch 5��255 Children and Families Act (CFA) 2014��13, 159, 224, 233, 240, 265, 447, 449–50, 452, 458–59, 462, 464, 467, 469, 475–77, 480, 482, 486–87, 494, 504–7, 510, 512, 514, 519 Pt 3��231, 447, 449 s 19�� 241, 464, 483–85 s 20��447 s 20(1)��447, 452, 457

Table of Legislation xxxv s 20(2)��453 s 20(3)��453 s 20(4)��453 s 21(1) and (2)��457 s 21(5)��457 s 22��450 s 23��450 s 27��466 s 30�� 450, 466 s 32�� 450, 469 s 33��495 s 33(1)–(2)��494 s 33(1)–(4)��507 s 33(3)–(5)��494 s 34��495 s 34(1)–(2)��494 s 35(1)–(2)��494 s 35(3)��494 s 36��450 s 36(1)–(2)��469 s 36(3)–(4)��469 s 36(8)��469 s 37�� 159, 450 s 37(1)��470 s 38(1)��470 s 38(2)�� 470, 505 s 38(3)��506 s 38(4)��505 s 38(5)��505 s 39��511 s 39(3)��506 s 39(3) and (4)��233, 507, 510 s 39(4)��506, 508, 512 s 39(4)(b)(ii)��507 s 39(5)��506 s 39(60��506 s 40(1) and (2)��506 s 40(3)��506 s 41��506 s 42(1)–(2)��457 s 42(2)��487 s 42(5)��457 s 43��159

xxxvi Table of Legislation s 43(2)�� 276, 487 s 44�� 469, 471 s 49��472 s 51�� 45, 470, 482 ss 51 and 52��45 s 52�� 45, 476 s 53��476 s 54��476 s 55��477 s 57��473 s 58��462 s 58(5)��463 s 59��463 s 77(1)�� 450, 464 s 77(4)��464 s 80��465 s 83(2)�� 449, 489 s 83(3)��452 Sch 3 para 36��490 para 77��323 Children and Social Work Act 2017��6, 10, 13, 33, 294, 362, 370–75, 385, 518 s 1(1)(b)��10 s 4��33 s 34�� 362, 371 s 34(1)��372 s 34(2)��372 s 34(3)(a)��373 s 34(3)(b)��374 s 35�� 362, 371 Children and Young People (Scotland) Act 2014, ss 1 and 2��12 Children and Young Persons Act 1969, s 1(2)(e)��91 Children and Young Persons Act 2008, s 20A��33 Counter-Terrorism and Border Security Act 2019, s 20(4)��355 Counter-Terrorism and Security Act 2015��351–71, 518 Pt 5, ch 1��351 s 26(1)��351 s 29��351 s 30(1)��351 s 30(2)��351 s 31(5)��358 s 33��351

Table of Legislation xxxvii s 36(3)��355 s 36(4)(b)��355 s 36(7)��355 Sch 6��351 Crime and Disorder Act 1998, s 16��90 Criminal Justice Act 2003, Sch 26, para 49��79 Criminal Justice and Court Services Act 2000�� 73, 133 Deregulation Act 2015��133 Sch 16, para 2(1)��81 Disability Discrimination Act 1995��192, 214, 224 s 28I��224 s 49A��193 s 49D��193 Disability Discrimination Act 2005��193 s 3��193 Education (Additional Support for Learning) (Scotland) Act 2004��514 Education (No 2) Act 1986�� 108, 134, 139, 289, 367 s 17��290 s 18(1) and (2)��289 s 18(5)��290 s 30��139 s 31��139 s 43(1)��358 s 44��111 s 44(1)��291 s 44(2)��291 s 45��291 s 46�� 111, 290 s 49��125 Sch 6��290 Education (Northern Ireland) Act 2014��97 Education (Schools) Act 1992��111 s 13��392 Education (Schools) Act 1997��116 Education (Scotland) Act 1980 s 28(1)��238 s 28H(1)��45 Education (Scotland) Act 2016�� 97, 514 s 7(5) and (6)��97 Sch��514 Education (Wales) Act 2014��99 Education (Wales) Measure 2009 (2009 nawm 5)�� 462–63 Education Act 1902��100

xxxviii Table of Legislation Education Act 1918��100 Education Act 1944�� 30, 32–33, 73, 94, 98–105, 108–9, 111–13, 117, 145, 148, 180, 234, 236, 239, 325–26, 391–92, 395–96, 399, 407–8, 412, 414, 427, 453, 490–91 s 1��289 s 1(1)��98 s 6��101 s 7�� 102, 392 s 8�� 33, 100 s 8(2)��102 s 11��101 s 17(1)��104 s 23��102, 289–90 s 23(2)��290 s 25�� 408, 414 s 25(1)��408 s 25(3)��236 s 26��396 s 33��102 s 33(2)�� 453, 490 s 34��102 s 34(1)��453 s 35��100 ss 41–43��102 s 50(2)��236 s 61�� 101, 235 s 68��103, 106, 117 s 76��233–34, 236, 241, 325, 513 s 99��103, 106, 117 s 114(1)��369 Education Act 1962��112 s 6(2)��113 Sch 1��113 Education Act 1976�� 106–7 s 1(1)��106 s 2(1)��106 s 10�� 490–91 Education Act 1979��107 Education Act 1980��99, 107, 134, 209, 236, 242, 259, 263, 366, 479 s 2(5)��134 s 6(2)��209 Education Act 1981�� 102, 104, 447, 449, 452–53, 478, 491, 499–500 s 2��491

Table of Legislation xxxix s 2(1)��102 s 2(7)��491 s 5(6)��479 s 5(8)��479 s 8(4)��479 s 8(5)��479 s 8(6)��479 s 8(7)��479 Education Act 1993�� 32, 34, 41, 108–9, 113, 119, 294, 301, 362–63, 367–68, 382, 452, 459, 479, 492, 503–4 s 1��113 s 2��32 s 12��109 s 156(1)��452 s 160��492 s 161��492 s 168(4)��504 s 181(2)��479 ss 218–228��119 s 238��108 s 240(1)��300 s 241��363 s 241(1)��289, 294, 369 s 241(4)��369 s 254��396 s 261(1)(a)��41 s 296��113 s 298(1)��34 Sch 10 para 3��503 para 3(3)��504 para 3(4)��504 Education Act 1994��112 s 1(2)(b)��112 Education Act 1996��29, 32, 34, 47, 60, 66–67, 73, 83, 87, 98, 100, 117–18, 165, 179, 222, 233, 240, 291, 293, 369, 396, 433, 435, 452, 455, 464, 492, 494, 504, 506 Pt 1, Ch 1��102 Pt 4�� 159, 451 s 2(2B)��310 s 2(6A)��310 s 4��37

xl Table of Legislation s 7��29, 71–72, 337, 423, 435, 443 s 9��240–41, 325, 429, 501, 506, 509, 511, 513 s 10�� 32, 98 s 11��32 s 13��33, 67, 102, 392 s 13A��32, 48, 116, 146 s 14�� 33–34, 100, 146, 192 s 14(3A)�� 33, 146 s 14A��33 s 15A��34 s 15B��34 s 15ZA��34 s 15ZC��34 s 15ZD��34 s 19�� 34–40, 122–23, 275 s 19(1)��34 s 19(1A)��34 s 19(2)��35 s 19(3A)�� 35, 39 s 19(3AA)��35 s 19(4)��34 s 19(6)��39 s 51A(4)��46 s 65��141 s 312(1)��452 s 316��492–94, 506 s 316(1)��492 s 316(2)��493 s 316(3)��493 s 316(4)��494 s 316A�� 493–94 s 316A(1)��493 s 316A(3)��506 s 316A(5) and (6)��493 s 317��492 s 324��511 s 324(4)(a)��493 s 328A��481 s 329A��481 s 332A��468 s 332B��474 s 332ZA��463 s 332ZA(3)��463 s 337��490

Table of Legislation xli s 352(3)��369 s 354��303 s 375��396 s 375(3)��397 s 390(4)��396 s 391��396 s 394��409 s 394(2)��409 s 394(6)��409 s 395��409 s 403��290 s 403(1)��375 s 403(1)–(1D)��369 s 403(1A)��375 s 403(1C)��369 s 404��379 s 405��363, 380, 386 s 406�� 291, 304 s 411A��274 s 423A��274 s 430(1A)(b)��378 s 436A�� 90, 437 s 436A(3)��443 s 437��443 s 437(1)��73 s 437(2)��73 s 437(3)��73 s 437(6)��73 s 437(8)��443 s 443��73 s 444(1)�� 73–74, 80, 83–84 s 444(1A)��73, 80, 84, 133 s 444(1B)��80 s 444(2A)��74 s 444(3)��75 s 444(3A)–(3C)��78 s 444(3D)–(3E)��79 s 444(5)��79 s 444(6)��79 s 444(7)��74 s 444(8)��79 s 444(8A)��79 s 444(8B)��80 s 444(9)��75

xlii Table of Legislation s 444A��83 s 444B��83 s 447(1)��87 s 447(2)��87 s 447(2A)��87 s 463�� 424, 433 s 469(1)(e)��427 s 482�� 110, 141 s 482(3A)��111 s 496��103, 117, 238 s 497��103, 117, 238 s 497A��117, 168, 238 s 497B��117 s 499��118 s 508B�� 78, 246 s 508E��78 s 512��66 s 512ZB�� 66, 246 s 537��242 s 538��172 s 579(1)��449 Sch 1��35 para 15��37 Sch 27 para 3�� 504, 508 para 8��508 Sch 31��396 para 2��396 para 4��395 Sch 35B�� 78, 246 Sch 35C��78 Education Act 1997��114, 117, 274, 301 s 11��274 s 12��274 s 19��111 ss 38–41��114 s 48��37 Education Act 2002��9, 111, 119–20, 126, 128–29, 131, 134, 136–37, 140–41, 143, 158, 244, 294–96, 302, 307–10, 369, 372 Pt 2��131 Pt 6��294 Pt 10��426 s 1(1)��128

Table of Legislation xliii s 1(2)��128 ss 1–10��128 s 2�� 128, 143 s 2(7)��128 s 6(1)��129 s 7��295 ss 11–13��129 s 14��254 ss 14–17��131 s 19��127 s 20��128 s 21��127 s 21(3)(a)��127 s 21(5)–(9)��127 s 21(7)��133 s 22�� 127–28 s 23��128 s 23A�� 132, 142 s 24��128 s 25��128 s 26��128 s 27��132 ss 27–29��137 s 28��132 s 29B��9 s 30A��139 s 46�� 136, 244 s 47��263 s 51A��41 s 54�� 118–19 s 55��119 s 56��119 s 61��117 s 62A��117 s 65�� 110–11 ss 65–69��141 s 70�� 129–30 s 70(8)��130 s 71��130 s 78��158, 294, 296, 392 s 78(1)��48, 348, 365, 413 s 80��6, 363, 369, 373, 391 s 80(1)��294 s 80A�� 373, 375

xliv Table of Legislation s 80B��379 s 81��307 s 82��307 s 83��307 s 84��301, 308–9, 349 s 85��301, 308–9 s 85(4)��308 s 85(5)��308 s 87�� 301, 349 s 88��320, 323, 332, 349 s 90��325 s 91��301 s 92��323 s 93�� 321, 325 s 96��301 s 99��294 s 99(1)��365 s 101��363, 369, 391 s 109��332 s 111��325 s 114��325 s 119��111 ss 119–130��125 s 130��111 s 131��125 ss 132–136��125 s 135�� 125–26 s 141B��171 s 157��427 s 165��427 s 166��427 s 167��427 s 175(2)��354 s 176�� 9, 12, 136 s 176(1) and (2)��9 s 177��310 s 178��310 Sch 1��128 Sch 6��119 Sch 11�� 111, 125 Sch 15 para 2(2)��120 para 7��120 Sch 21��111

Table of Legislation xlv Education Act 2005�� 130, 139 Pt 1��117 Pt 3��112 s 2(1)(e)��392 s 7�� 136, 139 ss 11A–11C��133 s 13��119 s 14��119 s 14(2)��119 s 20(1)(e)��392 s 44(1)�� 119, 170 s 44(2)��118 s 45��119 ss 47–50��392 s 66��130 s 66(11)��130 s 66(14)��130 s 103��139 s 104��139 Sch 19��112 Education Act 2011��13, 124, 130, 157–58, 161, 247, 256, 296, 301 s 1(2)��254 s 4(2)��46 ss 7–12��124 s 34�� 136, 247 s 34(4)��256 s 37��161 s 51��123 s 52�� 158, 296 s 60(1)��156 s 60(2)��156 s 64��159 Sch 2��124 Sch 3��124 Sch 8��301 Sch 11�� 130, 161 Education and Adoption Act 2016��161 ss 1–14��162 s 7��162 s 8��156 Education and Inspections Act 2006��33, 35, 39, 80, 117–19, 128, 130, 132–33, 143, 146–47, 161, 244–47, 256, 277

xlvi Table of Legislation Pt 4��160 s 1�� 32, 48, 116 s 2��146 s 4��90 s 7��161 s 7(5)��146 ss 7–9��130 s 8�� 146, 161 s 29��147 s 33��142 s 34�� 132, 142 s 38��127 s 38(1)��133 s 39��143 s 40(4)��244 s 41��245 s 42��246 s 44��245 s 55(2)��414 s 55(9)��414 s 60��160 s 61��160 s 62��160 s 64��118 s 65��119 s 66��118 s 68��119 s 69��119 s 70��119 s 72��166 s 77��246 s 88(3)(d)��519 s 89(1)��519 s 100��40 s 101�� 35, 39 s 103��39 s 104��39 s 105��39 s 106��39 s 160��133 s 162��148 ss 178–180��98 s 180��98 Sch 6��119

Table of Legislation xlvii Sch 7, para 20��117 Sch 8��246 Sch 10, paras 10–12��146 Sch 16, para 2(3)��128 Education and Skills Act 2008��9, 81, 147, 248, 256, 261, 426–27 Pt 1��81 Pt 4��179 s 10��147 s 88H��255 s 88I��256 s 88J��256 s 88K�� 255–56 s 94��427 s 96�� 427–28 s 114��431 s 150��261 s 153��261 s 176��9 Sch 1, para 55��274 Education Reform Act 1988�� 99, 101, 107–10, 112–13, 125, 242, 264, 277, 284, 289–90, 293–94, 298–99, 301, 322, 325, 368, 391, 396–97, 407–9, 412 Pt I��108 s 1(2) and (3)��294 s 1(2)(b)��368 s 2�� 300, 363 s 2(1)��294 s 3(1)��300 s 4(3)��301 s 7��409 s 8(3)��397 s 9(3)��414 s 10�� 300, 326 s 17A��363 s 20��301 s 105��110 s 162ff��107 s 218��125 Elementary Education Act 1870��100 s 74��100 Equality Act 2006�� 192, 194 Pt 2��192

xlviii Table of Legislation s 14��194 s 15(4)��194 s 31��196 s 32��196 s 36��194 s 50��217 s 84��193 s 85��193 Equality Act 2010�� 2, 7, 44, 102, 173, 181, 192–227, 428 Pt 6��193 s 1(1)��194 ss 4–12��205 s 6��452 s 6(1)��205 s 13(1)��208 s 13(3)��208 s 13(5)��209 s 15�� 44, 214 s 15(1)(a) and (b)��212 s 15(2)��212 s 19(1)��209 s 19(2)��209 s 19(3)��209 s 20��220 s 20(3)–(5)��220 s 21�� 44, 220 s 21(2)��208 s 26�� 203, 214 s 26(1)��214 s 26(2)��214 s 26(2)(a) and (3)(a)��203 s 26(3)��214 s 26(4)��214 s 27��213 s 85(1)��213 s 85(2)�� 44, 213 s 85(4)��213 s 85(5)��213 s 85(6)��220 s 85(9)��213 s 86��214 s 87��222 s 88��222 s 89(2)��203

Table of Legislation xlix s 114(1)��223 s 114(3)��223 s 116��223 s 119��225 s 119(5)��225 s 119(6)��225 s 136(1)��224 s 136(2)��224 s 136(3)��224 s 136(6)��224 s 149�� 6, 197 s 149(1)��195 s 149(3)��196 s 149(5)��196 s 149(6)��196 s 149(7)��195 s 150��195 s 156��196 s 158��196 Sch 1��452 para 2��205 para 3��206 para 6��206 Sch 10��222 Sch 11 para 5��217 para 8��223 Pt 1��213 Sch 13��221 para 4(2)��223 para 4(3)��223 Sch 17, para 3��224 Sch 18, para 1��195 Sch 19, pt 1��195 European Union (Withdrawal) Act 2018��31 s 5(4)��31 Further and Higher Education Act 1992��112 Government of Wales Act 1998��98 s 22��98 Government of Wales Act 2006��98 s 94��98 Sch 5��98 Sch 11��98

l Table of Legislation Human Rights Act 1998��14, 54, 57–59, 183, 199, 251, 255, 430–31, 501, 513 s 2�� 14, 183 s 3�� 14, 183 s 6�� 14, 183 s 6(1) and (3)��14 s 7�� 14, 183 Immigration Act 2016, s 67��66 Immigration and Asylum Act 1999��66 s 4(2)��66 Learning and Skills Act 2000��110, 369, 378 s 5��310 s 110��310 s 113��119 s 130��141 s 130(1)��111 s 148(3)��369 s 148(4)�� 375, 378 Sch 7��119 Legal Aid, Sentencing and Punishment of Offenders Act 2012 s 9��488 s 10��489 s 85��427 Sch 1 pt 1, para 2��488 pt 3, para 17��489 Local Government Act 1974 s 26A(1)��474 s 31��474 Local Government Act 1986, s 2A��291, 356, 367 Local Government Act 1988, s 28��291, 356, 367, 376 Local Government Act 2000��118 s 21��118 Local Government Act 2003��291 s 122�� 291, 356 Mental Capacity Act 2005�� 45, 465, 472 s 2(1)��465 Nationality, Immigration and Asylum Act 2002��67 s 29��67 s 36��67 s 37��67 Northern Ireland Act 1998��97 Protection of Children Act 1999��427

Table of Legislation li Race Relations (Amendment) Act 2000 s 2��193 Sch 1��193 Race Relations Act 1976��192–93, 197, 215–16 s 1(1A)(c)��216 s 1(2)��209 s 17�� 215–16 s 41(1)(a)��210 s 71�� 197, 216 s 71(1)��193 s 71(2)��193 Sch 1A��193 Rights of Children and Young Persons (Wales) Measure 2011, s 1��12 School Inspections Act 1996��117 s 16A�� 118–19 s 23��392 s 42A��122 School Standards and Framework Act 1998�� 34, 55, 104, 110, 116–17, 119, 136, 174, 209, 226, 244, 259, 262, 264, 274, 408 s 1�� 122, 264 s 2��122 s 3��122 s 5��116 s 6��118 s 7��118 s 8��117 s 9�� 118, 136 s 10(1)��120 s 10(1A)��120 s 10(2)��120 s 11(3)��120 s 11A��120 s 12(1)��120 s 12(1A)��120 s 13��121 s 14�� 118–19 s 14(1)(b) and (3)��119 s 15(1)–(3)��118 s 15(4)–(5)��118 s 15(5)��118 s 15(6)��119 s 16A��119 s 18��119

lii Table of Legislation s 18A��119 s 19��119 s 19A��119 s 20��104 s 23A��142 s 24��118 s 25�� 118, 245 s 26�� 118, 255 s 27��118 s 58��411 s 59�� 226, 411 ss 64–68��122 s 64(4)��55 s 69��391 s 70�� 391, 408 s 71(1), (3), (4)��402 s 71(1A)��414 s 71(1B)��414 s 71(8)��414 s 84��244 s 84(3)��244, 247, 265 s 85��244 s 85A��136, 244–45 s 86(1)��259 s 86(1A)��246 s 86(2)��232, 262, 272, 274 s 86(3)(a)��232, 262–63 s 86(3)(c)�� 262, 272 s 86(4)�� 264, 269 s 86(5)��263 s 86(8)��252 s 86(9)��273 s 86A��261 s 86B��261 s 86B(1)�� 262, 274 s 86B(2)��262 s 86B(4)��262 s 86B(4)–(6)��273 s 86B(5)��262 s 87�� 262, 265 s 87(1)��274 s 88A��245 s 88B��248 s 88C��247

Table of Legislation liii s 88F��258 s 88H��159 s 88K��159 s 88M��252 s 88N��252 s 89(1A)��248 s 94��265 s 94(5A)(aa)��265 s 95(1)�� 265, 274 s 95(2)��275 s 95(2)–(4)��265 s 96��276 ss 96 and 97��40 s 97��276 s 98A��261 s 99��175 ss 99–103�� 174, 271 s 100�� 175, 272 s 102(1)��271 s 104��175 ss 106–107��136 s 110��81 s 110(5)��81 ss 110–111��133 s 111��81 ss 117–124��122 s 118��122 s 119��122 s 120��122 s 134��122 Sch 1A��119 Sch 2��110 para 3��116 Sch 3, para 5��104 Sch 4��118 Sch 5��118 Sch 18��122 Sch 19��395 Sch 20��409 para 2��408 para 5��410 paras 1–4��409 Sch 24, para 12(a)��251 Sch 25��265

liv Table of Legislation Sch 30, para 97��409 School Standards and Organisation (Wales) Act 2013��99 School Teachers’ Pay and Conditions Act 1991��111 Sex Discrimination Act 1975��102, 192–93 s 76A�� 193, 197 s 76B��193 Shared Education (Northern Ireland) Act 2016��97 s 2��98 Social Services and Well-being (Wales) Act 2014, s 7(2)��12 Special Educational Needs and Disability Act 2001��224, 245, 452, 468, 481, 493–94, 506 s 1��493 s 2��468 s 3��474 s 8��481 s 18��224 Standards in Scotland’s Schools Etc Act 2000��97 s 1��47 s 2��9 s 2(1)��48 s 4(1)��97 s 6(1)–(3)��9 s 41��45 Teachers’ Pay and Conditions Act 1987��111 Teaching and Higher Education Act 1998 ss 1–15��124 ss 2–7��124 s 18��125 Schs 1 and 2��124 Terrorism Act 2000, s 1��351 Tribunals, Courts and Enforcement Act 2007�� 266, 481 Tribunals and Inquiries Act 1992��479 Wales Act 2017��98 Welfare Reform Act 2012, Sch 2, para 39��246 Table of Statutory Instruments Apprenticeships, Skills, Children and Learning Act 2009 (Consequential Amendments to Part 1 of the Education and Skills Act 2008) Order 2013 (SI 2013/1242).��81 Counter-Terrorism and Security Act 2015 (Risk of Being Drawn into Terrorism) (Amendment and Guidance) Regulations 2015 (SI 2015/928)��352

Table of Legislation lv Eastern High School (Change to School Session Times) Order 2015 (SI 2015/1227) (W. 81).��129 Education (Admission Appeal Arrangements) (England) Regulations 2002 (SI 2002/2899)��251 Education (Admission Forums) (England) Regulations 2002 (SI 2002/2900)�� 136, 244 Education (Admission of Looked After Children) (England) Regulations 2006 (SI 2006/128)��248 Education (Amendment of the Curriculum Requirements for Fourth Key Stage) (England) Order 2003 (SI 2003/2946)�� 309, 313 Education (Amendment of the Curriculum Requirements for Second Key Stage) (England) Order 2013 (SI 2013/2093)��309 Education (Amendment of the Curriculum Requirements) (England) Order 2013 (SI 2013/2092)�� 308–9 Education (Head Teachers’ Qualifications) (England) Regulations 2003 (SI 2003/3111)�� 125, 126 Education (Health Standards) (England) Regulations 2003 (SI 2003/3139)��125 Education (Independent School Standards) (England) (Amendment) Regulations 2012 (SI 2012/2962)�� 346–47 Education (Independent School Standards) (England) (Amendment) Regulations 2014 (SI 2014/2374)��347 Education (Independent School Standards) (England) Regulations 2010 (SI 2010/1997)�� 346–47 Education (Independent School Standards) Regulations 2003 (SI 2003/1910)�� 426–27 Education (Independent School Standards) Regulations 2014 (SI 2014/3283)��156, 347, 373, 428 Education (Infant Class Sizes) Grant Regulations 1999 (SI 1999/14)��122 Education (Investigation of Parents’ Complaints) (England) Regulations 2007 (SI 2007/1089)��133 Education (National Curriculum) (Attainment Targets and Programmes of Study in Citizenship) Order 2000 (SI 2000/1603)��303 Education (National Curriculum) (Attainment Targets and Programmes of Study) (England) Order 2013 (SI 2013/2232)��318, 324, 349 Education (National Curriculum) (Exceptions at Key Stage 4) (England) Regulations 2003 (SI 2003/252)��301 Education (National Curriculum) (Key Stage 2 Assessment Arrangements) (England) (Amendment) Order 2003 (SI 2003/1038)��320 Education (National Curriculum) (Key Stage 2 Assessment Arrangements) (England) (Amendment) Order 2018 (SI 2018/452)��320 Education (National Curriculum) (Languages) (England) Order 2013 (SI 2013/2230)��309

lvi Table of Legislation Education (National Curriculum) (Modern Foreign Languages) (England) Order 2004 (SI 2004/260)�� 308–9 Education (National Curriculum) (Temporary Exception for Individual Pupils) Regulations 1989 (SI 1989/1181)��325 Education (National Priorities) (Scotland) Order 2000 (SSI 2000/443)��96 Education (Northern Ireland) Order 1996 (SI 1996/274) (N.I. 1)��447 Education (Parent Governor Representatives) Regulations 1999 (SI 1999/1949)��118 Education (Penalty Notices) (England) Regulations 2007 (SI 2007/1867)��83 Education (Provision of Full-time Education for Excluded Pupils) (England) Regulations 2007 (SI 2007/1870)��39 Education (Pupil Exclusions and Appeals) (Maintained Schools) (Wales) Regulations 2003 (SI 2003/3227) (W.308).��45 Education (Pupil Exclusions and Appeals) (Pupil Referral Units) (Wales) Regulations 2003 (SI 2003/3246) (W.321)��45 Education (Pupil Referral Units) (Management Committees etc) (England) Regulations 2007 SI 2007/2978)��37 Education (Pupil Registration) (England) (Amendment) Regulations 2013 (SI 2013/756)��75 Education (Pupil Registration) (England) Regulations 2006 (SI 2006/1751)�� 75, 437 reg 6(1)��79 reg 7(3)��75 reg 7(4)��75 Education (Pupil Registration) (England) (Amendment) Regulations 2016 (SI 2016/792)��437 Education (School Government) (Terms of Reference) (England) Regulations 2000 (SI 2000/2122)��127 Education (School Government) Regulations 1989 (SI 1989/1503)��108 Education (School Information) Regulations 1981 (SI 1981/630)�� 242, 366 Education (School Organisation Committees) (England) Regulations 1999 (SI 1999/700)��118 Education (School Organisation Plans) (England) Regulations 1999 (SI 1999/701)��118 Education (School Organisation Plans) (Wales) Regulations 2003 (SI 2003/1732) (W.190)��118 Education (School Teacher Appraisal) (England) Regulations 2001 SI 2001/2855)��125 Education (School Teacher Appraisal) (England) Regulations 2012 (SI 2012/115)��125 Education (School Teachers’ Pay and Conditions) (No 3) Order 2001 (SI 2001/1284)��125 Education (School Teachers’ Qualifications) (England) Regulations 2003 (SI 2003/1662)��125

Table of Legislation lvii Education (Wales) Measure 2009 (Pilot) (Revocation) Regulations 2014 (SI 2014/3267) (W.334)��463 Education (Wales) Measure 2009 (Pilot) Regulations 2012 (SI 2012/321) (W.52)��462 Education Act 2002 (School Teachers) (Consequential Amendments, Etc) (England) Regulations 2003 (SI 2003/2039)��125 Education and Skills Act 2008 (Commencement No 11 and Saving and Transitory Provisions) Order 2014 (SI 2014/3364) (C.158)��179 Equality Act (Sexual Orientation) Regulations 2007 (SI 2007/1263)��192 Equality Act 2006 (Commencement No.1) Order 2006 (SI 2006/1082) (C.36)��193 Equality Act 2010 (Disability) Regulations 2010 (SI 2010/2128)�� 205–6 Equality Act 2010 (Specified Duties and Public Authorities) Regulations 2017 (SI 2017/353)��195 Federation of Schools (Community Schools, Community Special Schools, Voluntary Controlled Schools and Maintained Nursery Schools) (England) Regulations 2003 (SI 2003/1965)��128 Foundation Subject (Amendment) (England) Order 2000 (SI 2000/1146)��303 Gaelic Medium Education (Assessment Requests) (Scotland) Regulations 2016 (SSI 2016/425)��97 General Teaching Council for England (Additional Functions) Order 2000 (SI 2000/2175)��124 General Teaching Council for England (Constitution) Regulations 1999 (SI 1999/1726)��124 General Teaching Council for Wales (Additional Functions) Order 2000 (SI 2000/1941)��124 Handicapped Pupils and School Health Service Regulations 1945 (SI 1945/1076)��453 Handicapped Pupils and School Health Service Regulations 1959 (SI 1959/365��453 Immigration Rules 1994�� 67, 69 Independent School Standards (Wales) Regulations 2003 (SI 2003/3234) (W.314)��427 Local Education Authorities and Children’s Services Authorities (Integration of Functions) Order 2010 (SI 2010/1158)��148 Local Education Authorities and Children’s Services Authorities (Integration of Functions) (Local and Subordinate Legislation) Order 2010 (SI 2010/1172)��148 National Assembly for Wales (Transfer of Functions) Order 1999 (SI 1999/672)��98 Nobel School (Change to School Session Times) Order 2006 (SI 2006/1072)��129 Non-Maintained Special Schools Regulations 2015 (SI 2015/728)��373

lviii Table of Legislation Parent Governor Representatives (England) Regulations 2001 (SI 2001/478)��118 Race Relations (Amendment) Act 2000 Order 2001 (SI 2001/566) (C.24) ��193 Race Relations Act 1976 (General Statutory Duty) Order 2001 (SI 2001/3457)��193 Race Relations Act 1976 (Statutory Duties) Order 2001 (SI 2001/3458)��194 Relationships Education, Relationships and Sex Education and Health Education (England) Regulations 2019 (SI 2019/924)��6, 294, 372–73, 375, 379, 386 School Admissions (Admission Arrangements and Co-ordination of Admission Arrangements) (England) Regulations 2012 (SI 2012/8)�� 247–48 reg 14��280 reg 15��280 reg 21��280 reg 27��253 reg 30��253 Sch 2��252 School Admissions (Admission Arrangements) (England) Regulations 2008 (SI 2008/3089)�� 271, 273 School Admissions (Appeal Arrangements) (England) Regulations 2012 (SI 2012/9)�� 265, 275 School Admissions (Infant Class Sizes) (England) Regulations 2012 (SI 2012/10)��264 School Companies (Amendment) Regulations 2003 (SI 2003/2049)��129 School Companies (Private Finance Initiative Companies) Regulations 2002 (SI 2002/3177)��129 School Companies Regulations 2002 (SI 2002/2978)��129 School Councils (Wales) Regulations 2005 (SI 2005/3200) (W.236)��467 School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012 (SI 2012/1033)�� 41–42 reg 2��45 reg 4�� 41–42 reg 7��45 reg 7(1)��47 reg 7(3)��47 reg 7(5)��46 reg 9��44 reg 16��45 reg 16(1)��47 reg 16(3)��47

Table of Legislation lix reg 16(5)��46 reg 25��45 reg 25(1)��47 reg 25(3)��47 reg 25(5)��46 Sch 1��45 School Governance (Collaboration) (England) Regulations 2003 (SI 2003/1962)��128 School Governance (Constitution and Federations) (England) (Amendment) Regulations 2017 (SI 2017/487)�� 136, 172 School Governance (Constitution) (England) Regulations 2003 (SI 2003/348)�� 128, 134 School Governance (Constitution) (England) Regulations 2007 (SI 2007/957)��128, 134, 136 School Governance (Constitution) (England) Regulations 2012 (SI 2012/1034)��134 School Governance (Parent Council) (England) Regulations 2007 (SI 2013/1330)��132 School Information (England) (Amendment) Regulations 2016 (SI 2016/451)��242 School Information (England) (Amendment) Regulations 2017 (SI 2017/37)��242 School Information (England) (Amendment) Regulations 2018 (SI 2018/466)��242 School Information (England) Regulations 2008 (SI 2008/3093)��242 Special Educational Needs (Personal Budgets) Regulations 2014 (SI 2014/1652)�� 472–73 Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017 (SI 2017/1306)��482 Special Educational Needs and Disability Regulations 2014 (SI 2014/1530)�� 465, 471 Pt 4��466 reg 5(3)��470 reg 7��470 reg 9��469 reg 10(3)��470 reg 12��471 reg 13(1)��505 reg 14(2)��470 reg 18��471 reg 22(10)��470 reg 34(1)��477 reg 38��477

lx Table of Legislation reg 40��478 reg 43��478 reg 44��478 reg 56��466 reg 64��465 reg 65��465 Sch 3��465 Special Educational Needs and Disability Tribunal (General Provisions and Disability Claims Procedure) Regulations 2002 (SI 2002/1985)��481 Special Educational Needs Tribunal Regulations 1995 (SI 1995/3113)�� 479–80 Special Educational Needs Tribunal Regulations 2001 (SI 2001/600)��481 Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI 2008/2699) (L.16)��475, 482–83 Table of International and European Instruments Charter of Fundamental Rights of the European Union, Art 14��31 Constitution of Belgium�� 389–90 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)��184, 516–17 Art 10(b) and (c)��517 Convention on the Rights of Persons with Disabilities (CRPD)��7, 44, 184–85, 222–23, 322, 449, 497–99, 515–16 Art 2��184 Art 3��184 Art 4.2��499 Art 5��184 Art 5.3��184 Art 7.1��184 Art 7.2��184 Art 7.3�� 13, 184, 468 Art 24��44, 321, 449, 467, 489, 498–99 Art 24.1(b)��322 Art 24.1(c)��185, 322, 498, 516 Art 24.2(a)��498 Art 24.2(b)�� 185, 498 Directive 77/486/EEC on the education of the children of migrant workers��64 Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin��21 Directive 2004/38/EC on the education of the children of migrant workers��64

Table of Legislation lxi European Convention on Human Rights (ECHR)�� 7, 14, 29–31, 47, 49, 51, 53, 55–56, 181, 183–84, 188, 191, 193, 199, 204, 206, 212, 228, 233–34, 247, 251, 261, 329, 333, 348, 363, 383, 400, 403, 407, 421, 429, 449, 497, 499, 513 Art 3��48 Art 6(1)��275 Art 8�� 52, 69–70, 78, 250–51, 264, 334, 357, 368, 383–84, 503, 513 Art 8(1)�� 90–91, 435–36 Art 8(2)�� 91, 265, 384, 436, 503 Art 9�� 52, 192, 327, 329–31, 343, 358, 384, 390, 403–5, 414, 421, 430, 513 Art 9(1)�� 343, 436 Art 9(2)��329, 332, 343–44, 358, 384, 436 Art 10��52, 292, 305, 357 Art 10(2)��292 Art 14�� 51, 61, 184, 186–92, 196, 199, 207–8, 251, 255, 275, 409, 455 First Protocol, Art 2��29, 34, 47–61, 66, 68–69, 183, 185–88, 190–92, 199, 204, 206–8, 228, 234, 251, 255, 261, 275, 293, 305, 327–30, 333–34, 343–45, 363, 383–84, 400–401, 403, 406–7, 421, 429–30, 450, 455, 499–502, 513 European Social Charter�� 71, 184 Art 16��84 Art 17��8, 62 Art 17(1)��30 Art 17(2)�� 62, 71 Art 30��8, 84 Additional Protocol��84 German Basic Law��389 International Covenant on Civil and Political Rights��405 Art 18(4)��405 International Covenant on Economic, Social and Cultural Rights (ICESCR)��31, 195, 383, 516 Art 2(2)��62 Art 13�� 7, 20, 31, 517 Art 13(1)�� 20, 30, 516 Art 13(2)(c)��516 Art 13(3)�� 403, 425 Art 13(4)��152 Art 14��31

lxii Table of Legislation Regulation (EU) No 492/2011 on freedom of movement of workers, on freedom of movement of workersArt 10��63 UN Convention on the Rights of the Child (UNCRC)�� 7–8, 10, 12–13, 19, 30, 48, 71, 170, 184, 292, 304–5, 332, 357–59, 376, 382–83, 385, 403, 406, 449, 462, 497, 516–17, 520 Art 2��387 Art 3�� 49, 189, 339, 360, 364 Art 3(1)�� 8, 332 Art 4��31 Art 5��8 Art 6��497 Art 8��348 Art 12��9, 11–12, 241, 260, 364, 381, 383, 386–87, 403–4, 415, 465, 478, 480, 485, 519 Art 12(1)�� 305, 337 Art 12(2)�� 337, 462 Art 13��292, 357, 403 Art 14��292, 358, 403 Art 14(1)�� 358, 403 Art 14(2)�� 358, 403 Art 15��291 Art 16��357 Art 23�� 44, 497 Art 23(1)��497 Art 23(3)��497 Art 24��383 Art 24(1)��365 Art 24(2)(f)��382 Art 28�� 9, 305, 497 Art 28(1)�� 31, 44, 497 Art 28(1)(e)��71 Art 28(2)�� 44, 332 Art 29��9, 20, 170, 305, 338 Art 29(1)�� 31, 348, 406 Art 29(1)(a)�� 48, 516 Art 29(1)(c)��332, 359, 516 Art 29(1)(d)��20, 332, 338, 359, 364, 424, 445, 517 Art 29(1)(e)�� 10, 445 Art 29(2)��152 Art 30�� 345, 359

Table of Legislation lxiii UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions 2005��22 Art 4��22 Art 10(a)��22 United States Constitution, First Amendment�� 342, 412, 416–17, 419 Universal Declaration on Human Rights (UDHR) 1948 Art 18��405 Art 26(1)��30

lxiv

1 Children’s Education and the Law in a Diverse Society I. Introduction A. Social Diversity The challenge that a highly diverse society presents for the framing of effective, deliverable, and socially just education laws and policies that uphold human rights principles such as equality and respect for the integrity of the individual lies not only in the range of different personal characteristics across the population – and which in themselves may generate inequalities that schooling has a role in ameliorating – but in the range of discrete outlooks, traditions, and ways of life associated with different social groups. The UK has a long tradition of immigration and over 600,000 people migrated to the UK in the year to September 2018 from a huge range of countries across the world.1 Immigration had been at a level of around 500,000 or more people for each of the previous ten years,2 contributing to the UK’s ethnically diverse population. In January 2018, in England, 7 per cent of children in state primary schools and 10 per cent of secondary school pupils were born outside the UK, of whom just over half were born in other EU countries.3 With regard to asylum, figures for the UK show that 10 per cent of main applicants are children.4 The child population as a whole is in fact more ethnically diverse than the adult population. For example, in state primary and secondary

1 The top ten countries of birth of immigrants to the UK are currently five European c ountries (Poland, Ireland, Romania, Germany and Italy), four Asian countries (India, Pakistan, Bangladesh and China) and South Africa: University Of Oxford Migration Observatory, Migrants in the UK: An Overview (online), table 3 at https://migrationobservatory.ox.ac.uk/resources/briefings/migrants-inthe-uk-an-overview/. 2 ONS, Migration Statistics Quarterly Report: February 2019 (2019), at www.ons.gov.uk/people populationandcommunity/populationandmigration/internationalmigration/bulletins/migration statisticsquarterlyreport/february2019. 3 ONS, International Migration and the Education Sector – what does the current evidence show? (ONS, 2019), 1, at www.ons.gov.uk/releases/internationalmigrationandtheeducationsectorwhatdoesthe currentevidenceshow. 4 Home Office, National Statistics ‘How many people do we grant asylum or protection to?’, 23 August 2018, at www.gov.uk/government/publications/immigration-statistics-year-ending-june-2018/ how-many-people-do-we-grant-asylum-or-protection-to.

2 Children’s Education and the Law in a Diverse Society schools in England 65.5 per cent and 67 per cent, respectively, of the pupils are classed ethnically as White British, 11.2/11.3 per cent Asian, and 5.5/6.0 per cent Black5 compared to the adult population of just over 80 per cent White British, 7 per cent Asian and 3 per cent Black.6 There is also c onsiderable diversity in terms of religious affiliation or none. In the most recent national census, 59 per cent of the population identified as Christian, 26 per cent with no religion, 4.5 per cent Muslim, nearly 1.5 per cent Hindu and over 1 per cent (one million people) either Sikh, Jewish or Buddhist.7 Religious diversity manifests within the pupil population and in the institutional framework, with one third of all state schools serving a particular faith tradition, as discussed in Chapter 3. Disability is another element in the diversity of the pupil population. Surveys have indicated that 7 per cent of children, but 9 per cent of those aged 11–16, have disabilities.8 Just under one in seven of all school pupils have special educational needs (SEN) and a large majority of these children are educated in mainstream schools alongside other children.9 So far as gender is concerned, it is important to note the apparently increasing numbers of school pupils who do not identify wholly with one particular gender or with the gender of their birth – including those children (over 2,500 in 2018/19), predominantly but not exclusively in their teens, who are referred to the NHS Gender Identity Development Service (GIDS).10 It has been reported that 300 children per annum are taking gender-blocking drugs, which give those intending to transition more time to consolidate their intention;11 and there was a 25 per cent increase in 2017/18 in young people attending the UK’s main gender specialist centres, based in London and Leeds.12 Most of these children are likely to be undergoing the treatment and transitioning while at school,13

5 DfE, Schools, pupils and their characteristics: January 2019, fig F, at https://assets.publishing. service.gov.uk/government/uploads/system/uploads/attachment_data/file/812539/Schools_Pupils_ and_their_Characteristics_2019_Main_Text.pdf. 6 But note that the adult figures are from seven years earlier, based on the 2011 census, at www.ons. gov.uk/census/2011census. 7 Ibid. 8 Department for Work and Pensions, Family Resources Survey 2015/16 (London, DWP, 2017), 1; P Stobbs, Disabled Children and the Equality Act 2010 (London, Council for Disabled Children, 2015) 12. 9 DfE, Special educational needs in England: January 2019, figs A and D, at https://assets.publishing. service.gov.uk/government/uploads/system/uploads/attachment_data/file/814244/SEN_2019_Text. docx.pdf. See further ch 9. 10 GIDS, Referrals to the Gender Identity Development Service (GIDS) level off in 2018–19 (28 June 2019) at https://tavistockandportman.nhs.uk/about-us/news/stories/referrals-gender-identitydevelopment-service-gids-level-2018-19/. The figures shown for previous years indicate annual increases in referrals of 101% in 2015/16, 41% in 2016/17, 27% in 2017/18 and 6% in 2018/19. In 2018/19, 443 (17%) of referrals were of pre-teens. 11 On the basis that a majority of children considered as trans in childhood ‘reconcile with their assigned gender’: P Dunne, ‘Transgender children and the law’ (2017) 47 (January) Family Law 123–124. 12 J Reed, BBC News Report ‘Transgender children: Buying time by delaying puberty’ 2 July 2018 at www.bbc.co.uk/news/uk-44661079. 13 See, eg, the cases of Lily and Jessica reported by Victoria Derbyshire, ‘The story of two transgender children’ 7 April 2015 at www.bbc.co.uk/news/magazine-32037397.

Introduction 3 and their situation challenges teachers to recognise gender as a continuum or spectrum rather than a binary division14 and to undergo training on transgender issues,15 the need for which is reinforced by the Equality and Human Rights Commission’s condemnatory view that transgender children ‘are being failed by our schools’.16 On a more practical level, questions have arisen as to how schools should respond appropriately to the needs of transgender children, for example as regards access to male or female toilets or physical education and changing rooms.17 Sexuality is another aspect of diversity across the pupil population. There is evidence that an increasing proportion of the youth population identify as non-heterosexual.18 This is an aspect of social diversity that the No Outsiders programme, highlighted below, seeks to address within children’s education. One aspect of diversity that is likely to have a direct impact on teaching and learning is children’s first language. The proportion of primary school pupils in England whose first language is reported to be other than English is quite high, at 21.2 per cent in 2019, with the equivalent figure for secondary school pupils recorded as 16.9 per cent.19 Overall, English was an additional language for almost one in five pupils, 19.4 per cent, in state schools in England, a proportion that has increased from one in seven pupils, or 14 per cent, in 2010.20 According to the most recent school census, in 2012, there were nearly 300 different languages represented in the list of pupils’ first languages, including Arabic (33,000 pupils), Bengali (67,000), Urdu (over 100,000), Somali (42,000), Polish (54,000), Punjabi (90,000), Gujarati (40,500).21 In special schools, where the school roll is comprised

14 On the legal implications of a non-binary understanding of sex/gender, and especially the law’s failure to recognise ‘intersex’, see F Garland and M Travis, ‘Legislating intersex equality: building the resilience of intersex people through law’ (2018) 38(4) Legal Studies 587. 15 See K Thomas, ‘Schools pulled into row over helping transgender children’, The Guardian (online) 15 May 2018 at www.theguardian.com/education/2018/may/15/transgender-row-teachers-afraidchallenge-breast-binding. See also the initiative in Scotland on LGBTI (lesbian, gay, bisexual, transgender and intersex) inclusive education, which includes professional learning: LGBTI Working Group, Report to Ministers (2019), available along with the Scottish Government’s commitment to the initiative, at www.gov.scot/news/lgbti-education/. 16 EHRC, ‘Transgender children failed by the system, warns EHRC Chair’ www.equalityhumanrights. com/en/our-work/news/transgender-children-failed-system-warns-equality-chair. 17 These are the kinds of issues which the Equality and Human Rights Commission has said it intends to address in technical guidance for schools: ibid. 18 See the L Casey DBE, The Casey Review: A Review into Opportunity and Integration (London, HMSO, 2016) paras 3.13 and 3.14, noting that while some people are reluctant to report their sexuality even anonymously the ONS has recorded that just under 1 in 40 16–24 year olds are gay or bisexual but that approximately 49 per cent of those aged 18–24 questioned by a You Gov poll in 2015 identified as ‘other than 100% heterosexual). Available at www.gov.uk/government/uploads/system/uploads/ attachment_data/file/575973/The_Casey_Review_Report.pdf. 19 DfE (2019) n 5 above, 9. 20 DfE, Schools, pupils and their characteristics: January 2019 (DfE, 2019), Main Tables, table 6, at www. gov.uk/government/statistics/schools-pupils-and-their-characteristics-january-2019; ONS, International Migration and the Education Sector – what does the current evidence show? (ONS, 2019), 8, at www. ons.gov.uk/releases/internationalmigrationandtheeducationsectorwhatdoesthecurrentevidenceshow. 21 DfE, School census January 2012 language data: www.naldic.org.uk/research-and-information/ eal-statistics/lang/.

4 Children’s Education and the Law in a Diverse Society exclusively of pupils with SEN, nearly 15 per cent of pupils have a first language other than English,22 meaning that they have a dual minority status. It does not follow that all pupils whose first language is other than English will necessarily face a language barrier in school, particularly as many of these pupils will acquire capacity in the language over time. Based on children for whom information is known, in 2018, 18 per cent of school pupils in England for whom English was an additional language were in one of the two lowest of five levels of English proficiency, but whereas the proportion was 23 per cent among those who were in primary school it was just 7 per cent in the case of secondary school.23 The figures underline the progressive acquisition of competence in the English language over time, but do not detract from the likelihood of a significant initial difficulty, and need for language support, in some cases, particularly among those most likely to be new arrivals to the UK. There are lower levels of academic attainment among pupils for whom English is an additional language than among other pupils, although the differences are relatively small and by the age of 16 they have disappeared.24 Finally, across the school population as a whole there is also a wide disparity between different families’ levels of income or wealth, with for example just over one in seven pupils having eligibility for and claiming free school meals on the basis of their family’s qualification for various welfare benefits or tax c redits, although around two in five children in the case of those at special schools and pupil referral units specifically.25 Since, as discussed in Chapter 2, the state has an obligation to ensure that each child in the UK is able to receive a suitable education, which in most cases will occur through access to a school place, the school population as a whole reflects the diversity of the wider population, while the local demographic variations will be reflected in individual schools’ rolls.

B. ‘No Outsiders’ The way in which the education system can face difficulties in ensuring that schooling meets differing societal expectations about how children should be taught in a culturally diverse society is exemplified by a recent conflict that arose in the city of Birmingham concerning primary school lessons covering relationships. In early 2019 it was widely reported in the press and other media that the headteacher of one of the city’s state primary schools had received a petition

22 DfE (2019) n 20 above. 23 ONS, International Migration and the Education Sector – what does the current evidence show? (ONS, 2019), 9, at www.ons.gov.uk/releases/internationalmigrationandtheeducationsectorwhatdoes thecurrentevidenceshow. 24 Ibid, 10. 25 DfE (2019) n 20 above, table 4a.

Introduction 5 signed by 400 mostly Muslim parents calling for a teaching programme entitled ‘No Outsiders’ that was used at the school to stop.26 The programme was devised by Andrew Moffat, the assistant head teacher at the school.27 It had the aim of promoting equality for lesbian, gay, bisexual and transgender (LGBT) people and challenging homophobia. It had been used at the school for four years. It was reported that after hundreds of the parents had withdrawn their children in protest at the lessons there was a meeting between the Regional Schools Commissioner, the local MP, parents and the school’s trust, following which the school decided not to continue with the programme, although there were subsequent protests outside the school which because they were considered intimidatory became the subject of interim injunctions in the High Court.28 Ofsted, the agency responsible for school inspections and for monitoring and reporting on school standards, defended the programme as not focusing disproportionately on LGBT issues nor being age-inappropriate.29 However, the parents who objected saw the content as contrary to their beliefs and values and inconsistent with their preferences with regard to the teaching of their children.30 Protests and communications raising objections to primary schools’ coverage of same sex relationships reportedly extended to other parts of England, involving schools in London, Bradford, Oldham and Manchester.31 A member of the Haredi Jewish community was separately quoted as contemplating home educating his children rather than have them receive coverage of intimate relationships in school lessons, saying: ‘We want to keep the innocence of our children, not sexualize them. We want our children to be children’.32 The Birmingham conflict, which has also extended to another primary school in the city – where there were further protests against teaching about LGBT relationships, a reported withdrawal of pupils ‘during a walkout’, and an LGBT counter

26 N Parveen, ‘School defends LGBT lessons after religious parents complain’, The Guardian (online) 31 Jan 2019 at www.theguardian.com/education/2019/jan/31/school-defends-lgbt-lessons-afterreligious-parents-complain. For a piece sensitively defending the approach of No Outsiders, see M Rahim, ‘Faith should not stop pupils learning about LGBT rights’, The Guardian 5 Feb 2019. See also See N Johnston, ‘Islamist group targets children “at risk” from gay rights lessons’, The Times 16 February 2019; E Busby ‘“Everyone is welcome”: Children reach out to gay teacher threatened over LGBT lessons’, The Independent (online), 8 Feb 2019 at www.independent.co.uk/news/education/ education-news/lgbt-lessons-andrew-moffat-parkfield-community-school-birmingham-protests-gayteacher-a8770476.html. 27 See A Moffat, No Outsiders in Our School. Teaching the Equality Act in Primary Schools (Abingdon, Routledge, 2017). 28 K Burgess, ‘Primary school drops trans rights classes after boycott’, The Times, 5 Mar 2019. K Rawlinson, ‘High Court bans Birmingham school protests against LGBT lessons’, The Guardian (online) 31 May 2019, www.theguardian.com/education/2019/may/31/high-court-bans-birminghamschool-protests-against-lgbt-lessons; and Birimingham City Council v Asfar [2019] EWHC 1560 (QB). 29 N Woodcock, ‘Ofsted backs head teacher in clash over gay-rights lessons’, The Times, 13 Mar 2019. 30 Burgess n 28 above. 31 S Griffiths, ‘Children Get Caught in the LGBT Crossfire’, The Sunday Times 14 Apr 2019. 32 Ibid.

6 Children’s Education and the Law in a Diverse Society protest33 – coincided with the publication by the Secretary of State for Education of new guidance on education about relationships and sex (RSE). As discussed in Chapter 6, schools will be under a statutory duty to have regard to the guidance. The guidance, issued following consultation, emphasises that while schools are free to decide for themselves on how they cover LGBT issues, such issues should nevertheless be ‘fully integrated into their programmes of study for this area of the curriculum’, while the teaching should be ‘sensitive and age appropriate’.34 It otherwise deals with same sex relationships in a fairly circumspect manner, for example, in explaining that families of different forms, including families with LGBT parents, can ‘provide a nurturing environment for children’.35 It provides that an intended learning objective in primary school is that pupils should know that stable and caring relationships ‘may be of different types’.36 Parents have a statutory right to withdraw their children from sex education but not from ‘relationships education’.37 The former is not a compulsory part of the basic curriculum in primary schools, but the latter will be soon under regulations made under the Children and Social Work Act 2017.38 In a letter to the National Association of Head Teachers in April 201939 the Secretary of State for Education reminded head teachers of schools’ public sector equality duty40 and then went on to stress that an important part of the role of education is about ‘learning to live together’. He said that parents should have an input into schools’ development of their relationships education, but what schools teach on this subject is ultimately a decision for them and they must be mindful of what is ‘in the best interests of their pupils’. Defending the relationships education policy, the Secretary of State referred to a need to ‘dispel myths and reinforce the fact that these important changes to relationships education … will ensure all children learn about the wide variety of relationships in society throughout their school careers’. The local conflicts over LGBT-inclusive relationships education demonstrate how it may not be possible to ensure that the children’s education is not only appropriate for preparing them for later life in a modern, diverse society but also that it is fully responsive to concerns on the part of parents from some minority 33 N Johnston, ‘School protesters “threw eggs at gay rights group”’, The Times 21 May 2019. 34 DfE, Relationship Education, Relationships and Sex Education (RSE) and Health Education. Statutory guidance for governing bodies, proprietors, head teachers, principals, senior leadership teams, teachers (London, DfE, 2019) para 37 at https://assets.publishing.service.gov.uk/government/uploads/ system/uploads/attachment_data/file/805781/Relationships_Education__Relationships_and_Sex_ Education__RSE__and_Health_Education.pdf. 35 Ibid, para 59. 36 Ibid, table set out at 20–22. 37 See ch 6 below. 38 See the Relationships Education, Relationships and Sex Education and Health Education (England) Regulations 2019 (SI 2019/924) Sch para 7. The regulations will amend the EA 2002, s 80 to effect this change. 39 The letter from Damian Hinds MP is dated 10 Apr 2019 and is published by the DfE at https:// assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/793973/ Letter_to_NAHT_from_Damian_Hinds.pdf. 40 The ‘PSED’, which is contained in the Equality Act 2010, s 149 and is discussed in ch 4 below.

Rights 7 communities that such a focus is not in their children’s interests. The parental concerns appear to rest on a fear that their children could, as a result of receiving the teaching, become less closely attuned to the community’s traditions and ways of life which the parents are keen to preserve and safeguard. The conflicts also reflect a broader issue to do with the rights and interests that are tied up in questions of education, law and diversity. Parents have a direct interest in, and a shared responsibility with the state for, the education of their children. As later discussion demonstrates, their rights and interests receive a significant degree of recognition under domestic law, albeit driven in many cases by an accountability agenda – premised for example on the idea that parental exercise of rights of choice or redress can, within a quasi-market for schooling, help to incentivise schools’ improvement in quality and standards – rather than by a commitment to human rights. Minorities’ interests are however also protected through equality legislation; in particular, as discussed in Chapter 4, provisions within the Equality Act 2010 are specifically aimed at ensuring that access to education is without discrimination on the basis of race, religion, discrimination, sexuality and other protected characteristics.

II. Rights A. Children’s Rights and Capabilities It is important to recognise that those with the most direct interest in the school system are the pupils. In examining the ways in which their rights are addressed, this book gives consideration to the extent to which rights which are derived from domestic legislation meet up to internationally established human rights norms, particularly within the UN Convention on the Rights of the Child (UNCRC), the ECHR and the UN Convention on the Rights of Persons with Disabilities,41 while also taking account of other relevant instruments such as the International Covenant on Economic, Social and Cultural Rights42 and the European Social 41 See ch 9 below. 42 Regarded by the European Court of Human Rights (Ponomaryovi v Bulgaria (Application No 5335/05) (2011) 59 EHRR 799, [34] and 57]) as a persuasive authority and by the UK courts to require consideration as appropriate (see R (Hurley and Moore) v Secretary of State for Business, Innovation and Skills [2012] ELR 297 at [43]). It provides in Art 13 that everyone shall have the right to education and that there should be universal and free access to primary education. It also prescribes certain goals for education such as the development of respect and tolerance for others. The accessibility of education on an equal basis is identified in the General Comment on Art 13 as an ‘essential’ feature of the right to education: Office of the High Commissioner for Human Rights, CESCR General Comment No 13: The Right to Education (Art 13). The General Comment refers to the four ‘As’ – availability (a sufficiency of institutions, teachers and facilities), accessibility (institutions that are accessible without discrimination and are both physically and economically accessible), acceptability (such as offering ‘culturally appropriate’ provision) and adaptability (‘adaptable to changing societies and communities’ and responding to individual needs ‘within their diverse social and cultural settings’). See further ch 2 below.

8 Children’s Education and the Law in a Diverse Society Charter.43 Relevant are both the child’s right to education per se and other rights and freedoms which may be at issue in the context of schooling, such as those concerned with religious expression. Since, notwithstanding the framing of education rights as children’s rights, parental rights in education are also recognised, it is also important to acknowledge the possibility of conflict between child and parental perspectives and autonomy interests. There is no suggestion, beyond a reported allegation that at another school in Birmingham where there was a protest over relationships education pupils were ‘yanked by the arm to join the campaigners’,44 that any of the children whose parents were protesting about the No Outsiders programme were out of step with their parents’ sentiments.45 Moreover, the age of these children, as primary school children, means that, having regard to the notion of the ‘evolving capacities of the child’ in Art 5 of the UNCRC, the parental direction and guidance which that Article calls on states to respect would be expected to have a greater influence over the exercise of their rights than it would in respect of adolescent children.46 Nonetheless, as will be discussed in detail later, RSE is a field where the potential for a disparity between parents’ and children’s wishes may be particularly marked, particularly as children reach adolescence and gain increasing autonomy and capacity for decision-making. It is also a part of the school curriculum in respect of which the state’s duty to recognise and protect the interests of all on an equal basis while also ensuring that ‘the best interests of the child shall be a primary consideration’ in all actions affecting them47 may be most tested.48 Traditionally, domestic education law and policy in the UK have accorded rights specifically to parents and denied children independent rights, including their pivotal participation right under Art 12 of the UNCRC, which sets out a requirement relating to enabling children to express their views on matters affecting them and for due to weight to be given to them in accordance with the child’s age and maturity. Change has been only gradual, with the partial exception of the law governing the rights of children and young people with SEN, as discussed in

43 It provides in Arts 17 and 30 that all children should have access to the education and training that they need and that primary and secondary education should be free. There is an Additional Protocol Providing for a System of Collective Complaints, not yet accepted by the UK, enabling non- governmental bodies with participatory status to bring a complaint of breach of the Charter to the European Committee of Social Rights. A number of complaints regarding education have been pursued under this mechanism. See, eg, Medical Disability Advocacy Center (MAC) v Bulgaria (complaint No 41/2007) and International Association Autism-Europe (IAAE) v France (complaint No 13/2002). 44 Ibid. 45 Two of the pupils at a school where the protests occurred wrote letters to the protesters expressing unhappiness with the protests: ‘Pupils’ protest plea’, The Times (short news item) 22 May 2019 and on Sky News at https://news.sky.com/story/lgbt-row-school-pupils-pen-letter-to-protesters-asking-themnot-to-disturb-us-11726866 (which shows copies of the letters). It is not clear whether or not either of the two were children of any of the protestors. 46 See UNCRC, Art 5. 47 Ibid, Art 3(1). 48 See the discussion in ch 6.

Rights 9 Chapter 9.49 However, an important general duty on ‘pupil voice’ is set out in s 176 of the Education Act 2002, requiring local authorities and governing bodies of maintained schools to have regard to guidance issued by the Secretary of State on consulting with pupils ‘in connection with the taking of decisions affecting them’ and for the guidance to provide for consideration of each pupil’s views ‘in light of his age and understanding’.50 The initial official guidance on s 176 lacked detail on how to ensure pupil engagement, but it emphasised that children and young people are ‘major stakeholders in society with important contributions to make to the design and delivery of services they receive, including education’.51 The current guidance comprises only two pages. It emphasises the relevance of Art 12 and strongly encourages schools to ‘pay due regard to the convention (sic)’,52 but this is an exhortation which surely falls short of what is required to ensure that the pupil’s voice is properly engaged with in school practice. It is thus disappointing that there has to date been no implementation of an amendment to s 176 under the Education and Skills Act 2008, which would remove the s 176 duty from local authorities and replace it in the case of school governing bodies with a more positive one, to ‘invite the views of pupils about prescribed matters’ relating to the conduct of the school and to consider those views in the light of pupils’ age and understanding.53 In Scotland, by contrast, there has been a broader recognition of the need for engagement with children’s views in the context of education. There, all schools must formulate an improvement plan covering, among other things, arrangements for consultation with pupils and involving them ‘when decisions require to be made concerning the everyday running of the school’.54 Scottish local authorities are under a general duty to ensure that education is suitably directed towards the child’s development and in doing so to have regard, so far as is reasonably practicable, to the views of the child in decisions that ‘significantly affect’ the child, taking account of age and maturity.55 However, no such general duty on implementing the UNCRC requirements, which as discussed in later chapters include the provisions of Articles 28 and 29 governing access to and aims of education, has been placed on any public authorities in England, although it has been recommended by the Joint Committee on Human Rights (JCHR).56 Education law in England has also lagged behind other areas of practice concerned with children where there has been

49 See N Harris, ‘Playing Catch-up in the Schoolyard? Children and Young People’s “Voice” and Education Rights in the UK’ (2009) 23(3) International Journal of Law, Policy and the Family 331 and N Harris and G Davidge, ‘The practical realisation of children and young people’s participation rights: special educational needs in England’ (2019) Child and Family Law Quarterly 25. 50 EA 2002, s 176(1) and (2). 51 DfES, Working Together: Giving Children and Young People a Say (London, DfES, 2004) para 2.1. 52 DfE, Listening to and involving children and young people (London, DfE, 2014). 53 Education and Skills Act 2008, s 157, inserting EA 2002, s 29B. This section has never been implemented. 54 Standards in Scotland’s Schools Etc Act 2000, ss 6(1)–(3), as amended. 55 Ibid, s 2. 56 See below.

10 Children’s Education and the Law in a Diverse Society a general trend towards giving greater recognition to their autonomy and extending their agency both legislatively, as in the requirement under the Children and Social Work Act 2017 that children looked after by local authorities are given encouragement to express their views, wishes and feelings,57 and in professional practice.58 Participation in decisions, whether about education or other matters important to their life, is given a high value by many children59 and brings potential psychological and developmental benefits to them.60 Although those benefits are to some extent offset by the risk to their well-being due to the responsibility and potential stress involved in taking part in decision making, and by the potential for adults to manipulate the children,61 participation is considered important to building young people’s capacity, citizenship and capabilities.62 Recognition of the benefit of participation for citizenship is evident in teacher tolerance of and even support for recent pupil strikes intended to highlight concerns about the threat from climate change,63 a professional stance that, incidentally, is also not out of line with the UNCRC’s requirement that the education of the child should be directed towards, inter alia, the ‘development of respect for the natural environment’.64 The role of participation in children’s capability brings into consideration Sen’s capability approach, which looks at a person’s capacity to achieve various ‘functionings’ forming a valued part of life and critical to well-being, through the exercise of freedoms and choices,65 a theoretical approach further developed by Nussbaum.66 Capabilities – seen by Dixon and Nussbaum as reflecting a notion of agency affording as much decisional freedom as the child’s actual or potential for rational or reasoned choice allows, as in the UNCRC notion of ‘evolving capacities’ noted above67 – may extend in 57 Children and Social Work Act 2017, s 1(1)(b). 58 A Franklin and P Soper, ‘Supporting the Participation of Children and Young People in Decisionmaking’ (2009) 23 Children and Society 3; N Thomas, ‘Towards a Theory of Children’s Participation’ (2007) 15(2) International Jounral of Children’s Rights 199. 59 See, eg, C Davey, T Burke and C Shaw, Children’s Participation in Decision-making. A Children’s Views Report (London, Participation Works, 2010). 60 A Daly, Children, Autonomy and the Courts: Beyond the Right to be Heard (Leiden/Boston: Brill Nijhoff, 2018), 35–36 and S Castro and O Palikara, ‘Mind the Gap: the New Special Educational Needs and Disability Legislation in England, Frontiers in Education (2006) online www.frontiersin.org/ articles/10.3389/feduc.2016.00004/full. 61 P Parkinson and J Cashmore, The Voice of the Child in Family Law Disputes (Oxford, OUP, 2008) 194–6. 62 A Daly, Children, Autonomy and the Courts: Beyond the Right to be Heard (Leiden/Boston: Brill Nijhoff, 2018), 35–6; K Hollingsworth, ‘Theorising Children’s Rights in Youth Justice: The Significance of Autonomy and Foundational Rights’ (2013) 76(6) MLR 1046. and Castro and Palikara n 60 above. 63 See, eg, D Speck, ‘Heads union backs pupils’ strike over climate change’, TES 10 Feb 2019 www.tes. com/news/heads-union-backs-pupils-strike-over-climate-change. 64 UNCRC, Art 29(1)(e). 65 A Sen, Inequality Re-examined (Oxford, Clarendon Press, 1992) 1–28. 66 M Nussbaum, Creating Capabilities: The Human Development Approach (London, Harvard University Press, 2011). 67 R Dixon and M Nussbaum, ‘Children’s Rights and a Capabilities Approach: The Question of Special Priority’ 97(3) Cornell Law Review 548 at 559–61.

Rights 11 scope to areas of education decision-making.68 They may, however, need to attract support from the state in order to ensure that their potential is realised in individual cases. Dixon and Nussbaum also argue that while the kind of ‘legally sanctioned dependence’ on parental authority that arises in the context of education, for example over matters such as choice of school, may be justified by children’s lack of ‘emotional or choice-related maturity’, at least pre-adolescence, children’s inherent vulnerabilities mean there is a need for the state to protect them from the consequences of bad parental decisions.69 Protecting their educational interests will have longer term benefits as regards their capabilities, such as the potential for them as individuals to obtain employment on an equal basis with other people. MacAllister70 argues that it is better, in the case of children, to focus on capabilities rather than rights, because without them rights have limited potency for the children as agents. He argues that it is particularly appropriate to do so in the case of rights of children with SEN and disabilities (SEND), who clearly face the greatest barriers to autonomy, participation and the effective exercise of rights.71 A range of models have been identified relating to different forms and levels of participation and various processes and institutions that can best facilitate children’s effective involvement.72 They include Lundy’s powerful model for implementation of Art 12 of the UNCRC. Lundy’s model is based around ensuring children have the necessary ‘Space’ (the opportunity to express a view), ‘Voice’ (facilitation to express their views), ‘Audience’ (whereby the views will be listened to) and ‘Influence’ (so that the view is ‘acted upon, as appropriate’).73 There is not the scope to analyse the models here, but the key point is that proper recognition of children’s participation rights and the need to ensure and advance their capabilities is important for guaranteeing that their critical stake in decisions about education is properly acknowledged and their views have some influence. 68 See, eg S Deakin and J Browne, ‘Social Rights and Market Order: Adapting the Capability Approach’, in T K Hervey and J Kenner (eds), Economic and Social Rights under the EU Charter of Fundamental Rights–A Legal Perspective (Oxford, Hart, 2003), 27–43 at 34, referring to the capacity to utilise a commodity, which is contingent upon both the individual’s own personal resources and characteristics but also social factors such as access to education. 69 R Dixon and M Nussbaum n 67 above 575–6. 70 J MacAllister, ‘Enhanced agency rights for older Scottish children with additional support needs: a philosophical review’ (2019) 23(5) International Journal of Inclusive Education 519. 71 Terzi argues that the capability approach promotes egalitarianism since it avoids unilateralist conceptions of disability, as for example related to biological or social causes, and instead enables disability to be perceived ‘in the light of the distributive pattern of relevant capability’, which has ‘fundamental consequences for the design of educational policies and schooling systems’: L Terzi, ‘Beyond the Dilemma of Difference: The Capability Approach to Disability and Special Educational Needs’ (2005) 39(3) Journal of the Philosophy of Education 443 at 451. 72 See in particular RA Hart, Children’s Participation, from Tokenism to Citizenship (Florence, UNICEF, 1992); H Shier, ‘Pathways to participation: Openings, opportunities and obligations a new model for enhancing children’s participation in decision-making’ 15(2) (2001) Children and Society 107. See generally A Parkes, Children and International Human Rights Law: the Right of the Child to be Heard (London, Routledge, 2012), ch 1. 73 L Lundy, ‘“Voice” is not enough: conceptualising Article 12 of the United Nations Convention on the Rights of the Child’ (2007) 33(6) British Educational Research Journal 927, 933.

12 Children’s Education and the Law in a Diverse Society The UN Committee on the Rights of the Child concluded in 2008 that the UK had made ‘little progress’ in the implementation of Art 12 via domestic education law and policy.74 Eight years later the Committee found that there was still no systematic engagement with children’s views in relation to policies affecting their interests in general.75 The UK Government has to date not adopted the recommendation of the JCHR,76 noted above, to place a general statutory duty on public authorities in England to ensure that they have regard to the rights of children under the UNCRC when exercising relevant functions. In relation to education specifically, the EA 2002, s 176 duty on local authorities does not go that far. Despite the absence of such a general duty, the courts have at least been prepared to consider and apply the Convention ‘on numerous occasions’ in relation to a variety of legal areas concerning children,77 including family law, where Art 12 has received particular attention,78 and education,79 consistently with the principle that UK legislation should normally be interpreted consistently with international law including UK treaty obligations.80 The duty recommended by the JCHR, above, has however been placed on public authorities in both Scotland81 and Wales;82 and, in April 2019, the First Minister in Scotland announced the intended incorporation of the UNCRC into Scottish law,83 which would represent a landmark reform. While England lags behind in this regard, the JCHR has at least recognised that the DfE is the central government department most switched on to children’s rights.84 74 UN Committee on the Rights of the Child, Concluding Observations: United Kingdom of Great Britain and Northern Ireland, CRC/C/GBR/CO/4 (Geneva: Centre for Human Rights) (Geneva, Switzerland, UN, 2008) para 32. 75 UN Committee on the Rights of the Child, Concluding observations on the fifth periodic report of the United Kingdom of Great Britain and Northern Ireland (CRC/C/CBR/CO/5) (Geneva, Switzerland, Centre for Human Rights, 2016) para 29. 76 JCHR, Legislative Scrutiny (1) Children and Social Work Bill; (2) Policing and Crime Bill; (3) Cultural Property (Armed Conflict) Bill (2016) para 30 at https://publications.parliament.uk/pa/jt201617/jtselect/ jtrights/739/73902.htm?utm_source=739&utm_campaign=modulereports&utm_medium=fullbullet. 77 Per Nicol J in Webster and Others v Governors of Ridgeway Foundation School [2009] EWHC 1140 (QB) [2009] ELR 439 at [5(j)]. See further ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4. 78 S Gilmore, ‘Use of UNCRC in Family Law Cases in England and Wales’ (2017) 25(2) International Journal of Children’s Rights 500. 79 See, eg, In re E (a child) (AP) (Appellant) (Northern Ireland) [2008] UKHL 66 discussed in ch 2 and R (Williamson) v Secretary of State for Education and Employment and Others [2005] UKHL 15 [2005] ELR 291 [2005] 2 AC 246, noted in ch 6. 80 See, eg, R (MA and Others) v Secretary of State for Work and Pensions and Birmingham City Council [2013] EWHC 2213 at [80] per Laws LJ. 81 It is a statutory framework for ensuring that the UNCRC requirements are being met and in doing taking account of children’s views: Children and Young People (Scotland) Act 2014, ss 1 and 2. 82 In Wales there is a statutory duty for its government to have due regard to the UNCRC when formulating, reviewing or changing a policy or proposing legislation. See the Rights of Children and Young Persons (Wales) Measure 2011, s 1 and the Social Services and Well-being (Wales) Act 2014, s 7(2). 83 Announcement at Scottish National Party Conference April 2019 at www.snp.org/nicola-sturgeonsaddress-to-conference/. 84 JCHR, The UK’s compliance with the UN Convention on the Rights of the Child Eighth Report of Session 2014–15, report together with formal minutes (HL Paper 144, HC 1016) (2015) paras 43 and 47.

Rights 13 Also relevant, in the case of children with disabilities, is Art 7.3 of the CRPD. It promotes the participation of children with disabilities in similar terms to the requirements of UNCRC, Art 12 but also explicitly seeks to uphold their equality with other children and their need for age-appropriate assistance in connection with the participation right. In relation to strategic policy making, it is also noteworthy that SEND is a field for which the DfE has a national advisory group of young people. More broadly, the rights of all children in the context of education have also been addressed in recent years through UNCRC impact assessments or memoranda prepared in relation to various education-related bills.85 It is also important to take account of the professionally-driven efforts being made by some schools to acknowledge and promote children’s rights through implementation of UNICEF UK’s Rights Respecting Schools award initiative. It has led to a position where currently ‘[o]ver 1.6 million children in the UK go to a Rights Respecting School’.86 The award is described as being ‘based on principles of equality, dignity, respect, non-discrimination and participation’.87

B. Reconciling Rights and Wider Interests Returning to the No Outsiders controversy in Birmingham, at the heart of the conflicting view of how or if children should be taught about relationships by schools was essentially a clash of values or beliefs. Both the school and the parents would consider themselves to be acting in accordance with the children’s best interests, but the former claimed to be supporting the principles of equality and respect while the parents felt that their own wishes were not being respected. The question of how such a conflict should be resolved is, among other things, clearly an issue of human rights. Such rights have an important bearing on questions concerning the accommodation of any particular group’s or individual’s own values for the purposes of the education of their children, particularly in a schools system that aims to provide a framework for universal citizenship and common values within a pluralistic society. McGoldrick argues that, as human rights are universal, ‘rights to freedom of expression, association, assembly, religion, property, education, use of language and, perhaps most significantly, the right to equality and not to be discriminated against, all have a role in ensuring multiculturalism and accommodating diversity’.88 Human rights are applicable to a wide range of aspects of

85 In particular, the bills which were enacted as the Education Act 2011, the Children and Families Act 2014 and the Children and Social Work Act 2017. 86 According to UNICEF UK ‘The Award recognises achievement in putting the UN Convention on the Right of the Child … at the heart of a school’s practice to improve wellbeing and help all children and young people realise their potential.’ www.unicef.org.uk/rights-respecting-schools/the-rrsa/ about-the-rrsa/. 87 Ibid. 88 D McGoldrick, ‘Multiculturalism and its Discontents’ (2005) 5(1) Human Rights Law Review 27, 35.

14 Children’s Education and the Law in a Diverse Society education but have merely implicit statutory expression within English education legislation.89 However, as public authorities,90 state schools and other educational institutions are bound by the Human Rights Act 1998 and the ECHR provisions incorporated within it.91 Later chapters explore how human rights questions under the ECHR have been dealt with in various educational contexts, for example the curriculum and schools’ rules on pupil dress. The No Outsiders dispute referred to earlier also reminds us that, at the national level, modern Western democratic states have to reconcile the obligation to respect individual and group rights to religious and cultural freedom and autonomy with the national need to promote social cohesion and manage social risks, while also identifying and protecting the independent interests of the child and their education rights. Greater equity in relation to access to education – and in particular to good standards of provision – continues to be an expressed policy priority across political divides and is linked to a wider goal of maximising social mobility and inclusion. But there is less certainty, and probably insufficient political consideration given, to the issue of how to respect the right not to be included or the right to differential treatment. There is a basic question which Gutmann expresses in the simple terms: ‘[h]ow can civic education in a liberal democracy give social diversity its due?’92 Beyond its role in imparting knowledge and preparing for adult citizenship and employment lies the broader socialising and potentially unifying role of schooling that, in a socially and culturally diverse society, is dependent for its realisation upon the inculcation of values considered to have particular importance to basic or common citizenship. Yet there is a conflict 89 See UN Commission on Human Rights, Report submitted by Katarina Tomaševski, Special Rapporteur on the right to education, Addendum. Mission to the United Kingdom 18–22 October 1999, E/CN4/2000/6/Add 2 (Geneva, Centre for Human Rights, 2000). 90 Maintained schools and local authorities will be public authorities (PAs) since they receive public funds and also carry out functions of a public nature for the purposes of the Human Rights Act 1998 s 6(1) and (3). Head teachers also act as a PA when carrying out functions such as exclusion from school (see A v Headteacher and Governors of The Lord Grey School [2004] EWCA Civ 382; [2004] All ER (D) 544 (Mar), per Sedley LJ at paras 36–38, but note that Baroness Hale in this case seemed to consider the exclusion to be in effect a decision of the school anyway for s 6(1) purposes: Ali v Headteacher and Governors of Lord Grey School [2006] UKHL 14; [2006] ELR 223 at [79]. Academies, like the city technology colleges which preceded them (and were found to be amenable to judicial review: see R v Governor of Haberdashers’ Aske’s Hatcham College Trust ex parte T [1995] ELR 350), will be PAs because they receive public funds. Independent (private) schools are PAs only when they are exercising public functions, such as when they administered the former assisted places scheme: R v Cobham Hall School ex p S [1998] ELR 389; R v Muntham House School ex p R [2000] ELR 287; R v Fernhill Manor School ex p A [1994] ELR 67. However, their services are provided to parents under a private contractual arrangement and this provision will not generally constitute a public function. 91 The Human Rights Act 1998 prohibits all public authorities, which includes schools and local authorities, from acting incompatibly with ECHR rights (subject to exceptions) (s 6), makes alleged breaches of ECHR rights justiciable in a court of tribunal (s 7), and requires UK legislation to be ‘read and given effect’ in a way that is consistent with ECHR (s 3). UK courts and tribunals must, when considering an ECHR right, take account of jurisprudence from the European Court of Human Rights (and the now-discontinued Commission of Human Rights) (s 2). 92 A Gutmann, ‘Civil Education and Social Diversity’ (1995) 105 Ethics 557 at 557. See also Idem, Democratic Education (Princeton, NJ, Princeton University Press, 1987).

Integration, Identity and Multiculturalism 15 which centres on the issue of how far the autonomy and independence of particular social groups belonging to particular distinct cultural or religious traditions can be upheld in the interests of freedom and ultimately justice and (group) rights when – by supporting practices that are regarded as antithetical to them or simply by virtue of the special treatment or exemption that is afforded – it could threaten to weaken the very liberal democratic values which education must be seen to reflect.93 Multiculturalism in education, discussed below, is at the centre of this debate, since at two extremes are opposing views: first, that multiculturalism provides a basis for minimising societal fissures resulting from diversity; and, secondly, that it deepens social division by weakening the bedrock of common citizenship.

III. Integration, Identity and Multiculturalism A. Education, Cultural Pluralism and Inclusion At the heart of the question about how children’s education should be provided and who should be permitted to influence it is the role that education plays in society. For the most part children in England attend a school, which in over 90 per cent of cases will be state funded.94 Schools as a whole, including their staff and pupils, are reflective of society. They are also perceived to have a role in shaping society, increasingly so. Their social reproductive role stems from, as Sunier puts it, ‘their position as prime agents in the making of citizens’.95 But the question is: what kind of citizens should they seek to make? Sunier refers to the need for a ‘delicate balance’ to be struck by the state between what it perceives to be required from schools and what is in tune with an increasingly diverse society.96 The modern state has come to view the education system as an important tool of integration by bringing children from a wide variety of social/cultural backgrounds together within institutional settings and providing a common education offering shared knowledge, experience and core values. To some that might involve an overriding aim of promoting national unity and, as Hodgson explains with regard to ethnic diversity, there could be seen to be ‘a superficial attraction in a philosophy of assimilation in the educational field with the aim being to improve race

93 See, eg, J Garciá Oliva and H Hall, ‘Responding to Non-Liberal Minorities within a Liberal State: The Challenge Posed by Children and Vulnerable Adults’ [2018] PL 258. 94 See chs 3 and 8 below. 95 T Sunier, ‘Schooling and New Religious Diversity across Four European Countries’, in JR Bowen, C Bertossi, JW Duyendak and ML Krook (eds), European States and Their Muslim Citizens (Cambridge, Cambridge University Press, 2014), 54–72, 70. 96 Ibid.

16 Children’s Education and the Law in a Diverse Society relations amongst the next generation by attempting to ensure that its members all have a uniform cultural background’.97 The intention would be seen as to counter the effect of what Poulter explains is the identification of members of the various ethnic groups ‘so strongly with their own distinctive communities … that there is little appreciation of the role they can and should be playing in forging and reinforcing a new sense of national identity’.98 On a similar basis, separate arrangements within the education system based on cultural or ethnic diversity may be perceived by some as contributing to a wider threat to social cohesion.99 Yet it should not be assumed that minority groups want separateness from the rest of society. Poulter argues that what they may in reality be seeking is greater recognition from wider society or the state for their cultural values and traditions, which if secured can engender the experiencing of a greater sense of social belonging.100 There is a question, however, as to the means of ensuring inclusion and the wider unity that might flow from it. A policy of integration might be problematic because, as Cantle says, it ‘appears to demand that minorities adapt and change – or even assimilate – in order to become part of society’.101 An integrationist approach may be perceived as a threat to minorities’ religious, cultural or linguistic identities and thus their chosen way of life and traditions.102 Such a threat has, for example, been identified in relation to Albanians in Kosovo and Kurds in Turkey.103 Various areas of education have traditionally operated what Kymlicka and Norman refer to as ‘difference-blind rules’ and multicultural approaches which, by aiming to treat everyone the same regardless of background may in fact result in disadvantage to particular groups.104 Examples include university admissions systems, which have increasingly been criticised for failing to reduce barriers to access stemming from social status or ethnic background, and headteachers’ statutory power to exclude pupils as a disciplinary sanction, the exercise of which has impacted disproportionately on pupils with SEND.105 Kymlicka and Norman argue that those who espouse multiculturalism (discussed in more detail below)

97 D Hodgson, The Human Right to Education (Aldershot, Ashgate, 1999) 113. 98 S Poulter, Ethnicty, Law and Human Rights: the English Experience (Oxford, Clarendon Press, 1998) 26. Poulter, however, considered himself a cultural pluralist rather than an assimilationist: S Poulter, ‘Muslim Headscarves in School: Contrasting Legal Approaches in England and France’ (1997) 17 Oxford Journal of Legal Studies 43 at 47. 99 See N Burtonwood, ‘Social Cohesion, Autonomy and the Liberal Defence of Faith Schools’ (2003) 37 Journal of Philosophy of Education 415. 100 S Poulter, Ethnicity, Law and Human Rights (Oxford, Clarendon Press, 1998) 26. 101 T Cantle, Interculturalism. The new era of cohesion and diversity (Basingstoke, Palgrave Macmillan, 2012) 66. 102 Ibid. 103 G Lansdown, ‘Progress in Implementing the Rights in the Convention’ in S Hart et al, Children’s Rights in Education (London, Jessica Kingsley, 2001) 37 at 47–8. 104 W Kymlicka and W Norman, ‘Citizenship in Culturally Diverse Societies: Issues, Contexts, Concepts’, in Idem, Citizenship in Diverse Societies (Oxford, Oxford University Press, 2000), ch 1 at 4. 105 See ch 2.

Integration, Identity and Multiculturalism 17 and difference-blind institutions are under growing pressure to ‘show that the status quo does not create injustices for minority groups and their members’.106 The danger that is seen to flow from laws and policies that attempt to downplay, mask or remove the internal differences that characterise culturally diverse societies is that they could be viewed as discriminatory and oppressive.107 For example, while the French state’s ban on the wearing of religious dress by school pupils might be consistent with its traditional laïcité (secularity) and was introduced in part at least to advance integration and egalitarianism – since all groups would be treated the same way and no individuals could be ostracised by reason of their wish to adopt culturally distinct dress – it has clearly impacted disproportionately on particular ethnic or religious groups. The consequence of such effects could include the alienation of some members of the communities most affected by the policy and the compounding of intolerance among some school pupils rather than giving all a stronger sense of common identity and the right to respect from others.108 Some minority groups reject assertions that separate schooling necessarily provides for social division or that emphasising separate religious or cultural identities prevents an engagement with wider society.109 There is, for example, an argument that the threat posed to social cohesion can be overcome if faith schools ensure coverage of other cultures within the school curriculum110 and if a school has teachers who are ‘committed to teaching respect and tolerance of others regardless of their differences’.111 Yet not all faith schools have such a commitment to a ‘compensatory curriculum’ of this kind.112 The upholding of cultural pluralism has received one of its strongest international endorsements under the UNESCO Universal Declaration on Cultural Diversity.113 Its proponents argue that the correct response of a liberal democracy to diversity is to accord due respect to different cultures and to principles such as individual choice and religious tolerance, and that doing so helps to inculcate a value system that is a force for national unity.114 Poulter sees ‘a common educational system’ as important in cultivating such an ethos.115 A core problem of 106 Kymlicka and Norman n 104 above. 107 T Modood, Multicultural Politics: Racism, Ethnicity and Muslims in Britain (Edinburgh, Edinburgh Press, 2005). 108 See M Idriss, ‘Laïcité and the banning of the “hijab” in France’ (2005) 25 Legal Studies 260 at 284–5. 109 Association of Muslim Social Scientists et al, Muslims on Education. A Position Paper (Richmond, Association of Muslim Social Scientists, 2004) paras 4.1.2 and 4.1.5. 110 G Short, ‘Faith-based Schools and Social Cohesion: Opening up the Debate’ (2002) 36 Journal of Philosophy of Education 559. 111 M Merry, ‘Cultural Coherence and the Schooling for Identity Maintenance’ (2005) 39 Journal of Philosophy of Education 477 at 492. 112 Burtonwood n 99 above 418. 113 (Paris, UNESCO, 2002), adopted by the 31st Session of the General Conference of UNESCO, Paris, 2 Nov 2001. 114 See J Raz, Ethics in the Public Domain. Essays in the Morality of Law and Politics (Oxford, C larendon Press, 1994) ch 8. 115 Poulter (1998) n 98 above at 47–8.

18 Children’s Education and the Law in a Diverse Society Western education systems, however, is that many of them, while having common elements, often tolerate a degree of social segregation and religious division. In England, this is manifested in separate categories of faith schools, which to some, such as Dawkins,116 represent and reinforce social division on the basis of religious association. A growing range of religious communities have attracted state support for faith-based schooling – including financial support, such as for private sector faith schools to move into the state sector as academies.117 On one level, this has at least brought them under a more uniform regulatory regime and further into the social mainstream, but Cantle considers that it has contributed to increased division both ‘within and between communities’.118 The impact of such division is, however, more starkly evidenced outside England, in the Northern Ireland schools system, which continues to consist mostly of Protestant schools and Roman Catholic schools;119 integrated schools comprise little more than five per cent of the total.120 There are also a small number of post-primary ‘mixed’ schools which are Roman Catholic or Protestant in designation but draw at least 10 per cent of their pupils from ‘the other community’.121 Back in 2002 the UN Committee on the Rights of the Child expressed concern that so few schools in Northern Ireland (only four per cent at that time) were integrated.122 It called upon the UK Government to provide financial support and incentives for the establishment of additional integrated schools ‘to meet the demand of a significant number of parents’.123 Integrated schools can play a significant role in promoting social unity: research points strongly to a ‘positive effect of integrated education on sectarian attitudes’,124 although in one of Northern Ireland’s integrated schools there has been observed a ‘culture of avoidance’ among teachers as regards confrontation of politically or religiously controversial issues, with the potential to sustain or intensify psychological boundaries between the different religious groups.125 Research by Blaylock et al has identified the capacity 116 Eg, R Dawkins, ‘No faith in the absurd’, Times Educational Supplement, 23 February 2001, online at www.tes.com/news/no-faith-absurd. 117 See J M Halstead, ‘In defence of faith schools’, in G Haydon (ed), Faith in Education. A tribute to Terence McLaughlin (London, Institute of Education, 2009) 46–67, 47. 118 T Cantle n 101 above 72. 119 L Lundy, ‘Human Rights and Equality Litigation in Northern Ireland’s Schools’ (2004) 5 Education Law Journal 82. 120 Department of Education (Northern Ireland), Statistical Bulletin 9/2017, Annual enrolments at grant-aided schools in Northern Ireland 2017/18: basic provisional statistics, December 2017 (Bangor, DENI, 2017). 121 D Blaylock, J Hughes, Rölfer and C Donnelly, ‘Integrating Northern Ireland: Cross-group friendships in integrated and mixed schools’, British Journal of Educational Research (2018) 44(4) 643–662. There were 19 of these schools in 2014/15: ibid. 122 UN Committee on the Rights of the Child, Concluding Observations: United Kingdom of Great Britain and Northern Ireland, CRC/C/15/Add.188, 9 Oct 2002 (Geneva, UN, 2002) para 47. 123 Ibid, para 48(g). 124 C McGlynn, U Niens, E Cairns and M Hewstone, ‘Moving out of conflict: the contribution of integrated schools in Northern Ireland to identity, attitudes, forgiveness and reconciliation’ (2004) 1(2) Journal of Peace Education 147, 156. 125 C Donnelly, ‘What Price Harmony? Teachers’ Methods of Delivering an Ethos of Tolerance and Respect for Diversity in an Integrated School in Northern Ireland’ (2004) 46 Educational Research 3.

Integration, Identity and Multiculturalism 19 of integrated schools to support inter-community relationships among children, but it also shows that even in mixed schools there can be positive outcomes for relationship building among those from differing communities.126 Nevertheless, in a majority of cases in Northern Ireland the children of each community continue to be educated separately from each other. In its latest monitoring report on the UK’s implementation of the UNCRC, the UN Committee on the Rights of the Child once again expressed concern that in Northern Ireland, ‘segregation of schools by religion persists’.127 Social separation by religion is also evidenced in the case of the ultra- Orthodox Jewish community of Stamford Hill, which at one point was reported to be contemplating relocation to a purpose-built village in Buckinghamshire in which it could live and practise its own way of life and which would eventually have its own schools, shops and community centres,128 but has more recently been reported to be relocating to Canvey Island.129 This and the Northern Ireland situation above may represent extreme examples, and there have been attempts to extend integration further in Northern Ireland since the signing of the Good Friday agreement in 1998.130 Moreover, according to Halstead, distinctive educational environments offered by faith schools are ‘not necessarily socially divisive’ but a healthy feature of a democratic and pluralistic society.131 Nonetheless, especially in England, both social migration – which is linked to the operation of the school admissions process and the exercise of parental preference132 – and the high levels of social segregation across the schools in some areas, as identified in the Casey report,133 along with the continuation of and government encouragement for faith schools, make it difficult for education systems to ‘promote social integration whilst respecting diversity of culture’.134 Even those who consider that a degree of separateness is necessary for preserving the rights of minorities in the field of education would, one assumes, acknowledge that there should, at the very least, be some attempt to promote greater unity and commonality. It would be premised on what Goldstein refers to as the need across all schools ‘to educate all students both as to the rights and

126 Blaylock et al (2018), n 121 above. 127 UN Committee on the Rights of the Child (2016) n 75 above para 72(e). 128 J Shamash, ‘A proud new Utopia, or just another ghetto?’ The Times, 16 Apr 2005, 74. 129 H Sherwood, ‘North London Jews find room to flourish in the wide open spaces of Canvey Island’, Observer (online) 7 August 2016 at www.theguardian.com/world/2016/aug/06/house-prices-jews; J Romain, ‘Stamford Hill’s ultra-Orthodox Jewish community is moving to Canvey Island–as a rabbi, I’m cautiously optimistic’, Independent (online), 9 January 2018 at www.independent.co.uk/voices/ orthodox-judaism-canvey-island-bbc-stamford-hill-integration-prejudice-a8149546.html. 130 McGlynn et al n 124 above. 131 See J M Halstead, ‘In defence of faith schools’, in G Haydon (ed), Faith in Education. A tribute to Terence McLaughlin (London, Institute of Education, 2009), 46–67, 52–55. 132 See ch 5. 133 L Casey DBE, The Casey Review: A Review into Opportunity and Integration (HMSO, 2016), paras 3.79 and see generally paras 3.75–3.98 www.gov.uk/government/uploads/system/uploads/ attachment_data/file/575973/The_Casey_Review_Report.pdf. 134 Lansdown n 103 above 48.

20 Children’s Education and the Law in a Diverse Society obligations of all citizens in a common civil society as to the appreciation of diversity and the tolerance of other cultural norms, views and ideologies’.135 Such an approach is already provided for under various international instruments,136 especially in Art 29 of the UNCRC.137 In England, one of the prescribed areas of knowledge for Citizenship within the National Curriculum138 has been ‘the diversity of national, regional, religious and ethnic identities in the United Kingdom and the need for mutual respect and understanding’. The Government’s second periodic report to the UN Committee on the Rights of the Child referred to the role that citizenship education can play in ‘combating racism and promoting equal opportunities through teaching about fairness, justice, rights and responsibilities and through developing an understanding and appreciation of diversity’.139 In its concluding observations, the Committee welcomed the broad development of citizenship education programmes.140 The more recent introduction of a requirement that schools promote ‘British values’141 – identified as democracy, the Rule of Law, individual liberty and mutual respect and tolerance of those for those of different faiths and beliefs – reflects a need to ensure that, in an increasingly diverse society, all young people ‘leave school prepared for life in modern Britain’.142 Social, cultural and linguistic diversity among pupils in schools in the UK has, as noted above, grown in part as a result of immigration, including the increase in EU migration that followed the accession of 10 new states to the EU, beginning in May 2004. The Committee on Economic, Social and Cultural Rights, referring to the right to education under Art 13 of the ICESCR,143 says that states must ensure not only the accessibility of education to all but also its adaptability: ‘education has to be flexible so that it can adapt to the needs of changing societies and communities and respond to the needs of students within their diverse social and cultural settings’.144 The adoption of this principle can be seen in the initiatives taken at EU level to promote the inclusion within the education system of

135 S Goldstein, ‘Multiculturalism, Parental Choice and Traditional Values: A Comment on Religious Education in Israel’ in G Douglas and L Sebba, Children’s Rights and Traditional Values (Aldershot, Ashgate, 1998) 118 at 132. 136 See, eg, ICESCR, Art 13(1), which states, inter alia, that ‘education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups …’. 137 In particular Art 29(1)(d), calling for the ‘preparation of the child for a responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin’. 138 See ch 6. 139 UK Government, Convention on the Rights of the Child. Second Report to the UN Committee on the Rights of the Child by the United Kingdom 1999 (London, TSO, 1999) para 9.12.8. 140 UN Committee on the Rights of the Child (2002) n 122 above para 47. 141 See ch 6 below. 142 HM Government, Integrated Communities Strategy Green Paper (London, Ministry of Communities and Local Government, 2018) 32. See further ch 6. 143 See nn 42 and 136 above. 144 General Comment n 42 above para 6.

Integration, Identity and Multiculturalism 21 children of Roma origin, many of who are from migrant families. The EU Framework for National Roma Strategies up to 2020 has called for action at national level to address the inequality and lack of integration of Roma peoples in EU Member States via National Roma Integration Strategies covering education among other areas. However, in relation to a need for a culturally-sensitive curriculum that is capable of addressing the specific linguistic and social needs of Roma children, as a minority group, the EU’s equality framework may offer greater safeguards. Stalford argues that in the context of education the principle of equal treatment under the EU’s Race Equality Directive145 applies not only to conditions governing access to education but also educational content.146 Thus it was possible to envisage a potential challenge to a Member State failing to offer minorities sufficient appropriate linguistic provision or culturally-sensitive content within the curriculum, or where – in the case of Roma people – the curriculum ‘contains elements that are insensitive to the specific needs and culture of [their] community’.147 Across the UK there has been considerable progress in the inclusion of Roma children within the education system, but the emphasis has been placed on addressing enrolment and attendance shortfalls and low levels of attainment among this group’s children rather than on tailoring curriculum content to their specific cultural needs and heritage.148 Yet the evidence is that while Roma communities are by no means antipathetic to education itself, it is family concerns about risks that formal education within the schools system may undermine their way of life as well as clash with some of their community’s cultural norms, such as a preference for acquiring knowledge in the community or from the family or for early financial dependence and family formation, that tend to lie behind the weaker engagement that Roma children have with the schools system.149

B. ‘Interculturality’, Multiculturalism and Common Values Questions arise in liberal democratic states as to how and to what extent schooling can be adapted to the cultural needs of all minorities. One response to the interests

145 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. 146 H Stalford, Children and the European Union. Rights, Welfare and Accountability (Oxford, Hart Publishing, 2012) 164. 147 Ibid. 148 See N Harris, D Ryffé, L Scullion and S Stendahl, ‘Ensuring the Right to Education for Roma Children: an Anglo-Swedish Perspective’ 31(2) International Journal of Law, Policy and the Family 230 and House of Commons Women and Equalities Committee, Tackling inequalities faced by Gypsy, Roma and Traveller communities, Seventh Report Session 2017–19 (HC 360) (2019) para 84. 149 J Hamilton, J Bell, F Bloomer and J Holohan, Adequacy and Effectiveness of Educational Provision for Traveller Children and Young People in Northern Ireland (Belfast, NICCY/Equality Commission for Northern Ireland, 2007).

22 Children’s Education and the Law in a Diverse Society of minorities, including those from migrant families, within the state education system would be an ‘intercultural’ approach. It has been advocated by the Council of Europe150 and is also reflected in the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, agreed in 2005, which refers to ‘interculturality’ as ‘the existence and equitable interaction of diverse cultures and the possibility of generating shared cultural expressions through dialogue and mutual respect’.151 Within the context of education, an intercultural approach involves ensuring that groups such as migrant children and those from minority backgrounds are not educated separately but enter an inclusive education system which develops educational programmes and strategies placing an emphasis on mutual respect and recognition. This is said to contribute to a ‘new culture’ in which the original separate cultures ‘combine to form something greater than the sum of the parts’.152 It is argued, however, that an intercultural approach must avoid the false perception that it can bring about ‘a state of fusion where all cultures merge into harmonious existence or hybridise completely and successfully’: interculturality serves to ‘build bridges between neighbours, not to eliminate the distance that separates them’.153 It is about challenging notions of ‘otherness’ and putting more emphasis on developing and recognising ‘common bonds’ across different communities.154 Young’s ideas about ‘differentiated solidarity’ are similar in outlook.155 According to Young, the norms of differentiated solidarity permit minority groups a ‘freedom to cluster’, but ‘oppose actions and structures that exclude and segregate groups or categories of persons’.156 It is an approach which ‘assumes respect and mutual obligation’ but eschews the idea that solidarity demands ‘mutual identification and affinity’.157 Young’s thesis is essentially that distance between different peoples is natural and does not undermine norms of solidarity, because there is a connection and inter-dependency between people from different backgrounds or cultures through the causal effects of their daily actions on others. In this regard, Young rejects the idea that policies should have integration as their normative ideal.158 A multiculturalist, Parekh, argues that through ‘a critically sympathetic dialogue’ between cultures each will be enabled to ‘appreciate its own strengths

150 See, eg, Council of Europe, White Paper on Intercultural Dialogue – Living Together as Equals in Dignity (Strasbourg, Council of Europe, 2008). 151 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, 2005, Art 4. ‘Cultural expressions’ are defined as ‘those expressions that result from the creativity of individuals, groups and societies, and that have cultural content’. Under the Convention, education is given a role in encouraging and promoting understanding of the importance of the protection and promotion of the diversity of cultural expressions: ibid, Art 10(a). 152 J-M Leclercq, Facets of interculturality in education (Strasbourg, Council of Europe, 2003) 71. 153 Ibid, 75. 154 Cantle n 101 above, 142–43. 155 I Young, Inclusion and Democracy (Oxford, OUP, 2000). 156 Ibid, 221 and 224. 157 Ibid, 221–2. 158 Ibid, 219.

Integration, Identity and Multiculturalism 23 and limitations’ but also to become conscious of ‘what is distinctive to it as well as what it shares in common with them’.159 A multicultural approach to education became increasingly embedded in the years following the Swann Report, although Swann’s focus can also be seen as intercultural since it encouraged the inculcation of greater awareness among all children of the distinct cultures of those from different racial and ethnic backgrounds, as part of the vision of ‘a genuinely pluralist society … socially cohesive and culturally diverse’.160 However, its central multiculturalist rationale is that it is necessary to combat the focus traditionally placed by schools on the language, history, religion, customs and traditions of the majority population while the cultural identity of minorities is largely ignored and thus threatened and devalued. Multicultural education could, for example, mean that the curriculum accommodates minority languages. It might also involve coverage in history syllabuses of minorities’ history, and the inclusion in religious, social and other studies of ‘their beliefs … arts and preferred way of life’.161 So it contemplates a dual approach which enables meaningful engagement with minorities’ traditions and respect for their cultural identity while at the same time ensuring that the children understand mainstream social and cultural values. Raz says that an education policy to support multiculturalism would involve educating ‘young people of all cultural groups of significant size’ in the culture of their particular group, if that is what their parents wish, but should also ensure that they are ‘educated to be familiar with the history and traditions of all the main cultures in the country and an attitude of respect for them should be cultivated’.162 The implicit reference by Raz to parental influence over education in this context does, however, raise a problematic issue around the agency of children and in particular the role of the state in safeguarding the interests of those children who are from a minority cultural/religious group whose values may conflict with the liberal values of the majority,163 which is an issue discussed in Chapter 6. Multiculturalism – involving not merely the recognition of what Raz refers to as a normative state of ‘coexistence within the same political society of a number of sizeable cultural groups wishing and in principle able to maintain their distinct identity’,164 but also in philosophical terms as a moral outlook, a ‘moral sensitivity’165 – has come under increasing attack over recent decades.

159 B Parekh, ‘Barry and the Dangers of Liberalism’ in P Kelly (ed), Multiculturalism Reconsidered (Cambridge, Policy, 2002) 133 at 141. See also B Parekh, Rethinking Multiculturalism (Cambridge, Mass, Harvard University Press, 2000). 160 DES, Education for All. Report of the Committee of Inquiry into the Education of Children from Minority Ethnic Groups (London, HMSO, 1985) 6. 161 M Sutherland, Theory of Education (Harlow, Longman, 1988) 130. 162 J Raz, ‘Multiculturalism’ (1998) 11(3) Ratio Juris 193, 198. 163 As highlighted by J Garciá Oliva and H Hall, ‘Responding to Non-Liberal Minorities within a Liberal State: The Challenge Posed by Children and Vulnerable Adults’ [2018] PL 258. 164 Raz n 162 above at 197. 165 Ibid.

24 Children’s Education and the Law in a Diverse Society In particular, it is seen by some as a cause of fragmentation rather than the cohesive force claimed for it by its proponents such as Modood and Raz.166 In principle that should not be the case, for, as Kymlicka argues, multiculturalism affects the means by which minorities integrate into the dominant culture, not whether they integrate.167 Moreover, in the UK context there is, according to Crick, a common thread of ‘Britishness’ as ‘part of multiculturalism’.168 Asari et al argue that Britishness should indeed be viewed in a multicultural context, reflecting the nature of modern British society as multicultural but with accepted common values which should be promoted through public education.169 Rather than being a threat to the national identity, multiculturalism may help to shape it through the implementation of policies on equality and approaches to education, which over time form part of the shared history and experience of the population.170 Nonetheless, multiculturalism is criticised by some as promoting an acceptance of values and practices that appear extreme and inconsistent with those which have general societal acceptance.171 Raz identifies the potential threats, arguing that multiculturalism should not allow cultural communities to repress their own members, be intolerant of members of other groups, or be able to deny individual members the right to leave the community, and individual members of all groups should have the freedom to enjoy economic and political participation in society as a whole.172 The Casey review reported encountering in some parts of the country ‘repeated examples of regressive, discriminatory and harmful attitudes’, which had been ‘sanctioned by the authorities in the name of tolerance and multiculturalism’.173 One particular area of concern with regard to education centres on some unregistered schools and other settings where extremist religious or ethno-cultural influences that some may regard as inimical to a free, liberal society are able to hold sway, as discussed in Chapter 8. Cantle refers to as ‘state multiculturalism’174 policies which aim to preserve the cultural integrity and distinctiveness of different groups but which exacerbate the risk of insularity. Barry says such policies strengthen the hands of members of groups wishing to impose on their fellow group members ‘uniform beliefs and standards of conduct’.175 Some groups, however, resist the dualist argument that 166 T Modood, Multiculturalism (Cambridge, Polity, 2007) 11; Raz n 162 above 199. See also Burtonwood n 99 above. 167 W Kymlicka, Multicultural Citizenship (Oxford, OUP, 1995) 78. 168 Life in the United Kingdom Advisory Group (chair Lord Crick), The New and the Old (London, Home Office, 2003) ch 3. 169 E-M Asari, D Halikiopoulu and S Mock, ‘British National Identity and the Dilemmas of Multiculturalism’ (2008) 14(1) Nationalism and Ethnic Politics 1. 170 V Uberoi, ‘Do Policies of Multiculturalism Change National Identities?’ (2008) 79(3) Political Quarterly 404. 171 M Philips, Londonistan: How Britain is Creating a Terror Cell Within (London, Gibson Square, 2007). 172 Raz n 162 above 199. 173 Casey n 133 above para 11.14. 174 Cantle n 101 above 68. 175 B Barry, Culture and Equality (Cambridge, Polity, 2001) 129.

Integration, Identity and Multiculturalism 25 more autonomy means less engagement with or integration within society as a whole.176 Indeed, promoting tolerance and understanding is seen as operating in the other direction as well, through the role of the education system as a whole in promoting a greater understanding of people of diverse backgrounds. This was, for example, strongly advocated by one of the working groups assembled by the Labour Government in the wake of the terrorist attacks that occurred on London transport in July 2005.177 As the tensions surrounding multiculturalism have led to an increasing preoccupation with the idea that some minority cultural practices exacerbate social fault lines due to conflicting with Western liberal values, the equality principle is, according to McCrudden, being invoked to attack certain religious beliefs or practices on the basis that they ‘discriminate, in particular on the grounds of gender and sexual orientation’.178 It reflects what McCrudden sees as ‘a new post-multiculturalism considerably more hostile to certain practices associated with ethnic minorities and migrants’.179 However, one is still seeing a pragmatic approach to social cohesion that came to the fore in the context of debates about Britishness and the need for a common set of values as the core of citizenship that took hold during the ‘New Labour’ years and also evoked a strong policy response under the 2010–15 Coalition Government in seeking the promotion of ‘British values’ in schools. The Labour Government argued that increased social diversity posed a ‘significant challenge as to how we shape and promote the shared values that underpin citizenship’ and argued that ‘[w]hile respecting and celebrating our differences, citizenship will need to promote wider ownership of these common values and a shared sense of belonging’.180 The theme was pursued with vigour by the then Chancellor of the Exchequer, Gordon Brown, in a speech to the Fabian Society in 2006. Brown argued that ‘shared values – not colour, nor unchanging and unchangeable institutions – define what it means to be British in the modern world’.181 He identified three basic values – liberty (for empowerment), responsibility (for a stronger civic society), and fairness (for ‘an empowering equality of opportunity for all’) – which made up ‘core values of what it is to be British’.182 The portrayal of shared values as cohesive, under the rhetoric of the modern

176 See R Smithers, ‘Anger at Muslim schools attack’, The Guardian, 18 Jan 2005, 1; T Halpin, ‘Islamic schools are threat to national identity, says Ofsted’, The Times, 18 Jan 2005, 11. 177 ‘Preventing Extremism Together’ Working Groups, Aug–Oct 2005, Report (London, Office of the Deputy Prime Minister, 2005). 178 C McCrudden, ‘Multiculturalism, freedom of religion, equality and the British Constitution. The JFS case considered’ (2011) 9(1) International Journal of Constitutional Law 200, 207. 179 Ibid, 203–4. 180 Secretary of State for Trade and Industry and Secretary of State for Constitutional Affairs, Fairness for All: A New Commission for Equality and Human Rights, Cm 6195 (London, TSO, 2004) para 1.10. 181 Speech by the Rt Hon Gordon Brown MP, Chancellor of the Exchequer, at the Fabian Society New Year Conference, London, 14 Jan 2006. 182 Ibid.

26 Children’s Education and the Law in a Diverse Society liberal state, was also recognised by Goodhart, who said that the basic idea that was being advanced politically was that ‘the glue of ethnicity (“people who look and talk like us”) has been replaced by the glue of values (“people who think and behave like us”)’.183 The rather broad and somewhat nebulous character of the values being put forward by proponents of common values was, however, problematic. Bainham has argued that the notion of shared community values is, at least where the family is concerned, something of an ‘illusion’.184 Bainham in fact justifies the case for the accommodation of diverse cultural and religious viewpoints, within limits, partly on the basis of this lack of commonality. But most proponents of multiculturalism also support the promotion of common values. The Parekh report185 for example considers that while the rights and cultural identity of minorities should be upheld within a multicultural society based on equality and diversity, shared common values also have to be upheld. Abbas, who similarly proposes the idea of ‘shared citizenship, allegiance to common values that are universal in nature’, argues that it is important that ‘ethnic belonging does not impact upon perceived allegiance and loyalty’.186 He defends the principle of multiculturalism, but not the ‘benign egalitarianism’ in the way that it operates in Britain, since while recognising difference it fails to give minority ethnic groups a true sense of belonging and in some cases leaves members dependent upon their own communities to ‘mobilise what little economic or social development they can achieve’.187 Regardless of these debates, the importance of the role of education in the promotion of common values and citizenship within diverse societies has been widely acknowledged. The Crick report,188 for example, presented an overarching approach towards the closer social integration of minorities that aimed to strike a balance between, on the one hand, the rights of minorities to enjoy the freedom to learn and express their own cultural values, and, on the other, the need for wider social stability that would be under threat from a failure to find common ground – based on shared cultural and ethical values – between the full range of social, ethnic and religious groups. There is a similar attempt to balance needs and interests in the argument by David Bell that while a common citizenship education can convey an awareness of a common British heritage it should also ensure that pupils know ‘the positives of a diverse community … promoting acceptance of different faiths and cultures as well as alternative lifestyles’ and learning ‘how

183 D Goodhart, ‘Discomfort of strangers’, The Guardian, 24 Feb 2004 (reprint of essay published in Prospect, February 2004). 184 A Bainham, ‘Family Law in a Pluralistic Society’ (1995) 22 Journal of Legal Studies 234 at 238. 185 B Parekh, The Future of Multi Ethnic Britain (London, Runnymede Trust, 2000). 186 T Abbas, ‘Recent Developments to British Multicultural Theory, Policy and Practice: The Case of British Muslims’ (2005) 9 Citizenship Studies 152. 187 Ibid, 156 and 160. 188 Life in the United Kingdom Advisory Group, n 168 above.

Conclusion 27 to say no to racial and religious intolerance’.189 Bell argues that because of their contribution to social segregation, faith schools have a particular responsibility in this regard. Within the UK, a moderate degree of differentiation within the schools system has been maintained, respecting the rights of minorities to enjoy a degree of separation, as in faith schools, but also, in common with others, to exercise a degree of choice to select local community schools or non-faith academies on any basis, including their particular ethnic mix. However, the way that an education system with embedded segregation, whether based on religion or ethnicity, hinders social cohesion has become widely recognised as problematic, particularly now that the scale of it has become better understood. It is referred to extensively in the Casey report190 and more recently in the UK Government’s Integrated Communities Strategy Green Paper.191 The Green Paper refers to the reduced opportunities for children and young people to mix with others of different backgrounds, whether as a result of attending a faith school or independent school or being home educated or educated in some other out-of-school setting. It has identified five initial Integration Areas192 in which government will work with local authorities to improve social integration across a range of issues, including education. In relation to education, for example, there will be an attempt to ‘support increased diversity in schools’ intake’.193 More significantly, it states that all schools, including schools with a religious character, ‘should be inclusive and promote community cohesion’.194 However, the proposals offer little more than a restatement of past policies on the promotion of ‘fundamental British values’ and encouraging pupils from diverse backgrounds to ‘work together, learn about each other’s customs, beliefs and ideas and respect each other’s views’.195 The latter nevertheless reflects an intercultural approach that is also in evidence in the encouragement for inter-faith engagement between schools and the promotion of ‘meaningful social mixing outside school’ where opportunities for it within a particular school are limited.196 The Integrated Communities policy has a particular relevance to education, but it also demonstrates a more holistic approach to the issue of integration, one that is likely to persist in the years ahead.

IV. Conclusion As the discussion in the chapters that follow aims to show, the arrangements established by the state for children’s education are both influenced by and

189 David

Bell, Hansard Society/Ofsted lecture, 17 Jan 2005. n 133 above 3.79 and see generally paras 3.75–3.98. 191 Note 142 above. 192 Blackburn/Darwen; Bradford; Peterborough; Walsall; and Waltham Forest: ibid 13. 193 Ibid, 28. 194 Ibid. 195 Ibid, 28–29. 196 Ibid, 30. 190 Casey

28 Children’s Education and the Law in a Diverse Society responsive to social change while also shaped by political ideology and imperatives. This is a field characterised by continual legal and policy reform, altering not only the type of provision made but also the institutional structure, now itself characterised by an unprecedented degree of diversity, as explained in Chapter 3. Change impacts on all those with interests in the education system, from parents and children to schools, teachers and local authorities, and the scale of public consultation that generally precedes it gives an indication of the perceived risk that the legitimacy of specific measures will be questioned from one or more quarters. It will be difficult to make laws and policies which recognise the specific cultural interests of every person or group within a diverse society to the fullest extent while also organising a mass education system comprised of schools catering mostly for large numbers of children and charged with the efficient delivery of education to all. That is not to say that so-called accommodations to minorities’ interests are not possible. They are evidenced, for example, in the opportunities to operate and send children to denominational schools within the state sector, the range of which has grown in recent decades, the continuing right of parents to educate their children at home, which in some cases means within their small local faith/ social community, and in the opt-outs from some of the more culturally sensitive parts of the school curriculum – sex education, religious education and collective worship. Nevertheless, as the discussion of pluralism and multiculturalism above has sought to indicate, there is now a view that while state arrangements for education should continue to be infused with liberal values which include sensitivity to minorities’ interests and are accepting of a degree of cultural separateness, a segregated society is viewed with increasing concern and there is perceived to be a growing imperative for schooling to inculcate and promote common values, while also ensuring that it is a force for equality and the enhancement of capability and social mobility. The localised controversy over the No Outsiders programme that was discussed in the chapter has offered one illustration of the potential impact of such an approach. As the next chapter explains, education is an area of governance that is devolved to the individual nations within the UK, most recently in the case of Wales. Each jurisdiction has its own highly elaborate legislative frameworks. It would make for a very lengthy text indeed to attempt to cover all four UK nations to the same extent. The chapters that follow, while in some places adopting a UK-wide perspective and offering cross-UK comparative analysis and international perspectives, concentrate on children’s education and the law in England.

2 Responsibility for Children’s Education I. Introduction The state fulfils a normative role as both a provider of education for children and as a guarantor of the child’s right to education. In the UK, the state’s responsibility is enshrined in a complex and wide-ranging institutional and regulatory framework. At the same time, the law makes children’s participation in education compulsory from the age of five by placing a responsibility on parents and carers to ensure their child receives ‘efficient full-time education’ that is ‘suitable’ to the child’s age, ability and aptitude and to any special educational needs he or she may have, either at ‘school or otherwise’.1 As discussed below, local authorities have a statutory duty to enforce this parental educative duty as well as to ensure that there are sufficient schools in the area to meet the educational needs of its child population. Therefore, from a legal perspective, children’s education is a joint responsibility for parents and the state, even if some religious and cultural norms and traditions would see the parental role as the dominant one. For example, Barber says that from a Roman Catholic perspective ‘it is a fundamental principle that parents are the primary educators of their children, and that everything the State or the Church does in education is to assist, not replace, the parents’.2 There is, moreover, a moral underpinning to the parental educative duty, as classically articulated by Blackstone.3 Furthermore, the state has a responsibility under the European Convention on Human Rights (ECHR), A2P1 to respect parents’ right to ensure the teaching of their child in accordance with the parents’ religious or philosophical convictions, although as discussed later, the state’s authority over children’s education is only conditioned to a small extent by this requirement. The way the parental duty is constructed in law ensures a degree of freedom to arrange for one’s child to be educated in any school, regardless of whether provided

1 Education Act 1996 (EA 1996), s 7. 2 P Barber, ‘Catholic Schools and the Admissions Cap’ (2018) Law & Justice (No 181) 207, 211. 3 According to him, to the duty was ‘pointed out by reason’ and it was ‘not easy to imagine or allow, that a parent has conferred any considerable benefit on a child, by bringing him into the world, if he afterwards entirely neglects his culture and education, and suffers him to grow up like a mere beast, to lead a life useless to others, and shameful to himself ’: W H Blackstone, Commentaries on the Laws of England (1765–1769), Vol 1, ch 16, 450–1.

30 Responsibility for Children’s Education by the state, and also outside school, for example through home education, as discussed in Chapter 8. However, the vast majority of children in England are sent to school, and in over 90 per cent of cases it is a state school – namely a school that is wholly or mostly funded by the state although not necessarily established by it. The state schools system, as will be discussed further in the next chapter, is made up of disparate and, in many cases, largely autonomous institutions, an increasing proportion of which lie outside the framework of local democratic control via local authorities that was established under the Education Act 1944. A key question arises as to how far, in the social context in which the education system operates, and having regard to the increase in school autonomy that has been fostered, the degree of institutional diversity that has developed is conducive to the realisation of not only state education’s role in guaranteeing education rights and advancing educational opportunity for all but also in ensuring social cohesion. First, however, the fundamental principles underpinning the state’s role in education, including its responsibility for upholding the right to education as a human right, need to be considered.

II. The State’s Role in Supporting Access to Education International human rights law, reflecting the importance of education both to the individual but also for society as a whole, confers a right to education in its own terms and (as discussed in Chapter 4) on an equal basis to all. In general, it does not place the state under an explicit obligation to maintain an education system, however the European Social Charter stipulates that States’ Parties must ensure children and young people ‘have … the education and training that they need … in particular by providing for the establishment and maintenance of institutions and services adequate for this purpose’.4 The international legal framework provides for a right of access to educational institutions that have been established: see the discussion of Belgian Linguistics in relation to the right to education under the ECHR below. This reflects an assumption that states will have an education system, but at the same time the requirement that the right be available universally, as a right of ‘everyone’,5 means that upholding it cannot be guaranteed unless the state invests heavily in educational provision. This is, for example, reflected in the child’s right to education under Art 28 of the UNCRC, with the requirement that States Parties make ‘primary education compulsory and available free to all’ and encourage the development of different forms of secondary education, ‘[t]ake measures to encourage regular attendance at schools’

4 European 5 See,

Social Charter (revised 1996), Art 17(1). eg, the UN Declaration on Human Rights (1948), Art 26(1); ICESCR (1966), Art 13(1).

The State’s Role in Supporting Access to Education 31 and commit the maximum resources available to them to taking the n ecessary measures.6 It is also reflected in the International Covenant on Economic, Social and Cultural Rights (ICESCR) Art 13, which provides that with a view to achieving the full realisation of everyone’s right to education, State Parties recognise the need for the availability and accessibility of (inter alia) primary and secondary education to all but also that the ‘development of a system of schools at all levels should be actively pursued’.7 The European Court of Human Rights regards ICESCR as a persuasive authority8 and the UK courts hold it to require consideration in appropriate cases.9 The General Comment on Article 13, while acknowledging that individual states’ arrangements for educational provision will hinge on the economic, social and political conditions prevailing within them, nevertheless refers to ‘Availability’: the need for ‘functioning educational institutions and programmes … available in sufficient quantity within the jurisdiction of the State party’, along with a sufficiency of trained staff and equipment.10 Yet here, as in relation to the right to education under the ECHR (see below), there is an implicit recognition that it is for the state to determine how to allocate resources in pursuit of national interests and social goals. Education is also covered by the Charter of Fundamental Rights of the European Union, which provides in Art 14 for everyone to have the right to education, including the possibility to receive free compulsory education. However, its legal relevance to the UK is set to disappear with the UK’s withdrawal from the EU. The European Union (Withdrawal) Act 2018 expressly provides that the Charter ‘is not part of domestic law on or after exit day’.11 Nevertheless, that in itself does not affect the rights of the children of EU migrants concerning access to education in the UK, as discussed below. Educational provision in England is, necessarily, underpinned by a huge financial commitment by the state. Overall government expenditure on education

6 UNCRC, Art 28.1 read with Art 4. The prescriptions with regard to how educational content should be directed are set out in Art 29.1: see ch 6. 7 ICESCR, Art 13. It also provides, in Art 14, that States Parties undertake that if they have not been able to ensure free primary education for all within two years of becoming a party to the Covenant they will work out and adopt a detailed plan for progressive implementation. The UN General Assembly’s adoption of an Optional Protocol gives the Committee on Economic, Social and Cultural Rights competence to receive and consider ‘communications’, inquire into alleged systematic or gross violations and deal with inter-state complaints. The communications procedure enables individuals or groups to bring complaints of alleged breaches of the Convention, but domestic remedies must be first exhausted and it can be a protracted process. The Committee has a quasi-judicial role. It will express a view or opinion on a complaint but leave the remedy to the state in question. It may make a specific recommendation for redress, including compensation. 8 Ponomaryovi v Bulgaria (Application No 5335/05) (2011) 59 EHRR 799; see paras 34 and 57. 9 See R (Hurley and Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin); [2012] ELR 297 at [43] per Elias LJ. 10 Committee on Economic, Social and Cultural Rights, General Comment No 13 (twenty-first session, 1999) The right to education (article 13 of the Covenant) (E/C.12/1999/10) (1999) para 6(a). 11 European Union (Withdrawal) Act 2018, s 5(4).

32 Responsibility for Children’s Education in England in 2017–18 totalled £90 billion, the second highest total across the individual public services.12 Just under half of education expenditure concerned schools, at £42 billion, representing 14.4 per cent of all public service spending.13 The average amount spent per pupil was £4,700 in primary schools and £6,200 in secondary schools.14 This expenditure covered the approximately eight million pupils attending 21,245 state schools, including special schools, but obviously not the three-quarters of a million pupils attending the 2,320 private (independent) schools.15 The schools system that the state funds and has overall responsibility for comprises a highly diverse institutional structure. As discussed below, it has been shaped by central government policy and legislation under successive administrations particularly since 1979, undergoing numerous reforms. Yet the state’s basic responsibility for education has changed little.

A. Statutory Responsibility for Education At least since the seminal reforms under the Education Act 1944, state education has been a shared responsibility between central and local government. The Secretary of State for Education retains a duty, originally in the first section of the 1944 Act, to ‘promote the education of the people of England and Wales’16 and, since the Education Act 1993, has also been required to exercise his or her general powers concerned with the promotion of different levels of education (primary, secondary and further education) with a view to, among other things, ‘improving standards, encouraging diversity and increasing opportunities for choice’.17 A similarly symbolic and in practice near-unenforceable duty was placed on local authorities, by amendments to the 1996 Act, to ‘promote high standards’, ‘ensure fair access’ to opportunity for education and training, and ‘promote the learning potential’ of those aged under 20 (or 20–24 if subject to a learning difficulty assessment).18 A further and important set of duties relating to recently looked-after children, a category of children who are often particularly susceptible to educational under-achievement and who have experienced

12 C Bellfield, C Farquharson and L Sibieta, 2018 Annual Report on Education Spending in England 2018 (London, IFS, 2018) 6 and 28. This IFS report did not count social security expenditure as public service expenditure. 13 Ibid. 14 Ibid, 7. This excludes local authority expenditure on central school-related services and special school spending. Special schools are schools specifically catering for pupils with particular categories of special educational needs and disabilities. 15 DfE, Schools, pupils and their characteristics (London, DfE, 2018), Table A and Figure A. 16 EA 1996, s 10. 17 Ibid, s 11, formerly EA 1993, s 2. 18 EA 1996, s 13A, as inserted by the Apprentices, Skills, Children and Learning Act 2009, Sch 2, para 3, substituting the previous s 13A which had been inserted by the EIA 2006, s 1.

The State’s Role in Supporting Access to Education 33 risk to their welfare, has been imposed on local authorities by the Children and Social Work Act 2017.19 In particular, authorities must ensure that advice and information are available to those with parental responsibility for the child, designated staff members at the child’s school,20 and others as appropriate, for the purpose of promoting the educational achievement of these children. Local authorities have also been given a specific power to do anything else they regard as appropriate to promote these children’s educational achievement.21 Even though the growth of the academy sector has greatly reduced their role in school provision over the past decade (see below), local authorities have retained their general duty, originally in the 1944 Act, to ‘contribute towards the spiritual, moral, mental and physical development of the community by securing that efficient primary, secondary and further education are available to meet the needs of the population of their area’.22 The same is true of their duty now in section 14 of the 1996 Act to ensure that there are ‘sufficient’ schools providing primary and secondary education in their area to afford pupils the ‘opportunity of appropriate education’ – defined as education offering ‘such variety of instruction and training as may be desirable in view of … (a) the pupils’ different ages, ability and aptitudes, and (b) the different periods for which they may be expected to remain at school …’.23 An amendment was, however, made by the Labour Government’s Education and Inspections Act 2006, requiring this duty to be carried out in a way that secures ‘diversity in the provision of schools’ and increased ‘opportunities for parental choice’.24 This amendment underscored the Blair Government’s vision of the local authority as a ‘champion of parental choice’ in a more diverse state education system.25 The ‘sufficient’ schools duty under s 14 appears to set a minimum threshold for institutional provision so that schooling will be universally available to children. However, as a matter of law it has been classed by the courts as merely a ‘target duty’ which means that it may not be unlawful for a local authority to fail to meet it when the reason for the failure relates to matters beyond their control, particularly resource and personnel shortages, provided they have acted reasonably.26

19 Children Act 1989, s 23ZZA(1), (2), (4)-(8), inserted by the Children and Social Work Act 2017, s 4. In force from September 2018. 20 Under the Children and Young Persons Act 2008, s 20A and Academies Act 2010, s 2E a staff member must be designated by their school to have responsibility for promoting the educational achievement of pupils in this category. 21 Children Act 1989, s 23ZZA(3), inserted by the Children and Social Work Act 2017, s 4. 22 EA 1996, s 13. 23 Previously in the EA 1944, s 8. 24 EA 1996, s 14(3A) inserted by the EIA 2006, which also inserted a new s 14A into the EA 1996, requiring the local authority to respond to any parental representations about the exercise by the local authority of its functions under s 14. 25 T Blair, ‘Foreword by the Prime Minister’, in DfES, Higher Standards, Better Schools for All Cm 6677 (London, The Stationery Office, 2005). 26 R v Inner London Education Authority ex parte Ali and Murshid [1990] 2 Admin LR 822; see also Meade v Haringey London Borough Council [1979] 2 All ER 1016, where the Court of Appeal found the

34 Responsibility for Children’s Education

B. Alternative Provision and Access to Education for Excluded Pupils i. Alternative Provision: The s 19 Duty The status of the ‘sufficient’ schools duty under s 14 of the 1996 Act above may be contrasted with another duty, originating in the Education Act 1993,27 to make suitable alternative provision available for those of compulsory school age who are unable due to ‘illness, exclusion from school or otherwise’ to receive suitable education unless such provision is made.28 This duty, now in the Education Act 1996, s 19(1), was held by the House of Lords in R v East Sussex County Council ex parte T29 to be mandatory. The court rejected an argument that resource constraints could provide a legal justification for the local authority’s decision to reduce from five hours per week to three the alternative provision, in the form of home tuition, for a girl suffering from myalgic encephalomyelitis. Lord Browne-Wilkinson confirmed that the statutory duty was owed to ‘each sick child individually and not to sick children as a class’ and it was a duty to ensure suitable education.30 To these general duties of local authorities were added in 2010 further duties:31 to ‘secure that enough suitable education and training is provided to meet the reasonable needs’ of young people above compulsory school age and under 19 (and those aged 19-plus with special education needs and disabilities (SEND) who have an education, health and care plan32) and to promote these young people’s participation in such education and training.33 They were also given a power to secure full-time or part-time provision for those aged 19 or over.34 The duty under s 19(1) above to make alternative provision available is intended to ensure that no-one misses out on education. Possession of a right to education, and particularly in light of the ECHR requirement in Art 2 of the First Protocol (A2P1) that ‘No-one shall be denied the right to education’,

LEA not to be in breach of the ‘sufficient’ schools duty when it kept its schools closed on one day per week when there was a strike, in order to placate employees’ union members who threatened to extend their strike action. 27 EA 1993, s 298(1), replacing a power. 28 EA 1996, s 19(1). There is a power under subs (4) to make such provision for those above compulsory school age but under 19. The duty in subs (1) does not apply to children who will cease to be of compulsory school age within the next 6 weeks or who do not have any public examinations or other assessments for which they have been entered to complete: subs (1A). 29 [1998] ELR 251. 30 Ibid at 257A-B. 31 EA 1996, ss 15ZA and 15ZD, both inserted by the Apprenticeships, Skills, Children and Learning Act 2009. 32 These plans are discussed in ch 9. 33 EA 1996, s 15ZC, inserted by the Apprenticeships, Skills, Children and Learning Act 2009. 34 EA 1996, s 15B. They also have a power to make provision for those aged 16 or over from outside their area: ibid, s 15A. Both sections were inserted by the SSFA 1998.

The State’s Role in Supporting Access to Education 35 should ensure access to at least a minimum level of educational provision, but as discussed below, in itself it falls some way short of guaranteeing access to anything approaching full-time provision. In contrast, the s 19 duty has been progressively tightened up, in two stages. First, an amendment was made by the Education and Inspections Act 2006 requiring suitable full-time provision to be made at school or elsewhere for any child of compulsory school age permanently excluded from school or a pupil referral unit35 on disciplinary grounds and not subsequently admitted to a school.36 Secondly, the Children, Schools and Families Act 2010 extended the duty to ensure full-time provision to all children of compulsory school age falling within the scope of s 19(1) – thus now also including children unable to attend school due to illness, exclusion or other reason.37 Before there was a specific requirement for full-time alternative provision, the emphasis in determining what degree of provision was required hinged on the issue of suitability, as was the case in ex parte T above,38 although that was considered essentially a matter for the local authority rather than the court to judge.39 Often the courts accepted that provision could be suitable without being full-time, particularly if intended as a stop-gap pending a return to school.40 The change in the law might not prevent reintegration arrangements for pupils excluded from school which involve a reduced timetable at school and thus less than full-time provision. The courts have accepted such arrangements as legitimate as long as they do not persist indefinitely, even if the child is ‘effectively deprived of the ordinary life of the school for a large part of the school year’.41 There may be circumstances where the parents rely on the s 19 duty because they believe that the school which their child is expected to attend is unsuitable. They would contend that the local authority should make alternative arrangements under s 19 to ensure suitable provision is made for their child. However, generally in these circumstances the local authority would be entitled to refuse to make them. In R (DS) v Wolverhampton City Council,42 for example, a 13-year-old boy, DS, who had severe learning difficulties, autism and other

35 PRUs are schools for young people who require special arrangements due to their exclusion from school, illness or other reason: EA 1996, s 19(2) and Sch 1, as amended. 36 EIA 2006, s 101, inserting a new subs (3A) into the EA 1996, s 19. 37 EA 1996, s 19(3A), as substituted by the Children, Schools and Families Act 2010, s 3. Under new s 19(3AA) of the 1996 Act, also introduced by the 2010 Act, alternative provision could be part-time if in view of the child’s physical or mental health it was not in his or her best interests to receive full-time education. 38 See also R (M) v Worcestershire County Council [2004] EWHC 1045 (Admin); [2005] ELR 48. 39 See R (B) v Head Teacher of Alperton Community School and Others; R v Head Teacher of Wembley High School and Others ex p T; R v Governing Body of Cardinal Newman High School and Others ex p C [2001] ELR 359. 40 See, eg, R (S) v Head Teacher of C High School and Others [2001] EWHC Admin 513; [2002] ELR 73. 41 R (O) v The Governing Body of Parkview Academy and Another [2007] EWCA Civ 592; [2007] ELR 454 at [26] per Carnwath LJ. See also Re L [2003] UKHL 9; [2003] ELR 309; P v NASUWT [2001] ELR 607; P v NASUWT [2003] UKHL 8; [2003] ELR 357. 42 [2017] EWHC 1660 (Admin); [2017] ELR 630.

36 Responsibility for Children’s Education disabilities attended a maintained special school, TW, in Wolverhampton. There was an incident in October 2016 in which he travelled home from school by minibus wearing only a towel. As a result his mother was concerned about his welfare and safety at the school. She wanted him to be placed at an independent school, school R. The local authority arranged home tuition of up to ten hours per week for DS while investigating the circumstances and making a new education, health and care plan (EHCP) for DS. DS was also offered some parttime provision at a PRU. In March 2017 the local authority issued a new EHCP, naming a third school, WH. But WH school could not take DS until July 2017, so the local authority proposed that he should return to TW school in the interim, although this appears not to have happened. Educational provision comprising four one-hour sessions was commissioned by the local authority from an outside provider but did not take place due to the provider’s withdrawal following an incident at DS’s home. By the end of March 2017 DS had not attended school since October 2016. The parent argued that there had been a breach of s 19 of the 1996 Act. Citing a range of authorities on s 19,43 Garnham J concluded that: (i) Section 19 is intended to cover circumstances in which it is not reasonably possible for a child to take advantage of existing suitable schooling. (ii) The fact that parents have misconceived objections to their child attending a particular school does not mean the authority is obliged to make alternative arrangements. (iii) There may be exceptional circumstances where there is no physical impediment to the child attending the school, but it is nonetheless not reasonable to expect the child to attend that school. (iv) Where the latter question arises, it is to be answered objectively, not by reference to the parents’ view of the facts. (v) The acid test is whether educational provision offered by the local authority is available and accessible to the child.44

Garnham J referred to evidence that TW school had been classed as ‘good’ by Ofsted, DS had attended it for six years and there was no physical impediment to his attendance. Although Garnham J considered that the incident involving near naked travel on the minibus was in part due to a failure by the school, and that DS’s tendency to remove his clothing in public places did not excuse the failure, the parents’ reaction had been ‘not entirely reasonable or proportionate’.45 The judge surmised that the parents had seen the minibus incident ‘as providing valuable ammunition in their fight to get their son the school they wanted for him’.46 He considered the school’s failure to be a one-off occurrence. He rejected

43 R (G) v Westminster City Council [2004] 1 WLR 1113; C v London Borough of Brent [2006] EWCA Civ 728; [2006] ELR 435; R (R) v Kent County Council [2007] EWHC 2135 (Admin); [2007] ELR 648. 44 Ibid at [45]. 45 Ibid at [54]. 46 Ibid at [55].

The State’s Role in Supporting Access to Education 37 the contention that it was not reasonably practicable for DS to attend TW school. Consequently no duty was owed under s 19(1). The claim therefore failed, but Garnham J offered a view on whether, had s 19(1) applied, the arrangements made by the local authority for DS’s education outside school would have been adequate. He concluded that they fell ‘a long way short’ of that and he emphasised that the alternative provision needed to be ‘full-time’ and ‘on a par with mainstream schooling’ as well as in accordance with the child’s EHCP.47 The decision therefore illustrates both the difficulty for parents in seeking to utilise the local authority’s long-stop duty under s 19 as leverage in securing what they regard as a more preferable school placement and but also the more strict requirements under s 19, when it applies, as regards the provision to be made. Garnham J was clear that ten hours of educational assistance plus a small amount of additional outreach provision could not be construed as full-time education. In the past, alternative provision was of extremely uneven quality, with poor attendance rates and academic under-achievement among pupils.48 In recent years there has been some improvement in provision, which in part has resulted from the introduction of more strict duties, including the requirement to ensure full-time provision noted above, and tightened-up governance arrangements for PRUs49 and their classification as schools.50 It is important to note that, as Charlie Taylor’s report for the Government explained, a majority of those placed in PRUs and other forms of alternative provision come from deprived backgrounds and often have a range of problems: They often come from chaotic homes in which problems such as drinking, drugtaking, mental health issues, domestic violence and family breakdown are common. These children are often stuck in complex patterns of negative, self-destructive behaviour and helping them is not easy or formulaic. Many also have developed mental health issues.51

Although having to deal with some of the most challenging pupils, some PRUs and other alternative providers have been quite successful. Indeed, in the inspection of alternative provision in PRUs and alternative provision academies/ free schools by Ofsted in 2017 and 2018 the proportion judged to be good or outstanding was 84 per cent and 82 per cent respectively, rates only slightly below those for inspection grades across the schools sector.52 Nevertheless, the House of 47 Ibid at [63] and [66]. 48 See N Harris and K Eden with A Blair, Challenges to School Exclusion. Exclusion, Appeals and the Law (London, Routledge Falmer, 2000), 71–4; Ofsted, Out of School: A survey of the Educational Support and Provision for Pupils Not in School (London, Ofsted, 2004); C Taylor, Improving Alternative Provision (London, DfE, 2012). 49 See the 1996 Act, Sch 1, para 15, added by the EA 1997, s 48, and see the Education (Pupil Referral Units) (Management Committees etc) (England) Regulations 2007 (SI 2007/2978) (as amended). 50 EA 1996, s 4, as amended. 51 C Taylor, Improving Alternative Provision (London, DfE, 2012) 4. 52 Ofsted, The Annual Report of Her Majesty’s Chief Inspector of Education, Children’s Services and Skills 2017/18 (London, Ofsted, 2018) 5 and 52.

38 Responsibility for Children’s Education Commons Education Committee has called for better resources and more direction for alternative provision, which it considers to have been governed by ‘policy that has had a neglect of action and oversight in recent years’.53 Similarly, the recent Timpson review of exclusions has recommended steps to improve the status and resources of alternative provision, in part to enable it to attract better staff working under improved conditions.54 The present Government has expressed a commitment to improve the quality of alternative provision and to ensure that placements within it are more appropriate. In 2018 it announced that it had launched an ‘extensive qualitative and quantitative research programme’ into alternative provision practice in England but that it will also be guided by the forthcoming report into the review of school exclusion it has commissioned.55 But with the news media focussing in 2019 on the apparent growth in youth knife crime, some parents have blamed their child’s PRU for exposing the child to gang culture.56 The evidence is, however, contradictory. Ofsted has expressed concern about a developing ‘harmful narrative’ which views placement in alternative provision following exclusion as a cause of gang-joining and knife-carrying, referring to the high proportion of alternative/PRU provision that has been judged good or outstanding.57 In an Ofsted report on Safeguarding children and young people in education from knife crime it is noted that among children excluded from school who go to a PRU, self-reported instances of knife-carrying are higher than among non-excluded children, and that there is a greater exposure to gangs and gang association.58 But the report finds it to be ‘not possible to conclude from this that exclusions are the cause of these behaviours, or even that they increase their likelihood’; what it does show is that ‘these children are more at risk’.59 On gang membership specifically, a report by the Children’s Commissioner for England, Keeping Kids Safe, comments that while some of the alternative provision for excluded pupils ‘provides excellent gang diversion programmes through an innovative and engaging curriculum’, other parts have become ‘gang grooming grounds, where children are exposed to other gang members and often placed on part-time curriculums or even become “virtual pupils” – meaning that most of the day they are free to associate with other gang members.’60

53 House of Commons Education Committee, Forgotten children: alternative provision and the scandal of ever increasing exclusions Fifth Report of Session 2017–19, HC 342 (London, House of Commons, 2018) para 4. 54 DfE, Timpson Review of School Exclusion (CP92) (London, DfE, 2019) 74–78. 55 DfE, Creating opportunity for all. Our vision for alternative provision (London, DfE, 2018), paras 47 and 48. 56 See S Griffiths and S Das, ‘Scandal of schools for knife crime’, The Sunday Times, 3 March 2019. 57 Ofsted, ‘HMCI commentary on youth crime’ at www.gov.uk/government/speeches/hmci-comm entary-on-knife-crime. 58 (London, Ofsted, 2019) para 62. 59 Ibid, para 63. 60 Children’s Commissioner for England, Keeping Kids Safe. Improving safeguarding responses to gang violence and criminal exploitation (London, Office of the Children’s Commissioner for England, 2019), 24 at www.childrenscommissioner.gov.uk/wp-content/uploads/2019/02/CCO-Gangs.pdf.

The State’s Role in Supporting Access to Education 39 From an educational perspective, exclusion from school, which is one of the circumstances triggering the section 19 duty, has always presented children with a real risk of interrupted learning and lost opportunity.61 Protecting access to education for excluded children is also sought via requirements to make provision for them within a specific timeframe. There was previously only an expectation, established in 1999, that local authorities should make arrangements for a permanently excluded pupil’s full-time education within 15 school days of the exclusion.62 In 2005, however, following a report by Ofsted that some excluded children were still being lost in the system,63 the Government proposed that provision should be made within six school days and that during that period the parent should take responsibility for the child by ensuring that he or she was ‘supervised doing homework at home or, for example, at a relative’s house’.64 Some doubts about the practicality of supervision where the parent was in low paid or insecure employment which made it difficult to take up to a week off work at short notice were expressed by the House of Commons Education Committee.65 Nevertheless, the Education and Inspections Act 2006 placed the parent under a duty to ensure that their child, whether excluded permanently or for a fixed period, is ‘not present in a public place at any time during school hours’ during the first five days of exclusion, and made non-compliance a level 3 offence.66 The duty is activated by a written notice which the head teacher must give to the parent stating the parent’s obligation and the date from which the child must be provided with full-time education by the local authority.67 Enforcement of the parent’s duty is likely to be via a penalty notice giving the parent an opportunity to discharge his or her obligation and thus avoid conviction.68 The 2006 Act (in combination with regulations) places local authorities under a duty to ensure full-time education is provided (under their s 19 alternative provision duty above) from the sixth school day following exclusion, for permanently excluded children and those who are of compulsory school age and given a fixed term exclusion from a PRU.69 In the case of fixed term exclusions from

61 See, eg, Social Exclusion Unit, Truancy and School Exclusion, Cm 3957 (London, TSO, 1998); K Gill, with H Quilter-Pinner and D Swift, Making the Difference. Breaking the Link between School Exclusion and Social Exclusion (London, IPPR, 2017). 62 DfEE Circular 11/99, Social Inclusion: The LEA Role in Pupil Support (London, DfEE, 1999) para 5.1. 63 Ofsted, Out of School: A Survey of the Educational Support and Provision for Pupils Not in School (London, Ofsted, 2004). 64 DfES, Higher Standards, Better Schools for All, Cm 6677 (London, TSO, 2006) para 7.13. 65 House of Commons Education and Skills Committee, First Report of Session 2005–6, The Schools White Paper: ‘Higher Standards, Better Schools for All’, Vol 1, HC 633-I (London, TSO, 2006) para 29. 66 EIA 2006, s 103. Level 3 = maximum £1,000. 67 Ibid, ss 103 and 104. 68 Ibid, ss 105 and 106. 69 EA 1996, s 19(3A) and (6), inserted by the EIA 2006, s 101; and the Education (Provision of Fulltime Education for Excluded Pupils) (England) Regulations 2007 (SI 2007/1870).

40 Responsibility for Children’s Education schools, as opposed to a PRU, the duty to make this provision rests with the governing body.70 As a result of these provisions, the risks of more than a very short-term gap in receiving education should be minimised. However, they have not been eliminated;71 and in cases where local authorities have to make the arrangements, the short timescale for placing the child can make it difficult to ensure that the most appropriate provision is made.72 Local authorities have a power to direct a school for which it is not the admissions authority, apart from the excluding school, to admit a child who has been permanently excluded from each school a reasonable distance from his or her home.73 However, it is a power that government has never expected will be used all that frequently.74 Moreover, there is an expectation that excluded children for whom alternative arrangements are made will be reintegrated into mainstream schooling at the earliest suitable opportunity; and local authorities are expected to have a Fair Access Protocol agreed with the majority of schools in the area, designed to facilitate, outside the normal admissions, the rapid placement at school of children who have difficulty securing a place, including those from PRUs or leaving detention, Gypsy/Roma/ Traveller children, and children of asylum seekers.75 On the whole, the way that fair access protocols operate is, according to the Office of the Schools Adjudicator, ‘positive and encouraging’,76 but it appears that some schools have been able to avoid both following them and taking children from alternative provision.77

ii. The power to exclude from school, and its exercise While the provisions referred to above offer some safeguards for excluded children’s access to education, it would be far better if exclusion were avoided in the first place. The recent Timpson review of exclusion, while recognising that in some cases the need for exclusion is unavoidable, nevertheless suggests that schools should be held to account for the children they exclude, including for their educational outcomes.78 The aim would be to ensure that exclusion is used 70 EIA 2006, s 100 and SI 2007/1870 n 69 above. 71 See R Ellison and D Hutchinson, Children missing education. Children missing from education in England 2016–17 (London, NCB, 2018). 72 House of Commons Education Committee, Forgotten children: alternative provision and the scandal of ever increasing exclusions Fifth Report of Session 2017–19, HC 342 (London, House of Commons, 2018) para 61. 73 SSFA 1998, ss 96 and 97. 74 See HL Debs, Vol 544, col 1539, 20 April 1993, per Baroness Blatch, Minister of State. 75 DfE, Fair Access Protocols: Principles and Process (London, DfE, 2012); DfE, School Admissions Code (London, DfE, 2014) paras 3.9–3.15. 76 Office of the Schools Adjudicator, Office of the Schools Adjudicator Annual Report September 2016 to August 2017 (London, OSA, 2018) para 92. 77 House of Commons Education Committee, Forgotten children: alternative provision and the scandal of ever increasing exclusions Fifth Report of Session 2017–19, HC 342 (London, House of Commons, 2018) paras 67–71. 78 Timpson Review n 54 above, 84–85.

The State’s Role in Supporting Access to Education 41 more proportionately. The power to exclude rests with head teachers, academy proprietors and teachers in charge of PRUs; and legislation prescribes that an exclusion can be either permanent or for a fixed period only, but there is a limit of 45 school days of fixed term exclusion in total for any pupil in any school year.79 Indefinite exclusion, which could put a child into a state of ‘educational limbo’,80 ceased to be lawful following the Education Act 1993.81 Also unlawful are forms of ‘unofficial’ exclusion whereby a pupil may be asked to go home (including for part of a day – some pupils are placed inappropriately on a part-time timetable82) and await an invitation to return, or parents may be placed under pressure to remove their child so that an exclusion per se does not occur, so-called ‘off-rolling’.83 Research for the National Children’s Bureau has shown how such children are at particular risk of missing education.84 Ofsted has identified 300 schools which have ‘exceptional levels’ of pupils coming off the school roll between years 10–11 (ages 14–16).85 A separate report published by the Education Policy Institute in 2019 shows the scale of unexplained pupil exits from secondary schools, where children make a move to a different school, or out of the state system entirely, which is neither family driven nor due to a permanent exclusion from school; up to one in twelve pupils have experienced such an exit.86 Off-rolling is also reported by the Schools Adjudicator to be a factor in some of the growing number of cases where parents are opting to home educate their children.87 A survey of just over 1,000 teaching professionals by Ofsted in 2019 revealed that vulnerable students, including those with SEN, were particularly likely to be targeted for off-rolling, parents who are less engaged with the school, less well informed or for whom English is an additional language are the most susceptible to pressure from the school to withdraw the child, and concern about school league table position is the principal factor driving off-rolling, which two-thirds of respondents believed was i ncreasing.88 A particular concern is that 79 EA 2002, s 51A and School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012 (SI 2012/1033) reg 4. 80 HL Debs Vol 547 col 173, 21 June 1993, per Baroness Blatch. 81 EA 1993, s 261(1)(a). 82 Timpson Review n 54 above, 100. 83 See S Weale, ‘300 schools picked out in GCSE “off-rolling” investigation’, The Guardian (online) 26 June 2018 www.theguardian.com/education/2018/jun/26/300-schools-picked-out-in-gcse-offrolling-investigation for a report on an Ofsted investigation into the practice. 84 R Ellison and D Hutchinson, Children missing education. Children missing from education in England 2016–17 (London, NCB, 2018). 85 Ofsted, The Annual Report of Her Majesty’s Chief Inspector of Education, Children’s Services and Skills 2017/18 (London, Ofsted, 2018) 6. 86 J Hutchison and W Crenna-Jennings, Unexplained Pupil Exits: A growing problem? (Education Policy Institute, 2019) at https://epi.org.uk/wp-content/uploads/2019/04/EPI_Unexplained-pupil-exits_ 2019.pdf. 87 Office of the Schools Adjudicator (OSA), Office of the Schools Adjudicator Annual Report September 2017 to August 2018 (Darlington, OSA, 2018), para 89. On home education, see further ch 8 below. 88 Ofsted, Exploring the issue of off-rolling (London, Ofsted, 2019) 10-12 and 20 at https://assets. publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/800582/Ofsted_ offrolling_report_YouGov_090519.pdf.

42 Responsibility for Children’s Education many also believed that a majority of off-rolled pupils do not re-enter mainstream education.89 Unofficial or hidden exclusion, which potentially gives rise to a denial of children’s right to education, has been highlighted and condemned by the Children’s Commissioners for England and Wales90 and the UN Committee on the Right of the Child.91 There is considerable variation across the schools sector in the use made of the power of exclusion; in 2016–17, 85 per cent of mainstream schools did not exclude anyone permanently and 43 per cent had no fixed term exclusions.92 Nationally, although the annual total numbers of children permanently excluded from school in England are well below those of the 1990s – the peak period, with over 12,000 per annum in each of the three years from 1995–96 to 1997–9893 – numbers have been increasing since 2012–13 (both in real terms and in terms of rate per pupil): there were 6,685 permanent exclusions in 2015–16, 7,720 in 2016–17 and 7,905 in 2017–18.94 Fixed period exclusions have also been increasing since 2012–13. In 2017–18 the total was 410,800.95 However, they could be considered far less of a threat to the right to education than permanent exclusion, given that: an individual pupil may be subjected to no more than 45 days in total, per year, of fixed term exclusions (as noted above),96 the average period of fixed term exclusion in 2017–18 was 2.0 days, nearly half of the fixed term exclusions were for just one day, and nearly 60 per cent of those subjected to them received only one exclusion during the year.97 Children with SEN (especially those with an EHCP), pupils entitled to and receiving free school meals (FSM), lookedafter children, Gypsy/Roma children and those of Black Caribbean ethnicity are significantly over-represented among those excluded permanently from school. Fig 1 below shows the rates by ethnicity for 2017–18. These groups are also overrepresented among those on the roll of PRUs.98 89 Ibid, 22. 90 Children’s Commissioner for England, ‘They never give up on you’ (London, Office of the Children’s Commissioner, 2012) and ‘Always someone else’s problem’, Office of the Children’s Commissioner’s Report on Illegal Exclusions (London, Office of the Children’s Commissioner, 2013); Children’s Commissioner for Wales, Report on Unofficial Exclusions (Cardiff, Children’s Commissioner’s Office, 2007). 91 UN Committee on the Rights of the Child, Concluding observations on the fifth periodic report of the United Kingdom of Great Britain and Northern Ireland, CRC/C/GBR/CO/5 (Geneva, United Nations, 2016), para 73(b). 92 Timpson Review n 54 above, 9. On factors influencing the variation, see L Ferguson and N Webber, School Exclusion and the Law: A Literature Review and Scoping Survey of Practice (Oxford, University of Oxford, 2015) 31–2. 93 Cited in Harris et al (2000) n 48 above at 2. 94 DfE, Permanent and Fixed Period Exclusions from School and Exclusion Appeals in England 2011/12 SFR 29/2013 (London, DfE, 2013); DfE, Permanent and Fixed Period Exclusions in England, 2016/17 (London, DfE, 2018); and DfE, Permanent and Fixed Period Exclusions in England: 2017 to 2018 (London, DfE, 2019). 95 DfE (2019) n 94 above. 96 School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012 (SI 2012/1033), as amended, reg 4. 97 DfE (2019) n 94 above. 98 K Gill, with H Quilter-Pinner and D Swift, Making the Difference. Breaking the Link between School Exclusion and Social Exclusion (London, IPPR, 2017), 18.

The State’s Role in Supporting Access to Education 43 Fig. 1 Percentage of permanent exclusions from schools in England within each ethnic group, 2017–1899 WHITE

0.10

White British

0.10

Irish

0.15

Traveller of Irish heritage

0.29

Gypsy/ Roma

0.36

Any other White background

0.05

MIXED

0.16

White and Black Caribbean

0.27

White and Black African

0.14

White and Asian

0.09

Any other Mixed background

0.13

ASIAN

0.04

Indian

0.02

Pakistani

0.06

Bangladeshi

0.04

Any other Asian background

0.03

BLACK

0.13

Black Caribbean

0.28

Black African

0.08

Any other Black background

0.13

CHINESE

0.01

OTHER

0.06

UNCLASSIFIED %

0.18 0

0.1

0.2

0.3

0.4

99 DfE (2019) n 94 above, table 8, showing the rate per pupil, by ethnic group. The figure is r eproduced using the exact categories named by the DfE.

44 Responsibility for Children’s Education Approximately three-quarters of all exclusions (fixed term and permanent) are of boys. There is also an overrepresentation of children entitled to and receiving FSM among pupils subjected to permanent or fixed term exclusion; in 2017–18 they were almost five times more likely than other children to be excluded on either basis.100 Children with SEND are also overrepresented among excludees; indeed, Ofsted reported in 2018 that there was ‘a continuing trend of rising exclusions’ among these children.101 The official guidance on exclusion (to which head teachers and school governing bodies are required to have regard102) strongly discourages the exclusion of children with SEND and urges schools instead to consider alternative support provision or an alternative placement.103 However, there is some evidence that schools may seek to avoid identifying some children as having SEN in order to make it easier to exclude them.104 At the same time, there are, unfortunately, incentives for schools to exclude these children, some of whom as the Bennett review noted can, due to their specific needs and disabilities, behave in ways which it is difficult for schools to manage.105 Children with SEN may be the victims of schools’ difficulty in seeking to reconcile the goal of meeting academic attainment targets and behaviour standards while at the same time ensuring an inclusive approach when managing pupil behaviour.106 Inclusive education for children with disabilities is specifically expected under the CRPD,107 while under the UNCRC states must ensure that school discipline is administered in a manner consistent with ‘the child’s human dignity’ and in conformity with the Convention,108 which also refers to equal opportunity in enjoyment of the right to education109 and calls for recognition of the needs of children with d isabilities.110 Furthermore, the subjection of a person to ‘exclusion’ or ‘other detriment’ directly or indirectly on account of their disabilities potentially constitutes unlawful discrimination under the Equality Act 2010.111 As noted in Chapter 4, this now offers greater protection

100 DfE (2019) n 94 above, table 9. 101 Ofsted, The Annual Report of Her Majesty’s Chief Inspector of Education, Children’s Services and Skills 2017/18 (London, Ofsted, 2018) 9. Nearly half of all excludees have SEN: DfE (2019) n 94 above. 102 SI 2012/1033 n 96 above, reg.9. 103 DfE, Exclusion from maintained schools, academies and pupil referral units in England (London, DfE, 2017), at paras 23–25. 104 House of Commons Education Committee, Forgotten children: alternative provision and the scandal of ever increasing exclusions Fifth Report of Session 2017–19, HC 342 (London, House of Commons, 2018), para 21. 105 T Bennett, Creating a Culture. How school leaders can optimise behaviour (London, DfE, 2017), 41. 106 S Power and C Taylor, ‘Not in the classroom, but still on the register: hidden forms of school exclusion’ (2018) International Journal of Inclusive Education (online) https://doi.org/10.1080/13603116.201 8.1492644 at 1–15, 3. 107 UNCRPD, Art 24 – see ch 9 below. 108 UNCRC, Art 28.2. 109 Ibid, Art 28.1. 110 Ibid, Art 23. 111 Equality Act 2010, s 85(2), read with ss 15 and 21.

The State’s Role in Supporting Access to Education 45 than previous disability discrimination law provided, because it has removed the need for judging the claimant against a comparator. However, schools now have an increased incentive to exclude pupils with SEND arising from the way the Progress 8 framework is used for judging pupil performance as a benchmark of school quality, since all pupils registered at the school will be included and the weaker progress of those who have struggled due to not having their needs met can impact negatively on the overall results.112

iii. Challenging a School Exclusion Challenges to exclusion decisions can be brought via a request for a review (640 were lodged in 2017–18, the highest annual total to date)113 where they relate to a permanent exclusion confirmed by the school’s governing body (or management committee of a PRU). The review is to be conducted by a panel appointed by the local authority.114 This right to seek a review is held only by parents and by pupils aged 18 or older. The age limit is inconsistent with that applicable to the SEN appeal and mediation processes in England, which accord independent rights to young people at the age of 16.115 It is also out of line with exclusion appeals in Wales and Scotland. In Wales, those aged 11 or over have an exclusion appeal right alongside their parent until turning 16, when they enjoy the right exclusively.116 In Scotland, 16 year olds also have an independent appeal right, or a shared right with their parent at age 12–15 provided they have legal capacity.117 The UK Children’s Commissioners have called for the position in England to be brought into line with these other parts of the UK.118 The UN Committee on the Rights of the Child has specifically recommended that children should be given a right of appeal against exclusion from school and provided with advice, assistance

112 House of Commons Education Committee, Forgotten children: alternative provision and the scandal of ever increasing exclusions Fifth Report of Session 2017–19, HC 342 (London, House of Commons, 2018), paras 29–37. On Progress 8 itself, see DfE, How Progress 8 and Attainment 8 measures are calculated (London, DfE, 2016). 113 SI 2012/1033 n 96 above, regs 7, 16 and 25, read with reg 2; DfE (2019) n 94 above, table 13. 114 The review panels comprise three or five members from three groups (a) lay members; (b) head teachers and (c) current or former school governors, members of PRU management committees, or academy directors: SI 2012/1033 above n 96, Sch 1. 115 CFA, ss 51 and 52: see ch 9. If the young person lacks capacity for the purposes of the Mental Capacity Act 2005 the parent may, however, act for the young person as his/her ‘representative’. 116 Education (Pupil Exclusions and Appeals) (Maintained Schools) (Wales) Regulations 2003 (SI 2003/3227 (W.308)) and the Education (Pupil Exclusions and Appeals) (Pupil Referral Units) (Wales) Regulations 2003 (SI 2003/3246 (W.321)). 117 Standards in Scotland’s Schools Act 2000, s 41 and Education (Scotland) Act 1980, s 28H(1). 118 UK Children’s Commissioners, UK Children’s Commissioners Report to the UN Committee on the Rights of the Child (2008) www.childcomwales.org.uk/wp-content/uploads/2016/04/UK-CommissionersUNCRC-Report.pdf at R82.

46 Responsibility for Children’s Education and representation.119 Yet although the Labour Government floated the idea of granting under-18s an independent appeal right against permanent exclusion120 it did not materialise. The arguments for children to have participation rights within decision-making processes, including those concerned with redress, were noted in Chapter 1. Compared with the right of appeal to an independent appeal panel, which it replaced,121 the right to a review in England falls some way short of providing an effective safeguard against unfair exclusion, since review panels have more limited powers to direct reinstatement than the independent appeal panels.122 Their powers are to uphold the governing body’s or management committee’s exclusion decision, recommend reconsideration of the matter by the governors/ committee, or – if, and only if, the decision is flawed as judged by ‘the principles applicable to an application for judicial review’ (a test which these lay panels are expected to apply) – quash the decision and direct reconsideration.123 Reinstatement is rare: in each of the four consecutive years starting with 2012–13 when the review panels were first introduced there were 20 reinstatements resulting from the review process, although in 2016–17 the annual total jumped to 45 and in 2017–18 was 79.124 In part these increases were due to a surge in the number of review determinations, which rose by over 60 per cent over this period. The proportion in which the exclusion is upheld, 61 per cent in 2017–18, has fallen each year since 2014–15.125 In the few cases in which the review panel will have found the governing body’s or management committee’s decision to lack conformity with the principles of judicial review, and quashed the decision, the governing body or management committee may be set a deterrent against refusal to reinstate. This is because the review panel may order a downward adjustment by £4,000 in the school’s budget share (or in the case of an academy, order it to pay the local authority that amount), where reinstatement is not directed in such a case.126

119 UN Committee on the Rights of the Child, Concluding observations on the fifth periodic report of the United Kingdom of Great Britain and Northern Ireland, CRC/C/GBR/CO/5 (Geneva, United Nations, 2016) para 73(b). 120 HL Debs, Vol 704 cols 1825–1826, 30 October 2008, per Baroness Morgan of Drefelin (Parliamentary Under-Secretary, Schools, Children and Families). 121 The Government wanted to abolish what it considered to be an adversarial appeal process and one which could result in the reinstatement of excluded pupils and thereby undermine the disciplinary authority of head teachers: DfE, The Importance of Teaching Cm 7980 (London, The Stationery Office, 2010) para 3.29. Yet only around one in ten permanent exclusion decisions were appealed against and only a minority of appeals succeeded. Moreover, reinstatement of the excluded child was directed in only one-third of cases where the appeal was successful. 122 See the justice concerns outlined in Children’s Commissioner for England (2012) n 90 above; Administrative Justice and Tribunals Council, Education Bill – letter to the Secretary of State (March 2011); Joint Committee on Human Rights, Thirteenth Report, session 2010–12, Legislative Scrutiny: Education Bill and other Bills, HL Paper 154, HC 1140 (London, TSO, 2011). 123 EA 1996, s 51A(4), inserted by the EA 2011, s 4(2). 124 DfE (2018) and DfE (2019) both n 94 above. 125 Ibid. 126 SI 2012/1033 n 96 above regs 7(5), 16(5) and 25(5).

The State’s Role in Supporting Access to Education 47 One positive feature of the review process, particularly in view of the significant over-representation of children with SEN among those excluded from school, noted above, is the potential involvement of a SEN expert to provide the panel with impartial advice on the relevance of SEN to the child’s permanent exclusion. The appointment is to be at the expense of the local authority or, in the case of an academy, the proprietor, and is made at the parent’s request. The parent is to be informed of his or her right to make such a request and to receive an explanation of this expert’s role.127 The high numbers of children with SEN who are excluded from school have been a significant factor in recommendations from various quarters to have exclusion appeals heard by the appeal tribunal dealing with appeals against local authority SEN decisions and also disability discrimination cases involving school pupils, currently the First-tier Tribunal (Health, Education and Social Care Chamber). Another reason for preferring the tribunal is its judicial character, particularly its independence and legal expertise, since research has pointed to perceptions of unfairness among a significant minority of parents attending review panels.128

C. Responsibility to Ensure No Denial of the Right to Education under the ECHR The state’s responsibility to ensure that all children are able to access at least a minimum level of educational provision regardless of whether they have been subjected to disciplinary exclusion or there are difficulties in finding appropriate long-term arrangements for suitable education to meet their needs has been tested for compliance with the ECHR’s requirement in A2P1: ‘No-one shall be denied the right to education’. There is a question as to where the line between a level of provision that is consistent with this right, and one that is not, should be drawn. The case law in the reasoned decisions of the European Court of Human Rights and the judgments of UK courts confirms that the ECHR standard adds little if anything to the guarantees under domestic law. Education law in England lacks specific reference to rights, unlike some of the statutory provisions in S cotland, most notably section 1 of the Standards in Scotland’s Schools Etc Act 2000: ‘It shall be the right of every child of school age to be provided with school education by, or by virtue of arrangements made, or entered into, by, an education authority.’ However, arguably the statutory duties placed on local authorities noted above, such as the ‘sufficient’ schools duty in EA 1996, s 14 and the alternative provision duty in s 19, in practice appear to offer a similar level of protection. Legislation also sets out duties with regard to ensuring educational 127 Ibid, regs 7(1) and (3), 16(1) and (3) and 25(1) and (3). A SEN expert was requested in 54% of review cases in 2017–18: DfE (2019) n 94 above, table 13. 128 C Wolstenholme, M Coldwell and B Steill, Independent Review Panel and First-tier Tribunal Exclusion Appeal Systems: Research Report (London, DfE, 2014) 38–41; and see also Harris et al n 48 above, 171.

48 Responsibility for Children’s Education provision is directed at supporting children’s personal development and the realisation of their potential,129 as discussed further in Chapter 6, but these are general goals akin to those set out in some of the international legal instruments governing the right to education, rather than detailed educational objectives. The duty under s 2(1) of the Standards in Scotland’s Schools Etc Act 2000 to ‘secure that the education is directed to the development of the personality, talents and mental and physical abilities of the child or young person to their fullest potential’ adopts substantively a specific requirement of the UNCRC.130 Claims relating to a simple denial of access to education are not as unlikely as might be supposed. The best known in the UK context have arisen out of e xclusion from school and are discussed below. Another example arose out of the Holy Cross School affair in Northern Ireland. During September– November 2001 children and their parents who walked along Ardoyne Road in Belfast to the Holy Cross primary school for girls, a Roman Catholic school, were subjected to intimidation and attacks from members of the local community and loyalists. The parents’ complaint was that the police had failed to enforce the criminal law and secure safe passage to school. Among the arguments on which the application was brought, on behalf of child E, was that her right under A2P1 had been violated. In the High Court in Northern Ireland, Kerr LCJ held that the efforts made by the parents and the principal and other staff at the school to ensure that the school remained open and that the children could attend, in the face of serious threats, meant that ‘the right of the applicant’s child and other children to an education was assured’.131 There was evidence that some children were quite badly distressed by the intimidation of the mob, so it is perhaps surprising that its impact on their enjoyment of the right to education was not considered in the Court’s judgment. The Court of Appeal in this case similarly found no violation of A2P1, on the basis that E ‘did go to school and … every effort was made to provide her with a safe atmosphere when at school to pursue her education’.132 The distress many of the Holy Cross children suffered in the course of trying to exercise their right to education called for proper steps to be taken by the state – in this case through the agency of the police. In the event, neither Kerr LCJ nor the Court of Appeal considered that the policing had been legally flawed. When the case reached the House of Lords in 2008133 the central issue before the Court was whether the police had failed in their duty to protect those affected from a breach of their right not to be subjected to inhuman or degrading treatment for the purposes of Art 3

129 EA

2002, s 78(1) and EA 1996, s 13A, as substituted by the EIA 2006, s 1. Art 29(1)(a). 131 In re the application of E [2004] NIQB 35 at [51]. 132 Re E Application for Judicial Review [2006] NICA 37 Per Campbell LJ at [95]. 133 In re E (a child) (AP) (Appellant) (Northern Ireland) [2008] UKHL 66. 130 UNCRC,

The State’s Role in Supporting Access to Education 49 of the ECHR. The A2P1 point appears not to have been pursued further, since nowhere in the s ubstantive judgments (of Baroness Hale and Lord Carswell) is the Article referred to. It should be added that both the Court of Appeal and the House of Lords also considered that the best interests of the child had been treated by the authorities as a primary consideration as required by Art 3 of the UNCRC. It is clear that in specifying that ‘no-one shall be denied the right to education’ and adopting a negative formulation the ECHR was recognising the normativity of the state’s role and authority regarding educational provision. The Convention’s travaux preparatoires note that a positive formulation was disfavoured because ‘it might be interpreted as imposing on the government the obligation to take effective measures to ensure that everybody could receive the education which he desired’.134 A2P1 appears to afford some opportunity for individual choice, based on its second sentence, which requires the state to respect the right of parents to ensure the teaching of their child in conformity with their religious or philosophical convictions. But as discussed in Chapter 6, there are limitations to the potential of this right to curb the authority of the state over matters of educational policy and provision, and it is subject to a UK reservation providing for acceptance of the duty ‘only so far as it is compatible with the provision of efficient instruction and training and the avoidance of unreasonable expenditure’. In Horváth and Kiss v Hungary the European Court of Human Rights (ECtHR) viewed ‘respect’ in this context as connoting a positive obligation on the part of the state towards parents, but nevertheless noted how the state enjoys ‘a wide margin of appreciation in determining the steps to be taken to ensure compliance … with due regard to the needs and resources of the community and of individuals’.135 In any event, it is important to understand the nature of the guarantee that the right to education provides. A2P1 leaves open the meaning of ‘education’ and thus the minimum level of provision, aims or content that would be consistent with the notion of education for purposes of the Article. In Belgian Linguistics,136 the ECtHR said that at the time the Protocol was opened for signature, states already possessed an education system, so there was not ‘any question of requiring each State to establish such a system’ but merely of guaranteeing a right, in principle to avail oneself of ‘the means of instruction at any given time’. There was also no prescribed language to be used for teaching, although ‘the right to education would be meaningless if it did not imply in favour of its beneficiaries,

134 Council of Europe, Travaux preparatoires de l’article 2 du Protocole additionnel à la Convention (1967), Report of the Committee of Experts to the Committee of Ministers, 24 February 1951 (Doc. CM/WP VI (51) 7, Doc. CM/WP I (51) 4C; A 4024), at 128. 135 Application No 11146/11, 29 January 2013 [2013] ELR 102 at [103]. 136 Belgian Linguistics (No.2) (1979–80) 1 EHRR 252.

50 Responsibility for Children’s Education the right to be educated in the national language or one of the national languages, as the case may be’. The first sentence of A2P1, in guaranteeing the individual ‘a right of access to educational institutions existing at a given time’,137 also extended ‘the possibility of drawing profit from the education received’, in the form of ‘official recognition of the studies … completed’ by him/her.138 The degree of latitude, however, given to states over educational provision reflects the ‘margin of appreciation’ accorded to them in implementing the Convention provisions, including the right to education.139 It acknowledges, inter alia, that social provision by the state does not occur in an economic and political vacuum and that regard must be had to the necessity to manage resources with a degree of economic efficiency, while national governments will need to work to their politically mandated policy priorities. In Belgian Linguistics the Court observed that ‘the Contracting Parties do not recognise such a right to education as would require them to establish at their own expense, or to subsidise, education of any particular type or at any particular level’.140 The right to education, which the decisions in Leyla Şahin v Turkey141 and Mürsel Eren v Turkey142 have confirmed extends to higher education as well as school education, guarantees ‘equal access to existing facilities and imposes no obligation to provide further educational resources’.143 Resource constraints have a particular relevance to the second sentence of A2P1 (above), as limiting the state’s duty to accommodate parental wishes. For example, in X v UK,144 it was

137 Note that in Matin v University College London and Another [2012] EWHC 2474 (Admin); [2012] ELR 487 Wyn Williams J said (at [64]) that the applicant was not denied his right under A2P1 by not being readmitted to UCL’s medical school following his change of mind after voluntary withdrawal, because he ‘has not been excluded from the entirety of the UK’s tertiary education sector as a result of the [university’s] decision (as would be required for him to make good his claim that a breach of his rights had occurred)’. 138 Official recognition of studies completed may extend to studies completed abroad – the Commission of Human Rights seemed to accept that was the case in Karus v Italy Application No 29043/95 (1998), while at the same time rejecting the idea that A2P1 could be interpreted as ‘guaranteeing the right to validation of each exam completed abroad’. The applicant was a German national entering a studies programme at the University of Bari, Italy, and wanted her previous studies in Germany validated so she had exemption from parts of her course in Bari. 139 In Leyla Şahin v Turkey, App No 44774/98, 10 Nov 2005, [154], for example, the Grand Chamber stated that ‘the regulation of educational institutions may vary in time and place, inter alia, according to the needs and resources of the community and the distinctive features of the different levels of education. Consequently, the Contracting States enjoy a certain margin or appreciation in this sphere …’ 140 Belgian Linguistics (No.2) (1979–80) 1 EHRR 252 at [3]. 141 N 139 above at [137] and [144]. 142 Application No 60856/00, 7 February 2006, para.41. Here a denial of the right occurred when a university applicant’s entry test results were cancelled due to suspected cheating in light of his inconsistently better results than those he had previously obtained. The Court found the authorities’ decision ‘lacked a legal and rational basis’, particularly since the claimant had attended a preparatory course for the examinations and there was no evidence of cheating: ibid [50]. 143 I Hare, ‘Social Rights as Fundamental Human Rights’ in B Hepple (ed), Social and Labour Rights in a Global Context (Cambridge, Cambridge University Press, 2002) 153 at 167. See further Tarantino and Others v Italy, Appln Nos 25851/09, 29284/09 and 64090/09 [2013] ELR 375. 144 Application No 7782/77 (1978) 14 DR 179.

The State’s Role in Supporting Access to Education 51 held that there was no positive obligation on the state to fund a specific form of educational provision in furtherance of the religious or philosophical beliefs of particular citizens. The case was brought by a man who complained that the state’s failure to fund to the tune of 100 per cent integrated schools in Northern Ireland, as an alternative to funding separate Roman Catholic and Protestant schools, gave rise to a breach of A2P1. The Commission held, applying the principle in Belgian Linguistics (above), that there was no inherent obligation under A2P1 to fund integrated schools in the way sought.145 The state’s freedom to tailor educational provision around its budget priorities and financial constraints is also underlined by Simpson v UK,146 where the Commission of Human Rights found no violation of the first sentence of A2P1 when a local education authority refused to fund the placement of a boy with dyslexia at an independent school preferred by his parents and decided to place him at a mainstream comprehensive school. The Commission confirmed that the state enjoyed ‘a wide measure of discretion … as to how to make the best use possible of the resources available to them in the interests of disabled children generally’.147 In Stoian v Romania the ECtHR emphasised that it was ‘not its task to define the resources to be implemented in order to meet the educational needs of children with disabilities’ but rather that of the national authorities, who were ‘in principle better placed than an international court to evaluate local needs and conditions in this regard’, but the Court nevertheless considered it to be ‘important that those authorities take great care with the choices they make in this sphere, in view of the impact of those choices on persons with disabilities, whose particular vulnerability cannot be ignored’.148 The idea that the realisation of right to education in practice may be contingent on the state’s capacity or willingness to accommodate the cultural/ religious preferences of individuals, which may in themselves attract protection under the ECHR, has arisen in connection with the policies adopted at both state level and institutional level.149 Often the complaint is, however, partly or mostly focussed around religious freedom, choice and equality rather than

145 There was also an Art 14 (Convention rights to be enjoyed by all on an equal basis) point. There was a disparity in funding, as an integrated school established by a private individual would only attract 85% capital funding from the state, having to meet 15% itself, whereas other schools would attract 100% state funding. However, it was held that the disparity was justified for Art 14 purposes, since the state would have had no controlling or management stake in the integrated school. 146 (1989) 64 DR 188. 147 Ibid, at [2]. See also SP v United Kingdom, Application No 28915/95, European Commission of Human Rights, 17 Jan 1987, and Coster v United Kingdom, Application No 24876/94 (2001) 33 EHRR 479, [134]–[137]. This is also the case where discrimination against those with disabilities in the context of education is concerned. 148 (2019) Application No 289/14 at [109]. In that case the Court was considering A2P1 in conjunction with Art 14 (see ch 4 below). Not surprisingly, it has also been held that the state has no obligation to subsidise private education: W and KL v Sweden, Application No 10228/82 (1985) 45 DR 143. 149 On the latter, see the discussion of R (Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15; [2006] 2 WLR 719 in ch 6.

52 Responsibility for Children’s Education access to education per se. Thus in Dogru v France,150 for example, while part of the complaint arising from the disciplinary expulsion of a pupil from school for refusing to take off her Islamic headscarf during physical education lessons was that she had been denied her right to education, the ECtHR concluded that having decided the question of a breach of Art 9 (religious freedom) arising from the same facts (holding that there was no breach), there was no need to examine the issue of A2P1 violation.151 In any event, the ECtHR has repeatedly emphasised that the requirement in A2P1 not to deny the right to education should be read in light of Arts 8, 9 and 10 (freedom of expression) in particular.152 In İrfan Temel and Others v Turkey,153 for example, the Court found that the complaints, arising from the disciplinary suspension by their university of some students who were Turkish nationals following the lodging of a petition by them requesting optional Kurdish language classes, should be examined under A2P1, read in the light of Art 10 (freedom of thought and expression). Their suspension was held to constitute a restriction of their right to education which although it had a legal basis under domestic law was not proportionate, having regard to their rights and freedoms under Art 10.154 As noted above, and as İrfan Temel re-iterated, it is the threat to a person’s education that arises from their exclusion from an educational institution that generates a particular concern. However, in Sulak v Turkey155 the Commission of Human Rights accepted that recourse to disciplinary measures, such as exclusion from an educational establishment, would not in principle be in conflict with the right. That was also emphasised in Dogru (above)156 and in İrfan Temel itself.157 Yet, as the latter decision illustrates, there may be circumstances in which exclusion could give rise to a violation.158 A case involving exclusion of children was Timishev v Russia,159 where the right to education was denied when two children, aged 7 and 9, were prohibited from continuing at the school at which they had been registered for two years, because their father, who was a Chechen migrant, lacked registered residence and a migrant’s card. This exclusion was contrary to Russian law, which guaranteed a right to be educated irrespective of

150 Application No 27058/05 [2009] ELR 77. 151 Ibid [84]. 152 See Kjeldsen, Busk Madsen and Pedersen v Denmark (1979–80) 1 EHRR 711 at [52]; Leyla Şahin v Turkey Application No 4477/98, 10 November 2005 at [155]. 153 Application No 36458/02, 3 March 2009. 154 See also Çölgeçen v Turkey Application Nos 50124/07, 53082/07, 399/08, 776/08, 1931/08, 2213/08 and 2953/08 [2018] ELR 464. On the application of Art 10 in relation to teaching, see Cyprus v Turkey Application No 25781/94 (2002) 35 EHRR 731, discussed in ch 6. 155 Sulak v Turkey (1996) Application No 24515/94, 17 January 1996. 156 Application No 27058/05 [2009] ELR 77 at [83]. 157 Note 153 above at [45]. See also Yanasik v Turkey Application No14524/89 (1993) 74 DR 14. 158 See also Campbell and Cosans v United Kingdom (No.2), Application Nos 7511/76 and 7743/76 (1982) 4 EHRR 293, at [41]. 159 Application Nos 55762/00 and 55974/00, 13 December 2005.

The State’s Role in Supporting Access to Education 53 place of residence. The Court noted that the right to education under the ECHR ‘guarantees access to elementary education which is of primordial importance for a child’s development.’160 At the conclusion of its reasoning the Court stated: The Government confirmed that Russian law did not allow the exercise of that right by children to be made conditional on the registration of their parents’ residence. It follows that the applicant’s children were denied the right to education provided for by domestic law. Their exclusion from school was therefore incompatible with the requirements of Article 2 of Protocol No. 1.161

In the important UK case of Ali v Headteacher and Governors of Lord Grey School,162 it was argued that part of the ratio of Timishev relating to denial of the right to education concerned the way that the children’s exclusion from education was in breach of domestic law. It was contended in Ali that the fact that the exclusion from school was not lawful under education legislation in England necessarily gave rise to a breach of the pupil’s right to education under A2P1. However, the House of Lords rejected that argument, as discussed below.163 In any event, Lord Hoffman did not read Timishev as holding that the standard set by domestic law for exclusion was determinative for A2P1 purposes. He said that the ECtHR had found a violation of A2P1 to have arisen from ‘a failure to provide education’ and that the ECtHR’s reference to Russian law ‘was to rebut an argument that such a failure could be justified, in accordance with the Belgian Linguistics Case … as being part of the Russian domestic educational system’.164 As we have seen, exclusion can result in an interruption to normal schooling and the making of alternative provision, which may not be at an adequate level. In Ali (above),165 the respondent, A, then aged 13, was excluded from school for successive periods between March and June 2001 after being charged with committing arson on the premises. Work was sent home for him until May 2001. He was allowed to attend school for about a week to sit some assessments. His parents were then told to collect work for him to complete away from school, but they failed to do so. By early June 2001 A’s period of exclusion had totalled more than 45 school days; and because he was not permanently excluded, his exclusion became unlawful. His parents declined an offer to place A at a PRU and to attend a meeting at the school, which was by then prepared to take him back because the police had decided not to prosecute. In July 2001 the school removed

160 Ibid, [64]. It seems reasonable to infer that a comma should be read after ‘education’ in this quoted text. 161 Ibid at [66]. 162 [2006] UKHL 14; [2006] ELR 223. 163 Ibid at [24] (per Lord Hoffman), [58]–[60] (per Lord Bingham of Cornhill) and [82] (per Baroness Hale of Richmond). 164 Ibid at [60]. 165 Note 162 above.

54 Responsibility for Children’s Education A from the roll. In mid-October 2001 the parents contacted the local authority and attended a meeting with the authority. The authority then made efforts to arrange tuition for A. In November 2001 the father asked the school to reinstate A but was told that his place had been reallocated and the school was full. In January 2002 A started to attend another school. A sought damages under the Human Rights Act 1998 claiming a denial of his right to education. The application was rejected by Stanley Burnton J in the High Court, but that decision was overturned by the Court of Appeal. Sedley LJ, for the Court, confirmed that A’s exclusion had been unlawful once the total periods of exclusion had exceeded 45 days. He held that if there had been no breach of domestic law then a human rights challenge was sustainable only if the law itself was incompatible with the Convention. If domestic law had been breached, which was the case here, then the relevant question was whether a Convention right had been denied, which would be the case where: breach of the domestic law has resulted in the pupil’s being unable to avail himself of the means of education which currently exists in England and Wales – not, for example, by being temporarily unable to reach the school premises for want of transport, but by being shut out for a significant or an indefinite period from access to such education as the law provides for him.166

Sedley LJ concluded that, in the period after the boy’s continued exclusion became unlawful under domestic law, there was a denial of A’s right to education notwithstanding the provision of homework. When the school appealed to the House of Lords, however, the Court of Appeal’s decision was overturned. For reasons outlined below, the majority were not convinced that the right to education under A2P1 had been denied. Baroness Hale of Richmond, in dissenting on the issue of denial of the right to education, adopted similar reasoning to Sedley LJ. She considered that although A could have attended a PRU, ‘that sort of fall-back is no substitute for ordinary access to the full national curriculum as a pupil at an ordinary school’.167 It is, however, unlikely that Baroness Hale considered placement at a PRU per se as amounting to a denial of the right to education; a proper reading would be that she was referring to the suitability of the proposed arrangements out of school for someone in A’s position, although it is not clear why the kind of provision that would actually be made at the unit in question would not have been satisfactory or sufficient. In any event, Baroness Hale concluded that the claimant ‘had a right not to be denied the education which the established system had provided for him’; and she was not convinced that if the matter were before the ECtHR it would regard the fall-back provision as a proper justification for the school’s

166 Ali

v Head Teacher and Governors of Lord Grey School [2004] ELR 169 (CA), at [45]. 162 above at [81].

167 Note

The State’s Role in Supporting Access to Education 55 action, at least in the period from when it removed his name from the school roll despite receiving notification from the police that no criminal prosecution would be brought against the boy.168 Baroness Hale was nonetheless against any award of damages and preferred a declaration that the school had acted incompatibly with A’s right to education.169 Several of the other judges questioned whether A had been excluded at all,170 particularly since the exclusion was not ‘on disciplinary grounds’,171 and considered the school’s conduct to have been reasonable in the circumstances. It was acknowledged that there was a gap in the legislation where cases that amounted to a ‘precautionary exclusion’ were concerned.172 Turning to the reasons why the majority of the judges found that A had not been denied his right to education, Lord Bingham noted that alternative arrangements were made available for A and the local education authority had found another school place for him as soon as was feasible in the circumstances. Moreover, the right to education under the ECHR was in any event, a ‘weak’ right in comparison with other Convention rights – it did not guarantee education of a particular kind or quality, nor did it offer a guarantee of compliance with domestic law.173 Lord Hoffmann noted that the Strasbourg case law did not acknowledge a right to attend any particular form of institution, nor had it been concerned with procedures, but ‘only with results: was the applicant denied the basic minimum of education available under the domestic system?’174 This is a reflection of the courts’ general unwillingness to extend the reach of A2P1 nor to take the opportunity to give a view on what would amount to the bare minimum in the national context. Like Lord Bingham, Lord Hoffmann viewed the availability of alternative provision at the PRU as meaning that the ‘necessary minimum of education was available’ to A and it mattered not for this purpose that A was expected to attend a PRU rather than a school.175 However, the complaint in Ali was subsequently taken to Strasbourg, in Ali v United Kingdom (see below), but before the decision in that case the issue was considered by the UK Supreme Court in a case from Northern Ireland (NI), R (JR 17) (Northern Ireland).176 It concerned the exclusion (described as a suspension) of a year 12 male pupil from a school in County Antrim for five days followed by three further five-day periods of exclusion. These sanctions followed a report to the school by a female pupil that she was scared of the male pupil. The behaviour of the male pupil was described as ‘subtle and

168 Ibid. 169 Ibid

at [83]. in particular Lord Hoffman at [37] and Lord Scott at [68]–[69]. 171 Per the SSFA 1998, s 64(4). 172 Note 165 above, per Lord Hoffman at [40] and Baroness Hale of Richmond at [74]. 173 Ibid at [24] and [25]. 174 Ibid at [57]. 175 Ibid at [58]. 176 [2010] UKSC 27; [2010] ELR 764. 170 See

56 Responsibility for Children’s Education silent covert intimidation’. As in Ali, the exclusion was precautionary, in this case based on the need to protect the alleged victim. The complainant was set work to do at home during his exclusion and was permitted to return to school but only to sit exams. So the circumstances paralleled those in Ali. The Supreme Court found the exclusion to be unlawful under the terms of the NI legislation and the NI Board of Education’s scheme. But it found no breach of A2P1: The state … provides educational facilities for pupils who are suspended from school and the appellant was not denied access to those facilities … The fact that the standard or quality of the education provided may have been low is not material. What matters is that the appellant was given access to the alternative facilities provided for pupils who have been suspended. Work was made available by the school for the appellant immediately following his suspension in all the principal subjects …. From 14 March until 20 April, he received home tuition for 8 hours per week mainly in Mathematics and English. Understandably, the appellant’s mother complains that this was inadequate. But there is no evidence that the arrangements made available and provided by the school were different from those that the state made available and provided to any pupil such as the appellant who, for whatever reason, was not able to attend school. I have little doubt that the facilities made available between 7 February and 13 March (which in the event were not accepted) were not as effective from an educational point of view as attendance in a classroom would have been. It may be that the same can be said in relation to the merits of home tuition of 8 hours per week. But for the reasons that I have given, there was no breach of article 2 of the First Protocol in this case.177

So both this decision and that of the House of Lords Ali (above) demonstrated what a low threshold the ECHR is considered to set for the state’s compliance with the right to education. When the complaint in Ali was taken to the ECtHR it was again rejected.178 The Court of Human Rights held that determining whether an exclusion amounted to a denial of the right to education required consideration of whether a ‘fair balance was struck between the exclusion and the justification given for that measure’, which in turn meant having regard to factors such as the duration of the exclusion, the extent to which the pupil or the parents co-operated with attempts at reintegration, and the efforts of the school to minimise the effects of the exclusion, such as by providing work for the pupil to complete during the period of exclusion.179 The Court concluded that A had only been excluded until the formal police investigation had been concluded, the parents had not attended a meeting with the head teacher that, had they done so, was likely to have resulted in reintegration, and they did not contact the school until a date after A’s name had been removed from the school roll. It was the ‘intransigence’ of the pupil and

177 Per

Sir John Dyson, at [65]. v United Kingdom, Application No 40385/06 [2011] ELR 85. 179 Ibid at [58]. 178 Ali

The State’s Role in Supporting Access to Education 57 his family that had resulted in the removal of his name.180 Alternative education was offered although it had not been accepted. Although this alternative education ‘did not cover the full national curriculum’, the Court considered ‘it was adequate in view of the fact that the period of exclusion was at all times temporary pending the outcome of the criminal investigation’.181 Accordingly the Court concluded that there had not been a denial of A’s right to education. It was clearly the temporary nature of the exclusion from mainstream education and from a complete curriculum that was the critical factor in the Court’s decision. Indeed, the Court made it clear that a more prolonged or permanent situation of exclusion might result in a different conclusion: ‘[T]he situation might well be different if a pupil of compulsory school age were to be permanently excluded from one school and were not able to subsequently secure full-time education in line with the national curriculum at another school’.182 By the time of this decision the UK Supreme Court had had another opportunity to consider the duty imposed on the state in protecting the right to education, and whether an enforced period of de facto exclusion from a normative level of schooling might violate it, in a further important case, A v Essex County C ouncil.183 It concerned a child with special educational needs (SEN) whose period away from the expected educational provision resulted from difficulties in ascertaining his needs and finding a suitable placement for him. The child, A, had severe learning difficulties as a result of autism, epilepsy, communication difficulties and challenging behaviour. Deterioration in his behaviour as he approached the age of 12 led to his parents being asked to withdraw him from school for health and safety reasons. He received some home provision but there was no tutor available. It took eight months to assess his medical and psychiatric needs. Thereafter the local authority struggled to find a suitable placement for A before, some 18 months since he was last at school, he started at a residential special school at which he would receive 24-hour provision costing the local authority of over £200,000 per annum. The parents sought damages under the Human Rights Act 1998, arguing that the child’s right to education had been violated during the 18-month period outside school. It was established that the delay had resulted from both a lack of resources for carrying out the medical assessment and the unavailability of a suitable school place. The Supreme Court accepted that, in principle, such a failure to make sufficient provision during A’s period out of school could give rise to a violation of the A2P1 right. The justices also accepted that with the provision of significantly more educational assistance to the child while out of school, the f ailure that occurred would have been mitigated.

180 Ibid 181 Ibid

182 Ibid.

at [61]. at [60].

183 [2010]

UKSC 33; [2010] ELR 531; [2011] 1 AC 280.

58 Responsibility for Children’s Education However, according to Lord Clarke, the child ‘was only denied effective access if he was deprived of the very essence of the right’;184 and Lord Phillips said: Insofar as a state’s system of education makes provision for children with special needs, [A2P1] guarantees fair and non-discriminatory access for those children to the special facilities that are available. But if the facilities are limited, so that immediate access cannot be provided, the right of access must have regard to that limitation. Thus the right of access to education conferred on A by A2P1 had to have regard to the limited resources actually available to deal with his special needs. These caused the delay in catering for his special needs. In these circumstances that delay did not constitute a denial of his right to education.185

Once again, then, the inherent weakness of the A2P1 was highlighted, but this time in the context of SEN. Lord Phillips was conscious of the implications of this for cases such as the present one, saying that it had ‘highlighted a problem for parents of children with severe disabilities’, since even though the system may not be able to provide the education that the child needed and that was required by domestic law, a court may well be unwilling to make a mandatory order to compel the provision of the requisite facilities. He said that reforms of the SEN system were under consideration, but: ‘So far as A2P1 is concerned, it takes the system as it finds it’.186 The case also illustrates again the way that the right in A2P1 is not considered to impose any obligation on the state that would require further expenditure in the face of resource constraints. The state merely must continue to maintain its education service to the extent that resource availability allows. The decision of the Supreme Court, by a majority, was that A’s claim for damages under the Human Rights Act for being denied education should remain struck out. Lady Hale, however, gave a powerful dissenting judgment (Lord Kerr also dissented). She referred to the potentially ‘catastrophic’ impact on a child with SEN of being denied access to education.187 Noting that Ali in the House of Lords (above) had found that illegality under domestic law did not in itself mean a violation of A2P1 had occurred, she said that the present case ‘goes far deeper than that’.188 She indicated that the facts warranted exploration to determine whether there was more that could have been done to prevent A from having to stop attending school in the first place and to find the right place for him once he was away from his school. Regardless of how well-meaning the local authority had been, If a new place could have been found sooner, or if there is more that could reasonably have been done for the appellant in the meantime, I find it hard to see how the effective denial of any education could be justified.189

184 Ibid

at [20]. at [86]. 186 Ibid at [92]. 187 Ibid at [102]. 188 Ibid at [108]. 189 Ibid at [108]–[110]. 185 Ibid

The State’s Role in Supporting Access to Education 59 Lady Hale said further that it could not be ascertained whether the local authority had denied A’s right to education until the facts were tried.190 It is not possible to disagree with Lady Hale’s conclusion on this point. It may, as a matter of policy, be unreasonable for local authorities to have to face potential liabilities towards individual families and children under the Human Rights Act when they have acted diligently and within the scope allowed by their available resources. However, where a child is deprived of meaningful educational provision, particularly for a relatively prolonged period, there must be a question – to be tested with reference to the specific facts of a case – as to whether a threshold of illegality has been crossed due to a denial of the right to education. There is thus some encouragement to be derived from the subsequent first instance judgment by Deputy High Court Judge Emmerson QC in R (E) v London Borough of Islington,191 which is another case based, in part, on the issue of whether involuntary absence from education for a lengthy period or periods could give rise to a violation of A2P1. E was aged nine, profoundly deaf, and had very little speech and little literacy ability. Her mother, C, had fled the family home in Southwark due to domestic violence and was living in Islington. Due to a degree of dilatoriness by the local authority in responding to the family’s request for assistance, E was out of education for nearly three months, although that included a period of school holidays. C was disabled and unable to provide E with any education at home in that period. E then attended school in Islington for the first seven weeks of the autumn term starting in September 2015 before Islington arranged accommodation for the family for a temporary period outside the borough, in Hammersmith and Fulham (H & F). Due to the move and a failure by Islington to indicate what plans or proposals it had for E’s education during this temporary period, E had no schooling for the rest of the autumn term, missing another seven weeks preceding the two weeks of the Christmas holiday period before a new school place commenced. Neither Islington nor H & F had taken steps to make education available promptly for E. At the end of April 2016 the family were moved back to Islington but there was a gap of eight weeks before Islington made arrangements for E’s education to be resumed. The judge looked at the cumulative impact of what he regarded as failures in performing a statutory duty to provide educational facilities for E, although he considered that the domestic law was not the prism through which the matter of denial of education should be assessed. In his view a broad approach should be taken which considered whether there had been a denial of ‘effective access’ to the state’s educational facilities. Having regard to the periods of missed schooling during term-time, E had spent less than 50 per cent of the time receiving education, amounting to ‘a

190 Ibid

at [111]. EWHC 1440 (Admin); [2017] ELR 458, QBD.

191 [2017]

60 Responsibility for Children’s Education significant disruption to her education’.192 The judge did not consider that tight local authority finances could carry weight in the defence of the failure which occurred. He distinguished A v Essex on the basis that it was concerned with ‘especially resource intensive facilities’ for a child with ‘uniquely challenging educational needs’, whereas the instant case was about the local authority’s basic duty193 to ensure efficient education is available to meet the needs of their area.194 His conclusion was that across the year in question there was a denial of E’s A2P1 right to education by Islington, as the authority with primary (and continuing) responsibility for E’s education. It is a welcome and rational judgment upholding the right to education in the domestic context in circumstances when it should be within the state’s reach to ensure provision within a reasonable timeframe, even though local authorities can face difficulties in securing and funding placements, particularly at a time of significant resource limitations. A less restrictive approach to A2P1 and the obligations of the state to ensure access to education has also been signalled by the UK Supreme Court in Tigere.195 However, since the claim was based on Art 14 (discrimination), the Court merely had to find A2P1 to be engaged rather than violated. T, the applicant, was a Zambian girl, born in 1995. Her family had come to the UK where they had temporary leave to remain. When this leave was exhausted they were granted discretionary leave. T’s status as someone with only discretionary leave and lacking ‘settled’ status meant that she had no entitlement to a student loan. The question in the proceedings was whether the blanket rule excluding people in her situation from a loan constituted a disproportionate interference with her right to education under the A2P1. The question of discrimination under Art 14 read with A2P1 arose (see Chapter 4 below), but also the state’s obligations under A2P1. The Supreme Court by a 3-2 majority confirmed that A2P1 did not require a state to establish a particular system of education, and ‘A2P1 … does not impose on any state an obligation to provide, or to fund, tertiary education’;196 but where it had established a higher education (HE) system it was under an obligation to provide an effective right of access to it. The role that education played in furthering human rights was of such importance in a democratic society that the right should not be restrictively interpreted. Crucially, although decisions concerning the ‘distribution of finite resources at some cost to the taxpayer’ were matters of judgment for the primary decision maker, deference to the Secretary of State was not warranted because he did not address his mind to the educational rights of those with limited or discretionary leave to remain in the UK.197

192 Ibid, [77]. 193 Per EA 1996, s 13(1). 194 Note 191 above at [81]. 195 R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57; [2015] ELR 455; [2015] 1 WLR 3820. 196 Ibid per Lord Hughes at [51]. 197 Ibid per Lady Hale at [32].

The State’s Role in Supporting Access to Education 61 Lady Hale considered that a ‘fair balance’ had not been struck between the wider community’s interests and those of the person whose right had been infringed, since the decision had a very severe impact on those affected.198 Moreover, to deny or delay their access to HE also harmed the community and economy as a whole.199 In terms of justification for the discrimination against those in T’s position, the majority held that since their numbers were comparatively small, it might not be administratively unworkable to provide student loans to at least some of the students in that category. A blanket exclusion was not thought not to be proportionate. T was held to be entitled to a declaration that her right under A2P1, read with Art 14, had been breached.200 Where a less restrictive approach is particularly in evidence in Tigere is in the relationship between financial support and access to education. Citing the ECtHR Grand Chamber’s view in Leyla Şahin v Turkey (above) that once states had established institutions of HE they had ‘an obligation to afford effective access to them’,201 and that it was important to interpret the Convention ‘in a manner which renders its rights practical and effective, not theoretical and illusory’,202 Lady Hale said that ‘[m]aking it prohibitively expensive for some students to gain access to higher education would make the right theoretical or illusory’.203 Her Ladyship accepted that the availability of state financial support to individual students to attend university fell within the scope of A2P1 and thus engaged it, which also seems consistent with the ECtHR’s approach in Ponomaryov in which the complaint related to having to pay fees for attending secondary education classes.204 A similar view also seems to have been taken by Elias LJ in the High Court in Hurley and Moore,205 which concerned a claim that the new higher university tuition fees of £9,000 both violated the right to education by creating an insurmountable barrier for some students while also breaching Art 14 by discriminating against students from more disadvantaged backgrounds. The fees themselves were not considered to deny the essence of the right to education under A2P1, although the availability of student loans appeared to be the mitigating factor. There have, therefore, been important judicial clarifications of the scope and bite of ECHR A2P1. While the specific factual context has obviously influenced

198 Ibid at [39]–[41]. 199 Ibid at [41]. 200 There is further discussion of Tigere, including the Court’s refusal to apply the ‘manifestly without reasonable foundation test’ for determining whether discrimination can be legally justified for Art 14 purposes, in ch 4 below. 201 Application No 4477/98, 10 November 2005 at [137]. 202 Ibid at [136]. 203 Tigere n 195 above at [24]. 204 Ponomaryov v Bulgaria, Application No 5335/05 [2011] ELR 491, at [49]. 205 R (Hurley and Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin); [2012] ELR 297, [34]. Cf R (Douglas) v North Tyneside Metropolitan Borough Council and Secretary of State for Education and Skills [2003] ELR 117; [2004] ELR 117.

62 Responsibility for Children’s Education the decisions made in each of these cases, one nevertheless detects signs of an increasing judicial willingness to raise the bar for the state in ensuring that provision meets children’s needs to the extent necessary to prevent a denial of the right to education.

D. Responsibility for Ensuring Children’s Education in the Case of Migrants and Asylum Seekers State responsibility to ensure that migrant children have access to education in the host state is normative under international human rights law, since references in the relevant instruments to the universality of the right education is widely interpreted as meaning that the right applies to all children in the state irrespective of their residence/citizenship status or nationality. For example, in relation to the right to education the Committee on Economic, Social and Cultural Rights’ General Comment no 20 on non-discrimination states: The ground of nationality should not bar access to Covenant rights … e.g. all children within a State, including those with an undocumented status, have a right to receive education … The Covenant rights apply to everyone including non-nationals, such as refugees, asylum-seekers, stateless persons, migrant workers and victims of international trafficking, regardless of legal status and documentation.206

The European Social Charter, Art 17,207 is also considered to apply to migrants, including those unlawfully present in the state.208 Regardless of the requirements of international human rights law, however, the UK accepts responsibility for the education of children of migrants under its general statutory duties, noted above,209 although in practice there are problems in ensuring that all have a school place, particularly when admission to a school is sought mid-term. Restrictions on in-year admissions tend to impact disproportionately on migrant children in England and Wales.210 Various funding initiatives over the years have targeted

206 UN Committee on Economic, Social and Cultural Rights, General Comment no.20. Nondiscrimination in economic, social and cultural rights (art. 2, para. 2, of the International Covenant on Economic, Social and Cultural Rights) E/C.12/GC/20 (Geneva, UN Economic and Social Council, 2009) para 30. 207 It includes, in Art 17.2, an undertaking by the state ‘to provide to children and young persons a free primary and secondary education as well as to encourage regular attendance at schools’. 208 K Willems and J Vernimmen, ‘The fundamental right to education for refugees: Some legal remarks’ (2018) 17(2) European Education Research Journal 219. 209 See S Spencer and V Hughes, ‘Fundamental rights for irregular migrants: legal entitlements to healthcare and school education across the EU28’ [2015] EHLR 604–616. 210 UK Children’s Commissioners, Report of the UK Children’s Commissioners. UN Committee on the Rights of the Child Examination of the Fifth Periodic Report of the United Kingdom of Great Britain and Northern Ireland (UK London/Cardiff/Belfast/Edinburgh, UK Children’s Commissioners, 2015) para 10.20.

The State’s Role in Supporting Access to Education 63 additional support for the education of migrants, including asylum seekers and those granted refugee status.211 As a member of the EU, the UK has been covered by the Union’s protection for the rights of migrants. It is based on the freedom of movement principle applicable to EU citizens, especially workers and their families. Research among Polish migrant families has shown that children’s education is an important consideration in family decisions on migration and that older children may be left behind in Poland in order to avoid disruption to their schooling.212 Where children are brought to another state they should be able to enjoy equal access to education alongside nationals of the host state as the children of migrant workers. Member States have a duty to ‘encourage all efforts to enable such children to attend … courses under the best possible conditions’.213 In Baumbast it was accepted that the child’s right to access education would continue and they would be able to remain in the country to enjoy it irrespective of any threat to the parent’s employment in the state; and moreover, that the parent would be able to retain a right to reside to enable that to happen.214 Thus the Court of Justice of the EU (CJEU) ‘acknowledged that such is the importance of achieving continuity in children’s education that it can effectively “anchor” the family’s residence in the host state for the duration of his or her studies’.215 This derived right of residence was confirmed in a succession of key decisions of the CJEU, notably Ibrahim216 and Teixeira.217 In Zambrano218 a third country national derived a right to reside and work in the UK by virtue of his child’s right as an EU national. The position was confirmed in CS,219 although the CJEU held the non-EU national parent could be expelled, which in practice meant the child would be deprived of residence, notwithstanding Art 20 TFEU (which provides for citizenship of the EU and guarantees EU citizens freedom of movement and residence within the territory of Member States), if guilty of personal conduct representing ‘a genuine, present and sufficiently serious threat adversely affecting one of the fundamental interests of the society of that Member State’.220 Citizenship Directive (2004/83) codified

211 See S Kendall, C Gulliver and K Martin, Supporting asylum seeker and refugee children (Reading, CfBT Trust, 2007). 212 L Ryan and R Sales, ‘Family Migration: The Role of Children and Education in Family DecisionMaking Strategies of Polish Migrants in London’ (2013) 51(2) International Migration 90. 213 Art 10 of Regulation (EU) No 492/2011 (on freedom of movement of workers) OJ Sp Ed 1968 p 475. 214 Case C 413/99, Opinion of Advocate General (Geelhoed); and judgment of the ECJ, 17 September 2002, 2002/C274/03. 215 H Stalford, Children and the European Union. Rights, Welfare and Accountability (Oxford, Hart Publishing, 2012) 154. 216 (C-310/08) [2010] E.C.R. I-1065. 217 (C-480/08) [2010] E.C.R. I-1107. 218 Garardo Ruiz Zambrano v Office national de l’emploi (ONEm) (Case C-34/09) (8 March 2011). 219 Secretary of State for the Home Department v CS (Case C-304/14) (13 September 2016). 220 Ibid at [50].

64 Responsibility for Children’s Education Baumbast and provides a right for the child of an EU citizen who is enrolled in an educational establishment for study to reside in the host state until his or her studies are completed, even after the parent citizen’s death or departure from the EU.221 Notwithstanding these rights, there can be problems for migrants arising from the transfer from one state’s education system to another’s, due to the differences between their curricula, qualifications and other matters.222 State education systems have been immune from legal prescription from the EU, although they have been expected to play a part in various exchange, social inclusion and equality programmes and initiatives223 such as the Europe 2020 strategy224 and the EU Framework for National Roma Integration Strategies.225 There may also be cultural and linguistic barriers hindering integration. Directive 77/486226 has promoted supplementary teaching to migrants of the host state’s official language and their own mother tongue, yet it does not give directly enforceable rights to individuals227 and has been applied half-heartedly, indeed with ‘woefully inadequate’ implementation.228 In a Green Paper ten years ago the European Commission sought views on a new approach to meeting the Directive’s main objective of strengthening the education of children of migrant workers from EU states.229 The European Economic and Social Committee, in response, argued that what was needed was a broad focus on integrating migrant children into education systems more comprehensively and consistently.230 Stalford argues that

221 Council Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (OJ 2004 L158/77) Art 12(3). 222 L Ackers and H Stalford, A Community for Children? Children, Citizenship and Internal Migration in the EU (Aldershot, Ashgate, 2004), 217. 223 See Stalford (2012) n 215 above at 147–150. 224 European Commission, COM(2010) 2020 final, Communication from the Commission, Europe 2020, A strategy for smart, sustainable and inclusive growth, Brussels, 3.3.2010, Brussels, European Commission. This growth strategy includes headline education targets for reductions of 10% initially, and then 15%, in early school leavers. 225 European Commission, COM(2011) 173 final, Communication from the Commission to the European Parliament, The Council, The European Economic And Social Committee and the Committee of the Regions, Brussels, 5.4.2011, Brussels, European Commission. There are EU Roma Integration Goals under the Framework covering education; employment; healthcare; and housing. The education goals include access to quality education without discrimination or segregation, completion of primary education, strong encouragement for participation in secondary and tertiary education, widened access to early education and reduced levels of early school leaving. See further N Harris et al, ‘Ensuring the Right to Education for Roma Children: an Anglo-Swedish Perspective’ (2017) 31(2) International Journal of Law, Policy and the Family 230. 226 Council Directive 77/486/EEC of 25 July 1977 on the education of the children of migrant workers. 227 As noted in X Arzoz, ‘Accommodating Linguistic Difference: Five Normative Models of language Rights’, (2010) 6(1) European Constitutional Law Review 102, 114–115. 228 Stalford (2012), n 215, 157; see also Ackers and Stalford (2004) n 222 above, 260–261. 229 Commission of the European Communities, Green Paper Migration & Mobility: Challenges and Opportunities for EU Education Systems COM(2008) 423 (final). 230 European Economic and Social Committee (2009), Opinion of the European Economic and Social Committee on the Green Paper – Migration & mobility: challenges and opportunities for EU education systems COM(2008) 423 final (2009/C 218/17) para 3.5.4.

The State’s Role in Supporting Access to Education 65 a combination of the EU’s expansion since then and the increasing diversity of the migrant population within the EU serve to ‘[perpetuate] concerns as to the feasibility of enforcing compliance with such legal obligations today’.231 These EU initiatives may cease to have UK relevance in the short or longer term when or if the UK leaves the EU, depending on the precise terms of the UK’s withdrawal and future relationship with the Union, but it nevertheless seems clear that the children of any EU citizens lawfully present in the UK will have access to the state education system. The same is true of children of refugees and asylum seekers, for whom rapid access to education is often unlikely, since arrangements, including admission to a school (especially once school term is underway), may take some time to establish and they may be accommodated under a degree of incarceration. However, it is not merely a question of accessing education per se, since many of these children have vulnerabilities and needs arising from the circumstances surrounding their families’ decision to leave their home countries, including the traumatic consequences of armed conflict, as well as different linguistic and cultural backgrounds to those of most UK children. Some of these children arrive unaccompanied. As a result, the support needs of these children present a considerable challenge to schools and local authorities, which has been met reasonably well despite gaps in specialist knowledge and an insufficiency of resources.232 Evidence shows that while schools can experience problems in responding appropriately to the needs of asylum seeker children, due to cultural or linguistic barriers and the general pressures schools are under, the participation of these children within the education system is important in supporting their more general social inclusion in their new community.233 Nevertheless, the Children’s Society reports that these children are particularly likely to face barriers as a result of bullying (including racist bullying), mental health problems, isolation and stress within the family.234 In the year to June 2018 there were just over 27,000 applications for asylum in the UK, well below the peak level in 2002 where there were over 75,000.235 In total, in 2017–18, 14,308 people were granted asylum (including dependants), whether as a result of the initial decision on the application or as a result of an appeal.236 Overall, as noted in Chapter 1, 10 per cent of the main applicants for asylum were children.237 The number of unaccompanied children

231 Stalford (2012) n 215 above, 157. 232 Kendall et al n 211 above. 233 See A Peterson et al, What are the educational needs and experiences of asylum-seeking and refugee children, including those who are unaccompanied, with a particular focus on inclusion? A Literature Review (Canterbury, Canterbury Christ Church University, 2016). 234 www.childrenssociety.org.uk/youngcarer/refugee-toolkit/education-and-school. 235 Home Office, National Statistics ‘How many people do we grant asylum or protection to?’ 23 August 2018, www.gov.uk/government/publications/immigration-statistics-year-ending-june-2018/ how-many-people-do-we-grant-asylum-or-protection-to. 236 Ibid. 237 Ibid.

66 Responsibility for Children’s Education who applied for asylum in the year to June 2018 (including those who were accepted as being aged under 18, in the absence of documentary evidence) was 2,424.238 About 70 per cent of them were granted asylum or some other form of protection, including temporary leave.239 Some children, 2,817 in 2017–18, were resettled, including 603 resettled under the Vulnerable Children Resettlement Scheme.240 Children comprised 49 per cent of those resettled and 38 per cent of those granted protection as a result of an asylum application. Therefore, despite the fall in numbers since the early 2000s there are still substantial numbers of children among those granted asylum or other forms of protection, some of whom will be of compulsory school age.241 Plans to restrict the numbers of unaccompanied children allowed to enter the UK (and be resettled)242 on transference from France, Germany and Italy, by setting a requirement that they had entered those countries by a prescribed date, were scrapped in late 2018.243 Children whose application, or whose family’s application, for asylum is under consideration are entitled to access to a local school in the area in which they reside, since they fall within the scope of local authorities’ duties under the EA 1996, noted above, to ensure that the educational needs of the population in their area are met and that there are sufficient schools for educational provision. In practice, however, those who are newly arrived and placed in initial accommodation with their families will not be able to seek admission to a school.244 Nevertheless, as the JCHR has commented, asylum-seeking children are as entitled as any other children in the UK not to be denied the right to education under ECHR A2P1. They may also have an entitlement to free school meals by virtue of their or their family’s receipt of support (accommodation and basic subsistence) under part 6 of the Immigration and Asylum Act 1999.245 There is, however, a limitation for those who have been refused asylum and are awaiting return to their country of origin, arising from the fact that the support which is available to them if destitute246 does not trigger entitlement to free school meals nor enable meals to be paid for. Furthermore, there is evidence that the children of those who are given limited leave to remain in the UK, on the basis of a condition of having ‘no recourse to public funds’, are also losing out on school meal 238 Ibid. 239 Ibid. 240 Ibid. 241 Ibid. Among unaccompanied children, only one quarter of applicants were under 16. There are no published figures for the ages of dependent children. 242 Per the duty on the Government under the Immigration Act 2016, s 67. 243 Immigration – Written Statement HLWS1193 20 December 2018. 244 In some cases it can take up to a year before they can go to a local school: see D Taylor, ‘Children seeking asylum in UK denied access to education’, The Guardian (online), 2 February 2016, www.theguardian.com/society/2016/feb/02/children-seeking-asylum-in-uk-denied-access-toeducation. 245 EA 1996, ss 512 and 512ZB. 246 Under the Immigration and Asylum Act 1999, s 4(2).

The State’s Role in Supporting Access to Education 67 entitlement once reaching year three or above (since before that age, all children are automatically entitled to free school meals).247 Recourse to public funds does not, however, include accessing schooling.248 The Nationality, Immigration and Asylum Act 2002249 gave effect to government policy that the children of asylum seekers should generally be educated within accommodation centres. The Secretary of State was empowered to make such arrangements and the Act provided for excluding residents of centres in which such educational provision was made from the scope of local authorities’ general educational duty under the EA 1996.250 It further barred accommodation centre residents from admission to maintained schools (including nursery schools) unless it was a special school named in the particular child’s statement of SEN (or now, an education, health and care plan). Otherwise, children with SEN would be educated in accommodation centres unless this was not compatible with their educational needs or the provision of efficient education for other children in the centre or with the efficient use of resources. Those providing education in a centre could, however, ask the local authority for the area to make provision for any child due to special circumstances which called for it.251 The 2002 Act gives the local authority a discretion rather than a duty to make provision.252 In practice, although there are initial accommodation centres in which asylum seekers and their families are housed, their residents are moved on (‘dispersed’) after a few months, usually to private flats and houses managed by one of the private sector companies under a contract with the Home Office. Those awaiting removal from the UK following a failed asylum application may be placed in asylum accommodation removal centres and so could be excluded from access to maintained schools under the terms of the 2002 Act.253 Leaving aside those children, although the arrangements provided for by the 2002 Act were controversial at the time they were before Parliament, because of the way they segregated children of asylum seekers254 and hindered the pace of their integration into what could be their new home country, they have not had the expected impact. Nevertheless, there are problems arising from the way that private sector accommodation providers are permitted to move asylum seekers

247 See S Weale, ‘Children “denied free school meals because of parents’ immigration status”’, The Guardian (online) www.theguardian.com/education/2018/may/09/children-denied-free-school-mealsbecause-of-parents-immigration-status. 248 This is because it is not included within the definition of ‘public funds’ in r 6 of the Immigration Rules (as updated 2 January 2019). 249 Nationality, Immigration and Asylum Act 2002, ss 29 and 36. 250 EA 1996, s 13. 251 Nationality, Immigration and Asylum Act 2002, s 37. 252 Ibid. 253 See L M Clements, ‘The treatment of children under the UK asylum system – children first and foremost?’ [2006] 5 Web JCLI. 254 See Joint Committee on Human Rights, Seventeenth Report, Session 2001–02, The Nationality, Immigration and Asylum Bill (London, The Stationery Office, 2002) para 62.

68 Responsibility for Children’s Education without their consent up to twice per year. This can have a disruptive effect on the education of the children, exacerbated by the negative impact on important pastoral care which they may receive.255 Thus, not surprisingly, questions concerning the suitability of the accommodation for asylum seeking families may include issues around access to schooling for the children when a move will disrupt settled educational arrangements.256 A further issue is the availability of school places for those who are moved to a different area. Local authorities willing to co-operate with asylum seeker dispersal can face difficulties when school places are limited. The contractor is expected to have regard to school place availability when planning to move a family to a particular area,257 but pressures exist.258 When it comes to the potential deportation of a parent or the parents of a child in the context of an immigration decision, and the best interests of the child have to be considered,259 both the extent to which the child is settled in education in the UK and the availability of education opportunities in the country of return are among relevant considerations.260 In Holub and Holub v Secretary of State for the Home Department,261 for example, which arose before Poland’s accession to the EU, a Polish couple were faced with deportation following a failed asylum application. They argued that an enforced return would harm their 14-year-old daughter’s educational prospects following her excellent progress in the UK. On returning to Poland she would, they said, have to resume her education at the point where she left it at age 8 and she would not be able to catch up. Their contention was that the girl’s right to education under A2P1 would be denied. The Court of Appeal held that the Home Secretary, in considering if there were compassionate grounds for the grant of exceptional leave to remain in the UK, would have to take account of any such educational difficulties on a return to the country of origin, but did not have to take a view on whether the A2P1 right would be violated. In any event, having regard to the low t hreshold for provision that the right guaranteed, namely a right to access educational institutions and to a minimum standard of education, the girl’s removal from a school in England 255 House of Commons Home Affairs Committee, Twelfth Report of Session 2016–17, Asylum accommodation (HC 637), para 100. 256 See, eg, R (A) v National Asylum Support Service and London Borough of Waltham Forest [2003] EWCA Civ 1473. 257 House of Commons Home Affairs Committee, Asylum accommodation: replacing COMPASS (HC 1758) (2018) para 67. 258 See House of Commons Home Affairs Committee, Oral Evidence, Asylum accommodation, HC 1758, 21 November 2018. 259 Per the expectation set by ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 AC 16. 260 Home Office, Children’s Asylum Claims (London, Home Office, 2017) 63 and 64. This refers to s 55 of the Borders, Citizenship and Immigration Act 2009, which requires the Secretary of State to make arrangements to ensure that immigration and asylum functions of the state are discharged having regard to the need to safeguard and promote the welfare of children. 261 [2001] ELR 401.

The State’s Role in Supporting Access to Education 69 and a return to the Polish education system, even though arguably a less beneficial arrangement for the girl than staying where she was, did not breach her A2P1 right. The Court noted that Poland had a well-developed education system and the girl was bright and had kept up her Polish language to a high standard by attending a Polish Saturday school. A more recent decision, MA, Pereira et al,262 involving six conjoined cases heard by the Court of Appeal on appeal from the Upper Tribunal, shows the careful balancing of issues that is required when considering the reasonableness of a deportation which will impact on the child’s best interests, including in relation to their education. It is concerned in particular with the situation where the applicant is a child and relies on the ground in the Immigration Rules of having lived in the UK continuously for at least seven years ‘and it would not be reasonable to expect the applicant to leave the UK’.263 In one of the cases the child had been diagnosed as having SEN as a result of autism and it was considered that requiring him to return to Pakistan after living in the UK for more than seven years would have a ‘catastrophic’ impact on him.264 The child had received regular therapy and specialist teaching in the UK and it was accepted that there was very little prospect that he would receive that degree of support in Pakistan. Therefore although the wider public interest in denying a right to remain in the UK had to be considered, judged in the light of the parents’ conduct and immigration history, the child’s best interests could outweigh it and did in this case, so the appeal was allowed. However, in another of the conjoined cases, involving three children, where there was a threatened deportation to Sri Lanka, it had been found that the children, if removed, would be adversely affected by needing to learn a new language, and they would be subject to a different culture and a different level of education … [but nevertheless] the judge concluded that in all the circumstances the three adult Appellants had behaved so badly that it would be ‘outrageous’ for them to be allowed to remain in the UK. They needed to go and their dependants must go with them.265

Elias LJ concluded that a careful and proportional assessment had been carried out by the Upper Tribunal Judge in relation to these children; and so the Court dismissed this appeal.266 The particular relevance of the proportionality issue flowed from the reliance in these cases before the Court of Appeal on ECHR, Art 8. If the right 262 R (MA) (Pakistan) & Ors v Upper Tribunal (Immigration & Asylum) and Anor; Pereira v Secretary of State for the Home Department; NS (Sri Lanka) & Ors v Secretary of State for the Home Department; AR (Sri Lanka) & Ors v Secretary of State for the Home Department; CW (Sri Lanka) & Ors v Secretary of State for the Home Department; AZ (Pakistan) & Ors v Secretary of State for the Home Department [2016] EWCA Civ 705. 263 Immigration Rules para 276ADE(1)(iv). 264 Note 262 above at [102], per Elias LJ. 265 Ibid at [86]. 266 Ibid at [87]–[89].

70 Responsibility for Children’s Education to respect for private and family life is going to be interfered with by a decision and such interference is considered necessary in a democratic society for reasons of national security, public safety etc, the Court has to consider whether it is ‘proportionate to the legitimate end sought to be achieved’.267 This issue will require consideration of the ‘severity and consequences of the interference’.268 The impact on education in itself and as a facet of well-being will be highly relevant where a child is concerned. Even though, according to Lord Bingham, the proportionality defence would be expected to stand up to scrutiny save in a ‘small minority of exceptional cases’,269 the disparity between the level and quality of educational provision likely to have been received in the UK compared with the prospects in many other states from which asylum seekers tend to come makes this a key issue for asylum and immigration cases in which children have a high level of educational need. However, this disparity may otherwise not be sufficient to class a removal decision as disproportionate given that, as in other circumstances in which Art 8 is invoked in asylum claims,270 the courts have set a very high legal hurdle over which applicants must jump if they which to succeed. In Dbies and Ors v Secretary of State for the Home Department,271 for example, asylum had been refused to a Lebanese woman and her two young sons one of whom, T, had cerebral palsy and was attending a primary school with specialist support for children with physical disabilities. The adjudicator found that the medical facilities in the Lebanon would be adequate for T but noted that there would not be a level of educational support comparable to that in the UK. The adjudicator concluded, however, that while the Lebanese education system was not as ‘sophisticated’ as that in the UK this did not render the decision to return the family there disproportionate for the purposes of Art 8. The Immigration Appeal Tribunal (IAT) upheld the adjudicator’s decision. The Court of Appeal – noting that T would not have access to suitable educational facilities and would face a negative attitude towards his physical disabilities, making the matter ‘distressing’ – considered that although it was ‘a harsh result that [T] is likely to be deprived of the higher standard of educational support which he can expect in this country … that on the authorities does not constitute an exceptional case, sufficient to override immigration control’.272

267 R (Razgar) v Secretary of State for the Home Department [2004] UKHL 227, per Lord Bingham at [17]. 268 Ibid at [20]. 269 Ibid. 270 See in particular Huang and Ors v Secretary of State for the Home Department [2005] EWCA Civ 105; Anufrijeva and anor v Southwark London Borough Council; R (on the application of N) v Secretary of State for the Home Department; R (on the application of M) v Secretary of State for the Home Department [2003] EWCA Civ 1406; [2003] All ER (D) 288 (Oct). 271 [2005] EWCA Civ 584; [2005] All ER (D) 283 (May). 272 Ibid at [26].

The State’s Role in Supporting Access to Education 71 In conclusion, the case law clearly indicates a need for the evidence to show that the impact on the migrant child resulting from a change in educational arrangements and opportunities due to failure to be able to remain in the UK would be particularly deleterious before removal would be considered unlawful on the basis of disproportionality or unreasonableness. The state has a duty to uphold the right to access education for those in its territory who have claimed asylum, but an established need to retain such access may not be sufficient to establish a right to remain under immigration and asylum law.

E. Enforcement of Children’s Participation in Education i. Responsibility and the Problem of Truancy Included within the right to education provisions of the UNCRC is a duty on states to ‘take measures to encourage regular attendance at school and the reduction of drop-out rates’.273 The European Social Charter (ESC) similarly contains an undertaking by States Parties ‘to encourage regular attendance at schools’.274 Arguably the language of encouragement in each of these instruments does not necessarily imply legal enforcement; and the parent’s option under domestic law of home educating the child, as an alternative to sending him or her to school,275 lends relevance to the form of the injunction in both the UNCRC and ESC. Nevertheless, without effective enforcement of the parental duty to ensure their child receives a suitable education, at school or elsewhere, the state’s statutory duty to ensure the availability of educational provision for those of school age would not sufficiently guarantee children’s access to education. At the same time, as has been understood for some time,276 truancy cannot always be attributable to a parental failure but is strongly linked with social disadvantage resulting from a range of factors often outside families’ direct control, such as unemployment and debt. In recent years the need for a more holistic approach therefore to the kinds of multiple disadvantages which manifest in truancy, among other problems, has to some extent been recognised through the Troubled Families programme, established by the Coalition Government in 2010–15 and directed by Dame Louise Casey, targeting families meeting (at least) three of these four criteria: involvement in youth crime or anti-social behaviour; an adult on out of work benefits; causing high costs for the taxpayer; and having ‘children who are regularly truanting

273 UNCRC, Art 28.1(e). 274 European Social Charter (Revised), Art 17.2. 275 See EA 1996, s 7. 276 See, eg, P Carlen, Truancy: The Politics and Compulsory Schooling (Milton Keynes, Open University Press, 1992).

72 Responsibility for Children’s Education or not in school’.277 For phase 2 of the programme (2015–16 to 2020–21) intervention is dependent on the presence of any two out of six criteria: parent/child involved in crime/anti-social behaviour; children not attending school regularly; adult unemployment/risk of financial exclusion or young people at risk of worklessness; domestic violence/abuse; and health problems. The inter-relatedness of these and other problems experienced by almost 8,500 of the families for whom there was monitoring data up to the end of 2013 is illustrated by the quite high percentage (62 per cent) of the families who had experienced domestic violence and also had a truanting child. A possible explanation for this inter-relationship was that the child was ‘too afraid to go to school for fear of leaving their mother in the house when she is experiencing domestic violence’.278 Over half of the 8,500 families had a child with persistent unauthorised absence from school.279 (The DfE defines persistent absence as occurring when a child misses ten per cent or more of available school sessions.280) Under the first phase of the programme local authorities were offered up to £4,000 per family for tackling problems including ‘getting children from troubled families back into school’.281 (It was, however, expected that each local authority might have to find up to £6,000 per troubled family since the Department for Communities and Local Government estimated the full costs of successfully ‘turning around’ a family through intensive interventions would be £10,000.282) Regardless of this initiative, the fundamental principle of parental responsibility and its reflection in the parental duty to ensure the child is educated have continued and provide the focus for direct intervention by local authorities through school attendance enforcement processes in particular. The law requires the parent of a child of compulsory school age, which means between five years and sixteen years, to cause the child to receive – ‘either by regular attendance at school or otherwise’ – ‘efficient full-time education’ that is suitable ‘to his age, ability and aptitude’ and to ‘any special educational needs he may have’.283 It is assumed that most parents will fulfil this duty by sending their child to school, but they have the alternative of the ‘otherwise’ option. Generally, the latter will involve ‘elective home education’ and, as discussed in Chapter 8, there

277 Department for Communities and Local Government, Understanding Troubled Families (London, DCLG, 2014) 7. 278 Ibid, 13. 279 Ibid, 19. 280 DfE, Pupil Absence in Schools in England: 2016–2017 SFR 18/2018 (London, DfE, 2018) https:// assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/692406/ SFR18_2018_absence_text.pdf. 281 Department for Communities and Local Government (DCLG), Understanding Troubled Families (London, DCLG, 2014), 7. Note that under phase two of the programme only £1,800 is being made available per family. 282 National Audit Office, Department for Communities and Local Government, The Troubled Families Programme: Update (London, NAO, 2016) para 1.17. 283 EA 1996, s 7.

The State’s Role in Supporting Access to Education 73 are concerns about it which centre on children’s welfare and well-being and the lack of outside scrutiny of the arrangements. Whether or not the child is one of the overwhelming majority of children in England who are instead enrolled at a school, the parent is liable to enforcement action by the local authority if failing in their educative duty. The starting point, under the very well-established legal framework,284 would be a notice in writing served by the local authority requiring the parent to satisfy the authority within the period specified in the notice that the child is receiving suitable education.285 If the parent is unable to do this and the local authority considers that it is ‘expedient’ that the child should attend a school, the local authority must serve a ‘school attendance order’ on the parent, requiring the parent to cause the child to become a registered pupil at a school named in the order.286 The school named in the order must admit the child.287

ii. Prosecution and the Role of the Criminal Law It is a notable feature of school attendance law in England, and a reflection of the importance given to children’s participation in education, that there are several criminal offences under the EA 1996, prosecuted in each case by the local authority, attached to parental non-compliance with the applicable duties. One arises from failure to comply with a school attendance order. Under s 443, the defaulting parent will, unless able to prove that he or she is causing the child to receive suitable education otherwise than at school, be guilty of a criminal offence attracting, on summary conviction, a fine not exceeding level 3 on the standard scale (maximum £1,000).288 There are also two separate offences under s 444(1) and (1A) respectively, applicable to children who are registered at a school, which occur when the parent fails to ensure that their child attends ‘regularly’. The subs (1) offence requires merely the failure of regular attendance,289 whereas the subs (1A) offence, discussed in more detail below, requires the parent to have knowledge of the truancy. The former is a strict liability offence290 notwithstanding the potentially ‘hard results’ that can occur when, despite the best efforts of the parent, the child fails to attend school, the status of the offence being justified in policy terms by the overwhelming importance of school attendance

284 Based on that set out in the Education Act 1944, consolidated into the EA 1996 but with some important amendments under the Criminal Justice and Court Services Act 2000. 285 EA 1996, s 437(1). The period must be not less than 15 days: ibid subs (2). 286 Ibid, s 437(3). 287 Ibid, s 437(6). 288 Ibid, s 443. 289 Ibid, s 444(1). A child fails to attend if late (ie after the register closes): Hinchley v Rankin [1961] 1 WLR 421. 290 See Crump v Gilmore (1970) 68 LGR 56; Barnfather v London Borough of Islington Education Authority and the Secretary of State for Education and Skills [2003] EWHC 418 (Admin); [2003] ELR 263; and Hampshire County Council v E [2007] EWHC 2584 (Admin); [2008] ELR 260.

74 Responsibility for Children’s Education and the need to enforce a key parental responsibility.291 The maximum fine for the s 444(1) offence is £1,000, but on average fines are well below this level, at (in 2014) £172.292 There are statutory excuses for non-attendance, however. The child, if not a school boarder,293 is not to be taken to have failed to attend school regularly in any of the prescribed circumstances below: (a) Sickness or unavoidable cause. This excuse is based on the parent being able to prove294 on the balance of probabilities295 that the child was prevented from attending by ‘sickness or any unavoidable cause’296 – which has been held by the courts to require the sickness, which may include a mental illness such as anxiety,297 to relate to the child and not anyone else (such as a parent)298 and the unavoidable cause to be something more than ‘reasonable grounds’299 and amounting to ‘something of an emergency’.300 This is a restrictive approach which could potentially fail some parents of children with special educational needs where the child has developed an aversion to their particular education setting and fails to attend, unless the particular cause is classed as sickness-related.

291 R v Leeds Magistrates Court and Others [2005] EWHC 1479 (Admin); [2005] ELR 589 per Davis J at [23]. 292 Press Association (PA) figures cited in PA, ‘More parents in England prosecuted for taking children out of school’, The Guardian (online), 12 August 2015 at www.theguardian.com/education/2015/ aug/12/increase-parents-england-prosecuted-taking-children-out-of-school. 293 In the case of a boarder, the only permitted excuse for not attending regularly due to being absent from school without leave during term time is that the child was prevented due to ‘sickness or any unavoidable cause’: EA 1996, s 444(7). 294 See East Sussex CC v Philip [2019] 19 January 2019. 295 Somerset County Council v RS [2019] EWFC B12; [2019] ELR 364, per Jefford J at [7]. 296 EA 1996, s 444(2A). 297 Leeds Magistrates n 291 above per Davis J at [21]. In Somerset County Council v RS n 295 above, where, inter alia, it was alleged for the child that her absence due to lateness arose from anxiety about being in a class whose members included a child with whom she had fallen out and which was taught by that child’s mother, Jefford J stated (at [17]–[20]) that in the case of anxiety there needs to be medical evidence from a doctor or other medical practitioner that it amounts to a sickness in the pupil’s case and it must prevent his/her attendance at school. If applied to cases of non-attendance due to fear of bullying – a factor in many cases of non-attendance (R Epstein, G Brown and S O’Flynn, Prosecuting Parents for Truancy: who pays the price (Coventry, Coventry University, 2019) (published online at www.covrj.uk/prosecuting-parents/), 42–7) – a requirement for medical certification would seem overly strict. 298 Jenkins v Howells [1949] 2 KB 218. 299 Jarman v Mid-Glamorgan Education Authority (1985) The Times 11 February, per May LJ. 300 West Sussex County Council v E [2013] EWHC 1757 (Admin); [2013] ELR 561, per Hallett LJ at [25]. See also Bath and North-East Somerset District Council v Warman [1999] ELR 81 (it was not ‘unavoidable cause’ when a girl aged 15 stopped attending school when she left home to start living with her long-term boyfriend and failed to tell her mother where she was living) and R v Leeds Magistrates Court and Others [2005] ELR 589 (held, on the facts, that the magistrates had been entitled to find that a child was not absent due to unavoidable cause as a result of bullying).

The State’s Role in Supporting Access to Education 75 (b) Absence with leave or for a day of religious observance. Here the child’s absence must be with leave of the school301 or on ‘any day exclusively set apart for religious observance by the religious body to which his parent belongs’.302 The latter apparently ignores the possibility that the child may ascribe to a different faith to that of the parent or that a child may live with parents each of whom belongs to a different faith group. As regards leave of absence, further provision is made under regulations, which were amended in 2013 in an attempt to reduce the granting of leave for family holidays during term time. Such leave, according to the Taylor Report on school attendance, was being granted by some schools in order to ‘avoid confrontation’ with the parent.303 Prior to the amendment, the granting of leave itself was not exceptional, since the parent would be assured of receiving it ‘to enable [the pupil] to go away on holiday’ provided he or she gave advance notice and could cite any ‘special circumstances’ that warranted it,304 which was relatively easy. Only where more than 10 school days’ leave for holidays per school year was sought was the granting of it restricted to ‘exceptional circumstances’.305 The Taylor Report recommended making leave for term-time holidays in and of itself exceptional.306 According to the official statistics on pupil absence from schools in England, family holidays accounted for as many as 11.4 per cent of all school absences in 2012/13.307 The Government perceived the law to be considered by schools to provide ‘an automatic entitlement to a two-week term time holiday’.308 Following the 2013 amendments, any leave could only be granted on the basis of ‘exceptional circumstances relating to [the] application’.309 According to the DfE,310 this change in the law lay behind the fall to 8.5 per cent in the proportion of absences that were due to family holidays in 2013/14.311 It was considered ‘unlikely’ that parents would now receive leave for their

301 That is, ‘leave granted by any person authorised to do so by the governing body or proprietor of the school’: EA 1996, s 444(9). This will be the head teacher or proprietor: see below. 302 EA 1996, s 444(3). 303 C Taylor, Improving Attendance at School (London, DfE, 2012) para 14. 304 Education (Pupil Registration) (England) Regulations 2006 (SI 2006/1751) reg 7(3). 305 ibid, reg 7(4). 306 Taylor n 303 above, para 18. 307 Department for Education, Pupil Absence in Schools in England: 2012 to 2013 (Department for Education, SFR 09/2014, 2014). 308 Explanatory Memorandum to the Education (Pupil Registration) (England) (Amendment) Regulations 2013, (2013 No 756), and the Education (Penalty Notices) (England) (Amendment) Regulations 2013 (2013 No 757, 2013). 309 Education (Pupil Registration) (England) (Amendment) Regulations 2013, SI 2013/756, inserting a new reg 7(1A) into SI 2006/1751 (n 304 above) and revoking regs 7(3) and (4). 310 Press Association, ‘Ban on Term Time Holidays Should Be Overturned, Say Council Leaders’, The Guardian (online) 24 October 2014) www.theguardian.com/education/2014/oct/24/ ban-term-time-holidays-should-be-overturned. 311 DfE, Pupil Absence in Schools in England: 2013 to 2014, SFR 10/2015 (London, DfE, 2015).

76 Responsibility for Children’s Education child’s absence for a family holiday.312 The proportion of absences due to family holidays fell further, to 7.5 per cent, in 2014/15.313 The Chief Inspector of Schools nevertheless complained that there were still ‘too many parents taking their children out in term time’.314 Indeed, the rate increased in 2015/16 to 8.2 per cent, but the autumn term of 2016 saw a surge in which there were a third more holiday-related absences than in the previous autumn term and, moreover, three-quarters of the absences were unauthorised,315 meaning that many parents were prepared to defy the law despite the risk of incurring a fine, because the saving in holiday prices during term-time made family trips (more) affordable. It seems highly likely that many of these defiant parents were emboldened by the highly publicised decision of the Divisional Court in Isle of Wight Council v Platt in May 2016,316 holding that magistrates were entitled to take account of attendance outside the period of unauthorised absence in determining whether the child’s overall percentage attendance was such that she had attended school ‘regularly’.317 It was, said the court, necessary to look beyond the period of absence and have regard to the ‘wider context of attendance’.318 In this case the child’s overall attendance rate was 90.3 per cent and this was considered sufficiently high to be regarded as ‘regular’ attendance. It was reported that in consequence of the ruling some local authorities decided not to issue penalty notices or bring prosecutions against parents guilty of taking their children on holiday without leave.319 With the Schools Minister nevertheless urging local authorities to continue to apply the regulations and decide cases on their merits,320 there was a degree of confusion surrounding the issue. It was finally resolved by the UK Supreme Court’s ruling in the case in April 2017.321 The withdrawal of the child, aged just under seven at the material time, from school for seven days without leave

312 DfE, School Attendance. Departmental Advice for Maintained Schools, Academies, Independent Schools and Local Authorities (Department for Education 2014) 16. 313 DfE, Pupil Absence From Schools in England: 2014 to 2015 SFR 10/2016 (London, DfE, 2016). 314 S Griffiths, ‘Go Higher, Says Ofsted Chief, as £60 Fines Fail to Deter Term Time Holidays’, The Sunday Times, 19 July 2015, at www.thetimes.co.uk/article/go-higher-says-ofsted-chief-as-pound60fines-fail-to-deter-term-time-holidays-6dwkc5xh8j7. 315 DfE, Pupil Absence in Schools in England: 2015 to 2016 SFR 14/2017, (London, DfE, 2017); DfE, Pupil Absence in Schools in England: Autumn Term 2016 SFR 20/2017 (London, DfE, 2017). 316 [2016] EWHC 1283 (Admin); [2016] ELR 268. 317 Ibid, [22] per Lloyd-Jones LJ. 318 ibid, [21]. 319 See R Adams, ‘Unauthorised Term-Time Holidays Soar in England after Legal Challenge’, The Guardian (online), 18 May 2017 www.theguardian.com/education/2017/may/18/unauthorised-termtime-holidays-soar-in-england-after-legal-challenge. 320 See R Adams, ‘Minister Tells Schools to Ignore High Court Ruling on Term-Time Holidays’, The Guardian (online), 9 June 2016 www.theguardian.com/education/2016/jun/09/minister-tellsschools-to-ignore-high-court-ruling-on-term-time-holidays. 321 Isle of Wight Council v Platt [2017] UKSC 28; [2017] 1 WLR 1441; [2017] ELR 413.

The State’s Role in Supporting Access to Education 77 of absence for a family holiday during term time led to the father, Mr Platt, receiving a fixed penalty notice. After refusing to pay the £60 fine within the required 21 days his fine was increased to £120, as per the regulations, but he did not pay that either and was prosecuted under s 444(1) above. The magistrates found there was no case to answer, accepting the argument that the child’s overall attendance during the year had been sufficient to meet the requirement of ‘regularly’ attending. Mr Platt must clearly have felt vindicated by this ruling. Media reports portrayed him as an advocate for a point of principle on parental autonomy. For example, he is quoted in an ITV report as saying: ‘I cannot allow a local education authority to tell me what is right for my kids – I know what is best for my kids’.322 Following its ruling upholding the magistrates’ decision the Divisional Court certified a point of law of general importance for the Supreme Court’s decision, based on the issue of what amounted to regular attendance for s 444(1) purposes. The Supreme Court overturned the ruling, declaring that for these purposes ‘regularly’ meant ‘in accordance with the rules prescribed by the school’323 rather than less strict alternatives such as ‘at regular intervals’ and ‘sufficiently frequently’.324 It was considered that that was consistent with the statutory purpose of reinforcing the importance of ensuring one’s child’s attendance at school and with the need for schools to be managed effectively and without the disruptive effect of frequent pupil withdrawals. It was also consistent with other elements of the legislation – such as the existence of a specific excuse where regular attendance was prevented by the child’s absence on a day of religious observance (above), which implied that without it a child’s ‘absence on a single day would be a failure to attend regularly’.325 The Supreme Court ordered the remission of the case to the magistrates with a direction that they should proceed on the basis of rejecting that there should be considered no case to answer. In the Supreme Court’s judgment (given by Lady Hale) the fixed penalty notice given to Mr Platt was held to be legitimate and he was liable for a breach of s 444(1) unless able to show that a statutory exception applied.326 It was reported that following the Supreme Court’s ruling Mr Platt was convicted at Isle of Wight Magistrates Court in June 2017, receiving a conditional discharge and a £2,000 fine with a £20 surcharge.327 322 ITV Report, ‘Man Wins Court Fight Over £120 Fine For Taking Daughter on Holiday in Term Time’ (ITV, 19 October 2015), www.itv.com/news/meridian/2015-10-19/man-wins-court-fight-over120-fine-for-taking-daughter-on-holiday-in-term-time/. 323 Platt n 321 above at [48]. 324 The latter interpretation being supported by London Borough of Bromley v C [2006] ELR 358 and Crump v Gilmore (1970) 68 LGR 56, but Lady Hale said that they should not be followed on this issue. 325 Platt n 321 above at [35]. 326 Ibid at [49]. 327 Telegraph Reporters, ‘Father who Took Daughter on Term-Time Holiday to Disney World Found Guilty after Long-Running Legal Battle’, The Telegraph, 23 June 2017 (online) www.telegraph.co.uk/ news/2017/06/23/father-took-daughter-term-time-holiday-disney-world-found-guilty/.

78 Responsibility for Children’s Education Surprisingly, rather than falling, the proportion of absences that are due to family holidays has increased since the Supreme Court’s ruling. Just under 12 per cent of all absences in 2017–18 were due to ‘family holiday not agreed’.328 A further 2.1 per cent of absences were for holidays with leave of the school,329 lower than the rate the previous year and probably indicative of the application by schools of a stricter test on granting leave. Many parents still seem willing to break the law – a BBC investigation reported that ‘some parents say they actively budget for the cost of fines when planning holidays’.330 Some parents contemplating a holiday withdrawal have apparently considered the possibility of advancing an ECHR Art 8 claim on the basis that taking a family holiday could be covered by the right to private and family life.331 The point was not, however, advanced in Platt and that must have been wise. When Williamson was before the Court of Appeal, Buxton LJ said (Rix LJ and Arden LJ concurring): ‘children do not go to school simply because of a decision taken by their parents, but in pursuit of an obligation imposed on the parents by the State to cause their children to be educated: an obligation that could not possibly be said to be inconsistent with art 8’.332 Moreover, in Costello-Roberts v United Kingdom,333 another corporal punishment case, the European Court of Human Rights commented that ‘the sending of a child to school necessarily involves some degree of interference with his or her private life’. That would surely apply to adherence to the rules governing attendance at school as much as it applies to the disciplinary authority of a school. The way that the child’s best interests in attending school may justify interference with parental rights under Art 8 was further underlined recently by the Court of Human Rights in Wunderlich v Germany,334 discussed below. (c) Local authority failure to arrange travel or boarding accommodation. The parent will have an excuse for the child’s non-attendance where the local authority has failed to discharge a duty to make travel arrangements for the child to facilitate the child’s attendance at school;335 or, if the school is an independent

328 DfE, Pupil absence in schools in England: 2017 to 2018, National and local authority tables, table 2.1, www.gov.uk/government/statistics/pupil-absence-in-schools-in-england-2017-to-2018. 329 Ibid. 330 L Cawley, ‘Parents fined £24m for children’s truancy and term time holidays’, BBC News report 15 Mar 2018, www.bbc.co.uk/news/uk-england-43254495. 331 See S Griffiths, ‘Father Takes School Holiday Row to Europe’, The Sunday Times, 15 May 2016; Local Government Association, Press Release, ‘Common Sense Approach to holidays is Needed’, 21 Oct 2015. 332 R (Williamson) v Secretary of State for Education and Employment [2002] EWCA Civ 1926, [2003] QB 1300, at [82]. 333 Application No 89/1991/341/414, [1994] ELR 1. 334 Application No 18925/15, decision of 10 January 2019, [2019] ELR 149. 335 EA 1996, s 444(3A)–(3C). The travel arrangements in question are required under EA 1996, ss 508B and 508E read with Schs 35B and 35C and relate to children with special educational needs and/or disabilities.

The State’s Role in Supporting Access to Education 79 school and not within ‘walking distance’ of the child’s home,336 to enable the child to be registered at a school nearer his/her home or to make arrangements for boarding accommodation for him/her at or near the school.337 Additionally, there is a defence (rather than an excuse, although it amounts to the same thing) for the parent in relation to a child who is of ‘no fixed abode’: (d) Child of no fixed abode due to parent’s itinerant trade/business. It is a defence if the parent is able to prove that he or she is in an itinerant trade or business, the child attends school as regularly as the nature of that trade or business permits, and if the child has reached the age of six the child has ‘made at least 200 attendances’338 during the 12 months prior to the issuing of proceedings against the parent.339 The DfE’s guidance to schools on school attendance indicates that this defence is aimed at Gypsy, Roma and Traveller children’s absence from school,340 although the House of Commons Women and Equalities Committee found recently that only a minority of children from these communities are travelling with a parent due to the parent’s work.341 The attendance guidance provides for schools to use the prescribed national codes indicating categories of absence when maintaining school registers; one of the codes (‘T’) relates specifically to such children whose family are ‘known to be travelling for occupational purposes’. The guidance indicates the expectation that to ensure ‘continuity of education’ for such children they should be dual registered at their ‘main school’ and at a school in the area where the family is working.342 As discussed below, Gypsy, Roma and Traveller children have on average the lowest recorded levels of school attendance of any specific social or ethnic group. All of the excuses in (a)–(d) above are also applicable to the offence under s 444(1A), which is the more serious offence – in the sense of carrying a greater maximum punishment, including possible imprisonment for up to three months.343 336 ‘Walking distance’ is defined as two miles for a child aged under 8 and three miles for an older child, measured by the ‘nearest available route’: EA 1996, s 444(5). 337 EA 1996, s 444(3D)–(3E). 338 This presumably refers to sessions attended, on the basis that each day has two sessions. Attendances have to be recorded once at the commencement of the morning session and once in the afternoon on each school day: SI 2006/1751 n 304 above, reg 6(1). 339 EA 1996, s 444(6). 340 DfE, School Attendance. Guidance for maintained schools, academies, independent schools and local authorities (September 2018), https://assets.publishing.service.gov.uk/government/uploads/system/ uploads/attachment_data/file/739764/Guidance_on_school_attendance_Sept_2018.pdf. 341 House of Commons Women and Equalities Committee, Tackling inequalities faced by Gypsy, Roma and Traveller communities, Seventh Report Session 2017–19 (HC 360) (2019), para 57. 342 DfE guidance n 340 above. 343 A fine of up to level 4 (£2,500) and/or up to three months’ imprisonment (EA 1996, s 444(8A)), whereas, as noted above, the basic offence under s 444(1) has a maximum punishment on conviction of a level 3 fine (£1,000) (EA 1996, s 444(8)). The maximum punishment would be increased to 51 weeks’ imprisonment in subs (1A) cases if the C riminal Justice Act 2003, Sch 26, para 49 is ever brought into force.

80 Responsibility for Children’s Education This offence relates to where the parent ‘knows that his child is failing to attend regularly at the school and fails to cause him to do so’.344 The introduction of this separate offence, with its higher penalty levels, represents part of a broader attempt to tackle the persistently high levels of truancy in themselves but also the more specific problem of truancy which is condoned or tolerated by the parent. However, even where the parent had this knowledge and none of the statutory excuses applies he or she can still avoid conviction if able to prove there was ‘a reasonable justification’ for the failure.345 The insertion of this burden of proof, in November 2006,346 was clearly intended to counter the effect of Collins J’s ruling earlier that year in which he held that as Parliament had not chosen to prescribe such a burden none should be inferred.347 He said that if evidence which could support a reasonable justification was put forward it was a matter of judgment for the magistrates on the facts as to whether they were satisfied (to the criminal law standard) that there was no reasonable justification which would prevent them from convicting. If the defence to a s 444(1A) prosecution succeeds, it will not however absolve the parent of liability for the basic strict liability offence under s 444(1).348 The question of whether prosecution is an appropriate mechanism for addressing truancy hinges in part on its effectiveness, relative to alternative strategies, in preventing it and limiting recidivism. A majority of local authorities seem to believe it is effective, although more so in some cases than in others (maximum effectiveness is perceived as related to prosecution being pursued quickly and/or in cases involving younger children).349 However, inevitably questions of cost-effectiveness also arise. As discussed below, some of the alternatives, such as education supervision orders, could involve greater expense for local authorities, while others, such as penalty notices, involve much less. However, the impact of prosecution on those subjected to it is also important. Since many of the families of the most persistent truants are among those with the most acute social disadvantages, the added pressure of a criminal sanction and financial penalty may exacerbate difficult family circumstances that have contributed to the child’s disengagement from school and the onset or persistence of the truancy.350 A further issue is the tendency for school attendance

344 EA 1996, s 444(1A). 345 Ibid, s 444(1B). 346 Via the EIA 2006. 347 R (P) v Liverpool City Magistrates [2006] EWHC 887 (Admin); [2006] ELR 386. 348 EA 1996, s 444(8B): ‘If, on the trial of an offence under subsection (1A), the court finds the defendant not guilty of that offence but is satisfied that he is guilty of an offence under subsection (1), the court may find him guilty of that offence.’ 349 See eg S Kendall, R White and K Kinder, School attendance and the prosecution of parents: perspectives from education welfare service management (Slough, NFER, 2003), 38–42. The professionals interviewed were principal EWOs and other staff from education welfare sections. 350 See Carlen (1992) n 276 above; National Audit Office, Improving School Attendance in England (HC 212) (London, The Stationery Office, 2005); Epstein et al n 297 above, 52.

The State’s Role in Supporting Access to Education 81 enforcement action to be pursued almost exclusively against female parents, not only because they are more likely to be the carer after a relationship breakup but also because of assumptions about the main carer being the mother.351 This gendered response to truancy again increases the pressure on those already under strain and may relieve the father of a responsibility which in law he may share with the mother. In any event, many local authorities consider the fines on conviction to be too small to have a deterrent effect. Moreover, the action is taken against the parent and so the child is not directly affected, which probably accounts for the ‘lack of concern by pupils about the possibility of prosecution’ that was reported by Crowther and Kendall.352

iii. A Participation Duty It is perhaps surprising that despite an increasing policy emphasis on the responsibility of children and young people for their own behaviour little has been done to increase their accountability for not attending school. Schools were under a duty to encourage parents to sign a (non-legally-binding) home-school agreement but also to invite the child to sign if they had ‘sufficient understanding’ of it as it related to him/her, as ‘an indication that he acknowledges and accepts the school’s expectations of its pupils’353 (interpreted as referring to school attendance as well as other matters such as behaviour). However, this duty was revoked by a measure designed to cut down some minor areas of regulation affecting schools.354 Nonetheless, a degree of responsibility to participate in education (or training) has been introduced for those over compulsory school age via measures contained in Part 1 of the Education and Skills Act 2008,355 although there is currently no enforcement mechanism.356 The 2008 Act places a duty on local authorities to promote such participation among those lacking a level 3 qualification and to identify those who are not participating. Initially applicable to 17 year olds, it was extended to 18 year olds in 2015. This reform forms a

351 J Donoghue, ‘Truancy and the prosecution of parents: an unfair burden on mothers?’ (2011) 74(2) MLR 216; S Jones, ‘A last resort? The prosecution of parents for their child’s truancy’ (2014) 26 CFLQ 322. Epstein et al (n 297 above, 6) note that 71% of the parents prosecuted for truancy offences in England and Wales in 2017 were women, as were nine of the ten parents whose conviction led to an immediate custodial sentence. 352 K Crowther and S Kendall, Investigating the use of Parental Responsibility Measures for School Attendance and Behaviour: Final Report, DfE Research Report DFE-RR041 (London, DfE, 2010) para 5.76. 353 SSFA 1998, s 110(5) and see ss 110 and 111 as to these agreements generally. 354 See the Deregulation Act 2015, Sch 16, para 2(1). 355 As amended by the Apprenticeships, Skills, Children and Learning Act 2009 (Consequential Amendments to Part 1 of the Education and Skills Act 2008) Order 2013 (SI 2013/1242). 356 Unimplemented provisions in the Act would enable an attendance notice to be served on a nonparticipating young person with a right of appeal to an attendance panel. Penalty notices would be possible for non-compliance with the notice with conviction for a level 1 offence if the penalty notice is not complied with.

82 Responsibility for Children’s Education major part of the strategy to address the numbers of so-called ‘NEETS’ – young people not in education, employment or training. Since these measures in the 2008 Act were introduced there has only been a tiny improvement in the education or training participation rate among this age group, which stood at 86 per cent at the end of 2017.357 At the same time, there has been a fall since 2012 in the proportion of the age group comprising NEETS from approximately 8.5 to 6.3 percent,358 but this seems mainly to be due to an increase in employment. It seems likely that further improvement in the education and training participation rate may hinge partly on the provision of better financial support for young people following the abolition of education maintenance allowances by the Coalition Government and their replacement by ‘16-19 bursaries’ administered by educational institutions.359 These bursaries are of up to £1,200 and are for specific vulnerable groups (including those in care or care leavers and those entitled to disability benefits). There is also discretionary support for other students to cover prescribed expenses such as books, transport and equipment costs. Research by Britton and Dearden, which also explains the background to the reform, has shown how a fall in the post-16 participation rate in full-time education between 2011 and 2013 was in part attributable to the recent ending of educational maintenance allowances (EMAs)360 and demonstrates the important of the link between financial support and participation, particularly among those from poorer households.361

iv. Parenting Contracts and Parenting Orders It is important to place the anti-truancy measures first adopted during the New Labour years post 1997 in the context of the significant policy emphasis on parental responsibility more generally – including, in the duty, noted above, placed on parents of excluded children to ensure that their child was supervised at home during their initial five days of exclusion. Introduced during that period, under the Anti-social Behaviour Act (ASBA) 2003,362 were parenting contracts and

357 Department for Education, Participation in Education, Training and Employment by 16–18 Year Olds in England: End 2017 (DfE, 2018) https://assets.publishing.service.gov.uk/government/uploads/ system/uploads/attachment_data/file/718463/Main_text_participation_2018.pdf. 358 Ibid. 359 See P Wintour, ‘Michael Gove announced cut price replacement for EMAs’, The Guardian (online) 28 March 2011, www.theguardian.com/politics/2011/mar/28/gove-unveils-cutprice-replacement-emas. 360 EMAs were first introduced in 1999 on a pilot basis and rolled out nationally five years later. Research showed that it had a positive impact on the participation rate among those aged 16 plus: S Middleton et al, Evaulation of the Educational Maintenance Allowance Pilots: Young People Aged 16–19 Years. Final Report of the Quantitative Evaluation, DfES Research Report RR678 (London, DfES, 2005). EMAs were in effect a means-tested form of support, with the weekly amounts payable to the young people set at £10, £20 or £30 depending on household income of up to £30,000. 361 J Britton and L Dearden, The 16 to 19 Bursary Fund: Impact Evaluation (London, DfE, 2015). 362 Anti-social behaviour Act 2003, ss 19, 20, 21, 22 and 22A.

The State’s Role in Supporting Access to Education 83 parenting orders. Parenting contracts are voluntary arrangements, in the sense that the parent must agree to be bound by the contract, in which the parent whose child truants agrees with the local authority to receive guidance and/or counselling intended to ameliorate the problem with the support of the school or local authority. Parenting orders, on the other hand, are made by a court on the application of the local authority and may be imposed for up to twelve months, requiring the parent to undertake a programme lasting up to three months aimed at helping them manage their child’s attendance at school and avoid absence. Research has indicated that local authorities regard parenting contracts to be effective in improving children’s attendance but that their utility will obviously hinge on parental willingness to participate, while the more well established the child’s pattern of non-attendance the less successful the contract is likely to be.363 Parenting contracts are used fairly frequently, but parenting orders in truancy cases are not common, probably because they are considered unlikely to achieve their objective where the parent is uncooperative or either unable or unwilling to address their child’s truancy. There has been a steady fall in the numbers of parenting orders in cases of unauthorised absence, from 439 in 2010–11 to 192 in 2015–16, 179 in 2016–17 and just 153 in 2017–18.364 One factor is likely to be a perception among local authorities that they are not effective in improving attendance, particularly when non-attendance is entrenched.365 But use of parenting contracts has also declined overall over the past decade. A total of 25,852 were initiated by local authorities in 2009–10 but the numbers fell to 18,319 in 2015–16 and 17,104 in 2016–17, although rose to 19,234 in 2017–18 (of which 73 per cent were agreed to by parents).366

v. Penalty Notices Reference was made earlier, in the context of the Platt case, to penalty notices, also introduced under ASBA 2003.367 They may be issued by a police officer, authorised officer of the local authority or a head teacher (or member of school staff authorised by the head teacher) to a parent when there is reason to believe that an offence under s 444(1) (above) has been committed. The parent then has 21 days in which to pay the fixed penalty of £60, after which if it is still unpaid the penalty

363 M Zhang, ‘School Absenteeism and the Implementation of Truancy-Related Penalty Notices’ (2007) 25(4) Pastoral Care in Education 25–34; Crowther and Kendall (2010) n 352 above, ch 6. 364 DfE, Parental Responsibility Measures in England: 2016 to 2017, SFR 17/2018 (London, DfE, 2018), 5, DfE, Parental Responsibility Measures for Attendance: 2017 to 2018 (DfE, 2019), Table 6: www.gov.uk/ government/statistics/parental-responsibility-measures-2017-to-2018. 365 Crowther and Kendall (2010) n 352 above, paras 57–59. 366 Ibid and DCSF, 2010 Parental Responsibility Measures Data (London, DCSF, 2010), DfE (2019) n 364 above, Table 6. 367 Anti-social behaviour Act 2003, s 23, inserting ss 444A and 444B, EA 1996; and the Education (Penalty Notices) (England) Regulations 2007 (SI 2007/1867), as amended.

84 Responsibility for Children’s Education increases to £120 and must be paid within a further week (ie 28 days from being first issued). Payment of the penalty will prevent any liability to be convicted of an offence under ss 444(1) or (1A). Three-quarters of the penalty notices were paid within 28 days in 2017–18, up from two-thirds in 2016–17.368 The improved compliance rate is perhaps partly indicative of an increased acceptance by some parents of the penalty as a financial cost incurred in order to benefit from lower holiday prices. Although these may be regarded as relatively modest penalties, parents taking several children on a family holiday without leave of absence could be liable to a large overall fines total. The penalty rates were last increased to their current level in 2012 from their original rate of £50 and £100 respectively. In addition to recommending these increases, the Government’s advisor Charlie Taylor also proposed that unpaid amounts should be recoverable from parents via their child benefit.369 The Government announced the adoption of such a strategy in 2015.370 However, this policy has not been implemented. Before it considers introducing it, however, it would be instructive for the Government to have regard to the European Committee of Social Rights’ ruling in EUROCEF v France.371 The complaint arose out of the provision under French law for the possible suspension of payment of family allowances or supplement in cases where a child’s truancy persists despite the issuing of a parental responsibility contract to the parent. It was contended that this law conflicted with the right of the family to social, legal and economic protection under Art 16 of the ESC and the right to protection against poverty and social exclusion under Art 30. The Committee considered that the suspension of their benefits would make the family’s social and economic situation ‘more vulnerable’ and that there was no evidence that it would help to ensure the child’s attendance at school. The Committee therefore concluded that it was not a proportionate measure having regard to the aim of Art 16 of protecting families from social and economic vulnerability due to economic hardship. This aspect of the ruling must raise serious questions about whether the proposed recoupment of penalties via child benefit in the UK would be consistent with the ESC, to which the UK is a party (although has not accepted the Additional Protocol Providing for a System of Complaints).372 The Committee rejected the Art 30 aspect of the complaint, however, since the benefits in question were only supplementary and it was necessary to look at wider picture of the availability of state support against poverty.373

368 DfE (2019) n 364 above, table 2 and DfE (2018) n 364 above, 4. 369 C Taylor, Improving Attendance at School (London, DfE, 2012), R.11. 370 HM Treasury, ‘Government announces Child Benefit deductions in tougher approach to truancy’, 6 Oct 2015. 371 European Committee for Home-Based Priority Action for the Child and the Family (EUROCEF) v France Complaint No 82/2012 (2013) 57 EHRR SE21. 372 The Additional Protocol enables complaints to be brought to the Committee of Social Rights by non-governmental organisations which have participatory status with the Council of Europe. EUROCEF is such an organisation. 373 EUROCEF n 371 above, paras 42, 43 and 58–60.

The State’s Role in Supporting Access to Education 85 A large number of these truancy penalty notices are issued. As table 2.1 below shows, there was an upward trend in their numbers from 2009–10 to 2015–16, but then a fall of over five per cent the following year, which the DfE attributes to the High Court’s ruling in Platt (above).374 However, there was a surge in 2017–18, with the numbers increasing by 75 per cent on the previous year. It followed the Supreme Court’s ruling in the case. The DfE consulted with six local authorities with high rates of penalty notices and all six cited the ruling as instrumental in the increase.375 Table 2.1 Penalty notices for non-attendance issued in England, years from 2009–10 to 2017–18376 2009/10 2010/11 2011/12 2012/13 2013/14 2014/15 2015/16 2016/17 2017/18 25,657

32,641

41,224

52,370

98,259

151,125 157,879 149,321 260,877

The official figures do not indicate whether or not it is the local authority which has issued the penalty notice, although there has been evidence in the past that schools are reluctant to issue them.377 Unauthorised family holiday absences accounted for 77.5 per cent of all the penalty notices issued in 2016–17,378 rising significantly in 2017–18 to 85.4 per cent.379 As noted above, parents seem increasingly willing to breach the law in order to obtain cheaper holidays, demonstrating the apparent ineffectiveness of the penalties as a deterrent against such behaviour. Less than one in ten penalty notices end up with a prosecution, which reflects the scale of compliance with them.380 They are not a pre-requisite to prosecution for a s 444 offence and prosecutions can occur without a prior penalty notice. As to their impact on truancy, the evidence suggests that it generally results in a short-term improvement but that this is often not sustained over the longer term.381

vi. ‘Fast Track’ Another mechanism first introduced at the time when penalty notices and parenting contracts and orders were first employed in truancy cases was ‘Fast Track’, described as ‘a non statutory time-focused attendance case management intervention, specifying clear actions for improvement’, with prosecution held 374 Ibid. 375 DfE, Parental Responsibility Measures in England: 2017 to 2018 (London, DfE, 2019), 3, at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/ 787632/2019_PRMA_text.pdf. 376 Source: DfE (2018) n 364 above fig.1 and DfE (2019) n 364 above table 2. 377 Zhang n 371 above. 378 DfE (2018) n 364 above, 3. 379 DfE (2019) n 375 above, 1. 380 DfE (2019) n 364 above, table 4. 381 Crowther and Kendall n 352 above, paras 52–53.

86 Responsibility for Children’s Education back on condition of an appropriate parental response.382 In Fast Track the school or local authority will specify to the parent the action and improvement in attendance considered necessary and the timeframe in which it should occur, usually a period of 12 weeks. If the pupil’s attendance continues to be an issue, prosecution proceedings are then initiated. It is particularly favoured by local authorities with high rates of persistent absenteeism among those of secondary school age.383 Fast Track is a form of attendance case management (ACM) system. The DfE has described the common features of ACM (carried out by schools and, where relevant, local authorities) as including: regular monitoring and follow-up of absence, identification of underlying causes of absence or mitigating circumstances, engagement with parents to prompt them to focus on their responsibilities to ensure their child’s regular attendance at school and application of sanctions, for example prosecution, if improvements are not made within an agreed time-frame.384

The total number of recorded cases entering the ACM system in 2017–18 was 86,045; 46,921 cases were withdrawn from ACM before prosecution, with improved attendance being the reason for withdrawal in 35,326 of them; and 10,961 ACM system cases were prosecuted.385 In Crowther and Kendall’s survey of local authorities’ use of these various measures, ‘Fast Track was viewed as being the most effective measure in achieving long term, sustainable impacts on attendance’, provided it was used early and before truancy became too entrenched.386 This was also reflected in Halsey et al’s early study of Fast Track, which also found the process less effective in terms of improving attendance where there were prevalent behavioural, family and social issues.387 Crowther and Kendall note that the impact of Fast Track without the necessity of prosecution stemmed from the way that the threat and potential consequences of being taken to court, and the increased realisation of the seriousness of their child’s truancy problem, were sufficient to trigger an increased parental effort to ensure the child’s attendance improved.

vii. Education Supervision Orders Unfortunately, the mechanism least employed by local authorities offers the best hope of sustained attendance, because it focuses more on the underlying cause 382 Ibid, para 3. 383 Ibid, para 12. 384 DfE, A guide to parental responsibility measures statistics (DfE, 2018), 7, https://assets. publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/692654/Guide_ to_parental_responsibility_measures_statistics.pdf. 385 DfE (2019) n 364 above, table 5, www.gov.uk/government/statistics/parental-responsibility-meas ures-2017-to-2018. 386 Crowther and Kendall (2010) n 352 above, para 6.29. 387 K Halsey et al, Evaluation of Fast to Prosecution for Non-Attendance, Research Report RR567 (London, DfE, 2004).

The State’s Role in Supporting Access to Education 87 of the truancy and how to address it with a degree of support, the education supervision order (ESO). These orders may be applied for by local authorities under the Children Act 1989 (although not in the case of a child who is in their care). The Education Act 1996 requires authorities to consider, before instituting criminal proceedings for an offence of non-attendance or breach of a school attendance order, whether to apply for an ESO instead of or as well as prosecuting.388 Additionally, a court convicting for one of those offences has a power to direct the local authority to apply for an ESO unless the authority feels that the child’s welfare will be satisfactorily safeguarded without an ESO.389 An ESO may be made by the court where it is satisfied that the child is of compulsory school age and ‘is not being properly educated’, namely not receiving a full-time education suitable to his or her age, ability and aptitude and (if there are any) special educational needs.390 Under the 1989 Act, if a child is the subject of a school attendance order or is not attending school regularly it must be assumed that he or she is not being properly educated, unless the contrary is proved.391 An ESO has effect for one year, although the duration can be extended,392 and it places the child under supervision. The supervisor is an officer of the local authority in the area of education welfare or children’s services and his/her role is to ‘advise, assist and befriend’ the supervised child and his/her parents and give directions to them, with a view to the child being ‘properly educated’.393 Any school attendance order is suspended while the ESO is in force as is the local authority’s duty to have regard to the principle of educating the child according to the parent’s wishes.394 This reinforces the authority of the education supervisor to direct how the child is to be educated. A direction is enforceable in the sense that if there ‘persistent’ failure to comply with it an offence punishable by a fine is committed, although there are prescribed defences including that the direction is unreasonable or reasonable steps have been taken with a view to complying it.395 Only 90 ESOs were made in England in 2016–17. All but two of the ESOs were issued in place of prosecution. Only 22 of 152 local authorities had issued any and only Sefton and the Isle of Wight had more than ten. There were none issued in the West Midlands or the North-East of England.396 ESOs are likely to involve much greater expense for local authorities than their preferred

388 EA 1996, s 447(1). 389 Ibid, s 447(2) and (2A). 390 Children Act 1989, s 36(3), (4) and (6). 391 Ibid, s 36(5). 392 Ibid, Sch 3, para 15. 393 Ibid, para 12(1). 394 Ibid, para 13. 395 Ibid para 18. The offence carries a maximum punishment on conviction of £1,000. 396 DfE (2018) n 364 above, table 7. The DfE states that the number of ESOs per authority was collected on a voluntary basis in this, the first year of such collection. It could therefore be the case that the overall recorded total underrepresents the true number, but one cannot be certain.

88 Responsibility for Children’s Education option of a penalty notice and possible prosecution at a time when resources are becoming ever tighter.397 Moreover, their added value and cost-effectiveness are unproven. They nonetheless seem desirable for cases of persistent truancy which are particularly likely to arise among the disadvantaged families targeted by the Troubled Families initiative referred to above. Indeed, in a sense the ESO seems well fitted to the methodology of the programme, which refers to working with families rather than individuals, ‘developing a relationship with the family, being persistent and building trust with them in order to challenge them to make the changes they need to’.398 As Newvell explains, the ESO ‘differs from criminal justice approaches in recognising that, for some families, a prolonged period of support and guidance is needed if problems are to be resolved.’399 However, for families with multiple problems, where persistent truancy is most likely, a much more holistic approach than the ESO may be needed, as the Troubled Families initiative seems to indicate: ‘Public services tend to work with individuals and single problems, but with troubled families it is necessary to look beyond the presenting or dominating problem of one individual and instead look across the family to identify what is happening with them as a whole.’400 Local authorities have been left to develop their own approaches to working with troubled families but have been encouraged to provide each with a key worker and work co-operatively with other local agencies in supporting the families.401 Government has proclaimed this approach a success by the end of the first phase of the Troubled Families programme, with ‘105,000 families with truanting children back in school for three consecutive terms’ by 2015.402

viii. Reflections on the Effectiveness of the State’s Response to Truancy Despite the various measures that have been undertaken since the mid-2000s to tackle truancy, rates of unauthorised absence have increased, from 1.0 per cent in 2006–07 to 1.3 per cent in 2016–17 and 1.4 per cent in 2017–18, this being ‘the highest rate since records began’.403 Of the unauthorised absences in 2017–18, 54 per cent related to persistent absence.404 What these figures and those cited earlier in relation to holiday absences show is how resistant the problem has been to attempts to remedy it despite the various strategies that have been adopted.

397 Jones n 351 above, 340. 398 DCLG (2014) n 281 above, 8. 399 J Newvell, Multi-agency Interventions with Poor School Attenders: Education Supervision Orders – developing effective practice (London, National Children’s Bureau, 2008), 3. 400 DCLG (2014) n 281 above, 25. 401 National Audit Office (2016) n 282 above, para 1.13. 402 DCLG, The Benefits of the Troubled Families Programme to the Taxpayer (London, DCLG, 2015), 3. 403 DfE, Pupil absence in schools in England: 2017 to 2018 (London, DfE, 2019), 1, www.gov.uk/ government/statistics/pupil-absence-in-schools-in-england-2017-to-2018. 404 Ibid. As noted above, persistent absence is considered by the DfE to occur where the pupil is absent for 10% or more sessions overall.

The State’s Role in Supporting Access to Education 89 Of course, it is possible that without the measures taken over the past two decades the situation could be much worse. There are also continually higher than average levels of authorised and unauthorised absence among children from certain minority ethnic groups, most notably Gypsy/Roma/Travellers, those of Irish heritage and mixed ethnicity black-Caribbean/white pupils. See table 2 below. Overall absence rates and the reasons for absence show little gender disparity.405 Table 2.2 Pupil absences from state schools in England by ethnicity, 2017–18406 Overall Authorised absences absences (%) (%) White

Unauthorised absences (%)

4.9

3.6

1.4

White British

4.9

3.6

1.3

Irish

5.7

4.1

1.6

Traveller of Irish heritage

18.8

9.7

9.0

Gypsy/Roma

13.0

6.4

6.6

Any other white background

4.9

3.4

1.5

5.1

3.5

1.6

White and Black Caribbean

6.1

3.9

2.2

White and Black African

4.6

3.2

1.4

White and Asian

4.5

3.3

1.2

Any other mixed background

4.8

3.4

1.4

4.5

3.2

1.3

Indian

3.7

2.8

0.9

Pakistani

5.1

3.5

1.6

Bangladeshi

4.8

3.5

1.3

Mixed

Asian

Any other Asian background

3.9

2.9

1.0

3.5

2.4

1.1

Black Caribbean

5.0

3.2

1.8

Black African

3.0

2.2

0.8

Any other Black background

3.8

2.6

1.3

Chinese

2.5

1.9

0.6

Any other ethnic group

4.4

3.0

1.4

All pupils

4.8

3.5

1.4

Black

405 DfE, Pupil absence in schools in England: 2017 to 2018, National and local authority tables, table 2.1, www.gov.uk/government/statistics/pupil-absence-in-schools-in-england-2017-to-2018. 406 Ibid, table 5.3. The percentages show the proportion of possible school sessions missed.

90 Responsibility for Children’s Education The importance of state action to address the problem of unauthorised absence from school and seek solutions in individual cases stems not merely from the educational disadvantages and consequential reductions in life chances that flow from missing school, but also the potential social and physical risks to children who, if not in school, could be in the street or other locations which constitute a dangerous environment, particularly but not exclusively when they are unaccompanied. Indeed, these risks underline the importance of the truancy patrols or ‘sweeps’ undertaken in city centres or other places during school hours where truants (or recently excluded children) may be found. These sweeps are usually conducted by a (community) police officer and an officer of the local authority (education welfare). There is a statutory power, held usually by the police officer, to remove any such child of compulsory school age from the public place where they are found to a designated place or to school.407 Action against the parent may subsequently ensue, but the point is that the primary need is to ensure the child’s immediate safety and welfare. That is one reason why the state also has a particular responsibility, underlined by a statutory duty, to identify children who are missing out on education altogether by not being enrolled at school and not receiving a suitable education.408 Research for the National Children’s Bureau shows that in 2016/17 nearly 50,000 children were at some point missing education and that children entitled to FSM were nearly twice as likely to be in this category as the pupil population as a whole.409 The state’s role was recently brought into focus by the European Court of Human Rights, in Wunderlich v Germany,410 noted above. In this case the parents of four children defied German law by not registering their children at school, which eventually led to the children being removed from the family home by the authorities, a move sanctioned by the domestic courts. The removal was aimed at preventing the potential damage to the children’s best interests (not merely in relation to any lack of knowledge but also to the children’s social skills such as tolerance of others and ability to assert their own convictions) as a result of the parents’ action. The removal lasted three weeks. It was accepted that there had been an interference with the right to family life, contrary to Art 8(1) of the ECHR. But the Court of Human Rights considered that the domestic legislation under which the state’s interference had occurred aimed to ensure protection of children’s physical, mental or psychological best interests and this was also the authorities’ aim in the action they took. Therefore the Court accepted that the authorities had acted in pursuit of the legitimate aims of protecting ‘health

407 Crime and Disorder Act 1998, s 16. 408 EA 1996, s 436A, inserted by the EIA 2006, s 4. 409 R Ellison and D Hutchinson, Children Missing Education. Children missing from education in England 2016–17 (London, NCB, 2018) www.ncb.org.uk/sites/default/files/field/attachment/ Children%20Missing%20EducationFINAL.pdf. 410 Application No 18925/15, decision of 10 January 2019, [2019] ELR 149.

The State’s Role in Supporting Access to Education 91 and morals’ and the ‘rights and freedoms of others’,411 which (under Art 8(2)) potentially justified interference with the Art 8(1) right. The judges held that for the purposes of Art 8 a ‘fair balance’ had to be struck between the child’s interests and those of the parent, with particular importance attached to the child’s best interests, which ‘depending on their nature and seriousness, may override those of the parent’.412 Account was also taken of the margin of appreciation accorded to individual states in regulating such matters. The Court offered a reminder that in previous rulings it had upheld the German state’s authority to adopt measures aimed at ensuring children’s social integration and the avoidance of ‘parallel societies’ on the basis that they lay within this margin in relation to education matters as well as being consistent with the Court’s established view on the importance of pluralism for democracy.413 Here the Court considered that the state’s ‘enforcement of compulsory school attendance, to prevent social isolation of the applicants’ children and ensure their integration into society, was a relevant reason’ by which the state could justify its interference with parental authority.414 The action taken was upheld as proportionate since the Court accepted the state’s argument that less serious intervention would have been insufficient in view of the parents’ persistent resistance in the face of fines and other measures and the need for children to attend school continuously in order to receive the necessary in-depth long-term assessment. The domestic authorities had therefore ‘struck a proportionate balance between the best interests of the children and those of the [parents]’.415 The relevance of the decision in Wunderlich to the present discussion lies not so much in its sanctioning of the removal of the children from the family home as a result of non-attendance, since while that is theoretically possible in England under a care order416 it would probably only occur if lack of education is part of a broader picture of neglect and harm (failure to ensure suitable education having ceased 30 years ago to be a specific ground for care orders417). Rather, the decision is significant because it shows how, while parents carry legal responsibility for their children to receive education, ultimately the state is the guarantor of the child’s right to education and is expected to act in the child’s best interests as well as acting in the wider social interest in taking strict enforcement action in

411 Ibid, [45]. 412 Ibid, [46]. 413 Ibid, [50]. The rulings in question are Konrad and Others v Germany (Application No 35504/03), 11 September 2006; Dojan and Others v Germany (Application Nos 319/08, 2455/08, 7908/10, 8152/10 and 8155/10), 13 September 2011; and Leuffen v Germany (Application No 19844/92) Commission decision of 9 July 1992. 414 N 410 above at [51]. 415 Ibid at [56]–[57]. 416 It happened, for example, in Re O (A Minor) (Care Proceedings: Education) [1992] 1 WLR 912. 417 Following the repeal of the Children and Young Persons Act 1969, s 1(2)(e). The child had also to be beyond the care and control of the parent.

92 Responsibility for Children’s Education non-attendance cases. Truancy though is difficult problem for the state to resolve, both generally and often in individual cases, regardless of the battery of measures now available in support of its role.

III. Conclusion This chapter has aimed to explain and assess the role of the state in ensuring that all children of school age receive an education. It is a role that carries a considerable responsibility that is on the face of it recognised by the wide range of international legal obligations concerning the right to education to which states have committed themselves. It is constructed around a set of functions that acknowledge the responsibility of parents to ensure that their children have access to education that, so far as is possible in the light of any inherent limitations to learning that the children may possess, is expected to equip them to enjoy full social and economic participation once they cease to be of compulsory school age. Later chapters explore the law governing the nature of the education which children are expected to receive, whether or not at school. At issue in this chapter has been what amounts to a disciplinary framework for ensuring children’s engagement with education per se. It is one that offers little or no room for choice, whether on the part of parents who are opposed to schooling or formal education – and as the discussion in Chapter 8 shows, even home educating a child is expected to be the subject of much tighter regulation in the years ahead – or on the part of children, as regards behaviour or school attendance. There is, indeed, a disparity between the absolute nature of the responsibility placed on parents, with the looser framework of responsibility applicable to the state, as underlined by the weakness of the guarantee offered by the right to education and leeway accorded by the state in making provision. The disciplinary authority of the state regarding children’s education is one which Monk may be right in perceiving as intended to construct an ‘ideal’ pupil whose multiple reproduction provides a means to societal stability.418 At the same time, it cannot be denied that what is seen to be in society’s interests is also considered to be in the individual child’s interests, particularly when, as discussed in chapter one, there may be a need to safeguard the latter from the consequences of parental irresponsibility or incompetence. In the Platt case, discussed in this chapter, a number of these issues are juxtaposed. The state assumed its responsibility to enforce school attendance. The school issued penalty notices and the local authority prosecuted when the penalties went unpaid. Although the magistrates acquitted, the Supreme Court concluded that, on the law to be applied, they were wrong to do so. Both the state

418 D Monk, ‘Theorising Education Law and Childhood: constructing the ideal pupil’ (2000) 21(3) British Journal of Sociology of Education 355.

Conclusion 93 agencies and the parent could claim to be acting in the child’s interests, the latter on the basis that the holiday visit could bring educational benefits, although there were points of principle at issue on both sides which were not directly connected to them. They included parental autonomy, which was challenged by state intervention, and effective education management, challenged by the exertion of individual parental authority. Ultimately, as Platt in the final analysis illustrated, the law underlines the authority of the state to maintain a normative framework for children’s engagement with education and its enforcement, to which parental autonomy has to give way. It may not, however, always ensure that all children’s proper educational access is guaranteed, particularly in the case of those marginalised by exclusion from school or locked into a pattern of persistent truancy. These are children who require individualised responses from the state in fulfilling its responsibility but which it seems unable consistently to deliver effectively.

3 Institutional Diversity in a Developing Schools System I. Introduction Educational provision for children in England is currently made in a wide range of institutional settings, mostly in schools, which fall within distinct legal categories. The diversity of the schools system ‘has increased and continues to increase significantly through deliberate central government policy’.1 The present public education framework is perhaps the most diverse and complex of any in the modern era, not least as a result of the superimposition of academies and free schools onto an already highly diversified system shaped by constant evolution and reform over the past half century. Developments over these five decades reflect an increasing politicisation and centralisation of the education system. Shifting political ideologies have taken the system in new and at times divergent directions across the different political eras in the post war period, a process underpinned by the concentration of increased central power over schools and curriculum policy as a result of education legislation the scale and reach of which has been described by Gibton as ‘unprecedented in the world’.2 While a political consensus surrounded the Education Act 1944, which formed the basis for a post-war education system based around a tripartite partnership between central government, local authorities and teachers, the system has since the 1960s increasingly been subjected to ideologically-driven and politically partisan reforms, often pursued in the face of professional and local administrative discontent. Indeed, for several decades education has been one of the most controversial of public policy areas. Perhaps the greatest area of contention in relation to schooling has been the institutional framework. Key reforms over the past 50 years have included the introduction of all-ability ‘comprehensive’ schools in the 1960s and the creation of new categories of state schools lying outside traditional local authority control – grant-maintained schools and city technology colleges in the

1 P A Woods Transforming Education Policy: Shaping a democratic future (Bristol, Policy Press, 2011), 46. 2 D Gibton, Law, Education, Politics, Fairness: England’s extreme legislation for education reform (London, Institute of Education, 2013), 1.

State Education: Separate National Systems within the UK 95 1980s and, more recently, free schools and academies. These areas of reform and others which have been proposed, including the recent government commitment to an expansion of grammar schools, which select pupils largely by academic ability, have been highly contentious. Disputes arising from policy implementation at local level have also played out in a range of legal battles which have been reflective of tensions in relations between central and local government, as will be discussed. Changes in the governance of state schools have also formed a key element in schools system reform. Governing bodies have been given greater powers and wider responsibilities for the management of their institutions, including delegated financial management, at the expense of local authority control. Changes during the 1980s designed to increase community, corporate and parental representation on school governing bodies also aimed to diminish local authority influence. Effecting greater institutional autonomy also served this political objective, under post 1979 Conservative administrations at least, but also supported the realisation of the more ideologically based aim of generating competition between schools, which were given greater freedom to carve out distinctive identities as autonomous institutions collectively offering a diversity of choice to parents. The rationale of choice is not, however, based exclusively on such instrumental factors, but also on liberal notions of free will and autonomy and on human rights arguments surrounding culturally and philosophically based preferences for particular forms of or settings for schooling. On such liberal rationale has rested much of the case for retaining an independent (private) sector of education, albeit one requiring appropriate regulation, and for ensuring that the state schooling system offers, among other things, the choice of secular or faith-based schools for children’s education and enables parents and others to establish (free) schools more attuned to their particular aspirations. Various key political eras in the development of England’s highly diverse schools system over the past 50 or so years can be identified. Each is marked by distinctive policies and legislative changes linked to a range of structural reforms which may reflect the prevalent economic, political and social contexts at the time but yet have a continuing resonance and significance. In addition to explaining these reforms, this chapter seeks to show how and why the development of such institutional diversity, as well as the shifts in power that accompanied it, is so important.

II. State Education: Separate National Systems within the UK This chapter concentrates almost exclusively on the state education system in England, where over 80 per cent of the UK school-age population receive their education. Approximately seven per cent of children in England are educated in private schools or at home or other out of school settings. While some reference is made to non-state provision in this chapter, the primary focus is on state schools.

96 Institutional Diversity in a Developing Schools System The adoption of an Anglo-centric focus does not deny the fact that Northern Ireland, Scotland and Wales have undergone important, comparable, but often distinctive, educational developments and experienced similar controversies to England in respect of schools policy and legislative reform. Moreover, from a general perspective there are undoubted benefits to comparative analysis, particularly when divergent approaches to policy implementation yield disparate levels of success and thus provide lessons. Indeed, later chapters will discuss law and policy in other parts of the UK, in the US, and elsewhere. The comparative approach works better when the scope of the review is relatively narrow – for example on a very specific policy area such as school choice, children’s participation or religion3 – although even then the complexity of individual systems tends to limit the space and potential to make comparisons and draw contrasts.4 Factors such as the degree of legal divergence, the scale of policy development, and the level of complexity across each of the systems and their underpinning legislation, can make detailed comprehensive comparative analysis unwieldy and over-complicate what is already a dense and detailed picture.5 It is also important to stress that there is no UK, or even British, education system as such, in terms of either governance or law. The Scottish education system is not only separate from that in the rest of Great Britain but also differs from it and has long had its own legislative framework comprised in various Education (Scotland) Acts. These statutes were, in the past, made by the UK Parliament and some parts of them remain in force. But the Scotland Act 1998 gave the Scottish Parliament authority to enact its own primary legislation; and although certain areas of state responsibility, such as parts of the social security system and public finance and elements of economic policy, are still (at least in part) reserved to the UK Parliament, education is not one of them. Education policy-making and central administration in Scotland fall within the remit of the Scottish Government,6 whose ministers are empowered to promulgate secondary legislation. Measures introduced have ranged in scope from, for example, the Education (National Priorities) (Scotland) Order 2000,7 made in furtherance 3 See, eg, M Adler, A Petch and J Tweedie, Parental Choice and Educational Policy (Edinburgh, Edinburgh University Press, 1989); N Harris and S van Bijsterveld, ‘Parents as “Consumers” of Education in England and Wales and the Netherlands: A Comparative Analysis’ (1993) 7(2) International Journal of Law and the Family 178; P J Wolf and S Macedo (eds), Educating Citizens: International Perspectives on Civic Values and School Choice (Washington DC, Brookings Institution Press, 2004); N Harris, ‘Playing Catch-Up in the Schoolyard? Children and Young People’s “Voice’ and Education Rights in the UK’ (2009) 23(3) International Journal of Law, Policy and the Family 331. 4 See, eg, M Hunter-Henin (ed), Law, Religious Freedoms and Education in Europe (Farnham, Ashgate, 2011); C J Russo (ed), International Perspectives on Education, Religion and Law (New York, Routledge, 2014). 5 But, for a brave attempt to manage this process and provide useful insights, see C L Glenn and J De Groof, Balancing Freedom, Autonomy and Accountability Vols 1–3 (Nijmegen, Wolf Legal, 2012) and C L Glenn, J De Groof and C Stillings Candal (eds), Balancing Freedom, Autonomy and Accountability Vol.4 (Nijmegen, Wolf Legal, 2012). 6 Formerly, prior to September 2007, the ‘Scottish Executive’. 7 SSI 2000/443.

State Education: Separate National Systems within the UK 97 of the Scottish Government’s duty under the Standards in Scotland’s Schools Act 2000 to ‘define … priorities in educational objectives for school education provided for Scotland’,8 through to the Gaelic Medium Education (Assessment Requests) (Scotland) Regulations 2016,9 made under a ministerial power in the Education (Scotland) Act 2016 to prescribe forms for parents to make requests for Gaelic medium primary education for their child.10 In September 2017 the Scottish First Minister announced that the legislative programme for government in Scotland for 2017–18 would include an Education Bill that would ‘deliver the biggest and most radical change to how our schools are run that we have seen in the lifetime of devolution’.11 The policy is to devolve more power to schools and teachers to facilitate innovation, adaptability and a raising of standards, and to enhance parental and pupil engagement. This Bill, the Education (Scotland) Bill, was published in June 2018 but the Scottish Government decided not to introduce it into the Scottish Parliament and instead to proceed with the reforms on the basis of an agreement reached with the Scottish Convention of Local Authorities.12 The idea was to avoid a delay of 18 months to implementation of reform while the Bill passed through the Scottish Parliament. Announcing what amounts to a remarkable break from the traditional reliance on legislation for wholesale reform implementation, the Deputy First Minister said: ‘Instead of waiting for the passage of legislation which cannot be fully in force until 2019 or 2020, we have an opportunity to reform our schools more quickly through our investment in consensus building and collaboration rather than through legislation.’13 The education system of Northern Ireland has also developed separately and had its own legislative framework and administration long before the Northern Ireland Act 1998, which aimed to give legislative effect to the Belfast Agreement concluded between the various political factions and the UK and Republic of Ireland governments, set in place a new constitutional framework for devolved government.14 The Education (Northern Ireland) Act 2014, an Act of the Northern Ireland Assembly, for example, established a single Education Authority (EANI) to replace five separate education and library boards which administered school education; and the Shared Education (Northern Ireland) Act 2016 places duties on the Department of Education in Northern Ireland and the EANI to ‘encourage, 8 Standards in Scotland’s Schools Act 2000, s 4(1). 9 SSI 2016/425. 10 Education (Scotland) Act 2016 (asp 8), s 7(5) and (6). 11 First Minister, Statement to Parliament, 5 September 2017 at https://news.gov.scot/speechesand-briefings/2017-18-programme-for-government. 12 Scottish Government, Education Bill Policy Agreement – Joint Ambition (Scottish Government, 2018), www.gov.scot/Resource/0053/00537386.pdf. 13 Scottish Government, ‘Scotland’s Education Reforms’, News Release 26 June 2018 https://news.gov. scot/speeches-and-briefings/scotlands-education-reforms. 14 See B Hadfield, ‘The Nature of Devolution in Scotland and Northern Ireland’, (1999) 3 Edinburgh Law Review 3; L Lundy, ‘Education Law under Devolution: The Case of Northern Ireland’ (2000) 1 Education Law Journal 81.

98 Institutional Diversity in a Developing Schools System facilitate and promote shared education’ as defined (with reference to educating together children with different religious or socio-economic backgrounds).15 Wales, on the other hand, was for many years linked with England in a combined education system, based on the Education Act 1944 and successor legislation. For example, the 1944 Act imposed a duty on the Secretary of State to ‘promote the education of the people of England and Wales’16 and this in fact continues under the Education Act 1996.17 Prior to the Government of Wales Act 1998, policy-making and central administration in England and Wales respectively were the responsibility of the Department for Education and Employment (as it was then known) in London and the Welsh Office based in Cardiff. Policies often had joint application, as did the legislative framework, although Welsh-specific provision tended to be made in secondary legislation. The Government of Wales Act 1998 did not give the National Assembly for Wales comparable legislative power to that which was conferred that year on the Scottish Parliament, although it enabled the functions of the Secretary of State under education legislation to be transferred to the National Assembly.18 Although the Assembly formally made secondary legislation, primary legislation for Wales was still made at Westminster. Education policy in Wales nevertheless began to diverge from that in England. Following the publication in 2005 of UK Government proposals to devolve further legislative power to the Welsh Assembly,19 the Assembly’s power to make secondary legislation was extended to various aspects of education including the establishment and discontinuance of schools, the curriculum and school attendance.20 Subsequently, the power was transferred to Welsh Ministers under the Government of Wales (GoW) Act 2006 in May 2007.21 In its amended form the GoW Act extended the Assembly’s power to make primary legislation to a range of key areas, including provision about: the categories of schools maintained by local authorities; the establishment, discontinuance, conduct and governance of schools; and entitlement to primary and secondary education.22 While the Education Act 1996, which also covers England, remains the core statute on Welsh

15 Section

2 of the 2016 Act defines ‘shared education’ as ‘education together of—

(a) those of different religious belief, including reasonable numbers of both Protestant and Roman Catholic children or young persons; and (b) those who are experiencing socio-economic deprivation and those who are not, which is secured by the working together and co-operation of two or more relevant providers.’ 16 EA 1944, s 1(1). 17 EA 1996, s 10. 18 This was done under Order in Council, the National Assembly for Wales (Transfer of Functions) Order 1999 (SI 1999/672), made under s 22 of the Government of Wales Act 1998. Subsequently, the EIA 2006, s 180, provided for the inclusion of areas which had been omitted from the scope of that explicit transference, such as school admissions. 19 The Wales Office, Better Governance for Wales, Cm 6582 (London, TSO, 2005). 20 EIA 2006, ss.178–180, in force from January 2007. 21 Government of Wales Act 2006, Sch 11 paras 30(1) and 30(2)(c). 22 Ibid s 94, as amended, and Sch 5, part 1, also as amended. See also the Wales Act 2017.

Schools and Education: The Role of the State 1870–1980 99 school education, parts of it increasingly make separate provision for Wales. But its scope will diminish over time. For example, the Additional Learning Needs and Education Tribunal (Wales) Act 2018,23 which starting in September 2020 will set in place a new framework for special education, will replace relevant provisions of the 1996 Act. Important measures made by the Assembly have included the School Standards and Organisation (Wales) Act 2013,24 dealing with processes for identifying and remedying deficient schools, and the Education (Wales) Act 2014, mainly concerned with a new Education Workforce Council (a regulatory and advisory body concerned with teaching and learning quality). The legislative competence of the Assembly (or the Welsh Parliament, as it is expected to be renamed within the next three to four years) is certain to result in further divergence from England on schools legislation in the coming years. Education is therefore mostly a devolved policy and governance area across the UK. While this chapter focuses on England, later chapters will make selective reference to law and policy in the other national jurisdictions within the UK on issues where significant, interesting and relevant points of comparison exist.

III. Schools and Education: The Role of the State 1870–1980 A. The Developing State Responsibility The Conservative Government’s Education Reform Act 1988 represented a ‘turning point in educational policy’ post-1944,25 because it began the wholesale process of centralisation and reduced local authority and professional dominance of policy.26 Yet the seeds of this transformation in the balance of power were sown in the Education Act 1980, another key measure of the 1979–1990 Thatcher administrations. The 1980 Act began the process of opening up the local authority schools sector to the forces of competition through the exercise of parental choice. Moreover, by introducing requirements for schools to have parent governors and establishing an assisted places scheme to fund, via the state, enrolment and attendance of children from less advantaged backgrounds at independent schools (by covering all or part of school fees and meeting certain expenses), it began the weakening of local authority autonomy and dominance over provision. The 1980 Act therefore marked the beginning of a process of re-setting the power relationships between the central state, local government, teachers and parents that had been established under and in the wake of the Education Act 1944. 23 (anaw 2). 24 (anaw 1). 25 P A Woods Transforming Education Policy: Shaping a democratic future (Bristol, Policy Press, 2011) 45. 26 M Flude and M Hammer, ‘Introduction’, in Idem, The Education Reform Act 1988: Its Origins and Implications (Basingstoke, Falmer, 1990) vii.

100 Institutional Diversity in a Developing Schools System Throughout its history to that point the administration of publicly-provided education in England had been highly localised. Forster’s Elementary Education Act 1870 began the process by providing for the establishment of school boards in areas where elementary schools were needed to supplement existing, mostly church or charitable, provision. Finance came from local rates and government grants. Free places could be awarded, but in general parents had to meet around one third of the cost of their child’s education.27 The boards were able to exercise powers to enforce school attendance, which became compulsory for all 5–12-yearolds from 1880 under local by-laws made by the boards with the approval of the Minister.28 The state schools were run side by side with the denominational (church) schools. After the Education Act 1902, when school boards became integrated into the local government administration of education, provision was also made for secondary and technical education. The 1902 Act also extended state funding to denominational schools, which became eligible for government grants to meet current expenditure. Under the Education Act 1918, all fees for attending elementary schools were abolished and the school leaving age was raised to 14 (where it remained until after the Education Act 1944). Throughout the 1920s and 1930s most children attended elementary school until reaching the school leaving age of 14. Through an examination at the age of 11, some children were selected to attend local authority secondary schools. Free places were available, although just over one half of pupils attending them were fee payers.29 Other academically able children went to independent grammar schools or ‘public’ schools, at their parents’ expense. However, only one fifth of all children were in formal education beyond the age of 14.30 The Education Act 1944 provided for compulsory education between the ages of 5 and 15 (inclusive), although required the Minister to raise the leaving age to 16 as soon as it became ‘practical’ to do so.31 Publicly provided education was to be available free to all up to the age of 18. Local education authorities (LEAs) were placed under a duty, which continues (in an amended form) for local authorities under the Education Act 1996, to ensure the presence in their area of ‘sufficient’ schools for primary and secondary education, that is, schools ‘sufficient in number, character and equipment to afford for all pupils opportunities for education, offering such variety … as may be desirable in view of their different ages, ability and aptitudes, and of the different periods for which they may be expected to remain at school …’32 What was so significant about the 1944 Act was that it was built around the principle of universalism. It was also broadly egalitarian, in that education was

27 N Timmins, The Five Giants. A Biography of the Welfare State (London, Harper Collins, 1995) 69. 28 Elementary Education Act 1870, s 74. 29 Timmins, n 27 above, 72–3. 30 D Bell, ‘Change and Continuity: Reflections on the Butler Act’, Speech to Commemorate the 60th Anniversary of the 1944 Education Act: House of Commons, 21 Apr 2004. 31 EA 1944, s 35. 32 Ibid, s 8. See now the EA 1996, s 14.

Schools and Education: The Role of the State 1870–1980 101 to be available free of charge.33 But by permitting selection, normally at the age of 11, so that the more academically able children would be able to secure entry to grammar schools, and by tolerating the private sector, it maintained the broad class divisions that dominated British society. It also established the basic idea that education, while a national service, should be locally controlled and administered. Indeed, while the increasing centralisation of governmental power over the education system during the 1980s and 1990s enabled ministers to exercise firm controls over many areas of provision,34 the position was very different under the 1944 Act. The Secretary of State’s role was, viewed against current standards, a limited one. Under s 11 of the 1944 Act, LEAs had a duty to survey the needs of their area and, within one year of the section’s commencement, prepare a development plan and submit it to the Minister for approval. But, as Timmins says, the Minister’s powers in relation to plans, were more of ‘guidance, of influence and then of veto, rather than direction’.35 Viewing the 1944 Act as a whole, it is clear that the legislators believed in the ‘importance of diffusing power over educational decision-making so as to prevent unwarranted concentration of control over such a vital service’.36 Actual provision of schooling was to be the responsibility of LEAs,37 guided by national policy objectives – for example, through the use of government circulars and administrative memoranda.38 Ministerial influence began to grow in the 1960s, particularly when the Labour Government led by Harold Wilson pursued a policy against academic selection and attempted to secure its abolition. This administration also introduced inner city Education Priority Areas, with additional staff and extra funding for areas of particular deprivation,39 a policy revived to some extent in the post-1997 Labour Government’s education actions zones (below). But local government remained in control of the schools system. LEAs also controlled the secular curriculum, apart from in voluntary aided schools, where control rested

33 See EA 1944, s 61. 34 For a detailed account see N Harris, Law and Education: Regulation, Consumerism and the Education System (London, Sweet and Maxwell, 1993) ch 2. See also S Ranson, ‘From 1944 to 1988: Education, Citizenship and Democracy’ in M Flude and M Hammer (eds), The Education Reform Act 1988: Its Origins and Its Implications (Basingstoke, Falmer, 1990) 1. 35 Timmins n 27 above, 94. 36 Ranson n 34 above, 3. 37 County councils or county borough councils: Education Act 1944, s 6. 38 In R v Inner London Education Authority ex parte Bradby, 30 Jan 1988 (Lexis), Woolf J emphasised that ministerial circulars had no statutory authority and ‘are no more than guidance from the minister as to a course which, in general, he suggests the education authority should follow’. See further R v London Borough of Islington ex parte Rixon [1997] ELR 66; Sedley J, referring to the guidance in Circular 1/93 covering students with learning difficulties, said (at 82F) that ‘this circular must conscientiously to be taken into account by Islington’s education department in coming to its decision about [J]’. It is common practice today to place local authorities and schools under a statutory duty to have regard to the Secretary of State’s guidance. 39 P Daniel and J Ivatts, Children and Social Policy (Basingstoke, Macmillan, 1998) 173. They had previously been recommended by the Plowden Committee: Central Advisory Council for Education (England) (chair Lady Plowden), Children and their Primary Schools (London, HMSO, 1967), I, paras 151–154 and 174.

102 Institutional Diversity in a Developing Schools System with the school’s governing body.40 Essentially, LEAs were the providers of most schooling and further education (the latter at ‘county colleges’).41 The 1944 Act required the educational provision to be organised into ‘three progressive stages’ – primary, secondary and further education42 – a structure that continues to this day.43 Also surviving, in addition to the local authority duty to ensure sufficient schools in their area, noted above, is their general duty to ensure that the educational needs of their area are met – to ‘so far as their powers extend … contribute towards the spiritual, moral, mental and physical development of the community by securing that efficient education throughout those stages shall be available to meet the needs of the population of their area’.44 In ensuring a sufficiency of schools LEAs had to have regard to the need to ensure provision of ‘special educational treatment’ for ‘pupils who suffer from any disability of mind or body’, not merely those considered ‘mentally defective’ or epileptic, as had been the case in the past.45 This was later amended, by the Education Act 1981 to, a duty to have regard to the need to ensure ‘special educational provision is made for pupils who have special educational needs’.46 LEAs were also placed under a duty to identify all such children.47 This aspect of provision is discussed in Chapter 9. Over subsequent years the courts confirmed that LEAs had a broad discretion as regards the most appropriate means of ensuring suitable schools provision in their area;48 that (as noted in Chapter 2) the ‘sufficient’ schools duty was not an absolute duty, so that the availability of resources and other factors could legitimately affects its discharge; and that in fulfilling their duty LEAs had to act consistently with their non-discrimination duties under the Sex Discrimination Act 1975 (now in the Equality Act 2010: see Chapter 4), so that neither sex should have greater access than the other to a place at a single-sex school, meaning that in general there should be equal numbers of places at boys and girls schools in an area,49 save where parity could be secured only by keeping open a school which had become unviable.50 Although the Secretary of State was given default powers – which also continue – to enable intervention where LEAs or governing bodies were ‘acting or proposing 40 EA 1944, s 23. 41 Ibid, ss 41–43. 42 Ibid, s 7. 43 See the EA 1996, Pt 1, Ch 1. 44 EA 1944, s 7. See now the EA 1996, s 13. 45 EA 1944, s 8(2). 46 Ibid, as amended by the EA 1981, s 2(1). 47 EA 1944, ss 33 and 34. 48 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 (HL); Equal Opportunities Commission v Birmingham City Council [1989] 1 All ER 769, per Lord Goff at 775C. 49 R v Secretary of State for Education and Science ex parte Keating (1985) 84 LGR 469; Equal Opportunities Commission v Birmingham City Council [1989] 1 All ER 769; R v Secretary of State for Education and Science ex parte Malik [1992] COD 31; and R v Birmingham City Council ex parte Equal Opportunities Commission (No 2) [1994] ELR 282 (CA). 50 R v Northamptonshire County Council and the Secretary of State for Education ex parte K [1994] ELR 397.

Schools and Education: The Role of the State 1870–1980 103 to act unreasonably’ with respect to the exercise of a power or performance of a duty under the Act or were in default of any statutory education duty imposed on them,51 these discretionary powers were (and still are) rarely invoked.52 Even during the post 1980 period when centralisation of power was well under way, the Department of Education and Science (DES) (now the Department for Education) was unwilling to interfere over matters that Parliament had entrusted to local decision-makers, resisting calls for stronger powers from the House of Commons Select Committee which had concluded that the existing default powers were difficult to enforce.53 So, under the arrangements set in place under the 1944 Act, LEAs were responsible for local planning of educational provision, with little interference. Their ‘sufficient’ schools duty meant that each LEA had to manage the overall organisation of schooling in its area, including the establishment, alteration or closure of schools under statutory powers, as demanded by economic circumstances or demographic changes. Some schools, notably the voluntary aided schools (mostly Roman Catholic), remained semi-autonomous, and their governing bodies had separate powers to initiate school changes, although formal approval from the Secretary of State was often needed.54

B. A System with Denominational (‘Faith’) and Non-denominational Schools The equal place of denominational schools within it, as a result of the Education Act 1944, was one of the state schools system’s most significant features. As noted below, today there are over 7,000 such schools, often referred to now as ‘faith schools’. The Minister of Education with overall responsibility for the 1944 legislation, RA Butler, believed in the goal of education for all. To this end he 51 EA 1944, ss 68 and 99; see now EA 1996, ss 496 and 497. On s 68, see Tameside n 48 above. On s 99, see Meade v Haringey London Borough Council [1979] 2 All ER 1016 at 1024, per Denning MR; see also Watt v Kesteven County Council [1955] 1 All ER 473 (CA); Bradbury v London Borough of Enfield [1967] 3 All ER 434; R v Inner London Education Authority ex parte Ali and Murshid [1990] 2 Admin LR 822. For analysis, see Harris, n 21 above, 33–7 and N Harris, ‘Education by Right? Breach of the Duty to Ensure “Sufficient Schools”’ (1990) 53 MLR 525. 52 See N Harris, Law and Education: Regulation, Consumerism and the Education System (London, Sweet and Maxwell, 1993), ch 2. 53 House of Commons Education, Science and the Arts Select Committee, Second Report 1981–82. The Secondary School Curriculum and Examinations, HC 116-1 (London, HMSO, 1982), part 9; DES, Initial Observations on the Second Report from the Education, Science and the Arts Committee Session 1981–82, Cmnd 8551 (London, HMSO, 1982). On the enforcement of the powers, see Bradbury v London Borough of Enfield [1967] 3 All ER 434, per Diplock LJ at 440; and Tameside n 48 above. In R v Secretary of State for Education and Science ex parte Chance, 26 July 1982 (unreported), Woolf J found that when asked to intervene in a case where the LEA was alleged to have failed in its duty to make provision for a child with dyslexia the Secretary of State had failed to take proper account of the relevant legislation, holding it was a case where the court could intervene. 54 See N Harris, The Law relating to Schools (Croydon, Tolley, 1995) ch 2.

104 Institutional Diversity in a Developing Schools System found a way of integrating into the state sector many of the schools run by the Church of England and the Roman Catholic Church, a number of which were in dire financial straits and finding it difficult to maintain their buildings and meet their operational costs. In 1939, the churches were running half the schools in England and Wales, although they were providing schooling for less than one third of the total school population.55 The 1944 Act offered most of these church schools a choice between ‘voluntary controlled’ and ‘voluntary aided’ status. The former meant that the school would retain its religious character but would be funded entirely by the LEA. As with non-denominational (secular) county schools, the school would have control over staff appointments and would generally follow a locally agreed syllabus for religious education. Aided status, on the other hand, did not carry with it full state funding (see below), but gave the school’s foundation body (its founders or their successors) much more control over staff appointments and the content of religious education, plus majority membership within the school’s governing body. Every voluntary school (and county school – see below) was required to have a body of managers or governors for the school, known as a ‘board of managers’ in primary schools or a ‘board of governors’ in secondary schools,56 both known today as the ‘governing body’. Aided status suited the Catholic Church, which wanted to retain maximum control of its own schools. However, it meant that the school’s foundation body would need to find some of the funding for the school: the LEA would meet the school’s operational costs, but the foundation body would have to cover 50 per cent of the capital costs, a proportion that was later reduced to 15 per cent.57 While aimed primarily at the Roman Catholic sector, aided status was also chosen by some of the Church of England schools. However, the Church of England’s main concern had been that a lack of funding was putting the future of its schools in jeopardy. Full financial support offered by controlled status was attractive and this status was adopted by most of the Church of England schools. A small number of denominational schools were in a third category, ‘special agreement’ schools, which had similar status to aided schools but were funded under an agreement with the LEA: this category has since been abolished and these schools were designated as aided schools under the SSFA 1998. The majority of schools post-1944 were, however, non-denominational. They were classed as ‘county’ schools under the 1944 Act, under the control of the LEA, which funded them in full. Eventually, under the SSFA 1998, these schools were re-classified as ‘community’ schools,58 a designation which continues. Special schools, catering for pupils with various forms of disability, also operated and had a higher profile after the Education Act 1981 imposed duties on LEAs to identify, and make provision for, pupils with special educational needs. Most special schools

55 Timmins

n 27 above, 79. 1944, s 17(1). 57 SSFA 1998, Sch 3, para 5. 58 Ibid, s 20. 56 EA

Schools and Education: The Role of the State 1870–1980 105 within the state sector later became classified as ‘community special schools’, but a large proportion of pupils with special educational needs are educated in mainstream schools.59

C. Academic Selection and the Development of Comprehensive Secondary Schools Schools were also identified by academic ethos and pupil selection methods. The Norwood report60 had recommended a tripartite system for secondary schools. ‘Grammar’ schools would select pupils on the basis of their academic ability and would be geared towards pupils destined for professional, business or senior white collar careers. ‘Technical’ schools would select pupils with aptitude and ability in areas of science and crafts. Other children, of lesser academic or technical ability, would be offered a broader curriculum suitable to their ability level, in ‘secondary modern’ schools. The report argued that ‘each type should have such parity as amenities and conditions can bestow’.61 This parity did not materialise in practice and it became clear over the ensuing years that secondary moderns received considerably lower resource allocations and attracted generally less talented teachers than grammar schools.62 The mechanism of selection was the 11-plus examination taken in the final year of primary school – a process that by the 1960s was, and today is still, regarded as one of the most socially divisive measures in the public policy area. Despite ministerial encouragement for technical schools, the model failed to gain traction and these schools were regarded as unviable.63 Little more than two per cent of children attended them at any one time.64 Therefore the system was essentially developed around the other two, unequally resourced and esteemed categories, although the 1944 Act did not prescribe the bipartite system that developed. By the late 1950s there was growing political interest in removing academic selection.65 Butler had envisaged a ‘gradual melding’ of the selective and non-selective categories and ‘had some sympathy for the idea of multilateral schools’66 – all-ability schools that were later referred to as ‘comprehensives’. He was later critical of the Labour Party’s obsession with comprehensivisation.67 Abolition of selection for secondary education was an adopted policy pursued by the Labour 59 See, ch 9. 60 C Norwood (chair), Report of the Committee of the Secondary Examination Council on Curriculum and Examination in Secondary Schools (London, HMSO, 1943). 61 Ibid, 14. 62 Timmins n 27 above, 98–99. 63 See P Sharp and J Dunford, The Education System in England and Wales (Harlow, Longman, 1989) 21. 64 Timmins n 27 above, 99. 65 B Simon, Education and the Social Order 1940–1990 (London: Lawrence and Wishart, 1991), 271. 66 Ibid. 67 P Cosgrave, RA Butler An English Life (London, Quartet, 1981) 81. Yet, when Minister of Education during the second world war, Butler had actually had on his reform agenda the radical idea of integration of private or independent schools into the state sector.

106 Institutional Diversity in a Developing Schools System Governments of the 1960s and 1970s. Reinforcing the policy through the use of legislation was, however, resisted by ministers, even though the Labour Conference of 1963 had favoured such an approach. By the mid-1960s many local authorities had already embraced the comprehensive ideal. The DES issued a circular to encourage others to do so and to submit proposals within the next 12 months for the introduction of comprehensive secondary schools in their area.68 Some unsuccessful attempts were made to challenge local transitions to comprehensive status in the courts, either on the basis of procedural failure69 or a failure to comply with the duty to respect parental wishes.70 Twelve LEAs held out against the Government’s policy, however, and a second circular was issued warning that capital grants would be withheld if they were for building projects that were not consistent with the comprehensives policy.71 When Labour returned to office in 1974 after four years of Conservative Government, LEAs were informed of an expectation that the completion of the process of establishing a wholly comprehensive system would be ‘accelerated’; and governing bodies of voluntary schools which were standing out against the wish of the LEA to ensure a fully comprehensive system were asked to ‘reconsider their attitude in the light of the Government’s policy’.72 In early 1975, approximately 25 per cent of pupils in the relevant age group were still taking the 11-plus examination.73 The Government’s tactic switched from one of moral persuasion to legal pressure. The Education Act 1976 in effect empowered the Government to compel the introduction of comprehensive schools in an area.74 The Act required LEAs to have regard to the general principle that secondary education was to be provided only in schools where the arrangements for admission were not based on selection by ability or aptitude, whether wholly or partly.75 More significantly, however, it empowered the Secretary of State to compel any LEA where, in its area, ‘progress or further progress in giving effect to [this] principle’ was required, to prepare and submit proposals within a specified time.76 It was a power that could be enforced under the general power in s 99, EA 1944 enabling enforcement of LEAs’ statutory duties, an alternative to the power under s 68 to issue a direction to an authority acting ‘unreasonably’. The s 68 power was applied unsuccessfully (and unlawfully) in the highly significant Tameside case in 1976 when one newly-elected Conservative-controlled LEA decided to abandon or postpone plans for comprehensive schools in its area that had been approved by its predecessor Labour administration.77 The House of Lords held that an LEA

68 DES

Circular 10/65. v London Borough of Enfield [1967] 3 All ER 434. 70 Wood v Ealing London Borough Council [1967] Ch 364. 71 DES Circular 10/66. See further Harris (1993) n 52 above, ch 2. 72 DES Circular 4/74, paras 3 and 10. 73 Simon n 65 above, 439. 74 EA 1976. 75 Ibid, s 1(1). 76 Ibid, s 2(1). 77 Tameside n 48 above. 69 Bradbury

Towards a More Diverse Schools System: 1980–1997 107 does not act ‘unreasonably’ merely by changing the direction of its policy to one running contrary to the Secretary of State’s ‘strong preference’.78 Despite its potential enforceability, the new power in the 1976 Act was never invoked and the above provisions of the Act were repealed within the first few months of the first Thatcher administration.79 Although most state secondary schools became non-selective ‘comprehensive’ schools, grammar schools survived in six LEA areas and there are still 163 such schools today. Recent government policy on grammar schools is analysed below.

IV. Towards a More Diverse Schools System: 1980–1997 A. Choice, Diversity and Institutional Autonomy The Thatcher-led Conservative Government elected in 1979 railed against the uniformity of the local-authority controlled comprehensive school system that had developed incrementally during the previous two decades. It also damned what it regarded as increasing political interference in children’s education by what were painted as left-leaning local councils and teachers. The Conservatives’ education reforms sought to wrest control of schools from LEAs. An element would be guaranteed parental representation on school governing bodies and a considerable reduction in LEA representation on them. The newly re-constituted governing bodies would be placed in charge of their schools’ curriculum policies, human resources and finances. This devolution of control was a policy linked to the Conservatives’ ideological assault on LEAs, which were condemned as profligate with public finances, inefficient, hidebound with restrictive practices and doctrinaire in their policies.80 It was part of a broader effort to reduce the role of LEAs to a largely strategic one – and in the case of the left-dominated Inner London Education Authority, involving its complete abolition.81 Moreover, starting with the Education Act 1980, which included measures to facilitate the exercise of school choice by parents, the Conservatives aimed to realise their ideological commitment to marketise education and subject it to the forces of competition.

78 Ibid per Lord Diplock at 1064. 79 By the EA 1979, which was enacted and came into force in July 1979. 80 See G Whitty and I Menter, ‘Lessons of Thatcherism – Education Policy in England and Wales 1979–88’ (1989) 16 Journal of Law and Society 42; L Bash and D Coulby, The Education Reform Act. Competition and Control (London, Cassell, 1989). 81 Education Reform Act 1988, s 162ff. See C Jones, ‘The Break-up of the Inner London Education Authority’ in L Bash and D Coulby, Education Reform Act: Competition and Control (London, Cassell, 1989) 85; Harris (1993) n 52 above, 39–42. Feintuck refers to the abolition of the Authority as a ‘political victory’ for the Thatcher government: M Feintuck, Accountability and Choice in Schooling (Milton Keynes, Open University Press, 1994) 23.

108 Institutional Diversity in a Developing Schools System The Education (No 2) Act 1986 made most of the planned changes to school government, devolving power and responsibility to further re-constituted school governing bodies, which were to operate under more regulated decision-making procedures.82 This Act also made governing bodies responsible for their schools’ secular curriculum, displacing the role held by LEAs since the 1944 Act, although the establishment of the mandatory national curriculum soon after, under Part I of the Education Reform Act 1988, centralised control over the content of education in England’s schools.83 The Conservatives’ Education Reform Act 1988 Act was a major landmark in education reform. In addition to introducing the National Curriculum it provided for the devolution of school budgets to governing bodies, under a policy known as Local Management of Schools (LMS),84 a process of devolved financial management that has continued to this day (although the LMS name has been dropped). It also established two new categories of schools – state-funded ‘grantmaintained’ (GM) schools and part-privately sponsored ‘city technology colleges’ (CTCs) – marking the beginning of a process towards increasing diversity and institutional autonomy within the schools system, but also its fragmentation. The new categories, as well as serving the political goal of reducing LEA control – since LEAs had no involvement the funding or control of GM schools and CTCs – contributed to the goal of extending competition and choice. Since the process for becoming GM included a parental ballot to determine whether the governing body should apply to the Secretary for approval of this status,85 it represented a transference of at least a degree of power to parents. GM schools were funded by the DfE, but later, following the EA 1993, via a separate body, the Funding Agency for Schools, whose members were appointed by the Secretary of State. Although their funding allocations were based on the amount they would have received had they been part of the LEA sector, GM schools received an additional element to reflect the reduced LEA services input to them. They also benefited from generous capital allowances. For example, in 1993–4 they received 15 per cent of the total capital investment for schools in England even though they constituted only 4 per cent of the total number of schools.86 From the perspective of LEAs, the presence of GM schools outside their control made performance of the ‘sufficient’ schools duty and their role in school place planning more difficult. There was uncertainty as to whether enabling schools to acquire GM status, or

82 See, eg, the Education (School Government) Regulations 1989 (SI 1989/1503) and DES Circular 7/87. Later, governing bodies were accorded corporate status in order to protect individual governors from incurring personal liability: EA 1993, s 238. 83 See ch 6. 84 R Wallace, ‘The Act and Local Authorities’ in M Flude and M Hammer (eds), The Education Reform Act 1988: Its Origins and Its Implications (Basingstoke, Falmer, 1990) 225 at 238. 85 See Harris (1993) n 52 above, 122–7. The procedure for the acquisition of GM status involved a ballot of parents following two resolutions in favour by the governing body; if the ballot went in favour the matter was referred to the Secretary of State for final decision. 86 Cited in P Daniel and J Ivetts, Children and Social Policy (Basingstoke, Macmillan, 1998) 186.

Towards a More Diverse Schools System: 1980–1997 109 ‘opt out’ as it became known, would in time serve a neoliberal goal of extending the freedom and independence of schools from elements of state control or, alternatively, would actually extend central bureaucratic control.87 But either way it represented a significant assault on the central–local government partnership provided for by the 1944 Act. The implications for LEA hegemony became even more stark following the introduction of the Funding Agency. This was a central executive agency tasked with administering funds to the GM sector, but which was also able to displace LEAs in the framework of responsibility for local schools provision as GM status advanced in an area, thus supporting the Conservatives’ wider agenda to reduce local authority control. The EA 1993 provided that once 10 per cent of the pupils attending schools in the LEA’s area were registered at a GM school, the LEA’s statutory duty to ensure there were ‘sufficient’ schools in their area was to be shared with the Agency. If the proportion reached 75 per cent (the ‘exit point’88) the Agency would assume sole responsibility.89 Primary or secondary school sectors were treated independently for the purposes of this transfer of LEA responsibility, so it was possible for an LEA to lose control of one sector or both. A vital LEA role was thereby surrendered to ‘a body with no democratic foundation, with little sensitivity to local needs and accountable only to the Secretary of State’.90 A similar concern about a local democratic deficit was made some years later, during the Cameron Government, due to the growth of the academy schools sector, as discussed later. There was fierce opposition to GM schools from the Labour Party, many parts of local government and the teaching unions, based on perceptions that these schools’ position was privileged and a concern about their risk to local authority control. Yet GM status had less of an impact than had been expected. By November 1992 there were just 340 GM schools.91 Attempts to breathe new life into the policy by streamlining the acquisition procedure for GM status, extending eligibility to smaller primary schools and encouraging joint applications for GM status by two or more schools, only partially succeeded. By July 1994, there were 930 GM schools but the 10 per cent threshold for shared control was reached for primary schools in only three LEAs, although 45 in the case of secondary schools. In only one LEA (Brent) was the 75 per cent ‘exit point’ reached.92 By this stage just 8.4 per cent of state school pupils, predominantly in the secondary school sector, attended GM schools.93 There was a further increase over the next few years, but it 87 See M Flude and M Hammer, ‘Opting for an Uncertain Future: Grant-Maintaned Schools’ in M Flude and M Hammer (eds), The Education Reform Act 1988: Its Origins and its Implications (London, Falmer, 1990) 51 at 70–71. 88 DfE, Choice and Diversity, Cm 2021 (London, HMSO, 1992) para 4.5. 89 EA 1993, s 12. 90 P Meredith, ‘The Fall and Rise of Local Education Authorities’ (1998) XX Liverpool Law Review 41 at 46. 91 HC Debs, Vol 213, Col 494w, 6 Nov 1992. 92 HC Debs, Vol 246, Col 451, 11 July 1994. 93 Ibid, Cols 451–453.

110 Institutional Diversity in a Developing Schools System was a slow one. By 1997 the 75 per cent exit point had been reached for secondary schools in four LEAs; the 10 per cent threshold was reached in respect of primary schools in eight LEAs and for secondary schools in a total of 57 LEAs.94 Immediately prior to the abolition of GM status in 1999 under the SSFA 1998 there were over 20,000 state schools but only around 1,000 of them had GM status.95 GM schools were returned to the local authority sector, mostly as ‘foundation’ schools, a new category introduced by the incoming Labour Government’s SSFA 1998 (see below).96 Although GM status disappeared, the ideal of the autonomous and self-governing state school survived; and despite Labour’s past opposition to GM status, the party later, when in Government, embraced institutional autonomy and diversity97 through the promotion of specialist status for secondary schools and measures to facilitate the establishment of independent trust schools and the further development of the CTC model. As noted above, CTCs were introduced alongside GM schools under the Education Reform Act 1988. They could also be established as ‘city colleges for the technology of the arts’, but the model was essentially the same. CTCs were the fore-runner of the academies that now dominate the secondary school sector. They were public–private hybrids, established with the aid of private sector sponsorships by proprietors under an agreement with the Secretary of State, but also receiving substantial amounts of public money. Indeed, due to the initial reticence of the business community to sponsor them the Government agreed to meet up to 80 per cent of the capital costs as well as 100 per cent of the running costs.98 From the outset they were classed under statute as independent schools, but were nonetheless subject to a certain degree of central control.99 To belong to this category the school had to cater for pupils of ‘different abilities’ aged 11 or older (this age limit was later revoked100), but they were otherwise able to regulate their own admissions. They were exempt from the statutory requirements applicable to mainstream state schools concerning the National Curriculum and religious education and worship, although their individual funding agreements with central government provided for minimum curriculum requirements consistent with a school’s statutory duty to offer a broad curriculum. By 1997 there were 15 of these colleges. After the Learning and Skills Act 2000, CTCs were permitted to

94 DfE, GM School Statistics (London, DfE, 1997). 95 HL Debs, Vol 312, Col 1608, 19 May 1998. 96 SSFA 1998, Sch 2. Schools that were previously voluntarily aided or special agreement schools had a choice as to whether to be classed as ‘aided’ or ‘foundation’. 97 See, eg, DfES, Higher Standards, Better Schools for All (Cm 6677) (London, TSO, 2005) para 9.2. 98 N Clough, V Lee, I Menter, T Trodd and G Whitty, ‘Restructuring the Education System?’, in L Bash and D Coulby, Education Reform Act: Competition and Control (London, Cassell, 1989) 31 at 42. 99 Education Reform Act 1988, s 105 (see now EA 1996, s 482, as amended by the EA 2002, s 65); see also R v Governors of John Bacon School ex parte Inner London Education Authority (1990) 88 LGR 648; and R v Governors of Haberdashers’ Aske’s Hatcham College Trust ex parte T [1995] ELR 350. 100 By the EA 2002 Act, s 65.

Towards a More Diverse Schools System: 1980–1997 111 be ‘known as a city academy’.101 The name ‘academy’ has, since the Education Act 2002, been attached to all these institutions.102

B. Victims of the Power Shift After 1980 By the time Labour came to power in 1997 the teaching profession in England and Wales was in a state of near crisis. Teachers, seen as the third partners (with LEAs and the Secretary of State) in meeting the goals of the 1944 Act and who in 1967 were still said to enjoy ‘the responsibility and spur of freedom’,103 had experienced a significant undermining of professional autonomy as a result of the centralisation of power that took place in respect of the school curriculum. In addition to the introduction of a national curriculum, as noted above, there were also prescriptions in law regarding the teaching and content of sex education and classroom coverage of political issues.104 Furthermore, the introduction of competition within a quasi-market for schooling, combined with increased accountability to parents through the publication of schools’ pupil results and their inspection reports – which were prepared after 1992 under the new framework for inspection established under the aegis of a new regulatory body, Ofsted105 – had, along with the planned introduction of school performance targets,106 reinforced the pressure to succeed. Pay and career progression difficulties hindered the recruitment and retention of staff. The fact that the determination of teachers’ pay and conditions was by order made by the Secretary of State, albeit on the advice of the School Teachers’ Review Body and after consultation with interested parties including the unions, rather than via national negotiations with the teachers’ associations, had added to the sense of disempowerment and subjugation.107 This reform set in place a change in the relationship between teacher and the state which has continued to generate problems, as for example illustrated by criticism of the period of

101 Education Act 1996, s 482(3A), inserted by the Learning and Skills Act 2000, s 130(1). 102 Education Act 2002, s 65. While no new CTCs (or city colleges for the technology of the arts) could thenceforth be established, those in existence at the time s 65 came into force were not automatically renamed academies: it still required the proprietor’s agreement (ibid, s 68). 103 Central Advisory Council for Education (England) (chair: Lady Plowden), Children and their Primary Schools (London, HMSO, 1967), i, para 876. 104 Education (No 2) Act 1986, ss 44 and 46. See ch 6. 105 Under arrangements within the Education (Schools) Act 1992. See further N Harris, ‘Quality Control and Accountability to the Consumer’ in T Brighouse and B Moon (eds), School Inspection (London, Pitman, 1995) 46. 106 EA 1997, s 19. See DfEE Circular 11/98, Target-setting in Schools (London, DfEE, 1998). 107 The Teachers’ Pay and Conditions Act 1987, replaced by the School Teachers’ Pay and Conditions Act 1991. Teachers’ pay and conditions were determined under an annual School Teachers’ Pay and Conditions Document, which was given effect to by order. The Secretary of State was advised by an Interim Advisory Committee under the 1987 and by the School Teachers’ Review Body, whose members were appointed by the Prime Minister, under the 1991 Act. The EA 2002 (Sch 21 and s 130) repealed the 1991 Act, but the School Teachers’ Review Body continues, although its members are now to be appointed by the Secretary of State rather than the PM: EA 2002, s 119 and Sch 11. See below.

112 Institutional Diversity in a Developing Schools System consultation with the profession and others over the 2017 pay and conditions order: the timescale’s shortness was described by the House of Lords Secondary Legislation Scrutiny Committee as ‘unacceptable’.108 Although teachers were represented on the Teacher Training Agency that was established under the EA 1994 as an executive agency to co-ordinate teacher training and qualification and to ‘promote teaching as a career’,109 the Agency had little power and the Secretary of State was able to issue binding directions to it.110 The Agency’s successor, the Training and Development Agency for Schools, which was established in 2005,111 was similarly weak as is the current (non-statutory) Teaching Agency (TA), which took over from it in 2012. For example, the Framework Document governing the TA makes it clear that the Agency is expected to ‘work with Departmental policy teams and other Agencies to advise on and effectively implement the strategic policy set by Ministers’ and that the Secretary of State ‘reserves the right to intervene if public or parliamentary concerns justify it’.112 For LEAs, the period after 1980 was one of ‘challenge and reductionism’.113 While the 1944 Act had resulted in them having a dominant role as organisers and controllers of school education, thereby ensuring a significant degree of local democratic control and accountability for education services, their hegemony was now in decline. They nevertheless retained responsibility for special educational provision, education welfare, the enforcement of school attendance, provision of school transport, alternative provision for those unable to attend school due to illness or exclusion, and the administration of various forms of financial support, such as school uniform grants and discretionary awards for young people in further education.114 Moreover, they also remained the employers of most school staff, even though their control over staff appointments, promotions, discipline and dismissal had been transferred to school governing bodies.115 But their strategic and planning role was much diminished overall and key areas of responsibility were lost. In relation to both further education and higher education, parallel power transfers occurred.116 Under the Major Government post 1992, LEAs’ status suffered further as a result of measures taken in pursuit of a broad-ranging 108 House of Lords Secondary Legislation Scrutiny Committee, 5th Report of Session 2017–19, School Teachers Pay and Conditions Order 2017 (HL Paper 20) (2017). 109 EA 1994, s 1(2)(b). 110 Ibid. 111 EA 2005, Pt 3. Sch 19 repealed the relevant provisions of the EA 1994. 112 DfE, Teaching Agency: Framework document (London, DfE, 2012) paras 12 and 28. 113 S Whitbourn with K Mitchell and R Morris, What is the LEA For? An Analayis of the Functions and Roles of the Local Education Authority (Slough, Education Management Information Exchange/ National Foundation for Educational Research, 2000) 2. 114 Paid under the EA 1962. 115 See Harris (1995) n 54 above, ch 5. 116 The Education Reform Act 1988 removed polytechnics from LEA control, putting each one under its own higher education corporation, and gave them a central funding body, the Polytechnic and Colleges Funding Council. The Further and Higher Education Act 1992 placed financial control over the sector and overall responsibility for securing sufficient provision for FE with Further Education Funding Councils for England and Wales and gave each college a degree of autonomy (as a ‘further

Towards a More Diverse Schools System: 1980–1997 113 policy to improve efficiency and accountability among public service providers. The policy included the introduction of new central powers under the EA 1993 enabling the Secretary of State to direct LEAs to reduce ‘excessive’ provision. If they failed to publish proposals to this end the Secretary of State could bring forward proposals of her own. Furthermore, the Secretary of State rather than the LEA was now the judge of whether local provision was excessive. The Government wanted to remove over-capacity from schools (there being some 1.5 million surplus places across England and Wales) at a time of falling rolls, and thereby achieve a more efficient use of resources.117 The effect of the reforms was to weaken still further LEAs’ planning function. The 1993 Act also repealed parts of the 1944 Act that had required LEAs to establish an education committee and had empowered them to authorise the committee to exercise on the authority’s behalf any of its functions relating to education.118 According to Simon and Chitty, this reform implied ‘the end of the local education authority’ and would destroy a crucial element of the 1944 Act’s scheme of administration.119 Moreover, the 1993 Act also reformulated the Secretary of State’s general duty to promote education, noted above. This duty, in s 1 of the 1944 Act, included a requirement to ‘secure the effective execution by local authorities … of the national policy for providing a varied and comprehensive educational service in every area’. However, that part of the duty was now removed.120 Although the Government argued that this change reflected the extended scope of the duty to include all levels of education, including higher education,121 which was not the LEAs’ responsibility, it was seen by some as highly symbolic in that it seemed to challenge the notion of local democracy that the 1944 Act structure represented.122 While the greater autonomy for schools and the reduced LEA control resulting from the Education Reform Act 1988 could at least be rationalised as enabling authorities to ‘concentrate on overall strategy, support to schools and assuring the quality of their performance’, the 1993 Act seemed to be questioning ‘the very idea of a local system of education … and with it the role of the LEA’.123 The importance attached by many to the idea of local democratic control of schools stemmed from the way that these institutions were

education corporation’). For background see Secretary of State for Education, Higher Education: Meeting the Challenge (London, HMSO, 1987); Idem, Education and Training for the 21st Century: The Challenge to Colleges, Cm 1536 (London, HMSO, 1991), ii; Idem, Higher Education: A New Framework, Cm 1541 (London, HMSO, 1991). 117 HL Debs, Vol 545, Col 1031, per Baroness Blatch, Minister of State. 118 EA 1962, s 6(2) and First Schedule, Pt II, repealed by the Education Act 1993, s 296. 119 B Simon and C Chitty, SOS – Save Our Schools (London, Lawrence and Wishart, 1992) 149–50 (original emphasis). 120 EA 1993, s 1. 121 HL Debs, Vol 544, Col 1374, per Baroness Blatch, Minister of State. 122 S Ranson, ‘Local Democracy for the Learning Society’ in National Commission on Education, Briefings (London Heinemann, 1993), 267 at 272 and 275. 123 Ibid at 271–2.

114 Institutional Diversity in a Developing Schools System a resource in which the local community had continuing interests and stood for the benefit of future generations as well as ‘the immediate consumers’.124 Measures for increasing further the accountability of LEAs were introduced under the EA 1997, in the final months of the Major Government, providing for the inspection of authorities at the instigation of either the Secretary of State or Chief Inspector of Schools.125 It further emphasised the more strict control under which LEAs increasingly operated. LEAs and teachers were clearly the victims of the post-1980 power shift. The beneficiaries were schools, particularly those which had availed themselves of the opportunity afforded by GM status for acquiring greater autonomy within a more diverse system. Parents, with their enhanced rights of choice and participation in schools, also benefited. But above all, the reforms resulted in a much more empowered central government.

V. Diversity and Control of Schools Under ‘New Labour’ 1997–2010 From 1997 to 2007 we were New Labour. In June 2007 we stopped.126

Tony Blair’s assertion that his handover of the leadership of the Labour Party to Gordon Brown after 10 years spelled the end of a period of bold reform aiming to transform public services by, inter alia, acknowledging the benefits of adopting the previous Conservative Government’s business/market orientation towards them whilst developing them in a more socially inclusive way, is not wholly borne out in the field of education. Under Brown’s premiership from 2007–10 there were important reforms to the law governing qualifications and the regulation of independent schools. But reform was relatively modest in scale, certainly compared with the decade to 2007, and concentrated mostly on the post-16/post-school sector. Whether or not ‘New Labour’, as the Labour Party’s self-identity, died in 2007 as Blair suggests or whether its demise coincided with Labour’s 2010 general election defeat, as is more generally accepted,127 the fact remains that, as discussed below, these were years in which the schools system and its legal landscape underwent massive centrallydriven reform, which among other things added new complexities to law and governance in this field.

124 I Leigh, Law, Politics and Local Democracy (Oxford, OUP, 2000) 159. 125 EA 1997, ss 38–41. 126 Tony Blair, quote from a speech to Progress thinktank, 2011, cited in P Curtis, ‘Tony Blair: New Labour died when I handed over to Gordon Brown’, The Guardian (online), 8 July 2011, www.theguardian. com/politics/2011/jul/08/tony-blair-new-labour-gordon-brown. 127 See, eg, A Gamble, ‘Inside New Labour’ (2012) 14 BJPIR 492.

Diversity and Control of Schools Under ‘New Labour’ 1997–2010 115

A. ‘Education, Education, Education’ i. The Standards Agenda Labour’s political manifesto resounded in 1996 to the rhetoric of ‘education, education, education’ which the party leader identified as his three priorities for government.128 The schools White Paper, published shortly after the general election that returned Labour – donning the mantle of ‘New Labour’ – to power after 18 years, proclaimed that education was now being placed ‘at the heart of government’ and was the new government’s ‘number one priority’.129 Behind the rhetoric there was genuine intent to commit additional resources to the party’s education policy goals. The White Paper pledged an increase in the proportion of national income spent on education.130 A ‘New Deal for Schools’ was announced, under which more support staff would be provided and bids could be made for funds to improve the condition of school buildings and enhance technological facilities in them.131 The new government’s central message was perhaps a familiar one heard from new governments, that there was a need to improve educational standards for all children. But there was a real policy push involving proposed national targets for literacy and numeracy among 11-year-olds and a commitment to tackle the under-achievement among children from the minority ethnic backgrounds with the poorest record of academic attainment.132 This was not only part of the new government’s standards agenda for education but also reflected its intention to increase social inclusion, as can be seen in the proposed government amendments to the School Standards and Framework Bill in 1998 to incorporate recommendations of the recently established Social Exclusion Unit on ways of tackling truancy and reducing levels of pupil exclusion.133 In Opportunity for All, published in 1999, the Government cited education as ‘the most important route into work, and out of poverty and social exclusion’.134 Blair’s 1996 speech had also offered a promise that there would be ‘no return to the 11-plus’ and that the comprehensive system would ‘stay, modernised for today’s world’.135 Modernisation, said Blair, meant making the system more responsive to ‘children’s different abilities’ and ensuring 128 Tony Blair, Leader’s Speech at the Labour Party Conference, Blackpool, 1996, www.britishpoliticalspeech. org/speech-archive.htm?speech=202. 129 DfEE, Excellence in Schools, Cm 3681 (London, TSO, 1997), ch 1, para 15. See also, Welsh Office, Building Excellent School Together, Cm 3701 (TSO, 1997). 130 DfEE (1997) n 129 above ch 1, para 15. 131 See, eg, DfEE, New Deal for Schools (NDS): Schemes Beginning in 1998–99 (London, DfEE, 1997). 132 DfEE (1997) n 129 above ch 4, para 2. The targets were that 80 per cent of 11-year-olds would reach the required levels in English and 75 per cent the required level in mathematics, compared with less than 60 per cent who were achieving those levels in these subjects: ibid, ch 2, para 21. 133 Social Exclusion Unit, Truancy and School Exclusion: Report by the Social Exclusion Unit, Cm 3957 (London, TSO, 1998). 134 Secretary of State for Social Security, Opportunity for All. Tackling Poverty and Social Exclusion, Cm 4445 (London, TSO, 1999) 45. 135 N 128 above.

116 Institutional Diversity in a Developing Schools System that all children had the opportunity of attending a good state school.136 The latter reflected a preoccupation with standards, but with an accompanying emphasis on accountability and responsibility attached to schools and local authorities (including ‘naming and shaming’), part of what Gunter sees as a neo-liberalistic challenge to public institutions and professional practices.137 The SSFA 1998 was the first major piece of education legislation on schools ever enacted under a Labour Government. The Act’s stated central purpose was the raising of standards of education for all children of school age. Thus, for example, LEAs were placed under a new general duty to exercise their functions ‘with a view to promoting high standards of education’.138 However, despite the preceding White Paper’s claim that ‘standards matter more than structures’ and its argument that ‘the preoccupation with school structure has absorbed a great deal of energy to little effect’,139 the 1998 Act made some important structural changes. They included the abolition of GM status, noted above. GM schools were reclassified either as ‘foundation’ schools – a new status which meant that they retained some of the autonomy they enjoyed as GM, but were once again LEA-maintained – or, if they had previously been voluntary aided or special agreement schools, as voluntary aided schools.140 The Funding Agency for Schools was no longer needed and it was also abolished. Preceding these structural changes, and in furtherance of another of Blair’s express commitments, came the scrapping of the assisted places scheme.141 This reform was justified through a pragmatic rationale rather than on an ideological basis. The Government said it enabled it to reallocate the funds the previous administration had committed to the scheme (the scheme’s budget in England in 1996/97 had been set at £140 million). The funds would be used to facilitate a reduction in class sizes for 5–7 year olds to no more than 30 children.142 The scheme was closed to new entrants and phased out over a number of years so that those whose private education was funded by it could complete their schooling. Structural change was, however, fairly limited overall. The Government’s downplaying of the importance of ‘structures’ seems to have represented a politically motivated effort to justify an unwillingness to replace or reform many of the features that had been set in place by its Conservative predecessors. They included the devolved budgetary and managerial control for school governing bodies – indeed, the Government wanted to increase the proportion of LEAs’ schools budgets devolved to governing bodies, previously around 90 per cent143 – and the quasi-market for school places. 136 Ibid. 137 H M Gunter, Leadership and the Reform of Education (Bristol, Policy Press, 2012) 10–11. 138 SSFA 1998, s 5, adding s 13A to the Education Act 1996. This duty was replicated in the replacement s 13A introduced under the EIA 2006, s 1, but ‘promoting the fulfilment by every child … of his educational potential’ was added. 139 DfEE, Excellence in Schools n 129 above, ch 1, para 17. 140 SSFA 1998, Sch 2, para 3. 141 Education (Schools) Act 1997. 142 HC Debs Vol 295 Col 592, 5 June 1997, per S Byers MP (Minister for Education). 143 DfEE Excellence in Schools n 129 above, ch 7, para 21. See also DfEE, Fair Funding: Improving Delegation to Schools (London, DfEE, 1998).

Diversity and Control of Schools Under ‘New Labour’ 1997–2010 117 The school inspection system under Ofsted and controls over failing schools were also retained, although some reforms were made later through the repeal of the School Inspections Act 1996 and the institution of a new inspection framework under Part 1 of the Education Act 2005.144 The National Curriculum also continued, although was incrementally reformed.145 For LEAs, a significant feature of the SSFA 1998 was the way it placed them under increased regulation whilst simultaneously halting, and to some extent reversing, the decline in their role. Greater powers over underperforming authorities were established. Arrangements for inspection of LEAs had been introduced under the Conservatives’ Education Act 1997, as noted above, but there were no enforcement measures or sanctions to deal with underperformance; and the Secretary of State’s general default powers originating from the 1944 Act146 and consolidated into the 1996 Act,147 noted above, to issue directions to LEAs that acted unreasonably or were in default of duty, were of little relevance. The SSFA 1998 therefore sought to remedy this lacuna by providing that where an LEA failed to carry out any of its functions adequately the Secretary of State would be able to issue directions to it or appoint a person (or persons) external to the authority to carry out any of them.148 Building on this framework, the EIA 2006 introduced a new power enabling the Secretary of State to issue a direction to an LEA where one or more of its schools was found to require significant improvement or special measures (see below). The direction would require the LEA to enter into a contract or other arrangement with a specified person or persons from within a specified class to provide ‘specified services of an advisory nature’.149 This far-reaching and potentially privatising power was exercisable where the Secretary of State considered that the LEA had, inter alia, either been or was likely to be ineffective in ‘eliminating deficiencies’ in the conduct of the school(s) or maintained a ‘disproportionate’ number of schools of such a description.150 This was already a period in which ‘outsourcing’ of LEA services was increasing. For example, Cambridge Education Services was operating Islington LEA’s central services, Nord Anglia held a contract for Hackney LEA’s School Improvement and Ethnic Minority Achievement services and for Westminster City Council’s school improvement services, while Capita provided management support for Haringey LEA. It was reported in 2000 that the Government expected that there would be ‘15 major interventions’ in LEAs which were failing.151 There was also a 144 Amendments are also made by this Act with regard to the inspection of independent schools. 145 See ch 6. 146 EA 1944, ss 68 and 99. 147 EA 1996, ss 496 and 497. 148 Ibid, ss 497A and 497B, added by s 8 of the SSFA 1998. Note also new s 497AA, added to the EA 1996 by the EA 2002, s 61, under which an LEA one or more of whose schools has serious weaknesses or is failing could be required to enter into a contract or arrangement to be provided with services of an advisory nature. 149 EA 2002, s 62A, inserted by the EIA 2006, Sch 7, para 20. 150 Ibid. 151 BBC News Report ‘New opening for education advisers’, 2 February 2000, at http://news.bbc. co.uk/1/hi/education/628894.stm.

118 Institutional Diversity in a Developing Schools System minor change to the structure of LEAs, aimed at increasing their public accountability. A requirement was introduced that education committees should have one or more parent governors, or, where expedient, elected representatives of parents of registered pupils.152 Subsequently, the Local Government Act 2000 provided for overview and scrutiny committees with elected parent members in addition to representation of certain religious or foundation bodies.153 The areas where LEAs’ role was revived were school organisation and planning. This was consistent with their continuing overall statutory responsibility under the EA 1996 for ensuring a sufficiency of educational provision appropriate to the needs of those in their area. However, the reforms instituted increased bureaucracy rather than autonomy for LEAs. There was a new duty to prepare and publish a draft school organisation plan for their area.154 The plan, along with any objections made to it, had to be placed before a school organisation committee established by the authority155 and if the committee could not agree the plan the matter had to be referred to the new schools adjudicator for determination.156 The Act also gave LEAs a duty to prepare and seek ministerial approval for an education development plan for their area, setting out proposals for ‘raising the standards of education’ for children at the LEA’s own schools or elsewhere and ‘improving the performance’ of schools.157 LEAs were also given new powers of intervention, reformulated under the EIA 2006, in respect of schools where the standard of performance among pupils at a school was unacceptably low, management at the school had broken down to such an extent that educational standards were being, or were likely to be, prejudiced, or the safety of pupils or staff at the school was under threat.158 The powers, to appoint additional governors or suspend the school’s delegated budget, were also available where a school was found by inspectors to have ‘serious weaknesses’159 (a classification later replaced by that of ‘requiring significant

152 SSFA 1998, s 9, amending s 499 of the EA 1996. See further the Education (Parent Governor Representatives) Regulations 1999 (SI 1999/1949), revoked and replaced by the Parent Governor Representatives (England) Regulations 2001 (SI 2001/478). 153 Local Government Act 2000, s 21 and the Parent Governor Representatives (England) Regulations 2001 (SI 2001/478). 154 SSFA 1998, s 26; the Education (School Organisation Plans) (England) Regulations 1999 (SI 1999/701), as amended; the Education (School Organisation Plans) (Wales) Regulations 2003 (SI 2003/1732) (W 190). 155 SSFA 1998, s 24 and Sch 4. See further the Education (School Organisation Committees) (England) Regulations 1999 (SI 1999/700). 156 SSFA 1998, ss 25, 26 and 27 and Sch 5. See DfEE, School Organisation and Admissions Adjudicator – A Note by the DfEE (London, DfEE, 1998). The adjudicator, whose jurisdiction in respect of school admission arrangements is discussed in ch 5, is appointed by the Secretary of State. 157 SSFA 1998, ss 6 and 7. See further DfEE, Excellence in Schools n 129 above, ch 3, paras 21–24. 158 SSFA 1998, ss 14 and 15(1)–(3); EIA 2006, ss 64 and 66. 159 SSFA 1998, ss 14 and 15(4)–(5). A school was defined as having ‘serious weaknesses’ if ‘although giving its pupils in general an acceptable standard of education, it has significant weaknesses in one or more areas of its activities’: School Inspections Act 1996, s 16A, inserted by the 2002 Act, s 54. See also the 1998 Act, s 15(5). A school requires significant improvement where it is ‘performing significantly less well than it might in all the circumstances reasonably be expected to perform’: EA 2005, s 44(2).

Diversity and Control of Schools Under ‘New Labour’ 1997–2010 119 improvement’)160 or required ‘special measures’, meaning that it was categorised as ‘failing’.161 The Secretary of State was also given intervention powers over failing schools – including ultimately, following consultation, to close the school162 – later extended under the EA 2002 to include schools found to require significant improvement.163 The EA 2002 also enabled earlier intervention in relation to schools that were failing or had serious weaknesses.164 Central powers of intervention in respect of inadequate sixth forms were also introduced.165 The 2002 Act also introduced new powers to place the management of an under-performing school under an executive body in place of its governing body. It would be a drastic step to take, as the governing body is intended to bring an element of local democratic decision-making into schools through parental and community representation. This method was first sanctioned by the EA 1993, under which a failing school could be placed under the control of an ‘education association’ comprising a board of around five or six people combining a range of relevant skills and experience to manage the school for a period of around six months with a view to securing its improvement or, if that was unachievable, its closure.166 The power was used only once, however, and the SSFA 1998 revoked it. The new system was established by the EA 2002, reformulated under the EIA 2006, and involves the replacement of the governors of a school that is failing, has serious weaknesses or has formally been warned, by a body of at least two ‘interim executive members’.167 Measures to increase social inclusion represented the other major plank in the Blair Government’s education policy post-1997, as noted earlier. One of the initiatives launched by the 1998 Act was the creation of education action zones (EAZs). The zones reflected the Government’s ‘partnership’ approach to public services provision, which was to continue, but as such worked against LEA control. The intention was to establish EAZs comprising two or more schools and their feeder primary schools (plus, following amendments in 2002, nursery schools, PRUs and

160 SSFA 1998, s 14(1)(b) and (3), as amended by the EA 2005, s 14(2). 161 SSFA 1998, ss 14 and 15(6). See now the EA 2005, s 44(1), which says that a school requires special measures where not only is it ‘failing to give its pupils an acceptable standard of education’ but also ‘the persons responsible for leading, managing or governing the school are not demonstrating the capacity to secure the necessary improvement in the school’. 162 SSFA 1998, ss 18 and 19 (which has been amended by the EA 2005, s 45); and the EIA 2006, s 68. 163 SSFA 1998, ss 18 and 19, as amended by the 2002 Act, s 56. HMCI is under a duty to notify the Secretary of State and send the inspector’s report to the LEA where the inspector has concluded that a school requires significant improvement or the taking of special measures: EA 2005, ss 13 and 14, replacing School Inspections Act 1996, s 16A, inserted by the 2002 Act, s 54. 164 EA 2002, ss 54 and 55. Collectively they are known now as schools ‘causing concern’. 165 Learning and Skills Act 2000, s 113 and Sch 7. 166 EA 1993, ss 218–228. See further N Harris, ‘Too Bad? The Closure of Hackney Downs School under section 225 of the Education Act 1993’ (1996) 8 Education & the Law 109. 167 SSFA 1998, s 19A, inserted by the 2002 Act, s 59. This power was exercisable by or with the consent of the Secretary of State: SSFA 1998, ss 16A and 18A, inserted by the 2002 Act, ss 57 and 58, and then the EIA 2006 ss 65, 69 and Sch 6. The constitution of the governing body with interim executive members was prescribed by the 1998 Act, new Sch 1A, inserted by the 2002 Act, Sch 6 and then under the EIA 2006, s 70 and Sch 6.

120 Institutional Diversity in a Developing Schools System independent schools168) in ‘areas with a mix of underperforming schools and the highest levels of disadvantage’.169 The Secretary of State was given a wide discretion to establish an EAZ where it was considered ‘expedient to do so with a view to improving standards in the provision of education at maintained schools’.170 The first 25 zones were established in September 1998 and January 1999; a second round of 47 zones commenced in September 2000.171 The zones could be established for three years initially, with the possibility of a two year extension.172 The management of an EAZ was not the responsibility of the LEA but of an ‘education action forum’ typically comprising representatives of schools, the LEA, parents and the business and social communities.173 Moreover, many of these forums were led by local business people.174 The forum’s main object was, as prescribed by the Act, ‘the improvement of standards of education at each of the participating schools’.175 Their remit was extended by the EA 2002 to ‘carry on any other activities which it considers will promote the provision of, or access to, education whether in a participating school or otherwise’,176 a reform reflecting the Government’s growing confidence in the role of EAZs. The Government viewed the EAZ initiative as enabling educational problems in socially deprived areas to be targeted more effectively and as a key element in its drive towards achieving the national targets for literacy and numeracy announced in the 1997 White Paper. Many of the schools within EAZs were ones which were found by inspectors to have serious weaknesses or to require special measures.177 The potential contribution of EAZs to improved levels of attainment and participation among children and young people from areas of social disadvantage and under-achievement was bolstered by giving them a high priority for central government funding for a range of initiatives such as those concerned with literacy and numeracy, homework centres and out of school facilities, and specialisation in subjects such as technology, languages, sports or the arts. In addition, the intention was that schools within EAZs would benefit from significant funding allocations, of which up to 75 per cent would come from the public sector and the rest from private sector sponsorship,178 although the target for private sector 168 SSFA 1998, s 10(1A), inserted by the Education Act 2002, Sch 15, para 2(2). 169 Department for Education and Employment, Excellence in Schools, Cm 3681 (London, TSO, 1997), ch 4, para 7. 170 SSFA 1998, s 10(1). 171 Ofsted, Excellence in Cities and Education Action Zones: Management and Impact HMI 1399 (London, Ofsted, 2003) para 13. 172 SSFA 1998, s 10(2). Most of the initial EAZs were extended beyond 3 years: Ofsted, n 171 above. 173 SSFA 1998, s 11(3) and 11A. 174 Ofsted, Education Action Zones: Commentary on the First Six Zone Inspections (London, Ofsted, 2001), para 13. 175 SSFA 1998, s 12(1). 176 Ibid, s 12(1A), inserted by the EA 2002, Sch 15, para 7. The forum needed the Secretary of State’s consent. 177 Ofsted, n 174 above, para 7. 178 HL Debs, Vol 589, Col 1558, 19 May 1998, per Baroness Blackstone. In their two-year extension period the zones receive an annual grant of £500,000 plus £1 for each £1 of private sector sponsorship, up to £250,000: Ofsted, n 174 above, para 19.

Diversity and Control of Schools Under ‘New Labour’ 1997–2010 121 sponsorship was often not in fact reached.179 EAZ schools had flexibility in both the curriculum and the pay and conditions of service of teaching staff.180 For in addition to being able to depart from the National Curriculum, for example,181 they could also run a range of non-traditional activities within their schools aimed at promoting inclusion, including artistic projects, breakfast clubs and mentoring and counselling schemes.182 But there were concerns that the zones could be divisive as a result of their schools being likely to have superior facilities and provision to other schools.183 The promise of higher salaries for teachers working in zones was also potentially divisive but could often be justified by reference to the greater teacher recruitment difficulties in low-achieving urban schools. The EAZ initiative was regarded as a flagship government policy for tackling social exclusion and under-achievement in poorer urban areas. It sits alongside another important development, the Excellence in Cities (EiCs) programme, launched in 1999, which also operated on a national basis and had a significant allocation of central government funding. The aims of the EiC programme were similar to those of EAZs: ‘to break the spiral of poor attendance, poor behaviour and high exclusion rates among the most disaffected and vulnerable pupils, by offering them personal and academic support … needed to make the best of their opportunities in school’.184 The programme also aimed to raise overall levels of attainment, increase diversity of provision, and strengthen partnerships in education, especially between LEAs and schools.185 While achieving success with the last of these objectives,186 both it and the EAZ initiative had a more mixed success with regard to raising levels of achievement and tackling social exclusion. Ofsted found few instances of improved school attendance in EAZs and that while EAZ primary schools saw improvements in literacy and numeracy, the gap in achievement levels among 11–16 year olds between EAZ schools and other schools was not closing overall.187 The strong correlation between poor school attendance and low achievement in EAZs made the lack of progress a concern.188 In EiC areas, however, overall improvements in attainment among this age group were above those achieved nationally.189

179 Ofsted n 174 above 180 SSFA 1998, s 13. 181 Secretary of State for Social Security, Opportunity for All. Tackling Poverty and Social Exclusion, Cm 4445 (London, TSO, 1999) 51. 182 Ofsted, Excellence in Cities and Education Action Zones: Management and Impact, HMI 1399 (London, Ofsted, 2003), para 50. 183 Department for Education and Employment, Summary of Main Points Arising from the Responses to School Consultations (London, DfEE, 1997) (published Dec 1997). 184 Ibid, para 19. 185 Ibid, paras 27 and 28. 186 Ibid, para 30. 187 Ofsted, Education Action Zones: Commentary on the First Six Zone Inspections (London, Ofsted, 2001), paras 38 and 39. 188 Ibid, para 220. 189 Ofsted, n 182 above.

122 Institutional Diversity in a Developing Schools System Also central to the standards agenda was the policy aim of reducing class sizes, noted above. Disparities in class sizes, particularly between state and private schools, was condemned as one of the underlying structural inequalities in schooling.190 The Labour Government gave a commitment that by the end of the Parliament there would be no 5, 6 or 7-year-olds taught in classes larger than 30 pupils.191 Under s 1 of the SSFA 1998 the Secretary of State was empowered to impose such a limit (amendable by order) for infant classes in maintained schools. The new limit came into effect in the 2001–2 school year. LEAs were able to apply for grants to meet expenditure incurred in complying with it.192 A Coopers and Lybrand report for the Local Government Association doubted whether the Government’s stipulation that LEA plans for implementing the limit should not diminish parental preference was achievable without significant extra resources to pay for more classrooms or space in popular schools.193 Unprecedented legislative attention was also given during this period to nursery and early years education,194 including a requirement for an ‘early years development partnership’, representing providers, parents, employers and others, in each area,195 and new duties on LEAs to ensure that nursery education provision was ‘sufficient’ in their area and to prepare an early years development plan.196 The Chief Inspector of Schools was empowered to publish reports of nursery inspections.197 Another threat to children’s educational prospects, indiscipline in schools, was also the subject of legislative changes. Particularly important were the reforms to the law on exclusion from school, including the introduction of greater independence for appeal panels hearing appeals against permanent exclusion and a duty on those with responsibility for decisions on exclusion to have regard to Department for Education guidance.198 At a time when the number of permanent exclusions in England had reached a peak of 12,655 cases in 1996–7, the highest since national monitoring was first instituted in the early 1990s, the guidance was seen as important in trying to rein in and prevent exclusion, which had damaging effects and was experienced disproportionately by some minority ethnic groups, and boys in particular.199 Many children excluded from school received provision, mostly part-time, in PRUs, under LEAs’ statutory duty under s 19 of the Education Act 1996 to make alternative arrangements for such children, a duty which was discussed 190 H Maitles, ‘Children and Education: Inequalities in Our Schools’ in B Goldson, M Lavalette and J McKechnie (eds), Children, Welfare and the State (London, Sage, 2002) 73. 191 DfEE n 129 above, ch 2, para 16; see also HC, Standing Committee A, Col 65, 22 Jan 1998, per Ms Estelle Morris MP, Under-Secretary of State. 192 SSFA 1998, ss 2 and 3 and the Education (Infant Class Sizes) Grant Regulations 1999 (SI 1999/14). 193 See S Thornton, ‘Class size cannot limit choice, ministers warn’, Times Educational Supplement, 12 June 1998. 194 SSFA 1998, ss 117–124. 195 SSFA 1998, s 119; DfEE, Excellence in Schools Cm 3681 (London, TSO, 1997), ch 2, paras 5 and 6. 196 SSFA 1998, ss 118 and 120. 197 Ibid s 134, inserting new School Inspections Act 1996, s 42A. 198 SSFA 1998, ss 64–68 and Sch 18. 199 See further ch 2.

Diversity and Control of Schools Under ‘New Labour’ 1997–2010 123 in Chapter 2 above. In 2009 Labour made provision for a prospective change of name for these schools to ‘short stay schools’,200 to emphasise that the education that children would receive under these alternative arrangements would still be equivalent to mainstream school education – albeit that it was generally expected to be short term in most cases – and as a statement of the Government’s commitment to improve the quality of the provision made and counter ‘the baggage of negative attitudes that have grown up around the term “pupil referral unit”’.201 The following year, as noted in Chapter 2, a statutory presumption that the educational provision made under such alternative education arrangements would be full-time rather than part-time was introduced.202 However, the name change from PRU was never implemented and in 2011 the Coalition Government removed provision for it203 as well as enabling PRUs to become alternative provision academies.204 In 2018, the House of Commons Education Committee, following its review of alternative provision and exclusions, recommended that PRUs ‘should be renamed to remove the stigma and stop parents being reluctant to send their children there’.205 The Committee made the sensible suggestion that pupils attending such institutions should be consulted in the development of new terminology.206 Looking back at the above reforms under Labour, it is clear that the Government was determined to set in place a range of regulatory measures specifically designed to drive up improvements in standards and levels of attainment. As Gibton puts it, it was a case of ‘government turns regulator’.207 The reforms ranged from compelling LEAs and schools to plan for improvement through to various processes for holding schools and LEAs to account if targets went unmet or if standards, including standards of pupil behaviour, were unreasonably low. New powers, for example, were available by which the Secretary of State could instigate a takeover or closure of a school. In targeting the inner cities for greater support via a range of initiatives, such as EiCs, the Labour Government could be said to have recognised that the schools located in such areas tend to be the worst casualties of the market system, under-achieving and under-funded, while offering a poor choice to parents who want a good education for their children. There was also a growing realisation that education failures have wider social consequences and that the importance of improving education stems from a need to tackle a range of social problems.

200 Apprenticeships, Skills, Children and Learning Act 2009, s 249. 201 House of Commons, Official Report, Public Bill Committee, Apprenticeships, Children and Learning Bill, Col 876, 26 March 2009, Sarah McCarthy-Fry MP. 202 Via an amendment to the EA 1996, s 19. 203 EA 2011, s 51 repealing the relevant parts of the 2009 Act, s 249. 204 See ‘Academies’ below. 205 House of Commons Education Committee, Forgotten children: alternative provision and the scandal of ever increasing exclusions Fifth Report of Session 2017–19, HC 342 (London, House of Commons, 2018), para 58. 206 Ibid. 207 Gibton n 2 above, 31.

124 Institutional Diversity in a Developing Schools System

ii. ‘Modernisation’: Regulation of Teachers and School Government Also linked to the standards agenda was modernisation, another key theme of education reform in the decade from 1997. From the perspective of schools and the country’s 400,000 teachers,208 the scale and speed of reform and the growing pressure to succeed presented an enormous challenge, at a time of some demoralisation within the profession. Yet pressure was increased by the Government’s intention to make teachers ‘accountable’ for their performance in raising achievement levels.209 Modernisation of the teaching profession was considered necessary, to equip it better for the challenges that lay ahead. The first stage involved the establishment under the Teaching and Higher Education Act 1998210 of a General Teaching Council (GTC) in England and a separate one for Wales, intended as a representative body equivalent to the Law Society or the General Medical Council although with less autonomy given the involvement of the Secretary of State in its constitution and in defining its role.211 The GTC’s functions were to advise the Secretary of State and others on teaching standards and teacher recruitment, maintain a register of qualified teachers, and issue and keep under review a Code of Practice laying down expected standards of professional conduct and practice.212 It exercised disciplinary functions and could impose sanctions on teachers ranging from reprimands to prohibition orders. Teachers formed a majority of the members of the GTC, but employers and parents were also represented. The GTC was expected, somewhat over-optimistically, to ‘help to restore the morale of the teaching profession’.213 But teachers were mistrustful of it and felt they were being overly scrutinised, while some sections of the press complained that not enough incompetent or misbehaving teachers were sufficiently firmly dealt with. The post-2010 Coalition Government decided that the GTC in England ‘had failed to sufficiently regulate the teaching profession and was no solution to the persistence of incompetence’.214 The GTC was abolished in 2012 under the Education Act 2011.215 Incompetence was thereafter to be handled by individual schools while cases of professional misconduct (along with responsibility for

208 DfEE, Press Notice 206/98, Teachers in Service (January 1998), 27 Apr 1998. 209 DfEE, Excellence in Schools n 129 above, ch 5, para 4. 210 Sections 1–15 and Schs 1 and 2 and the General Teaching Council for England (Constitution) Regulations 1999 (SI 1999/1726) (as amended) and the Same (Wales) Regulations 1999 (SI 1999/1619). 211 DfEE, Excellence in Schools n 129 above ch 5, para 35; Idem, Teaching: High Status, High Standards (London: DfE, 1997). See also A Blair and G Whalley, ‘An Assessment of the Present Role of the General Teaching Council for England’ (2003) 4 Education Law 148 at 149. 212 Teaching and Higher Education Act 1998, ss 2–7 and the General Teaching Council for England (Additional Functions) Order 2000 (SI 2000/2175) (as amended) and Same (Wales) Order 2000 (SI 2000/1941) (as amended). 213 DfEE, Excellence in Schools n 129 above, ch 5, para 36. 214 D Page, ‘The abolition of the General Teaching Council for England and the future of teacher discipline’ (2013) 28(2) Journal of Education Policy 231, 234. 215 EA 2011, ss 7–12 and Schs 2 and 3.

Diversity and Control of Schools Under ‘New Labour’ 1997–2010 125 the recruitment, supply, initial training and development of teachers) fell within the remit of the new Teaching Agency.216 Page, however, argues that the apparent decentralisation of regulation of teacher competence must be viewed in the context of increasing central regulation of school standards through Ofsted.217 Other changes of note were made by the Labour Government in the light of a consultation document, Teachers: Meeting the Challenge of Change,218 heralded by the education press as ‘the most significant event since the 1988 Education Reform Act.’219 The Government wanted to improve training and support and change the career structure of the teaching profession. There would be greater rewards, in terms of career advancement and higher pay, but in return for high levels of performance. A minority of teachers could expect to be placed on a new ‘leadership’ grade, with enhanced pay. Teachers would have to participate in new appraisal arrangements, involving an annual assessment of their performance against agreed objectives. Talented trainee teachers could be placed on a fast track for career progression. However, experience in other countries operating incentive and reward schemes, such as Sweden and parts of the US, was not altogether positive, with evidence that they engendered division and caused stress and extra burdens for principals in conducting the evaluations and making recommendations.220 All of these proposals were nonetheless implemented, mostly by statutory instrument.221 There continue to be requirements for teacher appraisal.222 The 2002 Act sets out a framework, supplemented greatly by regulations,223 on qualified teacher status and registration and ongoing professional development.224 The general position on pay and conditions has continued: these matters are governed by secondary legislation based on the recommendations of the School Teachers’ Review Body, noted above.225 Also introduced was a power for the Secretary of State to require head teachers to hold a ‘professional headship qualification’.226 The power was restated in 216 Above. See further Department for Education, Teaching Agency: Framework document (London, DfE, 2012). 217 Page, n 214 above, at 242. 218 DfEE, Teachers: Meeting the Challenge of Change (London, DfEE, 1998). 219 Editorial, The Times Educational Supplement, 4 Dec 1998, 14. 220 K Riley, ‘And the winner is …’, Guardian Education, 8 Dec 1998, 4; and Anon, ‘Frosty on the fast track and anxious about appraisal’, The Times Educational Supplement, 4 Dec 1998, 4. 221 Eg, The Education (School Teacher Appraisal) (England) Regulations 2001 (SI 2001/2855) and (Wales) Regulations 2001 (SI 2001/1394 (W.137)) (made under the Education (No 2) Act 1986, s 49, as amended); the Education (Head Teachers’ Qualifications) (England) Regulations 2003 (SI 2003/3111), made under the EA 2002, s 135. Allowances for advanced skills teachers were first prescribed in the Education (School Teachers’ Pay and Conditions) (No 3) Order 2001 (SI 2001/1284). 222 EA 2002, s 131 and the Education (School Teacher Appraisal) (England) Regulations 2012 (SI 2012/115) (as amended). 223 See the Education Act 2002 (School Teachers) (Consequential Amendments, Etc) (England) Regulations 2003 (SI 2003/2039); the Education (School Teachers’ Qualifications) (England) Regulations 2003 (SI 2003/1662); and the Education (Health Standards) (England) Regulations 2003 (SI 2003/3139). 224 EA 2002, ss 132–136. 225 EA 2002, ss 119–130 and Sch 11. 226 Teaching and Higher Education Act 1998, s 18, amending the Education Reform Act 1988, s 218.

126 Institutional Diversity in a Developing Schools System the Education Act 2002, and by 2004 some 12,000 head teachers and aspiring head teachers had taken the National Professional Qualification for Headship.227 However, the prescribed requirements for head teachers were revoked in 2012 and have not been replaced.228 Nonetheless, in the years that have followed there has been a strong policy emphasis, backed up by a growing volume of research,229 on the importance to educational quality of strong leadership in schools,230 although the policy preoccupation with leadership has also been associated with attempts to take education into increasingly managerialist, business and quasi-entrepreneurial terrain and foster a ‘leadership industry’.231 The attempt to modernise teaching and raise the status of the teaching profession formed part of the Labour Government’s drive to raise standards of education and achievement in England’s schools. In the years that followed, teaching quality and shortfalls in teacher recruitment and retention were continuing concerns but were unresolved. The incoming Conservative-led Coalition Government in 2010 titled its first White Paper on education The Importance of Teaching, stating that ‘no education system can be better than the quality of its teachers’.232 The plan was to introduce measures designed to improve teachers’ professional status, the quality of new entrants and of training, and professional development, including the abolition of the GTC and institution of new arrangements noted above. The important point here is that the reforms of 1998 have had a continuing influence by establishing an enduring focus on the need for policy and regulatory involvement in this key profession and for making this integral to education reform. The Labour Government also wanted to liberate parts of the education system from some of the intense central controls and regulation that had built up over the years, while maintaining an emphasis on its avowed goals of improved pupil attainment levels and greater social inclusion.233 Yet it is somewhat ironic that the greater institutional freedom that it sought to introduce on a selective basis was in fact accompanied by an even tighter regulatory framework than existed before. The Government’s avowed aim of modernising education law itself through the creation of new central powers to make changes via secondary legislation234 was hardly likely to lead to reduced regulation or a smaller legislative burden on schools. Ministers in any event regarded the lengthy legislative process towards the enactment of statutes as inconvenient for a government in a hurry to ‘transform the knowledge and skills 227 DfES, Department for Education and Skills: Fiver Year Strategy for Children and Learners Cm 6272 (London, The Stationery Office, 2004) ch 4, para 42. 228 EA 2002, s 135. The Education (Head Teachers’ Qualifications) (England) Regulations 2003 (SI 2003/3111) were revoked by SI 2012/18. 229 See, eg, Comptroller and Auditor General, Department for Education and Skills. Improving Poorly Performing Schools in England, HC 679, Session 2005–06 (London, TSO, 2006). 230 See DfE, The Importance of Teaching Cm 7980 (London, TSO, 2010) 2.37–2.45. 231 See Helen M Gunter, Leadership and the Reform of Education (Bristol, Policy Press, 2012) 6–9. 232 DfE (2010) n 230 above, foreword by the Prime Minister and Deputy Prime Minister. 233 See DfES, Schools: Achieving Success, Cm 5230 (London, TSO, 2001) and Welsh Assembly, The Learning Country (Y wlad sy’n Dysgu) (Cardiff, National Assembly for Wales, 2001). 234 See DfES (2001) ibid, ch 9.

Diversity and Control of Schools Under ‘New Labour’ 1997–2010 127 of its population’ so that it can ‘prosper in the 21st Century’.235 The Government’s assertion that education law was ‘a highly complex area, where a great deal of detail is set out in primary legislation, restricting the ability of the education system to innovate and to respond to innovation’236 may have been true. Nonetheless, the use of delegated legislative powers raises standard concerns about the ‘democratic deficit’ arising from the fact that ‘Parliament’s scrutiny of secondary legislation is second rate’,237 whilst ministers’ powers and opportunities for central government interference and control are increased. In practice little changed, however. Indeed, there was a growth in statute law on education under Labour. Labour also gave some attention to school government. It is generally assumed that head teachers will lead a management team within the school, and the governing body, whose members must be provided with training (and expenses, although not remuneration),238 will provide a support role. This partnership generally functions well but it is not certain that governing bodies will always adopt the ‘critical friend’ role that is contemplated by their terms of reference and provide adequate oversight of the head teacher’s management of the school.239 More problematically, there has long been a concern that the respective roles of governing bodies and head teachers are not sufficiently distinguished from each other and that there needs to be greater clarity between the operational and strategic functions of school leadership and governance.240 School governing bodies have ultimate responsibility for the conduct of the school and for standards within them.241 They play a central role within the provision of school education, one that was consolidated under the New Labour reforms. Despite the number of responsibilities resting with governing bodies, the Education and Employment Select Committee concluded that ‘properly managed, the workload of governors is not too burdensome’.242 However, their responsibilities increased under New Labour. For example, their general duties under the 2002 Act were extended to include the promotion of the wellbeing of pupils at the school and of community cohesion, and they were required to have regard to the views of parents when discharging their functions relating to the conduct of the school.243 Over the years, the law on school government had 235 Ibid, para 1.2. 236 Ibid, para 9.4. 237 P Tudor, ‘Secondary Legislation: Second Class or Crucial?’ (2000) 21 Statute Law Review 149 at 150–1, who comments that ‘at the same time as the quantity and importance of secondary legislation has increased, the parliamentary time devoted to debating it has decreased’. 238 EA 2002, ss 19 and 22. 239 EA 2002, s 21(3)(a); see also the Education (School Government) (Terms of Reference) (England) Regulations 2000 (SI 2000/2122), as amended, reg 4(5) of which provides that the governing body ‘shall act as “critical friend” to the head teacher, that is to say, they shall support the head teacher in the performance of his functions and give him constructive criticism’. 240 See House of Commons Education Committee, The Role of School Governing Bodies Second Report Session 2013–14, vol 1 (HC 365-I) (London, The Stationery Office, 2013), paras 102–107. 241 See EA 2002, s 21. 242 House of Commons Education and Employment Committee, Fifth Report, Session 1998–99, The Role of School Governing Bodies (London, TSO, 1999) para 55. 243 EA 2002, s 21(5)–(9), inserted by the EIA 2006, s 38.

128 Institutional Diversity in a Developing Schools System become increasingly complex as a consequence of the imposition of an ever more strict procedural and organisational framework for decision-making over growing areas of responsibility. Regulations prescribed the constitution of governing bodies and arrangements for the appointment or election of governors244 as well as the terms of reference for governing bodies, LEAs and head teachers.245 The growing diversity of school categories in fact required ever more elaborate sets of provisions making specific governance arrangements for each. For example, the regulations prescribing the constitution of school governing bodies were replaced in 2007246 to take account of the introduction of a new ‘trust’ foundation school model established under the EIA 2006.247 Implementation of the Government’s policy of encouraging greater collaboration and mutual support between schools and, in particular, of enabling governing bodies of two or more schools to form or join a federation of schools under a single governing body,248 required other legislative changes.249 A less integrationist form of collaboration between schools was also provided for, involving the discharge of any of their respective governing bodies’ functions via joint committees.250 As regulation and legal complexity surrounding the governance of schools were increasing, there was at least a small attempt under the EA 2002 to reduce part of the regulatory burden through provision for new legal frameworks intended to facilitate innovation by schools and LEAs, amongst others, with a view to the ‘raising of educational standards’.251 Innovation had to be with the approval of the Secretary of State, who was required to have regard to the need for a balanced and broadly based school curriculum and to consider the likely effect of the project on the pupils.252 One of the potentially most far-reaching provisions was a new power, initially limited in its effect to four years,253 for the Secretary of State to exempt a school from ‘any requirement imposed by education legislation’ or to relax or modify the effect of such legislation for up to three years, extendable by one further such period.254 The exemption was conditional on the school meeting prescribed criteria relating to performance and

244 The School Governance (Constitution) (England) Regulations 2003 (SI 2003/348). Sch 1 to the 2002 Act itself deals with incorporation of governing bodies. 245 EA 2002, ss 22 and 23. All maintained schools must have an instrument of government setting out the constitution and other matters: ibid, s 20. 246 School Governance (Constitution) (England) Regulations 2007 (SI 2007/957). 247 See DfES, Explanatory Memorandum to the School Governance (Constitution) (England) Regulations 2007, 2007 No. 957 (London, DfES, 2007). 248 EA 2002, ss 24 and 25. Part 5 of the Act amended the law on the establishment of schools to enable schools to be established as ‘federated’ schools under a single governing body: s 74. 249 The Federation of Schools (Community Schools, Community Special Schools, Voluntary Controlled Schools and Maintained Nursery Schools) (England) Regulations 2003 (SI 2003/1965). 250 EA 2002, s 26 and the School Governance (Collaboration) (England) Regulations 2003 (SI 2003/1962). 251 EA 2002, s 1(1). The arrangements as a whole are in ibid ss 1–10. 252 Ibid, s 1(2). 253 The four year limit was removed as a result of the repeal of EA 2002, s 2(7) by the EIA 2006, Sch 16, para 2(3). 254 EA 2002, s 2.

Diversity and Control of Schools Under ‘New Labour’ 1997–2010 129 the quality of leadership and management.255 The idea was that schools deemed to be successful educators could be trusted with the freedom to manage parts of the curriculum or determine pay or conditions without central direction: so-called ‘earned autonomy’. There was a belief that these schools could devise and pilot various innovatory changes. Yet the justification for the regulation from which these schools might be able to secure exemption has been precisely that it is necessary in order to maintain standards in schools. Some less successful schools could well argue that, on that basis, they might in fact do better if they too had more freedom. In practice, the exercise of the power seems to have been rather limited, under both Labour and more recent administrations.256 Nevertheless, the freedom to innovate was consistent with the trend towards strengthened autonomy and corporatisation of schools that the 1980s legislation had fostered. The corporate model suited the entrepreneurial spirit that schools were encouraged to adopt by, for example, seeking private sector sponsorship and embarking upon marketing strategies to aid their competitiveness. It also seemed to suit the New Labour ideas for schools and LEAs to work in innovative ways in partnerships with each other – for example, co-operating to promote good behaviour and discipline among pupils and reduced levels of persistent absence257 – and with independent schools and the business sector. The EA 2002 developed it further by empowering governing bodies to form or jointly operate companies for certain purposes, such as the provision of services to other schools, whether directly or by acting as an agent for a third-party provider.258 The emphasis on increasing flexibility and freedom was also evident in the provisions making it easier for community groups, including religious groups, to apply for the establishment of a state-maintained school. This is an idea later taken further under the free schools policy of the post-2010 Coalition Government. The 2002 Act introduced a new procedure under which LEAs could publish a notice inviting proposals for the establishment of a new, additional, secondary school, as a community, voluntary, or foundation school or as an academy; to be additional meant it was not intended to replace a school that had been discontinued or was going to be.259 This was, in part, intended to overcome one of the principal barriers to the establishment of voluntary aided schools by religious bodies in areas without any shortage of school places.260 A separate power enabled the Secretary of State to direct the LEA to exercise its new power or its existing powers to establish or

255 Ibid, s 6(1). 256 Examples include the Nobel School (Change to School Session Times) Order 2006 (SI 2006/1072) and the Eastern High School (Change to School Session Times) Order 2015 (SI 2015/1227) (W. 81). 257 See the Apprenticeships, Skills, Children and Learning Act 2009, s.248. 258 EA 2002, ss 11–13 and the School Companies Regulations 2002 (SI 2002/2978) (as amended by the School Companies (Amendment) Regulations 2003 (SI 2003/2049)) and the School Companies (Private Finance Initiative Companies) Regulations 2002 (SI 2002/3177) made under s 12. 259 EA 2002, s 70. 260 Voluntary aided status was denied to the Islamia Primary School in Brent on that basis in 1990: see R v Secretary of State for Education and Science ex parte Yusuf Islam [1994] ELR 111.

130 Institutional Diversity in a Developing Schools System change provision where he or she considered that there was or was likely to be an insufficiency of primary or secondary education provision in the area.261 When the process by which LEAs could invite proposals was replaced under the Education Act 2005262 it was not confined to ‘additional’ schools, thus enabling proposals for any new secondary school; moreover, it applied also to ‘middle schools’, which had been excluded from the previous process.263 However, the proposals could no longer relate to the establishment of community schools. This reinforced the clear intention in the Government’s Five Year Strategy for Learners in 2004 that parents and other groups should be supported in establishing schools as a means of serving one of its principles of reform: ‘greater diversity of provision and providers’.264 The 2005 White Paper explained that the underlying aim of those seeking to establish the school might be to improve local standards of education (the assumption therefore being that the LEA should not be relied upon to initiate such a move in response to parental dissatisfaction), meet a lack of faith-based provision, or ‘promote innovative teaching methods’.265 The LEA was to be given the final say on whether the proposals should be taken forward, although the proposers would have a right of appeal to the schools adjudicator.266 This new process extended to both secondary and primary schools and was implemented under the EIA 2006.267 Once the date for proposals to be submitted had passed the LEA was entitled to publish proposals of its own, including those for community or community special schools, but this power was later revoked by the Coalition Government’s Education Act 2011.268

iii. Social Inclusion, Community Engagement and Parent Participation in Schools The Labour Government’s social inclusion agenda was a central plank of its education policy. It included the introduction of EAZs and the EiCs programme, both discussed above, but another important element was the closer integration of education and childcare provision. The premise was that ‘there is no sensible distinction between good early education and care: both enhance children’s social and intellectual development in a safe and caring environment’.269 It was 261 EA 2002, s 71. 262 EA 2005, s 66. Section 70 of the EA 2002 was repealed by s.66(14) of the 2005 Act. 263 See EA 2002 s 70(8) and EA 2005 s 66(11). 264 DfES, Department for Education and Skills: Fiver Year Strategy for Children and Learners Cm 6272 (London: The Stationery Office, 2004), Ch.1 para.36. 265 DfES, Higher Standards, Better Schools for All (Cm 6677) (London: The Stationery Office, 2005), para.2.32. 266 Ibid, para 2.33. 267 EIA 2006, ss.7–9. 268 EA 2011 Sch 11. 269 Secretary of State for Education and Employment, Secretary of State for Social Security and Minister for Women, Meeting the Childcare Challenge, Cm 3959 (London, TSO, 1998), para 1.4. See also Scottish Executive, Regulation of Early Education and Childcare: The Way Ahead (Edinburgh: Scottish Executive, 1999).

Diversity and Control of Schools Under ‘New Labour’ 1997–2010 131 recognised that the problem of inadequate and uneven childcare provision across the country could be remedied in part by ‘out of school childcare’ provided by schools.270 The importance attached to good and accessible childcare was reflected in the Government’s National Childcare Strategy271 and the Sure Start scheme intended to enable parents to work or study while their children were cared for.272 The Government’s plan was to expand greatly the number of Sure Start children’s centres and that each would provide early education of good quality in combination with full day care provision.273 (Although there was an expansion in the number of centres over the following years, reaching around 2,300 in 2010, the number fell under the Coalition Government by 313 between 2010–2015 and then even more sharply under the Conservatives, by a further 156 in 2016 alone, as funding was cut severely.274) Meanwhile, there were perceived benefits from having breakfast clubs and after-school arrangements in schools in areas of social and educational disadvantage, including those served by EAZs. Homework clubs and summer literacy and numeracy schools were also part of the new emphasis on provision outside normal school hours. The Care Standards Act 2000 brought childcare provision under the education inspection system managed by Ofsted. In 2001 Ofsted adjudged the bulk of such provision to be satisfactory or good.275 Integration of education and childcare was further facilitated by the EA 2002. As the Secretary of State for Education was given a power to provide funding to any person in connection with education services and/or other services including childcare provision,276 it became possible for one provider to receive funding for a combination of both of the two areas of provision. The 2002 Act also recognised the broader role that schools might potentially play within local communities – as ‘extended’ schools – by widening school governing bodies’ powers to run childcare and other services, either directly or with partners or via outside organisations, on school premises.277 In 2003 the Government announced that sufficient funding

270 Meeting the Childcare Challenge n 269 above para 5.10. 271 By 2001 nearly 400,000 additional childcare places were created: Secretary of State for Social Security, Opportunity for All. The Annual Report for 2001 (London, Department for Work and Pensions, 2001) paras 18–20, table 2.1, available at www.dwp.gov.uk/publications/. By Mar 2003 that total had reached 700,000: Secretary of State for Work and Pensions, Opportunity for All. Fifth Annual Report 2003, Cm 5956 (London, TSO, 2003), para 231. By Mar 2004 the total number of places created since 1997 had reached 1,006,000: DfES Press Notice, 23 June 2004. 272 See Opportunity for All n 271 above, paras 37, 38 and 232. As at June 2004 there were 524 Sure Start programmes (covering some 400,000 children living in disadvantaged areas): DfES Press Notice, 23 June 2004. There were also Early Excellence Centres set up to develop models of good practice in this field. 273 DfES Press Notice, 23 June 2004. 274 See P Walker, ‘More than 350 Sure Start children’s centres have closed since 2010’, The Guardian (online) 2 February 2017, www.theguardian.com/society/2017/feb/02/sure-start-centres-300-closedsince-2010; and S J Ball, The Education Debate (3rd edn) (Bristol, Policy Press, 2017) 169. 275 Ofsted, The Annual Report of Her Majesty’s Chief Inspector of Schools 1999–2000 (London, TSO, 2001), paras 26, 67, 68. 276 EA 2002, ss 14–17. 277 Ibid, Pt 2.

132 Institutional Diversity in a Developing Schools System would be made available for at least one ‘extended’ school to be established in each LEA within the next three years, providing a full range of community services. Schools acquired a power to provide ‘community facilities’ – any facilities or services to further any charitable purpose for the benefit of their pupils or their families or people who lived or worked in the locality.278 The assumption was that the meeting of childcare needs would further a charitable purpose. When ‘parent councils’ were established under the EIA 2006 for certain foundation schools (namely those known as ‘trust’ schools, discussed below), the school’s governing body fell under a duty to consult with the council over childcare provision in its school.279 Parent councils became mandatory in these new trust schools; the case for them rested in part on the fact that these schools had fewer elected parent governors than other schools, because the trust would appoint a majority of the governing body.280 The parent councils281 would provide ‘a forum for parents to express their views and influence the running of their school’ and would be ‘relatively informal and engage people who may not have the confidence or desire to be a parent governor’.282 Their purpose was defined as ‘to advise the governing body on matters relating to the conduct of the school and the exercise by the governing body of their powers [to provide community facilities etc]’.283 Whitty has argued that community education forums and bodies of that kind represent a potential means by which the prerogative of the state and that of the market can be counterbalanced and citizen rights in education asserted.284 The idea of linking educational provision more directly to community interests also reflected the broadly communitarian notion of direct citizen engagement in matters connected to public benefit and around the idea of balancing the rights and obligations of citizens, particularly within local community settings.285 It was consistent with a concept of social citizenship that was reflected within public policy, particularly although not exclusively in the area of social security law and policy,286 framed around notions of reciprocity and responsibility. As Lewis explains, it was evident in ‘the social policy of conditionality, in which entitlement to publicly provided welfare services becomes dependent upon particular patterns of behavior and duties’, of the notion of ‘active citizenship’.287 Lister reminds us

278 EA 2002, ss 27 and 28. 279 EA 2002, s 23A, inserted by the EIA 2006, s 34. 280 DfES (2005), para 5.21. 281 School Governance (Parent Council) (England) Regulations 2007 (SI 2007/1330) govern their constitution. The parent council may include those who are not parents of registered pupils, but they must form a minority of the members: ibid, reg 3(5). 282 DfES (2005) n 265 above, para 5.20. 283 EA 2002, s 23A. 284 G Whitty, Making Sense of Education Policy (London, Paul Chapman, 2005) 91. 285 H Dean, Welfare Rights and Social Policy (Harlow, Prentice Hall, 2002) 197–9. 286 See, eg, N Harris et al, Social Security Law in Context (Oxford, OUP, 2000); P Larkin, ‘Incapacity, the Labour market and social security: Coercion into “positive” citizenship’ (2011) 74 MLR 385. 287 G Lewis, ‘“Do Not Go Gently …” Terrains of Citizenship and Landscapes of the Personal’ in G Lewis (ed), Citizenship: Personal Lives and Social Policy (Milton Keynes, Open University, 2004), 1–37, at 25.

Diversity and Control of Schools Under ‘New Labour’ 1997–2010 133 of the ‘persistent drumbeat of responsibility, which provided the soundtrack for both the Blair-Brown and Thatcher-Major years’; and she shows how it continued although through an ‘increasingly disciplinary’ notion of citizenship under the Coalition Government.288 In relation to education, the presentation of rights as facets of ‘empowerment’ linked to ‘real and effective parental engagement’289 does not detract from the equal policy emphasis given to parents’ responsibility.290 Illustrations of the latter, introduced under New Labour, include the home-school agreements291 and a more intense sanctioning of parents in respect of their child’s truancy or misbehaviour in school, including the reintroduction of imprisonment as a maximum penalty for truancy occurring with parental knowledge292 and the power to impose parenting orders on parents of children who are permanently excluded from school, as discussed in Chapter 2.293 Of these measures, only those relating to home-school agreements do not remain in force.294 There has also been a sense in which parental engagement, while appealing to notions of citizenship and rights, was equally being harnessed as a regulatory mechanism. The 2005 White Paper295 for example devoted a chapter to ‘Parents Driving Improvement’, stressing the benefits of parental engagement for schools’ effectiveness. Among the proposed reforms, subsequently included in the EIA 2006, were a new power for Ofsted to investigate parental complaints about a school once they have progressed through the local complaints procedure296 and a new general duty on school governing bodies to have regard to the views of parents.297 As Ball explains, policy was in effect articulating ‘two very different forms of relationship between families and the state’, one of which was ‘a neoliberal or market relationship based on more choice and voice and the use of “parent power” through complaints mechanisms’ and (although this came later) ‘setting up their own schools’, and the other was ‘disciplinary’, directed at ‘normalisation, or … “responsibilisation”’.298 One of the possible forms of parental participation in the community is service as a school governor. As noted above, elected parent members of governing bodies

288 R Lister, ‘The age of responsibility: social policy and Citizenship in the early 21st century’, in C Holden, M Kilkey and G Ramia, Social Policy Review 23. Analysis and debate in social policy, 2011 (Bristol, Policy Press, 2001), 63–84, at 63 and 79. 289 The Labour Party, Britain Forward not Back (London, The Labour Party, 2005) 34. 290 See N Harris, ‘Empowerment and State Education: Rights of Choice and Participation’ (2005) 68(6) MLR 925. 291 See SSFA 1998, ss 110–111, now repealed however, as a contribution to reducing bureaucratic burdens on schools, by the Deregulation Act 2015. 292 EA 1996, s 444(1A) introduced by the Criminal Justice and Court Services Act 2000. See ch 2. 293 Anti-social behaviour Act 2003, s 20. 294 See n 291 above. 295 DfES (2005) n 265 above, ch 5. 296 EIA 2006, s 160, inserting EA 2005, ss 11A–11C. See also the Education (Investigation of Parents’ Complaints) (England) Regulations (SI 2007/1089), as amended (by SI 2008/1723). 297 EIA 2006, s 38(1), inserting new EA 2002, s 21(7). 298 Ball (2017) n 274 above, 201.

134 Institutional Diversity in a Developing Schools System became compulsory under the Education Act 1980, which required schools to have a minimum of two parent governors.299 Parent governorship was promoted in the Major Government’s The Citizen’s Charter in 1991.300 In view of the increasing autonomy and responsibilities of school governing bodies, including financial management, the potential for the parental voice to exert a significant influence over schools had been greatly enhanced, particularly given the increase in the required quota of parent governors.301 Reflecting back on the position at that time, one can see that it represented the zenith of the parental role in school governance, or at least of parental representation. The regulations on school governance302 made under the EA 2002 afforded governing bodies flexibility in terms of size, up to a maximum of 20 members, but the Labour Government wanted them to ‘opt for the smallest effective model as … this is the way to create energetic and focused governing bodies’.303 Nevertheless, the regulations required one-third of the membership of community schools, voluntary controlled schools and foundation schools to be elected parent governors.304 Reforms in the present decade have taken the representation of parent governors, who are elected, back to the position under the 1980 Act (apart from ones with a governing body constituted under an instrument of government taking effect before 1 September 2012); all maintained schools must have a minimum of just two parent governors.305 There are also less prescriptive requirements intended to permit governing bodies to be smaller (a minimum of seven members overall) and afford them more flexibility in determining a membership which includes appropriate skills.306 In the academy sector, which greatly expanded post 2010 (see below), the requirements for parent governors only ever matched those governing state schools under the Education Act 1980, but in the Conservatives’ White Paper in 2016 it was proposed that academy trusts should no longer be required to have elected parent governors and that their governing bodies should be free to ‘focus on seeking people with the right skills

299 EA 1980, s 2(5). 300 HM Government, The Citizen’s Charter, Cm 1599 (London, HMSO, 1991), foreword. 301 Under the Education (No.2) Act 1986. A county school of over 300 pupils, for example, was required to have 4 parent governors out of a total membership of 16 governors, whilst for those of 600 pupils it was 5 parents out of an overall 19 governors. 302 School Governance (Constitution) (England) Regulations 2003 (SI 2003/348). 303 DfES (2005) n 265 above para 8.36. 304 School Governance (Constitution) (England) Regulations 2003 (SI 2003/348), regs 13–15. By contrast, in voluntary aided schools only had to have a minimum of one parent governor: ibid reg.16. These regulations were replaced in 2007 but the new regulations maintained the prescribed level of parent representation: School Governance (Constitution) (England) Regulations 2007 (SI 2007/957). 305 School Governance (Constitution) Regulations 2012 (SI 2012/1034), reg 13(3). 306 See ibid, reg 13(2); and the Explanatory Memorandum to the School Governance (Constitution) (England) Regulations 2012 2012 No 1034 and the School Governance (Federations) (England) Regulations 2012 2012 No 1035 (2012). The DfE’s view is that ‘governors are best placed to decide the size and make up of their governing body’: DfE, ‘Written evidence submitted by the Department for Education’, in House of Commons Education Committee, The Role of School Governing Bodies Second Report Session 2013–14 vol II (HC 365-II) (London, The Stationery Office, 2013), Ev.55, para.22.

Diversity and Control of Schools Under ‘New Labour’ 1997–2010 135 for governance’, although accepting that some parents will have the skills required and should be encouraged to serve as governors.307 Ofsted has referred to a ‘tension between representation and skills in the membership of governing bodies’.308 This has always been the case, but it became increasingly evident by the 2000s that the responsibilities resting on school governing bodies had led to professional skills and expert knowledge being seen as more important characteristics than community representativeness and participation per se. This perception has been reinforced by Ofsted findings indicating that the effectiveness of governing bodies is linked to the skills and expertise among their members.309 In 2005 the Blair Government saw ‘an enhanced role for governors as schools become more autonomous’, including ‘strategic leadership’, and stressed the importance of governor training.310 However, the capacity of governing bodies has fallen into question. Ofsted’s view in 2013 was that around 40 per cent of governing bodies were not able to exert the authority needed to guide their schools towards improvement and there was doubt as to the fitness for purpose of the established models of governance in the ‘more complex, autonomous education landscape’ in which schools operate.311 This perhaps raises questions about the future role of parent governors. Nevertheless, the National Governors Association ‘does not believe that skills and representation are mutually exclusive’ and considers that while the legitimacy of the governing body may require that ‘key stakeholders’ (which clearly would include parents) are represented on it, ‘such representation need not be at the expense of skills’.312 On that basis, parents would have a future on governing bodies, but perhaps only where they have the skills or expertise considered necessary. Indeed, back in 2000 the IPPR found that parent governors tended to be ‘co-opted into using managerial skills, such as accounting’.313 As the NGA’s recent guidance on governor recruitment points out, under the current legislative framework parents with appropriate skills could also be recruited onto governing bodies not necessarily as parent governors – but as co-opted governors.314 This was not, however, the model of participation envisaged for parent governors when parental representation was made compulsory in the 1980s and later encouraged as an element of civic engagement and community participation in the 1990s.

307 DfE, Educational Excellence Everywhere (Cm 9230) (London, DfE, 2016), paras 3.30 and 3.31. 308 Ofsted, ‘Written evidence submitted by Ofsted’, in House of Commons Education Committee (2013) n 306 above Ev.65, para 15. 309 Ibid, para 34. 310 DfES (2005) n 265 above paras 8.34 and 8.37. 311 Ofsted (2013) n 308 above, para 34. 312 National Governors Association, ‘Written evidence submitted by the National Governors Association’, in House of Commons Education Committee (2013) n 306 above Ev.69, para 4.2. 313 J Hallgarten, Parents Exist, OK? Issues for Parent–School Relationships (London, IPPR, 2000) 96. 314 National Governors Association, The right people around the table (2018) 9 www.nga.org.uk/getmedia/a8ec7663-1f87-451f-8e86-0b598317eb29/NGA-The-Right-People-Around-the-Table-2018_1.pdf

136 Institutional Diversity in a Developing Schools System One should also note the concern that governing bodies had no power to remove elected governors – either parent or staff governors. No provision for this was made under the regulations until very recently, even though appointed governors could be dismissed.315 The National Governors Association complained that: ‘An elected governor who fails to understand the role but had a particular agenda of his/her own can cause disproportionate harm’.316 Government concern about governors from local communities pursuing their own political or other personal agendas intensified following the Trojan Horse affair (discussed below). A power to remove elected governors was finally introduced in 2017.317 Explaining the rationale for the reform the DfE highlighted in particular the ‘disproportionate disruption to a small number of governing bodies and headteachers that can result from an unsuitable elected parent governor’.318 This does not question the value of parent governors per se, but it does indicate that the political climate may be less conducive to the original notion that parent governors would represent a strong independent voice on school governing bodies and should have a dominant role on them – indeed, in 1984 the Conservative Government had even proposed that parent governors should form the majority on governing bodies of county schools,319 although subsequently backed down from that.320 Representation on school governing bodies, which was enhanced during the New Labour years, has not been the only way in which parents can influence the governance of schooling. Under the SSFA 1998 parents were given voting rights on whether a school with grammar school status should retain it; only one such vote has occurred to date, and it was for the continuation of a school in Ripon, North Yorkshire, as a grammar school.321 Parents were also given rights under the 1998 Act to be represented on local authority education committees322 and on admission forums, which were introduced under the EA 2002 to advise local authorities on the exercise of their admission functions.323 Pupils gained no rights to serve on these bodies, however, and their participatory rights were limited to being consulted by the LEA or school governors about decisions concerning school-related matters affecting them and to have any views they expressed to school inspectors taken into account by the Chief Inspector.324

315 See, eg, the School Governance (Constitution) (England) Regulations 2007 (SI 2007/957), part 4. 316 Note 312 above, para.4.5. 317 School Governance (Constitution and Federations) (England) (Amendment) Regulations 2017 (SI 2017/487). 318 Explanatory Memorandum to the School Governance (Constitution and Federations) (England) (Amendment) Regulations 2017 2017 No. 487 (London, DfE, 2017), para.8.1. 319 DES, Parental Influence at School (Cmnd 9242) (London, HMSO, 1984). 320 This was in response to the negative reaction of consultees: see DES, Better Schools (Cmnd 9469) (London, HMSO, 1985) para 219. 321 SSFA 1998, ss 106–107. 322 SSFA 1998, s 9. 323 SSFA 1998, s 85A, inserted by the EA 2002, s 46 and amended by the EA 2011, s 34; see also the Education (Admission Forums) (England) Regulations 2002 (SI 2002/2900). See further ch 5. 324 EA 2002, s 176; EA 2005, s 7.

Diversity and Control of Schools Under ‘New Labour’ 1997–2010 137 The evidence suggests that parents have gained little collective power through the various rights of representation. While opportunities have been provided for the parental perspective to be aired, there is an argument that representation was not intended to empower parents and that the true purpose is simply to add legitimacy to the decision-making processes. Young argues that when ordinary citizens enter such public spheres of decision-making they tend to face a form of exclusion, which she terms ‘internal exclusion’, because others who exert a more powerful position tend to ignore or dismiss their arguments or concerns, which in turn limits the citizen’s capacity to influence decisions.325 In theory, the parental interest is significantly promoted through the inclusion of parent governors on school governing bodies. However, there is evidence that the focus within school government work on financial management and raising school performance has limited the possibilities for parent governors to have an impact on the direction of the school. In relation to many school policy and management matters, therefore, they are likely to be marginalised by other, often professional, voices.326 An example identified by researchers is the policy of a school for charging (for example, in relation to school trips).327 Research in 2007 revealed that many governing bodies not only found parent governors hard to recruit – a problem which continues328 – but also ‘difficult to involve once recruited’.329 Lack of effective participation at this time was also found among the lay membership of education action forums and on boards of NHS primary care groups.330 Governing bodies are seen as ensuring ‘a direct line of accountability from the school to its local community’331 but also as acting as a bridge between school and community, bringing the two closer together. Their community role was reinforced by powers introduced under the EA 2002 to provide community facilities at the school (provided the purpose is charitable) for pupils, families or others in the local area.332 Moreover, governing bodies which are closely engaged with local communities were and still are regarded as having potential to protect and advance community cohesion. Local authorities have been encouraged to assist in overcoming the various barriers to participation in school government that have appeared to be particularly marked in the case of minority ethnic communities

325 I Young, Inclusion and Democracy (Oxford, OUP, 2002) 55. 326 Ibid. See also R Deem, K Brehony and S Heath, Active Citizenship and the Governing of Schools (Buckingham, Open University Press, 1995). 327 K J Brehony and R Deem, ‘Charging for Free Education: an Exploration of a Debate in School Governing Bodies’ (1990) 5 Journal of Education Policy 333. 328 C James, J Goodall, E Howarth and E Knights, The State of School Governing in England in 2014 (Bath, University of Bath, 2014) 4. 329 C Dean, A Dyson, F Gallannaugh, A Howes and C Raffo, Schools, governors and disadvantage (York, Joseph Rowntree Foundation, 2007) 21. 330 S Power et al, ‘Paving a “Third Way”? A Policy Trajectory Analysis of Education Action Zones’ (2004) 19 Research Papers in Education 461; S Pickard and K Smith, ‘A “Third Way” for Lay Involvement: What Evidence So Far’ (2001) 4 Health Expectations 170. 331 House of Commons Education and Employment Committee (1999) n 242 above, i, para 10. 332 EA 2002, ss 27–29.

138 Institutional Diversity in a Developing Schools System and led to their under-representation on governing bodies,333 a situation mirrored in the further education sector.334 According to one report, in 2003, women were well represented on school governing bodies, at 54 per cent of all governors, but under-represented among chairs (37 per cent) and vice-chairs (41 per cent).335 Female representation among chairs has, however, significantly improved since then; it stood at 49 per cent in 2014.336 Research, also published in 2003, revealed that disabled people, people on low incomes, unemployed people, young people and lone parents were under-represented.337 People with disabilities, for example, have not only faced physical barriers but have also had concerns about the financial implications of participation: transport costs or the cost of support workers are often not covered within governors’ expenses and there are also fears (often in fact ungrounded) that service as a governor might affect entitlement to social security benefits.338 This illustrates how the practical enjoyment of participation rights as social rights tends to be significantly hindered by entrenched social inequalities.339 Recruitment of governors has traditionally been particularly problematic in inner city schools, special schools and areas of social deprivation,340 a problem that the Education Select Committee described in 1999 as ‘serious … not least because it is these schools that often are faced by the most serious challenges, and may need more than other schools the support of effective governing bodies’.341 The Committee found that in some areas language barriers could be a ‘significant disincentive’ to the service of minority ethnic communities.342 One study of participation in school government for the DfES concluded that ‘a culture of involvement within education for people from black and other minority ethnic groups needs to be established’.343 The Labour Government worked with governor associations to improve recruitment in general, and from minority ethnic communities in particular, but it seems that limited if any progress was achieved. A 2007 study found significant under-representation of ethnic minorities: that ‘the membership

333 S Bird, Do the Right Thing. How governors can contribute to community cohesion and accountability (London, DfES, 2003) 12. 334 A Foster, Realising the Potential. A Review of the Future Role of Further Education Colleges (London, DfES, 2005) 22. 335 Bird, n 333 above, 16. This report expresses alarm that many authorities were unable to supply data, indicating that they did not monitor minority ethnic recruitment onto governing bodies. 336 C James, The role of the chair of the school governing body: emerging findings from current research (Reading, CfBT Education Trust, 2014) 4. 337 A Ellis, Barriers to Participation for Under-represented Groups in School Governance, RR500 (London, DfES, 2003). 338 Ibid, 39–40. 339 See C Stychin, ‘Consumption, Capitalism and the Citizen: Sexual and Equality Rights Discourse in the European Union’ in J Shaw (ed), Social Law and Policy in an Evolving European Union (Oxford, Hart Publishing, 2000) 258. 340 H Scanlon, P Early and J Evans, Improving the Effectiveness of School Governing Bodies (London, DfEE, 1999). 341 Fifth Report, n 242 above, para 43. 342 Ibid, para 45. 343 Ellis, n 337 above, 39.

Diversity and Control of Schools Under ‘New Labour’ 1997–2010 139 of governing bodies bears little relationship to the composition of school populations nor, by implication, to the composition of local communities’.344 A review of previous research the same year revealed that most school governors were ‘white, well-educated professionals’ and that minority groups were ‘under-represented, which is a significant issue in areas of social disadvantage, or considerable ethnic diversity in the local community’, posing a risk to the legitimacy of schools as a public institution.345 There are indications from a more recent study, in 2014, that matters have not improved: it found that 96 per cent of governors were white,346 meaning that ethnic minorities remain seriously under-represented. Although parent governors are representatives rather than delegates, they ought to be able to communicate the views of other parents on issues of particular importance as part of a necessary two-way process of communication between the school and its local community. However, such communication tended to be less effective than it might be.347 Exemplifying some of the problems was the annual meeting between governors and parents that was first introduced under the Education (No 2) Act 1986, as the forum in which an annual report by the governing body, which this Act also required, could be discussed.348 These duties were re-enacted with amendments in the 2002 Act but were abolished in England under the EA 2005.349 The Education and Employment Select Committee had recommended that the annual meeting requirement should end, on the basis that the meetings were ‘poorly attended at best, and contribute little to the effective governance of the school’.350 Indeed, the parents who attended might form the view that governing bodies were ‘irrelevant’.351 The Select Committee favoured retention of the annual report as a means of accounting to parents, but the 2005 Act substituted a requirement to maintain and publish a ‘school profile’.352 The intention was that these profiles would be posted on school websites and routinely updated. However, without an annual meeting there is no longer the formal opportunity for parents collectively to confront the governors about matters of particular concern, although they do have a guaranteed opportunity to voice concerns to school inspectors when the school is inspected353 and there is no bar to convening a meeting or meetings with parents if the governors decide it/they would be useful.

344 Dean et al (2007) n 329 above, 21. 345 M Balarin, S Brammer, C James, and M McCormack, The school governance study. Business in the Community (Bath, University of Bath, 2007) 35. See also S Ranson, M Arnott, P McKeown, J Martin and P Smith, ‘The participation of volunteer citizens in school governance’ (2005) 57(3) Education Review 357–371. 346 James et al (2014) n 328 above, 10. 347 M Golbey, ‘Parent Governorship in the New Order’ in F Macleod (ed), Parents and Schools: The Contemporary Challenge (London, Falmer, 1989) 143. 348 Education (No 2) Act 1986, ss 30 and 31. 349 EA 2005, s 103. 350 Fifth Report, n 242 above, para 66. 351 Ibid. 352 EA 2005, s 104, inserting s 30A into the EA 2002. 353 EA 2005, s 7.

140 Institutional Diversity in a Developing Schools System The Government planned to introduce a general statutory duty for governing bodies to have regard to the views of parents (see below), which perhaps acknowledged the deficiencies in governing bodies’ engagement with parents, something that was considered a school standards issue and included among factors to which Ofsted inspections give attention.354 A desire to enhance community participation and engagement in schools during its 1997–2010 period in office was, at one level, part of Labour’s social inclusion agenda, but can also be seen as linked to its school leadership agenda – that schools should be well led and managed: ‘A strong headteacher, backed by an able leadership team and governing body, is vital for success … our best headteachers know the importance of responsible leadership and management, bringing school staff and the local community with them’.355 It is not entirely clear that community involvement and strong leadership have sat easily alongside each other, however. A more corporate focus and entrepreneurial culture of leadership developed under Gordon Brown’s Government and more especially under the Con-Lib Coalition Government that succeeded it, and at the same time there was little or no policy emphasis on parent participation in school management and decision-making.

B. Increasing Institutional Diversity and Independence i. Academy Expansion and the Introduction of ‘Trust’ Status Increases in both institutional diversity and autonomy for individual schools were part of both the Conservative and New Labour plans for an education system capable of raising standards of pupil achievement. The Conservatives’ GM schools policy and introduction of CTCs were outlined earlier. In Schools: Achieving Success, in 2001, the Labour Government outlined its ‘vision of a schools system which values opportunity for all, and embraces diversity and autonomy as the means to achieve it’.356 ‘Autonomy’ meant schools being able to ‘take full responsibility for their mission’.357 It was, for example, reflected in the measures for ‘earned autonomy’ contained in the Education Act 2002, noted above. ‘Diversity’ meant having a range of schools which catered ‘significantly better for the diverse requirements and aspirations for today’s young people’358 and referred to the benefits to schools of being able to develop a distinct mission, character and ethos, premised on evidence demonstrating how such schools tend to perform better than others.359 The best schools would be eligible for ‘Beacon’ status, with additional

354 DfES

(2005) n 265 above, para 5.18. para 8.21. 356 DfES, Schools: Achieving Success (Cm 5230) (London, The Stationery Office, 2001), para.1.5. 357 Ibid. 358 Ibid. 359 Ibid, para.5.3. 355 Ibid,

Diversity and Control of Schools Under ‘New Labour’ 1997–2010 141 resources, to ‘work closely with other schools and share practice’.360 There would be an expansion in numbers of specialist schools, with a wide range of specialisms including business, science, engineering and mathematics/computing.361 Labour also envisaged a greater number of faith schools and ‘city academies’.362 Independent faith schools would be welcomed into the state sector on the basis of ‘local agreement’.363 City academies specialised in modern foreign languages, visual or performing or media arts, sport or another prescribed subject.364 The EA 2002 brought city academies and CTCs together under the name ‘Academy’,365 with greater flexibility in terms of the specialisms that could be offered.366 By focusing on the promotion of institutional diversity, the schools policy represented a clear attempt on the part of the Blair and Brown governments to distance New Labour from the Labour Party’s traditional dogmatic adherence to the comprehensive school ideal.367 The divergence was encapsulated by the often-quoted remark by Alastair Campbell, Tony Blair’s official spokesperson, that: ‘The day of the bog-standard comprehensive school is over’.368 While there seemed little opposition to the basic argument in favour of modernisation, there were concerns about the potential implications of the reforms from within the schools sector itself, particularly as regards the expansion of the academy model. The Labour Government saw these quasi-independent institutions lying outside local authority control and funded directly from central government as making a positive contribution to raising educational standards and injecting valuable additional resources into the education system. There were 27 such institutions by 2006 but the Labour Government had plans for up to 200 academies to be established or in preparation by 2010. Like the GM schools policy of the Conservatives discussed earlier, however, the policy of increasing the number of these part-privately funded and relatively well-resourced institutions was seen as divisive: opponents regarded the academies’ superior facilities and quasi-independent status as making them elitist and there were even some rifts within the Cabinet over them.369 According to a survey by ICM, only six per cent of head teachers supported the proposed expansion.370 Academies cost, on 360 Ibid, para 5.8. 361 Ibid, para 5.12. 362 Ibid, para 5.23. 363 Ibid, para 5.30. 364 EA 1996, s 482, as amended by the Learning and Skills Act 2000, s 130. 365 In the legislation a capital A was used wherever ‘Academy’ was mentioned, even if not grammatically required. It is not clear why this was done. In this book, the capital ‘A’ is used only when grammatically necessary or in quotations. 366 EA 2002, ss 65–69 and EA 1996 s 482, as substituted by EA 1996, s 65. Institutions already established when the 2002 Act came into force had the choice of retaining their designation, as ‘city technology college’ and so on. 367 Ball (2017) n 274 above, 103. 368 Quoted in J Clair and G Jones, ‘Blair: comprehensives have failed’, The Telegraph, 13 February 2001, at www.telegraph.co.uk/news/uknews/1322418/Blair-comprehensives-have-failed.html. 369 H Rumbelow and T Baldwin, ‘More city academies despite Cabinet row’, The Times, 28 June 2004, 2. 370 R Smithers et al, ‘Headteachers raise doubts on academies’, The Guardian 13 Sept 2005, 11.

142 Institutional Diversity in a Developing Schools System average, £4 million more than other similar-sized secondary schools to set up, although in 2006 the National Audit Office concluded that it was too soon to judge their cost effectiveness.371 By the end of Labour’s period of government, in 2010, the academy sector had a firm place in the system. The academy model chimed with the incoming Conservative-led Coalition Government’s predilection for entrepreneurial leadership of autonomous schools, which represents one of many policy continuities with the previous Labour Government.372 It also formed part of a common thread running through both the Thatcher and Blair/Brown eras, reflected in the various new categories of state school that were developed, in the promotion and copying of the independent school as ‘the model to aspire to’, in part as a means of making the state system more attractive to the middle classes.373 One of these new, if derivative, models was the self-governing or independent ‘trust’ school outside local authority control.374 As against the academisation of the state system over recent years, the promotion of trust status seems a relatively tame issue today. However, at the time the policy was first proposed it was highly contentious. The idea was that schools could become foundation schools, but different from the foundation schools established after GM status ended in 1998/99 in that the school’s foundation would be a trust under a charity.375 These trust schools, like GM schools before them, would ‘employ their own staff, control their own assets and set their own admissions arrangements’.376 As noted above, they were, however, required to consult with their ‘parent council’, which they were under a duty to establish.377 The governing body of any primary or secondary school would be able to create its own trust, or link with an existing trust. A trust could be formed by local groups of parents, but also by universities and independent schools, while some state schools might ‘form their own “bespoke” trusts’.378 There was, however, a lack of evidence that such forms of external involvement brought about improvements to schools.379 There were in any event concerns about potential difficulties in finding external organisations interested in establishing them.380 There was also perceived to be a risk that unsuitable people or bodies might set them up in order to gain influence over a school, although the

371 Comptroller and Auditor General, Department for Education and Skills. Improving Poorly Performing Schools in England, HC 679, Session 2005–06 (London, TSO, 2006), Summary, para 20 and Report, para 2.47. 372 Ball (2017) n 274 above, 104–105. 373 H M Gunter, Leadership and the Reform of Education (Bristol, Policy Press, 2012) 6–9. 374 DfES (2005) n 265 above paras 2.7–2.28. 375 SSFA 1998, s 23A inserted by the EIA 2006, s 33. See DfES, Guidance on the Acquisition of a Trust and the Acquisition of a Majority of Governors Appointed by a Trust (London, DfES, 2006). 376 DfES (2005) n 265 above, para 2.16. 377 EA 2002, s 23A, inserted by the EIA 2006, s 34. 378 DfES (2005) n 265 above, para 2.19. 379 House of Commons Education and Skills Committee, First Report of Session 2005–06, The Schools White Paper: ‘Higher Standards, Better Schools for All’, HC 633–I (London, TSO, 2006), para 50. 380 Ibid, para 54.

Diversity and Control of Schools Under ‘New Labour’ 1997–2010 143 Secretary of State promised ‘very strong safeguards’ through Charity Commission regulation and local authority supervision.381 Those seeking advice and support to establish trust school status were able to obtain it from the new office of ‘Schools Commissioner’. The Commissioner’s remit also extended to advising independent schools wanting to join the state sector. However, there were concerns that the Government’s expressed intention that the Commissioner would ‘act as a national champion for the development of Trust schools’382 might result in the coercion of schools to adopt trust status.383 The Commissioner was described as ‘a high level [DfES] official’384 but the office was not statutory. The office of Schools Commissioner has continued to the present day, although with a focus on the sponsorship and development of academies and free schools rather than trust schools.385 A criticism of the introduction of trust schools was that it would take the education system back to the elitism that the GM sector once represented, even though there was no explicit proposal either to privilege trust schools via extra capital funding386 or, although they would be able to set their own admission arrangements, to permit academic selection for admissions – the EIA 2006 in fact consolidated and re-stated the restrictions on selection of pupils by ability.387 The Secretary of State also indicated that the broader policy of permitting successful schools to expand would not apply to schools with academically selective admission arrangements.388 A further concern about trust schools was that they might not be covered by the obligation resting with other schools concerning the admission of pupils with special educational needs; that was unlikely, although the Select Committee recommended that trust schools should be expressly covered by this duty.389 There was also controversy relating to the amount of freedom that trust schools would be able to acquire over the curriculum and teachers’ pay and conditions, although, as the Education and Skills Select Committee noted, there were already similar opportunities for schools in general to do so under arrangements for earned autonomy introduced under the EA 2002, noted above.390 The Government, in fact, was sending out some contradictory messages: seeking to downplay trust schools’ freedom by emphasising how in these schools both the National Curriculum and the standard provisions on teachers’ pay

381 HC Debs, Education and Inspections Bill, Second Reading, Vol 443, Col 164, 15 Mar 2005 (Ruth Kelly). The schools were to be funded through local authorities. 382 DfES (2005) n 265 above, para 2.21. 383 House of Commons Education and Skills Committee n 379 above, para 48. 384 Ibid, Minutes of Evidence, Q47, 2 Nov 2005 (Ruth Kelly); DfES (2005) n 265 above para 2.17. 385 See the official webpage of the Commissioner: www.gov.uk/government/people/david-carter. 386 The Secretary of State confirmed that ‘[t]rust schools will be funded on exactly the same basis as any other local authority maintained school’: HC Debs, Education and Inspections Bill, Second Reading, Vol 443, Col 1464, 15 Mar 2006 (Ruth Kelly). 387 EIA 2006, s 39. 388 HC Debs, Education and Inspections Bill, Second Reading, Vol 443, Col 1472, 15 Mar 2006 (Ruth Kelly). 389 House of Commons Education and Skills Committee, n 379 above, para 75. 390 EA 2002, s 2 (above). House of Commons Education and Skills Committee, n 379 above, para 47.

144 Institutional Diversity in a Developing Schools System would normally apply, as in other schools,391 while also stressing the importance of schools having freedom to ‘develop a distinctive ethos’ and shape their curriculum, organisation and management of resources, matters which ‘cannot be prescribed uniformly.’392 In this way, the state system would become more diverse and enhance parental choice.393 Yet it was also envisaged that groups of trust schools could be formed ‘to operate with a common ethos and a shared identity’,394 to some extent undermining the notion of institutional individuality, although there were advantages to this collaborative model.395 Later, under the Brown premiership, there was a policy push for ‘co-operative’ trust schools, reflecting a broadly communitarian approach whereby school staff, parents, local organisations and even pupils could become involved in running the school.396 As an incentive, for which a pilot involving up to 100 schools was planned, schools adopting a co-operative trust were offered an extra £5,000 per annum, although the Coalition Government scrapped it. The establishment of the co-operative model nevertheless led in time to its promotion in the academy sector. Ironically, however, the communitarianism reflected in the co-operative trust model has resulted in the depiction of these schools as ‘the antidote to academies’ and an enthusiasm that was expected, in 2011, to lead to a growth in numbers to over 200 by 2012.397 There are currently approximately 500 cooperative schools of which 85 per cent or more have trust status.398 As things have turned out, trust status has not proved a popular option. The additional autonomy and extra resources it attracts are rather limited. There is a significant bureaucratic and management burden involved in making the transition – such as preparing, publishing and consulting over proposals (with the risk of referral to the Office of Schools Adjudicator if there are objections from the local authority). Also, the governing body must be reconfigured to include trust governors. So it is not perhaps surprising that relatively few schools have opted for trust status. By August 2010 there were only 340 schools holding it.399 There are no recent published figures. Foundation schools as a whole, of which probably only a minority have a trust, represented just 818 of the 20,202 primary and secondary schools in England in January 2018.400

391 DfES (2005) n 265 above, para 2.26. 392 Ibid, para 2.7. 393 See DfES, What Trust Schools Offer (London, DfES, 2006) 1. 394 DfES (2005) n 265 above, para 2.17. 395 House of Commons Education and Skills Committee, n 379 above, para 63. 396 For analysis of the co-operative school model, see G Davidge, Rethinking Education Through Critical Psychology: Cooperative schools, social justice and voice (Abingdon, Routledge, 2016). 397 W Mansell, ‘Co-operative schools: the antidote to academies’, The Guardian (online), 15 August 2011 at www.theguardian.com/education/2011/aug/15/cooperative-schools-antidote-academies-independent. 398 Unpublished figure supplied to the author by The Schools Co-operative Society. 399 P A Woods, Transforming Education Policy: Shaping a Democratic Future (Bristol, Policy Press, 2011), 47. 400 DfE, Schools Pupils and their Characteristics: January 2018 Table 2c, at www.gov.uk/government/ statistics/schools-pupils-and-their-characteristics-january-2018.

Diversity and Control of Schools Under ‘New Labour’ 1997–2010 145

ii Faith Schools We saw earlier how denominational, or ‘faith’, schools formed part of the state system established under the EA 1944. These schools received great encouragement from New Labour. They were considered to be contributing to the diversity of the system, parental choice and the system’s capacity to respond to the needs of the local communities in which they were located, while their emphasis on religious (mostly Christian) values was considered beneficial to good citizenship and academic achievement. Walford explains that Tony Blair ‘believed that faith schools have a particular “ethos” that is distinct and that encourages moral development as well as academic success’.401 In 2001 the Government endorsed a report by Lord Dearing which recommended an expansion of Church of England secondary school places. It also proposed to make capital funding arrangements more conducive to the establishment of schools by other faith communities.402 In the years that followed, additions to the voluntary schools sector came mostly from schools serving pupils from families of the Muslim and Sikh faiths. The first two Muslim state schools had joined the state sector in England in 1998: the Islamia Primary School in Brent and the Al Furqan Primary School in Birmingham.403 The Islamia school had fought a long battle, dating back to 1985, to achieve voluntary aided (VA) status. Its application had been rejected by the Secretary of State in 1990 but that decision was quashed in the High Court in 1992 due to a manifest unfairness caused by the Secretary of State’s failure to inform the applicants of the factual basis on which the matter was being considered.404 In January 2005 there were five Muslim and two Sikh schools in addition to the 36 Jewish schools and around 6,846 of various Christian faiths.405 By January 2010 the numbers of state Muslim schools had climbed to 11, Sikh schools to four, while Christian and Jewish school numbers were slightly down at 6,775 and 35 respectively.406 To some, faith schools contributed to social division and segregation and to inequality in the sense that some Roman Catholic and Church of England schools were recruiting pupils disproportionately from better off social groups.407 Indeed, it was said that the Government’s support for these schools risked being ‘the most

401 G Walford, ‘Faith based schools in England after ten years of Tony Blair’, (2008) 34(6) Oxford Review of Education 689–699, 694. 402 DfES, Schools: Building on Success (Cm 5050) (London, The Stationery Office, 2001), para 4.19. 403 A Dinham, Faiths, Public Policy and Civil Society: Problems, Policies, Controversies (London, Palgrave Macmillan, 2009) 148. 404 R v Secretary of State for Education and Science ex parte Yusuf Islam [1994] ELR 111. 405 DfES, National Statistics. First Release. Schools and Pupils in England, January 2005 (Final) SFR 42/2005 (London, DfES, 2005) table 8. 406 DfE, Statistical First Release. Schools, Pupils and their Characteristics, January 2010 (Provisional), SFR 09/2010 (London, DfE, 2010) table 2B. 407 Walford n 401 above.

146 Institutional Diversity in a Developing Schools System indelibly damaging of Tony Blair’s social legacies, his permanent bequest to his own beliefs’.408 Yet, as Walford argues, it was hard to see how the Government could have refused these religious groups opportunities to operate within a state sector which already included Christian and Jewish schools.409 Walford also questioned whether the Blair Government’s support for faith schools would have significant long-term effects on the system, since the churches appeared far from committed to expansion of their schools and the number of voluntary schools established by other faiths was quite small.410 However, as he also predicted would be the case, debate about whether the presence of faith-based schools in the state schools system is appropriate has not abated.

C. The End of the ‘Local Education Authority’ As discussed above, LEAs enjoyed a modest revival of their role and status under some of the New Labour reforms, with specific responsibilities and powers linked to standards and the organisation of schools. However, the 2005 White Paper proposed a ‘New Role for Local Authorities’411 that was facilitative and strategic, involving ‘commissioning rather than providing education’.412 They would retain their statutory responsibility for ensuring a sufficiency of school places in their area,413 but would have to invite proposals from others wishing to establish a new school, as noted earlier. To underpin their new role as ‘commissioner of places’ and ‘champion of pupils and parents’ they would be placed under a new statutory duty ‘to promote choice, diversity and fair access’.414 This was in fact introduced in two stages, under the EIA 2006415 and the Apprenticeships, Skills, Children and Learning Act 2009.416 One of the Labour Government’s concessions to opponents to its policy from within its own ranks was to enable the LEA/local authority to apply to the Secretary of State if it wished to set up a new community or community special school.417 In some cases it would do this only for the purpose of competing with the aforementioned invitees. The competition would have to be referred to the Schools Adjudicator, with a view to ensuring that it was genuinely open.418 In judging whether a local authority’s proposal should succeed the adjudicator would 408 P Toynbee, ‘Faith schools may be Blair’s most damaging legacy’, The Guardian 2 September 2008, www.theguardian.com/politics/2008/sep/02/education.labour. 409 Walford n 401 at 697. 410 Ibid, 697–698. 411 DfES (2005) n 265 above, ch 9. 412 Ibid, para 9.20. 413 EA 1996, s.14. 414 DfES (2005) n 265 above, para 9.7. 415 EIA 2006, s 2, introducing EA 1996, s 14(3A). 416 Apprenticeships, Skills, Children and Learning Act 2009, Sch 2, para 3, introducing new EA 1996, s 13A. 417 EIA 2006, s 7(5) and 8. 418 EIA 2006, Sch 10, paras 10–12.

Diversity and Control of Schools Under ‘New Labour’ 1997–2010 147 take into account the authority’s ‘track record … in terms of educational performance, the degree of diversity in the schools system and parental preference’.419 To limit obstacles to changes to local schools, school organisation committees, considered by the Government to represent existing schools and providers in an area and thus giving rise to a ‘bias in favour of the status quo’,420 were abolished by the 2006 Act.421 This reform sits alongside the reduced local authority involvement in establishing new schools as indicative of the broader shift towards reduced local authority control and the ‘disarticulation’ or fragmentation of educational planning and provision in the ‘competition state’,422 which has continued into the present decade. Local authorities continued to have an important role in relation to educational provision in their area, through: their overarching statutory responsibilities to ensure it is available and sufficient (extended under the Apprenticeships, Skills, Children and Learning Act 2009423 to include education and training for persons over compulsory school age); their continuing powers of intervention in underperforming schools; their responsibilities for children with special educational needs and for enforcing school attendance; and an impending new duty (following the Education and Skills Act 2008) to promote the effective participation in education or training of children above compulsory school age.424 But their overall control of local schooling was much reduced. As a result, the connection between citizenry and local government that is central to local democratic accountability in respect of a key service in which all have an interest, whether direct or indirect, was weakened. The joining-up of the education and welfare functions of local authorities as provided for by the Children Act 2004 – in furtherance of the Labour Government’s Every Child Matters policy which included local partnerships and co-operative arrangements for integrated provision catering for children’s diverse and inter-related needs425 – involved a unified executive responsibility for provision under Directors of Children’s Services. It was proposed that to reinforce the integration of services the term ‘local education authority’ would be removed from the statute book and that from then on reference would be made to ‘local authorities’ in all education publications and new legislation.426 The EIA 2006 accordingly gave the Secretary of State a power to repeal any reference or 419 Secretary of State for Education and Skills, The Government’s Response to the House of Commons Education and Skills Committee Report: The Schools White Paper: Higher Standards, Better Schools for All, Cm 6747 (London, TSO, 2006) 22. 420 DfES, Higher Standards, Better Schools for All, Cm 6677 (London, TSO, 2005), para 9.12. 421 EIA 2006, s 29. 422 Stephen J. Ball, ‘Privatising education, privatizing education policy, privatizing education research: network governance and the “competition state”’ (2009) 24 Journal of Education Policy 83 and Idem, The Education Debate (Bristol: Policy Press, 2008), 187 and 203. 423 Part 2. 424 Education and Skills Act 2008, s 10. This duty was not introduced until 2013, however. 425 DfES, Every Child Matters (Cm 5680) (London, The Stationery Office, 2003); DfES, Every Child Matters: Change for Children in Schools (London, DfES, 2004). 426 DfES (2005) n 265 above, para 9.6.

148 Institutional Diversity in a Developing Schools System references in statutory provisions referring to LEAs (and a parallel power relating to a ‘children’s services authority’) and replacing it with ‘local authority’.427 The power was duly exercised428 and, in April 2010, the local education authority itself became an exclusively historical institution. It was a reform of considerable symbolic significance. LEAs had been part of the system for over 65 years. In welcoming their proposed creation in the Bill that became the Education Act 1944, Harold Dent had commented that LEAs would have a ‘vital and extremely responsible part to play’ in the new system prescribed by the Act.429 Despite the abolition of the LEA, as Labour’s period of government came to an end in May 2010 local authorities retained a significant, if diminished role with regard to schooling. The incoming Conservative-led Coalition Government predicted that as a result of the advancement of its policy of academy status as the norm for schools, it would shrink further.430

VI. A New ‘Moral Order’? Education Reform Since 2010 The Coalition Government formed in May 2010 followed in what has become the tradition for new governments by promising a ‘radical reform of our schools’.431 The new Secretary of State for Education, Michael Gove, launched a moral crusade for transformational reform in the interests of the nation’s children. Education reform was, he pronounced, ‘the great progressive cause of our times’.432 Reform would have several key elements. One was an improvement in teaching standards, discussed earlier, accompanied by changes to the scope and governance of the curriculum and qualifications and a strengthening of teachers’ disciplinary powers with a view to giving teachers more authority in the classroom. Another concerned closing the gap between achievement levels across society. Schools, it was contended, ‘should be engines of social mobility’.433 But above all, it would be based on devolving power and increasing autonomy at the school level, including an extension of freedom to innovate, as academy status was extended across the system. Bureaucracy was to be decreased, but accountability to parents would be strengthened through ‘increased transparency and better inspection’.434 427 EIA 2006, s 162. 428 The Local Education Authorities and Children’s Services Authorities (Integration of Functions) Order 2010 (SI 2010/1158); and the Local Education Authorities and Children’s Services Authorities (Integration of Functions) (Local and Subordinate Legislation) Order 2010 (SI 2010/1172). 429 H Dent, The New Education Bill. What it Contains and Why it Should be Supported (Bickley, University of London Press, 1943), 22. 430 DfE (2010) n 230 above para 5.42. 431 Ibid, 4. 432 DfE (2010) n 230 above, Foreword by the Secretary of State, 6. 433 Ibid. 434 Ibid, para 6.24.

A New ‘Moral Order’? Education Reform Since 2010 149 The proposed reforms to the schools system, considered in more detail below, must be seen in the context of an ideological commitment to a so-called ‘Big Society’ approach to governance with an inverted power structure in which governance has been ‘turned on its head’, with power taken away from government and ‘put in the hands of people and communities’.435 This is an approach associated with the ‘localism’ agenda in which engagement of members of local communities and voluntary bodies in the provision and management of public services is encouraged. Harnessing such forms of potential public engagement infused with a sense of social responsibility, in a ‘moral order of interdependence’436 or ‘moralised mutualism’,437 would extend to the schools sector, where parents and others were to be encouraged to establish their own ‘free’ schools.438 It is an approach which sits with the drive towards increased institutional autonomy and distinctiveness as part of a process of decentralisation of power and responsibility in a system of what Woods refers to as ‘plural controlled schooling’.439 However, Woods means a system where there is a ‘multiplication of players and partners’ drawn not only from local communities but also businesses with ‘roots beyond the community in which the school is situated’, in other words something that may be separable from the ‘local empowerment model’.440 For schools this is manifested in two distinct but closely related development strands: the policy of encouraging proposals for new ‘free’ schools and the expansion of the academy sector with the aid of private enterprise, as represented in particular by bodies with sufficient financial clout and organisational resource to run chains of academies. These categories of school, which are now prominent across the educational landscape in England, will be discussed in turn.

A. Free Schools Free schools are state-funded schools established by a variety of groups and organisations – including charities, faith or community groups, teachers and parents – to meet a demand for a particular form or quality of local provision. Contrary to the policy intention outlined above, however, fewer and fewer new free schools have been established by parent and community groups, such that there were none established in 2017–18. Free schools are distinct from academies, which are discussed below, but legally they are the same species. They will also have academy

435 DfE, The Schools System Draft Structural Reform Plan (London DfE, 2010), preamble. 436 B Jordan, ‘Making sense of the “Big Society”: Social work and the moral order’ (2012) 12(6) Journal of Social Work 630. 437 N Ellison, ‘The Conservative Party and the “Big Society”’, in C Holden, M Kilkey and G Ramia, Social Policy Review 23. Analysis and debate in social policy, 2011 (Bristol, Policy Press, 2001) 45–62, 59. 438 DfE (2010) n 230 above, para 5.19. 439 Woods (2011) n 399 above, 53. 440 Ibid, 51–2.

150 Institutional Diversity in a Developing Schools System status and indeed have been described as ‘de facto academies’.441 They have the same relative freedom as academies in areas such as the curriculum – although research suggests that they are not particularly innovative442 – and teachers’ contracts. Despite the growth in the numbers of free schools their pupils currently constitute just one per cent of all pupils in state funded schools in England.443 However, the promotion of free schools and their presence in the education system has been and remains deeply controversial. The National Union of Teachers has warned that free schools ‘have the potential to cause immense damage to our education system’.444 As discussed later, there are a number of concerns surrounding them. Perhaps the most serious is their potential impact on other schools and on local planning of provision, because while they have tended to be opened in areas where extra school places are needed, particularly for primary education, they have also been allowed to develop even where existing school provision already satisfies the demand for school places and regardless of whether their establishment is supported by the local authority.445 There are also concerns about resource allocation inequalities and dangers of elitism. Yet the free schools policy remains a flagship Conservative policy as a means to ‘drive up standards and stimulate competition’ within a diverse schools system.446 In September 2016 there were 425 free schools (this total includes a small number of University Technical Schools447 and Studio Schools448), of which 180 were secondary schools, 136 primary schools and 23 special schools; 130 of the free schools were in London; and about four per cent of free schools were formerly independent schools.449 In the Spring 2017 Budget it was announced that the Government would ‘deliver the manifesto commitment to open 500 new free schools by 2020’ and that £320 million would be allocated towards the free schools sector to help to fund up to 140 schools ‘including independent-led, 441 J Garry, C Rush, J Hillary, C Cullinane and R Montacute, Free for All? Analysing free schools in England, 2018 (London, The Sutton Trust, 2018), 13. 442 Ibid. 443 P Bolton, House of Commons Library Briefing Paper Number 7033: Free School Statistics (December 2016), 4, https://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN07033#fullreport. 444 National Union of Teacher, Free Schools: Free for All? (London: NUT, 2014) 3. 445 National Audit Office, Establishing Free Schools (HC 881) (London, NAO, 2013); House of Commons Committee of Public Accounts, Establishing Free Schools, Fifty-sixth Report of Session 2013–14 (HC 941) (London, The Stationery Office, 2014); Garry et al (2018) n 441 above. 446 DfE, Educational Excellence Everywhere (Cm 9230) (London, DfE, 2016), para 1.48. 447 University Technical Colleges (UTCs) are a form of free school providing technical and vocational education for 14–19 year olds. UTCs are sponsored by universities, FE colleges and companies. They ‘specialise in subjects like engineering and construction – and teach these subjects along with business skills and IT … Pupils study academic subjects as well as practical subjects leading to technical qualifications. The curriculum is designed by the university and employers, who also provide work experience for students’: www.gov.uk/types-of-school/free-schools. 448 Studio schools are small schools of typically around 300 pupils which teach through enterprise and work-related programmes involving local employers, including paid work. Their curriculum aims to provide them with academic and vocational qualifications and employability skills. They are promoted via the Studio Schools Trust: https://studioschoolstrust.org/what-studio-school. 449 Bolton n 443 above, 4.

A New ‘Moral Order’? Education Reform Since 2010 151 faith, selective university-led and specialist maths schools’.450 Only 30 of these 140 schools will actually be expected to be open by September 2020, however.451 In 2018 the Government shelved its controversial proposals to drop the 50 per cent admissions rule for faith free schools, under which at least that percentage of school places must be available for non-faith or other faith children (see below). It has also abandoned plans to permit independent schools to set up free schools, with the state meeting the capital and revenue costs, and to offer an incentive for universities to set up (rather than simply partner) free schools in return for being able to charge higher fees.452 Practical support for the implementation of the free schools policy continues to come from the Schools Commissioner, discussed above, whose role includes that of promoting the establishment of free schools and advising potential proposers, and the New Schools Network, a charity providing guidance and advice to those wishing to establish new schools,453 to which the Coalition Government reportedly granted £500,000 to aid the launch of the free schools policy.454 The Conservatives’ free schools policy draws on a model developed in Sweden in the early 1990s. In opening up such public services to provision by private groups the Swedish Government sought to widen choice and improve the overall quality of provision. Community groups, teachers, various alternative education providers and businesses in Sweden may run schools with state funding. At first this funding was at a rate of 85 per cent of the state school rate per pupil, but it was later increased to 100 per cent. In the UK, the Conservative Party’s general election manifesto in 2010 explained that in Sweden, ‘because any parent can take the money the Swedish Government spends on their child’s education and choose the school they want, standards have risen across the board as every school does its best to satisfy parents.’455 Yet parental involvement in setting up free schools has been fairly modest in Sweden and the more common scenario has involved private corporate providers, which are permitted to run free schools on a for-profit basis, becoming ‘heavily involved’ in establishing them.456 The free schools policy in the UK, specifically in England, along with the academy policy, discussed below, has also been influenced by the development of ‘charter’ schools in the US.457 Charter schools are state schools (known as ‘public schools’ in the US) ‘operated by independent or quasi-independent organizations under a “charter”, or contract, with an entity empowered by state law to authorize charter schools’, and having

450 HM Treasury, Spring Budget 2017 (HC 1025) (London, HM Treasury, 2017), para 4.14. 451 National Audit Office, Capital Funding for Schools (HC 1014) (London, NAO, 2017), p 4. 452 DfE, Schools that Work for Everyone (London, DfE, 2016), 14 and 17. 453 See http://newschoolsnetwork.org/. 454 J Vasagar, ‘Emails reveal hidden price of free schools’, The Guardian, 30 August 2011, 1–2. 455 The Conservative Party, An Invitation to Join the Government of Britain. The Conservative Manifesto 2010 (London, The Conservative Party, 2010), 51. 456 S Wiborg, Swedish Free Schools: Do They Work? (London, Centre for Learning and Life Chances in Knowledge Economies and Societies, Institute of Education, 2010), 12. 457 See DfE (2010) n 230.

152 Institutional Diversity in a Developing Schools System ‘the freedom to implement their chosen educational approaches’.458 Some of the support for charter schools in the US has derived from their profile as ‘grassroots, community-based schools, not franchises of profit-seeking companies’.459 English free schools are similarly limited to operating on a not-for-profit basis460 although they are permitted to contract out management of the school to private for-profit organisations. Some free school advocates have argued that the restriction against operating for profit is illogical ‘when education in the private sector has shown that profit and excellence run hand in hand.’461 The Coalition Government cited evidence that charter schools had had success in raising pupil achievement in deprived areas.462 According to Woods, however, charter schools ‘do not necessarily do better than conventional schools’.463 It has been argued that the proponents of free schools have tended to cherry-pick reports of the successes of charter schools rather than acknowledge the rather more mixed reality.464 However, support for the free schools ideal also derives from their potential to meet the cultural needs of particular groups. Again there is a parallel in the US charter schools movement. For example, in Hawaii, charter schools aim to address material and cultural inequalities: community organisers have capitalised on the opportunity arising from the charter schools programme to ‘develop schools intended to acts as centres in reinvigorating Hawaiian culture and language as a part of community life’.465 Yet one of the concerns about the free schools policy is that by providing opportunities for culturally-specific school environments and curricular content they could increase social division. In particular, religious groups wishing to educate their children in faith based establishments may be able to open free schools lying outside the mainstream state system, separated from other children.466 They could point to the state’s obligation under international law not to interfere with ‘the liberty of individuals and bodies to establish and direct educational institutions’.467 As implementation of the free schools 458 B Hassel, ‘The Future of Charter Schools’, in P E Peterson (ed.), The Future of School Choice (Stanford CA, Hoover Institution Press, 2003), 187–211 at 189. 459 Ibid, 196. 460 The then Deputy Prime Minister, Nick Clegg, reportedly ‘blocked’ an attempt by the Secretary of State, Michael Gove, to permit free schools from being operated by profit-making companies: M Woolf, ‘Clegg vetoes free schools’ profits’, The Sunday Times, 4 September 2011. In a speech on 5 September 2011 Mr Clegg said ‘no to running schools for profit, not in our state-funded education sector’: Deputy Prime Minister’s speech on education, www.dpm.cabinetoffice.gov.uk/news/ deputy-prime-ministers-speech-education. 461 Anon (Editorial), ‘Let a Thousand Flowers Bloom. Free schools are a vital first step in reforming Britain’s education system, but the coalition must be prepared to go farther’, The Times, 31 August 2011. 462 DfE (2010) n 230, paras 5.18 and 5.27. 463 Woods (2011) n 399, 152. 464 See, eg, C M Hoxby, S Muraka and J Kang, How New York City’s Charter Schools Affect Achievement (New York, New York City Charter Schools Evaluation Project, 2009); P Gleasan, M Clark, C C Tuttle, E Dwoyer and M Silverberg, The Evaluation of Charter School Impacts, Final Report (Washington DC, US Department of Education, 2010); M Benn, School Wars (London, Verso, 2011) 127–131. 465 Woods (2011) n 399 above, 152. 466 See, eg, Benn (2011) n 464 above, 166. 467 UNCRC, Art 29.2. See also ICESCR, Art 13.4.

A New ‘Moral Order’? Education Reform Since 2010 153 policy commenced, six of the 24 free schools opening in September 2011 were faith schools (two Church of England, one Hindu, two Jewish and one Sikh).468 The religious profile of the 425 free schools that had opened by September 2016 is shown in table 3.1 below. Approximately one in six of the schools was a faith school. Table 3.1 Religious profile of free schools in England, September 2016469 Religious character None Church of England

Number of schools 363 14

Roman Catholic

1

Other Christian

13

Greek Orthodox

1

Hindu

3

Jewish

7

Muslim

14

Sikh Total

9 425

The DfE’s funding agreement for free schools and new academies dictates, however, that oversubscribed schools must allocate at least 50 per cent of their places without reference to faith, as noted earlier. In 2016 the Conservative Government launched a consultation on a proposal to remove this rule, arguing that it did not achieve its aim of increasing inclusivity and that it dis-incentivised the expansion of schools or the creation of new schools.470 The Government said that in the existing free schools designated as catering for certain faiths – Islam, Judaism, Sikhism and Hinduism – ‘the intake has been predominantly of pupils with similar ethnic backgrounds’.471 Consequently, other ways needed to be found to promote inclusivity and community cohesion.472 While the decision in 2018 to abandon the removal of the 50 per cent rule may have assuaged some of the concerns about increased social separation, the announcement was accompanied by an expressed commitment to enable more voluntary aided (VA) faith schools to be established in response to local demand.473 VA schools have never been subject to any duty to

468 DfE Press Notice 7 September 2011: www.education.gov.uk/inthenews/inthenews/a00197807/24free-schools-to-open-across-england-this-month. 469 Bolton n 443 above, 4. 470 DfE, Schools that Work for Everyone (London, DfE, 2016), 7. 471 Ibid, 30. 472 Ibid. See further ch 5 at 282–3 below. 473 DfE, ‘Drive to create more good school places for families’, 11 May 2018 www.gov.uk/government/ news/drive-to-create-more-good-school-places-for-families.

154 Institutional Diversity in a Developing Schools System reserve at least a set minimum percentage of places for pupils of other faiths or no faith. This support for an expansion of VA schools is expressly in recognition of some faith schools’ inability to countenance this restriction on their freedom over faith-based admissions, which they regard as contravening ‘religious rules on the make-up of their schools’.474 A related issue concerning faith based free schools arises from their curricular freedom. It is the risk that their freedom may enable them to promote ideas that some people regard as extreme. There have, for example, been some successful applications for free school status in respect of schools espousing creationism.475 However, since 2014 the funding agreement for academies (including free schools) has proscribed the teaching of creationism as ‘scientific fact’. The current agreement, dating from 2016, does not refer specifically to creationism but has a general restriction against allowing ‘any view or theory to be taught as evidence-based if it is contrary to established scientific or historical evidence and explanations. This clause applies to all subjects taught …’476 It also requires the schools to ensure ‘the teaching of evolution as a comprehensive, coherent and extensively evidenced theory’.477 This is an issue that in fact goes beyond free schools and is discussed in a later chapter.478 Returning to the more specific question of social division, there is a perception that the free schools policy benefits the better off in particular. This is premised on the expectation that middle-class parents are more likely to possess the personal resources and professional and other contacts that may be needed in establishing a free school. The DfE has, however, emphasised free schools’ ability to prioritise disadvantaged children for admission and their financial incentive (via the Pupil Premium479) to do so. The Government has been able to argue that many free schools are located in poorer areas and that they are in a position to contribute to improved social mobility.480 Figures for January 2016 show that nationally the proportion of free school pupils eligible for free school meals (FSM) was above the average in relation to secondary schools but below it in the case of primary schools.481 Other, more recent, research similarly indicates that the proportion of secondary free school pupils eligible for FSM is greater than that for all secondary 474 DfE, Schools that Work for Everyone. Government consultation response (London, DfE, 2018), 14. 475 See J Vasager, ‘Creationist groups win Michael Gove’s approval to open free schools’ The Guardian (online) 17 July 2012, www.theguardian.com/education/2012/jul/17/creationist-groups-approval-freeschools. 476 DfE, Mainstream academy and free school: single funding agreement (DFE-00437-2014) (updated 2016), para 2.44. www.gov.uk/government/publications/academy-and-free-school-fundingagreements-single-academy-trust 477 Ibid, para 2.45 478 See ch 8. 479 This is an amount of per capita funding that is allocated on the basis of socio-economic deprivation within the pupil population, as measured with reference to eligibility to free school meals and presence in or departure from local authority care. 480 DfE Press Notice 14 November 2011, ‘First special and alternative provision Free Schools given the Green Light’; and Deputy Prime Minister’s speech on education, www.dpm.cabinetoffice.gov.uk/news/ deputy-prime-ministers-speech-education. 481 Bolton n 443 above, 5.

A New ‘Moral Order’? Education Reform Since 2010 155 schools, but free schools have lower levels of FSM eligibility than there are in their catchment areas.482 Perhaps the strongest case against the free schools policy is the potential of these schools to undermine the position of other schools in the area by attracting pupils away from them and thereby weakening the latter schools’ financial position. Proposers of free schools merely need to show that there is a demand for such a school. They do not need to show that there is a shortfall of places or that their school will replace existing provision, although there is now a policy of prioritising free school approvals in areas where existing schools are oversubscribed or pupils are not performing well.483 The DfE is reported to be willing to approve free schools in areas where there is no demographic need for them if the locally prevailing educational standards are poor484 or in order to extend parental choice.485 The Government announced in 2018 that its latest invitation for applications for establishing new free schools was targeted on areas ‘where there is a demand for places and a need to help raise standards’.486 Approximately 50 per cent of the 113,500 additional school places arising from mainstream free schools opening between 2015 and 2021 ‘will create spare capacity’ in free schools’ immediate areas.487 While extra capacity would probably extend choice for parents, the risk to other schools from experiencing under-recruitment could be significant. The National Audit Office has found that ‘[i]n seeking to increase choice, introduce innovation and raise standards free schools often meet a demographic need for new school places, but they are also creating spare capacity, which may have implications for schools’ financial sustainability’.488 If, as has been reported, free schools have received government encouragement ‘to poach pupils from neighbouring providers’,489 the establishment of these new schools could be potentially de-stablising and bring the schools system ‘another step closer to chaos’.490

B. Academies Rather than having to revive the GM schools model in order to fulfil its ideological objective of having a schools system to some extent mirroring the private sector and 482 Garry et al (2018) n 441 above, 20. 483 See, eg, N Woodcock, ‘Next wave of free schools to target areas of greatest need’, The Times, 26 June 2018, 20. 484 ‘The free schools programme has a key part to play in delivering good new school places to communities where educational standards are low’: DfE (2018) n 474 above, 13. See also HM Treasury, Spring Budget 2017 (HC 1025) (London, House of Commons, 2017), para 414 and DfE n 473 above. 485 National Audit Office, Capital Funding for Schools (HC 1014) (London, House of Commons, 2017), 27. 486 DfE n 473 above. 487 National Audit Office n 485 above, 27. 488 Ibid, 9 489 G Hurst, ‘Gove encourages free schools to poach pupils from their neighbours’, The Times¸ 21 June 2011, 15. 490 F Millar, ‘Free schools … another step closer to chaos’, Education Guardian 12 July 2011, 2.

156 Institutional Diversity in a Developing Schools System comprised of a diversity of autonomous schools lying outside local authority control and influence, the Conservative-led Coalition Government had a ready-made alternative, in the form of academies. Academies are state schools, either established as new schools under sponsors (see below) or by the conversion of existing state schools. They are, formally, independent schools operating within the state sector and, as such, are governed by the regulatory framework applicable to the independent schools sector – in particular, the regulations governing standards for such schools in the areas of quality of education, the spiritual, moral, social and cultural development of pupils, pupil welfare, health and safety, and the suitability of staff, proprietor and premises.491 They have a funding agreement with the Secretary of State for Education which among other things sets out requirements on the kind of education that should be provided, albeit with a limited impact on the autonomy academies have over the curriculum. This contractual framework has been criticised for creating a large bureaucratic burden both for government and schools and a lack of legal consistency across the schools sector.492 Academies receive funding from the DfE via an executive agency, the Education and Skills Funding Agency.493 Since the Agency is also tasked with ensuring that the funds are spent appropriately and with propriety there has been a call to separate its financial and regulatory functions in order to avoid a conflict of interest in this rather politicised policy area.494 The statutory framework governing academies allows academy status to be relatively easily obtained. Under the Academies Act 2010, decisions are formally made by the Secretary of State. In many respects the power to grant approval is relatively unfettered. For example, the 2010 Act removed the Secretary of State’s previous duty to consult the local authority in question (and any other local authority whose area was a significant catchment for pupils recruited to the school) before entering into an agreement for academy status.495 Moreover, if the academy will either (a) be a new educational institution or (b) will be formed from an existing institution but make provision for pupils from a wider range of ages than previously, the Secretary of State must merely consider the impact that according academy status to the school would have on other educational institutions in the area.496 Proprietors and schools themselves must consult with appropriate persons before entering into arrangements for academy status or seeking conversion to it.497 However, the school has no duty to consult where the conversion is being conferred on it by the Secretary of State as a result of the school’s poor performance.

491 The Education (Independent School Standards) Regulations 2014 (SI 2014/3283), as amended. 492 C Thorley and J Clifton, A legal bind: the future legal framework for England’s schools (London, IPPR, 2016). 493 The Agency replaced the Education Funding Agency in April 2017. 494 House of Commons Education Committee, Academies and Free Schools. Fourth Report session 2014–15 (HC 258) (2015), para 107. 495 Academies Act 2010, s 4(4). 496 Ibid, s 9, as substituted by the EA 2011, s 60(1). 497 Academies Act 2010, ss 5 (as substituted by the Education and Adoption Act 2016, s 8) and 10 (as substituted by the EA 2011, s 60(2)).

A New ‘Moral Order’? Education Reform Since 2010 157 If an existing state school becomes an academy its property is transferred to the academy. The National Audit Office has, however, expressed a concern that, unlike the local authority, single academies under their own academy trust may not have sufficient expertise to manage their estate properly.498 The acquisition of academy status also ends the local authority’s duty to maintain the institution.499 The local authority has a discretion to provide financial and other assistance to the academy,500 but it is not clear why it would do so (save perhaps in order to support the local authority’s fulfilment of its own statutory obligations, such as on enforcing school attendance or meeting special educational needs, or perhaps if the authority wants to assist an academy to take extra pupils due to a shortage of local authority school places in the area). In addition to the transfer of property, the acquisition of academy status results in the transfer to the academy of any budget surpluses – that is, unspent amounts from the budget allocated to the school by the local authority.501 The potential availability of a surplus offers an incentive for seeking a conversion; in a survey of 478 academies published in 2012, 78 per cent of respondents declared it to be a factor in such an intention and nearly 40 per cent identified it as the main factor.502 Academies’ funding allocation has been based on the local authority’s funding formula for its schools, but in 2018/19 a new Schools National Funding Formula started to be phased in, intended by full implementation in 2021 to reduce the disparities in schools’ funding levels.503 It is contentious and has prompted fears that many schools will suffer real terms losses in funding.504 Some smaller academies have built up reserves and very few of these schools have been in deficit, but an increasing proportion of academies have been spending more than their income. In 2017 the Government disclosed that over 50 per cent of academies were spending in excess of their annual allocation and that the proportion of academies with an annual shortfall had doubled over the previous two years, although it was likely that deficits were avoided or mitigated by the use of reserves.505 Further evidence of the financial pressures faced by academies was revealed by an investigation by the Observer newspaper, which reported that 8 of the 13 largest 498 National Audit office (2017) n 485 above, para 3.6. 499 Where, however, there is a Public Finance Initiative contract for work on the school the local authority may have a continuing financial obligation under it. 500 Academies Act 2010, s 6(2) and (2A) (inserted by the EA 2011). 501 Ibid, ss 7 and 8, both as amended by EA 2011. 502 D Bassett, G Lyon, W Tanner and B Watkin, Plan A+ Unleashing the Potential of Academies (London, The Schools Network/Reform, 2012), 25. 503 See, eg, DfE, The national funding formulae for schools and high needs 2018 to 2019 (London, DfE, 2017) and DfE, The national funding formulae for schools and high needs 2019 to 2020 (London, DfE, 2018). 504 See National Audit Office, Financial Sustainability of Schools (London, National Audit Office, 2016) para 1.15. See also N Perera, J Andrews and P Sellen, The implications of the National Funding Formula for Schools (London, Education Policy Institute, 2017). 505 See S Coughlan ‘Half of academies fall short on funding’, BBC News Report 1 February 2017 at www.bbc.co.uk/news/education-38809574 (accessed 19 January 2018); National Audit Office (2016) n 504 above, para 1.19.

158 Institutional Diversity in a Developing Schools System academy trusts506 had raised warnings in their accounts over their financial situation; many of their schools were reportedly in deficit, including one quarter of the 66 schools run by the largest academy chain, the Academies Enterprise Trust.507 In 2018, the House of Commons Committee of Public Accounts, noting that 165 academy trusts were in deficit, criticised the DfE for failing to do enough to identify trusts at risk of financial difficulty.508 If nothing else, the financial pressures that have been revealed suggest that the financial incentive for conversion to academy status has in recent years become significantly reduced. Indeed, although schools converting to academy status without a sponsor receive assistance in the form of a £25,000 grant from the DfE, the NAO has reported that some schools spend in excess of that amount and that the conversion process is expensive in terms of staff time.509 In addition, since local authorities will incur costs in managing a school’s conversion, some have started to charge academy trusts a fee, ranging from £2,500 to £20,000 per school conversion.510 The next most prominent reason for seeking academy status given by schools in the above survey was the additional autonomy it provides.511 Autonomy is central to the rationale for academisation which rests on claims that it facilitates innovation and the raising of standards.512 While academies must513 provide a balanced and broadly based curriculum in accordance with the terms of the Education Act 2002,514 and ensure that English, mathematics, science and religious education are included in the curriculum, they are not required to follow the National Curriculum, although in practice their curriculum is generally broadly equivalent to it in content and in the case of academy chains teachers themselves may, according to Reay, be expected to ‘teach to a prescribed model’.515 Academies’ freedom was enhanced as a result of the removal by the Education Act 2011 of the requirement that institutions providing secondary education must have a specialism specified in their funding agreement.516 Academies also have autonomy over admissions, although they are required by their funding agreement to act consistently with the

506 An academy trust is the body with overall responsibility for running the school. Many academies are run by multi-academy trusts – see below. 507 W Mansell and M Savage, ‘Top academy schools sound alarm as cash crisis looms’, The Observer, 27 January 2018 (online) www.theguardian.com/education/2018/jan/27/schools-academytrusts-warn-pay-staffing-public-spending. 508 House of Commons Committee of Public Accounts, Thirtieth Report of Session 2017–19, Academy schools’ finances (HC 760) (2018), 6. 509 Department for Education, Department for Education. Converting Maintained Schools to Academies (HC 720) Session 2017–2019 22 February 2018 (London, National Audit Office, 2018), 10. 510 Ibid. 511 D Bassett, G Lyon, W Tanner and B Watkin, Plan A+ Unleashing the Potential of Academies (London, The Schools Network/Reform, 2012) 25. 512 H Gunter, R Lupton, S Courtney and R McGinity, Policy Briefing. Academy Schools (Manchester, University of Manchester, 2015) 3. 513 Under their funding agreement and the Academies Act 2010, s 1A, inserted by the EA 2011. 514 EA 2002, s 78. 515 D Reay, Miseducation. Inequality, education and the working classes (Bristol, Policy Press, 2017) 47. 516 EA 2011, s 52.

A New ‘Moral Order’? Education Reform Since 2010 159 School Admissions Code517 and since 2012 have faced the potential referral of their admission arrangements to the Schools Adjudicator by objectors; the Adjudicator’s ruling will be binding.518 One area of particular concern surrounding academy admissions has been the treatment of children with special educational needs (SEN). As discussed in Chapter 9 below, an average of around 15 per cent of pupils in state schools have SEN. Several years ago there was anecdotal evidence that academies were resisting the admission of such children and the issue came to the fore when the Academies Bill was before Parliament.519 Following a Government amendment to the Bill, academies were given the same obligations towards children with SEN as those placed on other schools by Part 4 of the Education Act 1996.520 But there were continuing concerns about barriers to admission for children with SEN.521 Nevertheless, the Children and Families Act 2014 provides that if an academy is the named placement in the education, health and care plan (EHCP)522 for a child with SEN it must admit the child.523 Moreover, the School Admissions Code specifically prohibits discrimination against children with SEN or the adoption of arrangements which disadvantage them.524 The Schools Adjudicator reported in 2016 that there were a small number of schools, comprising their own admissions authority, mostly academies, which were ‘not conversant with the terms of their funding agreement and/or legislation’ as regards admissions of children with SEN to a school named in an EHCP. Often the parents were told by the school that it could not meet their child’s needs, thereby encouraging them to seek a place elsewhere.525 Regarding children with SEN but without an EHCP, there was a particular reluctance to admit those with behavioural difficulties, due not merely to a perceived lack of resources but, the report says, also a concern about the potential impact on the school’s ‘ethos’ or national examination or test results.526 With the huge growth of the academy sector and particularly in the number of schools converting to academies, it is, however, perhaps not surprising to find that there is only a small overall disparity between the proportion of pupils with SEN in academies and those in mainstream schools in the state sector as a whole. In January 2018 it comprised 13.9 per cent in primary academies and 13.8 per cent in maintained primary schools as a whole, and 12.1 per cent in secondary academies 517 DfE (2014). See further ch 5. 518 EA 2011, s 64, amending the SSFA 1998, s 88H and 88K. 519 See, eg, the comments of Baroness Morgan of Drefelin, Academies Bill Second Reading Debate, HL Debs Vol 719 col 511 7 June 2010. 520 Academies Act 2010, s 1(6) and (8). 521 See, eg, J Harris and J Vasagar, ‘Academies challenged for barring pupils with special needs’, The Guardian, 25 May 2012. 522 See ch 9. This is a plan setting out the special educational needs and provision, along with any care or health provision that is reasonably required as a result of his/her SEN, for a child with SEN: CFA 2014, s 37. Only a minority of children with SEN will require a plan, however. 523 CFA 2014, s 43. 524 DfE (2014) paras 1.8 and 1.9. 525 Office of the Schools Adjudicator, Office of the Schools Adjudicator Annual Report September 2015 to August 2016 (Darlington, Office of the Schools Adjudicator, 2016), para 71. 526 Ibid, para 72. But it is not clear why their ‘ethos’ per se could be affected in this way.

160 Institutional Diversity in a Developing Schools System compared with 12.3 per cent in the whole maintained secondary sector.527 Although the DfE has not published separate figures for state schools which are not academies, it is possible to calculate the figure by subtracting the mainstream academies totals from the total for all mainstream state funded schools. They show that pupils with SEN comprised 13.8 of pupils in state funded mainstream primary schools which were not academies, broadly the same as for academies, and 12.7 per cent of pupils in state funded mainstream non-academy primary schools, slightly higher than in academies.528 ‘Academy status should be the norm for all state schools’, pronounced the 2010 White Paper.529 The policy intent was clear. Further growth of the academy sector was supported by two legislative measures. The Academies Act 2010 extended the opportunity to hold academy status to primary and special schools.530 Prior to then it had only been available in the secondary sector. The Government also made it clear that any school with a rating of ‘outstanding’ from Ofsted would normally be granted approval for academy status.531 However, there was also an assumption that academy status should not merely operate as a ‘reward’ for a high level of performance but also as a potential life-raft for under-performing schools. The 2010 Act gave the Secretary of State a power532 to confer academy status on schools which were ‘eligible for intervention’,533 namely (i) where the local authority has issued the school with a ‘warning notice’ on the grounds of an ‘unacceptably low’ standard of pupil performance, a serious breakdown of management affecting or likely to affect such standards, or a threat to pupil or staff safety;534 (ii) they have been found by inspectors to have deficiencies such as to make ‘significant improvement’ necessary;535 (iii) or inspectors conclude they should be placed (as ‘failing’ schools) under ‘special measures’.536 Thus in 2010 the 216 secondary schools that failed to reach the target for the proportion of pupils expected to obtained five or more GCSEs at grade C or better (then set at 35 per cent), together with the 100 schools placed in special measures, would have been among those eligible for academy status.537 The underlying rationale behind conversion to academy status for weakly performing schools is an assumption that they will improve significantly under their new status. This assumption was, however, contested when the local authority 527 DfE, National Statistics Special Educational Needs in England: January 2018, tables 1, 2a and 2b. These quoted figures do not include special schools. 528 Ibid. 529 DfE (2010) n 230 above, para.5.6. 530 Academies Act 2010, s 3. 531 Academies Bill Explanatory Notes (The Stationery Office, 2010) para 4. 532 Academies Act 2010. ss4(1)(b) and 6. 533 EIA 2006, pt 4. 534 EIA 2006, s 60. 535 EIA 2006, s 61. 536 Ibid, s 62. 537 DfE (2010) n 230 above, para 6.26; Ofsted, The Annual Report of Her Majesty’s Chief Inspector of Education, Children’s Services and Skills 2009/10 (HCC 559) (London, The Stationery Office, 2010) para 142 and fig.3.

A New ‘Moral Order’? Education Reform Since 2010 161 and the governors of one school which was recommended for special measures by Ofsted was faced with academy conversion.538 One of main grounds in their judicial view challenge to the Secretary of State’s decision to order the conversion was that the Secretary of State had relied on a material error of fact in the form of statistical evidence purportedly showing that sponsored academies were more likely than local authority schools to deliver improvements in attainment, among other things, in schools in need of intervention. It was claimed that reliance on data which did not actually show such an effect was irrational. The court, however, rejected this ground, on the basis that there was sufficient evidence as to such an effect to defeat the claim of irrationality.539 The Government’s ‘Principles for a clear and simple accountability system’ for schools, published in mid-2018, include as an ‘intervention principle’ that a forced conversion to academy status would only be pursued in the case of ‘instances of school failure as judged by Ofsed’;540 but it is unclear whether the school would have to be one that requires special measures or if ‘failure’ is to be interpreted more broadly. Given a new governmental emphasis on making conversion a ‘positive choice for more and more schools’,541 however, the implication is that the Secretary of State’s power is to be used more circumspectly. The current size of the academy sector has perhaps reduced the perceived need to maintain the previous overall pace of academisation. The number of academies, which stood at 203 in September 2010,542 grew to over 450 by May 2011; and such was the growth in secondary academies that by January 2012, 45 per cent of all secondary schools were academies.543 The Education Act 2011 introduced a requirement that when local authorities considered that a new school was needed in their area they should specifically seek proposals for the establishment of an academy.544 It also amended the EIA 2006 to prevent local authorities from being able to put forward any proposals for community, community special, foundation, voluntary or foundation special schools.545 The Education and Adoption Act 2016 reinforced the policy intention that academy status should be the norm by 538 R (Governing Body of the Warren Comprehensive School and the London Borough of Barking and Dagenham) v Secretary of State for Education [2014] EWHC 2252 (Admin); [2014] ELR 530. 539 Ibid at [72]–[75]. The other grounds in support of the challenge to the conversion – based on an alleged failure to consider the potentially disruptive effect of the conversion and on the timing of the decision (since the school’s GCSE results and the outcome of a further Ofsted report would be known within months) – were also rejected. 540 DfE, Principles for a clear and simple accountability system (London, DfE, 2018), 2. 541 Ibid. 542 DfE (2010) n 230 above, para 5.5. 543 DfE Press Notice ‘More than 1000 schools apply to become academies’, 10 May 2011; House of Lords, Written Answers, WA 262, 13 May 2011. 544 Academies Act 2010, s 6A, inserted by EA 2011, s 37 and Sch 11. See R (British Humanist Association and Rodell) v London Borough of Richmond upon Thames and Others [2012] EWHC 3622 (Admin), where Sales J said (at [64]) that, for this purpose, ‘the idea that there is a “need” to establish a new school imports a stronger sense of a compelling requirement for a new school to be established than simply thinking that it would be beneficial for a new school to be established’. 545 Amendment of EIA 2006, s 7 and repeal of s 8 by EA 2011, Sch 11.

162 Institutional Diversity in a Developing Schools System converting the Secretary of State’s power to make an academy order in cases where a school has been found to require significant improvement or special measures, noted above, into a duty.546 Such has been the growth in the number of academies that in January 2017 there were 2,325 secondary academies and 3,748 primary academies (including in both cases free schools), representing 68 per cent and 22 per cent of the respective sectors.547 The proportion of pupils enrolled at academies was 68.9 per cent in the secondary sector and 24.3 per cent in the primary sector.548 Figures for January 2018 and 2019 show further growth, with the proportion of secondary academies up to 72 per cent and primary academies to 27 per cent in 2018 and 75 per cent and 32 per cent respectively in 2019.549 There is, however, a wide disparity in between local authorities in the proportion of schools which are academies, ranging from just six per cent of schools in Lancashire, Lewisham and North Tyneside to 93 per cent in Bromley.550 Academies may be established either by the setting up of a new school as an academy, with a degree of sponsorship from its establishing agency (although since May 2010 this has not been compulsory), or by the conversion of an existing school, becoming referred to as a ‘converter’ academy. Approximately two thirds of the pupils attending a mainstream primary or secondary academy are enrolled at a converter academy.551 A school converting to academy status will only be expected by the DfE to have a sponsor if it is not performing well – yet schools facing the greatest challenges affecting performance, such as falling rolls and consequential funding reductions, are also those that are least attractive to potential sponsors.552 Conversion to academy status has involved a considerable cost to the state; the DfE spent £81 million on academy conversions in 2016–17 alone and a total of £745 million on them between 2010–11 and early 2018.553 In the early days of the academy sector the sponsoring agency may have been establishing a single institution, but with the sector’s growth has developed multiacademy trusts (MATs) responsible for chains of academies, which – in addition to the funding agreements in respect of each individual school under their umbrella – have a ‘Master Funding Agreement’ with the DfE. Prominent MATs are those 546 Academies Act 2010, s 4(A1), inserted by the Education and Adoption Act 2016, s 7. The 2016 Act, ss 1–14, also strengthened the powers of intervention, noted above, in relation to academies and maintained schools ‘causing concern’, including where they are classed as ‘coasting’: see the Coasting Schools (England) Regulations 2017 (SI 2017/9). 547 DfE, Schools, pupils and their characteristics: January 2017, SFR 28/2017 (Department for Education, 2017) www.gov.uk/government/statistics/schools-pupils-and-their-characteristics-january-2017. 548 Ibid table 2a. 549 NAO, Department for Education. Converting Maintained Schools to Academies (HC 720) Session 2017–2019 22 February 2018 (London, National Audit Office, 2018) 7; DfE, Schools, Pupils and their Characteristics: January 2019 National Tables, Table 2b: www.gov.uk/government/statistics/schoolspupils-and-their-characteristics-january-2019 (2019). Note that the figures for academies include the relatively small number of free schools (which represent less than 10% of the overall totals). 550 Based on 2018 figures in NAO (2018) (ibid). 551 DfE (2019) n 549 above, table 2b. 552 NAO (2018) n 549 above, 12. 553 House of Commons Committee of Public Accounts, Converting Schools to Academies (HC 697) Fifty-Second Report of Session 2017–19 (London, House of Commons, 2018), 4.

A New ‘Moral Order’? Education Reform Since 2010 163 operated by bodies such as E-ACT, the Harris Foundation and United Learning. Predictions that there would be a growth in the number of academies operating under MATs554 proved accurate. There were 391 MATs in March 2011 rising to 1,121 in November 2016, at which date 72 per cent of all academies were in MATs.555 The rest were in Single Academy Trusts. According to HMCI, in 2015/16 some 90 per cent of schools converting to academy status joined a MAT from the outset.556 In 2016 the Government’s expectation was that ‘most schools will form or join MATs’, enabling ‘proven educational models’ to ‘spread and grow’ and ‘the best leaders’ to ‘extend their influence by running multiple schools’.557 This was, however, premised on the extension of academy status to the entire state sector by 2022 (with the expectation that all conversions would be underway not later than 2020), a policy aim which the Government said would be reinforced by new central powers of direction and which it was argued the maturity of the academy sector now justified.558 The plan to take these powers was subsequently dropped, however. Increased controls could be justified by the concerns about MATs, which have focused on their lack of accountability559 compared to local authorities, which have a local democratic accountability. Indeed parents complained to the House of Commons Education Committee that MATs were not ‘sufficiently accountable to their local community’.560 Another concern centres on a perceived threat that in the market-like environment in which schools operate, MATs might at some point be permitted to run on a for-profit basis and thereby transform the character of the education system,561 with ‘private interests marginalizing the public domain’.562 Finally, there is reference to MATs’ ‘variable’ levels of performance.563 Some MATs ‘consistently appear at the bottom of league tables’.564 The accountability issue, which is not confined to MATs but extends to the whole academy sector, has provoked considerable discussion and has already led to some important reforms. There was perceived to be an ‘accountability gap’565 resulting from local authorities’ inability to supervise the academy schools in their area. 554 Benn (2011) n 464 above, 167 and 173; G Hurst, ‘New schools chief wants army of troubleshooters’, The Times, 28 December 2011, 1 and 7; R Hill, J Dunford, N Parish, S Rea and L Sandals, The growth of academy chains: implications for leadership and learning (Nottingham, National College for School Leadership, 2012) 28–29. 555 House of Commons Education Committee, Multi-academy Trusts Seventh Report of session 2016–17 (HC 204) (2017), para 3. 556 Ofsted, The Annual Report of Her Majesty’s Chief Inspector of Education, Children’s Services and Skills 2015/16 (HC 821) (London, Ofsted, 2016) para 304. 557 DfE (2016) n 446 above para 1.46. 558 Ibid, paras 1.41 and 1.42. 559 Benn (2011) n 464 above, 176; Ofsted, Multi-academy trusts: benefits, challenges and functions (London, Ofsted, 2019). 560 House of Commons Education Committee (2017) n 555 above para 46. 561 Benn (2011) n 464 above, 173–175. 562 H Gunter, ‘Conclusion: Public Education and Academies’, in H Gunter (ed), The State and Education Policy: The Academies Programme (London, Continuum, 2011) 212–233, 217. 563 Ofsted n 556 above paras 306–308. 564 House of Commons Education Committee (2017) n 555 above, para 96. 565 R Muir, ‘Time to address the accountability gap’, The Times, 28 December 2011, 6. Muir was an associate director for public services reform at the IPPR.

164 Institutional Diversity in a Developing Schools System The Chief Inspector of Schools, then Sir Michael Wilshaw, reportedly acknowledged that Ofsted lacked the resources to police the sector intensively – although the House of Commons Education Committee recommended that academy chains should be subject to Ofsted inspection as it would ‘improve [MATs] in the same way it has schools and local authorities’.566 Wilshaw reportedly considered it unrealistic to expect the DfE to intervene in the way that local authorities would be able to, to deal with problems in the performance of their own schools.567 The House of Commons Education Committee heard evidence that it was impracticable for the DfE to have oversight of individual schools on a day-to-day basis.568 Wilshaw favoured the introduction of regional or local ‘school commissioners’, a model developed by the Institute for Public Policy Research (IPPR) and endorsed by the Labour Party. The IPPR envisaged local commissioners acting as ‘local champions for standards’, with responsibility for monitoring the performance of all schools, including academies, and able to intervene if schools were ‘failing or coasting’.569 An IPPR report published in 2014 expanded on the idea (see below). There was, meanwhile, a concern that since local school commissioners would probably be appointed by the Secretary of State, they would lack political independence.570 An alternative approach was to extend the role of local authorities by according them new regulatory and commissioning roles, as proposed by the Local Government Association.571 However, that would not have been consistent with Conservative Party policy of keeping the academy sector outside local authorities’ albeit diminished hegemony. Indeed, the National Audit Office referred to the ‘very strong messages’ that local authorities had received ‘about not overseeing and meddling in academies’.572 In the event, Government plans for Regional School Commissioners (RSCs) were reported in the press in late 2013573 and the new framework came into operation in September 2014. The eight RSCs are appointed by the Secretary of State. Their regulatory functions574 are to monitor the performance of the academies and free schools in their area, initiate action in response to underperformance

566 House of Commons Education Committee, Academies and Free Schools. Fourth Report session 2014–15 (HC 258) (2015), para 162; Ofsted ((2019) n 559 above) also favours Ofsted inspection of MATs. 567 Reported in G Hurst, ‘New schools chief want army of troubleshooters’, The Times, 28 December 2011, 1 and 7. 568 House of Commons Education Committee (2015) n 566 above, para.71. 569 Muir n 565 above. 570 Letter from Sir Peter Newsam, former Chief Schools Adjudicator, published in The Times, 30 December 2011. 571 Local Government Association, Local freedom or central control? Why councils have an important role to play in local education (London: Local Government Group, 2010). 572 Cited in House of Commons Education Committee (2015) n 566 above, para 86. 573 R Adams and W Mansell, ‘Michael Gove to appointment new regulators to oversee free schools and academies’, The Guardian (online) 20 November 2013 www.theguardian.com/politics/2013/ nov/20/michael-gove-regulators-free-schools. 574 See House of Commons Education Committee, The Role of Regional School Commissioners, First Report session 2015–16 (HC 401) (2016), para 11.

A New ‘Moral Order’? Education Reform Since 2010 165 (they exercise powers of intervention on behalf of the Secretary of State), and approve changes to existing academies, including alterations to age ranges, mergers between academies and adjustments to MAT arrangements. They also decide on the creation of new academies (although they do not commission them, that being a function of central government), make recommendations to ministers about ‘free school’ applications and identify suitable academy sponsors.575 The role of RSCs was expanded in 2015 with the inclusion of responsibility for approving conversions to academy status for underperforming schools. Supporting RSCs are Headteacher Boards comprised of non-executive members elected by academy heads or appointed.576 The DfE has described their role as being ‘to provide advice, scrutiny and challenge to the RSCs’ decision-making’.577 RSCs are ‘line managed’ by the Schools Commissioner,578 referred to earlier. One of the dominant features of the schools system with the onset of academisation and its spread into alternative arrangements for children excluded from or unable to attend a school (‘alternative provision academies’,579 of which there were 128 in January 2019580) and provision for those aged 16–19 (‘16 to 19 academies’, of which there are only a handful),581 as well as the development of state-funded University Technical Colleges582 (of which there were 50 open by mid-2019583), is its fragmentation into autonomous or semi-autonomous institutions. The introduction of RSCs was clearly a further element of this fragmented structure, since they represent what Muir and Clifton, in a report for the IPPR, refer to as ‘parallel

575 DfE, Regional Schools Commissioners Decision Making Framework (DfE, 2016) www.gov. uk/government/uploads/system/uploads/attachment_data/file/577885/RSC_decision_making_ framework_December_2016.pdf. 576 See House of Commons Education Committee (2016) n 574 above ch 5 for a discussion of their role. 577 DfE (2016) n 575 above, 4. 578 House of Commons Education Committee (2016) n 574 above, para 14. 579 Academies Act 2010, ss 1C and 1D. They provide part-time or full-time education for such children. The government’s intention was to enable alternative educational provision to become independent of local authorities and to enable a wider range of bodies to establish it: see DfE (2010) n 230 above, paras 3.32–3.35. 580 DfE (2019) n 549 above. They include 39 alternative provision free schools. 581 Academies Act 2010, s 1B. There are 93 sixth form colleges in England. The first to convert to 16–19 academy status was Hereford Sixth Form College in March 2017 by which time three others were close to conversion and around 20% of sixth form colleges had started consultations over conversion: J Burke, ‘First sixth form college converts to academy status today’, FE Week 1 March 2017, https://feweek. co.uk/2017/03/01/first-sixth-form-college-converts-to-academy-status-today/. Provision made by these 16–19 academies is classed as secondary education rather than further education: EA 1996, s 2(2A). 582 University Technical Colleges (UTCs), championed by a former Education Secretary, Lord Baker, provide technical and vocational education for 14–19 year olds. According to the DfE (University Technical Colleges: How to Apply (London, DfE, 2015) para 1.1), UTCs are all-ability and mixed sex schools, with academy status, which ‘provide an opportunity for employers and universities to work together, with educational experts, to open new institutions that deliver high quality technical education in a range of specialist areas’. Typically these areas would include engineering and construction. UTCs are sponsored by universities, local employers and further education colleges. 583 Figure stated on the UTC website www.utcolleges.org/the-utc-story/.

166 Institutional Diversity in a Developing Schools System bureaucracies’, responsible for the academy sector but not schools maintained by local authorities.584 Reiterating the case for local school commissioners with the ability to monitor standards across the state schools in an area and enforce changes such as expansion or decommissioning of schools in line with local demand and levels of need for school places, as well as managing academy funding agreement renewals, Muir and Clifton highlight how, unlike the RSCs, the local school commissioners would ‘provide local democratic oversight of decisions about the school system’.585 They stress the importance of having an effective ‘mediating layer of governance’ for schools, to ensure better co-ordination and capacity for intervention to effect improvements, and that the local system develops in ways that are in the interests of children.586 Local authorities would be able to contribute to it, under their proposals, by taking a lead over local school place planning and being permitted (which they no longer are, as noted above) to compete for the opportunity to establish a new school. Reporting in 2015 on the evolution of the RSC-based middle tier of governance between Whitehall and individual schools and how it was filling the accountability gap, the House of Commons Education Committee, like Muir and Clifton, considered the RSC regions to be too large and that more RSCs were needed to ensure more effective oversight.587 Muir and Clifton considered the size of their regions made it impossible for RSCs to ensure they have a clear grasp of how the local schools market is developing.588 In its subsequent report on RSCs in 2016589 the Education Committee was concerned that the continuing growth of the academy sector would lead to significant increases in the workload of the RSCs and recommended that the Government would need to monitor the situation.590 The Committee found that it was difficult to measure the performance and impact of RSCs as insufficient data were made available.591 Academisation is, along with the development of free schools, seen by some as having moved the state schools system into a more atomised, chaotic state, operating under complex legal and governance arrangements and asymmetrical regulatory controls.592 As an example of this, guidance issued by the DfE on local authority and RSC powers of intervention in schools ‘causing concern’593 is statutory for local authorities594 but not for RSCs. Whatever improvements in

584 R Muir and J Clifton, Whole System Reform. England’s Schools and the Middle Tier (London, IPPR, 2014), 2. 585 Ibid. 586 Ibid. 587 House of Commons Education Committee (2015) n 566 above, para 99. 588 Muir and Clifton (2014) n 584 above, 24. 589 House of Commons Education Committee (2016) n 574 above. 590 Ibid, para 44. 591 Ibid, ch 6. 592 See Benn (2011) n 464 above; D Wolfe, ‘Schools: The Legal Structures, the Accidents of History and the Legacies of Timing and Circumstance’ (2013) 14(2) Education Law Journal 100; H Gunter (ed), The State and Education Policy. The Academies programme (London, Continuum, 2012). 593 DfE, Schools causing concern (London, DfE, 2018). 594 EIA 2006, s 72.

A New ‘Moral Order’? Education Reform Since 2010 167 educational achievement levels that academisation may be bringing – and the evidence on this is not conclusive595 – this systemic fragmentation, combined with the involvement of non-state organisations, particularly academy sponsors and chains, challenges the notion of education as a democratically accountable local public service which is expected to focus on public needs, equality and fair access to rationally distributed resources.596 Responding to this problem, West and Wolfe have proposed a way of introducing greater local democratic oversight of academies by making the local authority rather than the Secretary of State a party to the funding agreement with the academy trust.597 One should also note the criticism that some academy trusts may be paying ‘[u]njustifiably high salaries’ which the DfE is unable to correlate with an academy’s level of performance and which ‘use public money that could be better spent improving children’s education’.598 Also notable is the considerable regional variation in the availability of potential sponsors in areas of underperforming schools which could covert to academies, with the fewest present in the North of England.599 It is unclear that the RSCs have filled the accountability gap adequately or that they are fully capable of safeguarding the public interest in education more generally either in the expanding sector where they exercise responsibility – which now receives a total income of £20 billion per annum, 90 per cent of which comes from government grants600 – or more generally. There is also an accountability gap in the way that academy trusts engage with the parent community. The Public Accounts Committee has found that it is ‘not clear to whom parents can turn when they need to escalate concerns about the running of academy schools and academy trusts’.601 Academy trusts are required to have complaints procedures for parents, but the complaints arrangements are not always applied; and in some instances the complaint lies with the MAT rather than with the management of the individual academy, but there is no procedure for these concerns to be considered.602 The Committee also reports that parents in stand-alone academies ‘are more likely to feel that their voice is heard than in those academy schools in multi-academy trusts’.603 This adds to the

595 See, eg, G Gee, J Worth and D Sims, Academies and maintained schools; what do we know? (London, NFER, 2015); and H Gunter, R Lupton, S Courtney and R McGinity, Policy Briefing. Academy Schools (University of Manchester, 2015). 596 See Gunter (ed) (2012) n 592 above. 597 A West and D Wolfe, Academies, the School System in England and a Vision for the Future Clare Market Papers No. 23 (London, LSE, 2018). 598 House of Commons Committee of Public Accounts, Academy schools’ finances, Thirtieth Report of Session 2017–19 (HC 760) (2018) 11. 599 DfE, Department for Education. Converting Maintained Schools to Academies (HC 720) Session 2017–2019 22 February 2018 (London, National Audit Office, 2018) 11. 600 Based in 2015–16 figures quoted in House of Commons Committee of Public Accounts (2018) n 598 above, 8. 601 House of Commons Committee of Public Accounts, Academy Accounts and Performance Seventy-Third Report of Session 2017–19 (HC 1597) (2019), 6. 602 Ibid, 11. 603 Ibid, 12.

168 Institutional Diversity in a Developing Schools System concerns surrounding the role of MATs in the schools system and their lack of local accountability discussed above.

C. School Autonomy and the Lessons of the ‘Trojan Horse’ Affair Concern about accountability in a schools sector comprised of increasingly autonomous institutions became significantly heightened as a result of the so-called ‘Trojan Horse’ affair, which first came to light in 2013. It arose from activities in a number of state schools in Birmingham which, as discussed below, included apparent attempts to infiltrate and take over the management of some of them, apparently for cultural reasons. The revelations concerning these activities followed rumours, over more than a decade, of tensions over the control and influences on the direction of certain schools in the area. The controversy surrounding these schools led to a report by the House of Commons Education Committee,604 followed by an official government written response which was presented to Parliament.605 There was also an independent investigation, commissioned by the Government and conducted by the Education Commissioner for Birmingham, Peter Clarke,606 whose report was published in mid-2014.607 The city council in Birmingham also commissioned an investigation and report from Ian Kershaw, the managing director of Northern Education.608 In addition, investigations were carried out by Ofsted, the Education Funding Agency (as it was then known) and the police. The train of events surrounding the exposure of the issue commenced in late 2013 with the receipt by the Birmingham City Council of an unsigned letter referring to ‘Operation Trojan Horse’, a plan to take over six secular schools and conduct them on the basis of strict religious principles.609 It named a specific person who had been responsible for orchestrating matters in furtherance of the plan. The plan involved the subversion of the schools’ governing bodies through infiltration of their ranks. Governance of the schools was to be disrupted and control of the schools would eventually be seized. Head teachers would be undermined and worn down by interference, precipitating departure from their post. A number of schools 604 House of Commons Education Committee, Extremism in Schools: the Trojan Horse Affair, Seventh Report of Session 2014–15 (HC 473) (London, The Stationery Office, 2015) para.4. 605 Secretary of State for Education, Government response to the Education Select Committee Report: Extremism in schools: the Trojan Horse affair (Cm 9094) (London, The Stationery Office, 2015). 606 The Secretary of State issued a direction under the Education Act 1996, s 497A, which required Birmingham City Council to co-operate with Mr Clarke. 607 P Clarke, Report into allegations concerning the Birmingham schools arising from the ‘Trojan Horse’ letter (HC 576) (London, The Stationery Office, 2014). 608 I Kershaw, Investigation Report. Trojan Horse Letter (Birmingham, Eversheds/Northern Education, 2014). Northern Education is a consultancy and support organisation particularly in the area of school and college management. The present chair is the former Education Secretary Baroness Morris of Yardley (Estelle Morris). 609 Clarke (2014) n 607 above, 5.

A New ‘Moral Order’? Education Reform Since 2010 169 were implicated in the affair and the scope of the investigations encompassed as many as 16 primary and secondary schools. All were state-maintained although some were converter academies.610 As the Kershaw report indicated, while the Trojan Horse letter itself only referred specifically to six schools, concerns were not centred exclusively on them.611 The Clarke report revealed what it described as a ‘disconcerting pattern’ across a number of schools, with ‘the effective take-over of the governing body by likeminded people’; nepotism in staff and governor appointments; and a ‘strategy to oust the head teacher’, with pressure on heads and other senior staff in the form of bullying and intimidation and the making of various complaints and criticisms by school governors against previously well-regarded heads.612 Governing bodies were reported to have interfered in the school curriculum and in the day-to-day running of the school. A religious motive to the strategy – in schools which were officially classed as non-faith – was reportedly demonstrated by its intention to reinforce ‘Muslim identity to the exclusion or disparagement of others’ and by the introduction of conservative religious practices into school life.613 In a small number of schools there had been a takeover of the governing bodies by people associated with each other who, once they were in a position to do so, had ‘sought to introduce a distinct set of Islamic behaviours and religious practices’614 and who tended to ‘espouse, endorse or fail to challenge extremist views’.615 Clarke found that although most parents were not looking for the adoption of a conservative religious ethos they in many cases failed to oppose its proponents for fear of being branded ‘disloyal to their faith or their community’.616 This was not therefore a case of schools failing to cater for minority religious values among the families of pupils, but rather one in which schools were seeking to impose a strict conservative code which was difficult for families to resist. Turning to the perspective of the pupils, there was a question about whether decisions at school level were paying sufficient regard to their interests. But the possibility that the educational environment and ethos at the schools might pose a risk of children’s development into people less able to participate in wider society or even that they could become future extremists was not central to Clarke’s inquiry. Moreover, his report did not find evidence that the strategy aimed to radicalise pupils or promote violent extremism. Nonetheless, it was reported by teachers that pupils were ‘learning to be intolerant of difference and diversity’ and were ‘having their horizons narrowed … potentially denied the opportunity to 610 Ie schools which had previously being maintained by the local authority but had converted to academy status (see the Academies Act 2010, as amended) under which their funding would come from central government. 611 Kershaw n 608 above, para 117. 612 Clarke n 607above, 10. 613 Ibid. 614 Ibid. 615 Ibid, 12. 616 Ibid, 13.

170 Institutional Diversity in a Developing Schools System enjoy and exploit the opportunities of a modern multi-cultural Britain’.617 There was a narrowing of the curriculum. At some schools the governors were seeking to influence schemes of work, insisting that there be ‘an Islamic approach’ to subjects such as sex education, science and religious education.618 There was evidence that 15–16 year olds taking Biology were being expected to study the topic of human reproduction at home rather than receiving lessons on it at school.619 Measures taken at some schools included scrapping of drama lessons, banning of singing by pupils and seeking to limit mixing between the sexes.620 In one academy there was an ‘anti-Western theme’ to school assemblies.621 Clarke specifically identified concerns that some children would be vulnerable to future radicalisation and at how their ability to challenge or question radical influences was limited.622 His report indicates that the attempt to introduce an intolerant and aggressive religious ethos in some schools,623 whatever the underlying motive behind it, had had the effect of limiting young people’s life chances rendering them ‘more vulnerable to pernicious influences in the future’.624 The Kershaw report, which found no evidence of a systematic takeover plot in relation to the schools, nevertheless referred to many similar issues to those highlighted by Clarke and criticised the Birmingham City Council’s failure to intervene. Kershaw attributed the council’s reluctance to a fear of appearing racist or Islamophobic.625 The evidence from the reports seems to point to significant failures in upholding some key children’s rights as set out in the UNCRC, particularly those concerned with respect for others and preparation for life in a free society.626 Nevertheless, Clarke’s chief recommendations, which the Government accepted, were mostly focused on the way that interference in the schools had occurred. In particular, the report’s chief recommendations were concerned with ensuring improved monitoring of schools and appropriate intervention when problems were found; a more effective system for teachers to be able to report any concerns; consideration by Ofsted of whether its inspection framework enabled extremism and departure from the secular character of a non-faith school to be identified; better guidance on school governor appointments; and limiting to two the number of schools on which any individual could be a governor. Ofsted intervention was already underway before the Clarke and Kershaw reports were published. Five of the schools, four of which were academies, were placed under ‘special measures’.627 Some governors of the Trojan Horse schools resigned from their role. The outcomes of the Ofsted

617 Ibid. 618 Ibid, 619 Ibid. 620 Ibid,

36 (para 4.14).

40 (para 4.26). 41 (paras 4.30 and 4.31). 622 Ibid, 13. 623 Ibid. 624 Ibid. 625 Kershaw n 608 above, paras 46 and 95. 626 UNCRC, Art 29. 627 EA 2005, s 44(1). 621 Ibid,

A New ‘Moral Order’? Education Reform Since 2010 171 inspections were, in fact, somewhat different to those of previous inspections not long beforehand. The Park View Academy, for example, an institution which gave rise to some of the greatest concerns, had been rated as ‘outstanding’ in 2012 but was placed in special measures after its inspection in April 2014. It should be noted that the significant representation of academies among the schools caught up in the Trojan Horse affair was attributed to the degree of autonomy enjoyed by these schools relative to local authority maintained schools, which made them more susceptible to the kind of take-over that had occurred.628 In view of the lack of consistency in some of the inspections, Ofsted’s inspection framework and the reliability and robustness of its judgments came into question – including from the House of Commons Education Committee.629 But Ofsted contended that the fall in standards across the relevant schools was illustrative of the dramatic impact that changes in management and leadership can have on a school and reflected the turbulence and low staff morale which undermined the schools’ effectiveness.630 On the question of extremism or radicalisation the Committee found but one occurrence and that there had not been a sustained plot. In response the Government accused the Committee of downplaying both the seriousness of what had occurred in the Trojan Horse schools and government efforts to tackle extremism.631 Further action against the schools and some of the individuals concerned followed. Four of the academies were placed under a new academy trust. One school was closed and reopened as an academy; and new governance arrangements were implemented in another school. Moves were made to impose prohibition orders against some of the individual teachers implicated in the affair, which would bar them from teaching. Two teachers from Park View Academy, who, between them had allegedly, inter alia, changed the curriculum to prevent standard sex education, separated boys and girls, and broadcast a call to prayer using the school’s public address system, were subjected to prohibition orders by the Secretary of State (in effect, banned)632 in February 2016, following disciplinary proceedings before the professional conduct panel of the National Council for Teaching and Leadership (NCTL). Subsequently, however, they successfully challenged the decision in the High Court which found that a failure by the panel to disclose to them some of the evidence which had informed the panel’s decision constituted a procedural irregularity which rendered the disciplinary

628 House of Commons Education Committee, Extremism in Schools: the Trojan Horse Affair, Seventh Report of Session 2014–15 (HC 473) (London, The Stationery Office, 2015), para 60. 629 Ibid, para 41. 630 House of Commons Education Committee, Extremism in schools: the Trojan Horse Affair: Ofsted response to the Committee’s Seventh Report of Session 2014–15, Second Special Report of Session 2015–16 (HC 324) (London, The Stationery Office, 2015), Appendix, 1. 631 Secretary of State for Education, Government response to the Education Select Committee Report: Extremism in schools: the Trojan Horse affair (Cm 9094) (London, The Stationery Office, 2015), para 5. 632 Made under the EA 2002, s 141B.

172 Institutional Diversity in a Developing Schools System proceedings unjust.633 The judge nevertheless acknowledged that a new hearing of the disciplinary matter could follow the ruling. There were also reportedly 11 other teachers from the Trojan Horse schools facing ‘allegations of professional misconduct’.634 Consideration was also given to the utilisation of powers to bar some of the governors from school management.635 These powers have been more limited in the case of schools which are not academies or in the private sector; and the affair appears to have prompted government plans to introduce legislation enabling ‘unsuitable individuals’ to be barred from serving as governors of maintained schools as well.636 Proposals following on from Trojan Horse have included the creation of a national database of school governors so that the public is able to see who is serving in which (and how many) schools.637 The Secretary of State has a statutory power enabling him or her to collect such information from schools.638 Academies will also be required to publish details of their governing bodies, including the identity of individual members.639 The policy aim is to prevent covert infiltration of governing bodies by those bent on interference for undesirable purposes. In a further move to curb attempts to infiltrate and manipulate school governing bodies, the scope of the existing power of these bodies to remove governors in some categories was, as noted earlier, extended to elected parent governors from 1 September 2017, such removal resulting in a five-year disqualification from holding office as school governor.640 Although this measure is not exclusively concerned with those pursuing particular religious or extremist agendas but with any ‘unsuitable’ governor causing ‘disproportionate disruption’ to their governing body,641 it seems highly likely to have been influenced by the Trojan Horse affair.642 Meanwhile, reports at the start of 2017 that the Government, contrary to assurances given previously to witnesses to the Clarke inquiry by the DfE, would effectively be removing these witnesses’ anonymity by disclosing their testimonies to the lawyers of the five teachers who were facing disciplinary proceedings before

633 Inam Anwar v National College for Teaching and Leadership and the Secretary of State for Education [2016] EWHC 2507 (Admin), para 45. 634 Anon, ‘”Trojan Horse plot” teachers banned’, The Times, 20 February 2016. 635 Secretary of State for Education (2015) n 631 above, paras 9, 11 and 26. 636 DfE (2016) n 446 above, para 3.35. 637 Secretary of State for Education (2015) n 631 above, para 20. 638 EA 1996, s 538. 639 Secretary of State for Education (2015) n 631 above, para 22 and DfE News Release ‘National database of governors’ at www.gov.uk/government/news/national-database-of-governors. 640 The School Governance (Constitution and Federations) (England) (Amendment) Regulations 2017 (SI 2017/487). 641 DfE, Explanatory Memorandum to the School Governance (Constitution and Federations) (England) (Amendment) Regulations 2017 (London, DfE, 2017) para 8.1. 642 See C Turner, ‘New rule change allows schools to remove governors for the first time’, The Telegraph, 6 May 2017, www.telegraph.co.uk/education/2017/05/05/new-rule-change-allows-schools-removeschool-governors-first/.

A New ‘Moral Order’? Education Reform Since 2010 173 the NCTL643 ensured that the controversy surrounding the affair would continue. Concerns were expressed that such disclosure could deter witnesses to similar future instances from coming forward, although the National Association of Head Teachers obtained a temporary injunction to prevent disclosure.644 A footnote to the Trojan Horse affair arises from the rulings concerning segregation by sex of pupils at Al-Hijrah School, a co-educational (mixed sex) voluntary aided Islamic school, through ‘parallel arrangements’ for their education – separation of a kind which, as we have seen, was at issue in the affair. The High Court held that this arrangement, which was not in a Trojan Horse school, did not constitute unlawful sex discrimination contrary to the Equality Act 2010.645 The Court of Appeal, however, disagreed.646 The fact that, according to the Court, Ofsted had ‘made it clear that, if this appeal succeeds, it will apply a consistent approach to all similarly organized schools’,647 underlines schools’ lack of freedom to separate boys and girls and thus the slightly more reined-in autonomy in the future for schools with a specific ethos that, as put into practice, conflicts with more widely established social and legal norms. These important rulings are discussed in Chapter 4.

D. Grammar Schools Expansion The retention of grammar school status, held by 163 schools in England, which educate just over five per cent of the secondary school population, continues to be an extremely divisive issue as it has been over the six decades since the first comprehensive schools were established. Proponents of grammar schools – where pupil selection is primarily based on academic ability – claim that they advance social mobility. They argue that they provide opportunities for academically able pupils from poorer backgrounds to receive a very good academic education irrespective of family income. This argument is supported by recent independent research by Iain Mansfield which refers to the fact that although children entitled to free school meals are massively underrepresented among grammar school pupils, 45 per cent of these schools’ pupils come from families with an income below median level.648 Mansfield concludes that grammar schools provide 643 A Gilligan, ‘Trojan Horse school witnesses fear from safety as names released’, Sunday Times, 1 January 2017; N Woodcock, ‘Sort out Trojan Horse shambles, minister told’, The Times 6 January 2017; C Turner, ‘Education Secretary urged to intervene to protect anonymity of Trojan Horse whistleblowers’, The Telegraph 6 January 2017, www.telegraph.co.uk/education/2017/01/06/educationsecretary-urged-intervene-protect-anonymity-trojan/. 644 Reported in Woodcock (ibid) and Turner (ibid). 645 R (Interim Board of X School) v Her Majesty’s Chief Inspector of Education, Children’s Services and Skills [2016] EWHC 2813 (Admin); [2017] ELR 54. 646 Her Majesty’s Chief Inspector of Education, Children’s Services and Skills v The Interim Executive Board of Al-Hijrah School and Others [2017] EWCA Civ 1426; [2018] ELR 25. See further the discussion in ch 4. 647 Ibid at [96] per Sir Terence Hetherington MR and Beatson LJ. 648 I Mansfield, The Impact of Selective Secondary Education on Progression to Higher Education HEPI Occasional Paper 19 (Oxford, Higher Education Policy Institute, 2019) 7.

174 Institutional Diversity in a Developing Schools System ‘an unrivalled ladder of opportunity to the less advantaged half of society’ and, more specifically that selective education ‘dramatically increases the likelihood of students in the most disadvantaged two quintiles, or below median income, progressing to highly-selective universities, including Oxbridge’.649 Proponents also see grammar schools as contributing positively to educational standards overall. However, opponents consider their benefit to social mobility to be unproven and regard them as contributing to social division, since these schools continue to have an under-representation of children from among poorer sections of society, an over-representation of children from private primary schools in their intake, and an adverse impact on local schools by depriving them of the more academically able children to the detriment of their academic environment and achievement levels.650 It has been estimated that the secondary education of 10 per cent of children is adversely affected in this way by having a selective school nearby.651 The case against grammar school expansion continues to rest primarily in the very strong research evidence that academic school selection favours children from advantaged backgrounds.652 The Labour Government 1997–2010, in a bid to retain as much popular support as possible within the political centre ground, had resisted a fairly widespread wish within the ranks of the party members to abolish selective education and thus grammar school status. It had instead taken the more pragmatic options, under the SSFA 1998, of establishing a collective parental right to hold a local vote on whether a grammar school should retain its selective status, as noted above, and imposing what amounted to a statutory bar on the introduction of any new grammar schools (see below). Also, as discussed in Chapter 5, it permitted admission arrangements based on the selection by aptitude for one or more of certain subjects of up to ten per cent of a school’s pupils. It also authorised selection under banding arrangements whereby pupils are selected in direct proportion to the prevalent ability ranges among the child population (usually by age group) in a specific geographical area.653 No new grammar schools were possible after the 1998 Act because selection was only allowed if sanctioned by the relevant statutory provisions; and no school could be designated as a grammar school unless it already had selective admission arrangements which had been in place in September 1997 (i.e. at the start of the school year 1997–98). In the case of selection wholly by academic

649 Ibid, 50. 650 Social Mobility Commission, Time for Change: An Assessment of Government Policies on Social Mobility 1997–2017 (London, Social Mobility Commission, 2017) 40–41; C Cullinane, Research Brief: Gaps in Grammar (Sutton Trust, December 2016), www.suttontrust.com/wp-content/uploads/2016/12/ Gaps-in-Grammar_For-website.pdf. 651 M Benn, Life Lessons. The Case for a National Education Service (London, Verso, 2018), 140. 652 Including the excellent recent analysis in B Lu, ‘Selection on attainment? Local authorities, pupil backgrounds, attainment and grammar school opportunities’, Educational Review (2018) (advance online publication DOI: 10.1080/00131911.2018.1483893). See also J Andrews, J Hutchinson and R Johnes, Grammar Schools and Social Mobility (London, Education Policy Institute, 2016) and C Cullinane, Gaps in Grammar (London, The Sutton Trust, 2016). 653 SSFA 1998, ss 99–103.

A New ‘Moral Order’? Education Reform Since 2010 175 ability, only existing grammar schools (those operating as such at the start of the 1997–98 academic year) or those designated by the Secretary to replace an existing grammar school could select.654 There were no specific proposals from the incoming Coalition Government in 2010 to alter the law on selection. Nevertheless, the Academies Act 2010 provided, in effect, for grammar schools which converted to academies to retain their selective status, since they were to be exempt from the general rule that academies must cater for pupils of ‘different abilities’.655 But what amounted to a prohibition of wholly new grammar schools continued. In the face of this bar, and against a background of reportedly unsatisfied demand for grammar school places, two grammar schools in Kent – Weald of Kent, located in Tonbridge, and Invicta Grammar, based in Maidstone – proposed to open an annex in Sevenoaks, where over 2,500 parents had signed a petition calling for the town to have a selective school. The Education Funding Agency, however, had advised that both sets of proposals would, if implemented, give rise to the establishment of a new grammar school, contrary to the statutory bar. A significant factor was that the ‘annex’ would be a girls’ school whereas the ‘host’ grammars were both co-educational.656 As a result, it was more difficult for the schools to argue that the respective schools were simply expanding. A further factor was the distance between the host and annex sites – ten miles in the case of Weald of Kent – so that the Sevenoaks site was in effect likely to be catering for a different community, for the most part. An attempt was subsequently made by Weald of Kent to overcome the difficulty by submitting a revised proposal in which the school would be for girls only up to the sixth form (which would be mixed), on both sites, and there would be some integration between the sites, such as bringing year seven pupils together on at least one half day per week. There would be shared leadership, governance and administrative arrangements and a common admissions policy, across the two sites. In concluding that there was a genuine expansion of an existing school rather than establishment of a new school, the then Secretary of State, Nicky Morgan, also noted that over 40 per cent of the pupils attending the Weald of Kent School came from the Sevenoaks area.657 Comprehensive Future, which campaigns for fair school admissions, was reported to be at one point considering a judicial review application challenging the Secretary of State’s decision, but it appears to have been hindered by a lack of official openness.658 The Tonbridge annex opened in September 2017.

654 SSFA 1998, ss 99, 100 and 104. 655 Academies Act 2010, ss 1A(1)(c) and 6(3) and (4). 656 See G Paton, ‘Plan for new grammar school blocked by Michael Gove’, The Telegraph (online) 13 December 2013, www.telegraph.co.uk/education/educationnews/10516594/Plan-for-new-grammarschool-blocked-by-Michael-Gove.html. 657 House of Commons Debs, Vol 600, Col 26WS, 15 October 2015, Nicky Morgan MP, Secretary of State for Education. 658 See A Vernon, ‘The Enlargement of Weald of Kent Grammar School’ (2016) 17(2) Education Law Journal 91.

176 Institutional Diversity in a Developing Schools System Under the Conservative Government led by Theresa May, grammar school expansion became an explicit policy aim. A consultation paper in 2016, Schools that Work for Everyone,659 was premised on the goal of expansion through enabling both existing grammar schools to grow and new grammars to be established, in response to parental demand. The policy aims were to extend parental choice, increase the number of good state schools, and improve attainment levels among disadvantaged pupils and thereby reduce the ‘attainment gap’. Following the publication of the proposals the House of Commons Education Committee, in an ‘evidence check’ on grammar schools, found that these schools had not narrowed the attainment gap in the past and called on the Government to demonstrate how the new policy would nevertheless succeed in that aim.660 The Government sought to address concerns about social exclusivity and division by proposing quotas of pupils from low income families, the creation or sponsorship by grammars of feeder primary schools in poorer areas, and grammar school sponsorship of nonselective academies. Extra funding was promised for the expansion of existing grammar schools – an extra £50 million per annum of new capital funding – starting in 2017–18.661 In the Spring Budget of 2017 support for the expansion of the free schools sector was announced to add 140 new schools, including selective schools, and to ensure free transport for low income families sending a child to a grammar school, although only to meet the cost of attending the selective school nearest their home (up to a distance of 15 miles).662 Although the Conservatives promised in their general election manifesto in 2017 to ‘lift the ban on the establishment of selective schools’,663 a proposal regarded by some as heralding a return to the bipartite system of the 1950s, this particular reform was in the event dropped after the election returned a Conservative Government but with a much reduced parliamentary majority. There nevertheless remained a government commitment to support selective education, combined with efforts to encourage grammar schools to advance social inclusion by adopting a range of approaches such as placing weight within their oversubscription criteria on pupils attracting the pupil premium (although there would be a clear financial incentive arising from the premium to do this anyway), extending outreach work in primary schools to attract more applications from pupils in disadvantaged areas, and adopting partnerships with local comprehensive schools. In May 2018 the Government finally published its response to the 2016 Consultation Paper. It cited evidence that a majority of grammar schools had adopted one of more of the proposed initiatives, which are underpinned by a Memorandum

659 Department for Education (London, DfE, 2016). 660 House of Commons Education Committee, Evidence check: Grammar Schools Fourth Report of Session 2016–17 (HC 780) (London, House of Commons, 2017) paras 18 and 34. 661 HM Treasury, Autumn Statement 2016 (Cm 9362) (London, HM Treasury, 2016) para 5.13. 662 HM Treasury, Spring Budget 2017 (HC 1025) (London, House of Commons, 2017) para 414. 663 The Conservative and Unionist Party, Forward Together, Our Plan for a Stronger Britain and Prosperous Future (London, The Conservative and Unionist Party, 2017) 50.

Conclusion 177 of Understanding between the Government and the Grammar School Heads’ Association.664 The extra £50 million funding to support the expansion of existing grammar schools has materialised, and allocations, made via a Selective School Expansion Fund (SSEF) to individual selective schools, are conditional on the schools being able to demonstrate a need for additional places, a commitment to increasing access for disadvantaged pupils, and evidence that they are working with local non-selective schools.665 It was reported in late 2018 that 16 grammar schools were relaxing their admission criteria to facilitate recruitment of more pupils from disadvantaged backgrounds, and thus would qualify for some of the extra funding, having had proposals for widened access approved by the DfE. More than half of these schools would apply a lower entrance exam pass mark for these children. One school, Altrincham Grammar School for Boys, would be accepting 20 children eligible for the pupil premium even where their exam scores were below those of other entrants.666 Even before the Government’s investment in grammar school expansion comes on stream there is evidence that the number of places at grammar schools has greatly increased through provision of extra classrooms and, in a few cases, the creation of annexes: in 2018 there were approximately 11,000 more pupils at grammar schools than there were in 2010.667 Comprehensive Future reported in July 2018 that one in five grammar schools in England were seeking to expand via bids to the SSEF and that if all the bids were approved a further 1,089 pupils per annum would be added to these schools’ rolls, collectively, in each of the next five years.668

VII. Conclusion Looking back over the past four decades, the institutional and governance framework of the state schools system in England has been re-shaped by a range of ideologically and politically driven changes of great significance. As Timmins argues, education will ‘rarely win elections’ for a party seeking power,669 yet once elected each new government seems to find education an irresistible policy area in which to fashion reform aimed at making a lasting mark on society. At the time of writing, for example, the Labour Party is seeking to develop plans for a ‘national education service’, as an integrated, accountable and socially inclusive service incorporating childcare and extending across all age ranges, although full

664 DfE, Schools that Work for Everyone. Government consultation response (London, DfE, 2018), 11–12. 665 Ibid, 12. 666 R Bennett, ‘Grammars ease entry rules for a slice of £50m’, The Times¸4 December 2018. 667 R Bennett, ‘Thousands more grammar school pupils despite ban’, The Times, 2 August 2018. 668 Post at https://comprehensivefuture.org.uk/thirty-five-grammar-schools-seek-expand-creating5000-selective-places-equivalent-seven-new-grammar-schools/. 669 Timmins n 27 above, 393.

178 Institutional Diversity in a Developing Schools System details have yet to be set out.670 It is far too soon to ascertain precisely how that reform would be implemented, but legislative changes would inevitably be needed. Indeed, for 40 years the schools system has been the subject of almost constant legislative reforms. Despite this the system continues to be comprised of schools which are largely state-funded and state-governed, admitting children and young people on a mostly non-selective basis. Selection of pupils by ability at the age of 11 to attend grammar schools largely ended as a country-wide practice by the mid-1970s, although selection remains in over 160 schools and attracted a renewed policy focus (for a time) under the first period of the May Government. The system continues to be mostly organised around the same distinct phases of education (primary, secondary and post-16) and to include a core of single sex institutions as well as many, but increasingly diverse, denominational schools. As has been discussed, the development of free schools and academies has provided new opportunities for faith schools. For example, in January 2018 there were 10 Muslim VA primary and secondary schools, but 19 Muslim academies and free schools.671 Despite the way that education became and remains highly politicised, the ideological divisions along strict doctrinaire party lines have at times been become less distinct under the policies that have been pursued. Indeed, there has over much of this period been a striking amount of common ground between the two main political parties in relation to schools policy. Increased diversity and specialisation within the schools system was a feature of both the New Labour years and the Conservative-led Coalition Government’s period in office. Moreover, the post-2015 Government’s expressed need for ‘a diverse school system that gives all children, whatever their background, the opportunity to help them achieve their potential’672 could have been articulated by any of the three previous governments. Neither of the main parties has sought to revive the influence of teachers on policy development, although both have at least evinced an intention to reverse the decline in status and esteem of the teaching profession. Even the parties’ policies on the private sector of education have not greatly diverged: in the 1970s, few looking forward would have predicted that a Labour Government might permit the private sector to run some LEAs and enter the state sector as sponsors of academies. Nor would anyone have expected that it would be under a Labour Government that the LEA as an institution would be consigned to history, albeit that LEA functions

670 See S Evans, ‘“A National Education Service is good in principle”’, TES 26 September 2018, www. tes.com/news/national-education-service-good-principle and K Murray (ed), Life Lessons. A National Education Service that leaves no adult behind (London, Fabian Society, 2017) https://fabians.org.uk/ wp-content/uploads/2018/02/Fabians-Life-Lessons-Report-web.pdf. See also the case for a national education service presented by Benn (2018) n 651 above. 671 DfE, Schools, pupils and their characteristics: January 2018 (DfE 2018) table 2c, www.gov.uk/ government/statistics/schools-pupils-and-their-characteristics-january-2018. 672 DfE, Schools that Work for Everyone (London, DfE, 2016) para 4.

Conclusion 179 would continue under the aegis of local authorities. Both Conservative and Labour Governments have promoted or supported more parental involvement and choice in education. Both have placed an emphasis on raising standards and monitoring through inspection and audit. While it is true that the Conservatives’ recent efforts to effect a degree of de-regulation and place greater emphasis on school autonomy represent distinctive policy moves, the Trojan Horse affair has re-emphasised the need to balance freedom with appropriate regulation, particularly in view of the risk that ‘unhealthy power dynamics’ can develop in some schools.673 From being threatened with abolition under the Labour Party’s 1983 election manifesto, the independent schools sector emerged relatively unscathed from the subsequent decades of education reform, although became more closely regulated under a new legal framework established under the Brown Government674 although not fully implemented until 2015.675 Independent schools now, however, depend in part for their continued legitimacy and charitable status – held by approximately half of all independent schools676 – on their capacity to offer a ‘public benefit’677 and to assist, by the application of their resources and expertise, both the state sector through partnership arrangements and those on lower incomes through the provision of funded places.678 Controversially, it was proposed by the May Government in its early months that charitable status be made dependent on independent schools sponsoring academies where able to do so or offering bursaries so that a particular number of places, a much higher proportion than had been the case previously, would go to those from poorer backgrounds,679 although this was later dropped.680 The independent sector retains its place despite facing rising costs and consequential and continual pressures to increase fees. The sector nonetheless continues to attract a degree of controversy not merely because it is seen as contributing to social inequality,681 tempered only by the (albeit uneven) 673 See L Casey DBE, The Casey Review: A Review into Opportunity and Integration (London, HMSO, 2016), para 7.46, www.gov.uk/government/uploads/system/uploads/attachment_data/file/575973/The_ Casey_Review_Report.pdf 674 Education and Skills Act 2008, pt 4. 675 Education and Skills Act 2008 (Commencement No 11 and Saving and Transitory Provisions) Order 2014 (SI 2014/3364) (C. 158). 676 DfE (2016) n 672 above, para 7. An ‘independent school’ is defined as a school (other than a local authority maintained school or a non-maintained special school) in which full-time education is provided for five or more pupils of compulsory school age or for one or more pupils with SEN or who are ‘looked after’ by the local authority: EA 1996, s 463. 677 Per the Charities Act 2011. 678 DfE (2016) n 672 above, para 5. See also E Busby, ‘DfE to monitor partnerships between state schools and independents’, 13 September 2017, www.tes.com/news/school-news/breaking-news/ dfe-monitor-partnerships-between-state-schools-and-independents. 679 DfE (2016) n 672 above, para 11. 680 See S Weale, ‘U-turn over threat to charitable status of private schools’, The Guardian (online), 13 September 2017, www.theguardian.com/education/2017/sep/13/government-backtracks-on-charitablestatus-of-private-schools. 681 See, eg, the over-representation of privately educated entrants to medicine and the Bar: Social Mobility Commission, State of the Nation 2016: Social Mobility in Great Britain (London, Social Mobility Commission, 2016) 141–142.

180 Institutional Diversity in a Developing Schools System availability of pupil bursaries, but also because of the practices and ethos at a small number of mainly denominational private schools which have been highlighted by Ofsted as raising significant concerns.682 Yet a policy providing for abolition of independent status is unlikely: as Melissa Benn suggests, it would be ‘likely to raise an unproductive political outcry followed by years of legal wrangling over the rights of parents to pay for their children’s education, in whatever form’.683 It is also argued that abolition would also have significant potential public cost implications – estimated at several billion pounds per annum – due to the increased numbers of children who would need to be educated within the state sector.684 If the system established by the EA 1944 was conceived of as operating through a partnership between central government, local government and the teaching profession, that of today is made up of largely autonomous institutions operating under what amounts to a central licensing authority which has to reflect the public interest in ensuring that both children’s opportunities and standards of educational provision are maximised and, to that end, that limited resources are allocated appropriately. Thus under the more centralised power structure that has developed concomitantly with the stripping away of local government’s authority,685 including its role in 16–19 education,686 and with a fragmented schools system much of which lies outside local authority influence, the national government bears potentially more political accountability for the system than ever before. This is the case despite policy attempts to harness parental choice and participation as a regulatory mechanism because of the potential for holding schools – and the governing bodies that strain to manage them687 – to account for their performance. In a sense, though, and aside from the obvious impact on the pupils, it is indeed individual schools themselves and those that run them that must pay the price for underperformance. There is a complex regulatory structure enabling diverse forms of enforcement action to be taken against them. Local authorities have retained a part in that structure, but in terms of their other educational functions their days of organising provision and managing the number of local school places through the creation, expansion or closure of schools, are largely over.

682 See ch 8. 683 Benn (2018) n 651 above, 137. 684 N Woodcock, ‘Fee-paying schools “save billions for the taxpayer”’, The Times 26 April 2019, citing analysis by the Independent Schools Council and Oxford Economics. 685 S Ranson, ‘‘The Changing Governance of Education’ (2008) 36(2) Education Management, Administration & Leadership 201, 206. 686 It is the Chief Executive of Skills Funding, the head of the Education and Skills Funding Agency, who has the responsibility to secure reasonable facilities of sufficient quality and quantity for the education and training of persons aged 16–18 and for the funding of education for those aged 19 or over with EHCPs. 687 Not least because of the seemingly continual shortage of school governors: see for example H Roscoe, ‘Many schools “short of governors”’ BBC News report 6 January 2014 at www.bbc.co.uk/ news/education-25591616 and T Breslin, Who governs our schools? Trends, tensions and opportunities (London, RSA, 2017).

4 Equal Access for Children to Education Settings I. Introduction This chapter examines the effectiveness of the law in promoting and safeguarding children’s equal access to education, which represents a fundamental principle, recognised as such across a wide range of international human rights instruments and not least the ECHR, as noted in earlier chapters and discussed further below. The Equality Act 2010, the principal equality measure under domestic law in the UK, has a particular relevance to the sphere of education, including arrangements for schooling, both in its provisions of general application and those specifically concerned with educational practice. Not only its proscriptions of certain forms of discrimination, but also its attempt to ensure the promotion of equality in the public sphere, are important in this context. While, on the whole, this is now quite a settled area of the law, very important cases continue to arise and, as with those that have preceded them, demonstrate that equality law issues can still be very contentious in this context. The area of disability discrimination in education in particular remains the subject of considerable judicial activity resulting in further additions to the now voluminous body of case law on equality, including that derived from decisions based on the earlier provisions which in effect were consolidated, with adjustments, within the 2010 Act. Equality law is important in the field of education because of the diversity of the school population and the risk that inherent social inequalities, rather than being addressed and ameliorated by schooling, could be reinforced by it. One of the most important equality issues, and a pervasive theme, within education and diversity is that of segregation. Much of the educational provision in England takes place in settings in which there has been a degree of segregation, often for reasons connected with religion or disability but to which may be added the social class divisions that can result from school admission criteria such as academic selection and school catchment areas, discussed in Chapter 5. It is clear that the law to a significant extent tolerates segregation within the education, although there are limits to what is permitted. So it is worth recalling a key passage from the judgment of Chief Justice Warren in the US Supreme Court

182 Equal Access for Children to Education Settings in Brown v Board of Education of Topeka,1 which was concerned with the racial segregation that arose from the arrangements for schooling in part of Kansas: Today education is perhaps the most important function of the state. Compulsory school attendance laws and the great expenditure for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of most basic public responsibilities … It is the very foundation of good. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be available to all on equal terms.2

Challenges were brought by parents representing African American children from Kansas, South Carolina, Virginia and Delaware against the decision by the public authorities to deny them admission to schools which were attended by white pupils, on the basis of district or state laws permitting racial segregation. The claimants argued that segregated public (state) schools were not equal and could not be rendered equal, so that their constitutional right to the equal protection of the law under the Fourteenth Amendment had been denied. The Supreme Court considered whether, where facilities and other tangible factors were equal, the children from this racial minority group were denied equal opportunities. Chief Justice Warren, giving the Court’s unanimous decision, answered that question in the affirmative. He said: To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone,

and would affect their educational development and motivation to learn.3 He concluded, ‘[s]eparate educational facilities are inherently unequal’.4 Viewed today, the situation that the US Supreme Court was considering made this, certainly in UK terms, an extreme case. Thus, for example, while debate about the exclusivity and social divisiveness of faith schools in England continues to be debated, it is generally accepted that, as Halstead argues, ‘[p]roviding equal opportunities for children does not require that they are all educated in an identical fashion’.5 Nevertheless, the issue of segregation continues to have legal as well as social relevance, both internationally, as we see from cases such as DH v Czech Republic discussed below, but also in the UK, arising not merely from

1 347 US 483 (1954). 2 Ibid, 493. 3 Ibid, 494. 4 Ibid, 495. 5 See J M Halstead, ‘In defence of faith schools’, in G Haydon (ed), Faith in Education. A Tribute to Terence McLaughlin (London, Institute of Education, 2009) 46–67, 66.

Equality and the Right to Education 183 suggestions that in some instances it may be beneficial educationally. For example, a debate arose after a case in Birmingham, also discussed below, concerning a co-educational Muslim school that had separate classes of boys and girls, about whether either sex benefited from segregated schooling.6 Another debate arose from a suggestion by Trevor Phillips when chair of the Commission for Racial Equality that one way of tackling under-achievement by African Caribbean boys might involve teaching them separately from others for some of the time.7 However, the crucial point about the judgment in Brown, which has been described as ‘one of the most important cases ever decided by the US Supreme Court’8 and has had a lasting impact9 even though the decision was ‘unclear about what educational equality actually means beyond the inherent inequality of separate facilities’,10 is that it confirmed the overriding importance of equality of access to education to the public good, a principle that transcends all others in this context.

II. Equality and the Right to Education An understanding of how the ECHR protects children’s equal access to education is important in view of the interaction between domestic equality law and international human rights law, particularly the ECHR, in this field. As public authorities, local authorities and state-funded schools11 are required by the Human Rights Act 1998 not to act incompatibility with the ECHR rights;12 and any alleged violations of the rights by such institutions are justiciable within the courts and tribunals system.13 Courts and tribunals in the UK must read and give effect to UK legislation in a manner consistent with the Convention rights,14 which themselves must be considered in the light of relevant Strasbourg case law.15 The right to education itself under ECHR A2P1 was discussed in Chapter 2, which referred not only to the ECHR but also to the other key international instruments under which the 6 See, eg, E Mulcahy, ‘Should boys and girls be taught separately in our schools?’, The Guardian 14 July 2017. 7 Reported in A Blair and D Charter, ‘Segregation could help black pupils says race chief ’, The Times 7 May 2005. 8 B M Superfine, Equality in Education Law and Policy, 1954–2010 (New York, Cambridge University Press, 2013) 63. 9 See MJ Klarman, From Jim Crown to Civil Rights (New York, OUP USA, 2004). 10 Superfine n 8 above. 11 See, eg, Ali v Head Teacher and Governors of Lord Grey School [2006] UKHL 14 [2006] ELR 223, where Baroness Hale at [79] refers to the claimant’s school, which was state-maintained, as ‘undoubtedly a public authority within the meaning of the [Human Rights] Act’. 12 Human Rights Act 1998, s 6. There are exceptions: where as a result of primary legislation the authority ‘could not have acted differently’; or where provisions of, or made under, primary legislation cannot be read or given effect in a way that is compatible with Convention rights and the authority was enforcing those provisions: s 6(2). 13 Human Rights Act 1998, s 7. 14 Ibid, s 3. 15 Ibid, s 2.

184 Equal Access for Children to Education Settings right to education is protected, including the UNCRC, the International Covenant on Economic, Cultural and Social Rights, and the ESC. The ECHR requires the various rights which it supports to be enjoyed without discrimination of various forms. It clearly supports equality in relation to the right to education. It is also important to note international measures specifically targeting particular forms of disadvantage, including those relevant to education, such as the UNESCO Convention against Discrimination in Education (1960), the UN Convention on the Rights of Persons with Disabilities (CRPD) (see below) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (discussed in Chapter 10), which specifically calls for girls to have the same curricular access as boys and seeks to end stereotyping of roles as male or female within education and, inter alia, to encourage co-education. The CRPD is of particular significance given the numbers of children with disabilities and the relationship between disabilities and special educational needs.16 It seeks to uphold equality for persons with disabilities and provides for states to prohibit disability discrimination,17 but of particular importance in relation to education is its specific requirement for states to take measures to ensure full enjoyment of human rights and fundamental freedoms by children with disabilities on an equal basis with other children – along with the requirement to make ‘reasonable accommodation’ in relation to disabilities, which the E uropean Court of Human Rights held should be considered when assessing Art 14 discrimination under the ECHR18 – and that their best interests shall be a primary consideration in all decisions taken that affect them.19 The CRPD also recognises that children with disablilities have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children, and to be provided with disability and age-appropriate assistance to realize that right.20

This last obligation, relating to the voice of children with disabilities, is in furtherance of the CRPD’s general principles of ‘full and effective participation in society’, ‘respect for the evolving capacities of children with disabilities’ and ‘respect for the right of children with disabilities to preserve their identities’.21 Concerns have, however, been expressed about the risk of tokenism in adherence to obligations on disabled children’s participation and particularly the likelihood that a voice will be given only to those children who can most easily be included,

16 See chs 1 and 9. 17 CRPD, Art 5. 18 Ibid, Arts 2, 5.3 and 7.1; Çam v Turkey (2016) Application No 51500/08, [65.]. See also Stoian v Romania (2019) Application No 289/14. 19 Ibid, Art 7.2. 20 Ibid, Art 7.3. 21 Ibid, Art 3.

Equality and the Right to Education 185 thereby widening what Broderick calls ‘the exclusionary gap’ for other children.22 It has been argued that even children with complex needs could be able to participate to some degree and that within the terms of the CRPD it ‘should be assumed that the disabled child has capacity’.23 These principles are clearly applicable to education and are consistent with the way that, while the CRPD contains no requirement to ensure access always to the same kind of provision as that made for children who are nondisabled, disabled children’s inclusion and participation are strongly promoted. The CRPD seeks the removal of disadvantages or barriers through positive assistance for individuals as well as appropriate policies and systemic design aimed at benefiting as many as possible and thereby supporting equal access. It places obligations on states to ensure ‘an inclusive education system at all levels’ which is directed to, inter alia, ‘enabling persons with disabilities to participate in a free society’24 and to ensuring that such children and young people with disabilities have access to primary and secondary education ‘on an equal basis with others in the communities in which they live’.25 It should be noted, however, that the UK entered a reservation which would allow children with disabilities to be educated outside their local community if ‘more appropriate education provision is available elsewhere’. There are also very specific requirements within the CRPD on measures to be taken by the state to ensure that those with disabilities are able to participate effectively in education, including being able to progress to tertiary education.26 Since the quality of education provided across the education system will always vary to some degree, indeed often considerably, no equality law could guarantee all students the same standard of provision. As discussed in Chapter 2, ECHR A2P1, which provides, inter alia, that ‘[n]o-one shall be denied the right to education’, is essentially about is ensuring that the individual has ‘an effective right of access’ to such provision or institutions that the state provides,27 but there is a need to ensure that no-one’s opportunity to access a particular level of education or individual institution is inferior to another person’s for reasons connected to rules or decisions governing access which are directly or indirectly discriminatory on a basis deemed unacceptable. The most extreme manifestation of such discrimination is where children are segregated on the basis of some personal characteristic that attracts protection, and it is this form that was at issue in DH (below). 22 A Broderick, ‘Article 7 [Children with Disabilities]’ in V Della Fina, R Cera and G Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities. A Commentary (Cham, Switzerland, Springer, 2017), 195–212, 211. 23 A-M Callus and R Farugia, The Disabled Child’s Participation Rights (Abingdon, Routledge, 2016) 11. 24 Art, 24.1(c). 25 Art, 24.2(b). 26 See further UN Committee on the Rights of Persons with Disabilities (2016), General Comment No.4 (2016) on the Right to Inclusive Education (Geneva, UN, 2016), para 12(e). 27 Leyla Şahin v Turkey Application No 44774/98, 10 November 2005, [2006] ELR 73, [137].

186 Equal Access for Children to Education Settings The protection against discrimination under the ECHR is afforded by Article 14: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

The phrase ‘or other status’ would, for example, ‘include persons from the lower economic groups’28 and immigration status.29 For Art 14 to apply, however, a substantive right, such as the right to education under A2P1, must be engaged. In R (R and Others) v Leeds City Council30 Wilkie J held that the withdrawal of school transport by the Leeds local authority affecting children, who were Jewish, living in Leeds but attending a Jewish school in the Manchester area, did not engage A2P1. Consequently, Art 14 was not engaged either. The children were not denied access to any educational institutions under the control of Leeds, nor had the authority failed to respect the parents’ right under the second sentence of the Article, which requires the state to respect the right of parents to ensure education in conformity with their religious or philosophical convictions.31 This decision has been followed in Menevia, another school transport case concerned with the termination of free transport to faith schools but not to Welsh medium schools. Wyn Williams J held that the right to education obligation under A2P1 did not extend to subsidising or fully meeting the cost of transport from home to school, although more recently, in Drexler, Swift J considered that school transport arrangements were capable of falling within the ambit of the right.32 When another case, Tigere, was before the Court of Appeal, the Court accepted that the applicant’s eligibility for financial support for a university course fell within the ambit of A2P1. This enabled the issue of Article 14 discrimination against students with only discretionary leave to remain in the UK in relation to eligibility to a student loan to be examined on its merits.33 This seems to have represented a change to the position adopted by 28 R (Hurley and Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin); [2012] ELR 297 at [29]. See also In re an application for judicial review by Anderson and O’Doherty [2001] NICA 48, where a grammar school’s admissions policy gave priority to applicants who had received an award or certificate for various extra-curricular activities including sports, chess, dance and drama. It was contended, in an Art 14 claim, that the policy placed applicants from poorer backgrounds at a disadvantage. But the court concluded on the facts that the policy did not discriminate on the basis of socio-economic status. 29 R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57; [2015] ELR 455; [2015] 1 WLR 3820 at [26] per Lady Hale. 30 [2005] EWHC 2495 (Admin); [2006] ELR 25. 31 Ibid at [45] and [47]. 32 Diocese of Menevia, the Governors of Bishop Vaughan Catholic Comprehensive School, and W (By Her Litigation friend SC) v City and Council of Swansea County [2015] EWHC 1436 (Admin); [2015] ELR 389, at [87]; R (Drexler) v Leicestershire County Council [2019] EWHC 1934 (Admin) at [28], where Swift J said that A2P1 does not require free transport provision but that if it has been made ‘I cannot see how it fails to fall within the ambit of the right in the first sentence of [A2P1]’. He said transport was connected to the ‘core value’ A2P1 protected, of ensuring access to education. 33 R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] EWCA Civ 1216; [2015] ELR 47, CA at [69] per Vos LJ. See also Kebede and Kebede v Secretary of State for Business, Innovation and Skills [2013] EWHC 2396 (Admin).

Equality and the Right to Education 187 the Court of Appeal in Douglas in 2004, when it held that student loan arrangements did not come within the ambit of A2P1, which was therefore not engaged, thus preventing the applicant from pursuing a claim of Article 14 discrimination based on age. However, perhaps the decisions can be distinguished. In Tigere the Court accepted evidence that access to higher education for someone in the applicant’s position was contingent on financial support, whereas in Douglas they did not. Indeed, in the latter case the complainant had by the conclusion of the case completed his course without a loan. Assuming there is engagement with a substantive ECHR right the next issue in relation to Art 14 is whether there has been a difference in treatment that is less favourable compared to the treatment of others in an analogous situation to the complainant and is related to one or more of the factors such as sex or race to which the Article refers. Finally, and often crucially, there is a question of whether or not the difference is objectively justifiable by having a legitimate aim and bearing a reasonable relationship of proportionality to it. There are four elements to this question: (1) Whether there is a legitimate aim for the difference in treatment contained in the measure, sufficiently important to justify the limitation of a Convention right. (2) Whether the measure is rationally connected to the legitimate aim. (3) Whether a less intrusive measure could have been used. (4) Whether, bearing in mind the severity of the consequences, the importance of the aim and the extent to which the measure will contribute to that aim, a fair balance has been struck between the rights of the individual and interests of the community.34

The proportionality question was, for example, held to be satisfied in Hurley and Moore, when the High Court held that the Government’s increase in university tuition fees to a maximum of £9,000, while a potential restriction to access to higher education which was discriminatory against would-be students from less advantaged backgrounds, was not disproportionate in view of the policy’s aim to ensure sustainable funding of education and to maximise its availability, and in light of the loans scheme that was available to students and the ‘wide latitude’ that the Secretary of State should be afforded in such a policy area.35 See also M cDougal,36 where the local authority had decided to close a mixed non-faith school, the only such school in the particular area and the worst in terms of pupils’ academic results of the area’s four schools. The complaint centred on, inter alia, an alleged violation of the rights of a non-Roman Catholic parent under A2P1 read with Art 14. Since Roman Catholic parents had access to two Roman Catholic schools in the area, it was contended that the closure gave rise to discrimination against the complainant. While Silber J held that the complaint did not fall within

34 R (TP, AR and SXC) v Secretary of State for Work and Pensions [2019] EWHC 1127 (QB) per Swift J at [44]. 35 R (Hurley and Moore) n 28 above, at [59]–[60] per Elias LJ. 36 R (McDougal) v Liverpool City Council [2009] EWHC 1821 (Admin); [2009] ELR 510.

188 Equal Access for Children to Education Settings the ambit of A2P1 since the council had offered to pay transport costs for pupils to attend another school in a nearby area where they could be accommodated, he went on to find that, having regard to Art 14, the council was in any event pursuing a legitimate aim in seeking to reduce large over-capacity in its schools and acted proportionately by selecting the weakest and least popular school for closure. The test applied here, of whether the restrictions imposed constitute a proportionate means of achieving a legitimate objective,37 is subject to an adjustment when some areas of social policy are under scrutiny, such as social security, where it is of particular importance for the state to be able to target resources in areas where they are considered most needed. The adjustment is that the discrimination ostensibly in pursuit of the national social or economic interest should be accepted unless the decision is ‘manifestly without reasonable foundation’ (MWRF),38 which therefore sets complainants a higher bar when challenging the justification for a discriminatory policy. When Tigere (above) was before the UK Supreme Court, which upheld the Art 14/A2P1 claim by a 3–2 majority, Lady Hale (with whom Lord Kerr agreed) gave as the reason for rejecting the MWRF test, that education, unlike other social welfare benefits, was ‘given special protection by A2P1 and is a right constitutive of a democratic society’.39 Applying the proportionality test, Lady Hale found the harm to those in the student’s position (being not a substantial number of people and thus for whom assistance could reasonably be accommodated) outweighed the administrative benefit of applying a bright line rule. Also in the majority was Lord Hughes, although he was relaxed about whether the test correctly be characterised as the MWRF test ‘or as some less stringent condition’.40 Lady Hale’s categorisation of education as the subject of ‘a right constitutive of a democratic society’ was consistent with the Strasbourg ruling in Ponomaryov v Bulgaria,41 which distinguished education as the subject of a prescribed right under the ECHR (in A2P1) from social security, which is not.42 In Ponomaryov the ECtHR viewed education as a ‘very particular type of public service, which not only directly benefits those using it but also serves broader social functions’.43 Whether or not the distinction being made between education and other spheres is appropriate – one could argue 37 Ibid at [42]. 38 See Stec v United Kingdom Application Nos 65731/01 and 65900/01 at [52]: ‘Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation”’. See also Stevenson v Secretary of State for Work and Pensions [2017] EWCA Civ 2123; R (Carmichael and Rourke) v SSWP; R (Daly) v SSWP; R (A) v SSWP; R (Rutherford) v SSWP [2016] UKSC 58; Humphreys v The Commissioners for Her Majesty’s Revenue and Customs [2012] UKSC 18; Carson v United Kingdom (Application No 42184/05); and In re McLaughlin [2018] UKSC 48. 39 Tigere n 29 above. 40 Ibid at [58] Note that recently in Drexler (n 32 above, at [39]) Swift J considered that the MWRF test was applicable to a local education policy concerning home to school transport, which he regarded as within the ambit of A2P1. No reference was made to Tigere, however. 41 (2011) 59 EHRR 799. 42 It is instead considered to fall by implication within the terms of the right to property/possessions in Art 1 of the First Protocol: see Stec n 38 above. 43 Note 41 above at [55].

Equality and the Right to Education 189 that by providing social protection and maintaining a minimum standard of living social security benefits also serve a broad social function – it remains the fact that discrimination in the context of education policy may be subjected to a test of justification that it is more difficult for the state to satisfy than when the matter is judged in the case of some other areas of social policy. However, in cases where children’s rights are in issue it is also necessary to consider whether their best interests have been given primary consideration by the relevant public authority, as required by Art 3, UNCRC. The UK Supreme Court has confirmed that the extent of compliance with Art 3 falls for consideration in judging whether a discriminatory measure is proportional for the purposes of ECHR, Art 14 read with another substantive right under that Convention.44 The test of reasonable and objective justification based on the proportional pursuit of a legitimate aim has not proved that difficult for the state to satisfy in the context of education, particularly in cases where the policy aim is seen to reflect government priorities ostensibly directed towards national interests, social or economic. For example, in Karus v Italy the higher fees for which a German student studying in Italy was liable as compared with Italian nationals was held by the Commission of Human Rights to be justified on the basis of – the much higher degree of probability that foreign students will leave Italy on completion of their studies, whereas students of Italian nationality are, as a general proposition, more likely to remain in Italy where, by applying the knowledge and skills which they have acquired at public expense, they will be able to make a valuable contribution to Italian society and in this manner repay, albeit in an indirect and unquantifable way, the financial investment from which they have benefited.45

In Angeleni v Sweden46 the Swedish state permitted children from non-Christian religious family backgrounds to be excused from Christian-orientated religious knowledge classes at school, on the basis that they could be expected to learn about religion within their own faith communities. Atheists were not, however, excused from these school lessons. The state’s policy had an overriding aim of ensuring that all children would receive ‘sufficient factual religious knowledge’, whether at school or otherwise. The Commission of Human Rights held that for Art 14 purposes this was a legitimate policy aim and the difference in treatment had an objective and reasonable justification. Another example is the decision of the ECtHR in Belgian Linguistics,47 where all bar one of the discrimination claims in respect of French-speaking children who were denied mother tongue teaching in the Flemishspeaking part of Belgium were rejected by the Court. Belgium’s national policy, that

44 See R (DA) v Secretary of State for Work and Pensions; R (DS) v Secretary of State for Work and Pensions [2019] UKSC 21. See also R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16; [2015] 1 WLR 1449. 45 Application No 29043/95, decision of 20 May 1998, ‘The Law’, Pt 2. 46 (1988) 10 EHRR 123. 47 Belgian Linguistics (No.2) (1979–80) 1 EHRR 252.

190 Equal Access for Children to Education Settings the medium of instruction should be Flemish in order to ensure linguistic unity, and that the language of teaching in the regions in question should be Flemish given that it was the language of much of the population there, was held to have a legitimate aim, be in the public interest, and be objective and proportionate. The Court of Human Rights has, however, made clear that where the discrimination concerns race or ethnicity there will be a higher threshold for justification, in that ‘very weighty reasons would have to be put forward before the court would regard a difference of treatment based exclusively on ethnic origin as compatible with the Convention’48 and ‘the notion of objective and reasonable justification must be interpreted as strictly as possible’.49 Both of the statements were made in cases concerning the treatment of Roma children, who have traditionally been the subject of discrimination, including segregation, in a number of European states.50 DH v Czech Republic,51 one of the leading cases on Art 14 discrimination in education, concerned a large group of such children who had been allocated places in special schools for children with learning difficulties. The placement was based on their individual scores in tests carried out with the consent of the parents’ legal representative. As a result of this process Roma children were placed in these schools in disproportionate numbers. There were doubts as to the reliability of the tests and whether the analysis of the results had properly had regard to the particular factors inherent to Roma children. The complaint was that the treatment of these children constituted discrimination under Art 14 read with A2P1. One issue was whether parental consent to the placement of the children in a special school could operate as a waiver to the Art 14 complaint. The Grand Chamber said it could do so provided consent was properly informed and was exercised without constraint. It accepted the state’s margin of appreciation in making provision for the needs of Roma children, but that had to be set against the considerable disadvantage to Roma children by being placed at a school for children with mental disabilities who received a basic curriculum. Furthermore, there was segregation from other children. The Grand Chamber concluded that there was less favourable treatment accorded to Roma children than others would be expected to receive in a comparable situation52 and that it constituted indirect discrimination without objective and reasonable justification. The state had not discharged the burden which the Court considered to rest on it to show that the difference in treatment was the result of objective factors which were not related to ethnicity. The test results could not provide such justification because there was a danger they were biased and ‘the results were not

48 Oršuš v Croatia (Application No 15766/03),16 March 2010 [2010] ELR 445 at [149]. 49 DH v Czech Republic Application No 57325/00 (Grand Chamber, 13 November 2007) [2008] ELR 17 at [196]. 50 See N Harris et al, ‘Ensuring the Right to Education for Roma Children: An Anglo-Swedish Perspective’ (2017) 31(2) Int. Journal of Law, Policy and the Family 230–267. 51 DH v Czech Republic n 49 above. 52 Ibid at [183]–[184].

Equality and the Right to Education 191 analysed in the light of the particularities and special circumstances of the Roma children who sat them’.53 Oršuš v Croatia54 is another case in which the complaint centred on the segregation of Roma children as a result of being placed in Roma-only classes, in this case due to having a limited proficiency in the Croatian language. The Court of Human Rights emphasised how the Roma people comprised a vulnerable minority requiring special protection, especially in relation to education, having regard to their needs and different lifestyle. The Court considered that the curriculum and arrangements for these children was inadequate having regard to their characteristics. It was considered to be not necessarily contrary to Art 14 to place children in a separate class due to their language deficiency, but where the practice applied exclusively to members of a specific ethnic groups, ‘appropriate safeguards have to be put in place’.55 Here they were not adequate because they did not pay sufficient regard to the needs of this disadvantaged group and in some cases trapped Roma children in segregated classes for a prolonged period, ‘sometimes even during their entire primary schooling’.56 A violation of Art 14 read with A2P1 was held to have occurred. There was a similar ruling to those in DH and Oršuš in Horváth and Kiss v Hungary,57 where there was an overrepresentation of Roma children in remedial schools resulting from, inter alia, unreliable testing of mental capacity. There have also been a number of complaints upheld of discrimination in the arrangements for the education of Roma children in Greece, centring on disadvantageous treatment and inadequate regard being paid to their specific linguistic and other needs.58 As Van de Heyning argues, arrangements for education that involve a prolonged and systematic separation of a particular ethnic or cultural group have the effect of normalising segregation as a societal feature.59 It is therefore important that the ECHR, Art 14 has been shown to offer some protection against this damaging practice, although it has been argued that the Strasbourg justices could have added greater weight to their rulings, and ensured stronger remedial responses from defaulting states, by adopting a more condemnatory stance and giving firmer guidance.60 More generally, it has to be acknowledged that some complaints regarding minority rights in relation to education are as likely to be determined with reference to the state’s duty under A2P1 per se to respect the educational 53 Ibid, [201]. 54 Oršuš v Croatia (Application No 15766/03), 16 March 2010 [2010] ELR 445. 55 Ibid at [157]. 56 Ibid at [182]. 57 Application No 11146/11, 29 January 2013 [2013] ELR 102. 58 See Sampanis and Others v Greece Application No 32526/05, 5 June 2008; Sampani and Others v Greece Application No 59608/09, 11 December 2012; and Lavida v Greece Application No 7973/10, 30 May 2013. 59 CJ Van de Heyning, ‘“Is it still a sin to kill a mockingbird?” Remedying factual inequalities through positive action – what can be learned from the US Supreme Court and the European Court of Human Rights case law?’ (2008) 3 European Human Rights Law Review 376, 389. 60 K Arabadjieva, ‘Challenging the school segregation of Roma children in central and Eastern Europe’ (2016) 20(1) International Journal of Human Rights 33, 37–39.

192 Equal Access for Children to Education Settings preferences of parents in light of their religious or philosophical convictions, or in some cases as a violation of Art 9 (freedom of religion and belief), as under Art 14. In Lautsi v Italy,61 for example, where a parent’s complaint was that the displaying of crucifixes on the interior walls in her children’s school was in conflict with her secularist preference regarding her child’s upbringing, the ECtHR considered that her subjective perception that the display showed a lack of respect for her right was not sufficient to constitute a breach of A2P1 and that the state’s margin of appreciation in reconciling the right of parents with its own preference to allow the crucifixes, which were not considered to denote a process of indoctrination, had not been exceeded. The Court did not see any distinct complaint of discrimination under Art 14 (or, for that matter, of breach of Art 9) separate to the question it had already decided in relation to A2P1.62 It therefore held there was no cause to examine under Art 14.63 See further the ECHR-based cases such as Valsamis on the content of education discussed in Chapter 6 below.

III. The Equality Act 2010 and Children’s Education Reference was made in Chapter 3 to the obligation of local authorities under domestic law to ensure that, in fulfilling their duty under education legislation to ensure that there are sufficient schools in their area for meeting the local population’s needs,64 they do not discriminate in ways proscribed by equality law, such as in local arrangements for single sex schooling.65 The cases establishing the relevant principles surrounding that particular obligation, while pre-dating the Equality Act 2010,66 remain highly relevant. The 2010 Act replaced all the earlier main antidiscrimination measures including the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995 and legislation governing discrimination on the grounds of religion or belief67 and sexuality.68 The

61 Application No 30814/06 [2011] ELR 176. 62 Ibid at [81]. 63 See also Ivanova v Bulgaria, Application No 52435/99 [2007] ELR 612, where a member of a Christian Evangelical group had been dismissed from her post as a non-academic member of staff at a school for reasons that, the Court found, were connected with her religious beliefs and affiliation with the organisation. There was a violation of her right under Art 9 ECHR. Her complaint of discrimination under Art 14 was therefore found to amount to a repetition of the Art 9 complaint and thus it had no cause to be examined. 64 EA 1996, s.14. 65 See ch 3 under ‘The developing state responsibility’. 66 R v Secretary of State for Education and Science ex parte Keating (1985) 84 LGR 469; Equal Opportunities Commission v Birmingham City Council [1989] 1 All ER 769; R v Secretary of State for Education and Science ex parte Malik [1992] COD 31; and R v Birmingham City Council ex parte Equal Opportunities Commission (No 2) [1994] ELR 282 (CA); and R v Northamptonshire County Council and the Secretary of State for Education ex parte K [1994] ELR 397. 67 See the Equality Act 2006, Pt 2. 68 See the Equality Act (Sexual Orientation) Regulations 2007 (SI 2007/1263).

The Equality Act 2010 and Children’s Education 193 2010 Act not only offers various protections against discrimination for individuals in the context of access to education but also imposes positive obligations on the state aimed at advancing equality through the policies and practices of providers of public services, most notably under the ‘public sector equality duty’ (PSED). It is not intended in this section to provide a comprehensive account of the 2010 Act, since the law is expansive and it is not possible to accommodate discussion of all of it here. Instead, following on from the discussion of the ECHR above, the aim will be to consider specific provisions of the Act with the greatest relevance to educational practice and decision-making in England and to assess their contribution to equality of access to education and educational institutions. Part 6 of the Act sets out specific requirements with regard to educational which interact with the general provisions governing the forms of discrimination proscribed by the Act and the ‘protected characteristics’ covered by it.

A. The Public Sector Equality Duty Fredman has explained how there has been a movement in equality law from a focus on ‘negative prohibitions on discrimination to positive steps to promote equality’.69 We can see this in, for example, the amendment of the Sex Discrimination Act 1975 in 2007 to introduce a duty for public authorities, when carrying out their functions, to have due regard to the need to eliminate unlawful discrimination and harassment and to promote equality of opportunity between men and women.70 It complemented comparable responsibilities placed on public authorities in the area of disability by the Disability Discrimination Act 2005 (although under this Act they went further by including reference to promotion of ‘positive attitudes towards disabled persons’ and encouragement of disabled persons’ ‘participation … in public life’)71 and on local authorities, school governing bodies, institutions of further and/or higher education, among others, under the Race Relations Act 1976.72 Other amendments empowered the Secretary of State to impose duties aimed at ensuring the better performance by the relevant bodies of these requirements.73 In relation to race, for example, governing bodies of maintained schools, academies, and further and higher

69 S Fredman, Discrimination Law (2nd edn) (Oxford, OUP, 2011) 7. 70 Equality Act 2006, s 84, inserting new s 76A into the Sex Discrimination Act 1975; and the Equality Act 2006 (Commencement No.1) Order 2006 (SI 2006/1082 (C.36)). 71 Disability Discrimination Act 1995, s 49A, inserted by the Disability Discrimination Act 2005, s 3. 72 Race Relations Act 1976, s 71(1) and Sch 1A, as substituted by the Race Relations (Amendment) Act 2000, s 2 and Sch 1 respectively from 2 April 2001 by the Race Relations (Amendment) Act 2000 Order 2001 (SI 2001/566 (C.24)) and amended by the Race Relations Act 1976 (General Statutory Duty) Order 2001 (SI 2001/3457). 73 Race Relations Act 1976, s 71(2) as substituted by the Race Relations (Amendment) Act 2000, s 2; the Sex Discrimination Act 1975, s 76B, inserted by the Equality Act 2006, s 85; and the Disability Discrimination Act 1995, s 49D, inserted by the Disability Discrimination Act 2005, s 3.

194 Equal Access for Children to Education Settings education institutions were required to have a race equality policy and monitor and assess its impact on pupils or students, staff and, in the case of schools, parents.74 LEAs were also placed under a duty to publish a race equality scheme showing how they intended to carry out their duties on elimination of racial discrimination and promotion of equality and good relations between racial groups.75 The Commission for Racial Equality, the Equal Opportunities Commission and the Disability Rights Commission were responsible for enforcing the above duties but were replaced by the single Equality and Human Rights Commission (EHRC) under measures set out in the Equality Act 2006.76 Under the 2006 Act,77 the new Commission was given a broad power to issue codes of practice78 governing the promotion of equality and other matters governed by the antidiscrimination legislation. These duties have been replaced under the Equality Act 2010.79 The DfE has issued advice on the implementation of the Act for schools and local authorities80 and the EHRC has issued non-statutory guidance.81 The broad promotional duties concerning equality and the elimination of discrimination are combined within the PSED (below), but in addition there is a separate duty, yet to be implemented, on local authorities and central government departments when making ‘decisions of a strategic nature’, requiring them to have ‘due regard’ to the ‘desirability’ of exercising their functions ‘in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage’.82 According to Fredman, the limited nature of this socio-economic duty makes it a particularly ‘timid’ one.83 There is in any event no immediate prospect, nearly ten years after its enactment, of the socio-economic duty’s implementation. The UN Committee on Economic, Social and Cultural Rights has called for the duty to be brought into effect84 as has

74 Race Relations Act 1976 (Statutory Duties) Order 2001 (SI 2001/3458), art 3 and Sch 2. Pupil attainment levels were among the matters to be mentioned. 75 Ibid, art 2. 76 See the Equality Act 2006, s 36. 77 Ibid, s 14. 78 A failure to comply with the code would not render the defaulter liable in criminal or civil proceedings but would be admissible in such proceedings and would have to be ‘taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant’: ibid, s 15(4). 79 Provision regarding the codes of practice is still made by 2006 Act. No new codes specifically governing schools or further/higher education have been made. For background to the new PSED, see A McColgan, ‘Litigating the Public Sector Equality Duty: the Story So Far’ (2015) 35(3) Oxford Journal of Legal Studies 453. 80 DfE, The Equality Act 2010 and Schools (London, DfE, 2014). 81 EHRC, What the Equality Act 2010 Means for You as an Education Provider: Schools (London/ Manchester, EHRC, 2014). See also the guidance on the PSED below. 82 Equality Act 2010, s 1(1). 83 Fredman (2011) n 69 above, 8. 84 Committee on Economic, Social and Cultural Rights, Concluding Observations on the Sixth Periodic Report of the of the United Kingdom of Great Britain and Northern Ireland (E/C.12/GBR/CO/6) 14 July 2016, para 23.

The Equality Act 2010 and Children’s Education 195 the EHRC.85 Both cite the deleterious impact of social disadvantage on educational achievement.86 In R (Elias) v Secretary of State for Defence, Arden LJ referred to the equivalent to the PSED under the Race Discrimination Act 1976 as ‘an integral and important part of the mechanisms for ensuring the aims of anti-discrimination legislation’.87 However, Fredman also regards the PSED as weak, because it only sets out matters to which public authorities must ‘have due regard’.88 This may be so, but according to Manfredi et al the PSED operates in part through a process of self-regulation and ‘aims to achieve a culture of compliance, rather than relying on coercive court proceedings’.89 The PSED is a duty placed on public authorities – which term includes government departments, local authorities, governing bodies of maintained schools and (but only since the end of March 2017) proprietors of academies90 – combining the duties, described above, under the earlier legislation but with a layer of further detail. As set out in section 149, it provides for public authorities, when exercising their functions, to have due regard to the need to— (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.91

The relevant protected characteristics are age; disability; gender reassignment; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.92 However, so far as age is concerned the PSED does not apply to the provision of education to pupils in schools.93 There is further detail about the advancement of equality of opportunity (per (b) above): the Act states that it involves having regard in particular to removing or minimising disadvantages that the person experiences by reason of their particular characteristic, taking steps to meet the specific needs of people who share a particular characteristic, and encouraging

85 EHRC, Progress on socio-economic rights in Great Britain. Update report on Great Britain’s implementation of the International Covenant on Economic, Social and Cultural Rights, March 2018 (London/Manchester, EHRC, 2018), 21–22, www.equalityhumanrights.com/sites/default/files/progresson-socio-economic-rights-in-great-britain.pdf. 86 Ibid and Committee on Economic etc Rights n 84 above paras 63–64. 87 [2006] EWCA Civ 1293 at [274]. 88 Fredman (2011) n 69 above, 8. 89 S Manfredi, L Vickers and K Clayton-Hathway, ‘The public sector equality duty: enforcing equality rights through second-generation regulation’ (2018) 47(3) ILJ 365–398. 90 Equality Act 2010, s 150 and Sch 19, pt 1, as amended by the Equality Act 2010 (Specified Duties and Public Authorities) Regulations 2017 (SI 2017/353). 91 EqA 2010, s 149(1). 92 Ibid, s 149(7). 93 Ibid, Sch 18, para 1.

196 Equal Access for Children to Education Settings people who share such a characteristic to participate in public life or other activity where such persons’ participation levels are disproportionately low.94 Tackling prejudice and promoting understanding are specified as matters to which particular regard should be had in connection with the fostering of good relations (per (c) above).95 The section appears to sanction more favourable treatment of some than others as a means to compliance with the PSED, although ‘that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act’.96 The EHRC’s Technical Guidance states that positive discrimination is unlawful.97 It indicates that what is permitted is ‘positive action’ proportionate to the Act’s aims, such as the giving of encouragement to persons with a protected characteristic to participate in a particular activity.98 Such action is specifically sanctioned by the Act.99 The EHRC has enforcement powers in respect of the PSED,100 and it is also enforceable via judicial review, but a breach of the PSED does not give rise to a cause of action in private law.101 The Technical Guidance on the PSED cites the Watkins-Singh102 case to illustrate how the PSED is applicable to the exercise of any functions by a public authority, including ‘day to day activities’.103 In Elias Arden LJ refers to the duty as requiring ‘advance consideration’ of discrimination issues when making policy decisions,104 although the Guidance is clear that it is also applicable to more routine decisions, with the degree of consideration to be given to it increasing with the importance or significance of the decision to be taken, in terms of impact.105 In Watkins-Singh the public authority was a school. It had a policy on school uniform and dress and a Sikh girl was informed that she was not permitted to wear the Kara (bracelet or bangle), which is an important religious symbol for Sikhs. Wearing the Kara was contrary to the school’s policy, which only permitted a wristwatch and plain ear studs to be worn and not any other jewellery or similar adornments. The issue of indirect race discrimination was central, Silber J concluding that the girl was subjected to a particular disadvantage or detriment due to the religious significance of the Kara to Sikhs and the Kara’s importance to the girl, for whom it was 94 Ibid, s 149(3). 95 Ibid, s 149(5). 96 Ibid, s 149(6). 97 EHRC, Equality Act 2010. Technical Guidance on the Public Sector Equality Duty: England (EHRC (undated)), 40. See also the discussion of positive discrimination in the context of Art 14 of the ECHR above. 98 Ibid. 99 EqA 2010, s 158. 100 Equality Act 2006, ss 31 and 32, as amended by the EqA 2010. 101 EqA 2010, s 156. 102 R (Watkins-Singh) v Governing Body of Aberdare Girls’ High School and Rhondda Cynon Taf Unitary Authority [2008] EWHC 1865 (Admin); [2008] ELR 561. 103 EHRC, Equality Act 2010. Technical Guidance on the Public Sector Equality Duty: England (EHRC (undated)), 13–14. 104 Note 87 above, [274]. 105 EHRC, Equality Act 2010. Technical Guidance on the Public Sector Equality Duty: England (EHRC (undated)), 19.

The Equality Act 2010 and Children’s Education 197 a matter of ‘exceptional importance to … her racial identity or religious belief ’,106 and that the ban was unjustified since the Kara was concealed and ‘unostentatious’.107 Moreover, the ban and was not supported by a need to prevent bullying or to avoid a difficulty in explaining to pupils and parents why it was singularly permitted. The school should not have sought to prevent tension by refusing to permit the claimant to wear the Kara but instead ‘taken steps to ensure that the other pupils understood the importance of wearing the Kara to the claimant and to other Sikhs so that they would then tolerate and accept the claimant when wearing the Kara’.108 But the PSED, or rather (since the case predated the 2010 Act) the equivalent provision then in the Race Relations Act 1976,109 was also influential in the ruling. Silber J said that a school was under a ‘very important obligation … to ensure that its pupils are first tolerant as to the religious rites and beliefs of other races and other religions and second to respect other people’s religious wishes’.110 He found that at the beginning of the period in which the claimant was subjected to the school uniform policy the school only had a race equality policy ‘in the most technical sense, and certainly not as a living instrument over which any member of the school community had any ownership, or to which any member of it had displayed any commitment’.111 Nor at that time was any consideration given to the statutory duty itself.112 Even when the policy itself was properly in place it was not implemented. Silber J said that the policy’s implementation required the school to explain to pupils ‘why it was so important to the claimant to wear the Kara and why they should be tolerant of her’.113 The importance of advance consideration of the equality duty when determining a school uniform policy is further highlighted by G v The Headteacher and Governors of St Gregory’s Catholic Science College.114 It concerned an 11 year old boy of African-Caribbean origin whose hair was braided into ‘cornrows’ in accordance with his family tradition. He was unable to take up his place at his secondary school, which was a Roman Catholic college, because of his hair, since the style was in conflict with the school’s uniform policy. Aside from the complaint of unlawful race and sex discrimination and breach of a legitimate expectation that he would not be barred from wearing the cornrows, since there was no reference to such a restriction in the uniform policy, there was an alleged failure by the school in respect of the equality duty under the 2010 Act and predecessor legislation.115 The school put forward a rationale for the policy which related to 106 N 102 above at [56A] and [56B]. 107 Ibid at [78]. 108 Ibid at [85]. 109 Under the Race Relations Act 1976, s 71. 110 N 102 above at [84]. 111 Ibid at [121]. 112 Ibid. 113 Ibid, [116]. 114 [2011] EWHC 1452; [2011] ELR 446. 115 EqA 2010, s 149 and before that the Race Relations Act 1976, s 71 and the Sex Discrimination Act 1975 s.76A.

198 Equal Access for Children to Education Settings the promotion of the school’s Roman Catholic ethos and the aim of excluding the local gang culture from the school. The Court accepted that the discrimination did relate to the claimant’s ethnicity, since ‘family and social customs can be “part of ethnicity” within a larger community’,116 namely people of African-Caribbean ethnicity. Collins J found that the policy did place the claimant at a ‘particular disadvantage’ and rejected the argument that wearing cornrows failed to meet the test of being of ‘exceptional importance’ to the boy per the decision in WatkinsSingh (above). Collins J in fact viewed the ‘exceptional importance’ test to put the threshold ‘too high’.117 He considered a test of ‘particular importance’ to be a sufficiently high standard, but he stated that it did not matter since the boy had been placed at a particular disadvantage, not least by suffering ‘a traumatic experience in being turned away [from school] on his first day’.118 The judge found that there was not a sufficient justification for what was clearly indirect race discrimination, but rejected a claim of sex discrimination, since there could lawfully be different hairstyle requirements for boys and girls if they related to a ‘conventional standard of appearance’ for the relevant sex.119 As regards the PSED, Collins J explained that performance of it was of relevance in establishing if indirect discrimination was justified, although a failure to fulfil the duty, which he seems to have considered to have occurred, was not determinative.120 The Departmental guidance on school uniform at the time explicitly referred to cornrows and the possible discrimination that could arise from banning them. Thus if the PSED had been adhered to it could well have prompted the school to consider making an exception from its policy in particular cases.121 It is odd that, in the latest version of the school uniform guidance published by the DfE, which dates from 2013, no explicit reference is made to the PSED. Indeed, it receives only implicit recognition, in part, in the advice about varying a policy that has been agreed: Once a policy has been agreed, we recommend the governing body … consider carefully reasonable requests to vary the policy, in particular to meet the needs of any individual pupil to accommodate their religion or belief, ethnicity, disability or other special considerations.122

There is no reference to the PSED objectives of promoting equality or good relations, apart from a broad reference to ‘the promotion of cohesion … in the school’.123

116 Note 114 above, [40]. 117 Ibid, [37]. 118 Ibid, [37]–[38]. 119 Ibid, [55]–[60]. 120 Ibid, [42]–[43]. 121 Ibid, [43]. 122 DfE, School Uniform. Guidance for governing bodies, school leaders, school staff and local authorities (London, DfE, 2013) 4 (original emphasis). 123 Ibid, 6.

The Equality Act 2010 and Children’s Education 199 An alleged failure to consider the full range of factors specified within the PSED was argued in Hurley and Moore,124 discussed above, which concerned the introduction of increased university tuition fees which the claimants contended discriminated on the basis of socio-economic status. As discussed above, the discrimination claim, based on Art 14 read with A2P1 ECHR, failed. In relation to the PSED, Elias LJ considered that the Secretary of State ‘had engaged fully with the implications [of the policy] for the economically disadvantaged and therefore with the adverse impact on minority groups’.125 However, in relation to the complaint that the Secretary of State had insufficiently focused on the ‘full range of PSEDs’, Elias LJ could not ‘discount the possibility that a more precise focus on the statutory duties might have led to the conclusion that some other requirements were potentially engaged and merited consideration’.126 Nevertheless, while the Secretary of State ‘did not give the rigorous attention required to the package of measures overall’,127 the decision on fixing the level of fees did receive an appropriate analysis, and furthermore quashing the regulations after universities and students had already been making plans on the basis of the fees as set down would ‘cause administrative chaos’ and have ‘significant economic implications’.128 He said that while it would be ‘a very rare case … where a substantial breach of the PSEDs would not lead to a quashing of the relevant decision, however inconvenient that might be’, it would not be appropriate to quash the policy decision taken here.129 Nevertheless, the Court did grant a declaration to the effect that there was a failure by the Secretary of State fully to carry out his PSEDs before implementing the 2010 Regulations.130 While the PSED clearly has considerable relevance to a whole range of public functions131 (including ones to be carried out by private bodies), but not least to education policy and decision-making, where there is a high level of potential social impact, it has on the whole not been easily enforceable by litigants. For example, in R (West and Others) v Rhondda Cynon Taff County Borough Council132 the local authority’s decision to cease to provide free nursery education for threeand four-year olds was challenged partly on the basis of a failure in respect of the PSED. The question was whether the authority’s cabinet had given due regard to the relevant matters in formulating its policy. It was clear that there was an equality impact assessment before the cabinet at the relevant time, but it was

124 R (Hurley and Moore) v Secretary of State for Business, Innovation and Skills [2012] ELR 297, QBD. 125 Ibid at [93]. 126 Ibid at [96]. 127 Such rigour having been emphasised by Dyson LJ in R (Baker) v Secretary of State for Communities and Local Government [2008] EWCA Civ 141 at [37]. 128 R (Hurley and Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin); [2012] ELR 297, [99]. 129 Ibid. 130 Ibid, [100], King J concurring. 131 As defined for the purposes of the Human Rights Act 1998 – ‘functions of a public nature’ (s 6(3)(b)). 132 [2014] EWHC 2134 (Admin); [2014] ELR 396.

200 Equal Access for Children to Education Settings argued that it did not contain the kind of rigorous analysis that would ensure compliance with the equality duty. Elias LJ accepted that there was at least in some respects a lack of rigorous analysis, but he concluded that that was not sufficient for him to conclude that there had been a failure to have due regard to the PSED matters set out in s 149(1). Another attempt to enforce the PSED failed in P v East Sussex County Council,133 when the local authority changed its policy of providing home to school transport, covering a distance of 27 miles, for a child with SEN and a range of medical conditions. She had exclusive transport, sometimes involving a transfer to and from a medical appointment. When the policy changed she had a shared arrangement and this meant that transport outside the start and end of the school day was precluded. As a result, transport to medical appointments and after school clubs was no longer available. Deputy High Court Judge Timothy Straker QC suggested that the local authority was required to have due regard to all three of the aims set out in s 149(1) when applying its home to school policy to anyone with the protected characteristics, and that how much regard had to be given to them depended on the circumstances of each case.134 The judge considered that in its letter communicating its decision the local authority demonstrated that it had given careful consideration to the issues now facing the claimant. The letter also made clear that budgetary considerations were driving the decision, but since the authority had genuinely attempted to engage with the requirements of s 149 its decision could not be challenged for a breach of the PSED. A further problem with the PSED is that it clearly does not apply to all decisions. For example, in R (London Borough of Richmond) v AQA and Others135 the High Court rejected a claim that the PSED applied to a decision by awarding bodies, under a direction from Ofqual, which impacted on the GCSE English examination grade boundaries. It had been argued that the awarding bodies’ decision had resulted in an increase in a grade threshold which disadvantaged students for whom English was a second language. The Court accepted the defendants’ assertion that the PSED had no relevance to the assessment of examination performance: ‘Ofqual and the [assessment authorities] rightly considered that it would be wrong to manipulate boundaries to favour groups with particular protected characteristics’.136 The question of the weight to be attached to the making of an equality impact assessment in determining whether the PSED has been performed was considered in another education case, Menevia.137 Wyn Williams J commented that the production of an equality impact assessment in advance of a decision taken was ‘usually, convincing evidence’ that regard had been had to the PSED requirements.138 133 [2014] EWHC 4634 (Admin); [2015] ELR 178. 134 Ibid at [188]. 135 [2013] EWHC 211 (Admin); [2013] ELR 281. 136 Ibid at [147], Sharp J concurring. 137 Diocese of Menevia, The Governors of Bishop Vaughan Catholic Comprehensive School, and W v City and Council of Swansea County [2015] EWHC 1436 (Admin); [2015] ELR 389. 138 Ibid at [98].

The Equality Act 2010 and Children’s Education 201 In this case, however, the judge found that the local authority’s school transport policy was unlawfully indirectly discriminatory on the basis of race, so the equality impact assessment’s declaration that the policy’s impact on race was neutral was ‘erroneous’.139 The situation facing the judge was one where regard had been had by the local authority to the PSED matters, but the authority had ‘fallen into legal error’.140 He pondered the question whether or not that meant the local authority had indeed complied with the PSED in that situation, the first time the judge had encountered such a conundrum; but he left the matter open.141 Yet there is not a specific statutory duty to prepare an equality impact assessment, nor, according to Fredman, will judges always be keen to scrutinise the content of such an assessment closely.142 Instead, as McColgan explains, there is a need for ‘adequate analysis, based on appropriate and sufficient information, on the equality impacts of decisions, practices etc’.143 In JFS (at first instance), Munby J concluded that although the school in question had a formal race equality policy, which demonstrated that it did consider matters of race discrimination, that was not sufficient to discharge its equality duty, particularly having regard to the element of the duty concerned with promoting equality of opportunity and good relations.144 What was needed was the taking of ‘active steps’.145 A reason that the PSED is difficult to enforce is the way its components are expressed.146 As Fredman comments, ‘the statutory aims of “equality of opportunity” and “good relations” are notoriously open textured’, and the former does not necessarily equate with equality of results, making it ‘very difficult to assess whether it has been complied with’.147 Furthermore, as she also says, being required to give ‘due regard’ to the various matters does not guarantee that a policy will have to change or that a public authority will have to allocate more funds in a particular direction.148 This may be illustrated by the recent decision of the High Court upholding a complaint that Bristol City Council failed in the PSED when reaching a decision to reallocate various areas of SEN funding resulting in a reduction for the ‘high needs block’, which raised concerns that provision needed by some children would 139 Ibid at [99]. 140 Ibid at [100]. 141 Ibid. 142 S Fredman, ‘The public sector equality duty’ (2011) 40(4) ILJ 405, 421. Having a record showing consideration of relevant equality matters can contribute to proof that the PSED is being carried out conscientiously, according to Aikens LJ in R (Brown) v Secretary of State for Work and Pensions and Another [2008] EWHC 3158 (Admin) at [96]. This was one of the widely-applied six principles or tests that Aikens LJ laid out in his decision which summarise the duty on public authorities in applying the PSED. 143 A McColgan, ‘Litigating the Public Sector Equality Duty: the Story So Far’ (2015) 35(3) OJLS 453, 482. 144 R (E) v The Governing Body of JFS and the Admissions Panel of JFS; R (E) v Office of the Schools Adjudicator [2008] EWHC 1535/1536; [2008] ELR 445, QBD. 145 Ibid at [213] (original emphasis). 146 See House of Lords Select Committee on the Equality Act 2010 and Disability, Report of Session 2015–16, The Equality Act 2010: the impact on disabled people HL Paper 117 (London, The Stationery Office, 2016) ch 8. 147 Fredman n 142 above, 411. 148 Ibid, 406–7.

202 Equal Access for Children to Education Settings be adversely affected.149 Judge Cotter QC, in upholding the complaint, considered that a quashing order in relation to the high needs block would be proportionate because it would require the local authority to ‘reconsider its funding allocation in the light of the resources available at the material time, without disturbing other aspects of the budget …’.150 Therefore, there was no certainty that ultimately the funding decision would change as a result. The review of the PSED published by the Government Equalities Office, which highlighted the lack of clarity surrounding the ‘due regard’ duty, reported that even after a finding of non-compliance with the PSED and the overturning of a decision it was ‘not uncommon for the initial decision in question to remain unchanged following further work by the authority to demonstrate they had discharged the duty effectively’.151 Several of the education cases above have pointed to some of these limitations to the PSED as a mechanism for increased educational equality. At the same time, it is considered important that schools take it seriously – for example, in a recent report on inequality faced by Gypsy, Roma and Traveller communities the House of Commons Women and Equalities Committee emphasised how the PSED required schools to challenge race and gender stereotypes152 – and there is some evidence that the duty has in fact become embedded within school activities and had a positive influence within the schools system. A survey for the EHRC153 found that although there was limited awareness of the PSED itself in schools and limited progress in addressing equality in relation to certain areas, namely sexual orientation, transgenderism and gender reassignment,154 it had led to improved outcomes for pupils across the areas of race, disability and gender. It found many examples of ‘positive practice’, such as staff training on equality issues, ‘multicultural days’ in schools, monitoring of progress in equality, encouraging pupils to take up subjects not traditional for those of their gender, and having policies and schemes around equality issues (almost all schools had them). Arguably this illustrates the way in which this form of what Manfredi et al term ‘reflexive regulation’, in which organisations are encouraged to adapt in finding ways of pursuing the specified legal objectives,155 can operate as a mechanism for the

149 R (KE, IE and CH) v Bristol City Council [2018] EWHC 2103 (Admin); [2018] ELR 502. A similar complaint, also concerned with local SEN budget allocations, involving cuts, was rejected in R (KH and Others) v Surrey County Council [2019] EWHC 618 (Admin). 150 Ibid, (KE) at [150]. 151 Independent Steering Group (chair: R Hayward), Review of the Public Sector Equality Duty: Report of the Independent Steering Group (London, Government Equalities Office, 2013) 11. 152 House of Commons Women and Equalities Committee, Tackling inequalities faced by Gypsy, Roma and Traveller communities, Seventh Report Session 2017–19 (HC 360) (2019) para 77. 153 G Bukowski et al, The Equality Duties and Schools (Research Report 70) (Manchester, EHRC, 2011). 154 The report (ibid) refers to gender reassignment specifically since it is one of the protected characteristics attached to the PSED whereas transgenderism, to which the report also makes reference, is not. 155 Based on the idea of reflexive law as a solution to the problem identified by systems theory, of different systems operating in an autonomous manner in accordance with their own internal language and logic and less amenable to top down legal regulation, law being a separate system although able to

The Equality Act 2010 and Children’s Education 203 achievement of ‘equality outcomes in particular in areas that are already sensitised to equality issues’.156 Education, including schools, is a world that is more closely attuned than many others to equality and inclusion objectives and where equality is much more likely to have been mainstreamed. A final point concerns the PSED requirement to have regard to the need to eliminate harassment. Harassment, discussed more fully below, includes ‘unwanted conduct of a sexual nature’.157 It is a particular problem in schools. The House of Commons Women and Equalities Committee has found ‘girls and young women consistently reporting high levels of sexual harassment and sexual violence in school’ and that incidences of such behaviour seem to be increasing.158 The Committee has called for the creation of a new statutory duty for schools to develop a ‘whole school approach to preventing and tackling sexual harassment and sexual violence’.159 The Government, however, considers that the existing duties under the 2010 Act, including the PSED, are ‘already strong’.160 This may be the case but the law seems not to be preventing exacerbation of the problem. The Government does, however, anticipate giving more guidance on the current duties to increase clarity and awareness.161

B. Discrimination, Harassment and Victimisation Affecting Pupils The Equality Act 2010 prohibits various kinds of conduct, notably discrimination, victimisation and harassment, directed at those with one or more of the prescribed protected characteristics. In relation to education, these general elements must be read in conjunction with Part 6, which covers schools in chapter 1 and further and higher education in chapter 2. Despite the specific application of this part of the Act to schools, there is a restriction in that it does not apply to ‘anything done in connection with the content of the curriculum.’162 The Explanatory Notes which

act as a ‘stimulus to prompt self-regulation’: S Manfredi, L Vickers and K Clayton-Hathway, ‘The public sector equality duty: enforcing equality rights through second-generation regulation’ (2018) 47(3) ILJ 365, 372. 156 Ibid, 385. 157 EqA 2010, s 26(2)(a) and (3)(a). For the full definition of harassment under s 26, see below. 158 House of Commons Women and Equalities Committee, Sexual harassment and sexual violence in schools (HC 91) (2016), paras 13 and 37–44. 159 Ibid, para 94. 160 House of Commons Women and Equalities Committee, Sexual harassment and sexual violence in schools: Government Response to the Committee’s Third Report of Session 2016–17 (HC 826) (2016) Appendix para 13. 161 Ibid. 162 EqA 2010, s 89(2).

204 Equal Access for Children to Education Settings were published with the Equality Bill include some examples of how that provision should be interpreted:

• A school curriculum includes teaching of evolution in science lessons. This would not be religious discrimination against a pupil whose religious beliefs include creationism. • A school curriculum includes The Taming of the Shrew on the syllabus. This would not be discrimination against a girl. The guidance published by the Department for Education gives five further examples:163

• A boy complains that it is sex discrimination for him to be required to do a module on feminist thought. • A … Jewish pupil objects to having to study The Merchant of Venice. • A fundamentalist Christian objects to the teaching of evolution in science lessons unbalanced by the teaching of ‘intelligent design’. • A school does a project to mark Gay Pride Week. A heterosexual pupil claims that he finds this embarrassing and that it discriminates against him on grounds of his sexual orientation; a Christian or a Muslim pupil objects to it on religious grounds. • A Muslim pupil objects to the works of Salman Rushdie being included on a reading list. Some of these situations may be challengeable, depending on the circumstances, under the ECHR, A2P1, 8 or 9, possibly read with 14, although as discussed in Chapter 6 the case law shows how difficult it could be for such a challenge to succeed. It is also quite possible that not giving prior consideration to the principles in s 149 could put the school in breach of the PSED, discussed above. But the point here is that the above situations seem to fall outside the scope of anti-discrimination protection under chapter 1 of Part 6.

i. Protected Characteristics The protected characteristics of age and marriage/civil partnership status are excluded from protection under chapter 1 of part 6 (above) governing schools. 163 DfE, The Equality Act 2010 and Schools (May 2014) para 2.10, https://assets.publishing.service.gov. uk/government/uploads/system/uploads/attachment_data/file/315587/Equality_Act_Advice_Final.pdf.

The Equality Act 2010 and Children’s Education 205 The others prescribed by the Act164 – disability, pregnancy and maternity, race, religion or belief,165 sex and sexual orientation – are, however, covered. It is generally clear whether a particular characteristic applies to the complaint. In the JFS case, discussed below, however, it was uncertain whether the particular characteristic of the claimant that was at issue in relation to the alleged discrimination against him when he was not admitted to an Orthodox Jewish school was religion or race, since both are potentially applicable to persons who identify as Jewish. There is also a degree of uncertainty in some cases concerning the characteristic of disability. While there is not the scope here to discuss all the protected characteristics in detail, disability does require further analysis since it has a particularly marked potential impact on access to education and to educational institutions as well as being relatively common, for example affecting nearly one in ten children aged 11–16.166 The definition of disability in the 2010 Act is based on both having an impairment and the effect that the impairment has on the individual: A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial167 and long-term168 adverse effect on P’s ability to carry out normal day-to-day activities.169

An important point in relation to young children is that regulations provide that in the case of those aged under six years who do not have an impairment which has the effect prescribed in (b) above, the impairment is nevertheless to be taken to have such an effect where it would normally have that effect on the ability of a person aged six or over to carry out normal day-to-day activities.170 The definition of disability above means, as the courts have confirmed,171 that it is not the degree of a person’s physical or mental impairment that defines their 164 EqA 2010, ss 4–12. 165 This is considered to include lack of religion or belief as well. ‘This means it will be unlawful to discriminate against someone on the grounds that they do not adhere, or sufficiently adhere, to a particular religion or belief (even one shared by the discriminator), or indeed any religion or belief at all – such as, for example, an atheist’: The Equality Act 2010 and Schools (May 2014) para 2.10, https:// assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/315587/ Equality_Act_Advice_Final.pdf. 166 P Stobbs, Disabled Children and the Equality Act 2010 (London, Council for Disabled Children, 2015) 12 and see ch 1 above. 167 See PP and SP v Trustees of Leicester Grammar School (SEN) [2014] UKUT 520 (AAT); [2015] ELR 86, where UTJ Mesher found (at [34]–[37]) erroneous a tribunal decision in which the question whether a pupil was substantially adversely affected by dyslexia was judged by a comparison between her academic performance and that of her fellow pupils rather than, as it should have been, by looking at whether it impacted on normal day-to-day activities as against how the person would carry out the activity if not suffering from the condition. 168 Ie it has already lasted for 12 months or is expected to last for at least that length of time or for the rest of the person’s life: EqA 2010, Sch 1, para 2. 169 EqA 2010, s 6(1). 170 Equality Act (Disability) Regulations 2010 (SI 2010/2128), reg 10. 171 See, eg, R (H) v Chair of the Special Educational Needs Tribunal and R School [2004] EWHC 981 (Admin); [2005] ELR 67 and A v Governing Body of Hob Moor CP School [2004] EWHC 2165.

206 Equal Access for Children to Education Settings disability for this purpose but rather its impact on their day to day activities. There are specific conditions prescribed as disabilities, namely cancer, HIV infection, multiple sclerosis172 and being certified as blind, severely sight impaired, sight impaired or partially sighted.173 Conditions that are specifically excluded from the definition of impairments are addictions to alcohol, nicotine or other substances (other than when arising from a medically prescribed drug) and seasonal allergic rhinitis (hay fever).174 If a person’s impairment comprises a ‘severe disfigurement’ it is assumed to have the effect necessary to bring it within the definition of a disability175 unless the disfigurement takes the form of body piercings or tattoos.176 A further group of conditions classed under regulations as not amounting to impairments relates to a tendency to light fires or steal, exhibitionism, voyeurism and ‘a tendency to physical or sexual abuse of other persons’.177 A tendency to physical abuse is fairly common among children with certain forms of behavioural condition such as conduct disorders and has been a factor in several discrimination cases arising out of exclusion from school. In X v The Governing Body of a School178 the Upper Tribunal confirmed that the exclusion of this group of conditions from the definition of impairments applies not only to adults but also to children. The child in question, aged 6, had autism and was excluded on seven occasions for physical assaults on other pupils or staff. The school argued that she had a tendency to physical abuse of other persons and so did not have an impairment for the purposes of the 2010 Act. The Upper Tribunal held that the severity and repeated nature of the assaults were indicative of the alleged tendency. Even though the tendency arose as a result of the child’s autism, there was no impairment for the purposes of the 2010 Act and the claim therefore failed.179 (The Upper Tribunal also rejected the claim that the school had failed to make reasonable adjustments.) More recently, however, in C and C v The Governing Body of A School and Others180 the Upper Tribunal considered whether the provision in the regulations excluding ‘a tendency to physical or sexual abuse of other persons’ is compatible with ECHR, Art 14 read with A2P1. The decision in this case is highly important in that it significantly extends the 2010 Act’s protection for children at risk of exclusion from school due to the effect their condition has on their behaviour. The facts of C and C were that a child, L, had autism, anxiety and a condition known as Pathological Demand Avoidance. He was 11 years old and received a fixed period of exclusion lasting one and a half days for an expressed reason

172 EqA

2010, Sch 1, para.6. Act 2010 (Disability) Regulations 2010 (SI 2010/2128), reg 7. 174 Ibid, regs 3 and 4(2). 175 EqA 2010, Sch 1, para 3. 176 Equality Act 2010 (Disability) Regulations 2010 (SI 2010/2128), reg 5. 177 Ibid, reg 4(1). 178 [2015] UKUT 0007 (AAC); [2015] ELR 133. 179 See also P v Governing Body of a Primary School [2013] UKUT 154 (AAC); [2013] ELR 497. 180 [2018] UKUT 269 (AAC); [2018] ELR 554. 173 Equality

The Equality Act 2010 and Children’s Education 207 of aggressive behaviour. There was evidence that over a ten-month period L had been involved in a number of incidents involving grabbing, pushing and pulling others. On one occasion he had hit a teaching assistant with a ruler, pulled her hair and punched her and on another had hit the same assistant with a book. The First-tier Tribunal had judged L to be disabled for the purposes of the 2010 Act but concluded that his disciplinary exclusion had resulted from his ‘tendency to physical abuse’ and thus was not on the basis of a disability. The tribunal also rejected the submission that the regulation in question should be read in a way that avoided a breach of Art 14 read with A2P1. In the Upper Tribunal, UTJ Rowley’s decision centred on whether the ‘tendency to physical abuse’ exception was consistent with these ECHR provisions. She held that the comparator group for the purposes of the alleged discrimination was children with a disability who have been verbally abusive, persistently disruptive or physically aggressive but at a level below that of persons whose condition gave rise to a tendency to physical abuse. That meant that the Art 14 claim was not defeated by a lack of an analogous situation. The next question was whether there was justification for the discrimination. UTJ Rowley considered that the ‘manifestly without reasonable foundation test’181 should be applied to the core questions of whether the treatment had a legitimate aim, the relevant measure was rationally connected to that aim and a less intrusive measure could have been used. She accepted that there was legitimate aim to the difference in treatment (essentially to exclude from the Act’s protection those whose anti-social or criminal behaviour had an impact on others, including on the welfare of school staff and pupils).182 The judge also accepted that there was a rational connection and that a less intrusive measure could not be used. On the further question of whether a fair balance had been struck between the rights of the individual and the interests of the community it was agreed that the ‘manifestly without reasonable foundation’ test was not appropriate, rather this was a matter to be decided on its merits, albeit with ‘appropriate’ respect being paid to the Secretary of State’s decision (ie authority).183 Counsel for the claimants highlighted the impact of the regulation on children such as L since it enabled them to be excluded easily and without even the risk of a complaint of failure to make reasonable adjustments.184 He also cited evidence, which was not contested, that tens of thousands of children with autism and a less easily estimated number of children with other conditions such as ADHD, were potentially affected.185 UTJ Rowley considered that ‘a particularly weighty factor to be put into the balance is that aggressive behaviour is not a choice for autistic children’.186 In the educational context, in the judge’s opinion, the regulation came ‘nowhere near to striking a fair

181 As

articulated in Tigere, n 29 above. 180 above, [52]. 183 Ibid, [56]–[57]. 184 Ibid, [77]. 185 Ibid, [79]. 186 Ibid, [81]. 182 Note

208 Equal Access for Children to Education Settings balance between the rights of children such as L on the one side and the interests of the community on the other’ and the ‘profound severity of the consequences of the measure on the status group weigh extremely heavily’.187 The regulation excluding ‘tendency to physical abuse (etc)’ violated the right of children with such a tendency resulting from a recognised condition not to be discriminated against under Article 14 read with A2P1.188 Judge Rowley concluded that the appropriate course was for the regulation to be dis-applied and therefore for L to be considered a disabled person. This important ruling has the effect of realising a recommendation of the House of Lords Select Committee on the Equality Act 2010 and Disability, in 2016, that the 2010 Regulations should be amended by removing a tendency to physical abuse of other persons from the exclusions from the definition of an impairment. The Committee considered that the particular regulation worked against the need to ensure that schools make adjustments which help to address educational equalities experienced by children with disabilities, including those whose disabilities manifest in challenging behaviour.189 The Upper Tribunal’s decision achieves the same effect and means that in a case where the child physically abuses another, the question whether, by making reasonable adjustments, as they are expected to do (see below), the school could have prevented the challenging behaviour on the occasion(s) in question, will be able to be judged.

ii. Discrimination, Including Segregation The Equality Act 2010 seeks to afford protection against various forms of conduct, referred to as ‘prohibited conduct’: direct discrimination, indirect discrimination, victimisation and harassment. A failure to comply with the Act’s duty (discussed below) to make reasonable adjustments, in the case of a person with disabilities, is classed as discrimination.190 Direct discrimination is where a person, for reasons to do with another person’s protected characteristics, treats the other person less favourably than he or she would treat others.191 It is not discrimination, however, if the protected characteristic is disability and a person treats someone who is not disabled less favourably than he or she treats or would treat disabled persons.192 Indirect discrimination occurs where a person, A, discriminates against another, B, by applying to B ‘a provision, criterion or

187 Ibid, [89]. 188 Ibid, [93]. 189 House of Lords Select Committee on the Equality Act 2010 and Disability, Report of Session 2015–16, The Equality Act 2010: the impact on disabled people HL Paper 117 (London, The Stationery Office, 2016) paras 502 and 503. 190 EqA 2010, s 21(2). 191 EqA 2010, s 13(1). This would be the case even if the person responsible for the act in question has the particular protected characteristic him/herself: ibid, s 24. See also ibid, s 14, which covers cases where the discrimination relates to a combination of two or more of the prescribed characteristics. 192 EqA 2010, s 13(3).

The Equality Act 2010 and Children’s Education 209 practice which is discriminatory in relation to a relevant protected characteristic of B’s.’193 For this purpose, discrimination arises from being subjected to the provision or criterion where a person without the same characteristic would not be placed at a disadvantage but B would be and where A cannot show that the provision or criterion is a ‘proportionate means of achieving a legitimate aim’.194 Applicable characteristics for this purpose exclude pregnancy/maternity.195 Lady Hale said in JFS that direct and indirect discrimination were ‘mutually exclusive. You cannot have both at once.’196 As she also said, ‘The main difference between them is that direct discrimination cannot be justified’.197 The question of justification, which, as noted above, hinges on proportionality, is particularly relevant to education policy related cases, as discussed below. The meanings of harassment and victimisation are considered below in the context of the specific provisions within the 2010 Act governing schools. In relation to race specifically, the 2010 Act identifies segregation as a form of less favourable treatment.198 In doing so, it maintains the position under the previous law199 which was, for example, at issue in R v Cleveland County Council and Others ex p The Commission for Racial Equality.200 The Court of Appeal in that case rejected an argument that a local authority’s decision to permit a child to be moved, at her parent’s request, to a different school where, according to her mother’s wish, ‘there will be a majority white children not Pakistani’ unlike in her present school, amounted to segregation and was thus unlawful. Parker LJ said that that interpretation would have been ‘too strained to be acceptable’.201 Parker LJ also made the point that if a local authority were compelled to refuse such a request because of a desire to further racial equality it would simply encourage racists to make ‘bare applications’ – in other words hiding their prejudices.202 However, there are two points to be made in response to this. First, it is likely that any racial motivation behind a school admission preference will almost always be hidden by the applicant anyway. Secondly, the PSED, discussed above, should be factored into any school admission process. As it happens, the local authority would in any event have been acting lawfully as a result of the duty under the Education Act 1980 (now in the SSFA 1998) to comply with parental preference if the selected school had a spare place.203 Since the local authority was

193 Ibid, s 19(1). 194 Ibid, s 19(2). 195 Ibid, s 19(3). 196 R (E) v The Governing Body of JFS and the Admissions Panel of JFS; R (E) v Office of the Schools Adjudicator [2009] UKSC 15; [2010] ELR 26, [57]. 197 Ibid. 198 EqA 2010, s 13(5). 199 Race Relations Act 1976, s 1(2). 200 [1994] ELR 44. 201 Ibid at 53C. 202 Ibid at 53E. 203 EA 1980, s 6(2).

210 Equal Access for Children to Education Settings performing a duty under the 1980 Act in permitting the transfer of school, it could not give rise to illegality under the Race Relations Act, as the latter provided that an act of discrimination would not be unlawful if done ‘in pursuance of any enactment’.204 Segregation on grounds other than race is not specifically referred to in the 2010 Act as less favourable treatment. However, gendered segregation was a central issue in the very important case of Her Majesty’s Chief Inspector of Education, Children’s Services and Skills v The Interim Executive Board of Al-Hijrah School and Others,205 where the Court of Appeal held that the separation of boys from girls from year 5 onwards for lessons, breaks and lunchtimes gave rise to unfavourable treatment such as to amount to discrimination for the purposes of the 2010 Act. The school was an Islamic school with voluntary aided status. The separation of boys and girls between the ages of 9 and 16 was part of a formal policy and reflected the school’s Islamic ethos. The dispute centred on an inspection report by Ofsted in June 2016 which, inter alia, pointed to a number of inadequacies in leadership and management. The report referred to the presence of library books which ‘included derogatory comments about, and … incitement of violence towards, women’ and to the segregation of male and female pupils, which it regarded as prejudicial to pupils’ social development and their interaction with the opposite sex after they had finished at school. The school raised a complaint, which was upheld, centring on the inspection report’s concerns about segregation which, it said, were inconsistent with a report six months earlier. Ofsted sent a revised version of the June report in August 2016, which acknowledged that the issue had not been raised by it previously but stating that the segregation policy ‘did not accord with fundamental British values and amounts to unlawful discrimination’. It had found that the policy ‘did not give due regard to the need to foster good relations between the sexes’ and failed to ensure equal opportunities for the development of ‘confident relationships’ with members of the opposite sex. The school applied for judicial review, seeking the anonymisation of the school in the published inspection report as interim relief and the quashing of the report as a final remedy. In the High Court206 Jay J held that the Chief Inspector had not established that there had been discrimination due to pupils being denied opportunities to interact with the opposite sex and further that there was no evidence that in this mixed Islamic school the segregation had a greater impact on girls such as to constitute discrimination against them. He rejected the idea that the segregation of boys and girls gave rise to unfavourable treatment on the basis of sex. He also said there was no evidence that the separation of girls from boys was motivated by or had a tendency to generate feelings as to inferiority of girls. Jay J did not quash the inspection report, however,

204 RRA 1976, s 41(1)(a). 205 [2017] EWCA Civ 1426, [2018] ELR 25. 206 The Interim Executive Board of X School v Her Majesty’s Chief Inspector of Education, Children’s Services and Skills [2016] EWHC 2813 (Admin); [2017] ELR 54.

The Equality Act 2010 and Children’s Education 211 because the other findings on leadership and management would in themselves have led Ofsted to reach a conclusion of inadequacy. Nevertheless, he directed that the inspection report would require appropriate amendment in light of the Court’s judgment before it could be published. When Al-Hijrah came before the Court of Appeal, on appeal by the Chief Inspector, the Court found that there was ‘less favourable treatment’ in the form of a detriment suffered by both boys and girls as a result of segregation under the school’s policy, which therefore made this practice unlawfully discriminatory. The Court reached only a majority decision on two of the appeal grounds. Unlike the majority, the minority judge (Gloster LJ) would have upheld the grounds arguing that the loss of opportunity resulting from the segregation imposed a particular detriment on girls due to their minority position of power in society and that segregation constituted less favourable treatment of girls due to the implication that girls were inferior or otherwise relevantly different to boys in ordinary social and working contexts. The three judges unanimously upheld the three other grounds,207 which referred to: (i) the loss of an opportunity for girls to learn and socialise with boys or individual boys (which boys at the school enjoyed); (ii) the loss of an opportunity for boys to choose to learn and socialise with girls or individual girls (which girls at the school enjoyed); and (iii) the loss of an opportunity for girls to socialise confidently with boys (and vice versa) and/or learn to socialise confidently in preparation for personal, educational and work-related contexts on leaving the school. The Master of the Rolls said that the restriction on boys and girls respectively socialising with a person of the opposite sex, was clearly by reason of their sex. He said that the matter of ‘less favourable treatment’ had to be viewed from the perspective of the individual boy or girl. From that perspective, both boy pupils and girl pupils suffer a detriment from the operation of the school’s segregation policy and, in respect of that detriment, each boy and girl suffers less favourable treatment since the girls are denied the opportunity, which the boys have, of mixing with other boys, and the boys are denied the opportunity, which the girls have, of mixing with other girls.208

The Master of the Rolls also rejected the argument that equal treatment or a parity of detriment suffered by boys and girls meant there was not unlawful discrimination.209 There was clearly a very important point of principle in issue in this case and it is a decision with significant implications for schools which practise segregation of the sexes in furtherance of their cultural and religious traditions

207 The Court also lifted anonymity and so the school could be identified: n 205 above, [41]–[42] per Sir Thomas Hetherington MR. 208 Ibid, [53]. 209 Ibid, [56].

212 Equal Access for Children to Education Settings and doctrine. Segregation of this nature could be viewed as running against mainstream notions of equality that rest on the idea that women and men have an equal part to play in all areas of society. Teaching boys and girls separately erects barriers which could limit cross-gender understanding and narrow perspectives, along gendered lines. To Ofsted, the practice in the Al-Hijrah school was in conflict with ‘British values’ in these regards. On the other hand, religious and cultural diversity is accepted and accommodated across the education system, a system within which single sex schools are permitted. Indeed, the Equality Act 2010, in addition (as noted above) to excluding admission to single sex schools from the scope of sex discrimination law also permits religious preference in faith schools’ admissions policies (see below). Only racial segregation is specifically proscribed. However, that does not mean that gender segregation is outside its scope. There may be an obvious disparity between the unlawfulness of systematic gender separation within schools and the legal sanctioning of single sex schools,210 but the fact remains that, as discussed in Chapter 6, despite guarantees under the ECHR, legal limits to religious freedom may legitimately be set in relation to issues where controls are considered justifiable in society’s wider interests. More common within the schools system is segregation or separation of children with disabilities. Notwithstanding the central presumption of inclusion, legally embedded, so that children with special educational needs and disabilities will normally be educated in mainstream schools,211 it is not uncommon, where their needs demand it, that such children are educated separately in special schools or, wholly or for part of the time, in special units attached to mainstream schools. That such provision is not likely to run into difficulty under the Equality Act is because, under s 15, treating someone (‘B’) who one knows to have a disability212 ‘unfavourably because of something arising in consequence of B’s disability’ will only amount to discrimination for the purposes of the Act if the treatment of B is not shown to be ‘a proportionate means of achieving a legitimate aim’.213 In SN v Nottinghamshire County Council214 UTJ Ward held that it is necessary to identify the legitimate aims and then determine whether the discriminatory effects of the treatment were proportionate to them. A pupil in year 10 with a range of disabilities including autistic spectrum disorder and behavioural difficulties had assaulted a support mentor and others. The school took action to set in place individualised arrangements for her education which affected her opportunity to interact with

210 R Akhtar, ‘Ofsted v A-Hijrah – The Case of Segregated Schools and Sex Discrimination’ (2018) 30 Denning Law Journal 167. 211 See ch 9. 212 It would not be discrimination contrary to the Act where the alleged discriminator can show that he or she ‘did not know, and could not reasonably have been expected to know, that B had the disability’: EqA 2010, s 15(2). 213 Ibid, s 15(1)(a) and (b). 214 [2014] UKUT 2 (AAC), [2014] ELR 286.

The Equality Act 2010 and Children’s Education 213 her peers and discriminated against her. That action was taken in the interests of the health and safety of students and staff and the class atmosphere in the GCSE preparation period. The decision was upheld by the First-tier Tribunal. But the Upper Tribunal held that even if they were legitimate aims, the assessment of proportionality for s 15 purposes – that ‘unfavourable treatment regrettably experienced by a disabled person goes no further than it needs to’ – was a ‘critical one’ for the tribunal in cases of that type,215 but was lacking here. In another case, F-T v The Governors of Hampton Dene Primary Primary School,216 a school had discriminated against a pupil, who had Down’s syndrome, by not providing fulltime education for her for six months because of her behaviour, which deteriorated as she tired. UTJ Mitchell found once the First-tier Tribunal had, rightly, found that there was discrimination against the pupil it should have considered whether there was any provision being made for her outside school. Since she was being denied full-time education to which she had a statutory entitlement, the failure to do so made her treatment by the school disproportionate.

iii. Specific Provisions of the 2010 Act Relating to Areas of School Activity Specific duties are placed on ‘the responsible body’ – the school or the local authority217 – by s 85 of the 2010 Act not to discriminate against a person in the areas of admission to school,218 provision of education and access to a benefit, facility or service,219 exclusion from school, and subjection of a pupil to ‘any other detriment’.220 Furthermore, the body responsible for the school must not victimise any person in relation to admission or any of the other matters above.221 Victimisation means subjecting another person to a detriment because he or she has done a ‘protected act’, such as bringing proceedings under the 2010 Act or making an allegation of breach of the Act.222 For the purposes of functions governed by

215 Ibid at [22]. 216 F-T v The Governors of Hampton Dene Primary Primary School (SEN) (Disability Discrimination in Schools: All) [2016] UKUT 468 (AAC), [2017] ELR 38. 217 In the case of local authority maintained schools it will be either the local authority or the governing body of the school, whereas for academies and other schools officially classed for legal purposes as independent schools it will be the proprietor: EqA 2010, s 85(9). 218 EqA 2010, s 85(1), referring to discrimination ‘(a) in the arrangements it makes for deciding who is offered admission as a pupil; (b) as to the terms on which it offers to admit the person as a pupil; (c) by not admitting the person as a pupil.’ This is subject to exceptions in relation to single sex schools: ibid, Sch 11, Pt 1. 219 Ibid, s 85(2), which refers to discrimination ‘(a) in the way it provides education for the pupil; (b) in the way it affords the pupil access to a benefit, facility or service; (c) by not providing education for the pupil; (d) by not affording the pupil access to a benefit, facility or service’. 220 Ibid, referring to discrimination ‘(e) by excluding the pupil from the school; (f) by subjecting the pupil to any other detriment.’ 221 EqA 2010, s 85(4) and (5). 222 EqA 2010, s 27.

214 Equal Access for Children to Education Settings s 85, this would include cases where the person being victimised is the parent or sibling of the relevant child.223 Harassment of a pupil or a person who has applied for admission as a pupil is also proscribed.224 Harassment is defined under the Act as ‘unwanted conduct, related to a relevant protected characteristic,225 which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment’ for the relevant person.226 Unwanted conduct of a sexual nature and which has the purpose or effect described above, is also proscribed under the Act227 and was referred to earlier in connection with the PSED. The indirectly discriminatory impact of school uniform policies was noted above through the discussion of Watkins-Singh,228 in which the school’s refusal to permit the complainant to attend school wearing the Kara gave rise to the ‘detriment’ suffered. As discussed in Chapter 3, exclusion is a detriment and one that has a particular significance in relation to disability discrimination in schools. Children with disabilities were unable to derive much assistance from the previous equalities legislation, specifically the Disability Discrimination Act 1995, when their behaviour justified their exclusion from school. This is because the comparator in such cases was held by the Court of Appeal, in R (N) v London Borough of Barking and Dagenham Independent Appeal Panel,229 to be a person who behaved in the same way as the person with disabilities but who did not suffer from the latter’s disability. In effect it would mean that if a school would have excluded a nondisabled pupil for misbehaving in specific circumstances and ways matching those applicable to the child with disabilities who had been excluded, the latter child’s exclusion would not amount to unlawful disability discrimination, although it may have been necessary for the school to have attempted to make reasonable adjustments to accommodate that child’s difficulties. As a result of the 2010 Act it became easier for the pupil with disabilities to succeed in a claim in such circumstances, by removing the need for a comparator. The 2010 Act provides that disability discrimination occurs where the complainant was treated unfavourably because of ‘something arising in consequence of their disability’ and the person administering the treatment to them is unable to show that the treatment was ‘a proportionate means of achieving a legitimate aim’.230 223 EqA 2010, s 86. 224 EqA 2010, s 26. 225 In the context of harassment by the responsible body, the protected characteristics of gender reassignment, religion/belief and sexual orientation are excluded: EqA 2010, s 85(10). However, schools would still be liable if they harass pupils on these grounds, but it would be on the basis of discrimination only: see DfE, The Equality Act 2010 and Schools (London, DfE, 2014) para 1.20. 226 Ibid, s 26(1) and (4). 227 Ibid, s 26(2) and (3). 228 Note 102 above. 229 [2009] EWCA Civ 108; [2009] ELR 268, CA. Cf, R(T) v Governing Body of OL Primary School [2005] EWHC 753 (Admin); [2005] ELR 522, QBD and M School v CC, PC and Another [2003] EWHC 3045; [2004] ELR 89, QBD. 230 EqA 2010, s 15.

The Equality Act 2010 and Children’s Education 215 Admission to school has also been another area in which discrimination in education has been litigated. A leading case, both in this context and also on indirect discrimination more generally, is Mandla v Dowell Lee.231 Its importance flows in part from its consideration of the definition of an ethnic group, holding that Sikhs (and Jews) are, but the case also illustrates how unlawful indirect discrimination arising from the imposition of school rules that run contrary to the cultural values and traditions of particular minorities can be difficult to justify in law. An independent school was found to have acted unlawfully, in form of indirect race discrimination contrary to the Race Relations Act 1976,232 by refusing to allow an orthodox Sikh boy to school wearing a turban, which was a form of dress prohibited under the school’s rules. The school’s decision was sought to be justified with reference to the aim of ensuring racial harmony and an egalitarian culture by eliminating marks of difference and diversity. However, the House of Lords held, inter alia, that the ban on the wearing of the turban could not be considered justifiable notwithstanding the headteacher’s genuine belief that preventing diverse dress was in interests of education at the school. Lord Fraser of Tullybelton said233 that to be justifiable the provision had to be ‘justifiable without regard to the ethnic origins of that person’, but here the principle which was relied upon was that ‘the turban is objectionable just because it is a manifestation of the [boy’s] ethnic origins’, which was not a justification that would count for the purposes of indirect discrimination. A local authority-wide admission policy was at issue in R v City of Bradford Metropolitan Borough ex p Sikander Ali.234 It was claimed that there was indirect discrimination arising from the way that the catchment areas across the city, which were a major determinant of priority for places at particular secondary schools, and thus of the realisation of school choice, were decided upon. The catchment areas were reviewed by the local authority each year and, if necessary, altered in the light of the demand for places at particular schools, taking account also of the extent of community-school links in particular areas. It was, however, possible under this exercise for an area of the city not to fall within any catchment area. Manningham was one such area. It was an area with a high proportion of residents of Asian origin. The policy was in part challenged, unsuccessfully, on the basis of irrationality, and the complaint of indirect discrimination was also dismissed. Jowitt J held that there was no race discrimination, because while those living in Manningham were disadvantaged compared to residents of other areas, that disadvantage applied equally to all Manningham residents whether or not Asian. He said that the non-Asian residents of Manningham were the ‘true comparators’.235 This decision was, however, 25 years ago. It is possible that such a policy might

231 [1983]

2 AC 548, HL. Relations Act 1976, s 17. 233 Note 231 above, [566]. 234 [1994] ELR 299. 235 Ibid at 315A. 232 Race

216 Equal Access for Children to Education Settings be viewed differently on the basis of either proportionality or a failure in respect of the PSED (above), if there was insufficient advance consideration of the PSED principles when formulating the policy. Another admission-related case, JFS,236 is perhaps the most interesting and controversial discrimination decision to date in the context of school education. It involved two contentious issues: whether the discrimination against the applicant was on the grounds of ethnic origin or religion and whether it was direct or indirect. The case was decided under the Race Relations Act 1976, as amended, but the applicable law did not substantively change under the Equality Act 2010. JFS was a faith school in the London Borough of Brent. Its admissions policy gave priority to children of the Orthodox Jewish faith. M, aged 13, at the time of the proceedings, failed to secure a place at the school, which was a very successful school and oversubscribed. He failed because JFS did not recognise him as Jewish. For the purposes of recognition as Orthodox Jewish, a child’s Jewishness was to be determined through being descended in the matrilineal line from a woman recognised by the Office of the Chief Rabbi (OCR) as Jewish. So the child had to be one whose biological mother was Orthodox Jewish by birth or had converted to Judaism via an OCR-approved conversion course. M’s mother was not born Jewish and although she had converted to Judaism it was under the aegis of the Progressive branch of Judaism, which meant the conversion was not regarded as valid by the OCR and thus was not accepted by JFS. JFS’ decision and the sanctioning of the admissions policy by the Schools Adjudicator were challenged before Munby J who rejected both claims and considered that the discrimination was religious and not racial, because inter alia the admission policy ‘reflected a religious and not an ethnic view as to who, in the eyes of the OCR and JFS, is or is not a Jew’.237 However, he found that there was a breach of the equality duty (now the PSED).238 The Court of Appeal, on the other hand, held that there was race discrimination and that it was direct discrimination or, alternatively, that it was indirect discrimination because the refusal to admit M to the school was because he was not regarded as Jewish and the defence that the criterion in question was ‘a proportionate means of achieving a legitimate aim’239 did not apply since its ‘aim of which the purpose or inevitable effect is to make and enforce distinctions based on race or ethnicity cannot be legitimate’.240

236 R (E) v The Governing Body of JFS and the Admissions Panel of JFS; R (E) v Office of the Schools Adjudicator [2009] UKSC 15 [2010] ELR 26, SC. This decision occurred in the year before the Equality Act 2010 was enacted, but in substance the law covering discrimination in the context of admission to school, referring to the terms on which a person may be admitted to a school, is unchanged. As in Mandla v Dowell Lee (n 231 above), the relevant provision was the Race Relations Act 1976, s 17. 237 R (E) v The Governing Body of JFS and the Admissions Panel of JFS; R (E) v Office of the Schools Adjudicator [2008] EWHC 1535/1536; [2008] ELR 445, QBD, [168]. 238 Race Relations Act 1976, s 71. 239 Per ibid, s 1(1A)(c). 240 R (E) v The Governing Body of JFS and Others; R (E) The Office of the Schools Adjudicator [2009] EWCA Civ 626; [2009] ELR 407, CA, per Sedley LJ at [46].

The Equality Act 2010 and Children’s Education 217 JFS appealed to the Supreme Court, contending that the Orthodox Jewish test applied by the school was based on religion and so it involved religious discrimination, not racial discrimination. Since religious discrimination was permitted by statute in relation to admission to a faith school,241 if the argument had succeeded the school’s policy would not have been unlawful. A court comprising nine justices was assembled to decide the case which, as Lord P hillips explained, had significant implications for a number of Jewish faith schools since ‘the resolution of the bone of contention between the parties risks upsetting a policy of admission to Jewish schools that, over many years, has not been considered open to objection’.242 By a 5–4 majority the court found that JFS had discriminated against M on grounds of ethnic origin rather than religion. It was considered direct discrimination. Lord Phillips explained that the grounds for the discrimination were to be determined on the basis of factual criteria underlying it and ignoring any motive, which would not be relevant.243 He acknowledged that the determination of Jewishness by the OCR was based on Jewish religious law and the issue of matrilineal descent, and that one could be in a religious sense Jewish, but he said that ‘[t]o the Jew the matrilineal descendant is a member of the Jewish family and the Jewish religion. The two are inextricably entwined’.244 In his view, the matrilineal test was a ‘test of ethnic origin’ and ‘JFS discriminates in its admission requirements on the sole basis of genetic descent by the maternal line from a woman who is Jewish … I can see no escape from the conclusion that this is race discrimination’.245 Lord Kerr reached a similar conclusion. Lords Phillips, Kerr and Clarke also viewed it as direct discrimination and they concluded that there was therefore no need to consider the question of indirect discrimination.246 Lady Hale similarly concluded that M was being denied admission to the school on account of his ethnic origins – because of his ‘lack of descent from a particular ethnic group’ to which those admitted the school belonged.247 She accepted that there might be a case for (legal) exception for Jewish schools adopting religiously-based criteria which they considered consistent with religious law even where they were ethnically-based, particularly having regard to the history of the Jewish people and their adherence to Jewish law that had helped them survive ‘centuries of discrimination and persecution’.248 But such exception would have to be a matter for Parliament, she said, not the courts. Given the mutual exclusivity of direct and indirect discrimination and the conclusion that the former had occurred, it was not possible to find the latter and thus apply

241 Equality

Act 2006, s 50. See now EqA 2010, Sch 11, para 5. 236 above, [8]. 243 Ibid, [13] and [20]. 244 Ibid, [43]. 245 Ibid, [45]. 246 Ibid, [47], [123] and [154]. 247 Ibid, [66]. 248 Ibid, [69]. 242 Note

218 Equal Access for Children to Education Settings a defence of justification.249 Another of the majority judges, Lord Mance, did consider the issue of indirect discrimination and was prepared to accept as arguable that the policy had a legitimate aim of enabling Orthodox Jews to fulfil their religious duty of educating their children about the tenets of Orthodox Judaism. But he said that it was not proportionate since, inter alia, the successful pursuit of that aim did not necessitate the application of the policy in question.250 Lords Hope, Brown, Rodger and Walker disagreed with the majority’s finding that there was direct racial discrimination. Lord Hope said that an approach that assumed the division of Jews into ‘separate subgroups on the grounds of ethnicity’ was ‘an artificial construct which Jewish law, whether Orthodox or otherwise, does not recognise’.251 Lord Rodger said that the school governors’ refusal to admit M ‘was because his mother had not converted under Orthodox auspices’ and that it was her non-Orthodox conversion that was crucial.252 Therefore, he said, the only ground for treating M less favourably than the comparator was ‘the difference in their mothers’ conversions – a religious, not a racial, ground’.253 Lords Brown and Rodger also found that there was no indirect discrimination, because the admission criterion was proportionate. Having regard to the school’s essential aim of educating members of the Orthodox Jewish religion in the Orthodox faith, it could, according to Lord Brown, ‘no more be disproportionate to give priority to a Jewish child over that of a child, however sincere and committed, not recognised as Jewish than it would be to refuse to admit a boy to an oversubscribed all-girls school’.254 However, the other minority judges, Lords Hope and Walker, concluded that the policy was disproportionate and so there was unlawful indirect discrimination.255 The divergence of judicial views in the Supreme Court reflects the complexity of the issues before the Court. At the crux of the problem was the distinction between Judaism as a religion and the status of being Jewish as matter of ethnicity. Mancini argues that in JFS the issues of ‘religion and ethnicity (or, better, descent) are so strictly intertwined that there is no possible way to disentangle them’.256 But as McCrudden explains, the legislation prohibited not only discrimination on the basis of ethnic origins derived from membership of a specific group as defined in Mandla v Dowell Lee257 – that is, on the basis of shared history of substantial duration and distinct cultural traditions, and with factors such as a common

249 Ibid, [71]. 250 Ibid, [103]. 251 Ibid, [184]. 252 Ibid, [230]. 253 Ibid. 254 Ibid, [256]. 255 Ibid, [214] and [235]. 256 S Mancini, ‘To be or not to be Jewish: the UK Supreme Court answers the question; judgment of 16 December 2009, R v The Governing Body of JFS, 2009 UKSC 15’ (2010) European Constitutional Law Review 410, 493. 257 Above n 231.

The Equality Act 2010 and Children’s Education 219 geographical origin and a common religion also being relevant – but also on the narrower accepted basis of lineage or descent.258 The school (and OCR’s) test was one of ethnic origins, being focused on ‘genealogical descent from a particular people, enlarged from time to time by the assimilation of converts’.259 M had a Jewish father but was also descended from an Italian Roman Catholic mother; and by denying him admission due to his lack of a ‘matrilineal Orthodox Jewish antecedent’, the school practised discrimination on the basis of his ethnic origins.260 Hannett argues that the minority justices could be criticised for not recognising sufficiently how the religious test that was applied to the child was linked to the issue of ethnic origins.261 The breach that JFS caused could be considered more technical than egregious – although the motivation behind the action considered discriminatory is of course irrelevant for the purposes of the Act – and several of the justices were particularly keen to stress that neither the school nor the OCR could be considered to have acted in a racist manner. There was also an awareness of the potential consequences of the ruling, since JFS and other schools applying the same admission criterion would have to re-cast their policy, as had started to happen in the case of JFS after the Court of Appeal’s ruling, with a test of religious observance being developed by the school.262 It would still be permissible for such a school to make a distinction in its admissions criteria between Jewish and non-Jewish children provided, as Hannett says, the distinction is ‘drawn on religious grounds and not racial grounds’.263 The lack of a firm conclusion by the Supreme Court regarding indirect discrimination does not alter the broad position regarding it in the context of admission to faith schools. Faith based admission criteria could technically result in indirect racial discrimination by disproportionately affecting members of a particular ethnic minority, such as those of Pakistani Asian origin who seek admission to an oversubscribed Roman Catholic school but who, as Muslims, are denied admission. Rosenberg and Desai argue that ‘there can be no backdoor challenge to the legitimacy of preferring applicants on faith-based criteria per se through the vehicle of indirect race discrimination given the current specific statutory sanction for such faithbased preference’, but that it is not impossible to argue a case and it would come down to questions of legitimate aim and proportionality.264 In JFS, the weight of judicial opinion supported a view that the admissions policy had a legitimate

258 C McCrudden, ‘Multiculturalism, freedom of religion, equality and the British Constitution. The JFS case considered’ (2011) 9(1) International Journal of Constitutional Law 200, 214. 259 Ibid. 260 Ibid. 261 S Hannett, ‘Admissions – R (E) v The Governing Body of JFS and Others’ (2010) 11(1) Education Law Journal 47, 50. 262 Referred to by Lord Phillips in the Supreme Court: n 236 above, [50]. 263 Hannett n 261 above. 264 D Rosenberg and R Desai, ‘The Admissions Arrangements of faith schools and the Equality Act 2010’ (2013) 14(2) Education Law Journal 93, 96.

220 Equal Access for Children to Education Settings aim and also that it was proportionate. That did not save the policy, for reasons which have been discussed. Also of particular importance to schools and children’s education is the 2010 Act’s protection for those with disabilities based on the need for the relevant body to make ‘reasonable adjustments’.265 Where the reasonable adjustments duty applies, the Act classes a failure to comply with any one of the three requirements attached to it (see below) as discrimination against the person in question.266 Although, in relation to disability discrimination, both indirect discrimination and a failure to make reasonable adjustments are applicable, the latter will, according to McColgan, do ‘most of the heavy lifting by reason of its lack of any requirement for collective disadvantage’ – in other words, it only needs to be shown that the individual is put at a disadvantage by the failure, not that the practice etc would so impact on people with disabilities as a group.267 McColgan explains that the reason this approach was adopted within the law on disability discrimination was because it is more difficult to show that a statistically greater proportion of persons with disabilities than others is affected by a practice than it is to do so in relation to one gender or ethnic group.268 The first of the three requirements within the duty to make reasonable adjustments269 is that the relevant person or body takes ‘such steps as it is reasonable to have to take’ to avoid a substantial disadvantage that a disabled person would experience as a result of a provision, criterion or practice being applied by that person or body.270 In R (D) v Governing Body of Plymouth High School for Girls,271 a girl in year 10 who had visual impairment was denied access to a work placement organised by a third party because of the non-disclosure of medical information about her on the form she was asked to complete. The relevant section of the form was left blank because the girl did not like attention being drawn to her disability. Stanley Burnton J held that the school had not taken the reasonable steps it could have done to ensure that relevant information about the girl’s condition was made available to the third party so the girl could have the benefit of participation in a work placement. The second requirement of the reasonable adjustments duty is where the substantial disadvantage to the disabled person, compared to persons who are not disabled, results from a physical feature; the relevant person/body must take reasonable steps such as to avoid the disadvantage being caused. The third requirement relates to the need to provide an auxiliary aid where such an aid would prevent the person from suffering a substantial disadvantage. 265 EqA 2010, ss 20 and 85(6). Whether the relevant body is the local authority or governing body will depend on which of them is responsible for the function in question. 266 EqA 2010, s 21. 267 A McColgan, Discrimination, Equality and the Law (Oxford, Hart Publishing, 2014) 126. 268 Ibid. 269 EqA 2010, s 20(3)–(5). 270 But note the Act’s ‘competence standard’ exemption in further and higher education, outlined below. 271 [2004] EWHC 1923 (Admin); [2004] ELR 591.

The Equality Act 2010 and Children’s Education 221 The application of these three requirements varies as between schools and the further and higher education sectors. All three requirements apply to institutions in the FE and HE sectors, which means, for example, that they have a qualified duty to ensure that physical features of the premises do not put a disabled person at a disadvantage.272 In these sectors the duty applies to specified matters: deciding who is offered admission as a student; provision of education; access to a benefit, facility or service; deciding on whom a qualification is conferred; and a qualification that the institution confers. The duty is more limited in its scope in relation to schools. For one thing, schools are only expected to meet the first and third requirement, which means that a physical alteration of the premises is not required as a result of this duty (although may be under health and safety law). Moreover, the specified matters to which the duty is applicable are confined to deciding who is offered admission as a pupil; and provision of education or access to a benefit, facility or service. As regards what adjustments would be reasonable, cost often will be a relevant factor, and ‘it is more likely to be reasonable for a school with substantial financial resources to have to make an adjustment with a significant cost, than for a school with fewer resources’.273 In ML v Kent County Council274 UTJ Rowland said that ‘reasonable’ in relation to reasonable adjustments referred to ‘the reasonableness of requiring the responsible body to take the identified step’.275 The kind of adjustments that schools may need to make in relation to a person’s disabilities need not necessarily involve substantial cost, however, as is clear from Governing Body of X School v SP and Special Educational Needs and Disability Tribunal.276 Here the Special Educational Needs and Disability Tribunal had found that, in excluding a child aged 13 from school on several occasions due to her behaviour which was connected to her Attention Deficit Hyperactivity Disorder, the girl’s school had failed to make reasonable adjustments due to not contacting the consultant who was treating the girl or an educational psychologist for guidance nor formulating a plan involving the various strategies that had been devised for her. The tribunal had accepted that the school had adopted some strategies but concluded that it had done so in a piecemeal way. The school had also contacted the consultant, but not for guidance. On appeal by the school the High Court held, inter alia, that the tribunal had been entitled to reach such conclusions on the evidence and had not erred in finding that these steps taken by the school did not amount to reasonable adjustments. ML v Kent 272 EqA 2010, Sch 13. 273 DfE’s guidance The Equality Act 2010 and Schools (May 2014) para 4.24. See also JW v Governing Body of Sinai Jewish Primary School [2019] UKUT 88 (AAC); [2019] ELR 259, where UTJ Rowland confirmed, inter alia, that the school in question’s financial position was relevant to the issue of whether arrangements to enable a child with disabilities to receive the supervision he needed in order to attend in the afternoon would involve reasonable adjustments for the school to have to make. 274 [2013] UKUT 125 (AAC); [2013] ELR 364. 275 Ibid at [20]. 276 [2008] EWHC 389 (Admin); [2008] ELR 243.

222 Equal Access for Children to Education Settings County Council277 (above) also concerned a reasonable adjustments question that was not related to financial resources. A girl suffered from depression and dyslexia and as a result needed extra time for her International Baccalaureate exams, which was granted by the awards board, the IBO. But she had four exams scheduled for one day, with one more the following morning. The IBO’s guidelines referred to granting permission for rescheduling if total exam time on one day exceeded six hours, which was not the case here. The school chose not to apply for rescheduling. The Upper Tribunal upheld the First-tier Tribunal’s conclusion supporting the school’s view that the IBO would not have granted permission to let the girl sit one of the four exams the next day, since the girl would have been placed in an advantageous position relative to other students.278 The Equality Act 2010’s protection against disability discrimination in the context of education is essentially concerned with the social model of disability,279 because the relevant provisions aim to remove or reduce the barriers to social participation in ordinary community life. This is further shown by the duties placed on schools to have an accessibility plan and on local authorities to have an accessibility strategy.280 Both the local authority’s disability strategy (in respect of schools for which it is the responsible body) and schools’ accessibility plans must aim to increase the extent of disabled pupils’ ability to participate in their schools’ curriculum, improve schools’ physical environment so that disabled pupils are better able to take advantage of education services, and improve the delivery of information to disabled pupils. The relevant body has a duty to have regard to the need to allocate adequate resources for implementing the accessibility strategy or plan, although since that does not actually require adequate resources themselves to be allocated it falls a little short. Performance of these duties on accessibility plans or strategies is enforceable by the Secretary of State.281 This complements the Secretary of State’s powers under the EA 1996 to give directions to them when in default or acting or proposing act unreasonably in relation to any non-discrimination duty in chapter 1 of part 6 of the 2010 Act (above).282 A variation on the social model of disability is the human rights model,283 which while 277 [2013] UKUT 125 (AAC); [2013] ELR 364. 278 See also Burke v The College of Law and the Solicitors Regulation Authority [2012] EWCA Civ 37; [2012] ELR 195. 279 This is a model focussing on the extent of a person’s limitation or disadvantage within society due to their mental and/or physical condition and their experience of long-term disadvantage in everyday life, and on the means of addressing the barriers that are experienced. It is distinguishable from the largely disfavoured medical model, which looks at the nature of the person’s physical or mental incapacity per se: see J Swain, S French and C Cameron, Controversial Issues in a Disabling Society (Buckingham, Open University Press, 2003) 23–25. The social model is criticised in T Shakespeare and N Watson, ‘The social model of disability: an outdated ideology’ (2002) 2 Research in Social Science & Disability 9. 280 EqA 2010, s 88 and Sch 10. Both the strategy and the plan must be written. 281 EqA 2010, Sch 10, para 5. 282 Ibid, s 87. 283 But see K Kazou, ‘Analysing the Definition of Disability in the UN Convention on the Rights of Persons with Disabilities: is it Really Based on a ‘Social Model’ Approach? (2017) 23(1) International Journal of Mental Health and Capacity Law 25.

The Equality Act 2010 and Children’s Education 223 focusing on the social environment and social attitudes that impact on the individual also reflects fundamental principles and values that accord with the notion of the individual as, inherently, a holder of human rights, per the CRPD (discussed above).284 There has been some criticism of the UK by the UN Committee on the Rights of Persons with Disabilities in not incorporating a ‘human rights model of disability in public policies and legislation concerning children and young people with disabilities’.285 A final point relating to disability discrimination concerns the impact of selection. Academic selection is particularly likely to have a disproportionate impact on those with mental disabilities. However, there would be no disability discrimination under s 85 if it is the result of a ‘permitted form of selection’.286 This refers to selection as permitted under school admission arrangements in relation to ability and aptitude, discussed in the next chapter. There is also the ‘competence standard’ exception in the case of further and higher education,287 which has the effect that if a particular level of skill or academic ability is needed to undertake a particular course and a person’s disability means that they cannot meet that requirement then the application of the standard may not amount to unlawful discrimination under the 2010 Act.288

iv. Remedies The 2010 Act enables individuals to seek remedies for breach of the duties applicable to schools and local authorities under part 6 (Education). Complaint may be made to the First-tier Tribunal (Health, Education and Social Care Chamber) if they relate to prohibited conduct on the basis of disability289 or to the county court in the case of the other protected characteristics.290 The burden of proof in the cases under the 2010 Act coming before either forum lies with the respondent once the facts have been established and show that in the absence of another explanation the respondent has contravened the relevant provision. The court or 284 T Degener, ‘A human rights model of disability’ in V Della Fina, R Cera and G Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities. A Commentary, (Cham (Switzerland), Springer, 2017), 41–59. 285 UN Committee on the Rights of Persons with Disabilities (2017), Concluding Observations on the initial report of the United Kingdom of Great Britain and Northern Ireland (CRPD/C/GBR/CO/1) (Geneva, UN, 2017), paras 20 and 21. But the CRPD will be accepted by the UK courts as relevant to the construction of a domestic provision on the assumption that government does not intend to legislate contrary to an international legal obligation: see eg Mathieson v Secretary of State for Work and Pensions [2015] UKHL 47 [2015] 1 WLR 3250. 286 EqA 2010, Sch 11 para 8. 287 Ibid, Sch 13 para 4(2)). A ‘competence standard’ is defined as ‘an academic, medical or other standard applied for the purpose of determining whether or not a person has a particular level of competence or ability’: ibid para 4(3). 288 See further EHRC, Equality Act 2010 Technical Guidance on Further and Higher Education (EHRC, 2014) (www.equalityhumanrights.com/en/publication-download/equality-act-2010-technical-guidancefurther-and-higher-education) paras 7.33–7.38. 289 EqA 2010, ss 114(1) and (3) and 116. 290 Ibid, s 114(1).

224 Equal Access for Children to Education Settings tribunal is able to reach conclusions on the facts and there is no burden on the complainant.291 There is, however, a burden on the respondent who contests the case to prove non-contravention.292 The Government’s rationale for placing disability discrimination cases within the First-tier Tribunal’s jurisdiction is based on this tribunal’s role in hearing SEN appeals.293 In SEN appeal cases the parents might also have a complaint of disability discrimination and it was considered sensible to enable the appeal and complaint to be dealt with together before the tribunal and avoid potentially inconsistent findings or rulings before separate forums.294 The complaint to the tribunal will be made by the child’s parent. However, following amendments made by the Children and Families Act 2014, if the child is above compulsory school age the complaint right switches to him/her instead.295 If the complaint is upheld the tribunal may make ‘such order as it thinks fit’ and, in particular, an order to obviate or reduce the adverse effect of the discriminatory or other conduct; but it has no power to award compensation.296 The inability to award compensation was originally set out in the Disability Discrimination Act 1995 when it was amended under the Special Educational Needs and Disability Act 2001.297 It might be thought that this restriction has been designed to protect the resources of schools and to acknowledge that disability discrimination in relation to the various prescribed aspects of education is capable of being remedied by corrective action. The former factor is in fact nowhere to be seen in the reasons advanced by the Government at the time of the 2001 Act, whereas that Act’s Explanatory Notes hint that the latter was an instrumental factor, saying that the tribunal ‘will be able to order schools and LEAs to take compensatory action to take account of past discrimination and shape the future prospects of the disabled child’.298 Furthermore, the Consultation Document on the Bill referred to the need for an emphasis to be ‘on securing the appropriate educational remedy’.299 However, the principal rationale it articulated concerns the potential impact that a power to award compensation would have on the tribunal and on the relationship between families and schools: The prospects of financial compensation would make hearings more formal, adversarial and possibly longer and more acrimonious. It would not guarantee access to education for disabled people and may sour relationships between the partners in a disabled child’s education.300 291 Ibid, s 136(1), (2) and (6). 292 Ibid, s 136(3). 293 See ch 9. 294 DfEE et al, SEN and Disability Rights in Education Bill (London, DfEE, 2000) Annex A para 20. 295 EqA 2010, Sch 17, para 3. 296 Ibid, para 5. 297 Disability Discrimination Act 1995, s 28I, inserted by the Special Educational Needs and Disability Act 2001, s 18. 298 Explanatory Notes to the Special Educational Needs and Disability Act 2001, para 91. 299 DfEE et al n 294 above, Annex A, para 21, original emphasis. 300 Ibid.

Conclusion 225 There is, however, an inconsistency with the potential award of compensation if a complaint of, for example, race discrimination was upheld in the county court. The county court has a wide range of powers including the award of compensation for injured feelings and/or other matters.301 However, if there has been found to be indirect discrimination but the application of the particular provision, criterion or practice to the complainant was not done with the intention of discriminating against him or her, the court is not to award damages unless it has first considered whether to make any other disposal.302 While the annual total number of disability discrimination claims coming to the tribunal, shown in table 4.1 below, has varied from year to year since 2011/12, the number upheld has been fairly constant, at between 29–34 cases. Of the cases which came to a decision, in four of the past six years approximately half of the claims were upheld, but claims upheld far exceeded dismissals in 2011/12 and 2015/16. Table 4.1 Disability Discrimination Claims (Education) and Outcomes: First-tier Tribunal, 2011–12 to 2017–18303 DD Claims

Withdrawn / Conceded304

Upheld

Dismissed

Total Decided

31 August 2012

74

34

31 August 2013

105

38

32

8

40

33

37

67

31 August 2014

99

30

34

35

69

31 August 2015 31 August 2016

114

47

34

33

67

88

44

29

15

44

31 August 2017

111

48

30

33

63

31 August 2018

108

42

31

35

66

Year to

IV. Conclusion Legislative attempts via equality legislation to minimise social inequality among pupils within the education system have been based around the more general extension of statutory protection against discrimination and other forms of 301 EqA 2010, s 119. 302 Ibid, s 119(5) and (6). 303 Source: DfE, Tribunals SEND 17–18 Tables (2018), table SEND 11, https://assets.publishing.service. gov.uk/government/uploads/system/uploads/attachment_data/file/768080/Tribunals_SEND_ 17-18_Tables_v4.ods. 304 The official statistics show a single total for withdrawn and conceded cases until 2015–16. For that year and the following years there are no conceded cases recorded in the statistics and so the figure shown is for withdrawn cases in each year. It is therefore reasonable to assume that the total shown for the years prior to 2015–16 comprises mostly if not exclusively withdrawals.

226 Equal Access for Children to Education Settings disadvantageous treatment and the development of a set of requirements on the promotion of equality by public bodies, including local authorities and schools. There is in place a potentially strong framework of protection, but the law is not always able to achieve its desired ends, not least because of the problems over enforcement, which at the time of writing have prompted an inquiry by the House of Commons Women and Equalities Committee.305 This is as much an issue in relation to employment, which was not covered by the above discussion but is relevant because of the view that if the teaching profession more closely reflects the pupil body in terms of gender, ethnicity and disability representation, it could contribute to improved aspiration and achievement levels among pupils in some disadvantaged groups. Education law itself has some elements of protection for teachers against religious discrimination,306 but aside from this, teachers will have to rely on the same measures applicable to employees under the Equality Act 2010 as any other workers. Public bodies clearly still have lessons to learn when it comes to the correct application of the 2010 Act, particularly in the areas of disability discrimination and adherence to the PSED. In the field of education, it has also long been recognised that disadvantage and inequality, which are often associated with race and disability as well as the currently unprotected characteristic of socio-economic status, require specific policy initiatives targeting causes of disadvantage, often involving specific resource allocations. This is illustrated by the education action zones established by ‘New Labour’ under the SSFA 1998 and the Pupil Premium introduced under the Coalition Government, both of which were discussed in Chapter 3.307 There is also the specific legislative provision for identifying and providing specific support for those with SEND, discussed in Chapter 9. Asymmetrical action to counter entrenched disadvantage at institutional or sector levels may be important although can be controversial, as the experience in the US in the context of positive discrimination in university/college admission

305 ‘Enforcing the Equality Act: the law and the role of the EHRC inquiry’, www.parliament.uk/ business/committees/committees-a-z/commons-select/women-and-equalities-committee/inquiries/ parliament-2017/enforcing-the-equality-act-17-19/. Although legal aid may be available for a discrimination claims, concerns about access and coverage have prompted the EHRC’s current (at the time of writing) ‘Legal aid for victims of discrimination’ inquiry: www.equalityhumanrights.com/sites/default/ files/legal-aid-for-victims-of-discrimination-inquiry-terms-of-reference.pdf. On young people’s access to legal aid, see J Kenrick and E Palmer, ‘Access to Justice for Young People: Beyond the Policies and Politics of Austerity’, in E Palmer, T Cornford, A Guinchard and Y Marique (eds), Access to Justice. Beyond the Policies and Politics of Austerity (Oxford, Hart Publishing 2016) 211–234. 306 Under the SSFA 1998, s 59, in most state schools they may refuse to participate in collective worship or teach religious education and in doing so must not be subjected to damage to their employment status or to discrimination in relation to pay or promotion. ‘Reserved teachers’ – those employed in denominational schools as teachers of religion (see ibid, s 58) – are however excepted from this protection: ibid, s 60. Teachers in general have also enjoyed protection against disqualification from being a teacher at a school on the grounds of their religious views, or due to or attendance/non-attendance at religious worship. See also Ahman v Inner London Education Authority [1978] QB 36. 307 See also the discussion in the first edition of this book: N Harris, Education, Law and Diversity (Oxford, Hart Publishing, 2007), 195–222.

Conclusion 227 policies has in particular shown.308 The Equality Act 2010 is not in itself strong on the promotion of asymmetrical positive action aside from the PSED, although it does provide for the taking of ‘proportionate’ action aimed at enabling or encouraging those disadvantaged by a protected characteristic to overcome or minimise the disadvantage, meeting the needs that arise from the characteristic, and encouraging them to participate in activities in which representation among those with the characteristic is ‘disproportionately low’.309 The Explanatory Notes relating to the Act give as a specific example of how that measure would apply that of a school where ‘white male pupils are underperforming at maths’ and the school could therefore ‘run supplementary maths classes exclusively for them’. Inequality is rife in education; anti-discrimination law, while hugely important, is only part of the necessary response to it.

308 See ibid, 180–186, discussing in particular, Regents of the University of California v Bakke 438 US 265 (1978); Hopwood v State of Texas et al. (1996) 78 F 3d 932 (US Ct of Apps (5th Cir)); Grutter v Bollinger 123 S Ct. 2325 (2003); Gratz v Bollinger, 123 S Ct. 2411 (2003); to which has now been added Fisher v University of Texas 136 S Ct 2198 (2016). See further C J Russo, ‘Fisher v University of Texas: Redux and Race-Conscious Admissions Policies: A Never-Ending Saga?’ (2017) 18(2) Education Law Journal 111. See also McColgan (2014) n 267 above, 81–88. 309 EqA 2010, s 158(1), (2) and (4).

5 School Admission Policies and Decisions I. Introduction In Chapter 3 we saw how the schools system in England has become increasingly diverse and disarticulated as a result of policies under different administrations that have resulted in ‘new types of schools being created – and abolished – at frequent intervals by governments of all political persuasions’.1 There is little doubt that the development and expansion of free schools and the various kinds of academy within a system which already comprised a complex mix of community, voluntary and foundation schools has, as Melissa Benn explains, resulted in something of a ‘structural mess’.2 In the reform of the schools system that transformed it into its current fragmented state, beginning in the 1980s, an underpinning rationale for change at virtually every stage was the desirability of extending choice, particularly for parents in the context of selecting a school for their child but also for schools in being able to pursue whichever status met their needs or preferences regarding autonomy and funding and governance arrangements. The increased diversification of the schools system was thus based on twin, linked, objectives of widening choice for parents and enabling individual schools to forge more distinctive identities within a competitive quasi-market of public education.3 Choice continues to be central to education policy development, extending for example to the opportunities for a range of proposers to set up free schools.4 Choice in education may not be centred exclusively on the rights of individual parents and children. Yet as we saw in Chapter 2, it is central to the right to education under the ECHR (A2P1), which includes a requirement that the state respects the right of parents to ensure the teaching of their child in conformity

1 P Woods and T Simkins, ‘Understanding the Local: Themes and Issues in the Experience of Structural Reform in England’ (2014) 42(3) Educational Management Administration and Leadership 324, 326. 2 M Benn, Life Lessons. The Case for a National Education Service (London, Verso, 2018) 39. 3 H Brighouse, School Choice and Social Justice (Oxford, Oxford University Press, 2000) 19. See also P A Woods, C Bagley and R Glatter, School Choice and Competition: Markets in the Public Interest? (London, Routledge, 1998). 4 S J Ball, The Education Debate (3rd edn) (Bristol, Policy Press, 2017) 148. The development of free schools was discussed in ch 3 above.

Introduction 229 with their religious or philosophical convictions. This requirement, while far from guaranteeing individuals freedom of choice in every case (for reasons that were discussed), would certainly provide a rationale for enabling parents with particular religious convictions to enjoy priority for a place for their child at a denominational school serving their religious affiliation if available in the locality. Yet the development of individual choice under domestic legislation from the 1980s onwards is associated most closely with the consumer paradigm, reflecting the way in which market-like competition between providers was introduced into the schools system. Parental choice became the market mechanism determining, in part at least, resource allocations to individual schools, via pupil-led funding. At the same time, choice was also seen as a means of empowerment through which individuals might help to shape the public services they receive by holding the providers to account for their performance.5 The individual’s capacity and opportunity to exercise choice was thus also considered an element of citizenship, which conceptualises a relationship with the state based on rights and responsibilities through which the individual is able to participate socially, economically and in the political sphere and is bound into the services provided by the state. Choice as a means to securing individual gain or opportunity reflects a contractarian model of citizenship, whereas the broader participatory basis to it links to a more solidaristic form of citizenship.6 Unlike the former, the latter ranks individual freedom below the collective goals of social cohesion and mutualism. The idea of the ‘consumer-citizen’ who acts in a self-interested way as a consumer but also has a relationship with the state based on citizenship through societal membership, as for example in the case of someone who serves as a parent governor at a state school,7 attempts to reconcile this dichotomy. The notion of a ‘school system shaped by parents’ in the schools White Paper in 20058 in effect engaged both elements of citizenship. Parents were, for example, promised the opportunity to influence the development of the local schools system by demanding ‘new schools and new provision’ while also serving their own interests in being able to choose an excellent school for their child.9 The 2010 schools White Paper offered parental influence on the system through the opportunity to set up free schools with state support and an increased ability ‘to make meaningful choices about where they send their child to school’.10 Several arguments support individual choice in relation to access to schools. It can be seen to reflect libertarian notions of freedom to control one’s own life,

5 See N Harris, ‘Empowerment and State Education: Rights of Choice and Participation’ [2005] 68(6) MLR 925. 6 H Dean, Welfare Rights and Social Policy (Harlow, Prentice Hall, 2002), 187–8. 7 See, eg, P Woods, ‘Beyond Consumerism – the idea of Consumer-Citizenship’ (1996) 10(3) Management in Education15. 8 DfES, Higher Standards, Better Schools for All (Cm 6677) (London, The Stationery Office, 2005), 23. 9 Ibid, 23–24. 10 DfE, The Importance of Teaching (Cm 7960) (London, DfE, 2010), paras 5.19 and 6.2.

230 School Admission Policies and Decisions but more importantly it is also claimed to serve a broader societal interest in the improvement of educational standards through the impact of competitive market forces. There is also an essentially democratic and egalitarian argument that rights of choice can afford opportunities to everyone regardless of their position in the social hierarchy.11 These are, to a degree, theoretical advantages, because markets are far from perfect, and, in reality, choice tends to underline rather than reduce inequality, as discussed below. There is also a potential benefit to the child’s interests if the parent’s choice results in the child receiving the most appropriate provision and improved life chances or well-being as a result. By exercising choice the parent may be driven by what Wilkins refers to as an ‘uncompromising desire to do the “best” by the child and his or her future welfare; a desire that is encouraged and legitimated through the promotion of values of the market, choice and individualism in education’.12 That benefit from choice rests, however, on an assumption that the parent, who is generally the rights-holder in relation to choice, is not only equipped to make an appropriate choice but is also motivated by the child’s educational and/or other health or social needs rather than by other factors such as personal convenience or prejudice. Since, as discussed below, for the most part the law does not seek to condition choice with reference to the underlying motivations behind it in individual cases, the child’s interests may not always be central to the exercise. Nevertheless, there are strong moral and pragmatic arguments behind parental involvement in the determination of the setting for the child’s education, some of which were noted above, but which also revolve around the normative role of parental responsibility. Garnett argues that choice in education can be seen as a ‘crucial aspect’ of this responsibility.13 It is a responsibility to which an increased burden is now attached, since arguably the harnessing of parental choice in the marketisation of schooling within the state education system has placed considerable pressure on parents to make a positive and effective choice in view of the potential consequences of their decision for their child’s future. The moral emphasis has thus shifted from the exercise of choice as a right to it being an obligation and one that carries a considerable burden. A report by the House of Commons Education and Skills Committee explained the issue well: ‘In an environment in which not all schools are judged to be good enough, the emphasis on parental preference places the responsibility for securing a place in a good enough school on parents’ shoulders’, although parents will face competition that

11 See S Gorard, ‘School Choice Policies and Social Integration: The Experience of England and Wales’, in P J Wolf and S Macedo (eds), Educating Citizens: International Perspectives on Civic Values and School Choice (Washington DC, Brookings Institution Press, 2004), 131–156, 139–141. 12 A Wilkins, ‘Citizens and/or consumers: mutations in the construction of concepts and practices of school choice’ (2010) 25(2) Journal of Education Policy 171, 185. 13 R W Garnett, ‘Regulatory Strings and Religious Freedom: Requiring Private Schools to Promote Public Values’in P J Wolf and S Macedo (eds) n 11 above, 324–338, 325.

Introduction 231 is ‘sometimes frenzied … for places at the most popular schools’.14 Many parents are aware that the stakes can be very high when the decision is made about admission to individual schools, particularly when there is often (depending on the area) such a diversity of schools and quality of provision on offer. Parental participation in decisions about their children’s education has been promoted most markedly, and over an even longer period, in the area of special educational needs and disabilities (SEND), which is concerned with children who, because of their learning difficulties or disabilities, require special arrangements for their education, albeit generally provided in mainstream settings. As discussed in Chapter 9, parents’ rights relating to how and where their children with SEND should be educated are linked to the notion of participation and partnership rather than consumer-citizenship. The idea, advanced by the Warnock report some 40 years ago,15 is that parental knowledge and understanding of the child should complement professional expertise when it comes to resolving such issues in a way that most effectively addresses the child’s needs. Nevertheless, Evans and Vincent consider that the special needs field is as much within an individualistically orientated framework – that is, one that focuses on the claims of the individual for a particular form of treatment or outcome as opposed to one that has a ‘collective orientation’ – as the rest of education.16 Support for this conclusion comes from the way that across both fields there has been, first, a conferment of rights of preference and, secondly, a common likelihood that the parents holding these rights will act out of selfinterest even if their aim is also to benefit their child.17 However, while parental choice in the area of SEND is just as much a part of the decision-making process as it is in the consumer market for school admission, and its realisation is also affected by the limitations to the resources available to satisfy demand, it is not perceived to have a specific role in maintaining competition between providers. Moreover, the needs of the child are more central and made so by the way the relevant legislation is framed, particularly in relation to the approximately one in five children with special educational needs whose require an education, health and care plan (EHCP) to be maintained by the local authority. This more direct focus on the child’s needs has been reflected in the reforms under part 3 of the Children and Families Act 2014 that have brought children and young people themselves into the participatory framework alongside parents in a way that has

14 House of Commons Education and Skills Committee, Fourth Report Session 2003–04, Secondary Education: School Admissions, Vol 1, Report HC 58-1 (London: The Stationery Office, 2004), para 144. 15 H M Warnock (chair), Special Educational Needs: Report of the Enquiry into the Education of Handicapped Children and Young People (London, HMSO, 1978). 16 J Evans and C Vincent, ‘Parental Choice and Special Education’, in R Glatter, P A Woods and C Bagley, Choice and Diversity in Schooling (London, Routledge, 1997), 102–115. 17 But see Wilkins (2010) n 12 above, who found a range of notions of self-interest in relation to the exercise of school choice.

232 School Admission Policies and Decisions not occurred in the general context of school admissions.18 So, given its rather different orientation and focus, the law governing choice of institution within EHCPs is covered separately, in Chapter 9. For children with SEND who do not have or require an EHCP, all of whom will be educated in a mainstream school (unless the parents have made alternative arrangements), the general law on school admissions discussed in the present chapter will be applicable. Moreover, the general statutory principle that children are to be educated in accordance with their parents’ wishes, also discussed in this chapter, is also relevant to all children with SEND. However, its interaction with the law on special educational needs (SEN) is considered in Chapter 9. The development of consumer choice in relation to public services such as education, which was associated particularly with the Thatcher and Major years,19 but was also a ‘generic organizing principle for public sector reform’ under New Labour after 1997,20 has, in relation to its impact, been viewed in negative terms. The problem is that the scope for individualism may compound social inequality, since it favours the better educated and resourced parent, who is more likely to possess advantageous skills and cultural capital. In the case of school admissions specifically, the criticism, considered more fully below, is that it may exacerbate social segregation through the collective effects of the individual choices and the influence of admission policies themselves (including religious segregation resulting from religious priority for admission to denomination schools; racial segregation, in some areas, through the individual school selection choices of parents; and social class segregation due to catchment areas with more expensive houses or the operation of selection by academic ability).21 From a rights perspective, it is important when examining the issue of choice in the context of access to education to note that the law has never provided parents or children with an absolute guarantee that their individual wishes will always be met. Rights have been limited to opportunities to express preferences. Although there has been a legal presumption that such preferences will be met, it is one that can be overridden on the basis of resource constraints or efficiency needs and priorities, or where attendance at the selected institution is judged by the relevant authority to be contrary to the child’s interests or those of others. Thus, for example, while an admissions authority has a statutory duty to meet a parent’s expressed preference for a particular school, this does not apply where, inter alia, ‘compliance with the preference would prejudice the provision of efficient education or the efficient use of resources’.22 Similarly, a local authority must 18 See N Harris and G Davidge, ‘The practical realisation of children and young people’s participation rights: special educational needs in England’ (2019) 31(1) Child and Family Law Quarterly 25. 19 N Harris, Law and Education: Regulation, Consumerism and the Education System (London, Sweet and Maxwell, 1993). 20 E Vidler and J Clarke, ‘Creating consumer-citizens: New Labour and the remaking of public services’ (2005) 20(2) Public Policy and Administration 19. 21 See below and M Feintuck and R Stevens, School Admissions and Accountability: Planning, Choice or Chance? (Bristol, Policy Press, 2013). 22 SSFA 1998, s 86(2) and (3)(a). See below.

‘Pupils are to be Educated in Accordance with the Wishes of their Parents’ 233 name in an EHCP for a child or young person with SEN the school or other institution that has been chosen by the parent, in the case of a child, or by the young person (someone aged 16 plus but under 25) him/herself. But this does not apply where the selected institution is ‘unsuitable for the age, ability, aptitude or special educational needs’ of the child/young person, or the child’s or young person’s attendance there would be incompatible with ‘the provision of efficient education for others’ or ‘the efficient use of resources’.23 Furthermore, as discussed at various points in this book, human rights claims relating to education, particularly those under the ECHR, have made very few inroads into the state’s authority to manage resources in ways that serve collectivist goals based on the need for efficiency, regardless of the religiously and philosophically based arguments by parents for specific forms of provision for their child. This chapter now focuses on choice in relation to access to education and specifically choice of institutional setting. It examines the general principle which is applicable to local authority decision-making and action across a range of education functions that, when powers or duties are exercised or performed, there should be adherence to parental wishes. It then considers the law governing admissions, central to the realisation of choice in education, and assesses its social impact, especially in relation to equality and social cohesion.

II. ‘Pupils are to be Educated in Accordance with the Wishes of their Parents’ Originally contained in s 76 of the Education Act 1944, and now within s 9 of the Education Act 1996, is what looks on the face of it to be a duty of some importance, not least because it cuts across all central and local government statutory functions in relation to education. It also has a specific relevance to rights of choice. Section 9 provides: In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of State and local authorities shall have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure.

The Plowden Report (1967), referring to choice of primary school, said: ‘How far should parents be given a choice? Section 76 of the Education Act gives it to them quite specifically’.24 The report recognised that freedom of choice could be

23 CFA 2014, s 39(3) and (4). See further ch 9. 24 B Plowden (chair), Children and their Primary Schools. A Report of the Central Advisory Council for Education (England) (London, HMSO, 1967) para 120.

234 School Admission Policies and Decisions limited in practice, for example where an area had only one school, but it failed to acknowledge the two inbuilt elements that limit it in any event. First, the general principle of adherence to parental wishes is merely one to which regard must be had. In other words, while the principle must be considered by the relevant authority when exercising its education functions, there is no specific requirement to adhere to the parental wishes. Secondly, the principle is conditioned by the need for ‘efficient instruction’ (the somewhat archaic term ‘instruction’ has been retained from the 1944 Act) and the ‘avoidance of unreasonable public expenditure’. These caveats also formed the basis of the UK’s reservation to the parent’s right in ECHR, A2P1 to ensure education and teaching in conformity with their own religious and philosophical convictions.25 As a result of these conditions attached to the general principle, parental wishes can be easily overridden on grounds of efficiency or cost considerations, which clearly bear heavily on local authorities in particular. A further limitation that has become more applicable in recent years concerns the reduced role of local authorities particularly in areas such as secondary school admissions, since as discussed below the academy sector lies outside its remit. Section 76 of the 1944 Act originated in a part of the Education Bill that was concerned with the duty of LEAs to ensure there were sufficient schools in their area. A government amendment was proposed by R A Butler MP, President of the Board of Education, who said that the parental wishes duty would apply to the whole Bill26 – in other words, across all the various education functions. But in order to make that clearer the new sub-clause was later removed and re-inserted as a separate clause later in the Bill.27 It was clear from the outset that the parental wishes duty offered no guarantees that an expressed choice would be upheld. The official line, outlined in a Ministry of Education circular published in 1946, was that it ‘does not confer on the parent complete freedom of choice’.28 Despite the inherent limitations to the duty this has nevertheless been a provision of sufficient scope to encourage parents to place reliance on it for choice-based claims. As a result, the courts have on numerous occasions over the years had cause to analyse it. As discussed below, the case law confirms the provision’s lack of potency both in relation to school choice and choice of special educational provision, those being the two areas to which the duty is seen as having the greatest relevance. The duty does at least recognise that parents have a moral claim to some measure of influence over their children’s education. In relation to religious preference, the Ministry of Education accepted that LEAs had an obligation to

25 The reservation, as noted in ch 2, commits the UK to ensure the right ‘only so far as it is compatible with the provision of efficient instruction and training and the avoidance of unreasonable expenditure’. 26 HC Debs Vol 397, cols 197–199, 16 February 1944. 27 HL Debs Vol 132, col 864, 12 July 1944. 28 Ministry of Education, Circular No 83, Choice of School (London, Ministry of Education, 1946).

‘Pupils are to be Educated in Accordance with the Wishes of their Parents’ 235 pay particular regard to parents’ wish for their child to be admitted to either a denominational or non-denominational school.29 Another preference, concerning single-sex or mixed schooling, was referred to in the 1953 edition of the Ministry of Education’s circular, which was not withdrawn until 1981.30 However, in a 1972 case in Blackburn, a town with no single sex schools operated by the local authority, a Muslim father who had kept his 13 year old daughter away from school for a month, reportedly because he was concerned that a mixed school might have a bad moral influence on her, had feared that she might be raped on the way to or from school, and was opposed to mixed sex schooling on religious grounds, was not able to escape a fine for breach of his duty to ensure his child’s efficient full-time education.31 Although there was very little discussion of the proposed duty to ensure education in accordance with parents’ wishes when the Education Bill was before Parliament in 1944, one can discern a link with religious preference – as in R A Butler’s comment on the duty during the Commons debates: It is, of course, applicable just as much to the children of one denomination as to those of another, and if certain denominations think their children will get a better chance of being educated according to the wishes of their parents, that must equally apply to a block of children of another denomination. The object is to assist parents to obtain the kind of education they want for their children … though one cannot give an absolute assurance about particular cases which may operate in particular areas.32

Butler was responding to a question about how far a parent’s choice would prevail over the wishes of the local authority. It seems clear that religious motivation was expected to be one of the principal factors behind any parental wishes expressed to LEAs. There was certainly an important religious context to many parts of the Act. The most significant is the Act’s incorporation of denominational schools, as voluntary schools, within the framework of state education.33 This enabled parents’ religious preferences and freedoms to be recognised through the opportunities for their children to receive a free education34 in a Church of England or Roman Catholic school or in a (secular) county school. Furthermore, parents had (and continue to have) a statutory right to withdraw their child from religious education or collective worship at school, both of which were compulsory areas of provision.35 It was also provided that where an LEA considered that suitable education could only be provided for a child at a school with board and lodging,

29 Ibid. 30 Ministry of Education, Choice of School (London, Ministry of Education, 1953). 31 Anon, ‘Perils of a co-ed’, Daily Mail 3 Nov 1972, cited in G R Barrell and J A Partington, Teachers and the Law (6th edn) (London, Methuen, 1985) 31. 32 HC Debs Vol 397, Col 198, 16 Feb 1944. 33 See ch 3, under ‘A system with denominational (‘faith’) and non-denominational schools’. 34 See the EA 1944, s 61, prohibiting the charging of fees for admission to any school maintained by a LEA or for the education provided in it. 35 See ch 7.

236 School Admission Policies and Decisions the LEA had, when making the arrangements for it, to give effect to the parent’s wishes ‘with respect to the religious denomination of the person with whom he will reside’.36 Additionally, the Act stipulated that it could not be a condition of a child’s admission to a county school or a voluntary school that he or she ‘shall attend or abstain from attending any Sunday school or place of religious worship’.37 The centrality of religious freedom to the 1944 Act’s notion of choice is reinforced by the way the parental wishes duty formed the basis of legal claims against local authorities. Prior to 1980 there was no statutory framework governing school admissions specifically. Parents did not acquire any statutory rights in respect of school preference until the Education Act 1980. Section 76 of the 1944 Act was therefore resorted to by some parents in support of claims to a particular kind of education for their child. In Watt v Kesteven County Council,38 the LEA did not maintain its own grammar school but funded places at an independent school. A Roman Catholic man did not want his two sons to attend the independent school and preferred that they should attend a Roman Catholic boarding school, at the LEA’s expense. The LEA refused his request. Denning LJ, in the Court of Appeal, said that the matter did not depend upon the religious views of the parent but was essentially about whether the LEA had an obligation to accede to parental choice. In his view, the 1944 Act required the LEA to ensure there were schools available for all the children in the area, which it was doing, and that the duty to have regard to parents’ wishes was only a – general principle [which] leaves it open to the county council to have regard to other things as well, and also to make exceptions to the general principle if it thinks fit to do so. It cannot therefore be said that a county council is at fault simply because it does not see fit to comply with the parent’s wishes.39

The principle was at issue again over a matter of religious preference in Cumings v Birkenhead Corporation.40 The LEA had stipulated in relation to the transfer from primary to secondary school that those children who attended Roman Catholic primary schools would only be considered for places at secondary schools of that denomination. Their parents would not be able to select a (non-denominational) county school. The rationale for the policy was that there would not be sufficient places at county and Church of England secondary schools to accommodate children other than those attending non-Roman Catholic primary schools. The authority nevertheless made provision for c onsideration of exceptional cases. The three claimants, who were parents of pupils allocated places at a Roman Catholic secondary school and were refused places at a nonRoman Catholic school, challenged the legality of the LEA’s policy. However, in

36 EA

1944, s 50(2). s 25(3). 38 [1955] 1 QB 408. 39 Ibid at 424. 40 [1971] 2 All ER 881. 37 Ibid,

‘Pupils are to be Educated in Accordance with the Wishes of their Parents’ 237 the High Court, Ungoed-Thomas J held that there was no unreasonableness or irrationality in the admissions policy. It was argued for the parents that the restriction of choice on the basis of religious association derived from the category of school attended was contrary to public policy on religion in education, since it involved ‘involuntary segregation’ or involuntary ‘educational apartheid’ on religious grounds and as such was contrary to the ‘great principle that that religion is totally voluntary’ embodied in the Act. In response, Ungoed-Thomas J referred to the parents’ religious freedom over their child’s religious education and collective worship and to the absence of religious objection to the policy. In the Court of Appeal in this case, however, the focus was squarely on s 76. It was claimed that the failure to take account of parental wishes, combined with the fettering of discretion, rendered the LEA’s policy of segregation of pupils by religion under admission arrangements unlawful. Lord Denning MR, giving the lead judgment, repeated the views on the scope and purport of s 76 he had given in his judgment in Watt (above). He also said that the LEA was entitled to have regard ‘not only to the wishes of the parents of one particular child, but also the wishes of parents of other children and of other groups of children’.41 The LEA was having regard to the wishes of the generality of parents with children at Roman Catholic primary schools or other schools. Lord Denning seemed to believe, although he did not specifically articulate this view, that the admissions policy could be consistent with parental wishes for the purposes of s 76 even though it might not accord with the wishes of every individual parent. He also rejected the argument that there was an unlawful fettering of discretion, because there could be exceptions in individual cases. He found the expressed rationale given for the policy indicative of a ‘sound administrative policy decision’ in the circumstances by the LEA.42 It may be noted in passing here that a similar conclusion was reached as to the legality of an almost identical admissions policy operating in Lancashire in the early 1990s, in R v Lancashire CC ex parte F.43 The effect of the admissions policy was that parents of pupils at a Roman Catholic primary school were allocated places at Roman Catholic secondary schools and were at a disadvantage if wishing their children to be admitted to a county secondary school unless there were exceptional reasons of a medical, social or welfare nature or their children had a sibling at the preferred school. Here the policy was found not unreasonable (in the sense explained by Lord Diplock in the Tameside case as being that which ‘no sensible authority acting with due appreciation of its responsibilities would have decided to adopt’44) because it was intended to avoid the consequences of a demand for places at county schools from parents of Roman 41 Ibid, 884H 42 Ibid, 885H-J. 43 [1995] ELR 33. 44 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1064.

238 School Admission Policies and Decisions Catholic primary school pupils that could mean that other parents might be unable to secure a place for their child at such schools while also, on grounds of religion, not having the option of a place at a Roman Catholic secondary school.45 Kennedy LJ accepted that the admissions policy ‘sounds discriminatory and unsustainable’, but he regarded it as reasonable given the problem faced by the local authority in ensuring all children could secure a secondary school place.46 Although a parent’s wishes were at issue, s 76 itself was not referred to in the decision, perhaps because it was not considered worth arguing in light of Cumings. But despite the slightly different legal bases to the decisions, Cumings and F each confirmed the legitimacy of a policy which had the effect of segregating pupils by religion. One question arising from Lord Denning MR’s judgment in Cumings is whether the parental wishes duty has both an individualist and collectivist orientation. Lord Denning clearly considered that it did, but that represented a divergent view from the one taken by Goff J five years earlier in Wood v Ealing LBC.47 In Wood a number of parents had opposed the LEA’s plans to introduce comprehensive schools in the borough. They argued, inter alia, that the authority had failed to have regard to their wishes and so was in breach of s 76. Goff J accepted a construction of s 76 as not meaning that pupils generally had to be educated in accordance with the wishes of parents as a body or group and that all that the duty implied was that ‘an individual pupil should be educated in accordance with the wishes of that individual pupil’s individual parent’.48 He considered ‘it would be wholly impractical if section 76 meant parents in general, since they would almost certainly not agree in most, if not all, cases and would be, moreover, a constantly fluctuating body’.49 However, the fact that the parental wishes duty applies to the Secretary of State as well as LEAs suggests that it was intended to have a collectivist orientation. The Secretary of State has no direct involvement in decisions on educational arrangements for individual children, except in the rare instance of deploying a statutory power, on a complaint from a parent, to give directions to a local authority or school.50 In 1944, LEAs had a more direct involvement in the operation of individual schools than local authorities do today; nevertheless, the duty still seems to be applicable to local authorities’ overarching responsibility for the organisation of schooling and for general policy on schools in their area as well as to individual parents’ wishes regarding educational arrangements. The identical provision in Scotland, s 28(1) of the Education (Scotland) Act 1980, was applied in a partly collective context by the Outer House in

45 Note

43 above, per Kennedy LJ at 41C-D. at 41A-B. 47 [1967] Ch 364. 48 Ibid at 373A-B. 49 Ibid at 373B-C. 50 EA 1996, ss 496, 497 and 497A. 46 Ibid

‘Pupils are to be Educated in Accordance with the Wishes of their Parents’ 239 Kenney v Strathclyde Regional Council.51 A complaint was made by an individual parent against the education authority’s arrangements to bus children to temporary teaching accommodation while building works were carried out at their school. The authority had consulted with parents by circular. Of those replying, 133 had supported the arrangements and only 15 had objected. The c omplainant nevertheless relied on s 28(1) in support of his complaint. However, Lord Ross not only applied Denning LJ’s view in Watt (above) as to the nature of the duty (as no more than a ‘general principle’ to be considered alongside other relevant matters) but also referred to the evidence that the views of parents as a whole on the policy had been considered. Section 28(1) was again considered, by Lord Keith, in another Scottish case, this time in the House of Lords: Harvey v S trathclyde Regional Council.52 Lord Keith considered it applicable to an education authority decision to close a school, a decision which affected a large number of parents and children. The decision could be unlawful if it were shown that the authority ‘paid no regard at all to the general principle under section 28(1), or paid it a degree of regard lesser than any reasonable education authority would have paid’,53 neither of which were established in this case. So it seems clear that the parental wishes duty has been construed as applicable to the wishes of individual parents or those of parents collectively. Although not referred to in any of these (admittedly pre Pepper v Hart54) judgments, the brief comments of R A Butler MP, in presenting the 1944 Act provision in the House of Commons, are clearly supportive of this dual orientation: It may be that a child is suitable, or not suitable, for a particular form of secondary education, there may be a bloc of parents who desire a form of technical education, or it may be that there are parents who desire boarding education. All these demands will be very easily met by the insertion of this general duty …55

Over more recent decades, the reliance placed on the parental wishes duty has, though, mostly been in claims concerned with decisions relating to individuals. In R v London Borough of Lambeth ex parte G,56 for example, a 17 year old student was refused a local authority grant to study an A level course in a school in Wandsworth because the policy of the respondent authority, Lambeth, was not to make such an award where an equivalent course was available within its own area. The student had attended the school in Wandsworth from the age of 11 but he and

51 1986 SLT 490. 52 1989 SLT 612, at 615. 53 Ibid at 615. 54 [1993] AC 593. This decision sanctioned reference to Parliamentary proceedings as an aid to interpretation of statutory provision. See (Justice) K Mason, ‘Legislator’s Intent: How judges discern it and what they do if they find it’, in C Stephanou and H Xanathi (eds), Drafting Legislation. A Modern Approach (Aldershot, Ashgate, 2008), 49–62. 55 HC Debs Vol 397, Col 199, 16 Feb 1944. 56 [1994] ELR 207.

240 School Admission Policies and Decisions his family had subsequently moved to Lambeth. He had written to the respondent authority explaining that his parents had chosen the school for him because, as Muslims, they wanted him to attend a boys-only school. Lambeth’s A level course would not be in such a setting. The authority did not establish any financial justification for the policy and Potts J held that there was a failure in the EA 1996, s 9 duty to consider the parent’s wishes and the authority had not ‘advanced good reasons for not giving effect to them’.57 A majority of the s 76/s 9 claims in respect of individuals have, however, arisen in connection with children with SEN. In particular, because the right (now in the CFA 2014) to express a preference for a school or other institution to be named as the placement in a child’s education, health and care plan only applies to state-maintained institutions, parents seeking a named placement in the independent sector are merely left with their parental wishes right under s 9 of the EA 1996. But in view of the extra cost of special educational p rovision, particularly when it involves a placement in a private sector setting, the question of resources becomes a very limiting factor. Many of the SEN cases where s 9 is at issue are concerned with the method of calculating the expenditure involved in providing for the child’s needs, so that it can be determined whether the local authority is entitled to consider that the extra cost involved in a placement preferred by the parents involves ‘unreasonable public expenditure’.58 The question of what amounts to ‘public expenditure’ for s 9 purposes was considered by the Court of Appeal in Haining, in which it was held that it covers not merely education costs per se but also other costs to the local authority of a particular placement.59 Here the parent wanted an independent school residential placement for their son, aged 12, who had SEN. The local authority, however, favoured a placement in a maintained school which would have cost over £30,000 per annum less. But the authority had not included the cost of the respite care, to be met from its social care budget, that would be needed if its choice prevailed. If it was included the cost difference between the two placements was very small and so the parent’s choice was unlikely to be considered to involve unreasonable public expenditure. Giving the Court’s judgment, Lord Donaldson MR said that ‘public expenditure’ should be considered in the round and included any expenditure by a public body and was not confined to education expenditure per se.60 Section 9 is discussed further in relation to SEN in Chapter 9. In the chapter it is noted that the CFA 2014 has given those aged 16 or over independent rights of participation, in place of their parents, in relation to decisions about a

57 Ibid at 214D-E. 58 See in particular Oxfordshire County Council v GB and Others [2001] EWCA Civ 1358; [2002] ELR 8; EH v Kent County Council [2011] EWCA Civ 709; [2011] ELR 433; and London Borough of Hammersmith v L [Etc] [2015] UKUT 523 (AAC); [2015] ELR 528. 59 Haining v Warrington Borough Council [2014] EWCA Civ 398; [2014] ELR 212. 60 Ibid at [27].

Fair Admissions? 241 range of matters including placement. Consequently, these young people rather than their parents now have a right to express preferences. But s 9 of the 1996 Act only refers to the wishes of parents, so there is an apparent inconsistency between the autonomy conferred on young people by the 2014 Act and the exclusive right of parents under the 1996 Act. However, s 19 of the CFA 2014, in requiring local authorities to, inter alia, have regard to ‘views, wishes and feelings of … the young person’ when exercising their SEN functions,61 does bring the position of young people with SEND and that of parents more into line in this context. It also addresses the requirement in Art 12 of the UNCRC that the state give due weight to the wishes of the child in all matters affecting him/her, both in relation to those young people aged 16 and 17 (who are thus still children for the purposes of the Convention) and, because the s 19 CFA duty also applies to the wishes of children, those aged under 16. We have seen that when put to the test, the parental wishes duty has offered little benefit to those placing reliance on it in choice-based claims that their children should be educated in particular institutions or settings. It is still utilised in such claims, however, but only residually, where there are no other statutory bases for the potential realisation of choice or where they are available but there is a wish to reinforce the case.

III. Fair Admissions? A. Introduction and Background We saw in Chapter 2 how the school admission of some children arises from an urgent need in the course of the school year to secure a placement for a child who, for example, has been excluded from school. However, for the overwhelming majority of children, admission to a school is at the start of the school year and as part of the normal admissions round. For most of them, the school to which they are admitted has been chosen by their parents, often but by no means always in consultation with the child him/herself. We saw earlier how the duty placed on the state to have regard to the general principle that children are to be educated in accordance with their parents’ wishes62 has been relied upon, albeit with little success, in support of individual choice of school. As was shown, by the 1970s it was clear from the developing case law on the scope and effect of this duty that parents could not point to any substantive rights over school choice. Local

61 They must also have regard to the wishes of children (under 16s, in the specifically SEN context) and their parents: see ch 9 below. 62 The duty rests with local authorities and the Secretary of State: EA 1996, s 9, re-enacting EA 1944, s 76.

242 School Admission Policies and Decisions authorities had more or less unfettered discretion over the allocation of school places. In the 1980s – especially after the Education Reform Act 1988, when the capping of places at individual schools had to give way to an ‘open enrolment’ policy63 – the legal position changed significantly. Local authorities and schools, as admission authorities (see below), became subjected to a framework of regulation over school admissions. An important element of this was the requirement introduced by the EA 1980 that they afford parents an opportunity to express a preference for a school for their child. The 1980 Act, moreover, laid down a presumption that the parents’ choice was to be granted, albeit with efficiency or resource factors able to trump it. The Act was also significant for establishing a ministerial power to require local authorities to publish prescribed categories of information about schools. Regulations provided for the publication of information about schools’ curricula, homework policy, uniform requirements and public exam results for those aged 15 or over, among other matters.64 The requirement to publish this information had, and continues to have,65 a dual purpose of facilitating the exercise of parental choice and increasing the accountability of schools. The 1980 Act also introduced a right of appeal for parents against an admission decision, thereby enabling challenges to be pursued without, at least at this stage, recourse to judicial review. Between 1985 and 1997 the annual number of appeals to local appeal panels increased eightfold, from 9,100 to 72,800.66 Appeal totals have fluctuated over the years but for past three years there have been approximately 60,000 appeals lodged each year and in 2017–18 the total was 60,718, of which 44,510 were heard.67 As the ensuing discussion will show, these remain the essential pillars of the law governing school admissions. These rights are of considerable social importance in view of the very large number of admission decisions in England made each year – 1.58 million

63 Namely, that it would not be possible to refuse admission of a child to a school on the otherwise permitted ground of incompatibility with efficient education or the efficient use of resources, in a situation where the admission total for the year would be below the school’s ‘standard number’: Education Reform Act 1988, s 26. See further N Harris, Law and Education: Regulation, Consumerism and the Education System (London, Sweet & Maxwell, 1993), 159–60. 64 Education (School Information) Regulations 1981 (SI 1981/630). 65 See EA 1996, s 537 and the School Information (England) Regulations 2008 (SI 2008/3093), as amended by the School Information (England) (Amendment) Regulations 2016 (SI 2016/451), the School Information (England) (Amendment) Regulations 2017 (SI 2017/37) and the School Information (England) (Amendment) Regulations 2018 (SI 2018/466). 66 DfE figures cited in N Harris, ‘The developing role and structure of the education appeal system in England and Wales’ in M Harris and M Partington (eds), Administrative Justice in the 21st Century (Oxford, Hart Publishing, 1999), 296–325, 297. A small number of the recorded total of appeals pre-1984 concerned SEN. After that date, SEN appeals were heard by the Special Educational Needs Tribunal, and now by the First-tier Tribunal (Health, Education and Social Care Chamber). 67 DfE, Admission appeals for maintained and academy primary and secondary schools in England 2017/18 (DfE 2018) Table A, https://assets.publishing.service.gov.uk/government/uploads/system/ uploads/attachment_data/file/735139/2018_Admissions_Appeals_Release.pdf.

Fair Admissions? 243 in 2017–1868 – and because in these decisions the stakes are so high. Schools are so diverse in character (religious or otherwise) and perceived quality. From an individual parent’s perspective these factors together with issues of convenience give particular schools varying degrees of attractiveness. A parent is likely to want a place at a school reasonably near their home and, if there are two or more children at the same stage of schooling (ie primary or secondary education), may prefer them to be educated at the same school. So there will be a high value attached to the choice to be made. The critical factor is that children’s life chances may in part hinge on the school they attend, and parents know this. Since individual schools have a finite number of places and popular schools will always be unable to satisfy the demand for entry there will in any year be significant competition for places. Parpworth explains how the pressure some parents may feel could make them prepared to ‘lie about where they live in order to secure a place for their child at the preferred school’; and he argues that there needs to be a new criminal offence of providing false or misleading information in support of an admission application, the current criminal law being inadequate to deal with this behaviour.69 A typical case was one where the parent was found to have forged a tenancy agreement to show an address within the catchment area of a preferred school.70 It was reported in 2016 that there had been a 50 per cent increase in cases where allocated school places had been withdrawn due to the discovery that the application by the parents was fraudulent.71 The DfE’s School Admissions Code sanctions withdrawal of a place in cases where it was offered in response to a fraudulent or misleading application.72 (The place can also be withdrawn if made in error.73) In the admission process itself, the role played by the admissions criteria is crucial, since they are used to prioritise the competing claims for places. They are often referred to as ‘oversubscription criteria’, because aside from factors related to academic ability in schools permitted to rely on selection (discussed below), they come into play when the number of applicants to a school exceeds the places it has available to offer in any particular year. It has come to be recognised just how far these criteria may use methods of differentiation that reinforce inherent inequalities, particularly those related to socio-economic status, arising from 68 Ibid. 69 N Parpworth, ‘Criminalising the Provision of False or Misleading Information in a School Application Form’ (2015) 16(3) Education Law Journal 166, 166 and 170–72. 70 Anon, ‘Parent forged document to get place at chosen school’, The Times, 23 Sept 2014. 71 Anon, ‘More parents lose school places for lies’, The Times, 9 Jan 2016. 72 See DfE, School Admissions Code (2014) paras 2.12 and 2.13. On the binding status of the Code, see below. 73 Ibid, which however also states (at para 2.13) that if the child has already started to attend the school account needs to be taken of the length of time he/she has been there. Withdrawal to correct an error may be permissible notwithstanding any legitimate expectation which has arisen, as in one case involving an offer made by mistake and another where the local authority’s correspondence was ambiguous and the parent mistakenly believed there was an offer: R v Beatrix Potter School ex p. K [1997] ELR 468; R v Birmingham City Council ex p L [2000] ELR 543.

244 School Admission Policies and Decisions school selection, as discussed below. They have also contributed to the wider social effects of school choice and admissions policy and practice in reinforcing social segregation, an issue discussed earlier and reflected upon further below. As we shall also see, the admission criteria have also helped to make school admissions a prime site of legal conflict. It is important to understand that the rights that parents hold in the school admissions system represent not so much a democratisation of school choice but rather a core element of the quasi-market based on consumer choice and provider accountability that the 1980s reforms set out to create. The development of the quasi-market had a political purpose of loosening local authority control over schools, offering the promise of greater opportunity to parents, and incentivising schools to raise standards of provision and levels of attainment at little additional overall public expense.74 But a fundamental problem with it is that a quasi-market competition-based system generates inequity. As Ball explains, ‘“Choice policies” create social spaces within which class strategies and “opportunistic behaviours” can flourish and within which the middle classes can use their social and cultural skills and … advantages to good effect’.75 Because self-interest is activated it is also seen as working against the solidaristic notion of citizenship, discussed earlier. These negative effects of the quasi-market for school places were acknowledged under the Labour Government 1997–2010, whose 2005 White Paper, for example, while on one level seeing the solution to inequity as lying in making ‘more good places and more good schools’ available, also acknowledged that as some schools would ‘inevitably be oversubscribed and will not be able to offer places to everyone who would like one’ there was a need for an ‘open and fair’ admissions process in which ‘the less affluent are not disadvantaged’.76 This policy aim led to statutory changes and a new admissions code – the requirement on the Secretary of State to make and from time to time revise such a code having been first introduced under the SSFA 1998.77 These changes were ostensibly intended to ensure a more level playing field for admissions decision-making. The EIA 2006 changed the legal status of the admissions code by requiring admission authorities to act ‘in accordance with’ it78 rather than, as previously, merely having to have regard to it. It also strengthened the role of local ‘admission forums’, comprised of representatives of the LEA, diocesan authorities, head teachers or governors of schools and parent representatives, which had been introduced by the EA 2002 to advise LEAs and admission authorities on admission matters – advice to which regard was required to be had by the recipients.79 Admission forums were

74 See Feintuck and Stevens n 21 above. 75 Ball n 4 above, 143–44. 76 DfES n 8 above, para 3.2. 77 SSFA 1998, ss 84 and 85. 78 SSFA 1998, s 84(3), as amended by the EIA 2006, s 40(4). 79 SSFA 1998, s 85A, inserted by the EA 2002, s 46; and see also the Education (Admission Forums) (England) Regulations 2002 (SI 2002/2900). A more flexible composition with representation of other

Fair Admissions? 245 considered to perform a valuable role and the House of Commons Education and Skills Committee recommended an extension of their powers to enforce good practice.80 The EIA 2006 enabled the forums to publish reports on admission matters and to obtain information from schools to facilitate this process.81 The Labour Government also made efforts to ensure that the admissions process itself was fairer. The EIA 2006 introduced a ban on interviews for school places,82 which were seen as disadvantageous for children and families from less well educated or less well-heeled backgrounds. Moreover, the School Admissions Code contained provisions designed discourage practices or admission criteria which would give an advantage to better-off parents – for example, having an expensive school uniform or required sports clothing which may have deterred some less well-off applicants, or giving preference to parents willing to make a financial contribution to the school. The Code warned against admission arrangements and other school policies which might ‘unfairly disadvantage, either directly or indirectly, a child from a particular social or racial group, or a child with a disability or special educational needs …’ and also called for ‘admission arrangements, practices and oversubscription criteria that actively promote equity, and thus go further than simply ensuring that unfair practices and criteria are excluded.’83 Among the practices it sought to ban were requesting that parents provide information about, inter alia, their achievements or educational backgrounds, occupational backgrounds, criminal convictions or marital status, or their or their children’s hobbies or society memberships (although faith schools could still ask about membership of or relationship with a religious institution or body). It prohibited the imposition of a requirement that parents ‘agree to support the ethos of the school in a practical way’.84 The Code was broadly tolerant of the use of a ‘lottery’ process, or ‘random allocation’, as a potentially fair way of ensuring greater equity in school admissions. The role of policing admission arrangements and ensuring compliance with the Admissions Code became centred on the Office of the Schools Adjudicator, discussed below.85 Viewed together, these policy developments during the period of Labour Government 1997–2010 represented important attempts to make the admissions allocation system more equitable. The various extensions of anti-discrimination law, which covers admissions and was discussed in Chapter 4, such as the inclusion of disability discrimination,86 also represented an advance during this period.

religious bodies in the area was subsequently established: the School Admissions (Local Authority Reports and Admission Forums) (England) Regulations 2008 (SI 2008/3091). 80 N 14 above, para 116. 81 SSFA 1998, s 85A as amended by the EIA 2006, s 41. See also SI 2008/3091 n 79 above. 82 EIA 2006, s 44, inserting SSFA 1998, s 88A. 83 DCSF, School Admissions Code (2010) para 1.72. 84 Ibid, paras 1.78 and 1.88. 85 School adjudicators were introduced under the SSFA 1998, s 25. 86 Via the Special Educational Needs and Disability Act 2001.

246 School Admission Policies and Decisions However, set against this general policy direction was the continuing application of admission criteria that tend to contribute to social stratification and segregation – in particular, catchment areas, faith-based criteria for denominational schools, and academic selection for grammar schools, all discussed below. Nevertheless, the reforms were important in looking at the admission process much more from a parent’s perspective and by acknowledging that placing an onus on the parent to select a school for their own child, while offering the possibility of social advancement, also risked a reinforcement of inherent social disadvantage. Parents’ capacity as school choosers has long been recognised to be closely linked to their social status.87 To alleviate the disadvantage for parents lacking the capacity and resources to navigate the admission process successfully, the 2005 White Paper proposed ‘a network of choice advisers – people based in the community who can offer independent, unbiased advice and raise the interest, expectations and aspirations of those who may not previously have felt that they had any real choice’.88 Disadvantaged areas, where parents were considered to be least well equipped to make effective choices, were the target for this support.89 The EIA 2006 placed local authorities under a duty to provide advice and assistance to parents in their area in exercising preference under local admission arrangements.90 Free transport for low income families to enable them to choose a school further from home than might otherwise be affordable, was also promised by the White Paper91 and provided for by the 2006 Act.92 The above framework has broadly been maintained under the administrations post 2010. The current School Admissions Code (2014), for example, prescribes as unacceptable factors in the admission process an almost identical list relating to parental background etc as that reflected in the 2010 Code.93 But a new threat, and even greater complexity, has resulted from the expansion of the academy sector and with it the growth in the number of separate admission authorities, such that four in five schools in effect have responsibility for their own admissions, making it more difficult to police admissions and ensure fairness.94 There was also concern at the time that the Education Bill was before Parliament in 2011

87 S Gewirtz et al, Markets, Choice and Equity in Education (Buckingham, Open University Press, 1995). 88 Note 8 above para 3.12. 89 Ibid, paras 3.11 and 3.12. 90 EIA 2006, s 42, inserting SSFA 1998, s 86(1A). 91 Note 8 above, para 3.15. 92 EA 1996, s 508B and Sch 35B (read with s 512ZB), inserted by the EIA 2006, s 77 and Sch 8. Essentially those covered by the arrangements are to include children with SEN, those entitled to free school meals, and those from families entitled to maximum working tax credit (or the equivalent under universal credit: see the amendment made to s 512ZB of the 1996 Act by the Welfare Reform Act 2012, Sch 2, para 39). 93 See DfE, School Admissions Code (2014) paras 1.8–1.10. 94 See F Millar, ‘Schools admissions are a mess – and the white paper a lost chance to sort them’ The Guardian (online) 9 May 2016, www.theguardian.com/education/2016/may/09/school-admissionsmess-white-paper-academies.

Fair Admissions? 247 about the proposed abolition of the requirement for an admission forum, on the basis that it would reduce the scope for effective local scrutiny of admission arrangements.95 The Government defended the measure as providing flexibility for local authorities to determine how to involve their local communities in monitoring admissions and argued that while some admission forums had been judged ‘very useful and always quorate’ others had been found by local authorities to be ‘costly and unproductive’.96 A reduction in bureaucracy was another reason given for the reform.97 The Government also contended that the parental voice could still be heard as a result of the requirement that parents be consulted over admission arrangements and in the exercise by them of their right to lodge objections to them.98 The admission forums were duly abolished under the EA 2011.99 Today, it is the Office of the Schools Adjudicator (OSA) that provides the principal safeguard of fair admissions, but it is important to understand that it is unable to guarantee fairness in the outcome of every admission decision. The School Adjudicator’s role, which includes consideration of objections to admission arrangements, is considered below.

B. The Role of Admission Criteria in Determining Priority for Places at Individual Schools The function of school admission criteria is, as noted above, to provide the basis on which decisions regarding the admission of individual children to a school are made. In particular, they come into play when it is necessary to determine which children should have priority for admission in circumstances when the number of applicants exceeds the number of places available. While the lawfulness of some of the commonly used criteria has been assessed judicially, and the case law represents a key part of the legal framework and includes cases where the criteria and their application have been tested for compliance with the ECHR, the legitimacy and/or force of some criteria hinges on legislation and what are in effect mandatory provisions within the School Admissions Code. As noted above, admission authorities must act in accordance with the Code;100 in the case of academies, such a duty is set out in their funding agreement with the DfE although may be varied by the Secretary of State ‘where there is a demonstrable need’.101 95 Under the EA 2011, s 34. See the comments in the memorandum from Comprehensive Future submitted at the time the legislation was before Parliament: https://publications.parliament.uk/pa/ cm201011/cmpublic/education/memo/e50.htm. 96 House of Commons Written Answers, col 888W, 29 June 2011, Nick Gibb MP Minister for Schools. 97 DfE n 10 above, para 5.34. 98 Ibid. This consultation requirement is in SSFA 1998, s 88C and the School Admissions (Admission Arrangements and Co-ordination of Admission Arrangements) (England) Regulations 2012 (SI 2012/8). 99 EA 2011, s 34. 100 SSFA 1998, s 84(3), as amended by the EIA 2006, s 40(4). 101 DfE, School Admissions Code (2014) para 4.

248 School Admission Policies and Decisions There has not been much change over the years in the most commonly adopted admission criteria. Information based on surveys of secondary school admissions,102 for example, shows that in 2003–04 some 96 per cent of schools applied the criterion that the child already had a sibling at the school; the equivalent figure in 2012 was 97 per cent. Home to school distance was a criterion used by 86 per cent of schools in 2003–04 and slightly more, 93 per cent, in 2012. Residence in a defined catchment area drawn up by the admissions authority was used in 60 per cent of schools in 2003–04 and 64 per cent in 2012. The introduction of a duty to ensure that looked after children103 (and those who have ceased to be looked after) are given the highest priority for admission to a school104 has not surprisingly led to this being the most commonly used criterion, indeed used by all state schools. The duty to prioritise looked after children does not, however, apply to a grammar school which selects wholly on the basis of ability and accords priority to the highest ranked applicants under its selection test.105 Attendance at a feeder primary school is another fairly commonly adopted criterion, used in relation to nearly 40 per cent of schools in 2012.106 The Code advises that the adoption of a feeder school admission criterion must be ‘made on reasonable grounds’.107 Clearly there is a risk that it could impact unduly negatively on parental choice. In denominational schools, religious criteria are obviously also applied, although there are concerns that they often lack precision (particularly in relation to how a commitment to the particular faith is to be judged) or can be manipulated by parents who, for example, start to attend church regularly or volunteer to assist with parish events only in preparation for a forthcoming school admission application. As the discussion of the London Oratory School case below also illustrates, the factors used to judge a faith commitment can sometimes privilege applicants from more advantaged backgrounds and thus work against notions of equity. Faith schools are, overall, admitting pupils who on average have higher levels of attainment and less eligibility for free school meals than pupils in nonfaith schools,108 but this may be due to the parental aspirations underlying

102 House of Commons Education and Skills Committee n 14 above, para 56, citing research by Professor Anne West at LSE; and P Noden, A West and A Hind, Banding and Ballots. Secondary School Admissions in England in 2012/13 and the Impact of Growth of Academies (London, Sutton Trust, 2014), table 1. 103 As defined in the Children Act 1989, s 22(1), being children in the care of the local authority or being provided with accommodation by a local authority in the exercise of its children’s services function. 104 Initially introduced via the Education (Admission of Looked After Children) (England) Regulations 2006 (SI 2006/128) made under the SSFA 1998, s 89(1A) (inserted by the Education Act 2005, s 106 and since repealed and replaced by the Education and Skill Act 2008, inserting SSFA 1998, s 88B); and see also the School Admissions (Admission Arrangements and Co-ordination of Admission Arrangements) (England) Regulations 2012 (SI 2012/8), reg 7. 105 SI 2012/8 (ibid), reg 8. 106 Noden et al n 102 above. 107 DfE, School Admissions Code (2014) para 1.15. 108 Noden et al n 102 above, 34.

Fair Admissions? 249 school selection rather than a deliberate policy to skew admissions criteria to ensure academically higher calibre intakes. Nevertheless, faith schools often have very complex admission criteria (see, for example, those used by the London Oratory School cited below) and, according to Allen and West, ‘it is possible that parents from higher social class backgrounds are better able to negotiate the admissions process and how to meet specific admissions criteria’.109 Allen and West argue that faith schools should be required to widen access to non-faith children in order to reduce inherent class bias in admissions.110 This issue is discussed further below. Other criteria are used, albeit by a minority of schools. One is banding, whereby the selection of pupils is based in part on ensuring that the intake is broadly reflective in terms of academic ability of a defined comparator group, whether for example the children in the local area or nationally. Another criterion is aptitude, which as a form of selection is also legally permitted, as discussed below. Also used in around half of secondary schools is random allocation, mostly as a tie-break following the application of other admission criteria.111 The School Admissions Code permits random allocation but not if it is used as the ‘principal oversubscription criterion’.112 Random allocation is also used for school admissions in some other countries, such as the US, New Zealand and Sweden.113 Feintuck and Stevens explain that using random allocation as a tie-break at the latter stages of the admission decision making process means that it will have a neutral impact on social equality.114 Random allocation, or school place ‘lotteries’ as they are sometimes labelled, are often regarded as bringing fairness to the admissions process by ‘sweeping away middle-class advantages’.115 Yet if random allocation was the principal basis of allocation it would work against the notion of rational and just decision making that is a normative expectation in the distribution of public resources to individual citizens and which, in the context of education, would need to involve some element of targeting of provision on the basis of objectively determined need. As Feintuck and Stevens argue, to actively prefer randomness in and of itself is to argue that the outcomes of random distribution of school places would be preferable to, or at least as satisfactory as, any reasoned system, and hence to choose to demote reason, a value generally fundamental to our polity.116

109 R Allen and A West, ‘Why do faith schools have advantaged intakes? The relative importance of neighbourhood characteristics, social background and religious identification amongst parents’, (2011) 37(4) British Journal of Educational research Journal 691, 707–8. 110 Ibid, 709. 111 Noden et al n 102 above. 112 DfE, School Admissions Code (2014) para 1.34. 113 Noden et al n 102 above, 17–9. 114 Feintuck and Stevens n 21 above, 147. 115 L Elliot Major and S Machin, Social Mobility and Its Enemies (London, Pelican, 2018) 205. 116 Feintuck and Stevens n 21 above, 170.

250 School Admission Policies and Decisions The courts have sanctioned the use of admission criteria provided they are r easonable and rationally-based and as long as there remains scope for the exercise of discretion in individual cases.117 Thus a Roman Catholic school for girls was held to be entitled to give a higher priority to members of that faith than to girls of Muslim or Hindu faith.118 In Greenwich,119 Parker LJ commented that a sound and lawful policy might include sibling priority or home to school proximity.120 The legitimacy of a sibling connection priority was confirmed in R (L) v The Independent Appeal Panel of St Edward’s College.121 However, the School Admissions Code emphasises that admissions policies using sibling connection should be clear about what ‘sibling’ means.122 Without a sibling criterion there is obviously a greatly increased risk that siblings may end up attending different schools, which could at the very least cause great inconvenience to the parents. Indeed, it has been argued that the separation of siblings might represent an unjustifiable interference with private and family life for the purposes of Art 8 of the ECHR. In R (O) v St James RC Primary School Appeal Panel, however, Newman J accepted, without deciding, that while Art 8 rights could be at issue in admissions decisions, the Article conferred ‘no absolute right to have a child admitted to a school already attended by a sibling.’123 But subsequently Collins J in R (K) v London Borough of Newham124 implied that such claims might in the future be considered more weighty: The desirability of enabling children to attend the same school as siblings is already recognised and most … perhaps all, admissions policies have that as a very important criterion. That is now rendered the more necessary because of the provisions of Article 8 of the Convention.125

In School Admission Appeals Panel for the London Borough of Hounslow v The Mayor and Burgesses of the London Borough of Hounslow126 it was argued that an admissions policy that gave applicants living in priority admission areas proximate to the school a higher priority than those living elsewhere but

117 See R v London Borough of Greenwich ex p. Governors of John Ball Primary School [1990] Fam Law 469 (1990) 154 LGR 678, CA, per Parker LJ: ‘Every council has to have some policy regarding school admissions, particularly in the case of over-subscription. The creation of the policy is a matter of discretion for the local authority but the discretion is not to thwart the law. A policy has to be prepared to consider exceptions’. See also, on rationality, the discussion of R v City of Bradford Metropolitan Borough ex p Sikander Ali [1994] ELR 299, above and R v Lancashire County Council ex p F [1995] ELR 33 per Kennedy LJ. 118 Choudhury and Another v Governors of Bishop Challoner Roman Catholic Comprehensive School [1992] 3 All ER 277. 119 Note 117 above. 120 On home to school distance, see also Choudhury n 118 above, at 286, per Lord Browne-Wilkinson. 121 [2001] EWHC Admin 108; [2001] ELR 542, per Morison J at [34]. 122 DfE, School Admissions Code (2014) para 1.11. 123 [2001] ELR 469, [36]. 124 [2002] EWHC 405 (Admin); [2002] ELR 390. 125 Ibid, at [39]. 126 [2002] EWCA Civ 900; [2002] ELR 602.

Fair Admissions? 251 who had a sibling at the school was incompatible with ECHR Art 8, read with Art 14, and with A2P1. However, Maurice Kay J rejected the argument.127 In the Court of Appeal, it was contended that there was discrimination against applicants not living in the priority admission areas that was disproportionate to the local authority’s objective in its determination of priority for admission. May LJ acknowledged that where a school was oversubscribed there would necessarily be discrimination against some children. However, there was a question as to whether the discrimination had an objective justification for the purposes of Art 14. His lordship did not think that it did in this case: Some children will have stronger cases than others for admission. A child with an elder brother or sister in a school may well have a strong case wherever they live; but so may a child who lives close to the school. Neither child’s case is by definition stronger than the other child’s case. Neither child’s relevant Convention rights are by definition infringed, nor is it by definition objectively unfair, if either of them fails to gain admission … [Local authorities] have to make practical admission decisions which are objectively fair and by a process which is fair.128

While the parent would need to establish that the decision not to admit the child was ‘perverse’,129 the local authority needed only to show that its decision was ‘objectively fair’.130 The Court of Appeal nonetheless implicitly accepted the view of Stanley Burton J in an earlier decision131 that for an admissions policy to accord priority on the basis of residence could be potentially discriminatory under Art 14 read with A2P1. However, Stanley Burton J said that the policy would not be in conflict with the ECHR if there were ‘sensible, objective, and indeed compelling, justification for it’.132 Residence in a catchment area is in itself a lawful criterion.133 However, the area needs to be determined on a rational basis.134 Catchment areas which have

127 R (Mayor and Burgesses of the London Borough of Hounslow) v The School Admission Appeals Panel for the London Borough of Hounslow [2002] EWHC 313 (Admin); [2002] ELR 402, [81]. 128 School Admission Appeals Panel for the London Borough of Hounslow v The Mayor and Burgesses of the London Borough of Hounslow [2002] EWCA Civ 900; [2002] ELR 602, [62]. 129 This was because the admission decision concerned admission to primary school and the appeal decision was covered by the special statutory rules concerning such appeals. The rules stated that the appeal panel could only uphold an appeal if, inter alia, the decision not to admit the child ‘was not one which a reasonable admission authority would make in the circumstances of the case’: Education (Admission Appeal Arrangements) (England) Regulations 2002 (SI 2002/2899), reg 6(2)(a) (and previously in the SSFA 1998, Sch 24, para 12(a)). The Court of Appeal in this case held that that gave rise to a basic test of perversity, namely whether it was perverse, in the light of the admission arrangements, to admit the particular child. 130 Hounslow n 128 above, [63]. The Court also considered whether human rights arguments could legitimately be considered by an appeal panel as a public authority for the purposes of the Human Rights Act 1998. 131 R (South Gloucestershire Local Education Authority) v The South Gloucestershire Schools Appeal Panel [2001] EWHC Admin 732; [2002] ELR 309. 132 Ibid at [54]. 133 Greenwich n 117 above; R v Rotherham MBC ex p Clark [1998] ELR 152, QBD and CA. 134 As noted above, the rationality test was satisfied in Sikander Ali: above n 117.

252 School Admission Policies and Decisions a boundary contiguous with the local authority’s boundary may be unlawful by restricting the rights of parents living outside the local authority area, since it was held by the Court of Appeal in the landmark Greenwich case in 1989 that the legislation135 had the effect that parents living outside the local authority’s boundaries should not, simply by virtue of that fact, be denied equal preference for a place at one of the authority’s schools with those living inside the authority’s boundaries.136 The London Borough of Greenwich had reversed its previous policy of accommodating in its secondary schools children who had been attending primary schools in neighbouring Lewisham. As a result, many Lewisham residents would not be able to exercise any preference in respect of secondary schools in Greenwich. Lloyd LJ said that the legislation intended to ensure that when an authority decided school admission cases ‘all children from within or outside the area rank pari passu, that they all come from the starting gate at the same time’.137 Subsequently, in R v Bromley LBC ex p C,138 it was held that a local authority could not limit the effect of Greenwich in order to guarantee its own residents a school place in its own area. Bromley’s attempt to do so was therefore struck down. When Greenwich was implemented by the Kingston upon Thames authority there were complaints that more competition for places at single sex schools in the area would result in fewer Kingston residents than previously being able to secure this form of education for their child. Watkins LJ, however, confirmed in Kingwell that Kingston’s implementation of Greenwich was consistent with its statutory obligation, notwithstanding its consequences.139 It had to be presumed that Kingston parents who missed out would find that ‘the education would be available in the area of another education authority’.140 Greenwich resulted in a significant emphasis being placed on the development of co-ordinated admission arrangements in many areas, particularly in London, where there were ‘large-scale cross-border flows of children travelling to school in authorities other than those in which they reside’.141 Co-ordination arrangements, for which provision is made in the legislation,142 have been rendered even more important by the growth of the academy sector.143 They aim to prevent the administrative chaos that could arise from separate admission schemes in an area and across neighbouring areas, which can result in ‘parents sitting on multiple 135 The relevant provision in the 1980 Act was re-enacted as SSFA 1998, s 86(8), which provides that the duty to comply with parental preference (s.86(2)) ‘shall apply also in relation to … any application for the admission to a maintained school of a child who is not in the area of the authority maintaining the school’. 136 Greenwich n 117 above. 137 At 597. 138 [1992] 1 FLR 174. 139 R v Royal Borough of Kingston upon Thames ex p Kingwell [1992] 1 FLR 182. 140 ibid, at 188. 141 House of Commons Education and Skills Committee n 14 above, paras 106–7. 142 SSFA 1998, ss 88M and 88N; and SI 2012/8 n 104 above, Sch 2. 143 Academies are required by the funding agreements to participate in local admission co-ordination arrangements.

Fair Admissions? 253 offers while others have none’.144 The OSA reported in 2018 that co-ordination was working well in the overwhelming majority of local authority areas.145 Co-ordination schemes for September admissions to all maintained schools have to be set in place by the local authority by the preceding 1 January,146 and decisions on admission must be communicated to the parent on a single prescribed day (or if it is not a working day, then on the next working day), known as the ‘offer day’.147 The boundary issue is separate from that of catchment areas, but an uncertainty arising from Greenwich was how the duty to ensure parity between in-borough and out-borough applications was affected by these areas. The decision in Razazan148 confirmed that Greenwich does not preclude the denial of a school place to an extra-district applicant on the grounds that he or she does not live in the school’s catchment area. The applicant lived in Somerset and applied for a place at a school in Wiltshire. The Court of Appeal considered that the applicant was in no different a position to a resident of Wiltshire who was similarly living outside the school’s catchment area. But if the catchment area boundaries are contiguous with the local authority’s boundary there is a risk they could be found inconsistent with the cross-boundary equality provided for by the legislation.149 As noted above, approximately two-thirds of English admission authorities use residence in a catchment area as an admission criterion. There is obviously a case for catchment areas, since they aid planning and decision-making and provide an element of clarity to parents. Once well-established they can also help to consolidate school-community links, which may be regarded as beneficial both to children’s education and community cohesion. However, in some cases they can not only hinder parental choice but, depending on how areas are identified, also reinforce social divisions due to the ‘house price premium’ that can build up in catchment areas for popular and successful schools.150 In research by Montacute and Cullinane for the Sutton Trust it was shown how parents in the most affluent social group were the most likely to have moved either to an area perceived to have the best schools or into the catchment area of a specific school.151 In the Selective Comprehensives 2017 report, Cullinane et al note how those ‘willing and able to pay a substantial premium to live in the catchment area of a top school are likely, over time, to lower the accessibility of the school

144 M Haddad (ed), School Admissions (London, Social Market Foundation, 2004) 13. 145 OSA, Office of the Schools Adjudicator Annual Report, September 2017 to August 2018 (London, OSA, 2018) para 40 and Table 5. 146 SI 2012/8, n 104 above, reg 27. In default, the Secretary of State may exercise a power to impose such a scheme: ibid regs 28 and 29. 147 Ibid, reg 30. The offer day is 16 April for primary schools and 1 March for secondary schools. 148 R v Wiltshire County Council ex p Razazan [1997] ELR 370, CA. 149 R v Rotherham Metropolitan Borough Council ex p LT [2000] ELR 76, CA. 150 See Elliot Major and Machin, n 115 above, 205 and Feintuck and Stevens n 21 above, 141. 151 R Montacute and C Cullinane, Parent Power 2018. How parents use financial and cultural resources to boost their children’s chances of success (London, The Sutton Trust, 2018) 22.

254 School Admission Policies and Decisions to those from disadvantaged backgrounds’.152 This is one of the ways in which catchment areas can reinforce social segregation.153 Gorard found that the introduction of the quasi-market for school places had ‘stratifying effects’ but that ‘the effects of pre-existing catchment areas and “selection by mortgage” may have been worse’.154 One way of countering any class bias in admission policies would be to give high priority in oversubscription criteria to children to whom the pupil premium155 relates – or, in the case of nursery or primary provision, those covered by the early years pupil premium. Both involve the provision of additional funding to a school to assist with raising attainment of those from disadvantaged backgrounds.156 There is also a service premium designed to facilitate the provision of pastoral support for children of service families. The School Admissions Code permits admission authorities to give admissions priority to children who are covered by any of those three premiums,157 although it does not state how high the priority should be. The OSA reported in 2018 that approximately 550 schools had taken up this option.158 Of the 150 secondary schools reported to have adopted the pupil premium, 118 were grammar schools and, according to the OSA, ‘many’ of them accord the highest priority to pupil premium children after looked after or previously looked after children (although there may be few such looked after/former looked after children who have reached the ability level to qualify for a grammar school place).159 As the OSA comments, the premiums have been adopted for priority by only a relatively small number of schools although the number is increasing.160 As a result of this lack of take-up by schools, a real opportunity to reduce the impact of social disadvantage on educational opportunity and achievement is being missed. The evidence obtained the previous year by the OSA for non-adoption of these premiums161 shows that local authorities are wary of using them for fear of disrupting access to local schools, distorting a socio-economic balance in intakes that is representative of the local area, and

152 C Cullinane, J Hillary, J Andrade and S McNamara, Selective Comprehensives 2017. Admissions to high-attaining non-selective schools for disadvantaged pupils (London, NFER and The Sutton Trust, 2017) 19. 153 E E Rowe and C Lubienski, ‘Shopping for schools or shopping for peers: public schools and catchment area segregation’ (2017) 32(3) Journal of Education Policy 340. 154 S Gorard, ‘School choice policies and social integration: the experience of England and Wales’, in P J Wolf and S Macedo (eds), Educating Citizens. International Perspectives on Civic Values and School Choice (Washington DC, Brookings Institution Press, 2004) 131, 143. 155 See ch 3 n 479. 156 See EA 2002, s 14 and the Childcare Act 2006, s 7, as substituted by the EA 2011, s 1(2). 157 DfE, School Admissions Code (2014) paras 1.39A and 1.39B. 158 OSA, Office of the Schools Adjudicator Annual Report, September 2017 to August 2018 (London, OSA, 2018) para 6. 159 Ibid, para 37. 160 Ibid, para 39. 161 OSA, Office of the Schools Adjudicator Annual Report, September 2016 to August 2017 (London, OSA, 2018), paras 47–49.

Fair Admissions? 255 adding further complexity to admission arrangements. There was also a concern about potential public disquiet about arrangements which may deprive a place to a child from a local family that is not well off but is just above the pupil premium threshold, in favour of a child from a slightly poorer background. Clearly the law could be changed to require those eligible for one or more of these premiums to be accorded priority as has happened in relation to looked after children. One final point on admission criteria and social class returns us to Art 14 of the ECHR, which was discussed above. Helen Mountfield has argued that school admission policies might be in breach of the Article read with A2P1 if they ‘discriminate on some impermissible ground, such as, for example, class’.162 Socio-economic class would fall within the ‘other status’ category protected by Art 14.163 Obviously it would be necessary to show a lack of justification for the admission policy in question. The issue of such class discrimination per se has not to date been properly tested in the courts in relation to school admission, but there is a Northern Ireland case164 where it was argued that a grammar school’s admission criteria which gave priority on the basis of, inter alia, receipt of an award or certificate for any one of a number of extra-curricular activities, including sport, chess, dance, drama, debating and photography, discriminated unfairly, for Art 14 purposes, against persons from poorer backgrounds, since they were less likely than others to have achieved such an award etc. On the facts, however, the Court did not consider that the policy did discriminate on the basis of socioeconomic status, so the question of justification was not tested.

C. Regulation of Admissions: The Role of the Schools Adjudicator In addition to an appellate jurisdiction over local authority decisions to direct the admission of a child to a school, and a role in the approval or otherwise of plans for school changes, the principal function of the Schools Adjudicator has been to consider objections to school admission arrangements and requests for variation of admission arrangements.165 In 2017–18 the OSA received 129 new cases of objection to and referral of admission arrangements (a 30 per cent increase on the previous year) relating to 78 individual admission authorities; and there were 52 new requests for variation of arrangements.166 About half of the 162 H Mountfield, ‘The implications of the Human Rights Act 1998 for the Law of Education’ (2000) 1 Education Law 146, at 156. 163 See R (Hurley and Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin); [2012] ELR 297. 164 In re an application for judicial review by Anderson and O’Doherty [2001] NICA 48. 165 Education and Skills Act 2008, ss 88H and 88K. The Adjudicator also held powers in respect of school organisation plans, but these plans have been abolished: Children Act 2004, Sch 5, repealing SSFA 1998, s 26. 166 OSA n 158 above, paras 13 and 14.

256 School Admission Policies and Decisions objections to admission arrangements are made by parents,167 but the Secretary of State has a power to refer arrangements to the Adjudicator for a ruling where they appear not to conform to the law.168 The Adjudicator’s power to specify modifications to be made to admission arrangements to which objections had been made and were upheld or which had been referred by the Secretary of State was abolished under the Coalition Government’s EA 2011.169 Nevertheless, the Adjudicator’s authority to rule on whether admission arrangements should be upheld or are consistent with the law continues and the decision will be b inding.170 In 2017–18, 116 cases were decided, of which 37 were upheld, 31 partially upheld and 48 rejected.171 Many of the objections that are taken to the OSA concern the clarity of the admission arrangements, but fairness or reasonableness are also often the issue. The degree of compliance with the School Admissions Code is often raised, although since, across the country’s 20,000 plus schools, very few sets of admission arrangements have been found to be inconsistent with the Code, the DfE’s conclusion several years ago that ‘the vast majority of (admission) policies are compliant’172 still seems to hold good. Reports of adjudicator rulings are published on the OSA website and there have been at least ten cases in which the Adjudicator’s determinations have themselves been ruled upon by the courts.173 A couple of examples will illustrate the kinds of issues that have arisen. In R (Governing Body of Drayton Manor School) v The Schools Adjudicator174 the admissions policy for a secondary school in the London Borough of Ealing had as the highest priority for places, in descending order, looked after children, a sibling (brother or sister) at the school, and the ‘[p]roximity of the school to the child’s home, with those for whom the school is the nearest Ealing high school

167 Ibid, para 14. 168 Education and Skills Act 2008, ss 88I and 88K. 169 Ibid, s 88J, repealed by the EA 2011, s 34(4). 170 Education and Skills Act 2008, s 88K. 171 OSA n 158 above, table 1. 172 DfE, Post-legislative assessments of the Education and Inspections Act 2006, Childcare Act 2006 and Children and Adoption Act 2006. Memorandum to the Education Committee of the House of Commons (Cm 8204) (2011), para 41. 173 See, eg, R v Downes Ex p Wandsworth LBC [2000] ELR 425; R v Schools Adjudicator Ex p Wirral MBC [2000] ELR 620; R (Wandsworth LBC) v Schools Adjudicator [2003] EWHC 2969 (Admin); R (Watford Grammar School for Girls and Watford Grammar School for Boys) v Adjudicator for Schools [2003] EWHC 2480 (Admin); [2004] ELR 40; R (Wandsworth London Borough Council) v The Schools Adjudicator [2003] EWHC 2969 (Admin); [2004] ELR 274; Governing Body of the London Oratory School v Schools Adjudicator, Secretary of State for Education and Skills and the Governing Body of Peterborough Primary School [2005] EWHC 1842 (Admin); [2005] ELR 484; P v The Schools Adjudicator [2006] EWHC 1934 (Admin); [2006] ELR 557; R (Governing Body of Drayton Manor High School) v The Schools Adjudicator [2008] EWHC 3119 (Admin); [2009] ELR 127; R (London Oratory School) v The Schools Adjudicator and Others [2015] EWHC 1155 (Admin); [2015] ELR 335; and R (Academy Trust for Hockerhill Anglo-European College) v The Office of the Schools Adjudicator [2016] EWHC 1642 (Admin); [2017] ELR 187. 174 [2008] EWHC 3119 (Admin); [2009] ELR 127.

Fair Admissions? 257 being accorded the higher priority’. The local authority objected to the home to school proximity criterion on the grounds that it would, effectively, discriminate against parents living in a relatively deprived area 0.5–1.0 mile from the school, unless they satisfied the sibling criterion. Compared to those in this area, properties in the areas advantaged by the criterion were significantly more expensive. The Adjudicator was influenced by the School Admissions Code then in force (the 2007 version) which stated that admission arrangements must be ‘fair and … not disadvantage, either directly or indirectly, a child from a particular social or racial group’ and they must ‘actively promote equity’.175 The Adjudicator considered that the admission arrangements failed to comply with the Code, since the proximity criterion ‘does not actively promote equity and indirectly discriminates against economically less advantaged families unable to afford housing in the area benefiting from it’. The criterion had the effect of excluding a significant proportion of children living close to the school and for whom the school should be a real option, if that is their parents’ preference, in order to promote community cohesion and to enable them to benefit from this excellent school.

The school applied for judicial review of the Adjudicator’s decision, contending that the arrangements were soundly based, taking account of the needs of the area and aiming to ensure that boys in one of the better off areas (to the east of the school) could have a choice of a school other than a Church of England school. Judge Stephen Stewart QC, while accepting that the Court should show caution in reviewing a specialist adjudication,176 nevertheless quashed the Adjudicator’s ruling. The judge accepted that the Adjudicator had been entitled to conclude, on the facts, that the area in question that was disadvantaged by the home-school proximity criterion was a more socio-economically deprived one. However, the Adjudicator had failed to address the rationale presented by the local authority regarding the position to the east of the borough (above). The case demonstrates the complexity of the issues that an admissions policy has to deal with and the difficult balance that may need to be struck, when determining admissions criteria, in terms of meeting different social needs while ensuring compliance with the School Admissions Code. The OSA here apparently failed to appreciate how the school had addressed those issues when finalising its admission arrangements. Another, more recent, challenge to the Schools Adjudicator concerned an academy, which was a faith school, the London Oratory School: R (London Oratory School) v The Schools Adjudicator and Others.177 As noted above, academies are

175 The present code contains a similar paragraph, but without the reference to promoting ‘equity’: see DfE, School Admissions Code (2014) para 1.8. 176 Citing at [30] AH (Sudan) v Secretary of State for the Home Department [2008] 1 AC 678 (per Baroness Hale at [30]). 177 [2015] EWHC 1155 (Admin); [2015] ELR 335.

258 School Admission Policies and Decisions required by their funding agreement with the Secretary of State to comply with the School Admissions Code. The school was a Roman Catholic School based in Fulham in London and had a record of academic excellence. It was a very popular school, with typically about five applicants for each place. As an academy it was required to provide education for pupils of different abilities, mainly drawn from the area in which it was situated.178 It was required by law to consult the Diocese in connection with its admission arrangements.179 The admission arrangements provided for five ‘primary over-subscription criteria’ which were religiously-based – (i) Catholic looked after children, (ii) Mass attendance, (iii) baptism, (iv) receipt of first Holy Communion, (v) service in the parish or wider Catholic church – and three ‘Other over-subscription criteria’, which were (vi) sibling connection, (vii) attendance at the London Oratory Primary School or other Catholic school throughout the period of primary education (or the parents had satisfied their ‘obligation to ensure a Catholic education for their child’), and (viii) whether the child and parents ‘regularly attended Mass on Sundays and Holy Days of Obligation at the London Oratory Church for a sustained period of at least three years’. Over the past few years the school had also operated random selection as a tie-break. There was Diocesan guidance intended to guide Catholic schools in the admission process. The British Humanist Association (BHA) complained to the OSA about the school’s admissions policy in 2013. The complaint was primarily around failures by the school to comply with the School Admissions Code in giving priority within the faith-based criteria to those who could demonstrate satisfaction of the Catholic service criterion ((v) above), the lack of provision in the criteria for the admission of ‘no faith’ children, and the failure to have regard to the Diocesan guidance. The Adjudicator found that in 25 different respects the school had failed to comply with the School Admissions Code in relation to the September 2014 intake and had failed in 18 respects in relation to admission for 2015. The conclusions went beyond the issues raised by the BHA. Cobb J held that the Adjudicator had erred in requiring the Diocesan guidance to be followed unless there were compelling reasons not to do so, since that represented ‘too high a threshold’ for departure from it.180 The Adjudicator had concluded that the school failed to comply with the Code’s requirement that admission arrangements must not ‘disadvantage unfairly’ – whether directly or indirectly – children from particular social or racial groups, because the oversubscription criteria had the effect of selecting ‘by post-code’ and produced ‘at the very least a degree of social selection’. However, citing the Drayton Manor case (above), Cobb J said that the Adjudicator had failed to demonstrate that if there was a disadvantage to some (less well-off) applicants, the admission criteria were responsible for creating the ‘unfairness’.181 The Adjudicator was also held to have

178 Academies

Act 2010, s 1A. See ch 3 under ‘Academies’. 1998, s 88F. 180 Note 177 above, [64]. 181 Ibid, [76]. 179 SSFA

Fair Admissions? 259 failed to inform the governing body of the full basis on which the conclusion of unfairness was based, thereby denying it an opportunity to respond, which thus brought him in breach of procedural fairness.182 Cobb J considered that had the school had the opportunity to make representations to the Adjudicator about how the socio-economic mix at the school was not out of line with comparator schools and reflected the way that families who were attracted to the religious tradition of the school and impressed by its Latin teaching and traditional church music were in a different socio-economic group to those ‘who aspire to a different form of religious and/or academic education’, the Adjudicator would not inevitably have reached the same conclusion.183 There were a number of other failures identified by the Court, but the Adjudicator’s finding that the Catholic service criterion ((v) above) was in breach of the Code’s restriction against prioritising children on the basis of hobbies or activities other than ‘religious activities, as laid out by’ the relevant religious body, was considered one that he was entitled to reach. The kind of activities that the school had identified as counting as Catholic service, such as ‘assisting in the liturgy’, by for example choir singing, playing an instrument, or flower arranging, were not ‘laid out’ by the Diocese, since the Diocesan guidance specifically prohibited schools from ‘making judgments on pastoral matters such as Catholic practice’ and permitted only ‘frequency of attendance at Mass’ as a relevant over-subscription criterion.184 This case illustrates both some of the problems around the potential unfairness arising from the application of religious admission criteria applied by some schools and the onerous responsibility placed on the Adjudicator in addressing the issue when a complaint arises.

D. School Choice in Action: Expression of Preference for a School i. The Right to Express a Preference As noted earlier, the EA 1980 gave parents a right to express a preference for a school for their child before any decision could be taken about the allocation of places. The right is now in the SSFA 1998, which also requires the local authority to provide the parent with an opportunity to give reasons for the preference.185 Save in the case of admission to a sixth form (see below), there is no specific requirement to ensure that children participate in this process, notwithstanding the following factors: the House of Commons Education and Skills Committee’s

182 Ibid, [79], citing R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531, per Lord Mustill at 560. 183 Note 177 above, [83]. 184 Ibid at [87], [88] and [92]. 185 SSFA 1998, s 86(1).

260 School Admission Policies and Decisions view that they should be;186 evidence that moving to secondary school is regarded by children as an important step towards independence;187 and the state’s duty under Art 12 of the UNCRC to enable a child to express his or her views freely on matters affecting him or her and for those views to be given due regard in the light of the child’s age and understanding. The School Admission Code specifically provides: ‘The child must not be required to complete any part of the [application form]’.188 Although this does not exclude voluntary participation by the child it sends out an exclusionary message. Lansdown et al have argued that involving children in decisions such as school placement and enabling their perspective to inform the process is important in ensuring that an effective choice is made.189 The evidence suggests that parents do tend to involve their children in school choice decisions, particularly for secondary school admission; but children’s participation is often invited only after the parents have decided independently on the type of school they want for their child and narrowed the choice down to a few alternatives, with the result that the children may ‘feel more empowered than they actually are’.190 But children do want a say over the school they are to attend.191 There could, however, be a conflict between the child’s view and that of the parent with regard to school choice, particularly in relation to secondary school. While paternalism generally holds sway in relation to this decision, research points not only to the widespread involvement of children in the choice of secondary school but also that there are class differences in how much influence the child’s view may have. Reay and Lucey have found that ‘working class’ children’s choice usually prevails over their parents’ but that that is not the case where middle-class children are concerned.192 They have also found evidence of class differentiation in relation to the kinds of schools selected, which is a reflection of differences in perceived horizons. Children’s involvement in school choice is of course part of a much bigger issue about their participation in education decision making,

186 House of Commons Education and Skills Committee n 14 above, paras 118–120. Children are not able to bring an admission appeal in their own right and may lack standing to apply for judicial review in this context: see R v London Borough of Richmond ex p JC [2001] ELR 21, CA, per Kennedy LJ at [31]; and The Queen on the application of B v Head Teacher of Alperton Community School and Others; The Queen v Head Teacher of Wembley High School and Others ex p T; The Queen v Governing Body of Cardinal Newman High School and Others ex p C [2001] ELR 359. 187 I Butler et al, Children’s Involvement in Family Decision Making (York, Joseph Rowtree Foundation, 2005). 188 DfE, School Admissions Code (2014) para 2.2 (original emphasis). 189 G Lansdown, S R Jimerson and R Shahroozi, ‘Children’s rights and school psychology: Children’s right to participation’, (2014) 52 Journal of School Psychology 3. 190 S Gorard, ‘Three Steps to “Heaven”? The family and school choice’ (1996) 48(3) Educational Review 237, 248. 191 C Davey, T Burke and C Shaw, Children’s Participation in Decision-Making: A Children’s Views Report (London, National Children’s Bureau, 2010) 26. 192 D Reay and H Lucey, ‘Children, School Choice and Social Differences’ (2000) 26(1) Educational Studies 83.

Fair Admissions? 261 discussed in Chapters 1 and 9.193 In the case of admission to a sixth form,194 separate statutory arrangements introduced under the Education and Skills Act 2008195 provide that, assuming the child is not entering a sixth form in his or her existing school, both the child and the parent have rights to express a preference for a school.196 (They also have separate rights of appeal, as discussed below.) Neither the legislation nor the School Admissions Code deal with the question of how any divergence in the respective preferences should be resolved. The School Admissions Code requires a ‘common application form’ (CAF) to be used by the local authority for the admission application, enabling parents to express a preference for at least three state schools, to be placed in rank order, and permitting reasons for the preferences to be stated.197 Judicial guidance has helped to shape this process. In Clark198 the local authority in Rotherham had allocated school places primarily on the basis of residence in a zone. Parents were notified at the start of the admissions round each year of the school allocated and told to complete a form on which they could select another school if they did not want the place offered. Both the High Court and the Court of Appeal held that this system failed to enable the parents to express a preference and was therefore in breach of the legislation. Morritt LJ said the legislation presupposed that the expression of preference was a positive act, and ‘silence is not indicative of a preference for it is equally consistent with indifference’.199 Clark was applied subsequently in a case involving the London Borough of Newham,200 where the published schools admissions policy provided for first priority to be given to those with a sibling already at the school, then those whose parents stated a preference for single sex education, and finally those living closest to the school. The form indicated that preference for a single sex school would be determined ‘by looking at the type of school you have applied for as your first preference’. No space was provided for reasons to be given. When the child failed to secure a place at the preferred single sex school her parent appealed. At the hearing the parent explained that the child had friends going to the selected school and had two cousins there already, and that a mixed school would be unacceptable for religious reasons. The appeal was refused but Collins J quashed the decision. He referred to the parent’s right under A2P1 ECHR to have respect paid to their preference for their child to be taught in conformity with their religious or philosophical convictions. He said that positive action was required on the part of the state to ‘give weight to such conviction’ and to ensure that there was 193 See in particular under ‘Voice’ in ch 9. 194 Defined in SSFA 1998 Act, s 98A, as inserted by the 2008 Act, s 153, as ‘secondary education suitable to the requirements of pupils who are over compulsory school age’. 195 SSFA 1998, ss 86A and 86B, inserted by the ESA 2008, s 150. 196 DfE, School Admissions Code (2014) para 2.6. 197 Ibid, para 2.1. 198 R v Rotherham Metropolitan Borough Council ex p. Clark and others [1998] ELR 152, QBD and CA. 199 Ibid, 181D. 200 R (K) v London Borough of Newham [2002] EWHC 405 (Admin), [2002] ELR 390.

262 School Admission Policies and Decisions ‘a means of identifying religious conviction’.201 He also said that the admission policy failed to enable the weight attached by the parent to the importance of single sex education to be indicated.202 The claimant was a devout Muslim who was concerned, for religious reasons, that his daughter should not mix with boys or young men after the age 11 when at school. Collins J was concerned that a religious preference for single-sex education should be properly taken into account, for the purposes of the Article. Collins J’s comment that ‘it may that it is unusual that religious conviction should play a part in a decision whether a single sex or mixed school should be chosen’ seems somewhat wide of the mark, particularly given the number of Muslim and other families who are likely to hold similar views to the claimant’s and in light of the House of Lords’ decision in Choudhury based around such a preference.203 But he did at least acknowledge that there could be others in the same position as the claimant.204

ii. The Duty Comply with an Expressed Preference and the Exceptions to it The SSFA 1998 provides that, with certain exceptions, local authorities and governing bodies must comply with any preference expressed by the parent or, in the case of admission to a sixth form, the parent or child.205 The exceptions are, however, important and constitute a significant barrier to the realisation of choice in some cases. The exceptions are: (i) that the admission of the child would ‘prejudice the provision of efficient education or the efficient use of resources’;206 (ii) that compliance with the preference would not be compatible with the permitted selection arrangements related to admitting wholly on the basis of high ability or aptitude;207 and (iii) (other than in the case of sixth form entry) that the child has been excluded permanently from two or more schools and the later or latest exclusion took place within the previous two years.208 One place will be offered for the child by the home local authority; if there are vacant places at more than one school then, so far as is practicable, the child must be allocated a place at the school ranked the highest priority by the applicant.209 201 Ibid, [38]–[39]. 202 Ibid, [41]. 203 Choudhury and Another v Governors of Bishop Challoner Roman Catholic Comprehensive School [1992] 3 All ER 277. See above. 204 Note 200 above, [29]. 205 SSFA 1996, ss 86(2) and 86B(1). 206 Ibid, ss 86(3)(a) and (regarding sixth form) 86B(2). 207 Ibid, ss 86(3)(c) and (regarding sixth form) 86B(4) and (5). 208 Ibid, s 87. 209 DfE, School Admissions Code (2014) paras 2.10 and 2.11.

Fair Admissions? 263 If a preferred school is oversubscribed, in the sense that the school has already admitted up to its published admission number (PAN) for the year, then the decision whether to admit the child would be affected by the application of the school admission criteria, as discussed above. Admitting a specific number of children above the PAN might well be considered to risk prejudice to efficient education or efficient use of resources, but, as discussed below, the number that might be able to be accommodated in excess of the PAN without causing such prejudice will vary from school to school. No prejudice for this purpose can occur if the total number of pupils admitted for the year group does not exceed the PAN.210

iii. Prejudice to Efficient Education or the Efficient Use of Resources (The Prejudice Ground) The wording of the ‘prejudice’ ground211 has not changed since it was first introduced under the EA 1980. The ground seeks to strike an appropriate balance between, on the one hand, individual rights to freedom of choice and, on the other, the demands of ‘efficiency’ in furtherance of wider social and economic goals. It acknowledges the reality of inelasticity in the supply in places at individual schools. In a heavily oversubscribed school, as Lord Browne-Wilkinson said in C houdhury, ‘it necessarily follows that “compliance with the preference of ” all applicants would prejudice proper education at the school through over-crowding’.212 Against a background in which some local authorities were considered to be hindering choice on ideological grounds, such as the pursuit of equity, the efficiency ground was originally designed to ensure that only overriding logistical or financial factors could stand in the way of meeting parental wishes. The extent to which the individual rights could thereby ‘trump’ the power of local authorities to seek to further the collective community interest was, however, unclear.213 However, the balance was tilted further in the direction of the individual ‘consumer’ interest with the unfolding of the quasi-market for school choice that the introduction of ‘open enrolment’, noted above, heralded. Parental rights to choice appeared to be strengthened, since the prejudice ground could not limit choice to the previous extent, while local authorities’ power in relation to school place planning and allocation was undermined.214 There were concerns that this apparent extension of individual choice, combined with the concomitant introduction of financial delegation to individual schools (known as ‘local management of schools’ or ‘LMS’) and the allocation of funding on a per pupil 210 SSFA 1998, s 86(5), as substituted by the 2002 Act, s 47. 211 SSFA 1998, s 86(3)(a). 212 Choudhury n 203 above, at 193D-E, original emphasis. 213 Cf J Tweedie, ‘Rights in social programmes: the case of parental choice of school’ [1986] PL 407. 214 See P Meredith, ‘Educational Reform’ (1989) 52 MLR 215 and Idem, Government, Schools and the Law (London, Routledge, 1992).

264 School Admission Policies and Decisions basis, would result in greater inequality between schools, since those in declining and economically poorer areas would potentially recruit fewer pupils than those in more affluent areas. Opening up choice in this way might also increase racial stratification and segregation – since, for example, ‘[p]arents will be free to prefer all-white schools to those where there is a racial mix’.215 In reality, while the quasi-market has indeed increased social segregation, as discussed below, the efficiency ground continued to limit choice and resulted in many parents having to compete for a limited number of places when seeking places at the most popular schools. As a result, government emphasis switched to seeking to enhance choice through an increase in school diversity, such as with the policy of encouraging the development of specialist schools during the Labour years, the academies and free schools initiative, discussed in Chapter 3, and an expectation placed on local authorities by Conservative-led governments post 2010 to ‘encourage good schools to expand’.216 The potential of the prejudice ground to restrict individual choice was increased in primary schools as a result of the introduction of a limit to infant class sizes of 30 per teacher via the SSFA 1998.217 The Act states that prejudice of the above kind ‘may arise because of measures required to be taken to ensure compliance’ with the duty not to exceed the normal class size limit of 30.218 It is for the local authority to show, in any case, that the ‘class size prejudice applies’.219 In R (O) v St James RC Primary School Appeal Panel220 Newman J said that unless a school already had the resources – either a sufficient number of teachers or accommodation or both – it was bound to have to take measures to accommodate more than 30 pupils. It could not be assumed that a further teacher, who would have been needed, would have been available. There was a human rights element to the challenge in another case, JC,221 where a primary school had 60 places available for its reception classes but there were 80 applications for the school as a first preference and the application by the claimant was refused. It was argued that the limiting effect that the maximum class size had on parental choice could, where the mother and child had health problems, impact upon their lives in a way that constituted an unjustifiable interference with private or family life for the purposes of ECHR, Art 8. The Court of Appeal found no evidence of such an interference but in any event considered that a class size limit was justified within

215 D Coulby, ‘The Ideological Contradictions of Educational Reform’, in L Bash and D Coulby, The Education Reform Act. Competition and Control (London: Cassell, 1989) 110–121, 113 and 115. 216 DfE (2010) n 10 above, paras 5.31–5.33. 217 SSFA 1998, s 1 and see also the School Admissions (Infant Class Sizes) (England) Regulations 2012 (SI 2012/10). 218 SSFA 1998, s 86(4). 219 R v South Gloucestershire Education Appeals Committee ex p Bryant [2001] ELR 53, CA, per Buxton LJ at para 8. See also R v Commissioner for Local Administration ex p. Croydon London Borough Council [1989] 1 All ER 1033. 220 [2001] ELR 469. 221 R v London Borough of Richmond ex p JC [2001] ELR 21.

Fair Admissions? 265 the terms of Art 8(2). Ward LJ said: ‘The rights of other children are entitled to protection. Putting a limit on class sizes seems to me to be within that which is necessary within a democratic society’.222 There are prescribed exceptional cases where the class size limit may be exceeded, including where the school is named in a child’s education, health and care plan223 or if the child is a looked after or formerly looked after child, or a child whose parent is in the armed services, and admitted outside the normal admissions round.224 Another exception is a child who has a sibling or twin from a multiple birth already admitted.225 Since it is the principal basis on which denial of places at oversubscribed schools occurs, the prejudice ground is central to decisions by appeal panels. Parents, other than those whose child has been excluded permanently from two or more schools in the previous two years (an exception which is discussed below), have a right of appeal against any decision as to the school at which their child is to be provided with education.226 In the case of entry to a sixth form, the appeal may be brought by the child, his or her parent, or by both parent and child, acting jointly.227 Although the 1998 Act, as amended, enables regulations to make provision for separate parent and child appeals to be joined or ‘for otherwise securing that no more than one appeal against the decision is proceeded with’,228 the School Admissions Appeal Code,229 which is binding,230 covers the issue. It provides for a joint of hearing of both appeals.231 Admission appeal arrangements are the responsibility of the local authority or, in the case of a foundation school or voluntary aided school the governing body.232 The appeal panel must comprise a minimum of three persons, including (a) lay members and (b) persons who have experience in education, are acquainted with educational conditions in the area or are parents of registered pupils (but not at the school(s) in question).233 There must be not less than one member of each category and they must not include members of the local authority, employees of the local authority or of the governing body of the school, or

222 Ibid, per Ward LJ at [87]. 223 Note that the regulations (SI 2012/10, n 217 above) refer here to statements of SEN and appear not to have been updated to include EHCPs, which under the CFA 2014 have replaced statements. Statements have now been phased out. EHCPs are, however, referred to in the DfE’s School Admissions Code (DfE, 2014) at para 2.15. 224 SI 2012/10 ibid. 225 Ibid. 226 SSFA 1998, s 94, as amended, read with ss 87 and 95(1). The governing body may appeal if such a child is to be admitted to their school: see ibid, s 95(2)-(4) and Sch 25. 227 Ibid. 228 Ibid, s 94(5A)(aa). 229 DfE (2012). 230 SSFA 1998, s 84(3). As with the DfE School Admissions Code (2014), schools, local authorities and appeal panels must act in accordance with it. 231 DfE, School Admissions Appeal Code (2012) para 2.6. 232 School Admissions (Appeal Arrangements) (England) Regulations 2012 (SI 2012/9). 233 Ibid.

266 School Admission Policies and Decisions anyone whose connection with the authority or school may raise doubts about their ability to act impartially in the role.234 Consistently, these admission appeal bodies, which exercise a judicial function in a field of considerable complexity but are not required to have any member with legal qualifications and experience, have been criticised both for procedural shortcomings and failures to apply the law and School Admissions Code correctly.235 Local government tribunals, of which school admission appeal panels are one, were not, however, brought within the new tribunals structure established under the Tribunals, Courts and Enforcement Act 2007 – contrary to the recommendation of the Leggatt review236 and without a proper rationale.237 One consequence is that there continues to be no right of appeal to the Upper Tribunal or indeed any other second-tier body in relation to admission cases, leaving either judicial review or complaint to the Local Government and Social Care Ombudsman (LGO) (but in the case of academies or free schools, which are outside the LGO’s jurisdiction, complaints are dealt with by the DfE) as the only significant routes of redress. A two stage test for the application of the efficiency ground, articulated by Forbes J in R v South Glamorgan Appeals Committee ex parte Evans238 two decades ago and subsequently approved by Woolf LJ in the Croydon case,239 continues to form the basis for the operation of this critical area of admissions law at the appeal stage – although, as the Council on Tribunals pointed out in its special report and the School Admission Appeals Code indicates,240 there is also a preliminary matter which the panel should decide, namely whether the admissions arrangements have been properly applied.241 Under the Evans test, at the first stage, the appeal panel must decide whether the admission of one child would prejudice the provision of efficient education or the efficient resources at

234 Ibid. 235 See N Harris, ‘The developing role and structure of the education appeal system in England and Wales’ in M Harris and M Partington (eds), Administrative Justice in the 21st Century (Oxford, Hart Publishing, 1999), 296–325; Sir A Leggatt, Tribunals for Users: One System, One Service (London, The Stationery Office, 2001), 178–82; Council on Tribunals, School Admissions and Exclusion Appeal Panels, Special Report (Cm 5788) (2003); Local Government Ombudsman, School admissions: Are parents and pupils getting a fair hearing? (London, Commission for Local Administration in England, 2011) and Press Notice 9 November 2011, www.lgo.org.uk/information-centre/news/2011/nov/lgohighlights-most-common-faults-in-school-admission-appeals; and Local Government and Social Care Ombudsman, School admission appeals: are parents being heard? (LGO 2014), www.lgo.org.uk/ make-a-complaint/fact-sheets/education/school-admissions. 236 Leggatt n 235 above, para 3.15 and R 7. 237 See Department for Constitutional Affairs, Transforming Public Services: Complaints, Redress and Tribunals (Cm 6243) (2004) which referred (at para 6.8) to how their ‘funding and sponsorship are sufficiently different’ to warrant excluding them. 238 10 May, 1984, CO/197/84, Lexis Nexis. 239 R v Commissioner for Local Administration ex p. Croydon London Borough Council [1989] 1 All ER 1033. 240 DfE, School Admission Appeal Code (London, DfE, 2012), para 3.2; Council on Tribunals, School Admission and Exclusion Appeal Panels – Special Report, Cm 5788 (London, TSO, 2003), para 2.32. 241 The Code (ibid) also requires the appeal panel to consider if the admission arrangements themselves were lawful.

Fair Admissions? 267 the school. It will not be enough for the admission authority to show that the school’s admission limit has already been reached; the appeal panel is expected to make an independent assessment of whether any additional child’s admission would cause prejudice in the circumstances.242 The onus of proof to show that there would prejudice lies with the admissions authority at this stage.243 In R v Sheffield City Council ex p M244 the local authority claimed that a school could admit no more than 230 pupils across eight classes, because if it admitted up to 240 (30 per class) it would not have the scope or capacity to accommodate properly new children arriving outside the normal admissions round. The authority wanted to maintain a degree of flexibility, taking account of the need for balance in terms of ethnicity, gender and educational factors. The applicant was ninth on the waiting list for a place and the appeal panel refused his appeal. Burton J held that the appeal panel had correctly considered prejudice and its approach in accepting that prejudice would exist was not unreasonable. A second stage comes into play provided the panel confirms two things: (i) that the admission arrangements were lawful and correctly applied, or, if they were not lawful or not correctly applied, the child would not have been offered a place even if they had been, and (ii) that there would be prejudice arising from the admission of any additional children.245 The panel is confronted with a complex balancing exercise in which prejudice must be weighed against the parent’s reasons for wanting the child’s admission to the school. This can be a very difficult task, since there may be compelling reasons for the parent’s choice, while the admissions authority will be concerned to avoid overcrowding at a school which has already been ‘deemed to be full’.246 In Croydon, Woolf LJ held that the onus of proof at this balancing stage does not lie with either party,247 but in Jacobs Collins J said that at this stage each appellant before the appeal panel ‘had the burden of satisfying the committee that notwithstanding that there would be a prejudice to efficient education, the child in question should be admitted because there were special circumstances relating to that child’.248 Jacobs centred on a school, RV school, with an admissions limit set at 240 but where the local authority’s policy of guaranteeing admission to all children living within the school’s catchment area had resulted in 257 children being allocated places. The appeal panel decided that no additional pupils could be accepted without prejudice to efficient education. One of the 32 appeals was made by the father of twin children.

242 Ibid, para 3.3; see also Croydon (n 239 above) and R v Appeal Committee of Brighouse School ex p. G; same ex p.B [1997] ELR 39. 243 Croydon n 239 above. 244 [2000] ELR 85. 245 DfE, School Admission Appeals Code (2012), para 3.7. 246 House of Commons Education and Skills Committee, n 14 above, para 163. 247 Woolf LJ considered it to be inappropriate to think of it in terms of an onus on one party or the other: Croydon n 239 above. 248 R v Essex County Council ex p. Jacobs [1997] ELR 190, at 197H.

268 School Admission Policies and Decisions Neither he nor his ex-wife, with whom the children sometimes resided, lived in the catchment area. His case for admission was that the twins had an elder sister who attended the school and he and his ex-wife both lived within one mile of the school. The appeal was refused but the panel’s decision was quashed by Collins J (and the matter remitted for fresh consideration) on the ground that insufficient weight was given to the parental factors and especially to how the need for the elder sister to travel to both parents’ addresses ‘provided a more powerful reason for the sibling connection to prevail in the circumstances of the case’, something that the panel ought to have taken into account.249 Collins J also regarded as an irrelevant consideration by the panel the possibility of the elder sister being moved to another school, W school, at which there were places available for the twins. In another case, where there were 42 appeals, the panel’s decision was quashed because its application of the prejudice test was not based on true facts; it was not aware that 14 parents who had been offered places at the school had not accepted them.250 The cases above were ones in which the appeal panel had been dealing with multiple appeals. When appeal panels have multiple appeals before them it might seem logical for them to deal with them by comparing the cases and deciding which are the more compelling and are such that the arguments supporting admission outweigh the prejudice to efficiency. Indeed, that would be consistent with the reality of competition between appellants for whatever number of places can reasonably be offered before the degree of prejudice reaches a level of excessiveness that precludes further admissions. The established practice, approved in Croydon, is for all the individual appeals to be heard before decisions are reached in any of them.251 The required approach set out in the Admissions Appeals Code252 is for comparison then to be made between cases which outweigh prejudice and for the panel then to uphold the strongest case or cases, a practice endorsed in Tarmohamed.253 This is a difficult task, particularly when there are significant numbers of appeals. Each case for admission will have its own arguments in support and comparison may be difficult. The Admission Appeals Code currently covers the issue with undue brevity and without any worked examples, which would be useful in guiding this complex exercise. Where the infant class size limit of 30 pupils is in play, primarily in the reception year in primary school, the prejudice ground ‘may arise because of measures required to be taken to ensure compliance’ with the duty not to

249 Ibid at 202H–203A. 250 The Queen (on the application of B) v Head Teacher of Alperton Community School and Others; The Queen v Head Teacher of Wembley High School and Others ex parte T; The Queen v The Governing Body of Cardinal Newman High School and Others ex parte C [2001] ELR 359. 251 Croydon n 239 above. 252 DfE, School Admission Appeals Code (2012), para 3.9. 253 R v Education Appeal Committee of Leicestershire County Council ex p Tarmohamed [1997] ELR 48.

Fair Admissions? 269 exceed the limit, as noted above.254 Specifically in cases where this class size limit applies, the appeal panel has to consider whether: an admission would breach the limit; the admission arrangements comply with the 1998 Act and School Admissions Code and were correctly applied; and the refusal to admit the child was one that a ‘reasonable admission authority would have made in the circumstances of the case’ (applying therefore basically a Wednesbury test of reasonableness).255 In order to be able to uphold the appeal, the panel must conclude that either (i) the admission of the child or additional children would not breach the class size limit, or (ii) the admission arrangements were not lawful or were not correctly or impartially applied but had they been the child would have been offered a place, or (iii) the refusal was unreasonable in the sense described above.256 In relation to establishing (i) and (ii) it has previously been held, when they were set out in regulations, that the onus of proof rested with the parents.257 However, it now seems from the Code that it is for the panel to simply reach its own judgment on these issues on the facts before them. As with other admission appeals (above), there is a second stage for infant class size appeal cases when there are multiple appeals. If the panel finds that a certain number of children can be admitted without breaching the class size limit or without taking measures that would prejudice efficient education or the efficient use of resources, the panel could uphold that number of appeals and must compare all the cases before it to determine which of the children in question should be admitted up to that number.258 These are clearly very technical grounds for lay appeal panels to apply and it is not surprising that panels sometimes fall into error, as in the Reading case, where 15 decisions by the appeal panel were quashed on the grounds of the panel’s misapplication of the reasonableness part of the test.259 In particular, the appeal panel had ‘applied a test that was less severe than rationality’ rather than one of whether the decision was ‘Wednesbury perverse’.260 The idea that the reasonableness of the decision should be judged with reference to the position of the local authority or school alone (for example, in having to take qualifying measures), was rejected by Ward LJ in R v London Borough of Richmond ex p. JC; he said that the personal circumstances of the child were also relevant to the test.261

254 SSFA 1998, s 86(4), above. As regards the class size limit, see n 217 above. 255 DfE, School Admission Appeals Code (2012), para 4.4. 256 Ibid, para 4.6. 257 R v London Borough of Richmond ex p JC [2001] ELR 21, CA, which also held that fresh evidence supporting their case but not presented to the admissions authority could not, unless persuasive, be considered by the appeal panel – who in these class size limit cases (but not in others) are not conducting a rehearing. 258 DfE, School Admission Appeals Code (2012), para 4.9. 259 R (Reading Borough Council) v Admissions Appeal Panel for Reading Borough Council and 15 Parents [2005] EWHC 2378 (Admin); [2006] ELR 186. 260 Ibid per Sullivan J at [13] and [15]. 261 Note 257 above, at para 79.

270 School Admission Policies and Decisions If the appeal panel considers that an admission policy is unlawful or ednesbury unreasonable it has a power not to apply it, held Stanley Burnton J W in South Gloucestershire.262 Here the appeal panel had upheld appeals by six children who all had siblings at the school in question. The local authority had argued that to accommodate these children, who lived outside the school’s area of prime responsibility (in effect a catchment area), would force the authority to add an extra class to the school, in order to comply with the class size limit. The admission policy gave second highest priority (after those with special educational needs) to local siblings (living within two miles of the school, or over two miles where the school was the nearest with a place available, or within the school’s area of responsibility). The appeal panel had considered this policy to be unclear and potentially unfair and perverse. However, it proceeded to reach a decision based on its own interpretation of the policy. Stanley Burnton J held that this was a lawful approach. In Hounslow, the Court of Appeal held that that there was no need for an appeal panel in such a case to adjourn in order that the lawfulness of the admissions policy could be determined via judicial review.263 Panels could decide whether a policy was perverse, but earlier case law (in particular, in South Gloucestershire above) should not be taken as inviting appeal panels to embark upon wide-ranging enquiries. They should instead simply look at whether there was self-evident unlawfulness. On the facts, the Court of Appeal held, inter alia, that the panel had not taken into account the particular circumstances of the individual child, which it was required to do for the purposes of deciding whether the local authority’s decision was perverse. Overall, therefore, this process of decision-making requires fine judgment and logical thinking, but it is by no means a straightforward task for these lay appeal panels, even if legal advice is on hand. For parents, particularly those from less advantaged educational backgrounds, the possibility of pressing home an argument in a class size admission case based on the unlawfulness of the admission policy or the irrationality of the decision would be difficult. In one of the reported cases centring on these grounds there were five appeals and most of the parents had legal representation, including one parent of Iranian origin who had no family support in the area.264 The solicitor who acted for several of the appellant parents (presumably there was not considered to be a conflict of interest) presented quite a sophisticated legal argument based on the contention that the Cardiff local authority had erred, first, in allocating places to children residing within the catchment area without considering whether those living outside it might have had a more compelling case, and secondly, by failing to consider individual circumstances, thereby rendering the decision unreasonable.

262 Note 131 above. 263 Note 128 above. 264 R (Khundakji and Salahi) v Admissions Appeal Panel of Cardiff County Council [2003] EWHC 436 (Admin); [2003] ELR 495.

Fair Admissions? 271 Legal aid is not available for admission appeals, placing those unable to afford legal representation at a disadvantage. As it happens, the solicitor’s argument in the Cardiff case proved of no avail. Richards J confirmed that the local authority’s failure to take account of the domestic and other circumstances amounted to an error of law, and the appeal panel had therefore found the authority to have acted unreasonably. But the panel had nevertheless considered that even if the authority had taken account of the individual circumstances it was unlikely to have reached a different conclusion regarding admission. The panel had therefore found against the unreasonableness argument. Richards J held that it had been entitled to do so. The reasonableness test is in fact better described as a perversity test and it is one that it difficult to satisfy in these cases. The success rate for appeals in these cases has been low, a fact that has, at least in the past, apparently led to many panel members to regard these cases as a waste of time and to refuse to sit on them.265 Panel members who do participate in these appeals have been found often to misunderstand how the law is meant to be applied.266

iv. Selection on the Basis of Ability or Aptitude Selection of pupils by academic ability continues to be lawful although there is a statutory bar against the creation of new grammar schools, as discussed in Chapter 3. During the New Labour years of the late 1990s and the 2000s not only was formal selection by ability retained in a number of areas, but selection was extended ‘by introducing the concept of selection by aptitude’ (see below).267 Various forms of selection continue to be permitted.268 Selection by ability is sanctioned in the remaining 163 grammar schools and in schools covered by selection arrangements which were already in place in the year 1997–98. Selection on the basis of aptitude for a prescribed subject or subjects269 is permitted provided the school has a specialism in the relevant subject or subjects and no more than 10 per cent of pupils are selected on that basis.270 The distinction between ‘ability’ and ‘aptitude’ is somewhat obscure in

265 Council on Tribunals, School Admission and Exclusion Appeal Panels Special Report Cm 5788 (London, TSO, 2003), para 2.41. 266 Ibid, para 2.40. 267 House of Commons Education and Skills Committee n 14 above, para 186. 268 SSFA 1998, ss 99–103, as variously amended. 269 The subjects prescribed for this purpose are (a) modern foreign languages, or any such language, (b) the performing arts, or any one or more of the performing arts, (c) the visual arts, or any one or more of the visual arts, (d) physical education or sport, or one or more sports, (e) design and technology, (f) information technology: School Admissions (Admission Arrangements) (England) Regulations 2008 (SI 2008/3089), reg 6. The Admissions Code states that schools wishing to select on the basis of (e) or (f) can only do so where they did so in 2007–08 and have continued to do so since then: DfE, School Admissions Code (2014), para 1.14. 270 SSFA 1998, s 102(1).

272 School Admission Policies and Decisions this context.271 The idea that aptitude should be defined as the propensity to develop an ability was put forward by the schools minister when the legislation was before Parliament in 1998, albeit with a slight degree of circularity: ‘Ability is what a child has already achieved. Aptitude is the natural talent and interest that a child has in a specific subject – in other words, the potential to develop a skill or talent’.272 The School Admissions Code continues not to provide a definition of ‘aptitude’. ‘Ability’ is defined in the 1998 Act as ‘general ability or ability in any particular subject’, but this merely qualifies what is still an undefined term. In its review of secondary school admissions the Education and Skills Select Committee was critical of selection by aptitude, finding the testing of it to be an ‘unnecessary complication in the schools admission process’ and costly in terms of staff time.273 In the 2005 schools White Paper the Government indicated that the arrangements for partial selection on the basis of aptitude would continue because it contributes to a school’s development of ‘a specialist ethos’.274 However, subsequently the Education and Skills Committee complained that it had ‘not yet been presented with a credible explanation of the distinction between ability and aptitude’ and recommended that ‘aptitude selection should now be prohibited in regulations’.275 Selection is also permitted through ‘banding’ arrangements, noted earlier. Partial selection by ability or aptitude under pre-existing arrangements is also permitted.276 Some schools operating partial selection describe themselves as ‘bilateral schools’ because they have a ‘grammar’ stream and a separate comprehensive stream. The arguments for and against grammar schools were outlined in Chapter 3 and the social effects and implications of selective education are discussed below. Here we are only concerned with the legal position and, in particular, how parental choice can be denied through the application of selection criteria. The basic rule is that the duty to comply with parental preference277 does not apply if compliance with the preference would be incompatible with arrangements which are wholly based on selection by reference to ability or aptitude, and are so based with a view to admitting only pupils with high ability or with aptitude.278 Where additional admission criteria are used as well as ones providing for all pupils to be selected by ability or aptitude, then the arrangements as 271 A West et al, ‘School Admissions: Increasing Equity, Accountability and Transparency’ (1999) 46(2) British Journal of Educational Studies 188, 199; House of Commons Education and Skills Committee, Fourth Report, Session 2002–03, Secondary Education: Diversity of Provision (HC 94) (2003) para 189. 272 HC Debs, Standing Committee A, The School Standards and Framework Bill, col 649, 24 February 1998, per Mr Stephen Byers. 273 House of Commons Education and Skills Committee (2003) n 271 above, paras 200 and 201. 274 DfES n 8 above, para 3.20. 275 House of Commons Education and Skills Committee, First Report of Session 2005–06, The Schools White Paper: ‘Higher Standards, Better Schools for All’, Vol 1. (HC 633-I) (2006), para 129. 276 SSFA 1998, s 100. 277 Under SSFA 1998, s 86(2), above. 278 Ibid, s 86(3)(c).

Fair Admissions? 273 a whole are to be treated as providing for selection wholly by ability or aptitude.279 This reflects an important judgment holding that admissions arrangements under which applicants were selected, first, on the basis of ability, and secondly – if there were too many able applicants for the places available – home to school proximity, were lawful.280 In a case such as this, therefore, the decision is to be taken as one made on the basis of ability or aptitude, in other words based on selective admission arrangements. In effect, the other criterion or criteria are operating as a tie-break only. One of the ways in which selection impacts on social mobility and inclusiveness is through the dis-application of the duty to give first priority for admission to looked after or former looked after children, noted above. However, this exception applies only in grammar schools where the selection arrangements provide for ‘only those pupils who achieve the highest ranked results in any selection test to be admitted’.281 If the selective arrangements instead prescribe a standard of attainment necessary for admission, then a looked after or formerly looked after child who has reached that standard must be given first priority.282 They must also be given first priority in schools which are permitted to operate selection because of their pre-existing arrangements, if they meet the necessary ability or aptitude standards.283 Where the school operates a banding system, looked after children must be given first priority within each band.284 There is a parallel exclusion from the duty to comply with a preference regarding sixth form education where there is selection by reference to ability or aptitude.285 The pressure on schools to maximise pupils’ A level results in order to ensure a good showing in the published league tables encourages the firm application of this ground of denying entry to a sixth form. At the same time, there is evidence that more pupils are prepared to change school at the sixth form stage in order to maximise the prospects of success by choosing a school with a good record of examination results. Some of the extra demand for sixth form entry is also the result of government incentives to increase post-16 participation rates, discussed in Chapter 2. Something of a market for sixth form entry is being created in some areas, particularly with the movement from the private sector to state schools at the sixth form stage in order to avoid the cost of private education, the perceived disfavouring of pupils attending independent schools in the admission processes of some university departments, and the barrier represented by many independent schools’ very strict academic threshold for entry to the sixth form.

279 Ibid,

s 86(9). v Kingston upon Thames Royal London Borough Council ex p Emsden [1993] 1 FLR 179. 281 SI 2008/3089 n 269 above reg 8(2). 282 Ibid, reg 8(3). 283 Ibid, reg 10(2). 284 Ibid, reg 11. 285 SSFA 1998, s 86B(4)-(6). 280 R

274 School Admission Policies and Decisions

v. The Pupil has a Record of Two or More Permanent Exclusions The final exception to the duty to comply with an expressed school preference, which also applies to a preference by a parent or child in respect of sixth form education,286 concerns children with a record of permanent exclusion. It was introduced under the EA 1997287 and was re-enacted in the SSFA 1998.288 It applies to children who have been permanently excluded from two or more schools, provided that the last exclusion occurred within the previous two years. The length of time elapsing between the periods of exclusion does not matter: therefore, even if a child was excluded six years ago and then again last year, the admissions authority will have no duty to comply with parental preference. The aim of the exception when first introduced was to relieve schools where discipline was good from having to accept a pupil with a poor disciplinary record.289 Similar reasoning has been applied in Flanders, Belgium, where a pupil excluded in the previous two years may be denied admission and the courts have accepted that the need to protect the rights of other pupils may justify a refusal to accept a pupil who has been excluded for disciplinary reasons.290 The position in England is that while an admissions authority may be willing to allocate a place at a specific school to a child with a record of permanent exclusion it is under no legal obligation to adhere to the parent’s preference for their child to be admitted to that school. As the schools minister said: a school … can choose to admit a pupil who has been excluded two, three, four, five or six times. However, if a school deems that it is not in the interests of the child or the school to meet parental preferences in such circumstances, the clause supports its right to make such a judgment.291

When the SSFA was before Parliament as a Bill, these children were originally referred to as ‘disqualified persons’.292 While that somewhat pejorative term was dropped, the disadvantageous position of the relevant children still faces the criticism that it applies to those children who are already having the greatest difficulty in coping with the schools system. Furthermore, it in a sense doubly punishes the child, particularly given the accompanying denial of a statutory right of appeal during the period that the preference exception applies to him or her.293 Furthermore, if the local authority is the admissions authority and has allocated

286 SSFA 1998, ss 86(2) and 86B(1). 287 EA 1997, ss 11 12, inserting ss 411A and 423A into the EA 1996. 288 SSFA 1998, s 87(1) (as amended by the Education and Skills Act 2008, Sch 1, para 55) and (2). 289 HL Debs, Vol 578, Col 14, 10 Feb 1997, per Lord Henley (Minister of State). 290 See J De Groof, ‘Regulating School Choice in Belgium’s Flemish Community’, in P J Wolf and S Macedo (eds), Educating Citizens: International Perspectives on Civic Values and School Choice (Washington DC, Brookings Institution Press, 2004), 157–86, 175. 291 Official Report, Standing Committee A, Col 549, 19 Feb 1998, per Estelle Morris, Minister of State. 292 D Monk, ‘Failing Children. Responding to young people with “behavioural difficulties”’, in M King (ed), Moral Agendas for Children’s Welfare (London, Routledge, 1999), 212–45, 218–9. 293 SSFA 1998, s 95(1).

Fair Admissions? 275 a school place to an excepted child, the governing body may appeal against the decision to admit the child.294 Some have tried to argue that this treatment of children with a record of exclusion represents a denial of their right to education, since alternative educational provision has traditionally been fairly poor, as was discussed in Chapter 2.295 Such an argument was pursued via judicial review in Alperton School296 where it was claimed that the right to education under the ECHR, A2P1 was denied by the above statutory exception and that it was discriminatory contrary to Art 14 because the exception had a disproportionately greater effect on those who were statistically most likely to be subjected to school exclusion, namely black Caribbean children. It was also argued that the denial of a right of appeal infringed Art 6(1) (right to a fair hearing in the determination of civil rights), an argument which failed on the basis that the case law did not support the classification of the right to education as a civil right for that purpose.297 Newman J rejected the A2P1 argument on the grounds that the statutory exception did not remove the local authority’s obligation to ensure the provision of education for the child in question,298 it simply removed the obligation to comply with parental preference. The removal of that obligation was a consequence and part of the regulation (by the state) of the right of access to education; and, on the facts, the child would be educated.299 The Art 14 claim was dismissed on the basis that the statutory exception itself was not discriminatory and any discrimination that did occur was at the hands of the school/headteacher in the decision on exclusion. However, in dismissing this ground Newman J did, however, state that in his view the provision was ‘reasonable and proportionate to the needs of maintaining discipline in schools’, which obviously shows that he was likely to have found justification for Art 14 purposes. The School Admissions Code warns schools that they are not entitled to refuse to admit a child in their normal admissions round on the basis of his or her poor behaviour elsewhere.300 But an obvious problem with this statutory exception for children with a record of permanent exclusion is that, with the denial of the preference presumption, there is a considerable likelihood that when they enrol at

294 Ibid, s 95(2). The appeal lies to an admission appeal panel constituted in the same way as for parental admission appeals (above), save that no member of the panel may have already adjudicated an appeal in respect of the child in question: School Admissions (Appeal Arrangements) (England) Regulations 2012 (SI 2012/9), Sch, para 3. 295 See C Hamilton, ‘Rights of the child: a right to education and a right in education’, in C Bridge (ed), Family Law Towards the Millenium. Essays for P.M. Bromley (London, Butterworths, 1997), 201–33. 296 The Queen on the application of B v Head Teacher of Alperton Community School and Others; The Queen v Head Teacher of Wembley High School and Others ex p T; The Queen v Governing Body of Cardinal Newman High School and Others ex p C [2001] ELR 359. 297 See, in particular, R v London Borough of Richmond ex p JC [2001] ELR 21 per Kennedy LJ at para 43. See further ch 2. 298 Per EA 1996, s 19, discussed in ch 2, under ‘Alternative provision: the s 19 duty’. 299 Note 296 above, [62]. 300 DfE, Schools Admissions Code (2014), para 3.8.

276 School Admission Policies and Decisions another school it is likely to be at a school which is under-subscribed and where pupil achievement levels are lower than average – a so-called ‘sink’ school. We saw in Chapter 2301 that local authorities can direct a school for which it is not the admissions authority to admit a child who, in respect of ‘each school’ that is a reasonable distance from his/her home, has been excluded permanently from and/or refused admission, and that the direction must specify a school within reasonable distance of the child’s home but cannot be one from which the child is permanently excluded.302 The logic of this is that if the child has been permanently excluded from all reasonably nearby schools no such school could be the subject of a direction. This was confirmed by Munby J in R (B) v Hertfordshire County Council,303 which actually centred on an excluded child but one who was refused admission from a selective school due to achieving an insufficiently high score in a verbal reasoning test. The local authority refused to direct the school to admit the child, who was of above average ability, and he was left with the option of a nonselective school nearer his home. Munby J held that the authority’s discretionary power to direct admission did not apply because ‘each school’ meant ‘every school’.304 The judge accepted that the exercise of the power would be limited to ‘only a few, perhaps a very few cases’,305 but that was consistent with the minister’s expectation when the power was first being introduced that it would not be used frequently because it was ‘rare for a pupil to be excluded from or refused admission to all suitable schools in the area’.306 As was noted in Chapter 2,307 local authorities must have a Fair Access Protocol agreed with schools to facilitate at any point in time the admission of children who face a difficulty in securing a school place due to their social or educational background. Furthermore, if an excluded child seeking admission has an education, health and care plan due to their special educational needs and the school in question is named in the plan the school cannot refuse to admit him or her.308

IV. The Implications of School Preference After a period in which the price paid for uniformity of provision as the key to greater equity in the schools system, as represented by comprehensive schools, was considered to be a lack of both accountability and pressure to raise standards, school preference emerged as a solution which potentially had both popular

301 ‘Alternative

provision and access to education for excluded pupils’. 1998, ss 96 and 97 (both as amended). 303 [2004] EWHC 2324 (Admin); [2005] ELR 17. 304 Ibid, [11]. 305 Ibid, [16]. 306 HL Debs, Vol 544, Col 1538, per Baroness Blatch, Minister of State. 307 Ch 2, n 75. 308 CFA 2014, s 43(2). 302 SSFA

The Implications of School Preference 277 appeal and an ideological underpinning in market-type approaches to public service provision. Extending opportunities for personal choice served a policy agenda based around increasing institutional autonomy and diversity as a means to driving innovation and raising standards through the effects of competition. The problem, however, was that the competition it encouraged between individual parents pursuing their own (family) interests and between schools in trying to recruit not only sufficient pupils but also ones who would serve the school’s interests and aspirations, had the potential to create greater inequality and intensify stratification within the system. We saw, for example, how admission policies which have adopted the use of school catchment areas often favour betteroff parents. The measures introduced under the EIA 2006 and revised School Admissions Code to counter some of the potential inequalities resulting from the operation of school choice, by creating a fairer admissions system in which class barriers are greatly reduced, have not removed inherent advantages enjoyed by parents in higher socio-economic groups as, for example, the most active school choosers (in terms of reading Ofsted reports, viewing league tables, attending open days etc) and with the greatest capacity for moving home with a view to securing a place at a good school.309 Three decades on the from the Education Reform Act 1988 which fully established the quasi-market for schooling based on choice and competition there is now considerable evidence relating to the effects of school choice policy. There are two principal issues that warrant particular consideration. First, what is the true extent of the realisation of choice? We know that particularly successful schools tend to be oversubscribed and that in many areas securing a first preference is not guaranteed. We also know that particular admissions criteria restrict choice for some, if not many, parents. But how many parents secure a school of their choice, and what contribution does the admission appeal system make? The second issue concerns the wider social effects of school admissions policies and the operation of the law: just how much segregation (still) arises?

A. The Reality of ‘Choice’ On the first question, relating to the realisation of choice, the law only affords a procedural right to express a preference and have it taken into account. There is a legal presumption in favour of the granting of the preference, but the bases on which it can be denied mean that it would be erroneous to talk of a right to choice of school. The statistics published over the years, based on surveys, have consistently shown that the proportion of parents who secure their first

309 See R Montacute and C Cullinane, Parent Power 2018. How parents use financial and cultural resources to boost their children’s chances of success (London, The Sutton Trust, 2018) and M Haddad (ed), School Admissions (London, Social Market Foundation, 2004).

278 School Admission Policies and Decisions preference school varies from area to area, tends to be much lower in London than elsewhere, but nationally usually falls between 85–89 per cent, although the secondary school national rate was at its lowest level for over ten years (at 80.9 per cent) in 2019.310 A report on secondary school admissions for the DfE by Matthew Weldon, showed that in 2013, 74 per cent of first choices in London were granted compared to 88 per cent nationally (a similar disparity is also found in the latest figures).311 Weldon also reveals that there is a racial disparity in first preference success, with white people being successful in 93 per cent of cases compared to 75 per cent for black and Asian parents.312 In urban areas, but particularly in London, the effects of cross-boundary applications and the density of population mean there will potentially be greater competition for places. In less urban areas, where fewer members of ethnic minorities tend to live, there are fewer schools, particularly at secondary level, but much less competition for places. However, Weldon also shows how there are differences in the ways in which ethnicity affects the choices made – for example, black families are more likely to seek places at church schools, which are often over-subscribed.313 It is also important to view the first preference statistics in light of the factors that may constrain parental choices. Weldon explains that in exercising their preference parents may act strategically by seeking to avoid applying for a school at which, in their assessment, an offer of a place is unlikely. Their selection intends to avoid the risk that an unsuccessful application for such a school – even if it is the one they would most like for their child – would result ultimately in the allocation of a place at a school they really do not want for their child.314 This may be particularly relevant to schools which use religious admissions criteria. A parent may crave a place at the most academically successful school in the area, but if it is a denominational school and oversubscribed, and he or she is not a member of the particular faith, there may be perceived to be little point to applying for a place. The way these elements are factored into admission allocation systems is outlined by Weldon.315 Parents are invited to select and rank between three and six schools in order of preference, although many parents will select only one

310 See Audit Commission, Trading Places (London, Audit Commission, 1996); J Flatley et al, Parents’ Experience of Choosing a Secondary School (Research Report 278) (London, DfES, 2001); S Kirkham, S Freeman and T Halpin, ‘Distress of 70,000 children who must make do with second best’, The Times, 5 Mar 2005; M Weldon, Secondary school choice and selection. Insights from new national preferences data. Research Report. August 2018 (London, DfE, 2018); and DfE, Secondary and primary school applications and offers: March and April 2019 (London, DfE, 2019), table A, which also reports (at 1) that nationally over 93% of applicants for secondary school places and 97.5% of applicants for primary school places secured one of their top three preferences in 2019. 311 Weldon n 310 above, 19; DfE (2019) n 310 above, 3–5. 312 Weldon n 310 above, 19. 313 Ibid, 8–9. 314 Ibid, 15. See also House of Commons Education and Skills Committee, n 14 above, paras 121–125. 315 Weldon n 310 above.

The Implications of School Preference 279 or two. When the local authority receives these lists it informs the schools of the choices made, although not the parents’ individual rankings. For each oversubscribed school a ranking list of applicants is prepared – by the local authority in respect of its own schools or by own admissions authority (OAA) schools (including academies and voluntary aided schools) themselves. Local authorities then receive these lists and have to allocate a place to each child with an aim of doing so fairly and so far as possible in accordance with the different parties’ priorities. This is, as one might expect, not a straightforward process. Weldon explains that in seeking to reconcile the preferences and priorities efficiently there is a need to draw upon ‘a substantial body of theory in the fields of economics and computer science’.316 Almost all local authorities use a ‘Deferred Acceptance’ (DA) algorithm in order ‘to compute an allocation that satisfies some criteria of fairness and maximises satisfaction’.317 A DA algorithm is also widely used for this purpose, and with these objectives, in the US, where similar ‘enrollment priorities’, such as siblings, proximity and free meals, to those in England are adopted.318 The algorithm is apparently based on Nobel-Prize winning research in Economic Sciences.319 Its widespread adoption internationally may be assumed to reflect its apparent success – for example, in the year following its introduction in New York City, which occurred in 2003, the total number of children who failed to secure an offer of a school place at one of their chosen institutions fell to 3,000 from 30,000 the previous year.320 The use of algorithms offers significant potential efficiency and effectiveness gains for the governance of public services, including decision-making, but raises concerns around issues of transparency and accountability, particularly in view of the risk of inbuilt biases and flaws, as highlighted by the House of Commons Science and Technology Committee, which has called for better regulatory oversight and scrutiny.321 There is not the scope here to discuss issues surrounding algorithm usage further, but in the case of school admission policies the key point is that the methodology appears not to eliminate the inbuilt disadvantage experienced by poorer and minority ethnic pupils with regard to being admitted into OAA schools, particularly faith schools.322 The algorithm may aid the administration of the process of allocation, but the exclusionary effect of some admission criteria on parental choice will not be eliminated. The appeal process, discussed earlier in the chapter, does offer some hope of the realisation of choice in individual cases where there is a preparedness to challenge the admissions decision. Over each of the past two years, four per cent 316 Ibid, 14. 317 Ibid, 14. 318 M Benner and U Boser, Expanding Access to High Quality Schools (Washington DC, Center for American Progress, 2018), which contains (at 8) a good explanation of how the DA algorithm works. 319 Ibid, 8. 320 Ibid, 2. 321 Fourth Report of Session 2017–19 (HC 351) Algorithms in decision-making (2018). 322 Weldon n 310 above, 38.

280 School Admission Policies and Decisions of admission decisions have been challenged via an appeal (although one third of appeals did not progress to a hearing).323 While that appears to be a low percentage, one has to bear in mind that approximately 12 per cent of parents failed to secure their first choice in the admissions round in 2017–18, so it would appear that roughly one in three parents who were unsuccessful lodged an appeal. Of the 44,501 appeals that were heard, 22 per cent were upheld, although there was some variation according to type of school.324 A slightly higher percentage of appeals succeeded in primary schools than in secondary schools, but the primary school appeal rate was lower.325 During almost the entirety of the first decade of this century the annual proportion of appeals that were successful was above 30 per cent, but since 2013–14 the rate has been consistently lower, indeed below 25 per cent annually.326 This appears to suggest that the appeal process is a less effective mechanism to take to ensure the realisation of one’s choice. This is particularly so given that the proportion of admission authority decisions in which first choice preference was upheld is virtually unchanged over the past decade and a half and seems not to have been affected by the greater freedom schools have had since 2012 to increase their PAN as a result of the removal of their duty to consult locally on the planned change and through preventing objection to the OSA to such an increase (or a lack of change).327 If that freedom has resulted in more places becoming available at popular schools it does not appear to have resulted in an increase in grants of first preference overall, but national and local demographical trends also have to be factored in. The reduced appeal success rate is unlikely to be attributable to the increased use of random allocation tie-breaks, noted above, and it is unclear whether, for e xample, more appeals are conceded by local authorities prior to a hearing, but this seems unlikely. The one obvious variable is the number of schools which are their own admissions authority, which has grown due to the huge expansion in the academy sector (discussed in Chapter 3). Just over half of these schools handle their own appeal arrangements – in the others the arrangements are wholly or partly made by the local authority – and concerns have arisen that in some cases appeals may not be operating fairly, including cases reported to the OSA where ‘some panel members are told by the admissions authority, before the hearing commences, what decision to give after the hearing finishes’, although the OSA has commented that such cases are not widespread.328 The success rate for appeals relating to both voluntary aided and

323 DfE n 67 above, Table A. 324 Ibid. 325 Ibid, 5. 326 Based on annual admission appeal statistics published by the DfE. 327 See SI 2012/8 above n 98, regs 14, 15 and 21. 328 OSA, Office of the Schools Adjudicator Annual Report, September 2016 to August 2017 (London, OSA, 2018), para 67.

The Implications of School Preference 281 academy schools, many of which are OAAs, is above the overall average.329 But the official statistics do not differentiate between schools which are or are not OAAs and it is impossible to know whether VA schools or academies which are OAAs are upholding a greater or lower than average proportion of appeals.

B. Segregation and Stratification The other important issue relating to school choice concerns its role in segregation and stratification. Segregation is the more palpable consequence of school choice. Indeed Jenkins et al conclude: ‘Most segregation in England is accounted for by the uneven spread of children from different social backgrounds within the state [school] sector’.330 The deleterious consequences of the de facto segregation arising from school choice include the lack of sustained personal contact between those from different social and cultural backgrounds. This deprives them of the opportunity for everyday interaction which could ‘change attitudes and … disconfirm stereotypes and create empathy with others’.331 Segregated schools are partly the result of residence patterns but also, and insofar as residence areas map onto school catchment areas or neighbourhoods, or vice versa, as a result of the impact of school admission policies. As was discussed earlier, measures have been taken through legislative changes and revisions to the School Admissions Code to reduce inequality and disadvantage based on socio-economic status and other personal circumstances, in the admissions process. The greatest transformation has occurred in the position of looked after children, mandatorily prioritised in all schools’ admission criteria since 2006 whereas, in secondary schools, they were prioritised by only two percent of schools’ admission criteria in 2003.332 In theory, any resultant redistribution of power across class divides in relation to school choice should have manifested in a widening of access to state schools where the children of more privileged parents tend to be concentrated. Yet there has not been a fundamental shift in the oversubscription criteria that are typically employed to prioritise admissions and which have long been regarded as enabling schools to select pupils in unfair and unequal ways.333 Catchment areas, for example, continue to operate in ways that reinforce class divisions in some areas. In a survey of the top 500 comprehensive schools,

329 DfE n 67 above, Table A. 330 S Jenkins, J Micklewright and S V Schnepf, Social Segregation in Secondary Schools: How Does England Compare with Other Countries?, ISER Working Paper 2006–2 (Colchester, University of Essex, 2006) 19. 331 T Cantle, Interculturalism. The New Era of Cohesion and Diversity (Houndmills, Palgrave Macmillan, 2012) 131. 332 A West and A Hind, Secondary Schools Admissions in England: Exploring the extent of overt and covert selection. Final Report (London, RISE/LSE, 2003) 4 and 8. 333 See, eg, A West, A Hind and H Pennell, ‘School admissions and “selection” in comprehensive schools: policy and practice’ (2004) 30(3) Oxford Review of Education 347.

282 School Admission Policies and Decisions judged by pupil achievement levels, there was a house price premium of over 20 per cent, in the sense that average house prices in these areas exceeded the average in the rest of the local authority area by that amount.334 Admission criteria enabling pupils to be selected on general academic ability or aptitude grounds are also considered to be problematic because the separation of children by ability reinforces wider social segregation as well as disparity in educational achievement which contributes to ‘inequality in later-life outcomes’.335 More generally, children from poorer backgrounds are far less likely to be enrolled at the highest achieving schools, regardless of whether or not they are comprehensives. Cullinane et al found that the proportion of the pupils at the top 500 comprehensives who were entitled to free school meals was around half that for secondary school pupils as a whole.336 Religious divides are also maintained and many parents face a more limited choice as a result of religious priority operated by faith schools, which Cullinane et al’s survey revealed to be among the most socially selective category of school.337 New academies and free schools are at least required by their funding agreements to hold 50 per cent of school places open for those who are not of the particular faith. However, some faith bodies, particularly the Roman Catholic Church, have apparently felt deterred from opening free schools because they consider the 50 per cent rule to conflict with the requirements of their religion.338 As noted in Chapter 3, in 2016 the Government proposed to abolish the 50 per cent requirement, arguing that its contribution to inclusion and community cohesion was ‘questionable’ since in these schools, or at least in those catering for the Hindu, Jewish, Muslim and Sikh faiths, the intake has been ‘predominantly of pupils from similar ethnic backgrounds’.339 It was further argued that in those Christian schools which were not subject to the 50 per cent cap (namely voluntary aided or converter academy schools), there was actually greater ethnic diversity among pupils.340 This is a partly flawed rationale, however, because the figures quoted by the DfE are only for ethnicity and do not include religion or lack of one. There are many children of a minority ethnic background in the UK who are Christian, whether born here or here as a result of migration. As Clarke and Woodhead point out, ‘many Catholic schools have high ethnic diversity because of migration of Catholics from many countries … but low religious diversity’.341 334 C Cullinane, J Hillary, J Andrade and S McNamara, Selective Comprehensives 2017. Admissions to high attaining non-selective schools for disadvantaged pupils (London, Sutton Trust, 2017) 18. 335 Jenkins et al n 330 above, 1. 336 Cullinane at al n 334 above, 9 (Table 1). 337 Ibid, 3. See also R Allen and M Parameshwaran, Primary schools, catchment areas and social selection (Research Brief) (London, Sutton Trust, 2016). 338 HC Debs, Written Answers, WA 118526, 14 Dec 2017 and WA 124197, 22 Jan 2018, both A Milton MP. See further P Barber, ‘Catholic Schools and the Admissions Cap’ (2018) Law & Justice (No 181) 207. 339 DfE, Schools that Work for Everyone (London, DfE, 2016) 30 and 31. 340 Ibid, 31. 341 C Clarke and L Woodhead, A New Settlement Revised: Religion and Belief in Schools (2018) 41: http://faithdebates.org.uk/wp-content/uploads/2018/07/Clarke-Woodhead-A-New-Settlement-Revised.pdf.

The Implications of School Preference 283 The Government has proposed ‘strengthened safeguards to promote inclusivity’ but allowing for the possibility of recruitment of up to 100 per cent of pupils on the basis of their faith.342 The safeguards it outlined were, however, unconvincing. First, new faith schools would have to provide evidence that parents of other faiths would be happy to send their children to their school, a ridiculous ‘safeguard’ against de facto segregation since if these schools could continue to prioritise members of their faith without limit it would not matter how willing other parents would be to apply to the school when it was likely that most if not all places would go to faith members. Secondly, it was proposed that there should be twinning arrangements with other schools not of their faith (involving, for example, joint lessons and assemblies), which is far from being truly inclusive, integrated provision. Thirdly, the new faith schools would be encouraged to set up mixed faith academy trusts, with a governor or director of a different faith, which fails to ensure that children from a number of different faith backgrounds learn and socialise together at school. The Government’s proposal also flew in the face of evidence of parental viewpoints on the issue, since a Populus opinion poll apparently found that 67 per cent of Roman Catholics, 71 per cent of Christians overall, and 60 per cent of the public as a whole supported a retention of the 50 per cent requirement.343 In the event, in May 2018, 18 months after announcing the proposed change, the Government dropped it although proposed that capital funding would be given to local authorities to increase faith school provision in their areas via new voluntary aided schools, which are of course not subject to the 50 per cent rule.344 It was perhaps a surprising reversal, notwithstanding the criticism of the original plan, since it went against the Government’s policy of promoting academy and free schools at the expense of the local authority sector. But like the original proposal, the extra funding that has been promised has the potential to exacerbate social segregation. While some have argued that the 50 per cent rule should be extended across all denominational schools, at least for new intakes, the obvious difficulty would be that it would result in far fewer faith school places being available for faith members at their own faith’s schools; indeed, they may find it impossible to secure a place at such a school in their locality.345 A lower threshold – such as the 25 per cent quota floated briefly by the Blair government – would, however, be more manageable and would probably receive overall national support. Aside from the way that, as noted above, the prioritisation of religious affiliation in faith schools’ admissions policies can result in segregation along ethnic lines, it is also the case that housing patterns may mean that because of school catchment areas, children of a specific ethnic group may be particularly 342 DfE n 339 above, 31. 343 Cited by Lord Taverne in a Parliamentary Question: PQ HL6211, 8 March 2018. 344 HC Debs, Vol 641, Col 40, 14 May 2018, Damian Hinds, Secretary of State for Education. See also BBC News Report ‘Grammar schools and faith schools get green light to expand’ 11 May 2018, www. bbc.co.uk/news/education-44067719. 345 That was a reason underlying the allocations policy in Lancashire schools that was upheld in R v Lancashire County Council ex p F: n 117 above.

284 School Admission Policies and Decisions prevalent within a school’s intake. Also, parents of a particular ethnic background could prefer schools in which their children are most likely to be among others of a similar background.346 Dame Louise Casey’s report on integration notes how those who have similar backgrounds tend to ‘make similar choices’ and finds some evidence that if people find that their child will be in a minority in the school nearest their home they are likely to look for a lternatives.347 As the school choice quasi-market developed in the 1980s and 1990s the perceived risk that de facto racial or ethnic segregation would increase as a result was one of the principal concerns. A catalyst for these fears was the well publicised case of ‘white flight’ in Dewsbury in 1988 when a group of white parents rejected school places allocated their children by the local authority, because they were in a school which had a high proportion of Asian children.348 These parents instead made arrangements to provide the children with classes in a room above a public house. Hardy and Vieler-Porter have referred to rights of choice as potentially facilitating and offering encouragement to ‘racist “white flight” from multiracial schools’.349 A government report into inter-racial disturbances in the north of England in 2001 noted: ‘Parental choice [of school] can unfortunately increase segregation … Some choices are motivated by ignorance and fear of other cultures …’350 The problem was potentially more acute in areas with existing levels of segregation across schools because of wider segregation between communities, such as in some northern towns with large Asian populations. Ofsted referred in 2003 to a local authority in the north of England where there was – de facto segregation – out of nine secondary schools only two or three could claim a real mix of pupils of different ethnic backgrounds within their intake … an increasing trend for parents of Asian heritage to send their children to independent Muslim faith schools, so entrenching … segregation.351

A government report in 2004 noted that in some schools in such areas there was an almost 100 per cent ethnic minority (such as Bangladeshi) intake.352

346 This is a phenomenon that is by no means confined to schools in the UK: see, eg, P J Wolf and S Macedo (eds), Educating Citizens. International Perspectives on Civic Values and School Choice (Washington DC, Brookings Institution Press, 2004). 347 Dame L Casey, The Casey Review. A review into opportunity and integration (London, Department for Communities and Local Government, 2016) para 3.82. 348 See A Bradney, ‘The Dewsbury Affair and the Education Reform Act 1988’ (1989) 1 Education and the Law 51. 349 J Hardy and C Vieler-Porter, ‘Race, Schooling and The 1988 Education Reform Act’, in M Flude and M Hammer (eds), The Education Reform Act 1988. Its Origins and Implications (London, Falmer, 1990), 173–85, 178. 350 Office of the Deputy Prime Minister Housing, Planning, Local Government and the Regions Committee, Sixth Report of Session 2003–04, Social Cohesion Vol.1 HC 45-I (2004), para 55. 351 Ofsted, School place planning. The influence of school place planning on school standards and social inclusion HMI 587 (London, Ofsted, 2003), 23. 352 Office of the Deputy Prime Minister n 350 above, paras 50 and 51, citing two schools with 100% Bangladeshi intake and another that is ‘96 per cent Asian’.

The Implications of School Preference 285 Casey reports a similar degree of segregation in 2016.353 She refers to there being 390 state funded primary schools and 81 secondary schools where 50 per cent or more of the pupils were of Bangladeshi or Pakistani origin and 39 primary and four secondary where the proportion was 90 per cent or more.354 Casey cited residence and parental and pupil choice as among the main factors affecting the degree of segregation across schools.355 Allen et al have found that while there has been a small decline in segregation across the school system since the 2006 admission law reforms, the problem persists.356 With a view to reducing it wherever possible, they recommend that admissions in any area should be handled by ‘an independent body’ which would set admissions criteria across all schools in an area.357 Tough and Brooks, for the Institute for Public Policy Research, have similarly argued that the management of local admissions should be centralised, although they consider that local authorities are well placed do this as an extension of their existing role, to prevent the ‘covert’ selection that can occur in OAA schools in particular and ensure that segregation is minimised.358 It is claimed by both Allen et al and Cullinane et al that the effects of segregation and the frequent mismatch in socio-economic terms between schools’ intakes and the local population would be ameliorated, and a much more socially distributive admissions system could be achieved, by adopting banding or ballots (random allocation),359 which were discussed earlier. Both methods are said to ‘focus competition and popularity on the quality of provision rather than the social characteristics of the intake’.360 Nevertheless, for schools which are oversubscribed, additional criteria may also need to be applied, and there may also be objections if the arrangements do not seek to place children near to their home, at a school attended by their sibling, or somewhere that is most compatible with social or medical factors affecting them. Ballots are currently only sanctioned by the Admissions Code as tie-breakers and, as discussed earlier, concerns arise that if they were the sole or principal basis for allocation they would be inconsistent with normative expectations of rationality and decision-making on an individualised basis – where the individual needs and circumstances of children, the personal wishes of parents, and the nature and character of the school(s) available, are the key determining factors. 353 Dame L Casey n 347 above. 354 Ibid, para 3.80. 355 Ibid, para 3.82. 356 R Allen, J Coldron and A West, ‘The effect of changes in published school admissions on pupil composition’ (2012) 27(3) Journal of Education Policy 349. An academy in Oldham, an area where there has been much de facto segregation, formed of two ‘ethnically homogenous’ secondary schools in 2010, is an example of integration: see N Parveen, ‘“Integrated inside and out” Merged school defies “divided Oldham” narrative’, The Guardian, 12 May 2019. 357 Allen et al n 356 above, at 363. 358 S Tough and R Brooks, School Admissions: Fair Choice for Parents and Pupils (London, IPPR, 2007) 4 and 19. 359 Allen et al, n 356 above; Cullinane et al, n 334 above. 360 Allen et al, n 356 above, 363.

286 School Admission Policies and Decisions

V. Conclusion This chapter has sought to explain the different and rather complex ways in which the law governing school admissions in England governs the process in which parents (and young people (aged over 16)) can have a reasonable prospect of choice of state sector school. The majority of parents secure a place at their first preference school, although not all expressed first preferences are ones that the parents would have opted for in an ideal world, since a strategic approach will often be adopted which takes account of the ways in which some schools will, because of the admission criteria, be perceived by some parents to be out of reach – for example, due to catchment area or faith criteria – and so will not be selected by them. Either way, even with a right of appeal, there are no legal guarantees of choice. What are considered by parents to be the best schools are often over-subscribed and, in such cases, those seeking places at them are not only competing with each other, often with considerable accompanying anxiety, but are also potentially hindered by the restrictive effect of admission policies. These policies are intended to facilitate authorities’ decision-making by prioritising applications and doing so in ways often intended to serve the admission authority’s interests, whether for example cultural (as in the case of faith-based criteria) or academic (as with selection by ability), benefiting some parents and children but limiting opportunities for others. School choice was instrumentalised in the 1980s in order to facilitate the development of a competitive quasi-market for education that was being established as a means of driving up school standards and extending schools’ accountability while also encouraging educational entrepreneurialism. However, markets for services tend to be neither governed by equity nor to operate in ways that are generally conducive to social equality, and so need effective regulation and compensatory mechanisms intended to curb their excesses and maintain a more equal balance between service users and providers. Moreover, since education is a vital public service from which all citizens are intended to benefit and in which all have a stake there is also a need to ensure that allocation mechanisms ensure fair access as between citizens. Equality law, discussed in Chapter 4, can only go so far in that regard, but measures have also been taken to bring greater equity into the way the law on school admissions enables the distribution of school places to be determined. It has not gone as far as it could, for example by requiring all faith schools funded by the state, rather than merely some, to reserve some places for those of other or no faiths – an arrangement that some faith schools have at least voluntarily adopted. Despite the regulatory effects of the School Admissions Code and the OSA’s powers, together with the tightening up of specific aspects of admission practice – such as the curb on interviewing and the introduction of a requirement to prioritise looked after children – there has been little shift in the control of admission criteria. As a result, not only is school choice enjoyed unequally, but even more problematically it continues to operate in ways that contribute to social segregation and underline social stratification.

6 Secular Education in the State Sector: A Curriculum for All? I. Introduction The school curriculum in state schools is recognised as a matter of considerable social importance, not least because of the way that it encompasses not merely specific knowledge areas and formal programmes of teaching and learning but also because of its wider role in the instillation of values and social norms. Schools are expected to play a key role in helping to influence children’s development in ways that not only ensure individual academic success, with the wider social and economic benefits that flow from it, but increasingly also in preparing pupils for later life and responsible citizenship. The curriculum’s wider role in shaping attitudes and ways of behaving towards others, including via what is sometimes referred to as a ‘hidden curriculum’, has come more closely into focus as a result of the increasing awareness of various risks to children within modern society and the perception that education has a potentially vital role in both reducing them and protecting children from them. Prominent examples of how that role has been developing, discussed in this chapter, include the introduction of a requirement that schools teach ‘fundamental British values’, the responsibilities placed on schools in relation to combatting extremism, and the new framework on relationships and sex education and health education that is due to come into operation in 2020, plus a separate initiative on mental health. Such requirements form part of what has become a highly elaborate and wide ranging legal and policy framework governing secular education which has developed over the past three to four decades driven by a centralising trend in relation to the curriculum, exemplified by the introduction of the National Curriculum, but modified to ensure a degree of flexibility as the schools system became more diverse, in ways described in Chapter 3. One of the fundamental tenets of state education systems is universality, in the sense that they should cater for all children regardless of their backgrounds or levels of need. That is certainly reflected in many of the norms prescribed under international law. That does not mean that a degree of personalisation should not be expected, so that provision may be tailored in some cases to the precise needs of the child. This is particularly important in the case of those with special educational needs and disabilities; the legal requirements on provision for such

288 Secular Education in the State Sector: A Curriculum for All? children are considered in Chapter 9. However, there is a practical limit to delivering personalised education on a wide scale. So, for the most part, a reasonable expectation would be that the curriculum is inclusive and able to cater for the diverse needs and abilities of a large majority of children. Yet, as discussed at various points in this book, the pupil population in many parts of the UK and indeed other European states is also culturally diverse and it is this which has prompted debate about the need for multicultural education and teaching that emphasises common values, as discussed in Chapter 1. But, as has also been noted, there are fundamental rights protecting the interests of minorities in the context of education and they have had a particular role to play in cases where the common curriculum clashes with minorities’ cultural values and beliefs. So it is important to consider not merely how the law regulates the content of education but also how far it ensures respect for, and upholds, the interests of those for whom curricular prescriptions represent a threat to their cultural integrity. Another issue relevant to the way the curriculum is regulated concerns children’s rights. Insofar as there is any choice over the content of individual children’s education, domestic law has tended to extend it to parents exclusively. Yet children have independent education rights under international law and their voice gains increased currency, in legal terms, as their age and maturity advance; so it is important to consider how far their agency and autonomy are recognised and how any conflict between their accrued rights and the rights of their parent over the content of their education can be resolved. This chapter examines these issues against the background of the evolving legal framework governing the secular curriculum in England. In the next chapter it focuses specifically on religion in education, where analysis of some of these themes continues. Issues of children’s rights and autonomy, and inclusion, are also discussed in Chapter 9 in the specific context of provision for those with special educational needs and disabilities.

II. Centralisation and a National Curriculum A. Intervention, Prescription, and Control A process of centralisation of the state school curriculum, other than religious education, began in the 1980s. The secular curriculum had always been in the hands of the state, post 1944, but the content was locally determined and governed by local education authorities. Despite the establishment of a Schools Council for the Curriculum and Examinations in 1964, which was intended to offer national guidance, and notwithstanding the Department for Education and Science’s increasing interest in local school curricula,1 there was no real attempt to centralise

1 DES

and the Welsh Office, Local Arrangements for the School Curriculum (London, DES, 1979).

Centralisation and a National Curriculum 289 curriculum control. Moreover, central government recognised that the established legislative framework provided little power to direct LEAs over curriculum policy.2 The involvement of the Schools Council, which included representatives of teachers, LEAs, and further and higher education sectors, as well as the Department, may have inhibited central government interference. However, the Council’s abolition in 1984, thereby diminishing the influence of the teaching profession at a national level, was predicted to leave the door open to central prescription.3 The Department increasingly filled the space left by the Schools Council on curricular matters and it was clear that the locus of power had shifted from LEAs and teachers to ministers.4 In the mid-1980s selected areas of the curriculum were for the first time placed under central regulation, before the wholesale centralisation that occurred under the Education Reform Act 1988 through the introduction of the National Curriculum. In the Government’s schools’ White Paper in 1985 came the first real signals of reform. The White Paper highlighted the lack of clear and consistent curriculum policies, including aims and objectives, at school or local authority level, as a significant cause of the failure by a number of primary and secondary schools to reach high standards of education.5 At first the balance of power went unchanged as the Government was content to maintain the traditional tripartite responsibility for curriculum policy. Central government had only a broad promotional responsibility for education,6 LEAs retained overall responsibility for the secular curriculum,7 and teachers and schools determined precise content and chose the broad philosophical approach. The White Paper argued that it ‘would not be right’ for the Secretary of State’s policy on 5–16 education ‘to amount to a determination of national syllabuses’.8 Nonetheless, this was also a period in which LEAs’ role was being downgraded more generally, while school governing bodies’ powers and responsibilities were being extended, as discussed in Chapter 3. Consistent with that policy trend, school governing bodies were placed under a duty to specify a statement of curriculum policy for their school and later a policy on sex education.9 Of particular significance was the removal by the Education (No 2) Act 1986

2 See House of Commons Education, Science and the Arts Committee, Second Report 1981–82, The Secondary School Curriculum and Examinations (HC 116-1) (London, HMSO, 1982), ch 9 and the reply by the Secretary of State. 3 M Plascow, ‘A long view from the inside’, in M Plascow (ed), Life and Death of the Schools Council (London, Falmer, 1985) 1; D Coulby, ‘From educational partnership to central control’, in L Bash and D Coulby (eds), The Education Reform Act: Competition and Control (London, Cassell, 1989) 9. 4 For detailed historical reviews, see P Meredith, Government, Schools and the Law (London, Routledge, 1992) and N Harris, Law and Education: Regulation, Consumerism and the Education System (London, Sweet and Maxwell, 1993). 5 DES, Better Schools (Cmnd 9469) (London, HMSO, 1985) ch 1. 6 Under the EA 1944, s 1. 7 Ibid, s 23. 8 DES n 5 above, para 36. 9 Education (No 2) Act 1986, s 18(1) and (2); Education Act 1993, s 241(1).

290 Secular Education in the State Sector: A Curriculum for All? of LEAs’ power of control over the secular instruction in most types of school,10 while head teachers – or the governors of voluntary aided (mostly Roman Catholic) schools and, later, grant-maintained schools11 – became responsible for the ‘determination and organisation of the secular curriculum’.12 Under the 1986 Act, LEAs had merely a duty to prepare and maintain a policy on secular provision, giving consideration to the range and balance of the content.13 After the introduction of the National Curriculum under the Education Reform Act 1988, central regulation of the content of school education was firmly established and in many respects uncontroversial. But it is important not to underestimate the significance of the other prescriptions just a few years earlier under the 1986 Act aimed at regulating the approach to sex education and at preventing political bias and ensuring a balanced presentation of political issues in schools. The subjection of both of these areas of the curriculum to legislative controls represented an unprecedented degree of central interference at the time. There was a belief by the Thatcher Government that local authorities and to a lesser extent the teaching profession had allowed the ideology and dogma of the left, and an unduly liberal approach towards certain curriculum areas, to have an inappropriate influence over children’s education, to the detriment of quality and moral standards: ‘trendy teachers’ were ‘subverting traditional moral values and selling the nation short’.14 The 1986 Act’s regulation of sex education took the form of a requirement that sex education provided to pupils should be ‘given in such a manner as to encourage those pupils to have due regard to moral considerations and the value of family life’.15 This value-laden duty is still in force and is discussed further below.16 There was also the controversial attempt to prevent the promotion of homosexuality in schools, after the Government sought to respond to an apparent moral outrage in some quarters at attempts by some teachers to ‘normalise’ homosexual relationships. Its 1987 circular on sex education had stated that there was ‘no place in any school in any circumstances for teaching which advocates homosexual behaviour, which presents it as the “norm”, or which encourages homosexual experimentation by pupils’.17 While there was no attempt to prevent all references to homosexuality within sex education, the circular advised that the subject should be handled carefully in order to avoid ‘deep offence’ to those for whom ‘homosexual practice is not morally acceptable’, such as those of 10 Sch 6, repealing s 23 of the EA 1944. Their control did not apply in aided schools (mostly Roman Catholic), where it was enjoyed by the governing body: EA 1944, s 23(2). 11 As regards grant-maintained schools, see ch 3 under ‘Choice, diversity and institutional autonomy’. 12 Education (No 2) Act 1986, s 18(5); and articles of government only, in the case of grant-maintained schools. 13 Ibid, s 17. 14 G Whitty, ‘The New Right and the National Curriculum’, in M Flude and M Hammer (eds), The Education Reform Act 1988: Its Origins and Implications (Basingstoke, Falmer, 1990) 21–36, 23. 15 Education (No 2) Act 1986, s 46. 16 EA 1996, s 403. 17 DES, Sex Education Act School, Circular 11/87 (London, DfES, 1987), para 22.

Centralisation and a National Curriculum 291 particular religious faiths.18 Subsequently the Government proposed ‘clause 28’, which became section 28 of the Local Government Act 1988.19 This ‘notorious’ measure20 provided that local authorities must not ‘intentionally promote homosexuality or publish material with the intention of promoting homosexuality’ nor ‘promote the teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship’. It will be seen that this duty was placed on local authorities rather than teachers or schools. This most controversial of provisions generated a huge amount of comment (see below) and an active campaign for its repeal, which finally occurred under the Local Government Act 2003.21 The attack on political bias took the form of a proscription of the ‘promotion of partisan political views in the teaching of any subject in the school’22 and the imposition of a duty on LEAs, school governing bodies and head teachers to take reasonable steps to ensure that when ‘political issues are brought to the attention of pupils’ they should be ‘offered a balanced presentation of opposing views’.23 The concern that there might be attempts by schools to radicalise young children in a political sense also led to the inclusion of a further duty to forbid ‘partisan political activities’ by junior pupils at school or the making of arrangements for such activities off school premises.24 Whether or not these anti-bias duties, which are now in the EA 1996,25 were needed is still unclear. The absence of any subsequent official evidence of political bias in teaching could prove that the law has worked well; on the other hand it could show that it was unnecessary in the first place. The fact that there has been but one legal action alleging breach of the duties (the Dimmock case, discussed below) reinforces the argument that the provisions are targeted at an almost non-existent problem. Moreover, even though research into the teaching of environmental issues has shown how finding an entirely neutral and balanced approach to adopt in teaching is near impossible,26 there is a degree of legal flexibility over what constitutes balance. With regard to the forbidding of partisan political activities by junior pupils, there is a potential conflict with Art 15 of the UNCRC, by which states’ parties ‘recognize the rights of the child to freedom of association and to freedom of peaceful assembly’. The Article provides that the only restrictions that may be placed on this right are those imposed by law ‘which are necessary in a democratic society

18 Ibid. 19 This inserted new s 2A into the Local Government Act 1986. 20 D Monk, ‘Challenging homophobic bullying in schools: the politics of progress’ (2011) Int. J. Law in Context 181. 21 Local Government Act 2003, s 122. 22 Education (No 2) Act 1986, s 44(1). 23 Ibid, s 45. 24 Ibid, s 44(1) and (2). 25 EA 1996, s 406. 26 DRE Cotton, ‘Teaching Controversial Environmental Issues: Neutrality and Balance in the Reality of the Classroom’ (2006) 48 Educational Research 223.

292 Secular Education in the State Sector: A Curriculum for All? in the interests of national security or public safety, public order … the protection of public health or morals or the protection of the rights and freedoms of others’. It is not clear that any of the grounds for restricting this right would easily be applied to this specific ban on partisan political activities. Children are also given the right to freedom of e xpression by the UNCRC,27 which can be restricted only on similar grounds, and to freedom of thought.28 There are equivalent rights and restrictions under Art 10 of the ECHR,29 which was invoked when there was censorship by the authorities in Northern Cyprus of school books for primary schools used by Greek Cypriots.30 The ground of censorship was that the books’ content was capable of fostering hostility between the ethnic communities. The books in question concerned a wide range of subjects, including the Greek language, English, history, geography, religion, civics, science, mathematics and music. The ECtHR found that school books had been censored or rejected by the authorities ‘no matter how innocuous their content’.31 It was held that there had been excessive censorship and a violation of Art 10, which protects freedom of expression and thought.32 From a human rights perspective, freedom of expression is an important principle, not least in the field of education,33 and it should not lightly be interfered with.34 In Vogt v Germany,35 for example, justification for the dismissal of a secondary school teacher who engaged in various political activities was sought to be based on the statutory requirement that civil servants (a category to which state school teachers in Germany belonged) maintain loyalty to the Constitution. The ECtHR, albeit by the narrowest majority, held that to dismiss her when she had not made any anti-constitutional statements, nor adopted an anti-constitutional stance, was disproportionate to the legitimate aim being pursued. Her Art 10 right had been violated. But in X v United Kingdom36 the Commission of Human Rights held that a teacher’s right under Art 10 had not been violated when he was forbidden from displaying religious and anti-abortion stickers on his clothes and briefcase, because it was considered that a teacher should have regard to parents’ right to have their religious and philosophical

27 UNCRC, Art 13. 28 Ibid, Art 14. 29 See ECHR Art 10(2). 30 Cyprus v Turkey, Application No 25781/94 (2002) 35 EHRR 731. 31 Ibid, [252]. 32 See also S v United Kingdom, Application No 11674/85 (1986) 46 DR 245, where requirements as to school uniform were held not to violate Art 10 since they did not prevent the child from expressing an opinion or idea of their own and they could in any event express them freely outside school. 33 Particularly in relation to universities (see R (Ben-Dor) v University of Southampton [2015] EWHC 2206 (Admin); [2015] ELR 590), but also in the case of schools and colleges. 34 The grounds for denying it under Art 10(2) have to be interpreted strictly: Sürek v Turkey (1999) 7 BHRC 339, at [57]. 35 Case No 7/1994/454/535 (1995) 21 EHRR 205; [1996] ELR 232. 36 (1979) 16 DR 101.

Centralisation and a National Curriculum 293 convictions respected per A2P1. This A2P1 right in fact aims to protect children from indoctrination: see the discussion of Kjeldsen and other cases (below). In the UK, as the prime motivation behind the anti-bias measures in the 1986 Act was a fear that political ideologues in the teaching profession were subjecting pupils to polemical viewpoints, an irony arises from the fact that the only reported case in the UK in which any of these domestic measures have been judicially considered arose out of alleged bias by the executive. In Dimmock v Secretary of State for Education and Skills37 a parent’s two sons attended a state school at which he was a school governor. He complained that the Department for Education and Skills’ distribution to all state schools of a copy of the film An Inconvenient Truth on the effects of global warming, as part of a pack which also included a link to a website where a detailed guidance note was available, would result in breaches of the school’s duty (by then consolidated into the EA 1996) to ensure that ‘partisan political views’ were not promoted in the teaching of any subject (s 406) and that in coverage of political issues its pupils were offered a ‘balanced presentation of opposing views’ (s 407). Burton J held, first, that showing a film which presented certain political viewpoints could not in itself constitute the ‘promotion’ of partisan political views. To hold otherwise could inhibit debate among pupils and lead to ‘bland education’ affording no opportunity for pupils to challenge views with which they strongly disagreed.38 Burton J also held that ‘balanced’ did not mean schools necessarily had to give equal curriculum time to all viewpoints, merely that the presentation must be ‘fair and dispassionate’.39 In relation to alleged factual errors in the film, the failure of the guidance note to raise or discuss any issues arising from them, and the way the film presented the allegedly one-sided views of Al Gore (a former deputy US President and a campaigner on the effects of man-made climate change) without any attempt to counter them, Burton J held there would have been a breach of ss 406 and 407 but for the issuing by the DfES of a revised guidance note by the time the proceedings were before the court. While the 1986 Act made inroads into local curricular control, it was the introduction of a new legislative framework for the determination of the school curriculum in England and Wales under the Education Reform Act (ERA) 1988 that heralded a sea change in the governance of the secular school curriculum. Central government would now dictate its content and the arrangements for assessing pupils. In the 1985 White Paper the Government had identified certain fundamental principles that should underpin the school curriculum: it should be broad, balanced and relevant and it should also be differentiated, so that teaching and content matched pupils’ abilities and aptitudes.40 The ERA 1988 37 Dimmock v Secretary of State for Education and Skills (now Secretary of State for Children, Schools and Families) [2007] EWHC 2288; [2008] ELR 98. 38 Ibid, [12]. 39 Ibid, [16]. 40 DES n 5 above, para 45.

294 Secular Education in the State Sector: A Curriculum for All? included these principles within the prescriptions on the state school curriculum. The school curriculum was to be ‘balanced and broadly based’; promote ‘the spiritual, moral, cultural, mental and physical development of pupils at the school and of society’; and prepare pupils for ‘the opportunities, responsibilities and experiences of adult life’.41 This duty survives with one minor amendment (‘adult life’ has been replaced by ‘later life’).42 This ‘whole curriculum’ (as it became known) was considered to extend beyond the formal lesson timetable and to involve the personal and social development of pupils, the forging of particular attitudes and values, and the development of more effective school– community links.43 Cross-curricular themes were identified by the national advisory body, the National Curriculum Council (NCC), demonstrating just how far the framework of regulation was extending even if the NCC’s guidance did not have legal force. The NCC’s published guidance covered the spiritual and moral development of pupils, which emphasised values such as self-discipline, honesty and reliability, and citizenship.44 The ERA 1988 also provided for every maintained school to have a ‘basic curriculum’ comprising religious education and the National Curriculum.45 Sex education was later added by the EA 1993 to the basic curriculum for all state secondary schools and for pupils of secondary age attending state special schools.46 This basic curriculum remains at the centre of the statutory framework, currently found in the EA 2002.47 The Secretary of State was empowered to change the constituents of the ‘basic curriculum’, other than religious education or sex education, by order.48 Previously it could only be changed by Parliament through an amending Act. The references to sex education in the basic curriculum are to be changed under reforms to be introduced under the Children and Social Work Act 201749 to separate references to ‘relationships education’ for children of primary school age and ‘relationships and sex education’ for those of secondary school age; these adjustments to the basic curriculum are being made via regulations which also add health education as a further basic curriculum subject for all pupils.50

41 ERA 1988, s 1(2) and (3). 42 EA 2002, s 78 (England) and 99 (Wales). 43 NCC, Circular No 6 (York, NCC, 1989) para 6. 44 NCC, Spiritual and Moral Development (York, NCC, 1993); NCC, Education for Citizenship (York, NCC, 1990). 45 ERA 1988, s 2(1). 46 EA 1993, s 241(1). 47 EA 2002, Pt 6. 48 Ibid, ss 80 and 101. 49 See below under ‘Sex and relationships education and health education’. 50 EA 2002, s 80(1), as amended by the Relationships Education, Relationships and Sex Education and Health Education (England) Regulations 2019 (SI 2019/924), Sch para 7. See below.

Centralisation and a National Curriculum 295

B. Selective Loosening of Control: ‘Earned Autonomy’ and the Freedoms of the Academy Sector In the decades that followed the centralisation of the curriculum both Labour and Conservative governments sought selective local flexibility. Granting schools exemption from elements of central prescription in some situations was consistent with both Labour’s concern to tackle under-achievement and social exclusion among pupils, combined with its emphasis on innovation and personalised learning, and the Conservatives’ promotion of competition and choice within a less uniform schools system. It was noted in Chapter 3 how schools in New Labour’s education action zones were able to depart from the National Curriculum and offer various activities designed to increase inclusion, such as artistic projects and mentoring and counselling schemes. The evidence does not, however, suggest that the flexibility over the National Curriculum was fully adopted.51 Flexibility was also possible via the arrangements under the EA 2002 for ‘earned autonomy’ for schools which were considered highly successful, in terms of the levels of academic achievement of pupils. The Secretary of State had a power to provide for any designated curriculum requirement to be disapplied or modified in relation to a school which qualified for this freedom because of the high level of its performance and the quality of its management and leadership.52 As the premise behind the National Curriculum was a need for prescription of a common standard across a defined curriculum for all schools in order to raise quality levels and pupils’ achievements, it did seem odd that schools that had benefited from it, as judged by their success, should then be potentially rewarded by being exempted partly from it. If the National Curriculum was such a force for good, why should any school need to be ‘liberated’ from it? As it turned out, the power of exemption was virtually unused and the measure had little practical impact.53 Since, as discussed in Chapter 3, a major part of the rationale behind academy status is to enable schools to develop a more distinctive ethos and curriculum, with greater scope for innovation, it is unsurprising that the academy sector has had exemption from much of the central prescription on the curriculum to which other schools are subject. Certainly academies are not bound to follow the National Curriculum. This is an exemption that, as the academy sector has grown and the local authority-maintained sector contracted, has reduced the overall importance and reach of the National Curriculum. In practice, however, many academies’ curricula are broadly similar to those in other mainstream state schools, and academies are expected to publish on their websites information regarding pupil

51 See Ofsted, Excellence in Cities and Education Action Zones: Management and Impact, HMI 1399 (London, Ofsted, 2003) para 50. 52 EA 2002, s 7. 53 House of Commons Children, Schools and Families Committee, Ninth Report of Session 2009–10, From Baker to Balls: the foundations of the education system (HC 422) (2010) para 4.

296 Secular Education in the State Sector: A Curriculum for All? achievements.54 By definition, academy schools must55 provide education for pupils of different levels of ability and have a curriculum that satisfies s 78 of the EA 2002, which – in relation to state schools – requires it to be a ‘balanced and broadly based’ curriculum which ‘promotes the spiritual, moral, mental and physical development of pupils and of society’, and ‘prepares pupils at the school for the opportunities, responsibilities and experiences of later life’. Academies’ funding agreement with the DfE also imposes obligations. The standard agreement for single trust academies, for example, reiterates that the curriculum up to the age of 16 must be ‘balanced and broadly based’ but also stipulates that it must include English, mathematics and science.56 The agreement also sets out duties to ensure a balanced presentation of political views and avoidance of political bias equivalent to those, noted above, applicable to other state schools.57 Academies must also provide religious education and ensure a daily act of collective worship,58 obligations imposed by statute in relation to other state schools, as discussed in Chapter 7. Unlike in other state funded schools, however, there is no prescribed basic curriculum59 and academies are not currently required to provide sex education. Where they do provide sex education they must have regard to the official guidance on it applicable to other schools and they are similarly bound by the moral element to it (below).60 There are also requirements to ensure the provision of careers guidance61 and relating to the teaching of creationism and of evolution as a theory.62 Academies’ relative curricular freedom was extended under the EA 2011 by the removal of the requirement for those providing secondary education to have a curriculum with an emphasis on a particular subject area, or particular subject areas – in other words, a specialism.63 This curricular freedom reflects academies’ legal status as independent schools, albeit operating in the state sector. As discussed later, prescribed independent school standards have included increased curricular prescription as part of a broader tightening of regulatory control over the sector. They now include a requirement to promote ‘British values’, a requirement also placed on academies by the funding agreement.64 Academies therefore enjoy the benefits of state funding while enjoying a very similar degree of curricular autonomy to schools in the private sector. Not all schools which have converted to academy status have,

54 They would normally be expect to be the results achieved at key stages 2 and 4 by pupils in assessments: DfE, Mainstream academy and free school: single funding agreement (April 2016), para 2.57. 55 Academies Act 2010, s 1A. 56 DfE n 54 above, para 2.42. 57 Ibid, para 2.46. 58 Ibid, paras 2.48–2.52. 59 The basic curriculum for other schools is set out in the EA 2002, s 80: see below. 60 DfE n 54 above, para 2.53. 61 Ibid, para 2.54. 62 Ibid, paras 2.44–2.45. See ch 7 below. 63 Academies Act 2010, s 1(6), repealed by the EA 2011, s 52. 64 DfE n 54 above, para 2.47.

Centralisation and a National Curriculum 297 however, changed their curriculum in line with the freedom they have acquired – including (by 2015) less than half the schools that converted post 2012.65 There is a policy contradiction and an inequity in the freedoms academies enjoy exclusively among mainstream state schools. Melissa Benn argues that it is ‘manifestly unfair to impose a national curriculum that many see as unimaginative and constraining, and then make an exception for nearly three-quarters of secondary schools in the name of “innovation” and “autonomy”’.66 One may question why, if relative autonomy over the curriculum serves academies well (albeit that, as noted above, their freedoms are not fully utilised67) that should not also be the case for other state funded schools, where the standards of education provided may indeed be at least as high. As the House of Commons Education Committee has commented, since government regards academies’ curricular freedoms as ‘a key factor in their ability to raise standards’ and has been confident that those freedoms have not prevented pupils from having access to a ‘rounded curriculum’, it is not clear why those freedoms have been restricted to academies.68 The Committee has more recently found that although the evidence is somewhat equivocal, it demonstrates sufficiently that this important element of academies’ autonomy is making a positive contribution to the achievement of higher levels of pupil attainment; and the Committee recommends that curriculum freedoms should be made available to all schools.69 Over the course of three decades the school curriculum has been subjected to considerable central government control. But academisation has resulted in a two tier system of control and regulation – with maintained schools continuing to be subject to the National Curriculum and subject to extensive legislative controls, whereas academies enjoy a significant amount of autonomy and are subject to very limited legislative prescriptions and curriculum requirements mostly determined by their agreement with the state. The National Curriculum, discussed in more detail in the next section, nevertheless influences the education provided in academies and more importantly still reflects a common view of what children need to learn and the objectives that education across the various fields of knowledge should be directed towards.

C. The National Curriculum The National Curriculum (NC) was introduced by statute in England and Wales 30 years ago and over the intervening years has undergone numerous reforms. 65 House of Commons Education Committee, Fourth report Session 2014–2015, Academies and Free Schools (HC 258) (2015) para 50. 66 M Benn, Life Lessons. The case for a National Education Service (London, Verso, 2018), 76. 67 See also ibid. 68 House of Commons Children, Schools and Families Committee, Fourth Report Session 2008–09, National Curriculum HC 244-I (2009) para 73. See further ‘The National Curriculum Post 2014’ below. 69 House of Commons Education Committee (2015), n 65 above, para 67.

298 Secular Education in the State Sector: A Curriculum for All? Its history is indeed complex and yet it rests on a simple idea that there is a central core of essential knowledge and understanding and related skills and values that the state has competence to identify and prescribe for teaching in state schools. The need for and role of a national curriculum have been relatively uncontested over the years. But there has at times been significant controversy arising from the burden imposed on the teaching profession and schools, the strain to which pupils may be subjected as a result of the assessment arrangements, and the periodic imposition of idiosyncratic ideas by ministers regarding subject content. Moreover, in recent years there has been rather more resistance than previously to a rigid and centrally directed national curriculum. In response, government has begun to give scope for greater local flexibility and professional creativity, albeit within limits. Teaching the NC is only a statutory requirement in local authority main tained schools. As noted above, the academy sector is not bound by it, although in practice academies are likely to follow it. It is doubtful if a child has an absolute right to be taught under the NC specifically, because it has been held judicially that if a child is denied access to the NC, due to being excluded from school, this does not necessarily amount to a denial of the right to education.70 There would, however, be such a breach ‘if a pupil of compulsory school age were permanently excluded from one school and were not able to subsequently secure full-time education in line with the national curriculum at another school’.71 Temporary exception from the NC is also permitted in other circumstances in relation to an individual child, as discussed below. This can, for example, be for reasons to do with a child’s degree of learning difficulty, although there remains an underlying educational policy principle that all children, regardless of any special educational needs or disability, should have an opportunity to be taught under the standard curriculum.

i. National Curriculum: Background and Early Period The NC was transformed from an idea to a reality with the enactment of the ERA 1988. Its establishment marked a huge break with the long-standing highly localised approach to the determination of what and how children were taught in state-funded schools. As Whitty explains, central prescription of the curriculum was in some respects ‘alien to the British educational tradition’.72 For many years there had been deep unease and suspicion in Britain about the idea of a centrally dictated curriculum, notwithstanding the adoption of a national or federal curriculum in other democratic countries such as France, Switzerland and Germany. Traditional resistance was born out of a not entirely theoretical risk that p olitical

70 Ali

v United Kingdom (Application No 40385/06) (2011), [60].

71 Ibid.

72 Whitty

n 14 above, 27.

Centralisation and a National Curriculum 299 control over education may lead to state indoctrination, an understandable concern in the light of the experience of totalitarianism in Nazi Germany and the Soviet Union.73 Such a concern prompted the prominent educationalist, government adviser and sometime editor of The Times Educational Supplement, Harold Dent, to warn in 1944 that ‘stereotyped lessons would mean the end of democratic education’74 and to opine that ‘[w]hat we do not want is lessons laid down by law’.75 Although the political context to the introduction of the NC in England and Wales in the late 1980s was suggestive of an underlying motive to centralise control at the expense of local government and the teaching profession,76 and despite the argument that right wing politics had strongly influenced the selection of subjects for prescription,77 including the absence of the social sciences,78 the primary rationale advanced by government was a seemingly objective one related to standards and accountability. The case advanced was that prescription would ensure that all schools offered an appropriate, relevant, curriculum and that, through regular testing and other forms of assessment, pupils’ progress could be determined and parents would be able to see how well their own children were doing and how their children’s school was performing relative to others.79 This would reinforce the accountability of schools to parents and underscore the marketised system based on competition and choice that was central to a modern schools system as envisaged by the Thatcher-led governments of the 1980s. In a 1987 consultation document it was argued that a mandatory national system could not be implemented effectively unless it was ‘backed by law’.80 The use of law is in fact strongly associated with both the ‘competitive market’ and ‘quality control’ approaches to the governance of education that are evident in the establishment and operation of the prescribed NC in England.81 The Government sought to offer reassurance to the teaching profession that the NC would be analogous to a ‘framework not a straightjacket’.82 Nonetheless, the potential reach and scope of the prescriptive framework and the accountability elements within it83 meant there was a risk of undue bureaucracy and inflexibility. The evidence of the first 73 Harris (1993) n 4 above, 197–200. 74 HC Dent, The New Education Bill (London, University of London Press, 1944) 30. 75 Ibid. 76 Whitty n 14 above, 80. 77 See D Graham with D Tytler, A Lesson for Us All: The Making of the National Curriculum (London, Routledge, 1993). 78 D Coulby, ‘The National Curriculum’ in L Bash and D Coulby (eds), The Education Reform Act. Competition and Control (London, Cassell, 1989) 54, 61–2. 79 DES/Welsh Office, The National Curriculum 5–16 – A Consultation Document (London and Cardiff, DES/Welsh Office, 1987). 80 Ibid, 5. 81 D Gibton, Law, Education, Politics, Fairness. England’s extreme legislation for education reform (London, Institute of Education, 2013) 75–76. 82 DES/Welsh Office n 79 above, 5. 83 Including the need for teachers to record pupils’ attainment frequently and in detail in order to provide data by which overall standards could be measured.

300 Secular Education in the State Sector: A Curriculum for All? five years of the NC demonstrated that these characteristics had materialised.84 By the mid-1990s, following a review led by Sir Ron Dearing, greater flexibility was introduced and prescription was reduced a little. Assessment tests became restricted to the ‘core subjects’ – English, mathematics and science – in the interests of ‘removing overload, stripping out unnecessary bureaucracy and giving more freedom for teachers to exercise professional judgment’.85 Further rationalisation occurred in 1999, but the basic structure of the NC as set out in the 1988 Act did not change. It continued to specify the three core subjects86 and the various ‘other foundation subjects’: history, geography, technology, music, art, physical education and (for the 11–14 age group only, but subsequently also for ages 15–16) a prescribed modern language.87 Although the modern languages that were prescribed were all standard European languages (from Danish through to Spanish), schools were also permitted to offer Russian and a range of middle-eastern and eastern languages, such as Arabic, Punjabi and Urdu,88 provided pupils at the school were also given the opportunity to study one of the prescribed European languages. ‘Attainment targets’ (the knowledge, skills and understanding expected), ‘programmes of study’ (the matters, skills and processes to be covered) and ‘assessment arrangements’ were prescribed for each of the subjects by statutory instrument (linked to a separate official subject document) at each of the four ‘key stages’ through which each child passed.89 There was a statutory duty on local authorities, school governing bodies and head teachers to ensure that the NC was fully implemented.90 The duty did not, however, apply to classroom teachers, whose proposed official industrial action in response to the burden imposed on them by the assessment arrangements – in particular, the tests or ‘standard assessment tasks’ (SATs) – did not therefore conflict with a statutory duty and attracted immunity in tort.91 Despite their opposition to the assessment arrangements, the teaching profession did not really take issue with the prescribed subject areas. But some commentators raised concerns that there was an undue focus on ‘Britishness’. Whitty, for example, viewed the new curriculum framework as ‘creating, or recreating, forms of national identity’.92 He considered there to have been ‘a conscious

84 R Dearing (chair), The National Curriculum and its Assessment: Final Report (London, School Curriculum and Assessment Authority, 1994). 85 DfE, Press Release 277/94 (London, DfE, 1994). 86 In Wales, Welsh was a further core subject in Welsh-medium schools. 87 ERA 1988, s 3(1); and the Education (National Curriculum) (Modern Foreign Languages) Order 1989 (SI 1989/825). Welsh was a further foundation subject, in non-Welsh speaking schools in Wales. 88 Arabic, Bengali, Chinese (Cantonese or Mandarin), Gujerati, Hebrew (Modern), Hindi, Japanese, Punjabi, Russian, Turkish and Urdu. 89 ERA 1988, s 2 (as amended by the EA 1993, s 240(1)). The key stages were: 1 (age 5–7); 2 (8–11); 3 (11–14); and 4 (15–16): ibid, s 3. 90 ERA 1988, s 10. 91 The Mayor and Burgesses of the London Borough of Wandsworth v National Association of Schoolmasters/Union of Women Teachers [1994] ELR 170, CA. 92 G Whitty, Making Sense of Education Policy (London, Paul Chapman, 2005) 102.

Centralisation and a National Curriculum 301 attempt to position subjects in ways which hark backwards to some imagined past, rather than forwards into new globalised times’.93 David referred to it as having been given a specifically ‘British’ focus, ‘valuing only traditional English subjects and knowledge, rather than appreciating the diversity and richness of the varied cultures from which British citizens are now drawn’.94 Multicultural education was identified as a cross-curricular theme by the advisory body, the NCC, rather than being part of the prescribed content. A more fundamental concern related to the scope for political influence over curriculum content. Coubly warned of the potential for ‘[d]ramatic curricular shifts with each change of government and significant curricular change with each Secretary of State’.95 The Secretary of State was given a far-reaching power to dis-apply or apply with modifications the NC as a whole or particular provisions ‘in such cases as may be specified’.96 However, this power has been used quite sparingly and only to make minor adjustments.97 Furthermore, a proposal to empower the Secretary of State to prescribe the amount of curriculum time to be allocated to individual subjects was not included in the legislation. Rather, ministers were prohibited from such prescription.98 Despite these safeguards and the Secretary of State’s ongoing duty to consult with local authority, school governing body, and teacher associations, among others,99 before making any orders in furtherance of a power to alter the National Curriculum,100 there has nevertheless been a concern that governments with large parliamentary majorities could still impose their doctrinaire view of what children should be taught, particularly as they have in effect merely had to consider rather than implement the recommendations of the statutory advisory bodies from the NCC onwards.101 There have been various points in the history of the NC where

93 Ibid, 103. 94 M E David, Parents, Gender and Education Reform (Cambridge, Polity Press, 1993) 66–7. See also J Hardy and C Vieler-Porter, ‘Race, Schooling and the 1988 Education Reform Act’ in M Flude and M Hammer (eds), The Education Reform Act 1988: Its Origins and Implications (Basingstoke, Falmer, 1990) 173–85. 95 D Coulby, ‘The National Curriculum’, in L Bash and D Coulby (eds), The Education Reform Act: Competition and Control (London, Cassell, 1989) 54–71, 60. 96 EA 2002, s 91. The power is exercisable via regulations. 97 See, eg, the Education (National Curriculum) (Exceptions at Key Stage 4) (England) Regulations 2003 (SI 2003/252). 98 ERA 1988, s 4(3). 99 EA 2002, s 96, as substituted by the EA 2011, Sch 8. 100 The powers are in the EA 2002, ss 84, 85 and 87. 101 ERA 1988, s 20 and EA 2002, s 96. In addition to the National Curriculum Council (NCC), the School Examinations and Assessment Council (SEAC) was established under the 1988 Act. The NCC’s primary role was to keep the maintained school curriculum under review and advise the Secretary of State on curricular matters, while the SEAC had similar functions in relation to examinations and assessment and advised the Secretary of State on qualifications. Under the EA 1993, the NCC’s and SEAC’s functions were transferred to the School Curriculum and Assessment Authority (SCAA). Under the EA 1997, both the SCAA and the National Council for Vocational Qualifications were replaced by the Qualifications and Curriculum Authority (QCA). In 2010, under the Apprenticeships, Skills, Children and Learning Act 2009, the Qualifications and Curriculum Development Agency (QCDA) replaced the QCA. The QCDA was abolished in 2012 under the EA 2011. The Standards and

302 Secular Education in the State Sector: A Curriculum for All? individual Secretaries of State have expressed views on its content and even come into conflict with the statutory body responsible for advising them, raising what a former NCC chair described as ‘the serious question of the role of ministers in the curriculum and the dilemmas caused when politics clash with educational needs’.102 Meredith cites as an example a clash between the recommendations of the history working group – one of the subject working groups responsible for drawing up proposals for consideration – and the Secretary of State over whether skills should have greater prominence and dates given less emphasis.103 In more recent times, however, a more pragmatic approach seems to have developed, as for example in the backtracking by the then Secretary of State Michael Gove on proposals for changes to the history curriculum for ages 5–14 that would have placed more emphasis on English history and increased the level of detail in it.104 Nevertheless, there have been complaints that ministers reviewing the National Curriculum prior to its reform in 2014 tended to rely mostly on small numbers of handpicked experts.105

ii. The Developing Content and Orientation of the National Curriculum The NC has undergone several reviews and various adjustments since the 1990s, culminating in the review that preceded the launching of the current framework in 2014. These developments are discussed below in the context of specific features of NC as it evolved further. a. Citizenship Education: No Bias Intended While neo-conservativism and New Right thinking dominated the construction of the NC in the late 1980s,106 New Labour subsequently imposed its own approach. Kisby and Sloam explain that Labour’s interest in citizenship education reflected its wish to address ‘what it perceived as a decline in levels of social

Testing Agency (STA) took over responsibility for organisation of testing under the National Curriculum. ‘Ofqual’, the Office of Qualifications and Examinations Regulation, was established with a regulatory duty in respect of qualifications and assessments. When the Secretary of State proposes to make an order amending National Curriculum assessment arrangements he or she must consult with Ofqual: EA 2002, s 87, as amended. 102 D Graham with D Tytler, A lesson for Us All – The Making of the National Curriculum (London, Routledge, 1993) 73. 103 P Meredith, Government, Schools and the Law (London, Routledge, 1992) 82–3. 104 W. Mansell, ‘Michael Gove redrafts new history curriculum after outcry’, The Guardian (online)¸ 21 June 2013, www.theguardian.com/education/2013/jun/21/michael-gove-history-curriculum. 105 W Mansell, ‘The new national curriculum: made to order?’, The Guardian (online), 12 Nov 2012, www.theguardian.com/education/2012/nov/12/primary-national-curriculum-review. 106 See Whitty n 14 above, 21.

Centralisation and a National Curriculum 303 c apital in Britain’ in the face of growing concern from a range of interest groups.107 Following the report of the Advisory Group on Citizenship,108 Citizenship was introduced as a foundation subject at key stages 3 and 4 in 2002.109 In the history of the NC, the introduction of Citizenship as a foundation subject represents a significant landmark.110 Its aim was and is to provide a framework of knowledge and understanding about legal and political institutions and the rights and responsibilities of citizens and, in doing so, to reinforce other values promoted through the school curriculum. As initially developed, the areas to be covered included legal/human rights and responsibilities and basic aspects of the c riminal justice system. There was an emphasis on how those areas related to young people. Also expected was coverage of national, regional, religious and ethnic diversity in the UK and the need for mutual respect and understanding between different groups and individuals. Since citizenship education aimed to offer a c ritical perspective on different ways of precipitating change at all levels of society, and to include school-based and community-based activities enabling pupils to demonstrate both personal and group responsibility vis-à-vis others, it reflected the perceived importance of co-operation and mutual support as social values. As it came into operation, there was some concern that citizenship education provision was ill-defined and, according to Ofsted’s annual report for 2004–05, inspections revealed that it was unsatisfactory in a quarter of schools, where pupils’ experiences in relation to it were ‘shallow’.111 There was clearly room for improvement.112 A longitudinal study of citizenship education, published in 2005, noted that certain key topics, such as voting and elections, Parliament and governance and the EU, tended to be ignored.113 As schools gained experience in delivering citizenship education, however, the quality did improve and the subject became more firmly embedded.114 What was particular encouraging, despite the unevenness of progress across different schools,

107 B Kisby and J Sloam, ‘Citizenship education in international perspective: lessons from the UK and overseas’, in C Holden, M Kilkey and G Ramia (eds), Social Policy Review 23 (Bristol, Policy Press, 2011), 211–31, 212. 108 Advisory Group on Citizenship (chair Lord Crick), Education for Citizenship and the Teaching of Democracy in Schools (London, DfEE/QCA, 1998) influenced the approach taken. 109 EA 1996, s 354 as substituted, in relation to England only, by the Foundation Subject (Amendment) (England) Order 2000 (SI 2000/1146). See also the Education (National Curriculum) (Attainment Targets and Programmes of Study in Citizenship) Order 2000 (SI 2000/1603). 110 Although elements of it were also expected to be covered in earlier years. 111 Ofsted, Annual Report of Her Majesty’s Chief Inspector of Schools 2004/05 (London, TSO, 2005) para 62. 112 See also K Faulks, ‘Education for Citizenship in England’s Secondary Schools: a Critique of Current Principle and Practice’ (2006) 21 Journal of Education Policy 59. 113 E Cleaver et al, Citizenship Education Longitudinal Study: Second Cross-Sectional Survey 2004, DfES Research Report RR626 (London, DfES, 2005). 114 A Keating, D Kerr, J Lopes, G Featherstone and T Benton, Embedding Citizenship Education in Secondary Schools in England (2002–2008). Citizenship education longitudinal study. Seventh Annual Report (Research Report No DCSF-RR172 (London, Department for Children, Schools and Families, 2009).

304 Secular Education in the State Sector: A Curriculum for All? was the way that citizenship was being supported through ‘the strengthening of student participation and pupil voice’, although there was a mismatch between the very positive views of school staff about how students were able to participate and pupils’ only ‘moderately positive’ views about how their ‘voice’ impacted on school decision making.115 Indeed, other research, by Covell et al, has pointed to a failure to engage pupils sufficiently in citizenship education by treating them as ‘citizens of the future’ only.116 Covell et al evaluate the ‘rights, respect and responsibility’ programme first introduced in primary schools in Hampshire in 2004, which covers both rights as per the UNCRC and what are viewed as concomitant responsibilities (eg a child has a right to play but a responsibility not to interfere with other children’s freedom to play by, for example, bullying them). They found that it was a ‘viable and effective form of citizenship education’ that made pupils feel more engaged in their school and in the learning process.117 Citizenship education is by its very nature value laden, although it is not unique in that respect. Because pupils may be presented with a model of civic virtue according with a particular idea of the kinds of qualities and principles that underpin citizenship, there is a potential risk of it being indoctrinatory: Ofsted has found this to be perceived by teachers themselves.118 However, there is an argument that by ‘responsibly inculcating civic values’ a teacher is being true to the citizenship ideal and cannot in general be accused of indoctrination.119 Heater argues that presenting an unshakeable belief in particular political or social ideologies, such as Marxism, could amount to indoctrination, but that the main principles of citizenship, such as justice, fairness and freedom, are ‘values inseparable from the good life’ and are ‘universal goods, not subjective propositions’.120 One can agree with that, but only up to a point. As justice and fairness cannot be presented to school pupils as mere abstract concepts and would need to be considered in various specific social contexts, there is a risk of ideological bias, no matter how unintended. Heater, however, also argues that a safeguard against indoctrination arises from the way that citizenship education should encourage pupils to think for themselves.121 Political bias is, of course, separately proscribed through the requirement to ensure a ‘balanced presentation of opposing views’ when political issues are considered in the teaching of any subject, noted above.122 115 Ibid, 78. 116 K Covell, R B Howe and JK McNeil, ‘“If there is a dead rat, don’t leave it”. Young children’s understanding of their citizenship rights and responsibilities’ (2008) 38(3) Cambridge Journal of Education 321, 322. 117 Ibid, 334. 118 D Bell, HM Chief Inspector of Schools, Hansard Society/Ofsted Lecture, 17 Jan 2005. 119 D Heater, Citizenship. The Civic Ideal in World History, Politics and Education (3rd edn) (Manchester, Manchester University Press, 2004) 347. 120 Ibid. 121 Ibid. 122 EA 1996, s 406.

Centralisation and a National Curriculum 305 Emphasising certain values through teaching or curriculum content is not necessarily unlawful. In Kjeldsen123 the ECtHR held that the Danish state was entitled to make sex education compulsory in its schools in the public interest, provided the ‘information or knowledge is conveyed in an objective, critical and pluralistic manner’ as opposed to ‘indoctrination that might be considered as not respecting parents’ religious and philosophical convictions’.124 Moreover, it has been argued that ‘there are numerous circumstances in which a balanced sense of citizenship requires an unbalanced programme of teaching’, which might mean that education should, for example, stress some elements, such as a need for tolerance and respect, above others, such a freedom of speech.125 Heater sees this as a matter for the individual judgment of the teacher, acting on the basis of the basic ideals of citizenship. What is also important in this context, and not considered here by Heater, is the framework of rights, freedoms and responsibilities underpinning the provision of education to a child, such as teachers’ freedom of expression,126 the child’s right to express their views freely on all matters affecting them127 and to an education that meets the objectives set out in the UNCRC,128 and the parent’s right for their philosophical or religious convictions to be respected in the teaching of their child.129 This issue is discussed further later.130 When the NC was reformed in 2008, the changes reflected, in part, a broad policy of ‘responsibilisation’ (although obviously in a much less coercive form than in other policy areas such as social security131 and youth justice132), as in the overarching curricular aim of enabling pupils to become ‘responsible citizens who make a positive contribution to society’133 and in the consolidation of citizenship as a subject area within it. One important feature of the revised citizenship programme of study was a new strand entitled ‘Identities and diversity: living together in the UK’. This had been recommended in the report of a review group chaired by Sir Keith Ajegbo in 2007, which called for a more inclusive notion of citizenship and for issues of identity and diversity to be addressed.134 According 123 Kjeldsen, Busk Madsen and Pedersen v Denmark (1979–80) 1 EHRR 711. 124 Ibid, at 731 para 53. See also Campbell and Cosans v UK (1982) 4 EHRR 293, and Valsamis v Greece, Case No 74/1995/580/666 (1996) 24 EHRR 294; [1998] ELR 430. 125 Heater n 119 above, 348. 126 ECHR, Art 10. 127 UNCRC, Art 12(1). 128 UNCRC, Arts 28 and 29. 129 ECHR, Art 2 of Protocol 1. 130 Under ‘Can a prescribed national curriculum be reconciled with the notion of parental choice and the accommodation of cultural preferences as a human right?’. 131 See at H J Savelsberg, ‘Setting responsible pathways: the politics of responsibilisation’ (2010) 25(5) Journal of Education Policy 657, 663–4. 132 See, eg, J Phoenix and L Kelly, ‘“You have to do it for yourself ”: Responsibilization in Youth Justice and Young People’s Situated Knowledge of Youth Justice Practice’ (2013) 53(3) British Journal of Criminology 419. 133 Qualifications and Curriculum Authority, The National Curriculum statutory requirements for key stages 3 and 4 from September 2008 (London, QCA, 2007), cited in Keating et al (2009) n 114 above, 6. 134 Diversity and Citizenship Curriculum Review Group (chair: Sir K Ajegbo), Curriculum Review – Diversity & Citizenship (London, DfES, 2007) 21–22.

306 Secular Education in the State Sector: A Curriculum for All? to Keating et al, through the introduction of it the focus of the citizenship c urriculum was altered and it was made explicit that its role lay ‘in educating not just for p olitical literacy but increasingly for community cohesion’.135 Citizenship education was ‘now framed as making a considerable contribution to addressing issues of identity, diversity, integration and cohesion in and beyond school. This is alongside its original role in strengthening and deepening civic and political participation.’136 In a sense, therefore, while citizenship education was just one part of the NC it had acquired a more explicitly socialising role than any of the other areas of study. As the discussion of the more recently introduced requirement to teach ‘British values’, below, also illustrates, it forms part of a broader vision of the part that education is intended to play in maintaining social cohesion. There were elements of citizenship education recommended for the primary school curriculum when it was reviewed in 2009. The Rose report, while favouring a less prescriptive and more flexible curriculum as a whole, nevertheless identified six areas of learning that should form part of a ‘personal development framework’ in primary schools,137 one of which focused on ‘historical, geographical and social understanding’. It would include teaching ‘about right and wrong, fairness and unfairness and justice and injustice; to understand the way in which laws are made and society is governed; and to engage actively with democratic processes’.138 The case for the inclusion of this area of learning was reinforced by the report’s reference to how citizenship was usually a compulsory subject within primary education in other developed states. The report was broadly welcomed within the teaching profession and accepted by the Labour Government. At the same time, ministers rejected the proposals in the separate Cambridge Primary Review, which went further in advocating curricular flexibility (for example, English and mathematics would cease to be formal NC subjects) and included education for citizenship as part of a broad aim of empowering children for life and, together with ‘ethics’, as one of the eight ‘domains’ (rather than subjects) within a proposed new curriculum.139 The Rose report was scheduled for implementation, but the election of the Coalition Government in 2010 led in effect to its being shelved. Citizenship remains a prescribed NC subject at key stages 3 and 4.140 It now includes

135 Keating et al (2009) n 114 above, 6 (original emphasis). 136 Ibid, 6–7. 137 Sir J Rose (chair), Independent Review of the Primary Curriculum: Final Report (Nottingham, DCSF, 2009). 138 Ibid, para 3.66. 139 R Alexander (ed), Children, their World, their Education: final report and recommendations of the Cambridge Primary Review (London, Routledge, 2010). 140 See DfE, Statutory Guidance. National Curriculum in England: framework for key stages 1 to 4, www. gov.uk/government/publications/national-curriculum-in-england-framework-for-key-stages-1-to-4/ the-national-curriculum-in-england-framework-for-key-stages-1-to-4 and DfE, Citizenship programmes of study: key stages 3 and 4, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/239060/SECONDARY_national_curriculum_-_Citizenship.pdf.

Centralisation and a National Curriculum 307 capacity-building in the area of personal money management,141 but more significantly, alongside the teaching of ‘British values’, it reflects the more intense role expected of schools as normalising agents for responsible citizenship within a framework of national identity. Whether that is the appropriate function of or direction for citizenship education is, however, contested. Weinberg and Flinders believe that rather than focussing on ‘good’ or responsible citizenship it should instead have a more democratising function and ‘justice’ orientation in which children and young people are able to understand the nature of democracy as a means to effecting social change and correction of injustice.142 b. A Foundation Stage The importance of the early years of education has long been recognised. It is reinforced by evidence showing that, even by the age of five, educational attainment is a ‘strong predictor’ of whether a child from a poor background has a chance of ‘bucking the trend’ towards remaining in disadvantaged circumstances when an adult.143 In 1997 the Labour Government gave early years education a high priority, promising ‘a sound beginning for all children’s education’.144 In 2000 it published a framework for early years provision in its Curriculum Guidance for the Foundation Stage. A national curriculum ‘foundation stage’ became statutory, under the EA 2002. It covered children under the age of five.145 This reform was part of a raft of measures supporting a ‘joined-up’ approach to supporting families with young children, including free nursery places for three year olds and the Sure Start scheme, in which £452 million was invested (to April 2002), offering a range of education, health and support services.146 Children entered the foundation stage on starting their primary education or, if they were provided with funded nursery education, on their third birthday or such later date as they began to receive that nursery education.147 Tying in with this reform, the 2002 Act also provided for NC key stage 1 to begin at the age of six rather than at the start of primary school (ages four to five).148 The new foundation stage comprised ‘areas of learning’, for each of which there could be prescribed ‘early learning goals’, ‘educational arrangements’ and ‘assessment arrangements’.149 The concept 141 Aiming to equip pupils with the ability ‘to manage their money on a day-to-day basis, and plan for future financial needs’: Citizenship programmes of study: key stages 3 and 4 n 140 above, 1. 142 J Weinberg and M Flinders, ‘Learning for democracy: The politics and practice of citizenship education’, (2018) 44(4) British Educational Research Journal 573. 143 See, eg, J Blanden, ‘Bucking the Trend’: What Enables Those who are Disadvantaged in Childhood to Succeed in Later Life? Working Paper No 31 (Leeds, Corporate Document Services, 2006) 26. 144 DfEE, Excellence in Schools (Cm 3681) (London, TSO, 1997) 16 para 3. 145 More particularly, the foundation stage ended at the same time at the school year in which the child reached the age of five: EA 2002, s 81. 146 See DfEE, Schools: Building on Success (Cm 5050) (Norwich, The Stationery Office, 2001) ch 2. 147 EA 2002, s 81. 148 Ibid, s 82. 149 Ibid, s 83.

308 Secular Education in the State Sector: A Curriculum for All? of ‘areas of learning’ provided a more flexible basis for the curriculum at this stage.150 Under the Childcare Act 2006 the foundation stage was revamped as the Early Years Foundation Stage, but it was removed from the NC.151 It became applicable to provision for the age group whether in schools or childcare settings. The reform was intended to consolidate an integrated approach and regulatory framework for education and childcare.152 The DfE’s current assumption is that children’s learning activities at this stage will be based around ‘games and play’.153 There is still prescription, but at the same time the learning and development requirements154 afford much flexibility, as was recommended by Dame Clare Tickell’s government-commissioned review of the Early Years Foundation Stage published in 2011.155 c. Extending the Scope of the National Curriculum The NC’s evolution took it in a more vocational and technological direction under the reforms introduced under the EA 2002. At key stages 1–3, two of the foundation subjects – art and technology – were replaced by three new subjects: ‘art and design’, ‘design and technology’ and ‘information and communication technology’ (ICT).156 (This was not the end of the subject re-arrangement, since ICT itself was replaced by ‘computing’, in September 2014.157) The remaining ‘other foundation subjects’ at these key stages were, as before: physical education, history, geography, music and, at key stage 3 only, citizenship and a modern foreign language.158 The foreign language options for schools prior to 2004 were set out in a prescribed list which not only included the main European languages such as French, German, Italian and Spanish, as noted above, but also many of the languages spoken within individual minority ethnic communities, 150 Those prescribed by the 2002 Act, which may be amended by the Secretary of State by order, are ‘personal, social and emotional development’; ‘communication, language and literacy’; ‘mathematical development’; ‘knowledge and understanding of the world’; ‘physical development’; and ‘creative development’. 151 Childcare Act 2006, ss 39–48 and Schs 1 and 3. 152 HM Government, Choice for parents, the best start for children: a ten year strategy for childcare (London, HM Treasury, 2004). 153 www.gov.uk/early-years-foundation-stage. See further DfE, Statutory Framework for the Early Years Foundation Stage (London, DfE, 2017). 154 Early Years Foundation Stage (Learning and Development Requirements) Order 2007 (SI 2007/1772) (as amended by the Early Years Foundation Stage (Learning and Development Requirements) (Amendment) Order 2012 (SI 2012/937)), and the Early Years (Exemptions from Learning and Development Requirements) Regulations 2008 (SI 2008/1743) (as amended by the Early Years (Exemptions from Learning and Development Requirements) (Amendment) Regulations 2012 (SI 2012/2463)). 155 Dame Clare Tickell, The Early Years: Foundations for life, health and learning (London, DfE, 2011). 156 EA 2002, s 84. 157 EA 2002, ss 84 and 85 as amended by the Education (Amendment of the Curriculum Requirements) (England) Order 2013 (SI 2013/2092). 158 Ibid. Regarding modern languages, see EA 2002, s 85(4) and (5) and the Education (National Curriculum) (Modern Foreign Languages) (England) Order 2004 (SI 2004/260).

Centralisation and a National Curriculum 309 such as Arabic, Bengali and Urdu. From 2004 onwards schools could offer any modern language provided pupils were also able to study one of the official languages of the European Union. Following EU expansion, the official languages included nine additional languages – Czech, Estonian, Hungarian, Latvian, Lithuanian, Maltese, Polish, Slovak and Slovenian – with Irish (Gaelic) added from 1 Jan 2007.159 At key stage 4, however, there were amendments in 2003160 that resulted in the removal of modern foreign language and design and technology from the list of other key stage 4 foundation subjects.161 Key stage 4 then had ICT,162 physical education and citizenship as foundation subjects. In addition, it had to include work-related learning163 and, if the student so chose, a subject from one or more of the four ‘entitlement areas’, namely arts (any of art and design, music, dance, drama and media arts), design and technology, humanities (comprising geography and history), and a modern foreign language. Consequently, as was the Government’s intention,164 pupils at key stage 4 would have the opportunity of choosing to study a modern foreign language, but this subject would not be compulsory. The QCA encouraged schools to offer courses in community languages such as those noted above,165 although that was dependent upon teacher availability. Indeed, the Government expressed encouragement for a greater take up of all modern language teaching at key stage 4, referring to a benchmark of 50 per cent take up.166 Also, as part of the planned reform of the primary school curriculum in 2010 it was expected that foreign languages would be added to the list of key stage 2 foundation subjects, but this did not occur until the NC was reformed in 2014. The current position is that any foreign language can be taught at key stage 2, whereas at key stage 3 it is any modern foreign language.167 There has, however, been a substantial decline in schools’ provision and pupil take-up of foreign language teaching over the past decade, prompting the All-party Parliamentary 159 SI 2004/260, n 158 above. 160 At key stage 4, the National Curriculum prescribed subjects can be changed by statutory instrument: EA 2002, s 86. 161 Ibid and the Education (Amendment of the Curriculum Requirements for Fourth Key Stage) (England) Order 2003 (SI 2003/2946). 162 Note the renaming of this subject as ‘computing’: SI 2013/2092, n 157 above. 163 Defined in the replacement s 85(10) of EA 2002 as ‘planned activity designed to use the context of work to develop knowledge, skills and understanding useful in work, including learning through the experience of work, learning about work and working practices and learning the skills for work’. Ofsted reported in 2005 that specialist schools had been slow to implement the new vocational courses at key stage 4: Ofsted, Specialist Schools: a Second Evaluation (London, Ofsted, 2005) para 27. 164 See DfES, Languages for All: Languages for Life (London, DfES, 2002) 26. 165 QCA, Modern Foreign Languages in the Key Stage 4 Curriculum (London, QCA, 2004) 7. 166 See DfES Press Notice ‘Modern Foreign Languages – Ensuring Entitlement At Key Stage 4 is a Reality’, 15 Dec 2005, which also outlined the other planned measures to promote language teaching, such as an expansion in the number of foreign languages specialist secondary schools. 167 2002 Act, ss 84 and 85 as amended by the Education (Amendment of the Curriculum Requirements for Second Key Stage) (England) Order 2013 (SI 2013/2093). See also the Education (National Curriculum) (Languages) (England) Order 2013 (SI 2013/2230) (defining modern foreign language and foreign language for this purpose).

310 Secular Education in the State Sector: A Curriculum for All? Group for Languages to issue a Manifesto for Languages.168 More recently, the British Academy and others have called for a ‘national strategy for languages’, citing a range of wider educational, social and economic benefits to be derived from it.169 There was also a growing recognition that vocational education and training had for too long been the ‘poor relation’ to academic education and yet was more suitable for some pupils than following a conventional academic path. The EA 2002 framework took greater account of the increasing provision of vocational education at a workplace for part of the time.170 A central funding body, the Learning and Skills Council,171 was given powers to fund education or training for 14–16 year olds at the premises of an employer.172 School pupils could also receive part of their secondary education at a further education institution,173 which could provide a broader range of choices especially in relation to vocational subjects. However, one area of concern in this context was that course options offered to girls ‘often reinforced sex-stereo-typed vocational options’.174 The further flexibility in the curriculum that was planned at NC key stages 3 and 4 was in part designed to enable pupils to benefit from ‘the style and pace of learning that fits in with their aptitudes, interests and learning styles’; and a ‘strongly work-focused programme for those 14–16 year olds most at risk of disengagement’ was piloted from 2006.175 There was also a belief that a further shift in the NC towards vocational subjects could reduce dissatisfaction among disaffected pupils and in turn lessen truancy, future offending and anti-social behaviour. There was the prospect of a fundamental reform of the curriculum for ages 14–19 which would bring vocational education squarely into the mainstream. The Labour Government commissioned an inquiry into the 14–19 curriculum led by Sir Mike Tomlinson. It reported in 2004 and recommended an overarching diploma qualification for all pupils. Academic (such as GCSE) and vocational studies would be brought into one programme, with identifiable lines of learning or themes (eg science and mathematics, or languages, literature and culture). However, the Government, while embracing the broad approach of the review, decided to publish proposals for 14 individual vocational diplomas, rather than

168 www.all-languages.org.uk/uploads/files/Press%20Releases/APPGManifestoforLangs-Embargo To14July.pdf. 169 The British Academy et al, Languages in the UK. A call for action (London, BA, 2019), www.langcen.cam.ac.uk/pdf/Languages-UK-2019-academies-statement.pdf. 170 See, eg, the amended definition of ‘secondary education’ in EA 2002, s 177. 171 The Learning and Skills Council, an executive agency of the DfES, was responsible for post-16 education and administration of funds for its provision. It was replaced, under the Apprenticeships, Skills, Children and Learning Act 2009, by the Young People’s Learning Agency, which in turn was replaced by the current body, the Skills Funding Agency, in 2012. 172 2002 Act, s 178, amending the Learning and Skills Act 2000, s 5. 173 EA 1996, s 2(2B) and (6A), inserted by the Learning and Skills Act 2000, s 110, and the EA 2002, s 177. 174 A Osler and K Vincent, Girls and Exclusion (London, Routledge Falmer, 2003) 164. 175 HM Government, Higher Standards, Better Schools for All, Cm 6677 (London, TSO, 2005) para 7.25. See also DfES, 14–19 Opportunity and Excellence (London, DfES, 2003).

Centralisation and a National Curriculum 311 an overarching diploma.176 In addition, it was proposed that functional skills in English and mathematics that were needed to ensure participation ‘effectively in everyday life, including in the workplace’, should become more firmly embedded in the school curriculum, including GCSEs and the new diplomas, but with the possibility of a discrete skills qualification.177 Free-standing functional skills qualifications (FSQs) in English, mathematics and ICT were introduced in 2010 and were intended for adults in further education as well as young people aged 14–18. The mathematics and English FSQs are, at the time of writing, being reformed under the aegis of Ofqual and new, more closely prescribed, FSQs in these subjects are due to be implemented in September 2019.178 It should be noted that Ofqual, which is the regulatory authority for these and other qualifications, is under a statutory duty to ‘set and publish’ general conditions governing recognition of qualifications.179 The new diplomas, covering areas including media/creative areas, information technology and health and social care, have proved a less durable reform. They were perceived as ‘charting a middle course between vocational and academic learning’ and as having the potential to encourage more young people to remain in education post 16 years of age.180 It was intended that traditional academic courses, including GCSEs, would continue to be available alongside them. At the time, the failure to embrace the integrated approach of Tomlinson, that would have raised the status of vocational education by tackling the traditional vocational/academic split in the curriculum and qualifications, was reportedly ‘a matter of deep regret to many’.181 The new diplomas, which were to be offered at three levels (level one equated to 4–5 GCSEs, level two to 5–6 GCSEs and level three to 3 A levels), were to be phased in from 2008, with the full suite available from 2013. The House of Commons Education and Skills Committee gave them a cautious welcome, yet expressing concerns about their ‘potential to compound existing problems of over-complexity and stratification of qualifications’.182 These concerns were justified by the practical difficulties that arose in planning for the new diplomas’ implementation. By early 2007, ministers and the Prime Minister were reported to be having regrets that the Tomlinson path had not been chosen and to have decided to abandon the reform.183 The diplomas nevertheless continued, although 176 DfES, 14–19 Education and Skills (Cm 6476) (London, TSO, 2005). 177 Ibid, paras 5.5–5.11. 178 Ofqual, Implementing Functional Skills reform. Consultation on rules and guidance for new Functional Skills Qualifications in English and Mathematics (Ofqual/18/6361/4) (Coventry, Ofqual, 2018). 179 Apprenticeships, Skills, Children and Learning Act 2009, s 134. See Ofqual, General Conditions of Recognition June 2016 (Coventry, Ofqual, 2016). See also the separate criteria for FSQs: Ofqual, Critieria for Functional Skills Qualifications (Coventry, Ofqual, 2012). 180 House of Commons Education and Skills Committee, First Report of Session 2006–07, 14–19 Diplomas (HC 249) (London, The Stationery Office, 2007) Summary, 3. 181 Ibid, para 9. 182 Ibid, paras 13 and 15. 183 See, eg, L Lightfoot, ‘Work-related diplomas for sixth-formers to go’, The Telegraph (online), 10 March 2007, www.telegraph.co.uk/news/uknews/1545056/Work-related-diplomas-for-sixth-formersto-go.html.

312 Secular Education in the State Sector: A Curriculum for All? they were not popular with students and some of those who took them struggled with the ‘functional skills’ component that all diploma students had to pass in order to succeed with the course.184 In 2010 only 3,000 students successfully completed a diploma.185 The diplomas were scrapped by the Coalition Government after 2012, when the final cohort of students was admitted onto a diploma course. No diploma qualifications could be awarded after August 2014. In addition to the new diploma qualification, young people at key stage 4 have had the option of taking other vocational qualifications if offered by their school or other institution, including the General National Vocational Qualification (GNVQ) (until it was abolished in 2010) or a ‘BTEC’ course, but also a range of others in areas such as key skills, sports leadership and ICT. These vocational courses have gained in popularity as their perceived benefits of preparing young people less suited to academic qualifications for potential careers have increasingly been recognised. In 2004, 15,000 vocational or vocationally-related qualifications were taken in schools in England, but by 2010 the annual number had increased to 575,000, taken mostly by 16 year olds.186 In 2011 the Wolf Report, arising from the Government-commissioned review of vocational education, nevertheless found that in many cases the courses which were taken led to ‘lowlevel vocational qualifications, most of which have little to no market value’.187 Wolf argued strongly that the system had ‘no business tracking and steering 14 year olds, or 16 year olds, into programmes which are effectively dead-end’.188 The report also condemned the complexity of English vocational education and proposed simplification across quality assurance, funding and regulatory structures.189 For NC key stage 4, the report recommended a common core of study, with vocational specialism to be limited normally to 20 per cent of the pupil’s timetable, an approach that would be comparable with other European and OECD partner states.190 This arose from Wolf ’s conclusion that 14–16 and 16–19 should be viewed as distinct educational stages, with a need for a core curriculum and limited specialisation for the first group, preparing the way for more specialisation at the next stage.191 Wolf recognised that the opportunities for achieving success in low-level vocational subjects at age 16 might help to motivate young people to do better in their other subjects and stop them from dropping out and becoming ‘NEET’ (not in education, employment or training), but also noted that research evidence did not point to these effects in practice.192 The report 184 M Baker, ‘Anger grows as diploma support wanes’, BBC online news report, www.bbc.co.uk/news/ education-11407563. 185 A Wolf, Review of Vocational Education – The Wolf Report (DFE-00031-2011) (London, DfE, 2011) 48. 186 DfE, The Importance of Teaching. The Schools White Paper 2010 (Cm 7980) (London, DfE, 2010) para 4.51. 187 Wolf, n 185 above, 7. 188 Ibid, 8. 189 Ibid, 9. 190 Ibid, 11. 191 Ibid, 107. 192 Ibid, 109.

Centralisation and a National Curriculum 313 recommended some flexibility provided standards were robust. It said that qualifications that were or were not suitable for inclusion at key stage 4 should be identified centrally.193 The Coalition Government broadly supported Wolf ’s idea of an academic core curriculum supplemented by a vocational element, for the ‘vast majority’ of 14–16 year olds, and for ensuring that the vocational qualifications that would be permitted (and would be recognised in p erformance tables) should be ‘valuable, respected and support progression’.194 In January 2012 the requirement to provide work-related learning at key stage 4 was removed,195 as had been recommended by Wolf on the basis that there should be more emphasis on longer internships for older students and in light of the increasingly fewer employers who were willing to accommodate under-16s on their premises.196 Vocational education has gradually gained ground and become more firmly embedded in the curriculum for those at key stage 4. The idea that it will also facilitate progression to a more advanced form of such education post-16 has been reinforced by the planned phased implementation from September 2020 of ‘T levels’,197 a ‘technical alternative to A levels’,198 with a planned £38 million allocation of funding to the institutions first providing courses to cover new equipment and facilities requirements.199 There is a concern to ensure that assessment is rigorous and that T levels are seen as a ‘reliable indicator of technical occupational competence’ in the same way that there is public confidence in A levels as a measure of academic ability.200 There is also a belief that access to T level courses should be inclusive, with a specific commitment to facilitate entry onto them by young people with special educational needs and disabilities (SEND), with appropriate adjustments made to accommodate them.201 However, it is recognised that there will be barriers, since some young people with SEND may not acquire sufficient level 2 (GCSE or equivalent) qualifications to progress onto a T level programme while others may find the proposed external assessment disadvantageous to them.202

193 Ibid, 112–3. 194 DfE, Wolf Review of Vocational Education. Government Response (London, DfE, 2011) 5–6. 195 Education (Amendment of the Curriculum Requirements for Fourth Key Stage) (England) Order 2012 (SI 2012/2056). 196 Wolf n 185 above, 131. 197 See DfE, T Level Action Plan (London, DfE, 2018). The individual T levels will be set in three routes: Digital, Construction, and Health and Science. 198 DfE, Implementation of T Level programmes. Government consultation response (London, DfE, 2018) 5. 199 DfE Press Notice, 2 Oct 2018 ‘New education and skills measures announced’ www.gov.uk/ government/news/new-education-and-skills-measures-announced-2. 200 DfE (2018) n 198 above, 19. 201 For a more general discussion of inclusivity and the curriculum, see ‘A curriculum (and assessment) for all?’ below. 202 ‘Respondents were concerned that our assessment proposals would make T Levels very difficult for students with SEND. To address this, we will work with the Institute [for Apprenticeships] and Ofqual to make sure reasonable adjustments are provided for students with SEND’: DfE n 198 above, 24.

314 Secular Education in the State Sector: A Curriculum for All? Another important curricular development, this time affecting academic education, was the Coalition Government’s introduction of the English Baccalaureate (EBacc) in schools in England in 2011 as an academic alternative at key stage 4.203 EBacc generates a performance measure for pupils who have taken approved courses (at GCSE level) in prescribed subject areas: English, mathematics, history or geography, the sciences and a language. A pupil will attain the EBacc by obtaining the requisite grades in GCSEs in all of the prescribed subjects. The EBacc represents an academic core as per the Wolf framework above. Part of the rationale for introducing it was to extend provision of and access to these core academic areas across the schools sector.204 The introduction of the EBacc was, however, criticised for, inter alia, a lack of consultation and for pre-dating the review of the NC which the Government had announced, as well as its uncertain impact on less advantaged children. The Secretary of State for Education announced in 2015 that taking the five EBacc subjects at GCSE would be a requirement for all pupils starting secondary school that September.205 This was at a time when less than 40 per cent of pupils were entered for the EBacc.206 There was also going to be a stipulation that unless a school made the EBacc compulsory it would not be able to achieve an Ofsted rating of ‘outstanding’. However, many education professionals were concerned about the narrowness of the EBacc curriculum, which for example made no room for the creative or expressive arts. There was also a concern that it would be unsuitable for pupils for whom a more vocational focus would be more appropriate. Teacher shortages in some of the EBacc subjects, such as science and languages, was also considered problematic.207 Nonetheless, the Education Select Committee viewed the list of EBacc subjects as ‘broadly speaking, representative of those that have the highest value to the individual in keeping their options open’.208 Following consultation, the Government proceeded towards the implementation of the reform, setting a target for the proportion of year 10 pupils who would study GCSE subjects within the EBacc at 75 per cent in 2022 rising to 90 per cent by 2025. The minority of pupils for whom the EBacc would not apply would comprise those, considered on a case by case basis, for whom it would not be appropriate due for example to their special educational needs or because they were new arrivals in the UK who needed time to adjust.209 Not surprisingly, entry rates for the 203 The intention to do so was first announced in the 2010 White Paper: DfE (2010) n 186 above, para 4.21. 204 House of Commons Education Committee, Ninth Special Report of Session 2010–12 The English Baccalaureate: Government Response (HC 1577) (London, 2012). 205 DfE Press Notice, ‘New reforms to raise standards and improve behaviour’, 16 June 2015, www.gov. uk/government/news/new-reforms-to-raise-standards-and-improve-behaviour. 206 Ibid. 207 See an excellent House of Commons Library Briefing Paper: R Long and P Bolton, English Baccalaureate, 4 September 2017 (London, House of Commons Library, 2017). 208 House of Commons Education Committee, First Report Session 2010–12, The English Baccalaureate Vol.1 (HC 851) (London, The Stationery Office, 2011), para 87. 209 DfE, Implementing the English Baccalaureate. Government Consultation Response (London, DfE, 2017).

Centralisation and a National Curriculum 315 EBacc have been much higher in grammar schools than in others (at double the overall schools average in 2016), while pupils entitled to free school meals were half as likely as others to enter.210 A further discrepancy relates to gender: a higher proportion of girls (45 per cent) than boys (34 per cent) entered the EBacc in 2016.211 Whatever the EBacc’s merits, clearly much progress will still be needed in the years ahead if the proportion of pupils taking it is to meet government targets.

iii. The National Curriculum Post 2014 The NC currently in operation in schools in England is based on reforms introduced in 2014. It had become clear before the end of the Labour Government’s period in office that the NC was still insufficiently orientated towards the needs of the individual learner and had become unwieldy and overly complicated and prescriptive. It occupied more or less all of the teaching hours in the schools which were required to implement it, leaving little or no time for other curricular developments initiated by teachers. This was compounded by the testing and assessment requirements, which included national tests in the core subjects. They had caused teachers to ‘focus on that part of the curriculum which is likely to be tested’ and ‘feel less able to use the full range of their creative abilities in the classroom’.212 Subsequently it was reported that central prescription and direction were de-skilling teachers, with schooling appearing ‘more of a franchise operation, dependent on a recipe handed-down by Government rather than the exercise of professional expertise by teachers’.213 Centrally-driven piecemeal development had affected curricular coherence and a review was needed to address problems and ensure greater local flexibility.214 The Children, Schools and Families Committee saw as irrational the restriction of curricular freedoms to the academy sector: Given that the Department sees Academies’ curriculum freedoms as a key factor in their ability to raise standards, and that the Minister is so confident that Academies’ curriculum freedoms have not damaged these pupils’ access to a rounded curriculum, it is not clear why the Department restricts these freedoms to Academies. We recommend that the freedoms that Academies enjoy in relation to the National Curriculum be immediately extended to all maintained schools.215

The Labour Government was, however, somewhat dismissive of the arguments regarding the complexity of the NC, citing simplifications which had allowed

210 Quoted in Long and Bolton, n 207 above, 22. 211 Ibid. 212 House of Commons Children, Schools and Families Committee, Third Report of Session 2007–08, Testing and Assessment (HC 169-I) (London, The Stationery Office, 2008) para 58. 213 House of Commons Children, Schools and Families Committee, Fourth Report Session 2008–09, National Curriculum. Vol 1. (HC 344-I) (London, The Stationery Office, 2009) summary, 4. 214 Ibid. 215 Ibid, para 73 (original emphasis).

316 Secular Education in the State Sector: A Curriculum for All? schools more flexibility.216 In relation to the contrast with academies’ freedoms, it argued that there was no evidence that schools in which the NC was compulsory wanted further freedom; and, in any case, the academy sector tended to follow the NC. It was also argued that academies were mainly catering for pupils in disadvantaged areas where the flexibility they enjoyed enabled them to ‘focus on the basics and to tailor the content of the wider curriculum to the needs of its pupils’.217 Neither of these core arguments were convincing, however, since schools were not specifically asked whether they wanted less prescription and many local authority maintained schools also operated in deprived areas. There appeared little prospect of reform outside the context of the Rose review of the primary curriculum which, as noted above, was shelved by the incoming Conservative-led Coalition Government in 2010. However, the new Government appeared to accept the case for rationalisation of the NC, which fitted with its broader policy thrust on bureaucratic reduction. The former Children, Schools and Families Committee’s injunction to trust the teaching profession in relation to the curriculum was echoed in the Government’s proposed ‘new approach’ which ‘affirms the importance of teaching and creates scope for teachers to inspire’.218 There seemed to be an intention to revert to the original, 1987, notion of the NC as a ‘framework not a straitjacket’,219 albeit now re-conceptualised as ‘a benchmark not a straitjacket’.220 The Government announced a review of the NC in January 2011, justifying it with claims that the current curriculum was ‘substandard’ and offered inadequate preparation of pupils for a more technological future.221 The review was to be conducted by an expert panel and would have an international outlook, intending to draw on best practice and experience from around the globe. Meanwhile, independently of the process, and while it was still in progress, some changes to assessment arrangements at key stage 2 were announced following the publication of a review by Lord Bew.222 The expert panel’s report, published at the end of 2011, recommended that the educational purposes of each programme of study should be explicitly stated.223 Proposals on organisation included the adoption of a two-year programme of study rather than the standard year-by-year approach.224 The panel sought to allow increased scope for local school or community level determination of curricular provision while retaining the NC’s core and foundation subjects as a basis for 216 Ibid, Appx 1, Government’s Response. 217 Ibid. 218 DfE n 186 above, para 4.2. 219 DES/Welsh Office n 79 above, 5. 220 DfE n 186 above, para 4.2. 221 DfE, Press Release, 20 January 2011, ‘National curriculum review launched’, www.gov.uk/ government/news/national-curriculum-review-launched. 222 Lord Bew, Independent review of Key Stage 2 Testing, Assessment and Accountability. Final Report (London, DfE, 2011). 223 DfE, The Framework for the National Curriculum. A report by the Expert Panel for the National Curriculum review (London, DfE, 2011), para 2.20. 224 Ibid, ch 6.

Centralisation and a National Curriculum 317 ‘essential knowledge’. The idea was that in the core subjects there would continue to be prescribed programmes of study and attainment targets, but in order to avoid an overburdening prescription overall there would be a reduction in the specified elements of the other foundation subjects.225 The panel also favoured transferring a small number of the foundation subjects – ones with less ‘disciplinary coherence’ than others – from the NC to the ‘basic curriculum’. The subjects identified were design and technology, ICT and citizenship.226 While the panel recognised and stressed the importance of these subjects, they considered that schools should be allowed flexibility over their content. The panel also acknowledged the importance of foreign language teaching and concluded that its place in the NC should be extended through inclusion at key stage 2, although only at the upper end of the age range.227 (The panel recommended that key stage 2 itself, which spans four years, was too long and should be divided into a lower and upper key stage each of two years.228) Assessments in the core subjects at the end of key stages 1–3 would continue to be carried out by teachers, but the panel endorsed a recommendation of the Bew report229 that there should be external assessment in English and mathematics at the end of key stage 2.230 As discussed earlier, key stage 4 had been the focus for the most significant reforms to the NC under the Labour Government, particularly with the introduction of ‘entitlement areas’ from which pupil could choose. The expert panel also recommended changes to it, acknowledging that what they were recommending ran counter to their proposals and arguments for reducing content elsewhere and would add to the strain on teacher resources. The panel drew on international evidence pointing to the benefits of retaining a broad curriculum for this age group. The narrowing down of the subject span as pupils entered at key stage 4, even with the availability of entitlement areas, had had the effect of depriving young people of ‘access to powerful forms of knowledge and experience at a formative time in their lives, and foreclosing on some pathways and choices’.231 Citizenship, ICT and physical education were the only prescribed foundation subjects at key stage 4 at that time and the panel recommended that geography, history, modern foreign languages, design and technology and ‘the arts’ (art and music – drama was not mentioned) should be added to the list of statutory subjects.232 Since the panel favoured a reduction in the prescribed content of these subjects – a ‘condensed specification’ – the ‘breadth and associated quality of learning’ achieved in

225 Ibid, para 3.14. 226 Ibid, para 4.8. 227 Ibid, para 4.13. 228 Ibid, para 5.5. 229 Bew, n 222 above. 230 DfE (2011) n 223 above, para 3.16. The panel also set out the case for reducing key stage 3 to two years and adding an extra year at the start of key stage 4: ibid, para 5.10–5.16. 231 Ibid, para 4.16. See also para 5.10. 232 Ibid, para 4.17. As noted above, three of the subjects would be included as part of the basic curriculum only.

318 Secular Education in the State Sector: A Curriculum for All? high-performing jurisdictions could be ensured without having a curriculum that was overloaded.233 It was not, however, the panel’s view that all pupils should have to follow a full GCSE course in each of the subjects. The panel also made recommendations on assessment, pupil progression, reporting of performance and the development of oral language within the National Curriculum. The Government’s proposals for NC reform followed, in June 2012.234 The expert panel’s call for reduced prescription and content in relation to the foundation subjects was endorsed, but more rigour and higher expectations in relation to the core subjects was proposed. The Government was not proposing any changes to the key stages or to the subject areas included in them, other than making a modern foreign language a foundation subject at key stage 2 and not merely, as the panel had recommended, at the key stage’s upper age range. There was significant opposition to the Government’s proposals,235 particularly with regard to the continuing level of prescription despite slimming down in some areas (notably science). Nevertheless, in July 2013 the Government published for consultation the draft Education (National Curriculum) (Attainment Targets and Programmes of Study) (England) Order 2013 and the detailed content of the new programme across all key stages (apart from the core key stage 4 subjects, on which consultation was to occur in 2014). The responses to the consultation,236 which related to each of the National Curriculum subjects separately, were mixed. Some, for example, favoured the increased emphasis on grammar, punctuation and spelling in the English curriculum, while others were concerned it might pose undue challenges for some pupils. Nearly one in three respondents regarded the primary school curriculum in English as too prescriptive. There was also quite a high level of concern about the demanding nature of the mathematics curriculum. Most of the new National Curriculum came into operation in September 2014 and was fully implemented by September 2017.237 The three core subjects plus computing and physical education have to be taught at all four key stages; art & design, design & technology, geography, history and music are prescribed for key stages 1–3; 233 Ibid, para 4.18. 234 DfE Press Release, ‘New primary curriculum to bring higher standards in English, maths and science’, 11 June 2012, www.gov.uk/government/news/new-primary-curriculum-to-bring-higherstandards-in-english-maths-and-science. See also the initial response the expert panel’s report: http://media.education.gov.uk/assets/files/pdf/l/secretary%20of%20state%20letter%20to%20tim%20 oates%20regarding%20the%20national%20curriculum%20review%2011%20june%202012.pdf. 235 DfE, The national curriculum in England. Framework document for consultation. February 2013 (London, DfE, 2013). 236 DfE, Reforming the national curriculum in England. Summary report of the July to August consultation on the new programmes of study and attainment targets from September 2014 (London, DfE, 2013), at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/ 239270/Consultation_Summary_Response_NC_v3.pdf. 237 See the relevant documents setting out the framework and detailed content of each of the National Curriculum subjects: www.gov.uk/government/collections/national-curriculum (accessed 12 April 2018). See also the Education (National Curriculum) (Attainment Targets and Programmes of Study) (England) Order 2013 (SI 2013/2232) (as amended by SI 2014/1941, SI 2014/1867, SI 2014/3285 and SI 2015/900).

Centralisation and a National Curriculum 319 citizenship is at key stages 3 and 4 only; and languages are confined to key stages 2 (as ‘foreign language’) and 3 (‘modern foreign language’).238 Policy making had followed a careful and measured path through various stages of detailed consultation, albeit one that was ‘littered with controversy’ at times.239 There were significant changes to the content of each of the individual subjects and to the assessment arrangements, but the Government had shown little willingness to compromise and bow to expert opinion on the structure of the curriculum itself. Assessment, which remains a controversial issue in view of concerns about the burdens placed on both staff and pupils, and in relation to key stage 1 was the subject of a one-day boycott by parents in 2016 under a campaign called Let Our Kids be Kids,240 is still focussed on English and mathematics at the end of key stages 1 and 2 and GCSE at key stage 4 to benchmark pupil achievement.241 But a plan to require re-testing in reading and mathematics of pupils failing to reach the expected standard in key stage 2 tests was abandoned in light of parents’, teachers’ and head teachers’ concerns.242 Testing at the end of key stage 3 was dropped ‘after a fiasco of lost papers and missing results’.243 Since the school year 2017–18, for the key stage 1 tests (SATs) in English, only reading testing is compulsory and grammar, punctuation and spelling tests are optional,244 the Government having acceded to teachers’ and schools’ calls for greater flexibility. Schools and teachers have long been resistant to the burden involved in assessment. In March 2017, government proposals for ending statutory assessment at the end of key stage 1 were published, although schools would still be provided with test materials which they could use to benchmark pupil achievements and provide information to parents and there would also be sampling from schools administering the tests. The General Secretary of the National Union of Teachers was among those in the profession welcoming the proposed reform, seeing it as a ‘concession to the thousands of teachers who have

238 See DfE, National Curriculum in England: framework for key stages 1 to 4 (2014), www.gov.uk/ government/publications/national-curriculum-in-england-framework-for-key-stages-1-to-4/thenational-curriculum-in-england-framework-for-key-stages-1-to-4; and DfE, The national curriculum in England: Framework Document (2014), https://assets.publishing.service.gov.uk/government/ uploads/system/uploads/attachment_data/file/381344/Master_final_national_curriculum_28_Nov. pdf. 239 C Alexander and D Weekes-Barnard, ‘History lessons: inequality, diversity and the national curriculum’, Race Ethnicity and Education (2017) 20:4 478–494, 479. 240 N Woodcock, ‘Parents shun school tests’, The Times, 30 Apr 2016. 241 See H Torrance, ‘The Return to Final Paper Examining in English National Curriculum Assessment and School Examinations: Issues of Validity, Accountability and Politics’ (2018) 66(1) British Journal of Educational Studies 3. 242 G Hurst, ‘Pupils will not have to re-sit exams after Tory U-turn’, The Times, 20 Oct 2016. 243 Torrance n 241 above, 4–5. 244 For the details of the current assessments, see Standards and Testing Agency, 2019 National Curriculum Assessments Key Stage 1, Assessment and Reporting Arrangements (STA, 2018), https:// assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/754076/ Key_stage_1_assessment_and_reporting_arrangements.pdf.

320 Secular Education in the State Sector: A Curriculum for All? protested against the effects of a test-driven curriculum on six- and seven-yearolds’.245 Following consultation it was decided to proceed with the change, although not starting until 2022.246 Although a previous plan for baseline assessment of children in reception classed was dropped in 2016,247 there will now be such an assessment, referred to by the DfE as the ‘reception baseline assessment’ (or ‘RBA’), which is intended to ‘establish pupils’ prior attainment as the starting point for calculating progress measures when pupils reach the end of key stage 2’.248 There is an intention to pilot this assessment in the autumn of 2019, but one teaching union voted to boycott it on the grounds that it will be damaging to young children and hence ‘immoral’.249 At key stage 2 there are national tests in mathematics and English, taken in May at the end of the key stage, around the age of 11.250 There are also teacher assessments in these subjects, but it is proposed that schools should cease to have to report on them, in the interests of reducing teacher workloads, particularly since these assessments are (unlike test results) not used as an accountability measure for schools.251 Schools are legally required to conduct teacher assessment of English reading and in mathematics for pupils who, in the head teacher’s opinion, do not have the ability to meet the standard expected for successful completion of the NC test in the relevant subject.252 Statutory assessment of science at key stage 2 was dropped in 2010 in order to reduce the overall testing burden, but there is teacher assessment.253 The Government has also introduced sampling arrangements for science which operate every two years and involve about 9,500 pupils in 1,900 schools taking a national test (thus, five pupils per school).254 The arrangements are intended to provide objective evidence on the overall performance of the cohort nationally. Schools selected are in effect under a statutory obligation to run this test.255 The pupils who take the test are selected by the 245 Quoted in C Davies, ‘Sats tests for seven-year-old pupils in England set to be scrapped’, The Guardian (online) 30 March 2017, www.theguardian.com/education/2017/mar/30/national-sats-testsfor-seven-year-olds-set-to-be-scrapped. 246 DfE, Primary assessment in England. Government Consultation Response (September 2017) (London, DfE, 2017). 247 G Hurst, ‘Ministers back down over plans to test four-year-old pupils’, The Times, 8 Apr 2016. 248 DfE (2017) n 246 above, 15; DfE, Changes to assessments in primary schools (May 2019), at www.gov.uk/government/publications/changes-to-assessments-in-primary-schools/changes-toassessments-in-primary-schools. 249 R Bennett, ‘Union demands boycott of tests for four-year-olds’, The Times 3 Apr 2018. 250 Education (National Curriculum) (Key Stage 2 Assessment Arrangements) (England) Order 2003 (SI 2003/1038), as amended. See also Standards and Testing Agency, Key stage 2: test administration guidance. 2018 national curriculum tests https://assets.publishing.service.gov.uk/government/uploads/ system/uploads/attachment_data/file/691556/2018_KS2_test_administration_guidance_pdf. 251 DfE (2017) n 246 above, 24. 252 SI 2003/1038 n 250 above, art 4, as substituted by the Education (National Curriculum) (Key Stage 2 Assessment Arrangements) (England) (Amendment) Order 2018 (SI 2018/452). 253 Ibid. 254 The test is administered by the NFER – the National Foundation for Educational Research – on behalf of the Standards and Testing Agency. 255 This is because the test is prescribed and thus falls within schools’ duty to implement the National Curriculum under the EA 2002, s 88.

Centralisation and a National Curriculum 321 Standards and Testing Agency (STA) to be ‘representative of the population’,256 although it is not clear whether this refers to the national or local population. Selection for participation in the test could be regarded as placing the pupils concerned under extra pressure and there is clearly potential for conflict between parents and schools over this issue. While the STA has anticipated that some parents may object, it in effect side-steps the matter by referring to the decision about a child’s participation as being one for the headteacher.257 The assessment of children with special educational needs under the NC is discussed in the next section. The additional scope for teachers to demonstrate initiative and creativity outside the core subjects does enable parts of the curriculum to be more responsive to teacher and schools’ concerns even though the enhancement of professional control that had been recommended has not been fully achieved. In relation to the history curriculum in particular there is scope now for relating content more closely to issues of social and ethnic diversity. But this will depend on the willingness and capacity of teachers and schools to adopt such a multicultural focus. As these factors are uncertain, this approach should arguably be part of the national teaching agenda and is one that is ‘too important to be left to the efforts of individual teachers’.258 In the absence of a proper cultural focus to such a subject there is a risk that some sections of the pupil population may become significantly disengaged from the learning process, due to perceived marginalisation.259 The NC is, however, considered by the DfE to be ‘just one element in the education of every child’ so that there would be ‘time and space in the school day and in each week, term and year to range beyond the national curriculum specifications’.260 On that basis there would be opportunities beyond the NC to develop multicultural and intercultural perspectives that offer a degree of inclusivity. But to proponents of these approaches, which were discussed in chapter one, they should be pervasive and embedded across the curriculum.

iv. A Curriculum (and Assessment) for All? An important issue in relation to a statutory curriculum is inclusivity. This is particularly so in relation to children with disabilities. Art 24 of the CRPD sets clear obligations on states to ensure provision of ‘an inclusive education system at all levels’ directed to, among other things, ‘enabling persons with disabilities to 256 DfE Standards and Testing Agency, Guidance: Science sampling arrangements (March 2018), www. gov.uk/government/publications/key-stage-2-science-sampling-tests/science-sampling-arrangements. 257 Ibid. Headteachers can grant temporary exception from the National Curriculum under the power in s 93 of the EA 2002: see below. 258 C Alexander and D Weekes-Barnard, ‘History lessons: inequality, diversity and the national curriculum’ (2017) 20(4) Race Ethnicity and Education 478, 491. 259 See MLN Wilkinson, ‘The concept of the absent curriculum: the case of the Muslim contribution and the English National Curriculum for history’ (2014) 46(4) Journal of Curriculum Studies 419. 260 DfE (2014) n 238 above, para 3.2.

322 Secular Education in the State Sector: A Curriculum for All? participate in a free society’261 and to ensuring that children and young people with disabilities can access primary and secondary education ‘on an equal basis with others in the communities in which they live’.262 Art 24 aims to ensure that those with disabilities are able to participate effectively in education. General Comment No 4 on the right to inclusive education under the CRPD refers to the need for a ‘whole person approach’ which, while requiring flexibility and adaptation to suit individual needs, nevertheless should be aimed at ending segregation within educational settings.263 The principles of equality and inclusion promoted by the CRPD, noted also in Chapter 4, are reflected in the basic philosophical approach to the statutory curriculum in England – that it should be a curriculum for all. That was made clear at the time the NC was first implemented and it remains a central tenet to it. It applies not merely to the issue of disability but also to other areas of disadvantage. Various personal characteristics and background factors affect academic performance levels among pupils. One of the most influential characteristics is gender. There was anxiety around the time of the NC’s introduction that girls would be disadvantaged by the end-of-key-stage tests: ‘girls … may be less likely than boys to function to the best of their ability in such a formal testing situation’.264 However, boys achieved worse outcomes than girls, including in the sciences.265 The most recently available results for key stage 2 assessments, in 2017, show that boys did less well than girls across all but one of the individual tests and there was an eight percentage point gender gap in performance overall.266 Another influential factor in attainment is, not surprisingly, socio-economic status. Children entitled to free school meals (FSM) are among the lowest achievers in NC assessments; 43 per cent of FSM pupils reached the expected levels in reading, writing and mathematics, compared with 64 per cent of all other pupils.267 There was a similar gap in the case of a separate category, ‘disadvantaged’ pupils – a group which includes FSM pupils but also those who are ‘looked after’ by the local authority or subject to adoption, guardianship or a child arrangements order. Ethnicity, however, seems to make less difference to stage 2 assessment

261 Art 24.1(c). 262 Art 24.2(b). 263 UN Committee on the Rights of Persons with Disabilities, General Comment No 4 (2016) on the Right to Inclusive Education (Geneva, UN, 2016) para 12. 264 S Miles and C Middleton, ‘Girls’ Education in the Balance: The ERA and Inequality’ in M Flude and M Hammer (eds), The Education Reform Act 1988: Its Origins and Implications (Basingstoke, Falmer, 1990) 187, 198–9. 265 Eg, ‘[g]irls perform as well, or better, than boys in science at every examination from ages 11–18’: House of Commons Science and Technology Committee, Third Report, Session 2001–02, Science Education 14–19, HC 508–I (London, TSO, 2002) para 50; ‘Girls still outperform boys, greatly so in English and slightly in mathematics and science’: Ofsted, The Annual Report of Her Majesty’s Chief Inspector of Schools 2003/04 (London, Ofsted, 2005) para 96. 266 DfE, National curriculum assessments at key stage 2 in England, 2017 (revised), SFR 69/2017, 14 December 2017 (London, DfE, 2017). 267 Ibid.

Centralisation and a National Curriculum 323 erformance than other factors. Apart from those of Chinese origin, a group p whose performance is 16 percentage points above the national average, there is no more than a three percentage points difference across ethnic groups. The average attainment of pupils from various Black backgrounds was slightly lower than that of other non-Chinese groups, but in 2017 advanced by 10 percentage points over the previous year, the largest gain for any group. The lowest performing ethnic group comprised pupils of a Gypsy/Roma background: only 16 per cent of them reached the expected standard overall, compared to the overall average of 60 per cent – a massive performance gap.268 There was also a large performance gap between pupils identified as having special educational needs (SEN) and others. Among the former, only 18 per cent reached the expected standard in reading, writing and mathematics, compared to 70 per cent of the latter.269 The results for children with SEN do not appear to reflect the intended inclusivity of the prescribed school curriculum. There has for the past 20 years been a National Curriculum inclusion statement which calls upon schools to develop an inclusive curriculum catering for the diverse needs of pupils, as consistent with the requirements of equality legislation.270 Moreover, the SEN Code of Practice has long treated access to the set curriculum as the norm for most pupils with SEN,271 with the exception of those with a statement of special educational needs or, now, an education, health and care plan,272 for whom the National Curriculum may be dis-applied or applied with modifications.273 The current SEN Code, however, has lowered slightly the expectation that a child with SEN will normally have access to the NC: ‘Lessons should be planned to address potential areas of difficulty and to remove barriers to pupil achievement. In many cases, such planning will mean that pupils with SEN and disabilities will be able to study the full national curriculum.’274 Inclusivity is, however, emphasised by the way that maintained special schools are also legally required to implement the NC.275 Research seems to show that, in relation to children with Autistic Spectrum Disorder at least, NC inclusion is working.276 For any children who are working at a level below the minimum standard (level 1) for the NC tests and assessments there have been separate performance attainment targets – known as ‘P scales’. These scales, which were first introduced 268 Ibid. 269 Ibid. 270 See, eg, DfEE, The National Curriculum. Handbook for primary teachers in England. Key stages 1 and 2 (London, DFEE, 1999). 271 DfES, Special Educational Needs Code of Practice (London, DfES, 2001) para 1:5. 272 On education, health and care plans, see introduction to ch 9. 273 EA 2002, s 92, as amended by the CFA 2014, Sch 3, para 77. 274 DfE/Department of Health, Special educational needs and disability: code of practice 0–25 years (London, DfE, 2015) para 6.12. See also DfE, Statutory Guidance n 140 above. 275 EA 2002, s 88. 276 EM Waddington and P Reed, ‘Comparison of the effects of mainstream and special school on National Curriculum outcomes in children with autistic spectrum disorder: an archive based analysis’ (2017) 17(2) Journal of Research in Special Educational Needs 132.

324 Secular Education in the State Sector: A Curriculum for All? in 1998, applied to the full range of core and other subjects at each of the key stages and were covered by legislative requirements for assessment arrangements at the end of key stages 1 and 2.277 They were intended to enable parents and schools to track the performance of individual children and to contribute to school performance tables in a way that would not really be possible under the standard assessment arrangements, which did not cater for such a reduced level of performance. In September 2017, however, the Government announced that it would be removing the P scales, starting in the academic year 2018–19.278 This decision followed the independent review of statutory assessments for pupils working below NC test standard. The review, chaired by Diane Rochford, reported in 2016.279 It recommended an end to the P scales, the development of an inclusive system of assessment under which as many pupils as possible would be covered by mainstream assessment arrangements, and an alternative form of statutory assessment (looking at ‘aspects of cognition and learning’280) for pupils with severe or profound and multiple learning difficulties whose needs prevented them from being engaged in subject-based learning. The P scales were found not to offer reliable comparison between different pupils’ achievement levels or an effective means of monitoring individual pupils’ progress; and there was a tendency for schools to use them as a curriculum per se rather than as an assessment tool.281 The Government concluded that the P scales were no longer ‘fit for purpose’ and accepted the Rochford Review’s core recommendations, although also planned to pilot new assessment arrangements in cognition and learning before making a final decision.282 The new standards for those working at a prekey stage level were announced in May 2018283 and duly came into operation in 2018–19.284

277 DfE, Performance – P Scale – attainment targets for pupils with special educational needs (London, DfE, 2017). This is the ‘P Level Document’ in the Education (National Curriculum) (Attainment Targets and Programmes of Study) (England) Order 2013 (SI 2013/2232), as amended. 278 E Busby, ‘SEND: DfE scraps P-scales for assessment of pupils working below national curriculum level’, TES 14 Sept 2017, www.tes.com/news/send-dfe-scraps-p-scales-assessment-pupils-workingbelow-national-curriculum-level. 279 D Rochford (Chair), The Rochford Review: final report. Review of assessment for pupils working below the standard of national curriculum tests (Standards and Testing Agency, 2016), https://assets. publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/561411/ Rochford_Review_Report_v5_PFDA.pdf. 280 These were: responsiveness, curiosity, discovery, anticipation, persistence, initiation and investigation: ibid, 6–7. 281 Ibid, 13. 282 DfE, Primary school pupil assessment: Rochford Review recommendations. Government consultation response (September 2017) (London, DfE, 2017). 283 DfE, ‘New standards to support pupils to reach their potential’, 24 May 2018, www.gov.uk/ government/news/new-standards-to-support-pupils-to-reach-their-potential. 284 See, eg, STA, 2018/19 Pre-key stage 1: pupils working below the national curriculum assessment standard (2018) at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/738696/2018-19_Pre-key_stage_1_-_pupils_working_below_the_national_ curriculum_a.._.pdf.

Centralisation and a National Curriculum 325 There will be some children, other than those with SEN, for whom temporary exception from the NC may be desirable under the permitted arrangements made by a head teacher for individual children to be excepted for a maximum of six months (and potentially for further periods).285 This power is intended to be used by the head teacher where a child’s circumstances make the standard curricular framework unsuitable, as in the case of an immigrant child whose first language is not English and who therefore needs extra language provision for a temporary period. Also, the Secretary of State can direct a departure from the NC in a school, or for some of its pupils, in order to facilitate the carrying out of development work or educational experiments.286 Although the extent of the discretion to provide for exception either on an individual or group/category basis might in principle be quite significant, it is very likely that in practice relatively few pupils – certainly outside the severe or profound learning difficulty category – will not have access to the NC. Furthermore, it is clear that significant efforts have been made within policy development and system design to give effect to the principle of inclusion for all as far as possible.

v. Can a Prescribed National Curriculum be Reconciled with the Notion of Parental Choice and the Accommodation of Cultural Preferences as a Human Right? A national curriculum with legal force and applicable to all children, subject only to minor exceptions, appears inconsistent with the notion of choice in education. It was made clear when the NC was first introduced that teachers and schools ‘will not be free to pick and choose’.287 For parents, regardless of the prevalent rhetoric of parental choice that surrounded state education at that time, no rights of withdrawal from the NC were conferred, in contrast to those applicable to religious education and sex education.288 Indeed, the ideal of parental choice in education that was pervasive in the 1980s was associated with school admission rather than the curriculum. As Coulby rather bluntly put it, ‘parents are free to choose which institution will slavishly teach the Secretary of State’s curriculum to their children’.289 As discussed in Chapter 5, the long-standing statutory requirement, originally in the EA 1944, that children are to be ‘educated in accordance with the wishes of their parents’,290 is considered a general principle only,291 one

285 EA 2002, ss 93 and 114; the Education (National Curriculum) (Temporary Exception for Individual Pupils) Regulations 1989 (SI 1989/1181). 286 EA 2002, ss 90 and 111. 287 DES, National Curriculum: From Policy to Practice (London, DES, 1989), para 10.2. 288 See ‘Sex education: withdrawal and the rights of the child’ below and ch 7. 289 D Coulby, ‘The Ideological Contradictions of Education Reform’ in L Bash and D Coulby, The Education Reform Act. Competition and Control (London, Cassell, 1989) 110–121, 114. 290 EA 1944, s 76; now the EA 1996, s 9. 291 See, eg, Watt v Kesteven County Council [1955] 1 QB 408.

326 Secular Education in the State Sector: A Curriculum for All? which does not give any substantive right of choice to parents over their children’s education and is anyway subject to the stated proviso that acceding to parental wishes does not give rise to unreasonable public expenditure and is compatible with the provision of efficient education. Accommodating individual curricular preferences would undoubtedly give rise to additional costs and potential inefficiencies. That was, in effect, part of the basis for the Secretary of State’s refusal to grant Plymouth Brethren children, who are forbidden by their religion to use or be exposed to information technology, exemption from ICT. It was considered that it would encourage other parents to seek an opt-out and would thereby work against administrative convenience as well as the very idea of a national curriculum.292 (A further reason was the overriding need, reflected in a statutory duty noted above, to prepare all pupils for the opportunities, responsibilities and experiences of later life.293) So, while the principle of adherence to parental wishes under the 1944 Act may, in the 1950s, have been considered of ‘special significance’ as far as the secular curriculum was concerned,294 and its relevance and application to the curriculum have at least been confirmed by the courts when considering this section in the context of local schooling arrangements,295 it has done little to support individual choice claims. Indeed, when parental objections were made to the National Curriculum test arrangements (SATs) in the early 1990s, departmental guidance was issued to the effect that the parental wishes duty was overridden by the statutory duty on schools to implement the NC.296 Later guidance on NC assessment arrangements297 made clear that only where the child was suffering from a severe emotional problem or in certain other truly exceptional cases would parents be able to secure exemption, via the head teacher’s power to grant temporary exception (noted above). It is therefore surprising that in Lundie’s recent survey of schools, which had 312 respondents, only 45.5 per cent of school leaders rightly concluded that parents had no right on religious grounds to withdraw their child from a National Curriculum subject; of the others, 8.7 per cent believed that parents did have such a right a further 16.6 per cent that it fell within the discretion of the school.298 In more recent times choice may have been extended as a result of the expansion of the academy sector. As noted above, academies and free schools are not required to follow the NC per se, although the Government perceives it as ‘an ambitious benchmark which autonomous academies can use and improve upon’.299 292 C Hamilton, Family, Law and Religion (London, Sweet and Maxwell, 1995) 323 and 332. 293 Ibid. 294 M M Wells and P S Taylor, The New Law of Education (4th edn) (London, Butterworths, 1954) 197. 295 Eg, Wood v Ealing LBC [1967] Ch 364. 296 Then under the ERA 1988, s 10. See N Harris, Law and Education: Regulation, Consumerism and the Education System (London, Sweet and Maxwell, 1993) 222. ‘SATs’ refers to ‘standard assessment tasks’. 297 DES Circular 14/91 (London, DES, 1991) para 6. 298 D Lundie, Religious Education and the Right of Withdrawal (Liverpool, Liverpool Hope University, 2018), 8. 299 DfE, Educational Excellence Everywhere (Cm 9230) (London, DfE, 2016) para 1.55a.

Centralisation and a National Curriculum 327 However, in some cases, the desire for parental choice has led parents to pursue human rights claims over the content of their child’s education. As discussed in Chapter 2, under the second sentence of A2P1 the state must respect their right to ensure the teaching of their child in a manner consistent with their religious and philosophical convictions. The Government gave consideration to this right at the time the NC was introduced. It drew on the principles established in the judgment of the ECtHR in Kjeldsen,300 noted above, where the Court held that the Danish state was entitled to make sex education compulsory in schools in the public interest provided the ‘information or knowledge is conveyed in an objective, critical and pluralistic manner’ and not via ‘indoctrination that might be considered as not respecting parents’ religious and philosophical convictions’.301 The UK Government’s case was that because the NC would meet these basic criteria and would offer a balanced approach, the overriding of parental wishes was justified in the wider national interest. As the ECtHR had done, the UK Government also placed weight on parents’ option of sending their children to a private school or educating them at home.302 It was presumably therefore not considered necessary, nor – in the interests of ensuring efficiency in the state education system and inclusivity in relation to the NC – desirable, to facilitate parental opt-outs. The limitations to A2P1 in the context of choice over educational content were confirmed by the endorsement of the Kjeldsen judgment in later decisions303 and reflect the margin of appreciation accorded to individual states over education, which means that the A2P1 ‘cannot be interpreted to mean that parents can require the state to provide a particular form of teaching’.304 a. ECHR Cases It is necessary to note that the attempts in cases before the ECtHR to assert parental rights over teaching have largely been based on choices which are religiously or philosophically based, invoking not only A2P1 but often also, or alternatively, Art 9. As the Court said in Kjeldsen, ‘it seems very difficult for many subjects taught at school not to have, to a greater or lesser extent, some philosophical complexion’ or a relevance to a religious affinity.305 As a general principle, however, the ECtHR has upheld the state’s power to control the curriculum even where there is interference in parents’ or children’s religious beliefs or the manifestation of their religion. In Valsamis v Greece,306 for example, it was 300 Kjeldsen, Busk Madsen and Pedersen v Denmark 1 EHRR 711 (1976). 301 Ibid, at 731 [53]. See also Campbell and Cosans v UK (1982) 4 EHRR 293 and Valsamis v Greece Application No 74/1995/580/666 (1996) 24 EHRR 294; [1998] ELR 430. 302 See Hamilton n 292 above, 323. 303 See in particular Dojan and Others v Germany (Application Nos 391/08, 7908/10 and 8155/10) [2011] ELR 511 and Konrad and Others v Germany (Application No 35504/03) [2007] ELR 435. 304 Lautsi v Italy (Application No 30814/06) [2011] ELR 176 at [61]. See also the discussion of Belgian Linguistics in ch 2. 305 Kjeldsen n 300 above, [53]. 306 Valsamis v Greece n 301 above.

328 Secular Education in the State Sector: A Curriculum for All? held to be ‘not for the Court to rule on the Greek state’s decisions as regards the setting and planning of the school curriculum’.307 Pupils’ compulsory participation (with the possible sanction of suspension for not participating) in school parades in Greece was held in this case not to infringe a girl’s parents’ p acifist beliefs, which arose from the family’s religion as Jehovah’s Witnesses, to the extent prohibited by the second sentence of A2P1, particularly since it did not deprive them of their right to guide and enlighten the child in accordance with their own beliefs.308 Nor did it compromise the girl’s freedom of thought, conscience or religion, in view of the conclusion that the parents’ religious freedom was not interfered with.309 As Jenny Driscoll comments, the problem with the way that the child’s own rights were dealt with by the Court was that by viewing them through the lens of the parental right it to some extent marginalised them.310 In Osmanoğlu and Kocabaş v Switzerland311 there was similarly held to be no violation of Art 9 when the authorities refused to grant the complainants, who were Muslim parents of Turkish origin, exemption from compulsory mixed swimming lessons for their daughters in school in Basle, Switzerland. The girls were aged approximately 11 and 13 when the complaint was lodged with the ECtHR. The complainants alleged that they were precluded by their religious beliefs from permitting their children to participate in the lessons. The lessons were compulsory unless a girl had reached the age of puberty. The parents were fined by the authorities for breach of their parental duty. Their claim for breach of the right to freedom of belief was rejected by the Federal Court. The ECtHR once again referred to states’ wide margin of appreciation with regard to the relationship between religion, the state and society, particularly in the context of teaching and state education, and to the state’s freedom to prescribe a curriculum that reflected national needs and traditions. The Court referred to the special role that schools play in relation to social integration, particularly with regard to pupils originally from other states. The fact that medical exemption was possible demonstrated to the Court that the authorities’ approach was not unduly rigid. The Court cited the benefits to the child from participating in sports lessons, which included the social benefits of group participation and not merely the benefit of undertaking exercise. Also considered was the flexibility that was permitted as to the dress that could be worn (for example, the ‘burkini’ was allowed). The Court was also satisfied with the fairness of the procedural arrangements for enforcing the parental obligation and enabling exemption to be considered. In Dogru v France,312 however, the exemption that was sought was not from a compulsory element of the curriculum but rather from a requirement to be dressed 307 Ibid at [31]. 308 Ibid. 309 Ibid, [37]. It was also held not to interfere with her right to manifest her beliefs: ibid [36]. 310 J Driscoll, ‘Commentary on Valsamis v Greece’ in H Stalford, K Hollingsworth and S Gilmore, Rewriting Children’s Rights Judgments. From Academic Vision to New Practice (Oxford, Hart Publishing, 2017) 329–334. 311 Application No 29086/12, 10.01.2017. 312 Application No 27058/05 [2009] ELR 77.

Centralisation and a National Curriculum 329 in an accepted manner for it. A girl who was a Muslim refused to comply with a rule prohibiting pupils from wearing the hijab for physical education and sports classes with the result that she was barred by the school from participating in that part of the curriculum. The girl, aged 11, was excluded from school for her failure to take part in the classes. The ECtHR held there had been no violation of Art 9 (and that it was unnecessary to consider A2P1). The reasoning referred to Art 9(2), which permits interference with religious freedom in prescribed circumstances. Interference here was ‘prescribed by law’313 since the decision was consistent with the domestic case law and the girl had accepted the rules when she enrolled at the school. She would have been able to foresee that the consequences of her action could result in her exclusion. The exclusion was also ‘necessary in a democratic society’314 since, inter alia, the restriction was consistent with the sanctioned principle of secularity in state schools. The Court also found not unreasonable the authorities’ position that wearing a headscarf was incompatible with health or safety315 – a claim which, it has to be said, was not tested nor, as far as one can tell, supported by factual evidence. The Court also found that the girl’s apparently confrontational approach to the issue had led to tension in the school. Although the girl had offered to wear a hat or balaclava for the lessons, the Court concluded that it was within the margin of appreciation of the state to determine whether this represented willingness to compromise,316 which the authorities had not accepted was the case. Establishing that there has been an interference with freedom of religion or the manifestation of belief, as was accepted to have occurred in Dogru, for example, is of course the starting point for any Art 9 claim. The same is true of any claim arising from religious or philosophical preference with regard to teaching for the purposes of A2P1. In Williamson, for example, teachers at a Christian Fellowship school, and parents, believed in the use of corporal punishment as a matter of Christian faith, since to them physical punishment of children had biblical justification. They challenged the statutory ban on it as interfering with their rights under ECHR, Art 9 and A2P1.317 The House of Lords found that there was an interference but that it was justified (see below). Should parents seek the removal of their child from a lesson where the education is objectionable to them on religious grounds, that would probably also involve a claim of interference with their rights to manifest their belief. The parents might also seek to invoke the protection of A2P1 as regards the teaching of their child in conformity with their religious and/or philosophical convictions.318 But, as discussed above, in the 313 Ibid, [49]–[59]. 314 Ibid, [61]–[64]. 315 Ibid, [73]. 316 Ibid, [75]. 317 R (Williamson) v Secretary of State for Education and Employment and Others [2005] UKHL 15; [2005] ELR 291; [2005] 2 AC 246. See, eg, [35], per Lord Nicholls. 318 As regards the meaning of ‘philosophical convictions’, which implies beliefs of cogency, seriousness, coherence and importance, see ibid [76], per Baroness Hale of Richmond, referring to Campbell and Cosans v UK (1982) 4 EHRR 293.

330 Secular Education in the State Sector: A Curriculum for All? light of the Kjeldsen decision319 it will be very difficult to justify withdrawal on that basis in most cases.320 However, it is noteworthy that whereas in Kjeldsen (and also in Valsamis v Greece321) the Court placed some weight on the parents’ right to have their children educated privately or at home,322 in Williamson Lord Nicholls of Birkenhead supported his conclusion that the statutory ban on corporal punishment interfered materially with the parents’ A2P1 and Art 9 rights partly with reference to there being ‘no reason to suppose that in general the claimant parents, or other parents with like beliefs, have the personal skills to educate their children at home or the financial means needed to employ home tutors’.323 In Begum in the Court of Appeal Mummery LJ in effect rejected the idea that the claimant, a Muslim, who was told by her school she could not attend wearing the jilbab, could enjoy her religious freedom for the purposes of Art 9 by moving to another school which accepted the wearing of such a garment. He said that pupils did not have a ‘contractual choice’, unlike an employee who could change jobs, whereas there was a ‘statutory duty to provide education to the pupils’.324 The House of Lords noted that the Strasbourg jurisprudence made it difficult to establish an interference with the right to manifest a belief where a person had a choice about accepting a role or, as applied to education by Lord Scott of Foscote,325 in whether to avail him/herself of the services provided by a particular public institution, where the practice or observance of their religious belief would be compromised but where there were other comparable means open to them to practise or observe their religion.326 The interference issue in fact split the House of Lords in Begum. Baroness Hale considered that the complainant might not have had a freedom of choice as regards her school because of her age (she was still under 14 when refused admission while wearing the jilbab and was obviously much younger when starting at the school); and Lord Nicholls of Birkenhead was unsure how easily she could move to another school permitting the jilbab and was mindful of potential disruption to her education if she did.327 These arguments are persuasive because, as discussed in Chapter 5, securing admission to a school of one’s choice is not 319 Kjeldsen n 300 above. 320 See also X, Y and Z v Federal Republic of Germany, Application No 9411/81 (1982) 29 DR 224, an admissibility decision in a complaint arising from principled objections to the scientific curriculum in Germany, including mathematics. The parents had the choice of schools offering alternative approaches. The application was declared inadmissible. 321 Valsamis v Greece n 301 above. 322 In Valsamis (n 301 above) the court felt that the parents, who held pacifist beliefs and objected to their children’s compulsory participation in school parades commemorating the outbreak of war between Greece and fascist Italy, could educate their children within the family about matters pertaining to their convictions relating to war and peace. 323 Williamson, n 317 above, [41]. 324 R (SB) v Headteacher and Governors of Denbigh High School [2005] EWCA Civ 199; [2005] ELR 198 (CA), [84]. 325 R (Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15; [2006] 2 WLR 719; [2006] ELR 273, [87]. 326 Ibid, per Lord Bingham at [23] and Lord Hoffmann at [52]–[55]. 327 Ibid, [92]–[93] and [41] respectively.

Centralisation and a National Curriculum 331 guaranteed and, in any event, the legislation is not regarded as giving a child or young person an independent right of choice. The issue whether the complainant could have secured a place at another school permitting the jilbab is unclear, since she had made an application to only one of the three such schools in the area and it was full. In any event, while in the exercise of choice there is the ‘exit option’ of taking one’s custom elsewhere, so to speak, there can be formidable human and social costs in doing so.328 In the case of schooling they may include separation from friends, with resultant emotional consequences adding to the disruptive effects referred to by Lord Nicholls. But the majority judgments in the House of Lords in Begum concluded that Miss Begum could have moved school in order to fulfil her religious preferences and there was no interference with her right to manifest her belief.329 Lord Hoffmann even went so far as to say, somewhat harshly, that it ‘might not have been entirely convenient for her, particularly when her sister was remaining at Denbigh High, but people sometimes have to suffer some inconvenience for their beliefs’.330 It is worth noting in this context that in Multani, where religious freedom under the Canadian Charter was held by the Supreme Court of Canada to have been denied by a ban on the wearing of the kirpan at school, the fact that the Sikh pupil was unable to attend public (state) school due to the ban was all that mattered; the question of alternative arrangements did not, apparently, require consideration by the Court.331 In any event, there is an argument based on the decision in Williamson and that of the Court of Appeal in Begum that there could be a material interference with Art 9 rights even where a claimant is able to move to another school and thereby end the interference with his or her right. Linden says that the question will be ‘whether the disadvantages of having to leave and find such an alternative are sufficiently serious that the decision of the school …, while not rendering manifestation [of belief] “impossible” in all circumstances, nevertheless constitutes a material interference’.332 Lord Hoffmann in Begum in fact lends support to this view when he opines that ‘“Impossible” might be setting the test rather high’, but he concludes that, even so, ‘in the present case there is nothing to show that [Miss Begum] would have even found it difficult to go to another school’.333 Similarly, in R (X) v Y School,334 the High Court held that there was no interference with the Art 9 right of a 12 year old Muslim girl whose school refused

328 R Hambleton and P Hoggett, ‘Rethinking Consumerism in Public Services’ (1993) 3 Consumer Policy Review 103 at 106. 329 N 325 above, per Lord Bingham of Cornhill at [25], Lord Hoffmann at [50] and [55] and Lord Scott of Foscote at [89]. 330 Ibid, [50]. 331 Multani v Commission scolaire Marguerite-Bourgeoys and Attorned General of Quebec and World Sikh Organisation of Canada and others [2006] SCC 6 (Sup Ct of Canada). 332 T Linden, ‘School and Human Rights: The Denbigh High School Case’ (2005) 6 Education Law Journal 229 at 233. 333 Begum n 325 above [52]. 334 [2007] EWHC 298 (Admin); [2007] ELR 278.

332 Secular Education in the State Sector: A Curriculum for All? to permit her to attend class wearing a niqab. She had the option of accepting a place at another school, conveniently located for her and with a good academic record, which would have permitted her to wear it. If there has been interference with religious freedom etc then the question of justification arises. In Williamson, the House of Lords upheld the authority of the state to ban corporal punishment by law in pursuit of a legitimate aim to meet a pressing social need, without a resultant disproportionate impact on those holding particular beliefs. The interference resulting from the ban was justified within the terms of Art 9(2), particularly since the ban was instituted by Parliament.335 Analogy could be drawn with the prescribed National Curriculum, because even though decisions as to the precise content of the constituent subjects are delegated ultimately to ministers, albeit likely to be based in part on departmental and external advice, there is a statutory requirement on schools to apply it.336 Moreover, just as Baroness Hale of Richmond in Williamson drew support from the UNCRC for her position that the ban on corporal punishment was legitimate in order to protect the rights and freedoms of children,337 so an interference with parental choice over aspects of the secular curriculum could be supported with reference to two of the aims of education in that Convention, namely ‘[t]he preparation of the child for responsible life in a free society’338 and the development of respect not only for the child’s own cultural identity, language and values, but also ‘for the national values of the country in which the child is living’.339 So the state may be acting in furtherance of a duty, as well as in pursuit of a legitimate aim, when it curtails religious freedom in order to fulfil what Sachs J, in a South African decision concerning corporal punishment in school, referred to in this context as a ‘principled and symbolic function’ designed to ‘promote respect for the dignity and emotional and physical integrity of all children’: [S]chools of necessity function in the public domain so as to prepare their learners for life in the broader society. Just as it is not unduly burdensome to oblige them to accommodate themselves as schools to secular norms regarding health and safety, payment of rates and taxes, planning permissions and fair labour practices, and just as they are obliged to respect national examination standards, so it is not unreasonable to expect them to make suitable adaptations to non-discriminatory laws that impact on their codes of discipline. The parents are not being obliged to make an absolute and strenuous choice between obeying the law of the land or following their conscience. They can do both simultaneously.340

335 Williamson n 317 above, per Baroness Hale at [79]. See also Lord Nicholls at [49]–[51]. 336 EA 2002, ss 88 and 109. 337 In particular, Arts 3(1) (best interests of the child to be a primary consideration), 19(1) (protection of the child from physical or mental violence, etc) and 28(2) (discipline to be consistent with human dignity). 338 UNCRC, Art 29(1)(d). 339 UNCRC, Art 29(1)(c). 340 Christian Education South Africa v Minister of Education (Case CCT 4/00) [2001] 1 LRC 441, at [50] and [51].

Centralisation and a National Curriculum 333 Sachs J was mindful of the fact that the Schools Act that effected the ban on corporal punishment did not mean that parents were ‘deprived … of their general right and capacity to bring up their children according to their religious beliefs’.341 In this case the South African Constitutional Court rejected the claim that the protection of religious and cultural rights under the Constitution meant that there should be exemption from the ban on corporal punishment in schools in favour of Christian parents who supported the practice on religious grounds. It is nevertheless clear that, for the purposes of the ECHR, the state’s curriculum must strike a fair balance between giving prominence to majority religious or philosophical beliefs that are reflective of the national character and ensuring that minorities’ interests are properly respected. This was underlined in Folgerø342 where a prescribed part of the school curriculum, which covered Christianity, Religion and Philosophy (KRL), was objected to by parents who were members of the Norwegian Humanist Society. They complained that the only partial exemptions from KRL were insufficient because of the subject’s emphasis on Christianity and the pressure that parents might feel to reveal details of their own private convictions in order to ensure exemption on the basis of reasonable grounds. The ECtHR accepted that an emphasis on Christianity in the state curriculum in what was a predominantly Christian society was not in itself problematic so far as A2P1 was concerned. The place of Christianity in Norway’s national history and tradition meant that such an emphasis was ‘within [Norway’s] margin of appreciation in planning and setting the curriculum’.343 At the same time, although ‘individual interests must on occasion be subordinated to those of a group’, the views of the majority should not always prevail: ‘a balance must be achieved which ensures the fair and proper treatment of minorities’.344 This balance was not struck, since the exemption right placed an undue burden on the parent to reveal what amounted to a private matter.345 Parents in Norway had the option of private education; and private schools there received 85 per cent of their funding from the state. Nevertheless, the Court of Human Rights held that ‘the existence of such a possibility could not dispense the state from its obligation to safeguard pluralism in state schools which are open to everyone’.346 The Court found that the state had not taken ‘sufficient care that information and knowledge included in the curriculum be conveyed in an objective, critical and pluralistic manner for the purposes of [A2P1]’.347 A very similar approach was subsequently adopted in Zengen.348 This case was pursued by a man and his daughter who were members of the Alevi faith in Turkey.

341 Ibid,

[38]. and Others v Norway (Application No 15472/02) [2007] ELR 557. 343 Ibid, [89]. 344 Ibid, [84]. 345 Ibid, [100]. 346 Ibid, [101]. 347 Ibid, [102]. 348 Zengen v Turkey (Application No 1448/04) (2008) 46 EHRR 44. 342 Folgerø

334 Secular Education in the State Sector: A Curriculum for All? Again the Court accepted that an emphasis within the curriculum on a majority faith, in this case Islam, did not amount to indoctrination contrary to A2P1. This was because although Turkey was a secular country, Islam was the majority religion. However, it was considered that in view of the insufficient instruction given in relation to the Alevi faith, to which a large number of Turks including the family in question subscribed, there was a failure to ensure the necessary objectivity and pluralism. There was found to be a lack of balance because the syllabus included study of the Koran and specific aspects of the Islamic faith, including cultural rites, but gave insufficient coverage to other faiths, including Alevism, to ensure that children could develop a critical mind. Moreover, the exemption process did not afford sufficient protection to the A2P1 rights. In order to be exempted from the compulsory religious culture and ethics teaching it was necessary to disclose one’s own religious or philosophical convictions and with no certainty that exemption would be granted. In England, religious education, from which parents have a right of withdrawal, is not part of the NC (although is required as part of the basic curriculum). Yet there is still a possibility of a religiously motivated request to withdraw a child from part of the secular curriculum – indeed, in a recent survey responded to by 312 schools in England, over one in five schools had received a religious-based request to exempt a child from a part of the secular curriculum and around one in four of these requests was granted.349 Where a legal challenge is pursued, the same legal tests as those developed by the ECtHR (above) are likely to be applicable. They were adopted by the High Court in a successful legal challenge to the Secretary of State’s assertion that the GCSE Religious Studies syllabus would in itself meet the statutory requirement on religious education for the relevant age group.350 Many of the above UK and Strasbourg decisions confirm the need for a pluralistic approach within the prescribed curriculum and in teaching, albeit tempered by the state’s margin of appreciation in determining the particular emphases within or orientation given to it. In Akru v Turkey,351 where it was alleged that some dictionaries in Turkey contained negative stereotyping of Gypsies,352 it was confirmed by the Court that the state had a duty under ECHR, Art 8 to protect the private and family life of the minority affected although in the event the Court found that the state’s margin of appreciation was not overstepped. Identified as significant by the Court was that the dictionaries had not been distributed to schools or specifically recommended by the state for use in schools. Had they been, the ruling might have been different.

349 D Lundie, Religious Education and the Right of Withdrawal (Liverpool, Liverpool Hope University, 2018), 7–8. 350 R (Fox) v Secretary of State for Education [2015] EWHC 3404 (Admin); [2016] ELR 61. 351 Application Nos 4149/04 and 41029/04, 15 March 2012. 352 See further the extracts quoted by Judge Gyulumyan in his dissenting opinion.

Centralisation and a National Curriculum 335 b. Pluralism, Liberalism and the Protection of Children’s Interests Within the English education system a pluralistic approach has clearly been prevalent. It is associated with multicultural education. As discussed in chapter 1, multiculturalism advocates a proper status and respect for minority rights and preferences. According to Sutherland, it might involve, where the teaching of history and other humanities is concerned, ‘avoiding parochial or nationalistic interpretations’ and more generally, making provision ‘for the religious and social beliefs of minority groups within the curriculum’.353 Or it could, for example, involve marking annual International Roma Day, since a failure to do so can make Roma children ‘feel that they are invisible’.354 However, finding an appropriate balance can be a ‘complicated’ matter, and leaning too far in one direction might generate dissatisfaction on the part of parents from the majority culture.355 For example, there has in the past been a criticism that the history curriculum has avoided aspects of British history that might prove socially divisive, notably the British Empire. Recent research suggests it may be valuable to include British imperial history in the curriculum even though it touches on so many controversial issues, since it provides a context for the complexion of modern British multicultural society.356 At the same time, while it may be unrealistic to expect the curriculum to be adaptable to the choices and sensibilities of all groups, there is an argument that if it is to prepare pupils for life in a multicultural society it has to subvert the traditional principle that education should always be in line with the wishes of the majority.357 Sutherland sees this as particularly necessary where core beliefs and values are at issue: When it is a matter of cultural and social beliefs – e.g. about the freedom of the individual to make certain choices, or about the roles of men and women in society – then the curriculum may have to include both teaching about the principles which are generally accepted by society and indications that some groups within the larger society do not accept those principles. There is a basic incompatibility that cannot be overcome: in multicultural societies, differences of cultural views occur: the curriculum cannot ignore these or offer the impression that all are equally accepted in society outside school.358

This approach assumes that parents’ rights are best protected by measures to ensure a degree of inclusiveness and some recognition of cultural integrity through pluralism. For example, the education working group which was one of the seven 353 M Sutherland, Theory of Education (Harlow, Longman, 1988) 132–3. 354 House of Commons Women and Equalities Committee, Tackling inequalities faced by Gypsy, Roma and Traveller communities, Seventh Report Session 2017–19 (HC 360) (2019) para 84. 355 Sutherland n 353 above, 132. 356 A D Burns, How Britannia Ruled the Waves: Teaching the History of the British Empire in the Twenty-First Century (Ph.D thesis) (Leicester, University of Leicester, 2017). 357 Sutherland n 353 above, 133. 358 Ibid 132–3.

336 Secular Education in the State Sector: A Curriculum for All? working parties established by the Home Office to develop practical proposals aimed at the prevention of extremism and the reduction of disaffection among Muslim communities recommended the provision of ‘substantive information on Islamic achievements and contributions in and to subjects across the entire National Curriculum’.359 The group was critical of the QCA which, while offering a range of suggestions for including multicultural perspectives in all curriculum subjects, mostly neglected the Islamic dimension. Other research has pointed to dissatisfaction among some Muslim parents with what they regard as inadequate spiritual and moral education in schools.360 Core arguments surrounding multiculturalism were discussed in Chapter 1, but it is important to note here the traditional resistance to a multicultural approach based on the concern that, as Merry puts it, ‘exposure to cultures different to one’s own will lead to a weaker core identity’.361 Merry, however, argues that the opposite might be true, on the basis that such exposure might ‘even enhance one’s allegiance to a culturally coherent set of values and norms’.362 The working group (above) regarded an increased coverage of Islam and its contribution to European civilisation as likely to ‘enhance self esteem’ among Muslim children and help to reduce ‘alienation and imbalance that the present lack of such education breeds’.363 Opponents of multiculturalism might be resistant to the principle of advancing group interests represented in such ideas, particularly if there is a likelihood of other groups asserting similar claims of their own, on the basis that it would detract from their basic idea of common citizenship. However, what those claims are really about is social inclusiveness in the face of perceived exclusion from full citizenship. Kymlicka specifically cites ‘changes to the education curriculum to recognize the history and contribution of minorities’ as an example of multiculturalist policy that is ‘primarily directed at ensuring the effective exercise of common rights of citizenship’ and does not fall within his classification of group differentiated or ‘polyethnic’ rights that aim to facilitate expressions of cultural particularity, such as the wearing of discrete forms of religious dress or, indeed, accommodation of mother tongue teaching.364 One of the potential consequences of a failure to accommodate minority cultural preferences within a common prescribed curriculum, notwithstanding any efforts towards objectivity and pluralism, might be a child’s removal from the state education system by their parents. If a major reason for having a national curriculum is still that of ensuring equality of opportunity, inclusion and a common

359 ‘Preventing Extremism Together’ Working Groups, Aug–Oct 2005, Report (London, DfES, 2005), App A, para 1. 360 J Stephenson et al, The Social Mobility Challenges Faced by Young Muslims (London, Social Mobility Commission, 2017) 29. 361 M S Merry, ‘Cultural Coherence and the Schooling for Identity Maintenance’ (2005) 39 Journal of the Philosophy of Education 477 at 482. 362 Ibid, 484. 363 ‘Preventing Extremism Together’ Working Groups, n 359 above, 23. 364 W Kymlicka, Multicultural Citizenship (London, OUP, 1995) 45.

Centralisation and a National Curriculum 337 cultural framework to provide a grounding for citizenship, these objectives would be defeated if parents from a minority group felt the need simply to take the ‘exit’ option and educate their child in a private faith school or at home.365 As Macedo says, referring to the initial accommodation of families’ wishes in the Mozert case in the US, which centred on children of ‘born again’ Christian families who were permitted on religious grounds to be withdrawn from a reading programme and follow an alternative programme, while the families had no constitutional right in that regard, ‘school administrators who anticipated the withdrawal of these families altogether from the public system may well have had prudential reasons to accommodate them in order to keep the children within the public system’.366 Withdrawal by objecting parents would reduce diversity in state schools and, as Lundy says, that would be detrimental to schools’ role in promoting tolerance and respect for difference.367 Those who home educate are able to fulfil their statutory duty368 to ensure their children receive an efficient full-time education ‘at school or otherwise’, as noted in Chapter 8. There are, however, concerns around elective home education that are not exclusively linked to any culturally-driven withdrawal from the state system but include the risk to social integration and the potential influence of extreme viewpoints at home.369 The Government, which has consulted on regulation of home education and the role of local authorities in monitoring it, has talked of the need to ensure that all home educated children receive an education preparing them for ‘adult life, in the wider community of British society’.370 There is also the question of the rights and interests of the child. In so far as there is any capacity for the accommodation of minorities’ wishes, or indeed the wishes of anyone from the majority community, it is clear that too often it is the parents’ rights alone that tend to be considered. That has certainly been the case with regard to a decision electing for home education. As noted in Chapter 1, there has been an enduring policy assumption that while schooling is provided to the child – and notwithstanding the child’s right under Art 12 of the UNCRC371 – it is the parent alone who may be permitted any influence over 365 Spinner-Halev argues that ‘when it is feasible, religious students ought to be given alternative assignments or texts if they ask for this accommodation … [W]hen religious students are not accommodated, many … feel pushed into homogenous parochial schools, where few liberal values are taught’: J Spinner-Halev, ‘Extending Diversity: Religion in Public and Private Education’ in W Kymlicka and W Norman (eds), Citizenship in Diverse Societies (London, Oxford University Press, 2000), ch 3, at 69–70. 366 S Macedo, ‘Liberal Civic Education and Religious Fundamentalism: The Case of God v John Rawls’ (1995) 105 Ethics 468 at 488. 367 L Lundy, ‘Family Values in the Classroom? Reconciling Parental Wishes and Children’s Rights in State Schools’ (2005) 19 International Journal of Law, Policy and the Family 346 at 362. 368 EA 1996, s 7. 369 See Dame Louise Casey, The Casey Review. A review into opportunity and integration (London, Department for Communities and Local Government, 2016) paras 7.60–7.70. 370 DfE, Elective home education: call for evidence. Government consultation (London, DfE, 2018), para 2.1. 371 The right to express their views freely on all matters affecting the child and for their views to be given due weight in the light of their age and understanding: UNCRC Art 12(1). Includes the opportunity to be heard in any judicial and administrative proceedings affecting the child: ibid Art 12(2).

338 Secular Education in the State Sector: A Curriculum for All? decisions affecting it. One of the difficulties in ensuring that the law responds appropriately to diversity is that of separating children’s identities from those of their parents or adults in general, particularly given the importance attached to the interaction between home and school. If parents are accepted as the principal or exclusive actors in relation to educational choices there is a critical question as to how far and on what basis the state should override their wishes regarding matters that they regard as fundamental to their cultural identity and their community’s values, where the state considers that it is in the child’s interests and/or the interests of society as a whole that the child receives a particular form of education or curriculum content. In Osmanoğlu and Kocabaş v Switzerland372 (above) the ECtHR accepted that by giving precedence to children’s interest in participating fully in the school curriculum, including compulsory mixed swimming lessons (which supported their social integration as well as their physical and sporting development), over the parents’ religiously based preference for exemption, the state had not exceeded its margin of appreciation. This is an approach which at least places more emphasis on the rights of the child and an inclusive approach consistent with Art 29 of the UNCRC (see below) than was given in Valsamis above.373 Liberalism is seen by some as dictating that the state should recognise and uphold the rights, freedoms and choices of individuals and diverse social groups, yet at the same time must aim to prepare children for future life as citizens of the wider society and in doing so protect their interests.374 This means that faith schools should not be so narrow in their approach that children are not able to participate in the world beyond their own families and communities.375 The school should ensure that children’s personal autonomy is not compromised and their agency is recognised. Children must be able to enjoy what Brighouse refers to as ‘a right to make and act on well-informed and well-thought-out judgements about how to live their own lives’.376 Such a requirement is implicit in the stipulation in Art 29 of the UNCRC that education of the child should be directed towards, inter alia, ‘[t]he preparation of the child for responsible life in a free society’.377 For the state education system it should mean a need to debate how much influence parents may enjoy over their children’s education, given that there is a ‘general public interest in supporting family units in their decisions regarding

372 Application No 29086/12, 10.01.2017. 373 Driscoll n 310 above at 331. 374 See Macedo n 366 above; C Glenn and J De Groof, Finding the Right Balance. Freedom, Autonomy and Accountability in Education (Utrecht, Lemma, 2002). See also A Bradney, ‘Ethnicity, Religion and Sex Education’ in N Harris (ed), Children, Sex Education and the Law (London, National Children’s Bureau, 1996) 87–98. 375 R v Secretary of State for Education and Science ex parte Talmud Torah Machzikei Hadass School Trust (1985) The Times, 12 Apr 1985. See the discussion in ch 8. 376 H Brighouse, ‘Faith schools, personal autonomy and democratic competence’, in G Haydon (ed), Faith in Education. A tribute to Terence McLaughlin (London, Institute of Education, 2009) 78–93, 81. 377 UNCRC, Art 29.1(d).

Centralisation and a National Curriculum 339 the upbringing of their children’, as Lundy says,378 and a national policy of enforcing parental responsibility over their child’s education.379 The state also has a responsibility to ensure that the ‘best interests of the child’ are a primary consideration in all actions concerning children and to protect their well-being.380 Thus consideration also needs to be given to whether exemption from particular lessons or subjects is harmful to the child’s interests. Since there will be ‘certain core values that should be taught’ but ‘[s]chools that teach values will offend some people’, there needs to be a determination as to what would be the appropriate content of a curriculum that is intended for all.381 The US Supreme Court’s decision in Wisconsin v Yoder382 is widely cited in this regard.383 Although concerned with the withdrawal of children from schooling altogether, it raises wider issues as to how conflict between the state’s interest in ensuring universal secular education up to a certain age, and the rights of minorities who object to the content of that education, might be resolved. It also touches on the freedom of groups to discipline and regulate individuals within them.384 The case arose out of the refusal by members of the Amish community in Green County, Wisconsin, to continue to send their children to public school (ie a state funded school) beyond the eighth grade (ages 14–15), even though the school attendance laws required that children attend school until the age of 16. The children were not enrolled at any school and in consequence the parents were convicted of an offence and fined. Their Supreme Court challenge was based on the importance of preserving the Amish community and centred on the conflict between the values within post-eighth grade school education and those of the Amish community and their religion. In particular, the community was concerned that participation in public school education would expose their children to worldly influence in conflict with their beliefs. Amish society emphasised learning through doing and a life of ‘goodness’ rather than on intellectual achievement and competitive success. Burger CJ, giving the Court’s majority opinion, acknowledged that ‘a State’s interest in universal education, however highly we rank it, is not totally free from a balancing process when it impinges upon fundamental rights and interests’,

378 L Lundy, ‘Family Values in the Classroom? Reconciling Parental Wishes and Children’s Rights in State Schools’ (2005) 19 International Journal of Law, Policy and the Family 346 at 360. 379 N Harris, ‘Empowerment and State Education: Rights of Choice and Participation’ (2005) 68(6) MLR 925. 380 UNCRC, Art 3. See See J Garciá Oliva and H Hall, ‘Responding to Non-Liberal Minorities within a Liberal State: The Challenge Posed by Children and Vulnerable Adults’ [2018] P.L. 258–276. 381 J Spinner-Halev, ‘Extending Diversity: Religion in Public and Private Education’ in W Kymlicka and W Norman (eds), Citizenship in Diverse Societies (London, Oxford University Press, 2000) 68 at 90. 382 406 US 205 (1972). 383 See, eg, Macedo n 366 above; J Spinner-Halev, ‘Extending Diversity: Religion in Public and Private Education’ in W Kymlicka and W Norman (eds), Citizenship in Diverse Societies (London, Oxford University Press, 2000), ch 3; A Dagovitz, ‘When Choice Does Not Matter: Political Liberalism, Religion and the Faith School Debate’ (2004) 38 Journal of Philosophy of Education 165. 384 See A McColgan, Discrimination, Equality and the Law (Oxford, Hart Publishing, 2014), 182–3.

340 Secular Education in the State Sector: A Curriculum for All? including parents’ interests in the religious upbringing of their c hildren.385 For a state to be able to justify its policy it was necessary for it to show either that it did not interfere with the free exercise of religion or that there was ‘a state interest of sufficient magnitude to override the interest claiming (Constitutional) protection’.386 Burger CJ explained that only religious beliefs rather than those of a philosophical nature – ‘secular considerations’ – warranted protection in this context. He accepted that the evidence, including 300 years of consistent religious practice, suggested that the Amish people’s free exercise of their religious beliefs would be endangered by the compulsory attendance of their children beyond the eighth grade. While agreeing with the state’s argument that education was necessary to ensure citizen participation that was essential to the preservation of freedom and independence, and to prepare individuals to be self-reliant and self-sufficient, the Court concluded that an additional one or two years of high school would in itself do ‘little to serve those interests’.387 The Amish community was a ‘highly successful social unit’ and its members were ‘productive and law-abiding’.388 As to the argument that without the additional period of schooling community members who later chose to leave would be ill-equipped for life outside,389 Burger CJ opined that it was a ‘highly speculative’ point since there was little evidence of departure from the community, but that anyone who did leave could well have other skills, for example related to agriculture, that would prevent them from being a burden on society.390 Douglas J, in dissent, argued that the right of a child who wanted to remain at school in conflict with the parents’ wishes should be upheld, but the majority refused to consider the point since it was not at issue in the litigation. While the decision in Yoder might be seen to have given considerable weight to parents’ rights, it is important to note the caveats expressed by Burger CJ. First, it seems clear that the Court did not consider that mere philosophical objections to the nature of schooling would prevail; only those based on religion would have overriding constitutional protection. Secondly, there was in effect a hierarchy of religions for this purpose. Burger CJ noted the long history and well-established traditions and faith-based lifestyle of the Amish community. He emphasised that ‘we are not dealing with a way of life and mode of education by a group claiming to have recently discovered some “progressive” or more enlightened process for rearing children for modern life’.391 Finally, he stressed that, as compared with the school authorities, the courts were ‘ill-equipped to determine the “necessity” of discrete aspects of a State’s programme of compulsory education’ and should approach any questions of exemption on religious grounds ‘with

385 Note 386 Ibid.

382 above, at 214.

387 Ibid. 388 Ibid. 389 As

to this, see the argument of Macedo n 366 above, 488. 382, at 224. 391 Ibid, at 235. 390 Note

Centralisation and a National Curriculum 341 great circumspection’.392 The Yoder decision may no longer be of great practical significance in the US, since home education is now much more widely accepted.393 There were as many as 1.8 million students aged 5–17 (representing 3 per cent of the age group) being home educated in 2011–12, up from 850,000 million in 1999.394 But the issues that Yoder raises about when the state should be prepared to yield its sovereignty over a child’s education in the interests of supporting or preserving a minority’s way of life are still important. To Freeman, for example, the decision represents ‘multiculturalism with a vengeance’, preserving the Amish community ‘at the expense of civic freedom and individual development and independence of its members’.395 Macedo argues that accommodations and exemptions in favour of religious minority cultures would be justified only ‘where public imperatives are marginal and the burdens on particular groups are very substantial’, and it should be accepted that ‘[l]iberal civic education is bound to have the effect of favoring some ways of life or religious convictions over others’.396 One of the problems in yielding to the choices of particular faith groups is that singling out any for accommodation, as the Supreme Court did in Yoder, gives rise to claims of partiality that are likely to be contested by other groups and individuals; on the other hand, there is also the slippery-slope argument, that others may gain encouragement to opt out. Several of the above arguments were referred to specifically by Judge Kennedy in her Federal Court judgment in Mozert v Hawkins County Board of Education,397 an education case that is seen as ‘emblematic’ of the shift from religious liberty and towards greater power of states that occurred in the period after Yoder.398 A mother, described as a ‘born again Christian’, objected to a reading programme in use in state schools and complained on religious grounds about the ‘mental telepathy’ that was necessitated by this critical reading scheme and about various passages within the books, which she found unacceptable because they touched upon issues such as evolution, ‘futuristic supernaturalism’ and magic. Initially the school agreed to an alternative programme for the children concerned. They would leave the classroom and use older books in another room or the library. However, the county school board subsequently voted to eliminate any alternative reading programmes. Seven families commenced proceedings. The district court upheld their claim on the ground that their free exercise of religion had been prejudiced by compulsion to participate in a reading series that offended their beliefs, and

392 Ibid. 393 J Spinner-Halev n 381 above, 72. 394 J Redford, D Battle, S Bielick and S Grady, Homeschooling in the United States: 2012 (Washington DC, Department of Education, 2017), 5. 395 S Freeman, ‘Liberalism and the Accommodation of Group Claims’ in P Kelly (ed), Multicuturalism Reconsidered (Cambridge, Polity, 2002) 18 at 24. 396 Macedo n 366 above, at 484 and 485. 397 827 F2d 1058 (6th Cir, 1987). 398 Anon, ‘“They Drew A Circle That Shut Me In”: The Free Exercise Implications Of Zelman v. Simmons-Harris’ (2004) 117 Harvard Law Review 919, at 922.

342 Secular Education in the State Sector: A Curriculum for All? the state’s ‘legitimate and overriding interest in public education’ did not excuse it. The court considered that the parents’ wishes could be accommodated without disruption to the educational process, by permitting them to opt their children out of the reading programme and providing reading at home. The parents were awarded $50,000 damages. However, the Board of Education successfully appealed the judgment to the Federal Court. Kennedy J, one of the majority judges, felt that the burden on the parents’ free exercise rights resulting from compulsion to engage in the programme was justified by a compelling state interest. Referring to the Supreme Court’s decision in Bethel School District No.403 v Fraser,399 which concerned the question of whether a pupil’s First Amendment (free speech) right prevented a school from disciplining him for a lewd speech at the school assembly, she said that public education must prepare pupils for citizenship and self-government. She concluded that ‘[t]eaching students about complex and controversial social and moral issues is just as essential for preparing public school pupils for citizenship and selfgovernment as inculcating in students the habits and manners of civility’ (the issue in the Fraser case itself). Kennedy J also noted the potential disruption that would be caused by accommodating exemption from a reading programme. Teachers would have to identify potentially offensive material in advance and permit pupils to leave the room when it was discussed. This would also result in ‘religious divisiveness’ and would ‘create a precedent for persons from other religions to request exemptions from core subjects because of religious objections’. Permitting opt-outs from core courses within a school when materials were found objectionable would ‘result in a school system impossible to administer’. Chief Judge Liveley noted that, unlike the situation in Yoder, the state’s general policy permitted parents to educate their children privately or at home. He also referred to the need for the teaching of values such as tolerance of divergent political and religious views that had also been noted by the Supreme Court in Fraser. He said that that was ‘a civil tolerance, not a religious one’ and as such did not require a person to accept any other religion but merely to acknowledge pluralism. The Court did not consider that the reading programme contained any religious or anti-religious messages. Finally, there was the implication that parents might be able to turn any area of the curriculum to which they objected into a matter of religion. In this context it may be noted that when parents in England were given a statutory right to withdraw their children from sex education in school this right was deliberately not tied to religion, on the basis that a decision to withdraw the child was a sufficient indication of the parents’ strength of feeling and the reason was not relevant. c. Recognising Religion or Belief If the basis for upholding the cultural autonomy of a group such as the Amish involves a judgment on the ethics and lifestyle of any particular community, as

399 478

US 675 (1986).

Centralisation and a National Curriculum 343 the Supreme Court made in Yoder when it placed weight on the Amish community’s productiveness and law-abiding nature, or as to the status of the particular religion, as was also considered, then a rather uncertain line of demarcation for protection would exist notwithstanding the broad test of ‘cogency, seriousness, cohesion, and importance’ and the holding of ‘convictions … worthy of respect’ in a ‘democratic society’ and ‘not incompatible with human dignity’ developed by the ECtHR regarding beliefs and convictions under A2P1 and Art 9, ECHR.400 Indeed, it may be noted that in Hasan and Chaush v Bulgaria it was held by the ECtHR that ‘but for very exceptional cases, the right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate’.401 Moreover, Lord Walker of Gestingthorpe commented in Williamson that ‘the court is not equipped to weigh the cogency, seriousness and coherence of theological doctrines’.402 Different forms of commitment to an established religious faith are accepted as attracting protection. In Begum, when before the Court of Appeal,403 it was held that there had been an interference with a Muslim girl’s freedom to manifest her religion through a ban on the wearing of the jilbab notwithstanding evidence that the mandatory wearing of this garment reflected a minority view within the Muslim faith. Scott Baker LJ confirmed that it was ‘not for school authorities to pick and choose between religious beliefs or shades of religious belief ’.404 In the House of Lords, which as noted above found that there was no interference with the Art 9(1) right and that there was justification for the school uniform policy under Art 9(2) in terms of the need to protect the rights and freedoms of others, Lord Bingham of Cornhill accepted that ‘[i]t was not the less a religious belief because her belief may have changed’ (because when she first joined the school she accepted the school’s policy on dress but later adopted a more extreme religious view) ‘or because it was a belief shared by a small minority of people’.405 However, while in R (Playfoot) v Governing Body of Millais School406 the High Court accepted that the claimant, aged 16, who had been sanctioned by her school for wearing a ‘purity ring’ to school contrary to its rules on uniform and jewellery, held a sincere belief in abstinence from sexual intercourse other than in marriage, it held that the wearing of the ring could not be considered ‘intimately linked’ to this belief, since she was under no obligation by reason of her belief to wear it even though she considered it consistent with her Christian faith. So, wearing the ring did not amount to a manifestation of belief for the purposes of Art 9(1).407 Moreover, there was no interference, since she could

400 Campbell

and Cosans v United Kingdom (1982) 4 EHRR 293, 304–5 at [36]. No 30985/96 (2002) 34 EHRR 55, at para 78. 402 Williamson n 317 above, at [60]. 403 R (SB) n 324 above. 404 Ibid, [93]. 405 Begum n 325 above. 406 [2007] EWHC 1698 (Admin); [2007] ELR 484. 407 Ibid, [23]–[24]. 401 Application

344 Secular Education in the State Sector: A Curriculum for All? express her belief sufficiently in other ways and she had ‘voluntarily accepted the uniform policy of the school which does not accommodate the wearing of the ring’.408 Finally, there was held to be justification for the purposes of Art 9(2) based on the school’s aims of fostering the school identity and ‘an atmosphere of allegiance, discipline, equality and cohesion’, its wish to minimise pressure on pupils resulting from wealth and status differences, the desirability of reducing bullying, and promoting maximum achievement across all aspects of life including attitudes and conduct.409 The first two of these factors were regarded as similar to two of the factors in R (X) v Y School (above)410 which were viewed as legitimate and proportionate for Art 9(2) purposes in justifying the ban on the niqab, the others being security (thus protecting public safety or the rights and freedom of others) and the pedagogic need for the teacher to see the pupil’s face. d. An Alternative Arrangement; Linguistic Preference There is a further dimension of choice that also has relevance, which is where the issue is not an objection to the prescribed educational practice or content but rather a preference for some alternative arrangement. We saw in Mozert above that the school had agreed to an alternative reading programme for the children in question, which would have met the parents’ objections. In Belgian Linguistics the issue was ‘mother tongue teaching’ and the parents’ wish that their children be taught in the language of French in a school in the Flemish-speaking part of Belgium; the ECtHR, in a much cited passage (also noted in Chapter 2 above), ruled out any obligation on the state to be so responsive to parental choice: ‘the Contracting Parties do not recognise such a right to education as would require them to establish at their own expense, or to subsidise, education of any particular type or at any particular level’.411 There will be circumstances, however, where the denial of linguistic rights will violate the right to education, including the right of parents to ensure teaching in conformity with their religious or philosophical convictions. In Catan v Moldova and Russia412 it was the state’s prescription of the Cyrillic rather than the Latin alphabet in schools, and the harassment to which the authorities subjected the schools that refused to comply with this rule and chose to use the Latin alphabet, that gave rise to an interference with the rights of the parents under A2P1. They were Moldovian nationals living in the separatist Moldovian Republic of Transdniestria which was controlled by Russia during the period in question.413 Another example is in Cyprus v Turkey,414 noted above, 408 Ibid, [32]. 409 Ibid, [36]. 410 [2007] EWHC 298 (Admin); [2007] ELR 278. 411 Belgian Linguistics (No.2) 1 EHRR 252 (1979–80) at [3]. 412 Application Nos 43370/04, 8252/05 and 18454/06 [2013] ELR 197. 413 For a critique of this decision, see B Bowring, ‘Geopolitics and the right to education, and why no person is, in fact, a child (2014) 26(2) CFLQ 196. 414 Application No 25781/94 (2002) 35 EHRR 731.

‘Fundamental British Values’ and Countering Extremism 345 arising from the failure of Turkish Cyprus to make provision for Greek Cypriot children who were beyond primary school age and living in its jurisdiction to be taught in the medium of Greek as had happened when they were in primary school. It was, in practical terms, not possible for these children to travel to the Greek part of Cyprus for their education. There was held to be violation of A2P1. The Court was particularly mindful of the impact the lack of Greek medium teaching would have on family life.415 It should be noted that children as well as parents hold linguistic rights. Additionally, under Art 30 of the UNCRC, if belonging to an ethnic, religious or linguistic minority, children must not be denied the right ‘in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language’. e. Comment Seeking to answer the question with which this section has been concerned – whether a prescribed national curriculum can be reconciled with the notion of parental choice and the accommodation of cultural preferences – necessarily requires consideration of a wide range of issues. Ultimately, particularly given their religious or philosophical basis, choice and minority rights regarding the curriculum and teaching fall squarely within the potential scope of human rights protection. They may also involve constitutional rights, as in the US. Yet the state’s authority to prescribe a central secular curriculum for institutions is to a large extent legally unfettered provided parents are not denied educational alternatives, even home education, and the prescribed curriculum does not represent such an interference as to pose a significant threat to a particular minority culture. Parental choice has in general proved subservient to the state’s power to determine what is in the national interest for children to be taught in school.

III. ‘Fundamental British Values’ and Countering Extremism It is impossible to dissociate the policy that schools in England should promote ‘fundamental British values’ from the Government’s wider counter-extremism and anti-radicalisation agenda, most notably under the ‘Prevent Strategy’.416

415 Ibid, [278]. 416 See J Busher, T Choudhury, P Thomas and G Harris, What the Prevent duty means for schools and colleges in England: An analysis of educationalists’ experiences (London, Aziz Foundation, 2017), online at http://azizfoundation.org.uk/wp-content/uploads/2017/07/What-the-Prevent-Duty-meansfor-schools-and-colleges-in-England.pdf.

346 Secular Education in the State Sector: A Curriculum for All? The Strategy, discussed below, sees schools in having a role in countering radicalisation, a role which is – important not because there is significant evidence to suggest children are being radicalised – there is not – but because [schools] can play a vital role in preparing young people to challenge extremism and the ideology of terrorism and effectively rebut those who are apologists for it.417

The ‘British values’ policy itself was first introduced in independent schools, including academies and free schools,418 before being rolled out across maintained schools, but on a different legal basis.419 Regulation of provision in out-of-school settings, including home education, which is also planned,420 is also linked to government’s anti-radicalisation agenda, since concern arising from the perceived risks of children being exposed to extremist views in these settings has grown.

A. The Promotion of ‘Fundamental British values’ The introduction of a policy that schools should promote ‘fundamental British values’ involved, initially, amendments to the legislation relating to independent school standards, a move that the Prevent Strategy had made clear was under active consideration.421 The Trojan Horse affair, discussed in Chapter 3, and concerns that the cultural and curricular autonomy enjoyed by independent faith schools offered opportunities for the pursuit of extremist agendas, formed part of the Government’s policy rationale. The Prevent Strategy referred to ‘allegations that a minority of faith schools have been actively promoting views that are contrary to British values, such as intolerance of other cultures and gender inequality’ and to reports that some independent faith schools had tolerated the expression of extremist views by staff, visitors or pupils.422 A lack of clarity in the prevailing regulatory framework on independent schooling was said to have generated ‘clear risks that schools might not fully understand their obligations’, which under the standards regulations423 included promoting ‘tolerance and harmony between different cultural traditions’, while it was also possible that any ‘extremist or intolerant messages’ conveyed by schools in the practices they adopted might not be picked up by school inspectors.424 The particular need for regulation in 417 HM Government, Prevent Strategy (Cm 8092) (London, The Stationery Office, 2011), para 10.10. 418 Education (Independent School Standards) (England) Regulations 2010 (SI 2010/1997), Sch 1, para 5, as amended by the Education (Independent School Standards) (England) (Amendment) Regulations 2012 (SI 2012/2962). 419 See M Holehouse, ‘Children should learn British values such as freedom and tolerance, says David Cameron’, The Telegraph, 10 June 2014. 420 See ch 8. 421 HM Government, Prevent Strategy n 417 above. 422 Ibid, para 10.32. 423 SI 2010/1997, n 418 above, Sch 1, para 5. 424 Prevent Strategy (2011) n 417 above, para 10.20.

‘Fundamental British Values’ and Countering Extremism 347 these schools came from the evidence that ‘extremism may be more of a problem within some of these institutions than in publicly-funded schools’.425 In particular, there were indications that some independent schools had permitted the expression of culturally-biased or extremist views by staff, visitors or pupils. There were also ‘allegations that a minority of independent faith schools have been actively promoting views that are contrary to British values, such as intolerance of other cultures and gender inequality’.426 As amended in 2012, the regulations on independent school standards thus require these schools to ensure that principles are promoted enabling pupils to ‘know right from wrong and to respect the civil and criminal law’, ‘accept responsibility for their behaviour’, acquire knowledge of public institutions and services, and appreciate and respect their own and other cultures in a way that promotes tolerance and harmony. On ‘fundamental British values’ specifically, pupils must be encouraged ‘to respect the fundamental British values of democracy, the rule of law, individual liberty and mutual respect and tolerance of those with different faiths and beliefs’.427 An important further amendment added in September 2014 aims to strengthen these duties and ‘emphasise the importance of the fundamental British values and … help address extremism’.428 It has bolstered the duty to promote these values by requiring schools to promote them ‘actively’.429 This change was made despite significant opposition among consultees,430 many of whom saw the change as a ‘knee jerk’ response to the Trojan Horse affair or as unnecessary since most schools were already promoting these values appropriately. Some thought a more effective course would be to enforce the existing requirement in any defaulting schools. The Government, however, regarded it as important to reinforce the duty in order to put pressure on schools doing the bare minimum to promote British values and failing to embed them properly within their school’s ethos.431 Although the Government wanted all schools in England to promote ‘fundamental British values’, a different regulatory approach was adopted for maintained (local authority) schools. They would instead be expected to promote the values as part of their general duty to have a ‘balanced and broadly based’ curriculum 425 Ibid, para 10.20. 426 Ibid, para 10.32. 427 SI 2010/1997, n 418 above, Sch 1, para 5, as amended by the Education (Independent School Standards) (England) (Amendment) Regulations 2012 (SI 2012/2962). 428 Explanatory Memorandum to the 2014 Regulations, para 7.3. 429 Education (Independent School Standards) (England) (Amendment) Regulations 2014 (SI 2014/2374), amending pt 2 of Sch 1 to the 2010 Regulations (n 418 above). The 2010 Regulations, as amended, were subsequently replaced by the Education (Independent School Standards) Regulations 2014 (SI 2014/3283). 430 A summary of the consultation responses was published along with the Government’s response to them: DfE, Proposed new independent school standards. Government consultation interim response on part 2 of the standards: the spiritual, moral, social, and cultural development of pupils (November 2014), www.gov.uk/government/uploads/system/uploads/attachment_data/file/380017/SMSC_consultation_ response.pdf. 431 Ibid, para 16.

348 Secular Education in the State Sector: A Curriculum for All? which, inter alia, ‘promotes the spiritual, moral, cultural, mental and physical development of pupils at the school and of society’.432 Monitoring would be undertaken through the school inspection process carried out by Ofsted under its new inspection framework.433 The DfE has sought to emphasise via its guidance that, in effect, the promotion of British values will be regarded as both consistent with and implicit within this broad duty.434 The guidance also stresses that active promotion of the relevant principles should involve challenging any opinions or behaviours that could be regarded as contrary to fundamental British values,435 an expectation which is seen as consistent with the Prevent Strategy. The new school inspection framework came into operation in September 2015 and incorporates assessment of the promotion of British values both in the context of curriculum delivery and expectations regarding the overall quality of school leadership and management.436 According to the Chief Inspector’s annual report for 2015–16, no state or independent schools were found to be ‘inadequate’ on the basis of a failure to promote British values or to protect children from extremism, although around one-third of maintained schools and one-quarter of independent schools that were classed as inadequate due to ‘safeguarding issues’ were told that improvement in making pupils understand such issues was needed.437 The promotion of ‘fundamental British values’ needs to be handled sensitively, in an inclusive manner. We have seen already how the ECHR seeks to proscribe indoctrination. Furthermore, Art 8 of the UNCRC requires states to respect the child’s right to preservation of his or her identity, while Art 29(1) calls for education to be directed towards, inter alia, the development of respect for the child’s own ‘cultural identity, language and values’ and for his or her country of origin. At the same time, however, the latter provision requires the child’s education also to be directed to the development of respect for ‘the national values of the country in which the child is living’. The Committee on the Rights of the Child’s General Comment on the Aims of Education acknowledges that ‘the values expressed in Article 29(1) might be thought to be in conflict with one another in certain situations’.438 Even so, it seems likely that the notion of British values that is being 432 EA 2002, s 78(1). 433 Ofsted, Better Inspection for All (London, Ofsted, 2014), 10. 434 DfE, Promoting fundamental British values as part of SMSC in schools (London, Department for Education, 2014). 435 Ibid, 5. 436 Ofsted, School Inspection Handbook (Manchester, Ofsted, 2015), paras 134 and 137, at www. gov.uk/government/uploads/system/uploads/attachment_data/file/436039/School_inspection_ handbook_from_September_2015.pdf. For analysis focused on the extent to which the coverage of sexual orientation in schools forms part of the evaluation by Ofsted of the promotion of British values in individual schools, see R M Vanderbeck and P Johnson, ‘The Promotion of British Values: Sexual Orientation Equality, Religion, and England’s Schools’ (2016) 30 International Journal of Law, Policy and the Family 292 at 301–309. 437 Ofsted, The Annual Report of Her Majesty’s Chief Inspector of Education, Children’s Services and Skills 2015/16 (HC 821) (London, Ofsted, 2016) para 260. 438 General Comment No.1 on The Aims of Education, in UNICEF, General Comments of the Committee on the Rights of the Child (Florence, UNICEF Innocenti Research Centre, 2006) 1–6 at 2, para 4.

‘Fundamental British Values’ and Countering Extremism 349 adopted will not be in conflict with anything in the Article. Certainly such a concern was not raised by the Committee on the Rights of the Child in its recent periodic monitoring report on the UK.439 It remains to be seen how successfully the promotion of British values exerts a positive influence on children and young people’s attitudes and behaviour. The Chief Inspector found that in 2015–16 in some (albeit a small number) of schools, pupils learnt about British values ‘but were not acting in accordance with these in their school and community life’.440 Germen Janmaat has found more support for fundamental British values among young people who have followed an academic route rather than a vocational track in upper secondary school, with those in the latter category being ‘deprived of the input that allows their peers in the academic track to develop stronger attachments to key democratic values’.441 He suggests that new efforts need to be made to target education about those values on students on vocational courses since they are showing less positive attitudes towards them than those on academic courses who have received input on them. Proving the impact of values education scientifically is, however, difficult, as was noted in relation to Holocaust education, which can also be considered to have a broad objective to shape attitudes, albeit through a partly historical lens. The Holocaust has been a compulsory element of NC History at key stage 3 in England for several years.442 However, as noted earlier the NC is not compulsory in academies. Consequently, coverage of the Holocaust in academies may only be ‘patchy’.443 The Government has rejected making Holocaust education compulsory in these schools, which seems incongruous with its approach on the coverage of British values.444 In a 2016 report on anti-semitism the Commons Home Affairs Committee endorsed the compulsory inclusion of the Holocaust in the NC but found public understanding of ‘anti-Jewish hatred’ to be ‘still lacking’.445 439 Committee on the Rights of the Child (2016), Concluding observations on the fifth periodic report of the United Kingdom of Great Britain and Northern Ireland (CRC/C/GBR/CO/5). 440 Ofsted n 437 above, para 264. 441 J Germen Janmaat, ‘Educational influences on young people’s support for fundamental British values’ (2018) 44(2) British Journal of Educational Research 251, 266. 442 This broadly spans the age range 11–14. The duty to implement the National Curriculum for this key stage is set out in the Education Act 2002, ss 84, 87 and 88. The relevant content of the National Curriculum is prescribed by the Education (National Curriculum) (Attainment Targets and Programmes of Study) (England) Order 2013 (SI 2013/2232), as amended, which refers to the prescribed Framework Document: www.gov.uk/government/collections/national-curriculum. 443 House of Commons Education Committee, Second Report of Session 2015–16, Holocaust Education (HC 480) (London, The Stationery Office, 2016), para 32. 444 See House of Commons Education Committee, Fourth Special Report of Session 2015–16, Holocaust Education: Government Response to the Committee’s Second report of Session 2015–16 (HC 974) (House of Commons, 2015) (www.publications.parliament.uk/pa/cm201516/cmselect/cmeduc/974/974.pdf) 5: ‘Academies … are accountable to their local communities for the decisions they make. Inspectors assess schools’ support for pupils’ spiritual, moral, social and cultural development and how this equips them to participate fully in and contribute positively to life in modern Britain. Ofsted has written to inspectors to make them aware of the work schools are doing on Holocaust Education funded by the Department.’ 445 House of Commons Home Affairs Committee, Tenth Report of Session 2016/17 (HC 136), Antisemitism in the UK (2016), para 18.

350 Secular Education in the State Sector: A Curriculum for All? The cross-party Holocaust Commission established in 2014 by the then Prime Minister David Cameron, in a critical report, recommended improvements to Holocaust education and greater support for it after finding a ‘concerning lack of knowledge among large numbers of students about some fundamental aspects of the Holocaust’.446 It also called for Holocaust education to ‘encourage people to question their personal motivations and choices – and to build tolerance and respect for diverse groups in society’,447 which clearly has a resonance with the objectives behind the ‘British values’ push. In any event the House of Commons Education Committee found that conclusive proof that Holocaust education has a positive impact is likely to prove elusive and that this would be the case in relation to values education more broadly;448 thus it may be considered relevant to the promotion of ‘British values’. Nonetheless, few would question schools’ long-standing role in seeking to instil democratic or moral values and impart associated areas of knowledge, historical or otherwise, even if there is room for debate over precisely how and on what basis content is selected.449 Daniel Monk has described the school curriculum as a ‘site of cultural conflict’.450 The British values curricular requirement has certainly divided opinion, since some regard it as antithetical to a multiculturalist and pluralistic approach, particularly in view of Britain’s colonial past. In a research study published in 2017 several of the respondents (educational professionals) were reported to have ‘described considerable discomfort or even embarrassment about describing these as British values’, their unease being ‘often rooted in concerns about how definitions of Britishness could come up against issues of empire, imperialism and racial and exclusionary identities’.451 Struthers sees the emphasis on British values as preventing a more inclusive and equality related human rights focus based around values grounded in ‘universality and common humanity’, which would counter ‘any possible interpretation that these values are to be applied differently to majority and minority ethnic groups’.452 The concerns are legitimate, and there is no doubt that the policy that has been implemented is 446 Holocaust Commission, Britain’s Promise to Remember. The Prime Minister’s Holocaust C ommission Report (London, Cabinet Office, 2015), 34. 447 Ibid, 49. 448 N 443 above, para.8. 449 See, eg, the case made out by B Dickson and C McCormick, ‘The right to education for humanity’, (2016) 67(4) NILQ 409, 432 for ‘education for humanity’: ‘[B]y making all people, especially children, more aware of the role played by religious differences in the perpetuation of conflicts, states are more likely to be able to reduce the intensity of the conflicts and promote compromise between opposing views’. 450 D Monk, ‘Health and Education: Conflicting Programmes for Sex Education’, in E Heinze (ed), Of Innocence and Autonomy. Children, sex and human rights (Aldershot, Ashgate, 2000), 179–194, 186. 451 J Busher, T Choudhury, P Thomas and G Harris, What the Prevent duty means for schools and colleges in England: An analysis of educationalists’ experiences (Aziz Foundation, 2017) 27 (original emphasis), http://azizfoundation.org.uk/wp-content/uploads/2017/07/What-the-Prevent-Duty-meansfor-schools-and-colleges-in-England.pdf. 452 AEC Struthers, ‘Teaching British Values in Our Schools: But Why not Human Rights Values?’ (2017) 26(1) Social and Legal Studies 89, 103.

‘Fundamental British Values’ and Countering Extremism 351 somewhat underdeveloped. It has, however, for most part been widely supported across political divides.453

B. ‘Prevent’ and the Counter-Terrorism and Security Act 2015 The Prevent strategy was developed under the pre-2010 Labour Government but reviewed and adjusted under the Coalition Government as a more integral part of a counter-terrorism strategy known as ‘CONTEST’. The strategy aims to prevent terrorism by responding to extremist behaviour/tendencies and radicalisation that have the potential to lead on to it. The Government’s Prevent review report was published in 2011 and placed a clear emphasis on the need for government to work with sectors and institutions, such as education and schools, colleges and universities, where radicalisation among young people might be detected.454 As a result of the Counter-Terrorism and Security Act 2015 schools have been placed under an unprecedented responsibility, when carrying out their functions, to ‘have due regard to the need to prevent people from being drawn into terrorism’ (the Prevent Duty).455 The importance attached to the Prevent Duty (which also applies to further education colleges and universities456) is reflected in the Secretary of State’s power to issue directions to any school that is considered to have failed in the performance of it.457 A direction would be enforceable via a mandatory order.458 The Prevent Duty applies to the full range of private and state schools.459 In carrying out this responsibility schools must have regard to any guidance issued by the Secretary of State.460 There is a duty to publish this guidance. Such was the urgency with which this particular policy was being implemented that 453 The House of Commons Education Select Committee has said that the ‘British values … being promoted in all schools are universal and an important part of what children should learn’: House of Commons Education Committee, Extremism in Schools: the Trojan Horse Affair, Seventh Report of Session 2014–15 (HC 473) (London, The Stationery Office, 2015) para 72. See also the consensual approach taken by MPs in the debate on the teaching of British values: HC Debs, Vol 583, cols 96WH–119WH, 25 June 2014. 454 HM Government, Prevent Strategy n 417 above, part 10. 455 Counter-Terrorism and Security Act 2015, s 26(1). By virtue of s 33, the definition of terrorism is that set out in the Terrorism Act 2000, s 1, as amended. It refers to action of various kinds, including violence, or damage to property, threats of these things, endangerment of life or risk to health or safety, or action aimed at disruption to or interference with electronic systems, where in any of these cases it is designed to influence government or an international organisation or to intimidate the public (or a section of it) and ‘the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause’. 456 See the Counter-Terrorism and Security Act 2015, Pt 5, ch 1. See also S Greer and L Bell, ‘CounterTerrorist Law In British Universities: A Review of the “Prevent” Debate’ [2018] PL 84. 457 Counter-Terrorism and Security Act 2015, s 30(1). 458 Ibid, s 30(2). This is an order which is used to compel a public authority to carry out its statutory responsibility. 459 Ibid, Sch 6. 460 Ibid, s 29.

352 Secular Education in the State Sector: A Curriculum for All? the guidance461 was quickly brought into force462 and updated four months later: the Revised Prevent Duty Guidance for England and Wales.463 Non-statutory advice on the Prevent Duty for schools464 and a briefing note for schools on how social media are used to attract people to conflict-ridden Syria and Iraq have also been published.465 The Government has also sought to emphasise that the Prevent Duty is linked to the well-established role and responsibility of schools in safeguarding the welfare of pupils, with the lead person on safeguarding in a school expected to be involved with and trained in the Prevent Duty. In 2016, a website, Educate Against Hate, developed by the DfE and the Home Office, was launched to ‘provide teachers and parents with the expertise they need to challenge radical views and keep their children safe’.466 It says it offers ‘practical advice, support and resources to protect children from extremism and radicalisation’.467 The Prevent guidance is aimed at preventing both violent and non-violent extremism (potentially ‘conducive to terrorism’468) from whatever source. So far as the school curriculum is concerned, while the guidance sanctions open discussion of ‘sensitive topics, including terrorism and the extremist ideas that are part of terrorist ideology’, and indicates that pupils should be able to learn ‘how to challenge these ideas’,469 it seeks the protection of children considered to be at risk of being drawn into terrorist ideology. Thus there should, for example, be filtering of online material or, when needed, a referral of pupils for ‘further help’.470 Unfortunately there are barriers to this approach, since staff will have limited potential to monitor and filter access to material where this occurs away from school. Furthermore, the training intended to give school staff the ‘confidence to identify children at risk of being drawn into terrorism, and to challenge extremist ideas’471 is ‘largely unregulated’472 and has been criticised for being overly focused 461 HM Government, Prevent Duty Guidance (2015), www.legislation.gov.uk/ukdsi/2015/9780111133309/ pdfs/ukdsiod_9780111133309_en.pdf. 462 Under the Counter-Terrorism and Security Act 2015 (Risk of Being Drawn into Terrorism) (Amendment and Guidance) Regulations 2015 (SI 2015/928). 463 HM Government, Revised Prevent Duty Guidance for England and Wales (2015), www.gov.uk/ government/uploads/system/uploads/attachment_data/file/445977/3799_Revised_Prevent_Duty_ Guidance__England_Wales_V2-Interactive.pdf. 464 DfE, The Prevent Duty: Departmental advice for schools and childcare providers (2015), www.gov. uk/government/uploads/system/uploads/attachment_data/file/439598/prevent-duty-departmentaladvice-v6.pdf. 465 Home Office and the DfE, How Social Media Is (sic) Used to Encourage Travel to Syria and Iraq – A briefing note for schools (2015), www.gov.uk/government/uploads/system/uploads/attachment_data/ file/440450/How_social_media_is_used_to_encourage_travel_to_Syria_and_Iraq.pdf. 466 DfE Press Release, 19 January 2016, ‘New drive to protect children from “spell of twisted ideologies’. 467 https://educateagainsthate.com/about/. 468 Revised guidance, n 463 above, para 8. 469 Ibid, para 64. 470 Ibid, paras 70 and 71. 471 Ibid, para 70. 472 Open Society Justice Initiative, Eroding Trust: The UK’s PREVENT Counter-Extremism Strategy in Health and Education (New York, Open Society Foundations, 2016) 16: www.opensocietyfoundations. org/sites/default/files/eroding-trust-20161017_0.pdf.

‘Fundamental British Values’ and Countering Extremism 353 on Muslims.473 There are also no guarantees that it will have the coverage and effectiveness to ensure that staff members are able to identify pupils who are giving early indications of being drawn to extremism. The Home Affairs Committee has found education staff training to date to be insufficient given the complexity and relative unfamiliarity to them of their Prevent role.474 A survey with 450 respondents conducted by the Times Educational Supplement found that in 41 per cent of cases staff training totalled one hour or less and 38 per cent of respondents considered the training inadequate.475 This negative picture is, however, contradicted by the Casey review report which found most teachers to offer a ‘positive perspective on the training around radicalisation’, albeit only three areas were visited by the review.476 The website launched by the DfE and the Home Office in order to offer practical advice to schools and parents about protecting children from radicalisation or extremism includes guidance on the ‘warning signs’ teachers should look out for.477 These signs are not merely the more obvious ones such as expressing support for extremist groups or accessing extremist online material, but also include ‘argumentativeness or aggression’, a refusal to engage with peers or being abusive towards them, recent religious conversion, a significant change in their appearance, clothing or behaviour, ‘secretiveness’ and the adoption of an alternative online identity.478 Obviously there are risks that such signs could be misinterpreted in some cases. The Prevent Duty and the Prevent strategy as a whole have attracted criticism about the risk of stigmatising some children, notably Muslims, whom the Muslim Council for Britain claim have been disproportionately targeted and ‘viewed through the lens of security’.479 Referrals for Islamist extremism, more than one in four of which are related to young people aged under 15,480 continue to exceed to a significant degree those related to other forms. However, there has

473 Ibid, 43–45. 474 House of Commons Home Affairs Committee, Radicalisation: the counter-narrative and identifying the tipping point Eighth Report of Session 2016–17 (HC 135) (London, House of Commons, 2016) para 69. 475 C Santry, ‘Teachers are not being given adequate Prevent strategy training, poll finds’, TES (online), 4 Nov 2016, www.tes.com/news/school-news/breaking-news/exclusive-teachers-are-notbeing-given-adequate-prevent-strategy. 476 Casey n 369 above, para 10.26. 477 www.educateagainsthate.com. 478 http://educateagainsthate.com/teachers/what-are-the-warning-signs-teachers/. The website includes a range of teaching resources. 479 Muslim Council of Britain, Concerns on Prevent. Meeting between David Anderson QC and the MCB (London, MCB, 2015), www.mcb.org.uk/wp-content/uploads/2015/10/20150803-Casestudies-about-Prevent.pdf. The Council was reportedly planning to set up an alternative programme of counter-radicalisation: V Dodd, ‘Muslim Council of Britain to set up alternative counter-terror scheme’, The Guardian (online) 19 October 2016, www.theguardian.com/uk-news/2016/oct/19/ muslim-council-britain-set-up-alternative-counter-terror-scheme. 480 Home Office, Statistical Bulletin 31/18, Individuals referred to and supported through the Prevent Programme, April 2017 to March 2018 (London, Home Office, 2018) 14.

354 Secular Education in the State Sector: A Curriculum for All? been a rise in referrals for right wing extremism. Home Office statistics published at the end of 2018 show that in 2017–18, of the 7,318 cases of referral to the Prevent programme, 44 per cent were for ‘concerns related to Islamist extremism’ and 18 per cent for ‘concerns related to right wing extremism’, but of those cases which went to a Channel panel (see below) the respective proportions were 50 per cent and 32 per cent and were at near parity among cases where support was provided via Channel.481 As compared with the previous year,482 referrals related to Islamist extremism fell by 14 per cent but those related to right wing extremism rose by 36 per cent. Males represented nearly 90 per cent of those referred, and young people were also over-represented, with 57 per cent of all referrals being of people aged 20 or under and 27 per cent were people aged 15 and under.483 The Home Office has not published any statistical breakdown by race or religion. It is not clear if such figures are recorded, but if they are, one must assume that the failure to release them is intended to avoid both inflaming public attitudes towards the programme and the stereotyping of specific social/cultural groups. One in three Prevent referrals emanate from the education sector and the median age of those referred by the sector is 14.484 There is, however, a concern that the degree of surveillance or policing of pupils’ expressions of view or inter-changes of ideas that is contemplated could prejudice normative school relationships.485 One case reported by the Home Office in 2017 involved a nine year old boy who stood up in class and voiced support for ISIS. He had been searching online for videos of beheadings and people being burnt to death by ISIS but ‘[a]fter a year of specialist support, including work with his school … he stopped watching the videos and was diverted away from extremism’.486 In another, a 17 year old pupil was reportedly referred by his school after wearing a ‘Free Palestine’ badge and wristbands indicating support for Palestinians and reading in school a pro-Palestinian leaflet.487 In the climate surrounding this issue and the general pressure to safeguard vulnerable pupils, reinforced by the statutory duties on school governing bodies to exercise their functions with a view to safeguarding and promoting the welfare of child pupils,488 there is a risk that the merest suspicion may prompt referral. Nevertheless, the Casey Review blames opponents of Prevent of having ‘deliberately distorted and exaggerated cases by purporting to show that teachers have acted disproportionately’.489

481 Ibid, 13. 482 Home Office, Statistical Bulletin 06/18, Individuals referred to and supported through the Prevent Programme, April 2016 to March 2017 (London, Home Office, 2018) 4. 483 N 480 above, 4 and 12. 484 Ibid, 4 and 12. However, it is not clear but probable that this refers collectively to colleges and universities as well as schools. 485 R Williams, ‘Heads raise alarm over new duty to police extremism’, The Guardian, 9 June 2015. 486 R Ford, ‘Boy, 9, sent to anti-terror scheme after voicing Isis support in class’, The Times, 10 Nov 2017. 487 J Boswell and S Griffiths, ‘Police quiz teen over Palestine badge’, Sunday Times 14 Feb 2016. 488 Education Act 2002, s 175(2). 489 Casey n 369 above, para 10.39.

‘Fundamental British Values’ and Countering Extremism 355 Referral may lead to an individual being offered support, under a plan, within a programme known as Channel, which was established in 2012. It is overseen by local authorities in conjunction with other public organisations under special multiagency panels. The 2015 Act now sets out a statutory framework for the support arrangements (although it does not refer specifically to Channel) and requires regard to be had to the Secretary of State’s guidance.490 According to the guidance: Channel is about ensuring that vulnerable children and adults of any faith, ethnicity or background receive support before their vulnerabilities are exploited by those that would want them to embrace terrorism, and before they become involved in criminal terrorist related activity.491

Participation in Channel is voluntary and, in the case of a child, parental consent is needed.492 Where parental consent is needed but not given, particularly if it is considered that the risk to the child is in part derived from the home environment, social services welfare protection involvement may be considered necessary.493 Channel referrals by schools in the year before the Prevent Duty was introduced totalled 537 cases, but in the twelve months from July 2015 to June 2016 there was a substantial increase in them, with 1,121 cases.494 Of the overall total of 2,311 Channel referrals of under-18s over this period, 352 involved children aged 9 or under and 989 were of 10 to 14 year olds.495 It seems, however, that 80 per cent of referrals to Channel are not followed through, suggesting we may be seeing the effect of the current framework’s ‘incentive to over-refer’.496 While Prevent spans a wide range of public agencies, it is clear that as it is predominantly aimed at children and young people, particularly teenagers, schools are central to it. They have been given a core role within a national strategy that is aimed not only at inhibiting the growth of extremist ideology but also the threat to integration and social cohesion resulting from efforts by some people to perpetuate or deepen cultural divides. Yet the Home Affairs Committee (HAC) found in 2016 that the Prevent Duty had placed a responsibility on educational institutions which ‘they are finding very hard to fulfil’.497 Subsequent research nevertheless found that education staff felt reasonably confident about 490 Counter-Terrorism and Security Act 2015, s 36(7). 491 HM Government, Channel Duty Guidance. Protecting Vulnerable People from Being Drawn into Terrorism (HM Government, 2015), para 15, www.gov.uk/government/uploads/system/uploads/ attachment_data/file/425189/Channel_Duty_Guidance_April_2015.pdf. 492 Ibid, para 77. See also the Counter-Terrorism and Security Act 2015, s 36(4)(b). 493 Ibid, para 79. 494 Freedom of Information Act request made to the National Police Chiefs Council, reported in F Hamilton, ‘Thousands of pupils at risk of extremism, The Times, 12 Sept 2016. 495 Ibid. 496 Open Society Justice Initiative n 472 above, 16, 18 and 41–43. Police and local authority assessment of referrals determines whether they should go forward to the Channel panel, on the basis that there are ‘reasonable grounds to believe that the individual is vulnerable to being drawn into terrorism’: Counter Terrorism and Security Act 2015, s 36(3), as amended by the Counter-Terrorism and Border Security Act 2019, s 20(4). It could be decided that other support would be more suitable. 497 Note 474 above, para 69.

356 Secular Education in the State Sector: A Curriculum for All? implementing the Prevent Duty, which tended to be viewed as a safeguarding issue.498 In the same year the Parliamentary Joint Committee on Human Rights (JCHR) felt it was still too soon to reach any definite conclusions regarding its effectiveness.499 While anecdotal evidence raised some concerns, such as about whether the scale of referrals has been proportionate, the Committee found that it has been ‘very easy for dangerous myths to be spread about Prevent’ – such as those around ‘heavy handed referrals’.500 Nonetheless, there are inherent risks of this happening: McGlynn and McDaid assert that the guidance is ‘problematizing everyday behaviours in young people’.501 The JCHR recommended that in order to dispel them there should be ‘rigorous and transparent reporting about the operation of the Prevent Duty’,502 which has so far been lacking. A more critical view has, however, been taken by the HAC, noting criticisms concerning the strategy’s top-down approach, a continuing uncertainty among front line staff as to what constitutes extremist behaviour, and Prevent’s failure to involve local communities, issues which have led to suspicion and even a sense of alienation.503 A report by the Open Society Justice Initiative argues that Prevent is counterproductive because its inaccurate targeting has led some individuals to ‘question their place in British society’.504 There is a continuing perception held by some that, despite firm governmental denials and increased numbers of referrals for right wing extremism, the Prevent initiative is targeted on children and young people of Muslim background and thus is discriminatory and indicates a lack of respect for the principle of equal status for all children. The experience of legislative efforts to prevent the promotion of homosexuality in schools – via s 28 of the Local Government Act 1988,505 noted above, which until its repeal in 2003 meant that ‘some children will be seen as less equal than others’506 – illustrates the damage (including stigma) and division that such forms and sites of regulation can generate.507 The HAC favours renaming Prevent, a ‘now toxic name’, as

498 Busher et al n 451 above. 499 House of Lords, House of Commons, Joint Committee on Human Rights, Counter-Extremism Second Report of Session 2016–17 (HL Paper 39 HC 105) (2016) para 50. 500 Ibid, paras 49 and 50. 501 C McGlynn and S McDaid, ‘Radicalisation and higher education: Students’ understanding and experiences’, (2019) 31(3) Terrorism and Political Violence 559. 502 Note 499 above, para 50. 503 House of Commons Home Affairs Committee, Radicalisation: the counter-narrative and identifying the tipping point Eighth Report of Session 2016–17 (HC 135) (London, House of Commons, 2016). 504 Open Society Justice Initiative n 472 above, 18, and see also 108. 505 Inserting s 2A, Local Government Act 1986, which prohibited local authorities from intentionally promoting homosexuality or publishing material with such an intention and banned them from promoting ‘the teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship’. It was repealed under the Local Government Act 2003, s 122. 506 P Cumper and M Bell, ‘Reforming section 28: lessons for Westminster from Holyrood’ (2003) EHRLR 400, 409. 507 See L Measor, C Tiffin and K Miller, Young People’s Views on Sex Education: Education, Attitudes and Behaviour (London, Routledge Falmer, 2000) 163–164.

‘Fundamental British Values’ and Countering Extremism 357 ‘Engage’, which might help communities avoid seeing it as ‘threatening to their culture and religion’.508 The new counter-extremism legal environment represents an effort to promote liberal values involving measures which are in some ways illiberal. Indeed, they are measures which may be seen by some as exemplifying Foucault’s conception of disciplinary power and surveillance as tools of normalisation as applied in an education context.509 This essentially involves an attempt to prescribe an ‘expected norm’ against which pupils can be judged, with discipline applied to individuals to enforce normalisation and impose homogeneity.510 The measures could also be viewed simply as further manifestations of the governance of childhood.511 Such a perspective is consistent with the conception of modern childhood as an ‘intensely regulated space’.512 This is, for example, regarded as calling into question the value in practice of children’s right to privacy under Art 16 of the UNCRC (or Art 8 of the ECHR),513 particularly if a child is subject to intrusive questioning about their personal beliefs under ‘intimidating conditions’, as is reported to have occurred.514 The UNCRC right though only applies to ‘arbitrary or unlawful interference’ with privacy, which may generally be difficult to establish in the case of school-based counter-extremism strategies. ECHR, Art 8 sanctions interferences which, inter alia, are ‘necessary in a democratic society in the interests of national security, public safety …’, although it is by no means clear that in the majority of Prevent cases such legal justification can be established. There is also a potential conflict with what Flekkøy refers to as the ‘intellectual rights of the child’.515 One of these is the child’s right to freedom of expression under Art 13, UNCRC (and Art 10, ECHR) – not only integral to the notion of a free democratic society but also important developmentally for children and young people. The Committee on the Rights of the Child’s General Comment No 1 emphasises that ‘efforts to promote the enjoyment of other [UNCRC] rights must not be undermined, and should be reinforced, by the values imparted in the educational process’ and that this applies not merely to the content of education but also ‘the environment within which education takes place’.516 Interference

508 House of Commons Home Affairs Committee n 503 above, para 56. 509 M Foucault, Discipline and Punish: the Birth of the Prison (London, Penguin, 1991). 510 Ibid, 184. 511 See D Monk, ‘Theorising Education Law and Childhood: constructing the ideal pupil’ (2000) 21(3) British Journal of Sociology of Education 355, 367. 512 G Tait and and M Tambyah, ‘Rights without a Remedy? Children’s Privacy, Social Governance and UNCRC’, in J Gillett-Swann and V Coppock (eds), Children’s Rights, Educational Research and the UNCRC: past, present and future (Didcot, Symposium Books, 2016) 121–39, 129. 513 Ibid, 134–5. 514 Open Society Justice Initiative n 472 above, 17. 515 M G Flekkøy, ‘The Role of an Ombudsman for Children. Securing the child’s right to education’, in S Hart, C Price Cohen, M Farrell Erickson and M Flekkøy (eds), Children’s Rights in Education (London, Jessica Kingsley, 2001), 155–78, 173. 516 General Comment No.1 on The Aims of Education, in UNICEF, General Comments of the Committee on the Rights of the Child (Florence, UNICEF Innocenti Research Centre, 2006) 2, para 8.

358 Secular Education in the State Sector: A Curriculum for All? with the right to freedom of expression will of course be justifiable in some circumstances – in the interests of behaviour management or disciplinary control in furtherance of a non-threatening and conducive learning environment. However, there is a perception that the scope for interference arising from the inclusion of non-violent extremism within the remit of Prevent and the 2015 Act poses a serious potential threat to children and young people’s autonomy. Further and higher education institutions must, in carrying out the Prevent Duty under the 2015 Act, have regard to the duty to ensure freedom of speech,517 but schools are not so circumscribed. This disparity may reflect the absence of a statutory duty on this freedom paralleling that placed on universities, but it means that schools will probably feel less constrained by the need to protect free speech notwithstanding the Prevent guidance’s attempt to safeguard ‘open discussion’ of sensitive issues among pupils, noted above. There is also an issue with regard to the child or young person’s right under Art 14, UNCRC to ‘freedom of thought, conscience and religion’.518 There is a parallel right under the ECHR, Art 9, discussed above, which has been acknowledged to recognise in principle a right to hold and manifest a belief that may be more extreme than that accepted by the majority.519 Yet there is evidence that ‘increased religiosity can lead to referral under Prevent’.520 The UNCRC right is also subject to an obligation by the state to respect the parental role in providing direction to the child in the exercise of this right in a manner consistent with the child’s evolving capacities.521 Keating, however, argues that the supposed ‘privileged sphere of family life in which parents undertake the task of caring for and developing an autonomous, independent child’ is ‘retracting’.522 Whilst this may be in part due to an increasing emphasis on holding parents responsible for their children’s wrongdoing, account should also be taken of the potential conflict between parental autonomy and children’s interests. For example, the Casey review found that in some areas schools ‘face a constant battle’ in convincing parents ‘not to withdraw their children from key parts of the school’s activities (whether that is swimming or visiting the theatre)’.523 In such instances it is the school that is seeking to protect what it regards as the child’s autonomous interests. As Fortin, probably thinking mostly about freedom of religion in the educational context, 517 Namely the duty in the Education (No 2) Act 1986, s 43(1): see the Counter-Terrorism and Security Act 2015, s 31(5). 518 UNCRC, Art 14.1. 519 See, eg, Begum n 325 above. Ms Begum’s belief was manifested in the wearing of the jilbab which was at the more extreme end of the scale of religious/culturally-specific dress for female Muslims within the area. The belief was recognised as being within the scope of Art 9 although the school’s ban on the jilbab was upheld on the basis of Art 9(2). 520 Open Society Justice Initiative n 472 above, 54. 521 UNCRC, Art 14.2. 522 H Keating, ‘Being Responsible, Becoming Responsible and having Responsibility Thrust Upon Them: Constructing the “Responsibility” of Children and Parents’, in J Bridgeman, H Keating and C Lind, Responsibility, Law and the Family (Aldershot, Ashgate, 2008), 125–43, 139. 523 Casey n 369 above, para 7.37.

‘Fundamental British Values’ and Countering Extremism 359 explains, the conflict between parental authority and children and young people’s autonomy ‘comes out most clearly in the context of the child’s right to education’.524 So might it be possible to argue successfully that the state, in seeking to prevent children’s radicalisation by parents or others in a position of influence, could be protecting the child’s freedom of thought and conscience in addition to it being consistent with the state’s duty to prepare a child for ‘responsible life in a free society, in the spirit of understanding, peace, equality … [etc]’?525 A recent report that the pupils at an unnamed Islamic faith school placed in special measures told a school inspector that they did not want boys and girls to be segregated because it ‘was having a negative effect on being prepared for life in modern Britain’526 perhaps underlines the importance of this responsibility.527 Of course, there is also provision within the UNCRC for the child’s right to enjoy his or own minority group’s culture528 and for education to develop respect for the child’s parents and his or her own cultural identity and values.529 As Fortin says, within the UNCRC there are undeniable ‘compromises and internal inconsistencies’.530 The state also purports to act in a protective, safeguarding, capacity in seeking, in the context of education, to prevent children and young people from being drawn towards extremism. It could thus be seen as an extension of its broader safeguarding role that has manifested in local authority legal interventions in cases where there are significant risks to a child’s welfare.531 An example of an extreme case is that of Re Y,532 in which some of the family members of Y, who was 16, were committed to Jihad and two of Y’s brothers had died fighting in Syria. The local authority was concerned that Y might wish to follow his brothers to war, one the kinds of perceived risk that Ahdash has identified as commonly driving local authority interventions in radicalisation cases taken to the family courts (the other kind being a risk of radicalisation resulting from the parents’ extremist views).533 Hayden J granted a wardship order on the grounds that Y was at a ‘high risk of very serious harm’ arising from a ‘distorted belief ’ which was ‘pervasive and challenging to resist’.534 The following year the same judge approved the local authority’s care package for Y as a vulnerable adult to take effect when he turned 18 and thus ceased to be a ward of court.535 Ahdash, however, warns that 524 J Fortin, Children’s Rights and the Developing Law (3rd edn) (Cambridge, Cambridge University Press, 2009) 44. 525 UNCRC, Art 29.1(d). 526 Anon, ‘Islamic faith school pupils “do not want segregation”’, The Times, 28 Sept 2016. 527 See also n 375 above per Woolf J. 528 UNCRC, Art 30. 529 Ibid, Art 29.1(c). 530 Fortin n 524 above, 44. 531 For a review of the cases and critical analysis, see F Ahdash, ‘The interaction between family law and counter-terrorism: a critical examination of the radicalisation cases in the family courts’ (2018) 30(4) Child and Family Law Quarterly 389. See also the discussion below. 532 Re Y (Risk of Young Person Travelling to Join IS) (No.2) [2016] 2 FLR 229. 533 Ahdash, n 531 above, 394. 534 Re Y, n 532 above, [24] and [25]. 535 A Local Authority v Y [2017] EWHC 968 (Fam).

360 Secular Education in the State Sector: A Curriculum for All? at least in cases of radicalisation coming before the family courts, the focus may be on the welfare interests of children but the ‘priorities of counter-terrorism policy will inevitably determine, or “inform’’’ what may be considered to serve such interests.536 She refers to an underlying preoccupation within the policy with Muslim influences and argues that there is an underpinning assumption that the exposure of young minds to political or religious ideologies or beliefs ‘that are deemed to be extremist and that can radicalise children’ will be ‘in and of themselves harmful and dangerous to children’.537 The language of safeguarding, however, continues to pervade this area and especially in relation to the role of schools. Children’s welfare is seen as being put at risk as a result of radicalisation and this is considered a justification for potential intervention. The Casey review viewed the Prevent strategy as ‘mainstreaming the aim of safeguarding potentially vulnerable people’.538 The annual report of the Chief Inspector of Schools for 2015–16 was critical of the poor level of safeguarding in some schools in the context of radicalisation: ‘too little was being done to check on pupils who were vulnerable to being influenced by extremists’.539 From a different perspective, the Open Justice Initiative has argued that the counterextremism strategy is not about safeguarding since in the context of Prevent or Channel the best interests of the child, per Art 3 of the UNCRC, are not regarded as a primary consideration.540 However, reference here is being made to the specific basis for intervention in individual cases and the idea that referral decisions may focus rather more on public risk and prospective culpability rather than safeguarding the vulnerable from becoming potential victims of others’ possibly malevolent influence. There is in any event a question concerning schools’, and in particular teachers’, skills and ability to identify any pupils who are at risk of embracing or being drawn to extremist ideologies541 and to respond not only with alacrity but also appropriate sensitivity and care. It is important not to exacerbate any alienation among individuals who are merely under suspicion, since there is strong evidence that poor student-teacher relationships ‘hinder the internalization of prosocial norms and thereby indirectly foster delinquent behaviour’.542 Indeed, Harber, talking about the exercise of authority in general in schools, warns that an authoritarian approach involving ‘repressive violence’ – defined here as comprising, inter 536 Ahdash, n 531 above, 396. 537 Ahdash, n 531 above, 404 and 413, original emphasis. 538 Casey n 369 above, para 10.39. 539 Ofsted n 437 above, para 236. 540 Open Society Justice Initiative n 472 above, 17–18. 541 In a survey of student teachers it was found that there was a difficulty in judging pupils at risk of alienation, with changed behaviour or at real risk of radicalisation and that teaching staff lacked knowledge of the process of radicalisation: see L Revell, H Bryan and S Elton-Chalcraft, ‘Counter Terrorism Law and Education: Student Teachers’ Induction into UK Prevent Duty Through the Lens of Bauman’s Liquid Modernity’, in K Trimmer, R Dixon and Y S Findlay (eds), The Palgrave Handbook of Education Law for Schools (Cham, Palgrave Macmillan, 2018), 553–65, 559–61. 542 M Theimann, ‘School as a space of socialization and prevention’ 13(1) (2016) European Journal of Criminology 67 at 87.

‘Fundamental British Values’ and Countering Extremism 361 alia, ‘the deprivation of human rights such as freedom of thought, freedom of religion, freedom of speech …’ – can itself foster violence among some subjected to it.543 While teachers have long been expected to seek to counter malign influences on pupils from ‘associations that present delinquent behaviour patterns’,544 the expectations on them, such as to detect behavioural changes or signs from pupils that might indicate that intervention to protect them is needed,545 arguably place these professionals in new territory, beyond the core area of behaviour management that is integral to the pedagogic role. Furthermore, there is a question as to whether this plus the instillation of ‘British values’ such as tolerance and respect for those of different backgrounds and cultures (noted above) will achieve the core objective of preventing radicalisation. The case of the three English girls, two of whom were aged 15 and all of whom who were pupils at Bethnal Green Academy in London, who reportedly travelled to Turkey en route to Syria and were feared to be heading to join the Islamic State group,546 is the kind of occurrence that proponents of the initiative would cite in support of it. But at the same time, it shows how difficult it might be for schools to exercise this new role sufficiently effectively to safeguard vulnerable young people from radicalisation and its effects. The General Secretary of the National Union of Teachers is probably correct in saying that ‘[t]he jury is out as to whether extra statutory requirements are the most effective way to help young people stay safe, think critically, or reject engagement with groups who advocate violence’.547 Moreover, it is unclear whether anti-radicalisation programmes in schools have been effective.548 More evidence is needed. Meanwhile, questions will be raised about how realistic it would be for schools to monitor effectively pupils’ accessing of extremist material online via computers and smart phones, an approach which the Government is exploring.549 Research surveying over 400 school pupils and college and university students in fact suggests that the association between internet and social media use and radical intentions may have been overstated.550 543 C Harber, Schooling as Violence. How schools harm pupils and societies (Abingdon, Routledge Falmer, 2004), 44. 544 Theimann (2016) n 542 above, 69. 545 A key function identified in the Departmental advice n 464 above, 6. 546 M Evans, ‘Three missing London schoolgirls “travelling to Syria to join ISIL”’, The Telegraph (online) 20 Feb 2015, www.telegraph.co.uk/news/uknews/crime/11424884/Three-missing-Britishschoolgirls-travel-to-Syria.html. 547 BBC News item, ‘Nicky Morgan says homophobia may be a sign of extremism’, 30 June 2015, www.bbc.co.uk/news/education-33325654. 548 F Hamilton, ‘Most radicalisation programmes to stop radicalisation are failing’, The Times, 6 June 2018, reporting on a study for the Home Office by the Behavioural Insights Team. 549 See R Kerbaj, ‘Schools put in extremist watch amid fears of Syria backlash’, Sunday Times, 6 Dec 2015. 550 M Quaraishi and C Birkbeck’s study entitled ‘Social Media and Political Attitudes’ highlighted by the ESRC at www.esrc.ac.uk/news-events-and-publications/news/news-items/social-media-andinternet-link-to-radicalism-is-overstated-finds-study/?utm_medium=email&utm_source= govdelivery. The ESRC’s report states that ‘While some types of internet and social media use (such as chatting, tweeting and online gaming) were associated with stronger radical intentions, others (such as using email, or visiting websites with extreme content) were not.’

362 Secular Education in the State Sector: A Curriculum for All?

IV. Sex and Relationships Education and Health Education A. Background In September 2020 a new statutory framework for the provision of education about relationships and sex is due to be introduced under the Children and Social Work Act 2017, although at the time of writing some schools are expected to start teaching to the new framework in September 2019. This reform will effect a very significant modernisation of an important area of provision. The need for effective sex and relationships education (SRE) for children and young people has been universally accepted both within the English education system and across government for many years. Nevertheless, it took a considerable time for this subject area to acquire a status both in law551 and practice that reflected its importance. There has been a degree of political sensitivity surrounding policy on this issue,552 with a resultant disincentive to impose central prescription despite governments’ largely centralising tendencies on curricular matters. Nevertheless, as noted earlier in this chapter, the Thatcher Government’s belief that moral values needed specific promotion in schools led to political and legislative interventions in this field of provision. However, sex education continued to have an uncertain and very much secondary place within the school curriculum despite being added by the EA 1993 to the prescribed basic curriculum for secondary education in state-maintained schools. This subject was inevitably going to have much less priority within schools than the statutory NC subject areas. Sex education has never been part of the NC, with the exception of the basic biological facts of human reproduction included in NC Science. When, however, the new SRE framework is implemented, the Secretary of State will have further prescriptive powers, and a duty to exercise them, over sex education, relationships education and personal, social, health and economic education (PSHE).553 They will also give Ofsted a firmer basis for intervention when provision made by a school in this area of the curriculum is weak. The Government claims that as a result of the 2017 Act reforms, SRE will finally have an appropriate statutory status as a mandatory area of provision.554 While SRE in schools is nowadays uncontroversial in itself and – as long it is provided in an ‘objective, critical and pluralistic’ manner – immune to human 551 For a summary of the legal position in each of the four constituent nations of the UK, see E Renold and E McGeeney, Informing the Future Sex and Relationships Education Curriculum in Wales (Caridff, Cardiff University, 2017) 15–16. 552 See Measor et al n 507 above, 18–30. 553 Children and Social Work Act 2017, ss 34 and 35. SRE has traditionally been provided by schools as part of PSHE (see Ofsted, Personal, Social and Health Education in Secondary Schools, HMI 2311 (London, Ofsted, 2005)), but for legal and policy purposes they are now treated separately. 554 See DfE, Policy Statement: Relationships Education, Relationships and Sex Education, and Personal, Social, Health and Economic Education (London, DfE, 2017).

Sex and Relationships Education and Health Education 363 rights objections by parents, even when based on religious or philosophical convictions,555 it remains one of the more culturally sensitive parts of the curriculum, particularly in its engagement with issues of sexuality and sexual morality. Halstead and Rees explain that the aim of sex education goes beyond that of enabling students to know ‘more about sex’ and ‘includes encouraging certain kinds of skills, attitudes, dispositions, behaviour and critical reflection on personal experience’.556 As such, it has the potential to bring the state into conflict with some minorities where the content is considered incompatible with their cultural values or religious beliefs and traditions, as for example in the reported protests in 2019 by parents in Birmingham about the use of the ‘No Outsiders’ teaching programme intended to promote equality for LGBT people and challenge homophobia, discussed in Chapter 1. There was also a reported threat of legal action by a Christian mother over an anti-homophobic gay pride parade organised by her child’s London primary school in 2018, which she claimed conflicted with her family’s beliefs557 – a conflict which has echoes of the Valsamis case discussed above. Much of the discussion about the content of education at a political level may, as noted earlier, focus on the idea of shared or common values, but Halstead and Reiss say that ‘the biggest problem facing sex educators today is the sheer diversity of sexual values that exist in our society’.558 Even within one faith, Christianity, there are divergent views on issues such as contraception and homosexuality. Thus, as Bradney notes, if a school serves a multi-religious and multi-ethnic local community, ‘there may be widespread differences in what various parents will accept in terms of the delivery and content of sex education’.559 There may be a ‘small but vocal minority of parents’ who consider that SRE ‘should be seen as the responsibility of parents rather than the state’, as the House of Commons Education Committee has explained, while nevertheless also noting that only a tiny number of parents withdraw their children from SRE.560 Parents were given an unconditional right of withdrawal from sex education by the EA 1993,561 a right that continues.562 A mechanism for respecting cultural diversity and family integrity, this parental veto on sex education for their child nevertheless enables parents’ wishes potentially to undermine valuable social and educational goals. However, the relevant biological facts on human reproduction are, as noted above, covered within the National Curriculum, from which there is 555 Based on ECHR, A2P1: see the discussion of Kjeldsen (above n 300) below. 556 J M Halstead and MJ Reiss, Values in Sex Education (London, Routledge Falmer, 2003) 7. 557 H Sherwood, ‘Christian parent threatens legal action over school’s “gay pride parade”’ Guardian (online) 20 Nov 2018, www.theguardian.com/education/2018/nov/20/christian-parent-legal-actionheavers-farm-school-pride-parade. 558 Note 556 above, 5. 559 Bradney n 374 above, 97. 560 House of Commons Education Committee, Life lessons: PSHE and SRE in schools, Fifth Report Session 2014–15 (HC 145) (London, The Stationery Office, 2015) paras 42 and 130. 561 ERA 1988, ss 2 and 17A, as amended or inserted by EA 1993, s 241. 562 EA 2002, ss 80 and 101; EA 1996, s 405.

364 Secular Education in the State Sector: A Curriculum for All? no right to withdraw, although only a minority of secondary schools now have to follow the NC. Even so, there is a risk that the parents objecting to school sex education may withdraw their children from the state schools system altogether if the right of withdrawal is insufficient to uphold their interests. Either way, there is a danger that a minority of children may not receive SRE that the state considers to be both in their interests and those of society as a whole. The right of withdrawal also remains controversial as an issue of children’s rights. A number of key questions arise from it. First, should parents be able to deprive their children of access to knowledge whose fundamental importance to health and safety, both for the child in question and others, is reflected in the statutory prescriptions that have been introduced?563 Or is this a realm of morality and cultural integrity that demands respect for parental autonomy, particularly if religiously or philosophically based? Another question is whether the rights of children, and especially adolescent children, in connection with SRE should be able to trump those of parents in the event of conflicting views, on the basis of the test in Gillick564 or some other test. The right of withdrawal places SRE within the realm of parents’ autonomy rather than children’s independent rights and yet children/young people and the state are clearly the principal parties in the matter of SRE, as the receivers and providers respectively. SRE and the capacity to hold rights in connection with receiving it are fundamental to children and young people’s developing autonomy. SRE can thus be an important site of potential conflict between parents/carers and their adolescent children. The parental right of withdrawal cuts across a number of rights of the child under the UNCRC: the right to education that prepares him or her for ‘responsible life in a free society’,565 the right to health,566 and the Art 12 right to express views and have due weight be given to them.567 It might also subordinate the autonomic interests of children and young people to parental concerns which may not necessarily be compatible with the idea that education should principally be directed towards the best interests of the child.568 It also cuts across the basic statutory requirement, discussed earlier, that the school curriculum should, inter alia,

563 See below. 564 Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112; [2006] 2 WLR 1130. Essentially, the child aged under 16 acquires competence on the basis of having reached ‘a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision’, per Lord Scarman at 188–9. See further A Bainham and S Gilmore, Children: The Modern Law (Bristol, Family Law, 2013) 390. 565 UNCRC, Art 29(1)(d). 566 Article 24. See L Lundy, ‘Schoolchildren and Health: The Role of International Human Rights Law’, in N Harris and P Meredith (eds), Children, Education and Health: International Perspectives on Law and Policy (Aldershot, Ashgate, 2005) 3–28. 567 Note 371 above. 568 Per UNCRC, Art 3.

Sex and Relationships Education and Health Education 365 prepare pupils for the responsibilities and experiences of later life.569 Although SRE seeks to protect young people against health risks and moral danger, it has a wider purpose in trying to influence their behaviour and attitudes in order to ensure conformity to a model of citizenship that, Monk argues, reflects ‘adult concerns, anxieties and projections, both progressive and reactionary, for a particular form of social and sexual order’.570 But SRE also serves the goal of enabling all pupils to have insights into aspects of human behaviour across society and not just within their own culture, in order to gain better social understanding and a more rounded citizenship. In one way or another, these various issues, discussed further below, have been considered in debates as the law has developed. It is important to note also that the developments in SRE policy reflect concerns about children and young people’s welfare that have also prompted an increasing emphasis on health promotion and protection, including in relation to mental health. In a joint report in 2017 the House of Commons Committees on Education and Health, noting that the incidence of stress and anxiety among pupils was increasing, considered that the education system has ‘a front line role in children and young people’s mental health and well-being’.571 Under a government initiative, schools’ role is to be reinforced through both reforms to SRE and PSHE (below) and the provision of mental health awareness training for staff (supported by a discrete central funding allocation).572 In addition, a programme announced in early 2019 and expected to run to 2021, involving up to 370 schools, will trial various approaches to improving children’s mental health, including mindfulness exercises and relaxation techniques.573 National Children’s Bureau research has indicated that while most schools are involved in the promotion of mental health and well-being among pupils, around one third have not been integrating it into the school day and there is a need to build staff capacity in this area.574 It is clear that initiatives of the kind now being pursued are needed. In this regard it is worth recalling that the UNCRC, Art 24(1) requires States Parties to recognise the child’s right to ‘the enjoyment of the highest attainable standard of health’.

569 EA 2002, ss 78(1) and 99(1). 570 Monk n 450 above, 190. 571 House of Commons Education and Health Committees, Children and young people’s mental health – the role of education. First Joint Report of the Education and Health Committees of Session 2016–17 (HC 849) (2017) para 1. 572 See Department of Health and Social Care and Department for Education, Transforming Children and Young People’s Mental Health Provision: a Green Paper (Cm 9523) (2017); and Idem, Government Response to the Consultation on Transforming Children and Young People’s Mental Health Provision: a Green Paper and Next Steps (Cm 9626) (2018). 573 DfE, ‘One of the largest mental health trials launches in schools’, 4 February 2019, www.gov.uk/ government/news/one-of-the-largest-mental-health-trials-launches-in-schools. 574 National Children’s Bureau (NCB), Mental Health Provision in Schools and Colleges: Briefing for MPs (London, NCB, 2017).

366 Secular Education in the State Sector: A Curriculum for All?

B. Regulation and Morality: How the Law on SRE in England Developed Schools’ statutory duty to apply a moral framework on human relationships within SRE is of comparatively recent origin but pre-dates the introduction of a statutory requirement to provide SRE. In the pre-second world war years of the twentieth century there were some highly localised initiatives to provide basic information on sexual matters. There were also various expressions of support for a broader policy on this issue. A model elementary school syllabus covering it was issued by the National Birth Rate Commission in the 1920s.575 The first national educational initiative for promoting sex education in schools appears to have been a 1943 document published by the Board of Education entitled Sex Education in Schools and Youth Organisations. The aims of sex education were in fact guided by public health imperatives, locally determined, until at least the late 1960s.576 By the 1970s many LEAs had developed sex education policies, and sex education had been adopted in most schools.577 But the content of sex education was still determined at school level. Indeed, when the EA 1980 introduced school choice rights for parents, and schools and LEAs were placed under a duty to publish information about schools, including their curricular provision and policy,578 the regulations fleshing out this duty included a requirement to provide information about ‘the manner and context in which education as respects sexual matters is given’.579 This therefore both acknowledged the diversity of sex education provision across the schools sector – itself a reflection of the diverse character of schools as secular, Roman Catholic or Church of England – and the possibility that some parents might have firm views on sex education to the extent that it might influence their choice of school. By the 1980s, schools’ sex education provision was under attack – from those on the Left, who saw it as inadequate in preparing young people for modern life and risks such as teenage pregnancy and sexual diseases, and from those on the Right who, perceiving a moral degeneration of society and fixated on the scourge of welfare dependency by lone parents, wanted to restore traditional values associated with responsible sexual behaviour and marriage as the basis for family life. Sex education in state schools was ‘dominated by political and ideological reaction’.580 The Conservatives’ 1985 White Paper, Better Schools, proposed that within secondary education, ‘health and sex education, taught within a moral framework’ should be provided as ‘a necessary preparation for responsible 575 Measor et al n 507 above, 17. 576 Ibid, 18–19. 577 Ibid, 18. 578 See ch 5. 579 Education (School Information) Regulations 1981 (SI 1981 No 630), Sch 2. 580 S Forrest, ‘Difficult Loves. Learning about Sexuality and Homophobia in Schools’ in M Cole (ed), Education, Equality and Human Rights (London, Routledge Falmer, 2000) 99 at 111.

Sex and Relationships Education and Health Education 367 adulthood’.581 Accordingly, the Education (No 2) Act 1986 introduced a requirement that LEAs and governing bodies should take ‘such steps as are reasonably practicable’ to ensure that school sex education was ‘given in such a manner as to encourage … pupils to have due regard to moral considerations and the value of family life’.582 Government guidance, published in 1987, left little doubt that what was contemplated was a strict moral code of behaviour: sex education should be ‘set within a clear moral framework in which pupils are encouraged to consider the importance of self-restraint, dignity and respect for themselves and others, and helped to recognise the physical, emotional and moral risks of casual and promiscuous behaviour’.583 Stable married and family life was to be emphasised, although it seems to have been recognised that some children would be denied such stability. It was accepted that children in lone parent families following their parents’ separation or divorce might be affected by this moral message and so schools were warned against causing upset to such children.584 The official guidance also dealt with the issue of sexuality. But it was unable to avoid controversy, presaging that which was soon to arise from the ‘clause 28’ reform (noted above) – which banned the local authorities from promoting both homosexuality itself and the teaching in schools of ‘the acceptability of homosexuality as a pretended family relationship’.585 The guidance advised teachers and schools not to advocate homosexual behaviour, present it as the ‘norm’ or encourage homosexual experimentation by pupils.586 When revised guidance was published in 1994587 it omitted these references to homosexuality, but the clause 28 ban remained in force until 2003 (see below). The clause 28 ban and the continuing stress placed on morality, traditional family values and marriage all had the effect of discouraging coverage of homosexuality by schools.588 The 1987 guidance also coincided with the immediate aftermath of the Gillick decision in the House of Lords, which upheld the power of doctors to provide contraceptive advice in the absence of parental consent to a girl aged under 16 if she was of sufficient maturity and understanding.589 The Department’s guidance was arguably unduly dismissive on this issue, claiming that the position of the medical professional as determined by Gillick had no parallel in schools.590 The subsequent guidance, published in 1994, was less categorical on this point, avoiding any specific reference to Gillick. It expressed the view that teachers ‘are not 581 DES n 5 above, para 71. 582 Education (No 2) Act 1986, s 46. 583 DES, Sex Education at School, Circular 11/87 (London, DES, 1987), para 19. 584 Ibid. 585 Local Government Act 1988, s 28, inserting new s 2A into the Local Government Act 1986. 586 DES n 583 above, para 22. 587 DfE, Education Act 1993: Sex Education in Schools, Circular 5/94 (London, Department for Education, 1994). 588 L Bibbings, ‘Gender, Sexuality and Sex Education’ in N Harris (ed), Children, Sex Education and the Law: Examining the Issues (London, Sex Education Forum, 1996) 70–86, 80. 589 Gillick n 564 above. 590 DES n 583 above, para 26.

368 Secular Education in the State Sector: A Curriculum for All? health professionals, and the legal position of a teacher giving advice [on contraception] has never been tested in the courts’.591 That might have been true, but the fact that the issue had not been tested in the courts could not have been regarded as conclusive, and academic opinion diverged from the Department’s conclusion that teachers lacked legal protection if giving advice responsibly within the Gillick ruling’s framework. Both Bainham and Bridgeman, for example, argued that teachers could be protected from criminal liability by the Gillick ruling if giving contraceptive advice to a girl where it was in her best interests, such as to avoid pregnancy or the contraction of a sexually transmitted infection.592 The guidance issued in 2000, which is soon to be replaced (see below), acknowledged that appropriately trained teachers have authority to give advice on contraception to pupils and may discuss this subject in confidence with a pupil aged under 16 provided the pupil is encouraged to talk to their parent about the matter.593 Challenging such guidance by relying on the ECHR, Art 8 (right to privacy and family life) remains unlikely to be successful given the approach taken by the High Court in Axon, where there was a claim arising from the provision of advice and treatment in relation to abortion by medical professionals to girls aged under 16 without parental knowledge or consent.594 Silber J considered that once the young person reaches Gillick competence the parents’ Art 8 right to be notified ‘does not continue’.595 The 2000 sex education guidance, however, omits reference to the child’s maturity and understanding in this context. Schools’ and colleges’ role in providing advice and other support, including condoms, is anyway now also acknowledged by Public Health England’s Teenage Pregnancy Prevention Framework.596 Prior to 1994, when the relevant provisions of the EA 1993 came into effect, it was left to individual schools to decide whether to provide sex education. However, it had already become doubtful that they could avoid teaching this subject. The Departmental guidance published in 1987 had advised schools to offer pupils ‘at least some education about sexual matters’.597 Moreover, under the Education Reform Act 1988 schools were placed under a duty to prepare pupils for the responsibilities and experiences of adult life.598 Also, aspects of human

591 DfE, Education Act 1993: Sex Education in Schools, Circular 5/94 (London, DfE, 1994), para 39. 592 A Bainham, ‘Sex education: a family lawyer’s perspective’ in N Harris (ed) n 588 above, 24–44, at 38; J Bridgeman, ‘Don’t Tell the Children: the Department’s Guidance on the Provision of Information about Contraception to Individual Pupils’ in N Harris (ibid), 45–69, at 57. 593 DfEE, Sex and Relationship Education, DfEE 0116/2000 (London, DfEE, 2000) paras 2.11, 7.10–7.11. 594 R (Axon) v Secretary of State for Health and the Family Planning Association [2006] EWHC Admin 37; [2006] QB 539. 595 Ibid, [132]. 596 Public Health England, Teenage Pregnancy Prevention Framework (London, Public Health England, 2018), 40. 597 DES, Sex Education at School, Circular 11/87 (London, DES, 1987), para 7. 598 Initially under the ERA 1988, s 1(2)(b). See above.

Sex and Relationships Education and Health Education 369 r eproduction were within the NC attainment targets for Science post-1989. Nevertheless, as many as one third of schools in England and Wales did not have a written sex education policy as required by law and there was reported to be widespread confusion among many schools as to what kind of sex education provision they should make.599 The House of Commons Health Committee expressed concern that health and sex education in schools might not be being accorded the priority that was needed.600 Despite these deficiencies, survey evidence at this time indicated that among young people schools were the principal source of information about sex.601 The importance of ensuring that sex education provision was made and that it was effective was reinforced by evidence of the scale of teenage pregnancy, which had led to a governmental target for its reduction.602 The way that sex education was brought more fully within the statutory curricular framework was a little strange but reflected the concern to avoid compulsory participation. It would be included in the basic curriculum for those receiving secondary education, but children would not be forced to receive it if parents were for any reason against it. Pupils’ participation in the NC was compulsory, in the state sector, but the study of sexually transmitted disease was omitted from it. Sex education was defined as including education concerning AIDS/ HIV and ‘any other sexually transmitted disease’,603 a definition later consolidated into the EA 1996.604 It was not an exhaustive definition, therefore, but did include these specified elements. The Secretary of State was placed under a duty to revise the NC so that it did not include these elements or ‘aspects of human behaviour, other than biological elements’.605 The retention of biological elements of sexual reproduction within the NC meant, according to a government minister, that no pupil should leave school without knowledge of them.606 The inclusion of sex education in the basic curriculum for secondary education continued under the EA 2002,607 but it has been essentially non-statutory. Schools (with the exception of academies and free schools) were statutorily required to ensure its availability at the secondary education stage, but the extent of provision to be made has not been prescribed, although following the Learning and Skills Act 2000 schools were required to have regard to any NHS guidance and to the official DfE g uidance.608

599 Sex Education Forum, An Enquiry into Sex Education (London, Sex Education Forum, 1992). 600 House of Commons Health Committee, Maternity Services: Preconception in 1990–91 (London, HMSO, 1993), paras 70–82. 601 I Allen, Education in Sex and Personal Relationships (London, Policy Studies Institute, 1987) 143. 602 Secretary of State for Health, The Health of the Nation – A Strategy for Health in England (Cm 1986) (London, HMSO, 1992) 95. 603 EA 1944, s 114(1), as inserted by the EA 1993, s 241(1). 604 EA 1996, s 352(3). 605 EA 1993, s 241(4). 606 HL Debs, Vol 547, Cols 1290–1291, 6 July 1993, per Baroness Blatch. 607 EA 2002, ss 80 and 101. 608 EA 1996, s 403(1)-(1D) as inserted by the LSA 2000, s 148(3). The guidance shortly to be replaced is in DfEE (2000) n 593 above. It ‘must include guidance about any material which may be produced by NHS bodies for the purposes of sex education in schools’: EA 1996, s 403(1C).

370 Secular Education in the State Sector: A Curriculum for All? Academies and free schools which choose to provide SRE are currently also expected, under the terms of their funding agreement, to follow this guidance. The legal position will soon, however, change quite fundamentally when the relevant provisions of the Children and Social Work Act 2017, discussed below, come into force. They will put SRE on a statutory footing for the first time. This shift in position has followed a prolonged period in which shortfalls in SRE provision have been widely observed609 and there have been numerous calls for reform and several attempts to introduce new legislation on the subject.610 The closest the area came to reform before 2017 was under the previous Labour Government. In 2008, a review of PSHE, the part of the curriculum which generally includes education about drugs, health and lifestyle education, as well as SRE, was undertaken by an External Steering Group, which recommended that it should be made compulsory throughout national curriculum key stages 1–4.611 The Children, Schools and Families Bill would have implemented this change and although parents would have retained the right to withdraw their child from SRE it would not have applied beyond the child’s 15th birthday. The changes would also have covered academies. There was a fair amount of opposition in Parliament to these proposed reforms and the relevant provisions were dropped by the Government in order to ensure the Bill’s passage prior to the imminent general election in 2010. Subsequently there was government resistance to engagement with this subject area and no updating of the 2000 official guidance on SRE.612 There was, however, an internal government review of PSHE in 2013, but it was considered that in order ‘to allow teachers the flexibility to deliver high-quality PSHE’ new standardised frameworks or programmes of study would not be adopted; teachers were ‘best placed to understand the needs of their pupils and do not need additional central prescription.’613 However, political pressure to act grew in the face of continuing evidence from Ofsted and others of the poor quality of PSHE/SRE provision made by many schools.614 As Hall comments, provision had been ‘a day late and a dollar short in terms of the needs and wants of young people to

609 Eg, House of Commons Health Committee, Sexual Health, HC 69–1 (London, TSO, 2003) para 282; Ofsted, Personal, Social and Health Education in Secondary Schools, HMI 2311 (London, Ofsted, 2005) para 45. 610 For example, Caroline Lucas MP private member’s Bill, the Personal, Social, Health and Economic Education (Statutory Requirement) Bill, in 2015. 611 External Steering Group, Review of Sex and Relationship Education (SRE) in Schools (London, DCSF, 2008). 612 From January to April 2010 the Labour Government consulted over new SRE guidance, but the initiative stalled due to the 2010 general election and the 2000 guidance remained in force. 613 DfE, Personal, Social, Health and Economic Education (PSHE) (11 September 2013), www.gov.uk/government/publications/personal-social-health-and-economic-education-pshe/ personal-social-health-and-economic-pshe-education. 614 Eg, Ofsted, Not yet good enough: personal, social, health and economic education in schools (London, Ofsted, 2013).

Sex and Relationships Education and Health Education 371 whom it has been directed’.615 Furthermore, action was prompted by an increasing awareness of the vulnerability of children and young people to abusive sexual relationships through grooming and other forms of exploitation, including via social media/the internet.616 The case for reform was also reinforced by British research evidence showing the benefit of sex education, particularly for girls: compared to other young people, those whose knowledge of sexual matters was primarily derived from sex education at school first experienced sexual intercourse at a later age, and were less likely to engage in unsafe sex and to acquire sexually transmitted diseases.617 The case for education on appropriate sexual behaviour was strengthened by evidence of the number of sexual offences committed in schools, a reported 5,500 between 2012–15, of which one-third involved assaults by pupils on fellow pupils.618 In 2016 the Women and Equalities Committee concluded that good quality SRE has ‘a positive impact in helping to reduce sexual harassment and sexual violence’.619 The Committee added its collective voice to the general call for SRE/PSHE to become a statutory subject.620

C. The Children and Social Work Act 2017 A government amendment to the Children and Social Work Bill resulted in the addition of two clauses, now sections 34 and 35 of the 2017 Act, which form the new statutory framework on ‘Education relating to relationships and sex’621 and ‘Other personal, social health and economic education’ (OPSHE).622 There had been additional pressure to legislate following a joint letter to the Secretary of State from the chairs of five Select Committees calling for government action on these curricular areas.623 Rather than laying down detailed requirements for schools the 615 L A Hall, ‘In ignorance and in Kinowledge: Reflections on the history of sex education in Britain’, in L D H Sauerteig and R Davidson (eds), Shaping Sexual Knowledge: A Cultural History of Sex Education in Twentieth Century Europe (Abingdon, Routledge, 2009) 34. 616 In a YouGov Survey for the PSHE Association, 91% of parents supported SRE as a means to teaching children about the risks of sexting and from strangers online: cited in DfE, Changes to the Teaching of Sex and Relationships Education and PSHE: A call for evidence (London, DfE, 2017) 7. See also E Renold and E McGeeney, Informing the Future Sex and Relationships Education Curriculum in Wales (Cardiff, Cardiff University, 2017) 12. 617 W Macdowall, KG Jones, C Tanton et al, ‘Associations between source of information about sex and sexual health outcomes in Britain: findings from the third National Survey of Sexual Attitudes and Lifestyles (Natsal-3)’ BMJ Open 2015, https://bmjopen.bmj.com/content/5/3/e007837. 618 C Savage, ‘School sex crime reports in UK top 5,500 in three years’, BBC News report (6 September 2015) covering the results of a BBC FOI survey of police forces in the UK, www.bbc. co.uk/news/education-34138287. 619 House of Commons Women and Equalities Committee, Sexual harassment and sexual violence in schools, Third Report of Session 2015–16 (London, The Stationery Office, 2016) para 136. 620 Ibid, para 151. 621 Children and Social Work 2017, s 34. 622 Ibid, s 35. 623 DfE, Policy Statement: Relationships Education, Relationships and Sex Education, and Personal, Social, Health and Economic Education (London, DfE, 2017).

372 Secular Education in the State Sector: A Curriculum for All? Act requires the Secretary of State to make regulations requiring (a) ‘relationships education’ to be provided for children who have reached compulsory school age and receive primary education, and (b) ‘relationships and sex education’ (RSE) to be provided ‘instead of sex education’ within secondary education provision in schools.624 The regulations must also set a requirement that school leaders have regard to the statutory guidance. They must also prescribe, inter alia, the circumstances in which a pupil – or a pupil below a specified age – should be excused from RSE or specified elements of it,625 as discussed below. The DfE expressed a clear commitment to engage with the teaching profession, parents, pupils and relevant experts and voluntary bodies, in framing the regulations and guidance. The timetable for issuing draft regulations and guidance set out in the Policy Statement indicated that the latter would be issued in spring 2018 after the regulations had been promulgated,626 but there was a call for evidence instead, which closed in February 2018.627 The draft regulations and draft guidance, along with findings from the call for evidence, and the DfE’s Impact Assessment, were finally published for consultation in July 2018.628 In February 2019 the DfE published its response to the consultation on these drafts and outlined its approach.629 It also published a revised version of the draft g uidance.630 The regulations (the RESEH Regs) were made in May 2019 and come into force on 1 September 2020 along with the finalised guidance (published in June 2019) (although schools are being encouraged to implement curricular changes before then).631 The regulations will, inter alia, amend the EA 2002 so that the prescribed basic curriculum for maintained schools will include relationships education

624 Children and Social Work Act 2017, s 34(1). 625 Ibid, s 34(2). 626 DfE (2017) n 623 above, 5. By July 2018 neither had appeared. 627 DfE, Changes to the Teaching of Sex and Relationships Education and PSHE: A call for evidence (London, DfE, 2017). 628 DfE, Relationship Education, Relationships and Sex Education (RSE) and Health Education. Guidance for governing bodies, head teachers, principals, senior leadership teams, teachers. Draft for consultation: July 2018 (London, DfE, 2018); DfE, Relationship Education, Relationships and Sex Education, and Health Education in England. Government consultation (including call for evidence response) (London, DfE, 2018); DfE, Relationships education and relationships and sex education. Impact assessment (London, DfE, 2018). 629 DfE, Relationships Education, Relationships and Sex Education, and Health Education in England. Government consultation response (London, DfE, 2019). 630 DfE, Relationship Education, Relationships and Sex Education (RSE) and Health Education. Draft statutory guidance for governing bodies, proprietors, head teachers, principals, senior leadership teams, teachers. (London, DfE, 2019) (‘Draft revised guidance (2019)’), https://assets.publishing.service.gov. uk/government/uploads/system/uploads/attachment_data/file/781150/Draft_guidance_Relationships_ Education__Relationships_and_Sex_Education__RSE__and_Health_Education2.pdf. 631 Relationships Education, Relationships and Sex Education and Health Education (England) Regulations 2019 (SI 2019/924); DfE, Relationships Education, Relationships and Sex Education (RSE) and Health Education. Statutory guidance for governing bodies, proprietors, head teachers, principals, senior leadership teams, teachers (London, DfE, 2019) (‘Relationships and Sex Education Guidance’) (https:// assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/805781/ Relationships_Education__Relationships_and_Sex_Education__RSE__and_Health_Education.pdf).

Sex and Relationships Education and Health Education 373 for those receiving primary education (provided they have reached compulsory school age), RSE for those receiving secondary education, and health education for all pupils.632 Also to be amended are the independent school standards,633 so that independent schools, including academies, will also be expected to provide these elements of education at the same stages, but health education would only be required in academies. School governing bodies of maintained schools and proprietors of independent schools will be required to have regard to the new guidance. ‘Relationships education’ is not statutorily defined, nor is there a definition added by the RESEH Regs. However, the Act requires that guidance is given with a view to ensuring that when relationships education or RSE are provided, pupils learn about ‘safety in forming and maintaining relationships’, ‘the characteristics of healthy relationships’ and ‘how relationships may affect physical and mental health and well-being’.634 The regulations, in addition to prescribing those elements for inclusion in the guidance, also require it to cover ‘the nature of marriage and civil partnership and their importance for family life and the bringing up of children’.635 As noted above, mental health and well-being are covered by a separate government initiative involving schools. The Policy Statement on the 2017 Act reforms indicates that relationships education and RSE will be focused on: • different types of relationships, including friendships, family relationships, dealing with strangers and, at secondary school, intimate relationships; • how to recognise, understand and build healthy relationships, including selfrespect and respect for others, commitment, tolerance, boundaries and consent, and how to manage conflict, and also how to recognise unhealthy relationships; • how relationships may affect health and wellbeing, including mental health; • healthy relationships and safety online; and • factual knowledge, at secondary school, around sex, sexual health and sexuality, set firmly within the context of relationships.636

The new guidance specifies in some detail the areas of knowledge that relationships education and RSE should cover. The need for proper implementation of these elements is reinforced by the results of a survey of 1,001 16 and 17 year olds conducted by the Sex Education Forum in 2018 in which 20 per cent said they had not learnt about LGBT+ issues, 23 per cent had not learnt how to identify when a person is being groomed for sexual exploitation, and 23 per cent had

632 Ibid, Sch para 7, amending s 80 of EA 2002 Act. 633 Ibid, (2019 Regs) Sch paras 10–12, amending the Education (Independent School Standards) Regulations 2014 (SI 2014/3283). Non-maintained special schools will also have to ensure provision of sex education and RSE on this basis: ibid (2019 Regs) amending the Non-Maintained Special Schools Regulations 2015 (SI 2015/728). 634 Children and Social Work Act 2017, s 34(3)(a). 635 SI 2019/924 (n 631 above), Sch para 8, inserting new s 80A, EA 2002 governing the guidance. 636 DfE (2017) n 623 above, 3 (original emphasis).

374 Secular Education in the State Sector: A Curriculum for All? not learnt how to tell if a relationship is healthy.637 In view of the expectations placed on schools regarding RSE there might well have been a case for putting this c urriculum area on an equivalent legal footing to the National Curriculum, discussed earlier. However, schools have been accorded a degree of freedom to adopt their own preferred model for delivery – reflecting their diversity in terms of ethos and need to consider the backgrounds of their pupils. The 2017 Act specifies that the Secretary of State’s guidance must seek to ensure that ‘the education is appropriate having regard to the age and religious background of pupils’.638 On OPSHE, which schools will have to provide at primary and secondary education stages,639 health education is to become part of the basic curriculum for all maintained schools, as noted above, and the draft guidance makes it clear that both physical and mental health and wellbeing are to be covered by schools, including the benefits of fitness, healthy eating, sleep and hygiene and the dangers from smoking and the misuse of drugs and alcohol.640 The Impact Assessment’s Best Estimate of the total cost of implementing the above reforms, including costs related to staff time in assimilating the guidance, lesson planning, consultation with parents, training and adapting school policy, was £28.73 million over a year.641 Despite the statutory prescription of OPSHE and RSE there is, however, still no guarantee that sufficient space will be provided in school timetables for these areas. Curriculum time given to PSHE has been falling in recent years. Recent analysis has revealed that between 2011–17, teacher hours dedicated to PSHE fell by 33 per cent at key stage 3 and 47 per cent at key stage 4; it also reports falls in relation to PE, which is already compulsory up to the age of 16 and yet is another subject where, as with PSHE, teaching hours are being squeezed by schools’ prioritisation of academic exam-related subjects.642

D. SRE, Plurality, Sexuality and Cultural Diversity As noted above, it is the way that SRE or RSE is intended to offer a framework of moral values tied to aspects of private human relationships that makes it such a sensitive part of the school curriculum. While, across society, there is broadly common ground, which has shifted over time, on how such relationships, 637 Sex Education Forum, Young people’s RSE poll 2018 (London: Sex Education Forum, 2018). 638 Children and Social Work Act 2017, s 34(3)(b). See further the discussion of ‘SRE, plurality, sexuality and cultural diversity’ below. 639 Ibid, s 35. 640 Relationships and Sex Education Guidance (2019) n 631 above, 32–35 and 36–38. 641 DfE, Relationship Education, Relationships and Sex Education, and Health Education in England. Government consultation (including call for evidence response) and Relationships education and relationships and sex education. Impact assessment, both n 628 above. 642 H Ward, W Hazell and H Mulholland, ‘Exclusive: Cuts in PE and PSHE prompt pupil health fears’, TES 31 August 2018, www.tes.com/news/exclusive-cuts-pe-and-pshe-prompt-pupil-health-fear. This was based on an analysis of DfE school workforce statistics. Note that there is a GCSE in PE which includes an exam element.

Sex and Relationships Education and Health Education 375 including those with a sexual element, ought to be conducted, there are divergences over some aspects, particularly issues of sexuality and sexual activity outside the context of marriage. As a result, there have been attempts by government to ensure that SRE takes account of the sensitivities of different cultural and especially religious groups, which is seen as particularly important in schools with diverse pupil populations. At the same time, the lack of statutory prescription with regard to the content of SRE has been explained in policy terms as acknowledging the need for schools serving faith communities to offer culturally appropriate provision. Indeed, religion and religious sensibilities have played a significant role in how, and how far, SRE has been regulated.643 Among other things, the moralistic tone surrounding policy reflects orthodox religious principles concerning monogamy and sex within marriage, itself an institution originating within Christian faith and under ecclesiastical law.644 Thus while the 2000 SRE guidance, which by the time the new draft guidance was published had not been updated for nearly 20 years, has sought to adopt a pluralistic approach, it is dominated by the very moralistic tone set by the legislative requirement, noted above, that sex education should be ‘given in such a manner as to encourage … pupils to have due regard to moral considerations and the value of family life’,645 and by the specific requirement that the guidance must be designed to secure that pupils should ‘learn the nature of marriage and its importance for family life and the bringing up of children’.646 These elements are to be retained under the new framework for relationships education and RSE established by the Children and Social Work Act 2017, which as noted above requires them to be a focus of the statutory guidance made by the Secretary of State.647 While the 2000 guidance has acknowledged ‘strong and mutually supportive relationships outside marriage’, it has also advised that pupils should learn the significance of stable relationships along with marriage, as ‘key building blocks of community and society’.648 While, on average, married relationships do tend to be more stable, since cohabiting couples are more likely than married couples to break up,649 this guidance has failed to take account of a social reality that almost half of all births now occur to women who are not married or in civil partnerships, and of these births two-thirds are to people in a cohabiting couple.650 While the new guidance adopts a similar approach it is more expansive on cohabitational

643 R M Vanderbeck and P Johnson, ‘Homosexuality, religion and the contested framework governing sex education in England’ (2015) 37(2) Journal of Social Welfare and Family Law 161. 644 See J M Masson, R Bailey-Harris and R J Probert, Cretney: Principles of Family Law (8th edn) (London, Sweet and Maxwell, 2008), 14–18. 645 EA 1996, s 403(1). 646 Ibid, s 403(1A), inserted by the Learning and Skills Act 2000, s 148(4). 647 EA 2002, s 80A, to be inserted via the 2019 Regulations, n 633 above, Sch, reg 8. 648 DfEE (2000) n 593 above, para 1.21. 649 Law Commission, Cohabitation: the Financial Consequences of Relationship Breakdown (Cm 7182) (London, Law Commission, 2007) para 2.45. 650 Office for National Statistics, Births in England and Wales: 2016 (London, ONS, 2017) 7.

376 Secular Education in the State Sector: A Curriculum for All? relationships and seems to acknowledge their normative status as ‘committed, stable relationships’ alongside marriage or civil partnership, albeit ones offering less legal protection to the respective members. Over the years, specific criticism concerning SRE has been directed at the treatment of gay and lesbian relationships. The 2000 guidance states that ‘there should be no direct promotion of sexual orientation’,651 which can be read either as reflecting previous attempts to proscribe the promotion of homosexual relationships652 or as a deliberate attempt to stress neutrality as between samesex and heterosexual relationships. Nevertheless this guidance also refers to the need to enable young people ‘whatever their developing sexuality’ to feel that the SRE is ‘relevant to them and sensitive to their needs’.653 However, the relative lack of attention it gives to sexuality has meant that the guidance has failed to combat what Monk refers to as some schools’ reluctance ‘to touch the issue of homosexuality in any way’.654 Freeman argues that the UNCRC should be amended to rectify failures such as that in English law on sex education in addressing the needs of gay and lesbian children.655 The issue of gender identity, noted in Chapter 1, has also been ignored but has recently come into greater prominence in the schools context. For example, in 2017 there was considerable media coverage of the reported decision by St Paul’s Girls School in London to permit female pupils identifying as boys to use boys’ names and wear male clothing. The school adopted a process whereby a pupil could receive the school’s formal approval to be considered male or gender neutral.656 It was reported that ten of the school’s sixth form pupils wished to have such recognition.657 Such acknowledgement would be significant because of the relevant pupils’ psychological needs arising from gender identification. Moreover, by offering this kind of recognition a school would be helping to counter the discrimination and stigma experienced by young people with a shifting gender identity or gender dysphoria, as a result of their treatment by others. In 2016 the Government Equality Office announced that £1 million would be made available to tackle homophobic, biphobic and transphobic bullying in schools.658 The House of Commons Women and Equalities Committee has recommended the creation of a ‘statutory obligation … for all

651 DfEE (2000) n 593 above, para 1.30. 652 Eg, via Local Government Act 1988, s 28, or DES, Sex Education at School, Circular 11/87 (London, DES, 1987), para 22. 653 DfEE (2000) n 593 above, para 1.30. 654 D Monk, ‘Challenging homophobic bullying in schools: the politics of progress’ (2011) 7(2) International Journal of Law in Context 181, 203. 655 M Freeman, ‘The Future of Children’s Rights’ (2000) 14 Children & Society 277, 283–4. 656 A Topping, ‘Campaigners hail school decision to let pupils choose gender identity’, The Guardian (online) 19 February 2017, www.theguardian.com/world/2017/feb/19/st-pauls-girls-school-pupilschoose-gender-indentity. 657 Ibid. 658 Noted in House of Commons Women and Equalities Committee, Third Report Session 2016–17 Sexual harassment and sexual violence in schools (HC 91) (2016) para 189.

Sex and Relationships Education and Health Education 377 schools, primary and secondary, to develop a whole school approach to preventing and tackling sexual harassment and sexual violence’.659 Sexuality and transgender issues are among those which experts in this field strongly recommend for inclusion in PSHE,660 but these matters have tended to be omitted from the curriculum due to teachers’ lack of expertise.661 There has been a risk that an area of considerable importance, not least to those young people whose sexuality and gender identity places them in danger of psychological harm due to the attitudes and ignorance of others, may not receive the attention it needs in school education. It is worth noting that the Yogyakarta Principles developed by an international panel of jurists a decade ago include a right to education which ensures, regardless of their sexual orientation or gender identity, that students, staff and teachers enjoy equal access and freedom from discrimination and that ‘education methods, curricula and resources serve to enhance understanding of and respect for, inter alia, diverse sexual orientations and gender identities’.662 In view of the public awareness and the greater openness on these issues it was obvious that the new guidance on RSE would need to give more attention to them than had happened in the past. As was noted in Chapter 1, it recommends that lesbian, gay, bisexual and transgender content, while still a matter for individual schools to determine, including the point at which it is appropriate to introduce it, should be ‘fully integrated into their programmes of study for this area of the curriculum’ and presented with sensitivity and in an age-appropriate manner.663 Sexual orientation and gender identity, within secondary education, should also be covered in a ‘respectful’ way and schools should be mindful that ‘young people may be discovering or understanding their sexual orientation or gender identity’.664 (The first version of the draft guidance referred to ‘coming to terms with’ rather than ‘understanding’, which was clearly inappropriate drafting because it was suggestive of a particular sexual orientation or gender identification as being problematic.) The new guidance is still very sparse on this aspect of the subject but there are suggested resources in an Annex which include teaching materials developed by S tonewall.665 What is significant in the present Government’s approach is that while any aspect of provision must be consistent with its over-arching principles for RSE that ‘teaching must be age-appropriate and developmentally appropriate’,666 there is a clear indication of a need to make

659 Ibid, para 94. 660 See House of Commons Education Committee, Life Lessons, n 560 above, paras 6 and 8. 661 Ibid para 93, citing evidence from Ofsted. 662 The Yogyakarta Principles. Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity (2007), principle 16, www.glen.ie/attachments/The_ Yogyakarta_Principles.pdf. 663 Relationships and Sex Education Guidance (2019) n 631 above, para 37. 664 Ibid, para 75. 665 Ibid, Annex B. 666 DfE (2019) n 629 above, para 10.

378 Secular Education in the State Sector: A Curriculum for All? children LGBT-aware and ensure RSE is relevant to all children including those who are or believe themselves to be LGBT: Pupils should be able to understand the world in which they are growing up, which means understanding that some people are LGBT, that this should be respected in British society, and that the law affords them and their relationships recognition and protections. Pupils growing up in families with LGBT members, or who are beginning to understand that they are or may be LGBT themselves, should feel that Relationships Education and RSE is relevant to them.667

However, while this view is thus presented in the consultation response it is not replicated in the guidance itself, other than perhaps implicitly. This approach may, of course, be antithetical to the values and sensitivities of some religious/cultural groups and thus generate conflict. The Government believes that schools should judge how to respond to the sensitivities of their parents and should involve the parent body in deciding how to cover this issue appropriately.668 This seems little different to the 2000 guidance’s advice on liaising with and reassuring parents and, moreover, similarly fails to indicate how to deal with a conflict of values in this context.669 The amendments to the law under the Learning and Skills Act 2000 included a requirement that the Government’s guidance should be designed to secure that, where sex education is given to pupils at a school, ‘they are protected from teaching and materials which are inappropriate having regard to the age and the religious and cultural background of the pupils concerned’.670 Although the recent SRE reforms seem to be concerned to ensure a more inclusive as well as broader-based approach to relationships education, this legal requirement continues. Aside from the potential risk that the wording could result in the scope of SRE being overly limited in some schools, the use of the term ‘protected’ is problematic. Sex education is implicitly portrayed as a potential threat to cultural and religious values which has had to be dealt with through this direction rather than being trusted to teachers’ professional competence and judgement. It is interesting that there has been no similar attempt to require that sex education is appropriate for pupils who may have vulnerabilities due to other personal factors, such as special educational needs and disabilities (SEND) – particularly arising from emotional and behavioural difficulties –

667 Ibid, para 25. 668 Ibid. 669 This failure of the 2000 guidance is highlighted by D Monk, ‘New guidance/old problems: recent developments in sex education’ (2001) 23(3) JSWFL 271, 286. 670 EA 1996, s 430(1A)(b), inserted by the Learning and Skills Act 2002, s 148(4). As regards the kinds of matters that might prove objectionable to some groups, see Bradney n 374 above, 92–4. In the early 1990s the Government was preparing to advise schools to ‘stream’ sex education classes according to pupils’ individual maturity and knowledge of sexual matters but was heavily criticised, in particular on the impracticability of ascertaining individuals’ degree of knowledge: see ‘Unions condemn streaming of sex education’, The Times, 2 May 1994. The plans were abandoned.

Sex and Relationships Education and Health Education 379 although this broad group was covered specifically in the 2000 guidance,671 and this will continue under the new framework.672 Nevertheless, there seems to be an assumption that the principle of inclusivity in how SRE content is delivered extends to pupils with SEND and that schools will adapt coverage in light of their needs and vulnerabilities. The education of some of these children will anyway be governed by special arrangements for educational provision under education, health and care plans, and while it may be expected that a plan would not generally set out arrangements specifically about SRE, it could do so if the child’s SEND are partly related to sexual behaviour.673 More generally, although referred to in the statutory requirements, cultural or religious background has to date received surprisingly little coverage in the guidance. One reference to it in the 2000 guidance concerns minority communities in which children are less able to talk about sex to their families, so schools may be the only source of their sex education;674 another is the advice that sex education policies must be ‘both culturally appropriate and inclusive of all children … for some children it is not culturally appropriate to address particular issues in a mixed group’.675 There is also a reference to possible concerns among some parents about the coverage of sexual orientation in schools, but this is absent from the new guidance. Yet, as noted above and discussed in Chapter 1, this subject represents a site of potential cultural conflict for schools to resolve. The 2000 guidance advocated consultation with parents to find out what is appropriate and acceptable, and the new guidance refers to consultation with parents and communities over the school’s policy on RSE to ensure that it reflects pupils’ and parents’ needs and community interests.676 There is no suggestion in either guidance that sensitive issues should be avoided; indeed both acknowledge that they will have to be covered by the policy. Research several years ago based on interviews with young people from three minority ethnic communities and with focus groups found a general feeling that SRE in schools rarely takes account of cultural and religious influences on sexual attitudes and behaviour.677 The new guidance advises that in schools with a religious c haracter 671 DfEE (2000) n 593 above, paras 1.26–1.29. 672 Relationships and Sex Education Guidance (2019) n 631 above, paras 33–35. 673 See, eg, M and M v West Sussex County Council [2018] UKUT 347 (AAC); [2019] ELR 43, which concerned a 14-year-old girl who had engaged in sexualised behaviour and sending and receiving explicit images. Her EHCP included special educational provision on enhancing ‘her understanding of stranger danger’ and ‘her understanding of danger/how to keep safe when using technology such as the internet or social media sites’. These are issues that are included in the new SRE guidance. 674 DfEE (2000) n 593 above, para 1.14. 675 Ibid, para 1.25. 676 Note that the governing body of a maintained school must have a policy on sex education: EA 1996, s 404. The Schedule to the Regulations (SI 2019/924), n 631 above, amends the EA 1996, s 404 to restrict this requirement to non-statutory sex education and inserts a new section into the EA 2002, s 80B, to require school governing bodies to have and publish separate written statements on relationships education and RSE. 677 R S French et al, Exploring the attitudes and behaviours of Bangladeshi, Indian and Jamaican Young People in Relation to Reproductive and Sexual Health (London, UCL, 2005), https://webarchive.

380 Secular Education in the State Sector: A Curriculum for All? ‘the distinctive faith perspective on relationships’ may be taught and there can be a ‘balanced debate … about issues that are seen as contentious’.678 More generally, the Government has emphasised that SRE and health education teaching should have respect for pupils’ and parents’ backgrounds and beliefs, although ‘always with the aim of providing pupils with the knowledge they need to prepare them to play a full part in society as responsible adults’.679

E. Sex Education: Withdrawal and the Rights of the Child The parent’s right of withdrawal is intended as a bow to the sensibilities of a minority of parents for whom sex education for their child at school might represent too great an incursion into their family life and be unacceptable having regard to their cultural values. It was considered desirable ‘to give expression to the right of parents to play an important part in determining how their children should be educated in this particularly sensitive area of the curriculum’.680 The right, in s 405 of the EA 1996, has been, and remains, unconditional: parents have never been required to specify any reasons when withdrawing their child. It was considered that the very fact that a withdrawal was made would be indication enough of the parent’s strength of feeling.681 The Education Select Committee recently concluded that it was necessary to retain the right in order that schools are not discouraged from engaging with parents about this subject area, an engagement that was seen as important to ensuring the success of SRE.682 While reasons for withdrawal do not have to be stated, it is reasonable to assume that most, if not all, withdrawals will be culturally motivated, probably on the basis of religion.683 As with the right to withdraw a child from religious education or collective worship, the law has yielded to parental autonomy. As noted above, there is a potential risk to health if the child is not educated about sexual matters, but according to Blair there may be an underlying assumption that the prevalence of early sexual activity will be low among young people from communities whose cultural values are strongly discouraging of sexual activity outside marriage.684

nationalarchives.gov.uk/20110908094642/https://www.education.gov.uk/publications/eOrderingDownload/RW53.pdf. 678 Relationships and Sex Education Guidance (2019) n 631 above, para 21. 679 DfE (Government consultation response) (2019) n 629 above, para 10. 680 HL Debs, Vol 547, Col 1290, 6 July 1993, per Baroness Blatch. 681 Ibid, Col 1291. 682 House of Commons Education Committee, Life Lessons, n 560 above, para 146. 683 HL Debs, Vol 547, Cols 119–120, 21 June 1993, per Lord Stallard. See also Social Exclusion Unit, Teenage Pregnancy, Cm 4342 (London, TSO, 1999) para 5.10: ‘[m]any … parents see this right as an important way of ensuring that their children are brought up in accordance with their faith or culture’. 684 And Blair also bemoans a lack of published UK data on ethnicity and teenage sex to enable it to be tested: A Blair, ‘Calculating the Risk of Teenage Pregnancy: Sex Education, Public Health, The Individual and the Law’ in N Harris and P Meredith (eds), Children, Education and Health: International Perspectives on Law and Policy (Aldershot, Ashgate, 2005) 129–148, 144.

Sex and Relationships Education and Health Education 381 There is perhaps an underlying assumption that education about sex would be provided to the withdrawn child within the family or through religious teaching elsewhere. An independent review of PSHE led by Sir Alasdair Macdonald, published in 2009, recommended that parents who exercise the right of withdrawal should have it made ‘clear to them that in doing so they are taking responsibility for ensuring their child receives their entitlement to SRE through alternative means’.685 Yet it is unclear that all parents would be able or willing to undertake this role. In a survey of 11–25 year olds conducted by the Sex Education Forum, published in 2016, less than half of respondents had discussed with a parent or carer at home questions of sexual consent or the nature of healthy or abusive relationships.686 That does not mean that parents or carers are necessarily incapable of tackling these topics, however, since in some cases the lack of home discussion could have been because these matters had been or were expected to be covered in school. Nevertheless, it does underline the fact that there is no guarantee that parents and carers can and will provide sex education to any child withdrawn from it at school. There is also no certainty that any provision made at home will be effective. In practice, there is widespread support from parents for the provision of sex education in schools687 and the right of withdrawal appears to be little invoked – but there is no national statistical database recording the actual number of withdrawals. The House of Commons Education Committee relied exclusively on comments from the Minister that only ‘a tiny minority’ of parents withdraw their children from SRE.688 Evidence from other sources is now a little dated but is consistent with a paucity of withdrawals.689 Despite this picture there are important issues at stake, particularly those concerned with respecting the independent rights and interests of children, including their right under Art 12 of the UNCRC to be heard on matters affecting them.690 The withdrawal right applies regardless of the pupil’s age or maturity, so even pupils aged 16 plus, who can of course legally give consent to sexual intercourse with another person of that age, could be withdrawn by their parents (but see below). Moreover, as the Bishop of

685 Sir A Macdonald, Independent Review of the proposal to make Personal, Social, Health and Economic (PSHE) education statutory (London, DCSF, 2009) para 51. 686 Sex Education Forum, Heads or Tails? What young people are telling us about SRE (London, Sex Education Forum, 2016) 10. 687 DfE, Changes to the Teaching of Sex and Relationships Education and PSHE: A call for evidence (London, DfE, 2017) 7, citing a Mumsnet survey in which 92% of respondents were in support of compulsory SRE in schools, and DfE (Impact assessment) (2018), n 628 above, para 27, citing an NAHT (National Association of Head Teachers) survey of 1,000 parents, of whom almost 90% favoured a mandatory requirement for relationships and sex education in schools. For earlier research, see NFER, Parents, Schools and Sex Education (London, HEA, 1994). 688 House of Commons Education Committee, Life Lessons n 560 above, para 130. 689 Social Exclusion Unit, Teenage Pregnancy (Cm 4342) (London, TSO, 1999), para 5.10, reporting that around one per cent of parents use this right; and Ofsted, Sex and Relationships (London, Ofsted, 2002) indicating a national rate of four pupils in every 10,000 (0.04 per cent). 690 UNCRC, Art 12, noted above.

382 Secular Education in the State Sector: A Curriculum for All? uildford pointed out, a 16-year-old could lawfully marry but could be denied sex G education.691 In a survey of 16–24 year olds for the Terence Higgins Trust in July 2016, 99 per cent of respondents favoured compulsory SRE for young people.692 Other research has shown that most young people are opposed to the parental right of withdrawal.693 The question of risk surrounds the provision of SRE and the right of withdrawal. The dominant issue concerns the potential exposure of children and young people to increased risks to health and, for girls, pregnancy. Although the UNCRC does not refer to SRE, it specifically requires the state to take appropriate measures to combat disease and to develop family planning education and services.694 At the time that the parental right to withdraw the child was being proposed, various bodies such as the Sex Education Forum and the British Medical Association expressed concern that some young people might be left ignorant about sexual matters or receive incomplete and second hand information from their peers. Given research evidence at that time showing that among young people under the age of 16, 25–35 per cent had experienced sexual intercourse,695 the risks were all too evident. Another risk arising from the exercise of the right of withdrawal is the possibility that the parent might be attempting to prevent the detection of his or her own, or another family member’s, sexual abuse of the child. This risk was highlighted by the NSPCC at the time the 1993 legislation was before Parliament.696 There is also reportedly a danger that attempts could be made by some parents to have children withdrawn from sex education as part of an effort to control girls and enable them to be more easily manipulated into child brideship.697 The issue of risk in the context of SRE is highlighted by Blair and Monk, who suggest that while a right of withdrawal may ‘help to achieve acceptance of a compulsory framework of sex education for the benefit of the many’, that would involve placing society’s needs above the interests of the individual child in view of the risks that arise from it.698 The child of course has a legal as well as a moral case for protection. The legal case for protection is based in part on the argument, raised when the sex education provisions in what became the EA 1993 were being debated in Parliament,

691 HL Debs, Vol 547, Col 1309, 6 July 1993. 692 DfE, Changes (2017) n 687 above, 7. The Youth Parliament also called for this ten years earlier: reported in A Frean, ‘Backlash over sex education failings’, The Times 4 December 2007. 693 L Burghes, ‘Teenage Sex and Sex Education’, Family Policy Studies Bulletin, May 1994; Measor et al n 507 above, 34. 694 UNCRC, Art 24(2)(f). 695 A Miller, Young People: Sex Education and Sexual Activity (Report for BBC North-West) (Liverpool, Liverpool John Moores University, 1994); AM Johnson and others, Sexual Attitudes and Lifestyles (Oxford, Blackwell Scientific, 1994). 696 HL Debs, Vol 547, Col 1295, 6 July 1993. 697 P Morgan-Bentley, ‘Police “turn a blind eye” to child brides’, The Times, 4 August 2018. 698 A Blair and D Monk, ‘Sex education and the law in England and Wales: the importance of legal narratives’, in L D H Sauerteig and R Davidson (eds), Shaping Sexual Knowledge: A Cultural History of Sex Education in Twentieth Century Europe (Abingdon, Routledge, 2009) 37–51, 42.

Sex and Relationships Education and Health Education 383 that the child’s right to education might be denied by the exercise of the right of withdrawal.699 It is true that, as discussed in Chapter 2, the ECHR, the International Covenant on Economic, Social and Cultural Rights and the other international instruments supporting the right to education do not prescribe any basic content of ‘education’. Even the UNCRC, as mentioned above, specifies various matters towards which education should be directed but does not mention sex education specifically, and it is only implied in relation to health.700 As we saw, the ECHR in effect provides only a right to such education as the state decides should be provided,701 although, as Lundy argues, the right to education connotes a right to effective education.702 In Kjeldsen,703 discussed earlier,704 the European Court of Human Rights (ECtHR) held that a state’s policy of compulsory sex education could override parental convictions in the matter of the teaching of their child, notwithstanding the respect for them that is required under the second sentence of ECHR, A2P1. But that does not necessarily imply that the child’s right to education encompasses a right to sex education. This is primarily a matter within the power and competence of the individual state to determine. Furthermore, the parents’ right of withdrawal of their child is not necessarily incompatible with the child’s right to education under the ECHR. Kjeldsen does not have the effect of guaranteeing a child’s right to sex education – although, on the basis that the Court’s decision rested on the fact that Danish sex education was objective, critical and pluralistic, if sex education in England is considered to have those characteristics that would have justified the omission of a right of withdrawal here.705 The fact that the right of withdrawal is granted to parents alone, however, does offend against the principle in Art 12, UNCRC, as discussed above. Decisions about access to sex education may also be considered to fall within the scope of ECHR, Art 8 (the right to privacy and family life), which is engaged by children’s participation in the education system.706 In Dojan, the ECtHR held that the German state’s requirement that fourth grade pupils attend sex education classes interfered with the parents’ Art 8 right but that this was justified within the terms of Art 8(2) on the basis of it being ‘provided for by law and necessary in a democratic society in view of the public interest in ensuring children’s

699 See HL Debs, Vol 547, Col 1321, 6 July 1993. 700 UNCRC, Art 24. 701 See Belgian Linguistics n 411 above. 702 L Lundy, ‘Schoolchildren and Health: The Role of International Human Rights Law’ in Harris and Meredith n 566 above, 3–28, 7. 703 Kjeldsen, n 300 above. 704 Under ‘Can a prescribed national curriculum be reconciled with the notion of parental choice and the accommodation of cultural preferences as a human right?’ 705 J Fortin, Children’s Rights and the Developing Law (3rd edn) (London, LexisNexis, 2009) 226. See also P Meredith, ‘Some Shortcomings in the Provision of Sex Education in England’ in Harris and Meredith n 684 above, 105–128, 126. 706 Belgian Linguistics n 411 above, [7]; Costello-Roberts v UK [1994] ELR 1, (1995) 19 EHRR 112, [36]; see also Folgerø and Others v Norway, n 342 above.

384 Secular Education in the State Sector: A Curriculum for All? e ducation’.707 However, there is also the issue of the child’s Art 8 rights. On the basis of Dojan and Kjeldsen they would not be violated by compulsory sex education. Even if there was religious objection by a child, interference with the Art 9 right on the basis of what would be considered a ‘pressing social need’ would probably be justified within the terms of Art 9(2).708 Reference has already been made to the health risks or risk of pregnancy arising from unprotected sexual activity. These risks were a significant factor in the decision in Axon, noted above, when the Court was considering whether the Government had justification under ECHR, Art 8(2) for the interference with the parent’s Art 8 right, as a result of guidance which permitted girls under 16 to be given advice or treatment in respect of abortion without parental consent or knowledge in certain circumstances.709 The question of conflict between the parent’s and the child’s rights was central to the case as it could be in relation to withdrawal from sex education. As noted above, in Axon Silber J referred to Lord Scarman’s statement in Gillick that the right of parents ‘exists primarily to enable the parent to discharge his duty of maintenance, protection and education until [the child] reaches such an age as to be able to look after himself and make his own decisions’.710 Silber J also referred to Strasbourg case law demonstrating that, if there is a conflict between children’s and parents’ rights under Art 8, the former should be given paramount consideration.711 Therefore, it would seem that both on the basis of the Gillick competence test and by analogy with the position on health advice on sexual matters in light of Axon, children may able to exercise an Art 8 right which would prevail over the parent’s statutory right to withdraw them from sex education.712 Should it be contended that preventing withdrawal, in response to the child’s wishes, would undermine the parent’s right to respect for their philosophical or religious convictions as regards the teaching of their child, for the purposes of A2P1, it is necessary to recall that Kjeldsen713 rejects the argument that compulsory sex education necessarily interferes with that right. Moreover, the parent would not have a case under Art 8 since, as we saw above, in Kjeldsen the ground

707 Dojan and Others v Germany n 303 above, [3]; and Konrad and Others v Germany, n 303 above, The Law [2]. 708 See Williamson, n 317 above, [79] citing Pretty v United Kingdom (2002) 35 EHRR 1 at [70]; and Dojan n 303 above, [3]. 709 Axon, n 594 above. 710 Gillick n 564 above, 185E. 711 Eg, Yousef v Netherlands (2003) 36 EHRR 345, [73]. 712 See also discussion of Re Roddy (a child) (identification: restriction on publication) [2003] EWHC Fam 2927; [2004] 2 FLR 949 in J Fortin, ‘Accommodating Children’s Rights in a Post Human Rights Era’ (2006) 69 MLR 299, especially at 319–21, in which the author explains (at 320) that ‘[s]plicing the Gillick competence test onto article 8 rights suggests that mature teenagers now have complete authority in all matters they fully comprehend’. 713 Kjeldsen, n 300 above.

Sex and Relationships Education and Health Education 385 of challenge to compulsory sex education in Denmark based on the parents’ Art 8 rights was rejected.714 In Axon, Silber J said: if the parents in that case [ie Kjeldsen] had no right to control what information their children should receive on these matters, it is not easy to see how and why they could have a sufficient interest under article 8 to override a young person’s rights to seek to maintain confidentiality in relation to his or her private medical information on sexual matters.715

If the two situations are as analogous as Silber J seems to suggest, then access to information about sexual health through sex education at school should be governed by the same principles as those articulated in Gillick and applied in Axon. As the provision of medical advice is part of the process by which a person is educated about health matters, there is no logical reason why that should be distinguished from education on sexual health provided by schools, particularly given that Gillick is considered applicable to teachers giving advice on contraception, as noted above. While, under the reformed system resulting from the Children and Social Work Act 2017, withdrawal from relationships education at the primary education stage will not be permitted, the Government has accepted the argument that the parental right to withdraw the child from non-NC elements of sex education should be retained, ‘because parents should have the right to teach this themselves in a way which is consistent with their values’.716 However, it has also recognised a need for the right to be circumscribed to reflect the developing jurisprudence on children’s rights and autonomy: ‘case law has moved on since the current right to withdraw was put in place’.717 The intention has been to make provision via regulations made under the 2017 Act for allowing a young person, when he or she ‘has reached an age at which they are mature enough to be competent, to make decisions on their education for themselves’.718 This marks a shift in direction in England towards a more children’s rights-based model for SRE. Assumed competence should be consistent with the notion of evolving capacity under the UNCRC, which is not expressly linked to age, but the DfE has acknowledged that as the age of consent to sexual intercourse is 16, young people ‘should be able to access sex education before that point’.719 However, the amendment to the right of withdrawal, to be made by the new regulations from September 2020, does not refer to age. It simply inserts a caveat to the unconditional right of withdrawal at maintained schools where it forms part of statutory RSE: the child will still have

714 Ibid. 715 Axon n 594 above, [128]. 716 DfE, Policy Statement n 623 above, 4. 717 DfE, Changes, n 687 above, 6. 718 Ibid. 719 DfE, Relationship Education, Relationships and Sex Education, and Health Education in England. Government consultation (including call for evidence response), n 628 above, para 34.

386 Secular Education in the State Sector: A Curriculum for All? to be excused from sex education on parental request, but only ‘unless or to the extent that the head teacher considers that the pupil should be so excused’.720 Independent school standards and the requirements for non-maintained special schools will also be brought into line with the above rule. The change means, therefore, that the head teacher will have to exercise a judgment in individual cases where a request for withdrawal is made. The guidance indicates as ‘good practice’ that a process be adopted whereby the head teacher discusses the request with the parent but also ‘as appropriate, the child to ensure that their wishes are understood and to clarify the nature and purpose of the curriculum’.721 The guidance goes on to stress the value of explaining to the parent the purpose of this part of the curriculum and the potentially detrimental effects that withdrawal from sex education might have for the child, including the social and emotional effects.722 It is nevertheless contemplated that once this process has been completed the parent’s request should be respected ‘except in exceptional circumstances’ (which are not specified).723 However, in what marks a very important recognition of children’s rights in this context, the guidance states that the parent’s request would not have to be respected once the child is within three school terms of his/her 16th birthday and ‘wishes to receive sex education rather than be withdrawn’, although the child should be provided with sex education ‘during one of those terms’.724 It is unclear what the rationale would be for restricting it to one term if other children will receive it for longer. The guidance eschews the application of a Gillick competence test in favour of an assumed capacity at the age of 15. While a clear advance over the current position in acknowledging children’s autonomy and rights, this may be legally questionable in a technical sense by failing to ensure a true test of evolving capacity. Indeed, the guidance’s advice that any special educational needs and disabilities may require consideration by head teachers when making decisions about withdrawal requests725 acknowledges that among pupils, mental capacity is variable. Nevertheless, the approach adopted in the guidance may offer a workable, practical overall framework in which to ensure respect for 15- and 16-year-olds’ wishes. A further children’s rights issue in this context concerns p articipation in the development of school SRE policies. Again it is necessary to refer to the state’s duty under Art 12 of the UNCRC to afford children an opportunity to express their views on all matters affecting them. General Comment No 12 on the right of the child to be heard states that children’s views should be considered when policy is being made, since they ‘may add relevant perspectives and experience’.726 720 2019 Regulations (SI 2019/924) n 631 above, reg 4 (amending EA 1996, s 405). 721 Relationships and Sex Education Guidance (2019), n 631 above, para 45. 722 Ibid, para 46. 723 Ibid, para 47. 724 Ibid. 725 Ibid, para 48. 726 UN Committee on the Rights of the Child, General Comment No.12 (2009) on the right of the child to be heard (CRC/C/GC/12) (Geneva, Switzerland, Centre for Human Rights, 2009) para 12.

Conclusion 387 That principle is applicable, inter alia, to school policies. Prior to the introduction of the 2000 SRE guidance, the Sex Education Forum promoted the involvement of pupils in constructing school SRE policies.727 The evidence indicated that pupils’ views did not generally inform decisions about sex education policies at school level and that in most schools ‘adult views of what is important in a sex education programme were imposed upon pupils’.728 While emphasising the importance of consultation with parents in developing their sex education policies, the 2000 SRE guidance rightly advised schools that the policies should also reflect the views of pupils,729 and this is replicated in the draft revised guidance published in 2019.730 One difficulty with consultation is, however, that pupils from some minority religious or ethnic backgrounds might, for cultural reasons, find it more difficult than others to discuss sex education policy in a school environment. Lundy explains that implementing Art 12 means that children must be given an appropriate ‘space’, and in particular a ‘safe space’ in which to express their views.731 They must be able to express them without fear of ridicule or reprisal. It must also be an ‘inclusive’ space, and here the issue is whether the opportunity to participate is afforded to and facilitated for all, regardless of their background, not least in view of the duty on states to ensure that rights such as those under Art 12 are enjoyed without discrimination on the grounds of race, colour, sex, birth or other status, and so on.732 The right not to participate as a matter of choice should also be respected, but different ways for views to be expressed may need to be sought to assist those who feel inhibited for cultural or other reasons connected to their personal characteristics.

V. Conclusion The role of education in not merely providing a framework of knowledge and skills for young people but also in moulding the future adult citizenry and seeking to combat the many social and personal risks facing young people and society in general is evident in the increasingly broadly-focused content within and regulatory framework governing the secular curriculum in England. With areas such as personal relationships and extremism becoming included within the scope of schools’ statutory educative responsibility we see the boundaries of the formal secular curriculum spreading further beyond academic subject areas. Other areas

727 Eg, Sex Education Forum, Developing and Reviewing a Sex Education Policy. A Positive Strategy (Factsheet 10) (London, Sex Education Forum/National Children’s Bureau, 1994). 728 Measor et al n 507 above, 150. 729 DfEE (2000) n 593 above, para 1.3. 730 Relationships and Sex Education Guidance (2019), n 631 above, para 18. 731 L Lundy, ‘ “Voice” is not enough: conceptualising Article 12 of the United Nations Convention on the Rights of the Child’ (2007) 33(6) British Educational Research Journal 927. 732 UNCRC, Art 2.

388 Secular Education in the State Sector: A Curriculum for All? that teachers now have to cover, such as internet safety and mental health, are also becoming entrenched. The school curriculum is therefore seen as a vital tool in helping to prepare young people for the challenges of modern life. Nevertheless, while a curriculum for all is rightly the ideal, there are difficulties in realising this goal in a very diverse society. Indeed, as it expands into new nonacademic areas, the secular school curriculum – the subject of a range of human rights-based challenges both in the context of the UK and internationally over the years – is likely to become an even greater site of potential conflict, as illustrated by the protests over LGBT education that were highlighted in Chapter 1. Nevertheless, in practice, relatively few disputes seem to arise over the content of education. This could partly be because, viewed from the perspective of most individuals and social groups, needs arising from diversity are accommodated to a sufficient extent within the main part of the statutory school curriculum, while parents retain statutory opt out rights in relation to some of the more sensitive aspects of education. A further factor is that those pupils whose families hold religious, philosophical or cultural views of a more fundamentalist nature constitute a very small minority of the school population, and many of them will be educated within a significantly mono-cultural environment, such as at a private or state denominational school, as discussed in Chapter 8 below. Of course, there are some instances, as illustrated by the Begum case above,733 where what can amount to culture clashes occur and give rise to disputes requiring legal resolution, but they are still relatively uncommon. As the UK population becomes ever more diverse, and minority groups become more confident and assertive, claims around issues of religious freedom and cultural autonomy are, however, likely to increase. Human rights norms may provide states with a ‘framework to meet the challenges of multiculturalism’,734 as McGoldrick suggests, although they do not provide all the answers as regards how best to resolve conflicts in this field. This is particularly so in the UK and elsewhere in Europe, in view of the deference shown by the courts, both nationally and internationally, to the state’s power and autonomy over education policy.

733 Begum,

n 325 above.

734 D McGoldrick, ‘Multiculturalism and its Discontents’ (2005) 5 Human Rights Law Review 27 at 35.

7 Religion in the School Curriculum I. Introduction The UK is not a country where religion is excluded from the state education system. There is no constitutional requirement to separate religion and state in the matter of education, unlike in France and the US (although religious traditions and secularity have nonetheless come into legal conflict in these countries, most notably over religious dress worn by pupils or teachers in France1 and prayers, the display of religious symbols or articles of faith, such as the Ten Commandments, and the teaching of creationism, in schools in the US2). Moreover, there is no tradition of religious neutrality such as one finds in the German Basic Law.3 Such neutrality is also provided for in relation to education in Belgium. The Belgian Constitution states that ‘[t]he community organises non-denominational education. This implies in particular respect for the philosophical, ideological, or religious beliefs of parents and pupils’.4 However, choice is recognised as important and as a result there has been state subsidy in Belgium for schools that uphold v arious religious,

1 See I Michalowski, ‘Legitimizing Host Country Institutions. A Comparative Analysis of the Content of Civic Education Courses in France and Germany’, in J R Bown, C Bertossi, J W Duyvendak and M L Krook (eds), European States and their Muslim Citizens: The Impact of Institutions on Perceptions and Boundaries (Cambridge, CUP, 2014) 164–188, 174–178. See also n 162 below. 2 See, eg, the Supreme Court decisions in Edwards v Aguillard 482 US 578 (1987), rejecting as unconstitutional provision for creation science to be taught whenever evolution was covered (see below), and Stone v Graham 449 US 39 (1980) and McCreary County v Am. Civil Liberties Union, 354 F3d 438 (6th Cir, 2004), where the posting of the Ten Commandments in school buildings (and in areas accessed by the public in court buildings in the latter case) was similarly found to be contrary to the Establishment Clause in the Constitution. See also CJ Russo, ‘Evolution v Creation Science in the US: Can the Courts Divine a Solution?’ (2002) 3 Education Law Journal 152; Idem, ‘The Ten Commandments in American Public Schools: An Enduring Controversy’ (2003) 4 Education Law Journal 90; Idem, ‘Religious Neutrality in Public Schools and Elsewhere: An Assessment of the Supreme Court’s Approach to Posting the Ten Commandments in Public Places in the US’ (2006) 7 Education Law Journal 21; RD Mawdsley, ‘Values Orientation in American Public Schools’, 14 Education & the Law 77; C Hamilton, Family, Law and Religion (London, Sweet and Maxwell, 1995), ch 8; C J Russo, ‘Does the Free Exercise of Religion Have a Future in the Marketplace of Public Education in the United States’, in Idem (ed), International Perspectives on Education, Religion and Law 1–13; M M McCarthy, ‘School Prayer’, in Russo (ibid), 14–27; E Barendt, ‘Teaching Evolution, Creationism, and Intelligent Design in US Schools (With Some European Comparisons)’, in M Hunter-Henin, Law, Religious Freedoms and Education in Europe (Farnham, Ashgate, 2011), 267–81. See also n 161 below. 3 Grundgesentz (Basic Law), Art 4, s 1. 4 Constitution of Belgium (revised after the constitutional revision of 24 October 2017), Art 24.1.

390 Religion in the School Curriculum hilosophical or educational viewpoints.5 The Belgian Constitution guarantees p that schools operated by public authorities will offer a choice between ‘teaching of one of the recognised religions and non-denominational ethics teaching’.6 The Belgian approach is consistent with the idea that the state’s policy on matters of religion should be ‘neutral’ in the sense, as Bielefeldt puts it, of the state ‘not identifying itself with any particular religion or belief ’, in order for it to be seen to guarantee religious freedom on a non-discriminatory basis.7 Choice, in terms of religion or secularity, is also available in the English schools system, in the sense that the presence of religiously-affiliated schools within it, indeed comprising around one-third of schools, enables parents to have the choice of a denominational educational environment for their child, or a secular one in a community school or non-denominational academy. Moreoever, as was discussed in Chapter 3, a growing number of state-funded Muslim, Sikh and Hindu schools have taken their place alongside Church of England, Roman Catholic and Jewish schools. The development of the free schools and academy sector has provided further opportunities for faith schools to receive state funding. Yet even by J anuary 2019 there were, for example, only 31 state-funded Muslim schools in England (with a total of 14,000 pupils)8 and a large majority of Muslim children attend other state schools. Indeed, members of minority faith groups will not always be able to select a school catering specifically for their faith. But, as Walford argues, ‘far from all religious groups actually want separate schools for their children’ anyway: most of them would instead ‘be satisfied if the particular requirements of their faith were respected within common schools’.9 Such wishes may extend into areas such as sex and relationships education, where, as discussed in Chapter 6, programmes may conflict with some of the tenets and values of particular faiths. They may also relate to aspects of school life more broadly, as in the case of mixed classes where a religious tradition may involve segregation of sexes.10 They will be most directly engaged over matters of religious education (RE) and collective worship. The two-thirds of state schools (excluding special schools) in England that are secular in character are nevertheless required to provide RE and ensure a daily act of collective 5 J De Groof, ‘Regulating School Choice in Belgium’s Flemish Community’ in PJ Wolf and S Macedo (eds), Educating Citizens. International Perspectives on Civic Values and School Choice (Washington, DC, Brookings Institution Press, 2004) 157–86. 6 Note 4 above, Art 24.1. 7 H Bielefeldt, ‘Freedom of Religion or Belief: A Human Right Under Pressure’ (2012) 1(1) Oxford Journal of Law and Religion 15, 24. 8 DfE, Pupils, schools and their characteristics 2019 – main tables (DfE, 2019), table 2a, www.gov.uk/ government/statistics/schools-pupils-and-their-characteristics-january-2019. 9 G Walford, ‘Faith-based schools in England after ten years of Tony Blair’ (2008) 34(6) Oxford Review of Education 689, 697. 10 See Osmanoğlu and Kocabas v Switzerland (Application No 29086/12) 10.01.2017, discussed in ch 6, where the ECtHR found no violation of Art 9, ECHR arising from the authorities’ refusal to grant Muslim parents an exemption in respect of their daughters’ participation in mixed swimming classes; and HM Chief Inspector of Education, Children’s Services and Skills v The Interim Executive Board of Al-Hijrah School and Others [2017] EWCA Civ 1426; [2018] ELR 25 concerning a school’s segregation of male and female pupils, discussed in ch 4.

Introduction 391 worship.11 The problem with these arrangements, from the perspective of some minority faith group members, is the pre-eminent position of Christianity within them,12 as discussed below. There is a concern that whilst Christianity is the dominant religious tradition in England its prominence in these elements of schooling is unjustified in modern British society with all its diversity. The inclusion of these religious elements of the school curriculum represents the legacy of the Christian Church’s historical involvement in schooling. They have continued since the EA 1944,13 under which religious instruction was in fact the only legally compulsory school subject. They were preserved, indeed reinforced, under the Education Reform Act 1988, although mostly to reassure religious leaders who were concerned that the introduction of a prescribed national curriculum would marginalise RE and hasten the ‘slide towards secularism’.14 The 1988 Act specified RE as an element of the ‘basic curriculum’ to be provided in state schools.15 Indeed, the law provided for it to extend throughout the school at all stages, although in practice, provision for those aged 16 plus has always been poor and many schools have failed to meet their full legal obligation.16 RE has not been included within the National Curriculum,17 partly because it has always been considered a matter for local determination and not suitable for prescription by the Secretary of State, but also because parents have a right to withdraw their child from it ‘and it was felt that it would be inappropriate to introduce this complication into the newly prescribed list of [National Curriculum] subjects’.18 It was not therefore included in the wholesale review that the National Curriculum underwent post-2010.19 However, a review was subsequently undertaken by the Religious Education Council of England and Wales and resulted in a model framework which has been endorsed by the Secretary of State for Education as a useful basis for RE provision in schools, although is ‘not an official document’ and has no legal status.20 The requirements to provide RE and ensure collective worship in schools are nevertheless statutory and mean that the religious elements of education have a protected place within education law.21 But, in practice, these elements have tended 11 SSFA 1998, ss 69 and 70; EA 2002, ss 80 and 101. 12 See J Garcia Oliva and H Hall, Religion, Law and the Constitution: Balancing Beliefs in Britain (London, Routledge, 2017). 13 See A Bradney, Law and Faith in a Sceptical Age (London, Routledge, 2009) 121–3. 14 S Maclure, Education Re-formed (London, Hodder and Stoughton, 1988) 17. 15 See now EA 2002, ss 80 and 101. 16 See QCA, Religious Education and Collective Worship. An Analysis of 2003 SACRE Reports (London, QCA, 2004) and Ofsted, Religious Education: Realising the potential (London, Ofsted, 2013). 17 The NC is discussed in ch 6. 18 Maclure, n 14 above, 17. 19 See ch 6. 20 Religious Council of England and Wales, A Curriculum Framework for Religious Education in England (Religious Council of England and Wales, 2013), 9, www.religiouseducationcouncil.org.uk. 21 See N Harris and J Garcia Oliva, ‘Adapting to Religious Diversity: Legal Protection of Religious Preference in State-Funded Schools in England’, in C J Russo (ed), International Perspectives on Education, Religion and the Law (New York, Routledge, 2014) 134–54.

392 Religion in the School Curriculum to become marginalised within many schools.22 The principal reasons are the absence of prescribed attainment targets for RE (although there is non-statutory guidance23); the partly separate inspection arrangements for that subject;24 the dominance of the National Curriculum and the demands and pressures it places upon schools to which it applies; and the failure to include RE within the list of EBacc subjects.25 Some schools do not take RE seriously or class it as a low priority.26 Figures gathered by the DfE in 2015, but not published until 2017 when they were disclosed by the National Association for Teachers of Religious Education following a Freedom of Information request, revealed that 26 per cent of secondary schools were not providing RE lessons and the position was worse in academies, 34 per cent of which were not providing RE to 11–13 year olds and 44 per cent not to 14–16 year olds.27 Furthermore, while the ‘spiritual’ development of pupils was identified as a function of state education under the EA 1944,28 continues to be so,29 and is one of the matters on which the Chief Inspector of Schools has always had to report to the Secretary of State,30 it has had a lower profile than other aspects of the school curriculum, particularly in secondary schools.31 It has also been the case that the quality of RE teaching and provision in schools is ‘highly variable’32 and in many schools is poor.33 Even so, its relative popularity at GCSE level has

22 See C Clarke and L Woodhead, A New Settlement: Religion and Belief in Schools (2015), http://faithdebates.org.uk/wp-content/uploads/2015/06/A-New-Settlement-for-Religion-and-Belief-in-schools. pdf and C Clarke and L Woodhead, A New Settlement Revised: Religion and Belief in Schools (2018), http://faithdebates.org.uk/wp-content/uploads/2018/07/Clarke-Woodhead-A-New-SettlementRevised.pdf. 23 DCSF, Religious Education in English Schools: Non-statutory guidance (London, DCSF, 2010). 24 Initially under the Education (Schools) Act 1992, s 13, later consolidated within the School Inspections Act 1996, s 23 and now in the Education Act 2005, ss 47–50. ‘Denominational education’ is distinguished from religious education provided under an ‘agreed syllabus’, which is used in all community schools and some voluntary controlled schools: see below. Denominational education, typically found in voluntary aided schools, is to be inspected by inspectors hired by the schools (the 2005 Act requires the governors first to consult with a prescribed person) rather than by registered inspectors hired by Ofsted. The minister said that ‘[r]eligious education in Church schools has been subject to different arrangements for over 150 years … It would have been a very great break with that long-standing agreement to have required Church schools to use secular registered inspectors for the inspection of their own denominational provision’: HL Debs, Vol 536, Col 684, 2 Mar 1992. 25 See Ofsted, Religious education: realising the potential (London, Ofsted, 2013). The EBacc is discussed in ch 6 under ‘Extending the scope of the National Curriculum’. 26 Ibid (Ofsted), para 26. 27 Reported in A Strangewayes-Booth, ‘Schools break the law on religious education, research suggests’ BBC News report 17 Sept 2017, www.bbc.co.uk/news/education-41282330. 28 Being something towards which a local education authority was under a duty to contribute: EA 1944, s 7. 29 EA 1996, s 13 (the local authority’s duty, previously in the EA 1944, s 7); EA 2002, s 78 (the requirement that the school curriculum should promote the spiritual development of pupils and society). 30 EA 2005, ss 2(1)(e) and 20(1)(e). 31 Ofsted, The Annual Report of Her Majesty’s Chief Inspector of Schools 1995/96 (London, TSO, 1997) para 86. 32 Commission on Religious Education, Final Report. Religion and Worldviews: The Way Forward. A national plan for RE (London, Religious Education Council of England and Wales, 2018) para 11. 33 Ofsted n 25 above.

Introduction 393 continued. In 2017, for example, there were almost 300,000 entries for Religious Studies GCSE, the highest number after entries in the three core subjects.34 There is essentially a dual rationale to the inclusion of religion within the curriculum of schools. It firstly acknowledges the place of religion in society and, in particular, the fact that faith and belief ‘for many people forms a crucial part of their culture and identity’.35 Since schools have an obligation to prepare pupils for life as citizens within their own local communities but also wider society, one or both of which will be culturally diverse, some understanding of religion and belief is considered important. Indeed, there has been a growing acknowledgement that knowledge of religion – or perhaps especially religions – can be a force for social cohesion and improved respect for others, by broadening pupils’ cultural awareness and promoting positive values in addition to inculcating spiritual awareness. Ofsted, for example, considers that RE ‘promotes the virtues of respect and empathy, which are important in our diverse society’.36 In that sense, RE is serving a secular purpose, but also a partly moral one, in terms of promoting awareness, understanding and respect of or for others, thus contributing through the instillation of particular values. Secondly, it acknowledges schools’ normative role in developing or enhancing children’s spiritual awareness and knowledge of their own religion (if any), albeit alongside their understanding of other faiths. In this sense, particularly in denominational schools where a specific faith tradition is reinforced, schools’ role in social reproduction extends to underpinning the preservation of communities based around a particular religion. The DfE argues that RE ‘enables pupils to build their sense of identity and belonging’ and that they are thus able to ‘flourish within their communities’ although without compromising their capacity as ‘citizens in a diverse society’.37 The inclusion of religion in schools as a socialising tool seems to be considered by far the more important of the two aspects, particularly in view of the increased concern about growing inter and intra community tensions. As the report of the Commission on Religion and Belief in Public Life saw it, ‘it is in schools and colleges that there is the best and earliest chance of breaking down ignorance and developing individuals who will be receptive of the other … This is vital … for a fairer, more cohesive society.’38 This argument generally seems to hold sway, although there are some who argue that the inclusion of religion in schools offers a divisive influence and that its place is exclusively in the home and local community. Humanists UK, for example, would prefer, in place of RE, ‘a broader subject that enables young people to consider fundamental philosophical questions,

34 Tables – Summer 2017 exam entries GCSEs, etc, www.gov.uk/government/statistics/summer-2017exam-entries-gcses-level-1-2-certificates-as-and-a-levels-in-england. 35 DCSF n 23 above, 6. 36 Ofsted n 25 above, 4. 37 DCSF n 23 above, 8. 38 The Rt Hon Baroness Butler-Sloss (chair), Report of the Commission on Religion and Belief in Public Life (Cambridge, The Woolf Institute, 2015) para 4.24.

394 Religion in the School Curriculum including those related to both religious and non-religious beliefs.’39 The majority viewpoint is that including aspects of religion and belief is necessary to reflect their continuing place in society, although they need to reflect the religious and cultural diversity within the national population, and that RE in school affords a valuable space in which to promote respect and tolerance.40 This approach is an integral influence on the curricular framework for RE developed by the Religious Education Council for England and Wales, noted above, which places an emphasis on ensuring a broad knowledge of different religions, faith traditions and world views.41 There is a growing recognition that humanist beliefs should be included alongside those of individual religions.42 Notwithstanding these debates, ideas and proposals about the place and content of religious provision within schools, the law is somewhat settled and has not been altered for over 20 years. There have, however, been important developments in the courts. We have already seen, in preceding chapters, how religion has formed the context to some of the more prominent human rights cases regarding education, but in the case of RE and collective worship the parental right of opting out their child (and the right of young people aged 16 plus to opt out of collective worship at school) have greatly reduced the risk that families in England will litigate over these matters. Nonetheless, in Fox,43 an important case decided in 2015, a group of parents pursued to the High Court their objections to the Secretary of State’s determination that the new GCSE Religious Studies syllabus met the statutory requirements for RE for the pupils who studied this subject. The judgment is discussed below along with the statutory framework for RE. Following that there is consideration of the law on collective worship. The issue of creationism or ‘intelligent design’ is discussed separately to RE, because while having a religious dimension it inter-relates with Darwinism and evolution which in themselves belong to the secular curriculum.

II. Religious Education A. The Content of RE There has always been an accommodation on the basis of religious denomination or secular status within the requirements for RE in England’s state schools. An

39 https://humanism.org.uk/campaigns/schools-and-education/school-curriculum/. 40 See, eg, ‘The Guardian view on religious education in schools: don’t trash it, transform it’, Editorial, The Guardian (online) 14 June 2015, www.theguardian.com/commentisfree/2015/jun/14/ guardian-view-on-religious-education-in-schools. 41 Religious Council of England and Wales n 20 above, 9. 42 See, eg, Clarke and Woodhead (2015), n 22 above, 39. 43 R (Fox and Others) v Secretary of State for Education [2015] EWHC 3404 (Admin); [2016] ELR 61.

Religious Education 395 ‘agreed syllabus’ for religious education has to be drawn up for the area,44 as was required under the EA 1944, and this syllabus is to be followed by community schools and by foundation and voluntary schools which have not been designated as having a religious character. Foundation and voluntary controlled schools with a religious character are also required to follow the agreed syllabus, except in the case of children whose parents who want their child to be taught in accordance with the trust deed or the tenets of the religious denomination concerned.45 In the case of voluntary aided schools with a religious character, the assumption is that the pupils will be taught RE that accords with the school’s trust deed or its religious denomination, but these schools must normally46 teach the agreed syllabus to any child whose parent requests it, provided the parent cannot with reasonable convenience send the child in question to a school where the agreed syllabus is in use.47 In the case of academies, the requirements for RE are specified in their funding agreements with the DfE rather than in the legislation, but the obligations contained in the model funding agreement refer specifically to the relevant statutory provisions applicable to other schools and therefore in effect tie academies to them. Thus academies which do not have a religious character are expected to follow the locally agreed syllabus. Faith academies which are linked to a specific denomination, whether one of the Christian denominations or for example Jewish or Muslim, are to pursue a denominational syllabus, while faith academies which are not linked to a specific denomination – for the most part Christian faith academies – may chose the locally agreed or a denominational syllabus, depending on what the sponsor (if there is one) wishes or the Department agrees to.48 The agreed syllabus is to be drawn up by a local conference of representatives of the following prescribed groups: A. Christian and other denominations that, in the opinion of the LEA, ‘will appropriately reflect the principal religious traditions in the area’; B. representatives of the Church of England, in England only; C. teaching association representatives; and D. local authority representatives.49 The conference is referred to by the DfE as the ‘agreed syllabus conference’ (ASC). There is no specific membership category for persons whose beliefs are philosophical rather than religious, such as humanists. In practice, however, in some local authority areas they are involved in the process of syllabus determination. The non-statutory guidance acknowledges that the ASC has no legal power to co-opt members, but confirms that the conference may seek advice from appropriate

44 SSFA

1998, Sch 19. para 3. 46 Ie, unless there are special circumstances making it unreasonable to do so: ibid, para 3(3). 47 Ibid, para 4. 48 See DCSF n 23 above, 15–16. 49 EA 1996, Sch 31, para 4. 45 Ibid,

396 Religion in the School Curriculum persons or organisations. Under the EA 1996, any of the prescribed groups apart from the local authority group may require a review of the agreed syllabus to be carried out by the ASC.50 Under the Education Reform Act 1988 there was a transition period between 1988 to 1994 during which all existing agreed syllabuses had to be reconsidered by the local conference.51 Any new syllabuses must now be drawn up by the ASC and may be reconsidered by it at the instigation of the local authority.52 Each ASC is in any event required to convene every five years to give consideration to the agreed syllabus.53 The ASC is distinct from the local standing advisory council on religious education (SACRE) which, inter alia, gives advice to the local authority on RE under the agreed syllabus and other RE syallbuses.54 The SACRE is comprised of the same representative groups as the ASC,55 but the SACRE and ASC are not required to have common membership. The City of Birmingham’s SACRE provides an illustration of how SACREs may be composed. In its Group A, reflecting Christian and other religious traditions in the area, there are 20 representatives of whom three are Roman Catholic, seven Muslim and one each of Sikh, Jewish, Hindu, Buddhist, Methodist and United Reform Church denominations, plus four drawn from other Christian denominations. The numerical balance between these groups was intended to reflect their representation within the local population as determined with reference to the 2011 Census and the British Social Attitudes Survey 2009. Group B comprises six Church of England representatives. Group C contains 11 representatives drawn from five teaching associations, and there are eight local authority representatives. Birmingham’s SACRE is therefore a sizeable body with an overall total of 45 members.56 Although the ASC has autonomy over the local agreed syllabus, the 1996 Act sets out two specific requirements governing its content. First, it must not require pupils to be given RE ‘by means of any catechism or formulary which is distinctive of a particular religious denomination’ – a provision which dates back to the EA 1944.57 As Sandberg and Buchanan say, RE is to comprise ‘the study of religion rather than a study in religion’.58 Secondly, it requires that agreed syllabuses ‘reflect the fact that the religious traditions in Great Britain are in the main Christian whilst taking account of the teaching and practices of the other principal 50 EA 1996, s 391. 51 The Education Act 1993, s 254, reinforced this by requiring the conference to be reconvened within 6 months of the coming into force of the section. 52 EA 1996, s 375 and Sch 31. 53 EA 1996, Sch 31, para 2. 54 EA 1996, s 391. 55 EA 1996, s 390(4). 56 The constitution of the Birmingham SACRE is set out at www.faithmakesadifference.co.uk/sites/ faithmakesadifference.co.uk/files/SACRE%20Constitution%202013%20FINAL.pdf. 57 EA 1944, s 26. 58 R Sandberg and A Buchanan, ‘Religion, Regionalism and Education in the United Kingdom: Tales from Wales’, in M Hunter-Henin (ed), Law, Religious Freedoms and Education in Europe (Aldershot, Ashgate, 2011) 107–32, 110 (original emphases).

Religious Education 397 religions represented in Great Britain’.59 This requirement was first introduced under the Education Reform Act 1988.60 The wording was and remains curious, since it appears to represent an attempt to justify on some factual basis the emphasis the law is placing on Christianity. Cooper argues that the specific promotion of Christianity reflected a general attempt by the Christian Right and conservatives to castigate multiculturalism as jeopardising a sense of English culture and Christian identity.61 It has remained controversial in a multi-faith society as reflecting the ‘hegemonic position of Christianity within the education system’.62 However, there have been continuing attempts by government, going back as far as its 1994 circular, to downplay the apparent predominance of Christianity by stressing that other religions should also be covered.63 The multi-faith approach was also reflected in the non-statutory guidance issued in 2004, which adopted a theme of ‘learning about religion’, covering ‘pupils’ knowledge and understanding of individual r eligions and how they relate to each other as well as the study of the nature and characteristics of religion’.64 Leaders of Buddhist, Christian, Hindu, Jewish, Muslim and Sikh faiths signed a joint statement in February 200665 backing teaching about other faiths and committing faith schools to using the nonstatutory guidance, which at that time recommended that for 7–13 year olds RE should cover knowledge, skills and understanding of not only Christianity but also at least two other religions and, if considered appropriate for inclusion, a secular world view. The joint commitment to the non-statutory framework was re-iterated in a further joint statement the following year, on the role of faith schools, Faith in the System.66 The current non-statutory guidance, introduced in 2010, continues the approach of the 2004 guidance, advising that ‘[t]he study of religion should … provide an appropriate balance between and within Christianity, other principal religions, and, where appropriate other religious traditions and worldviews’.67 While the precise content of RE has remained a matter for local ASCs and for local faith communities and schools, there are proposals for change. The Commission on Religious Education proposed in an interim report in 2017 that there should be a flexible national framework based on a ‘National Entitlement for Religious Education’, which would not involve a nationally prescribed curriculum but rather a ‘basic statement of what pupils are entitled to, whatever type of 59 EA 1996, s 375(3). 60 ERA 1988, s 8(3). 61 D Cooper, Governing Out of Order. Space, Law and the Politics of Belonging (London, Rivers Oram Press, 1998) 50–71. 62 S Jivraj, The Religion of Law. Race, Citizenship and Children’s Belonging (London, Palgrave Macmillan, 2016), 125. See also R Sandberg, Law and Religion (Cambridge, CUP, 2011), 159–160. 63 DfE, Religious Education and Collective Worship, Circular 1/94 (London, DfE, 1994), para 35. 64 DfES, Religious Education: The Non-Statutory National Framework (London, DFES, 2004) 10. 65 See BBC News Report ‘Faith schools broaden RE teaching’, 22 Feb 2006, at http://news.bbc. co.uk/1/hi/education/4736810.stm. 66 DCSF, Faith in the System. The role of schools with a religious character in English education and society (London, DCSF, 2007). 67 DCSF (2010) n 23 above, 23.

398 Religion in the School Curriculum school they attend’.68 In the Commission’s final report it proposes that the National Entitlement would relate to a new statutory subject area, which would replace RE in schools and would be known as Religion and Worldviews, to be taken by all pupils up to the age of 16 and with an option to pursue it post-16.69 It would focus on the impact and significance for individuals and societies of these perspectives to life and would encompass a plurality of worldviews,70 including non-religious world views such as Humanism, Atheism and Secularism. Schools would have some flexibility over the way the National Entitlement was delivered (although the report considers that voluntary aided schools may also have to ensure provision of RE in accordance with their trust deed), but there would be non-statutory programmes as a ‘national benchmark of good practice’71 to be drawn up by a new national expert body. ASCs would not be needed and would be abolished. The relative flexibility within the Commission’s framework may be contrasted with the more centralised vision of Clarke and Woodhead, who have proposed that in place of locally agreed syllabuses there should now be a national syllabus for RE at Key Stages 1–3, determined on the advice of a new national SACRE.72 Such centralised arrangements would have the benefit of ensuring that there is a more consistent and established multi-faith approach. Retaining a representative body such as this would also help to maintain the trust and support of religious groups, although there would be no guarantee that its membership would reflect the representation of different faith groups in some areas. In a revised version of their proposals, published in 2018, Clarke and Woodhead recommend that this national body should be an ‘Advisory Council on Religion, Belief and Values’ and it should determine the RE syllabus for schools.73 The Council would be comprised of 12–15 people with relevant expertise, appointed by the Secretary of State but with a requirement of independence. There would be representation of different faiths and beliefs, including humanism. As with the National Curriculum, the content of the curriculum for RE – or rather Religion, Belief and Values (RBV), as they would prefer it to be renamed (to ensure it better reflects modern society and changed views of the subject) – would be enshrined in law via regulations. Clarke and Woodhead argue that this would ensure that RE is accorded a proper academic status. At the same time, the syllabus should, they

68 Commission on Religious Education, Interim Report. Religious Education for All (Commission on Religious Education, 2017), 11, www.commissiononre.org.uk/wp-content/uploads/2017/09/ Commission-on-Religious-Education-Interim-Report-2017.pdf. 69 Commission on Religious Education, Final Report. Religion and Worldviews: the Way Forward. A national plan for RE (London, Religious Education Council of England and Wales, 2018), www. commissiononre.org.uk/wp-content/uploads/2018/09/Final-Report-of-the-Commission-on-RE.pdf. 70 The Commission explains that ‘“worldview” is an overarching conceptual structure, a philosophy of life or an approach to life which structures how a person understands the nature of the world and their place in it: ibid, App 2, para 1. 71 Ibid (main report), para 50. 72 Clarke and Woodhead (2015) n 22 above, 39. 73 Clarke and Woodhead (2018) n 22 above, 17.

Religious Education 399 argue, be a fairly simple one and give schools and teachers creative opportunities and to enable RE to be connected to local faith and belief communities.74 Perhaps the most far reaching aspect of the proposals is the recommendation that even faith schools should be required to follow the new prescribed curriculum. The argument is not based on any specific concern about the syllabuses followed by such schools, other than perhaps a minority where ‘a particular brand of belief is promoted at the expense of others’,75 but rather the idea that priority should be given to the unifying and socially cohesive properties of a common RBV syllabus. Clarke and Woodhead also refer to the public funding given to faith schools, which is of course often cited in the much bigger argument, centred on school admissions and choice of school, about the exclusivity of some faith schools and whether it is appropriate for taxpayers, regardless of their religious affiliation (or lack of one) and wish to do so, to fund schools available to only to specific segments of society.76 Clarke and Woodhead’s argument is that to ensure continued public support for state funding of faith schools there may need to be assurance, through the proposed form of regulation, that ‘religion is taught in accordance with the inclusive values which the country as a whole shares’.77 They also recommend that independent schools should be required to follow the national syllabus, again in the interests of ensuring such values are promoted.78 The likely opposition of religious bodies such as the Catholic Church to the loss of their autonomy over RE in their schools is anticipated by Clarke and Woodhead. This is of course a highly sensitive issue for religious bodies, who are likely to be fiercely resistant to complete loss of control over the content of RE in their schools, even if willing to some extent to embrace a wider focus to the subject. Ultimately, this is a matter for government and on issues of state and religion there is considerable caution against radical change. The settlement between the state and the religious bodies that was reflected in the EA 194479 has been sustained through the many periods of education reform since then. The current Government, at least, may consider that the recent legislation and policy on the promotion of British values in schools, including independent schools, may represent a sufficient incursion to advance wider social interests. In his response in December 2018 to the Commission on Religious Education’s proposals on Religion and Worldviews, above, the Secretary of State explained that the Government did not think it was the right time to make the radical change the Commission was recommending, because of the burden that preparation for and implementation of the change would have for schools and in light of the Government’s

74 Ibid, 17. 75 Ibid, 22. 76 See J M Halstead, ‘In defence of faith schools’, in G Haydon (ed), Faith in Education. A Tribute to Terence McLaughlin (London, Institute of Education, 2009) 46–67, 63–66. 77 Clarke and Woodhead (2018), n 22 above, 17. 78 Ibid, 23. 79 See ch 3.

400 Religion in the School Curriculum commitment to reduce teacher workload.80 It is perhaps a smokescreen argument, however, since these issues have not inhibited other reforms (most notably, of relationships education and sex education, discussed in Chapter 6). At key stage 4, many pupils pursue Religious Studies (RS) as a GCSE course, as noted above. GCSE syllabuses are national although tend to offer schools a degree of choice with regard to the topics studied. A question arose when a revised GCSE syllabus in this subject was published a few years ago as to whether providing an RS course would enable schools to satisfy their statutory obligation concerning the provision of RE for the pupils concerned. The proposed GCSE syllabus involved, inter alia, the possible selection of two religions for study; also included were an understanding of key texts and sources of authority supporting faiths and an understanding of the impact of religion on individuals and society. There was no reference to humanism and this provoked objection, including from three parents who (along with three other claimants, their children) pursued a legal action against the Secretary of State for Education in 2015: R (Fox and Others) v Secretary of State for Education.81 The claim was directed at the assertion by the Secretary of State that the content of the revised syllabus, which was due to take effect in 2016, was ‘consistent with the requirement for the statutory provision of religious education in current legislation as it applies to different types of school’. Since humanism was excluded from the syllabus, it was the claimants’ contention that the syllabus content, combined with the Secretary of State’s assertion, gave priority to the teaching of religious views and that this was unlawful because the state had a duty to cover religious and non-religious views on an equal footing. The revised syllabus was based on a programme of study in which study of two religions would comprise either 50 per cent or 75 per cent of the content. The remaining 50 per cent or 25 per cent of the programme would be based on the study of selected ‘themes’ via either a textual approach or a ‘religious, philosophical and ethical studies in the modern world’ approach. The themes are set out in detail in the judgment of Warby J.82 Warby J rejected a contention that the application was premature or speculative. He said it was ‘beneficial to good administration for the issues to be confronted now, when critical choices have not yet been made’.83 He accepted that the Secretary of State’s assertion would lead persons to conclude that the Religious Studies GCSE enabled schools to fulfil their statutory RE responsibility.84 The claimants argued that the assertion was incorrect in that respect and there was a risk of denial of the right to education under ECHR, A2P1. Warby J

80 Letter to the chair of the Commission: www.religiouseducationcouncil.org.uk/news/governmentresponse-to-the-commission-on-re/. 81 Note 43 above. The action had originally been led by the British Humanist Association but it was refused permission to apply for judicial review because it lacked standing. 82 Ibid, [50]. 83 Ibid, [59]. 84 Ibid, [64].

Religious Education 401 said he did not doubt that the Religious Studies GCSE specification might be capable of satisfying the statutory RE requirement, but the question was whether it would do so. He said that the answer was that it would not and so the assertion was ‘materially misleading’.85 He did accept that, even though the Strasbourg case law (such as Folgerø86) demonstrated that it was not inconsistent for a state to give priority to a particular religion if doing reflected the prominent place the religion held in the state and in its history, the Religious Studies syllabus did not prescribe Christianity as one of the two religions to be studied. Also, there was scope in the other part of the syllabus for coverage of non-religious beliefs. Nevertheless, the syllabus also provided considerable scope for the absence of a study of such beliefs. Either way, it was wrong to assert that the GCSE would fulfil the entirety of the statutory RE obligations.87 It was a proposition that represented ‘a breach of the duty to take care that information or knowledge included in the curriculum is conveyed in a pluralistic manner’.88 The assertion would mislead schools because it might be necessary, in order to meet the statutory obligations, for them to make some additional provision.89 The judge was keen to stress, however, that the Religious Studies GCSE syllabus itself was not legally flawed. Although the Fox ruling turned on a narrow and technical point it confirmed that coverage of non-religious beliefs should form an element of RE for pupils studying GCSE Religious Studies. If their GCSE syllabus omits coverage of such beliefs then that area of knowledge should be provided by alternative means by schools. The DfE considers that it is not necessary for non-religious world views to be covered at key stage 4 specifically, as long as there has been sufficient attention given to them across the key stages as a whole.90 This does not seem consistent with Warby J’s conclusion that ‘the complete exclusion of any study of non-religious beliefs for the whole of Key Stage 4, for which the subject content would allow, would not be compatible with A2P1’ (referring here to the right to education on the basis of teaching that is pluralistic in approach).91 But the ruling also confirms that non-religious views do not require equal coverage or time in the RE syllabus to those of religious views.92 The debate will continue as to whether this is appropriate and whether young people should be given the opportunity to study

85 Ibid, [68]. 86 Folgerø and Others v Norway (Application No 15472/02) [2007] ELR 557. 87 Fox n 43 above, [75]. 88 Ibid, a conclusion clearly drawing on the Kjeldsen ruling (Kjeldsen, Busk Madsen and Pedersen v Denmark 1 EHRR 711 (1976)), previously cited by the judge at [27]. 89 Note 43 above, [81]. 90 DfE, Guidance for schools and awarding organisations about the Religious Studies GCSE (December 2015), https://assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/488477/RS_guidance.pdf. 91 Fox n 43 above at [74] and see also [75]. 92 The Secretary of State was reported to have insisted in the wake of the judgment that schools could ‘prioritise religion over atheism’: N Johnston, ‘Christianity given priority in religious study lessons’, The Times, 28 Dec 2015.

402 Religion in the School Curriculum a syllabus in which there is a closer balance between religious and non-religious beliefs if that is what they prefer.93

B. The Right of Withdrawal from RE Parents are permitted to withdraw their children from religious education (and also collective worship: see below) at school and may also have them receive a particular form of such education away from the school premises but during school hours (provided it is at the beginning or end of a school session).94 Exercise of the right of withdrawal seems to be reasonably commonplace across schools at the present time, albeit involving small numbers of pupils, if one extrapolates from the results of Lundie’s survey to which 312 schools in England responded.95 Lundie found that in just over 30 per cent of schools at least one child was currently exempt from RE or collective worship (unfortunately he does not report separate figures for RE and collective worship on this point), although there were less than 6 per cent where more than three pupils were exempt.96 Lundie and O’Siochru report more recently that out of 450 schools responding a survey in England, just over 70 per cent had at some point in time received a request for a full withdrawal from RE and just over 40 per cent had experienced requests from parents seeking withdrawal from part of the subject.97 Lundie also found quite a high level of confusion among school leaders with regard to right of withdrawal, including nearly one in ten who wrongly considered that it was compulsory for all children to follow core RE in school.98 The element of choice provided for by the parent’s statutory right of withdrawal is consistent with the right to determine their child’s religion and religious upbringing as a facet of parental responsibility99 and, as explained below, the human right to religious freedom both generally and in the specific context of education. On the issue of parental responsibility, if there is a clash between a child’s parents over the question of the child’s participation in RE lessons, resolution of it could be necessary via the Children Act 1989 framework.100 As regards the child’s position,

93 As argued by S Bacquet, ‘Non-Religious Views in the RE School Curriculum: What Can we Learn from R (Fox and Others) v Secretary of State for Education?’ (2016) 17(1) Education Law Journal 11. 94 SSFA 1998, s 71(1), (3), (4). In the case of academies this right is contained in the obligations of the school under the funding agreement with the DfE. 95 D Lundie, Religious Education and the Right of Withdrawal (Liverpool, Liverpool Hope University, 2018). 96 Ibid, 4. 97 D Lundie and C O’Siochru, ‘The right of withdrawal from religious education in England: school leaders’ beliefs, experiences and understandings of policy and practice’ (2019) British Journal of Religious Education (advance online publication: httpps://doi.10.1080./01416200.2019.1628706), 6. 98 Lundie (2018) n 95 above, 8. 99 For the purposes of the Children Act 1989, s 3(1). See, eg, Re J (Child’s religious upbringing and circumcision) [1999] 2 FCR 345, per Wall J at 353. 100 Children Act 1989, ss 8, 10. As would also be the case with disputes over withdrawal from sex education (discussed below): see A Bainham, ‘Sex Education: a Family Lawyer’s Perspective’ in

Religious Education 403 even pre-teenage children are capable of forming their own coherent views on issues of religion affecting them. While adults responsible for their children’s religious upbringing should listen to them,101 there is a potential conflict between the child’s rights and those of the parent in this context. While children’s right to freedom of thought, conscience and religion is protected by Art 14 of the UNCRC,102 states parties are required to ‘respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child’.103 While there is some recognition of children’s independence over this matter in the light of their ‘evolving capacities’, parents are effectively able to choose their child’s religion; and the right of withdrawal from RE may be consistent with that position, even though there is an inconsistency with Arts 12 and 13, which concern the child’s right to express his or her views and be heard in relation to various matters.104 While Art 12 means that at the very least children should be consulted and their view taken into account when the right of withdrawal from RE is exercised by a parent, the parent’s statutory right of withdrawal is unconditional and it is difficult to see how a parent’s withdrawal request could legitimately be refused on the basis of the pupil’s objection. The right of withdrawal is also consistent with the obligations of the state under the second sentence of A2P1, ECHR to respect the right of parents to ensure the teaching of the child in conformity with the parents’ religious and philosophical convictions (and the comparable right within Art 13(3) of the International Covenant on Economic, Social and Cultural Rights105); and also with their right to religious freedom under Art 9.106 Barry argues that ‘the parents’ freedom of religion is deployed as a cloak for the exertion of power over their children’.107 But children also have independent rights under Art 9108 and so there is a potential conflict between that right and the parents’ right, which has not yet been judicially considered. N Harris (ed), Children, Sex Education and the Law: Examining the Issues (London, National Children’s Bureau, 1996) 24–44, 34–6. 101 G Smith, Children’s Perspectives on Believing and Belonging (London, National Children’s Bureau, 2005) 67. 102 UNCRC, Art 14(1). 103 Ibid, Art 14(2). 104 See A Sherlock, ‘Religious Observance and Collective Worship in Schools: A Human Rights Perspective’ in P Cumper and A Mawhinney (eds), Collective Worship and Religious Observance in Schools (Oxford, Peter Lang, 2018), 175–97. 105 See UN Committee on Economic, Social and Cultural Rights, General Comment 13. The Right to Education (Art 13 of the Covenant), E/C12/1999/10 (General Comments), para 28. 106 See Hoffman v Austria (1993) 17 EHRR 293. 107 B Barry, Culture and Equality (Cambridge, Polity, 2001) 201. 108 As also shown in Valsamis v Greece Case No 74/1995/580/666 (1996) 24 EHRR 294; [1998] ELR 430 and R (Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15; [2006] 2 WLR 719, both discussed in ch 6 under ‘Can a prescribed national curriculum be reconciled with the notion of parental choice and the accommodation of cultural preferences as a human right?’. See also CJ, JJ and EJ v Poland, Application No 23380/94, Commission on Human Rights, where the Commission considered independently both the father’s and his two children’s claims that a breach of Art 9 occurred as a result of the way that the school handled the withdrawal of the children from religious

404 Religion in the School Curriculum There has, at least been some recognition of pupils’ autonomy through having the right, once turning 16, to withdraw (or not) from collective worship (see below). The not particularly persuasive reasons given for not extending this right of withdrawal to RE, contrary to a recommendation of the Joint Committee on Human Rights that the law as it stood was incompatible with young people’s rights under Art 12, UNCRC and Art 9, ECHR,109 were: first, the importance, in interests of ‘community cohesion’, for pupils to learn about other faiths – an argument which in this specific context seems weak in view of the parental right of withdrawal – and secondly, that properly taught RE made it ‘unlikely that pupils’ right to freedom of thought, conscience and religion will be breached’, particularly since RE was distinguishable from collective worship on the basis that it covered ‘all religions’.110 Further potential problems with the right of withdrawal are, first, that its exercise is potentially stigmatising and exclusionary for children and their families, as research has shown111 and as the Ontario Court of Appeal noted in Zylberberg,112 in which the Canadian Charter of Rights and Freedoms was held to have been infringed by various prescribed religious practices within the curriculum, notwithstanding the right of withdrawal. Sherlock argues persuasively that children who have been withdrawn should be provided with a ‘meaningful alternative activity’ which nevertheless enables them to not miss out on general school news and announcements and to feel part of the school community.113 As things stand, there is no specific obligation on schools to make alternative arrangements. This could be discriminatory against religious minorities, although the cost implications of making separate alternative provision for those of every faith might be raised in justification.114 However, common alternative arrangements for all opted-out pupils are often made in denominational schools. They might take the form of moral education or cover the study of the history of religion or ethics. Such an arrangement in Finland was held by the Human Rights C ommittee to uphold religious freedom for the purposes of the Universal instruction, and in particular how the school recorded matters in the children’s school reports. The claims were deemed inadmissible, but the Commission reaffirmed the authority of the state to require a course in religious knowledge provided certain exemptions were granted. 109 Joint Committee on Human Rights, Twenty-eighth report of Session 2005–2006, Legislative Scrutiny: Fourteenth Progress Report, HL Paper 247, HC 1626 (London, The Stationery Office, 2006) paras 2.2–2.4. 110 HC Debs, Vol 451, Col 502, 2 November 2006, per Mr Jim Knight, Schools Minister. 111 A Mawhinney, U Niens, N Richardson and Y Chiba, ‘Religious Education and Religious Liberty: Opt-Outs and Young People’s Sense of Belonging’, in M Hunter-Henin (ed) n 58 above, 235–49. See also A Mawhinney, ‘The Irish Primary Education System: a Neglect of Human Rights’, paper presented at the Socio-Legal Studies Association Annual Conference, University of Liverpool, 31 Mar 2005; Idem, ‘The Opt-out Clause: Imperfect Protection for the Right to Freedom of Religion in Schools’ (2006) 7 Education Law Journal 102. 112 Re Zylberberg et al v Director of Education of Sudbury Board of Education; League for Human Rights of B’nai Brith Canada et al, Intervenors (1988), 65 OR (2d) 641; (1988) 52 DLR (4th) 577. 113 A Sherlock, ‘Religious Observance and Collective Worship in Schools: A Human Rights Perspective’, in Cumper and Mawhinney n 104 above, 175–97, 191. 114 P Cumper, ‘School Worship: Praying for Guidance’ (1998) EHRLR 45 at 52.

Religious Education 405 Declaration of Human Rights115 provided it is ‘given in a neutral and objective way and respects convictions of parents and guardians who do not believe in any religion’.116 A further problem with the right of withdrawal arises where RE forms part of a broader subject that includes moral/ethical education, as was introduced in Norway in 1997. Exemption from parts of the teaching that comprised religious activities, although not from the parts dealing with religious knowledge, was permitted. The subject, known as the CKREE or KRL, included religious practices, such as learning prayers. Some humanist parents and their children complained, inter alia, that the arrangements were not compatible with Art 18 of the International Covenant on Civil and Political Rights, which contains a similar guarantee of religious freedom to that in Art 9, ECHR, and also requires States Parties to ‘undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions’.117 The Human Rights Committee concluded, inter alia, that the Norwegian opt-out was impracticable as it imposed ‘a considerable burden’ on persons in the complainants’ position, ‘insofar as it requires them to acquaint themselves with those aspects of the subject which are clearly of a religious nature, as well as with other aspects, with a view to determining which of the other aspects they may feel a need to seek – and justify – exemption from’; and withdrawing children from part of the teaching would cause difficulties which would deter people from exercising their opt-out right.118 Consequently, ‘the system of exemptions does not currently protect the liberty of parents to ensure that the religious and moral education of their children is in conformity with their own convictions’.119 The fact that the parents had to give reasons for withdrawal, which created a further obstacle for them, and that children experienced a conflict of loyalty when the right was exercised, were other factors in the ruling.120 A separate complaint by a group of Norweigan parents in relation to the CKREE/KRL was taken to the European Court of Human Rights, in Folgerø and Others v Norway,121 discussed in Chapter 6.122 It was noted that the emphasis on Christianity in this subject meant there was an imbalance in the content and

115 UDHR, Art 18. 116 Erkki Hartikainen v Finland, Communication No 40/1978, UN Doc CCPR/C/OP/1 at 74 (1984), para 10.4. See further Erkki Hartikainen v Finland, Communication No 40/1978 (20 June 1983), UN Doc Supp No 40 (A/38/40) at 255 (1983) (response from Finland on views). See also H Cullen, ‘Education Rights or Minority Rights?’ (1993) 7 International Journal of Law, Policy and the Family 143. 117 International Covenant on Civil and Political Rights, Art 18(4). 118 UN Human Rights Committee, Communication No 1155/2003: Norway, 23 Nov 2004. CCPR/ C/82D/1155/2003 (Jurisprudence), Views of the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights (2004) para 14.6. 119 Ibid. 120 Ibid, para 14.7. 121 Application No 15472/02 [2007] ELR 557. 122 See ‘Can a prescribed national curriculum be reconciled with the notion of parental choice and the accommodation of cultural preferences as a human right?’.

406 Religion in the School Curriculum religious activities comprised in the syllabus and the Court considered that the partial withdrawal that was permitted was not sufficient to ensure the degree of pluralism and objectivity that was required for the purposes of A2P1, the Court confirming that the Article did not permit a distinction to be made between religious instruction and other parts of the curriculum.123 There were practical difficulties in ensuring that parents could have in advance the information, in the form of lesson plans, needed to ascertain which elements were incompatible with their convictions; and there was a risk that parents might feel compelled to disclose intimate details of their own religious and philosophical convictions to the authorities in order to show reasonable grounds for the partial exemption. There was a potential for conflict as a result of the arrangements, that might deter exemption requests. Folgerø requires consideration in relation to the Clarke and Woodhead proposals because the introduction of the more broadly based CKREE/KRL in Norway similarly replaced an RE subject, Christian Knowledge, from which parents had had a right of complete withdrawal. The new syllabus in Norway had similar aims to Clarke and Woodhead’s inclusive Religion, Belief and Values, noted above, including the promotion of pupils’ better understanding of each other’s cultural and religious backgrounds, which is also among the aims of children’s education promoted by the UNCRC.124 It is, however, quite difficult to apply the Folgerø ruling to other syllabuses since it turned on its very specific facts. The dominant position of Christianity in the syllabus was not in itself a problem, in the national context. Indeed, the Court was clear that the second sentence of A2P1 (respect to be given to parent’s right to ensure their children are taught in conformity with their religious or philosophical convictions): did not embody any right for parents that their child be kept ignorant about religion and philosophy in their education. That being so, the fact that knowledge about Christianity represented a greater part of the curriculum … than knowledge about other religions and philosophies cannot, in the court’s opinion, on its own be viewed as a departure from the principles of pluralism and objectivity amounting to indoctrination.125

What was problematic was that when viewed in detail, including the stated aims of the syllabus (which referred to giving a ‘thorough insight into Christianity’ and a ‘sound knowledge of other world religions and philosophies’), there was an imbalance. Clarke and Woodhead have argued that if their proposed new national Religion, Belief and Values syllabus replaces the current locally determined arrangements for RE it would cease to make sense for parents to retain a right of withdrawal.126 Since RVB would be placed on a statutory footing akin to the National Curriculum, from which no withdrawal is permitted, it would be

123 Note

121 above, [84]. Art 29(1). 125 Note 121 above, [89]. 126 Clarke and Woodhead (2018) n 22 above, 27–28. 124 UNCRC,

Religious Education 407 inconsistent to permit an opt-out. Moreover, the subject is intended to be inclusive and to enhance awareness of different beliefs and values rather than expected to prepare the individual for life within a particular faith tradition; Clarke and Woodhead cite the change in the law, referring to ‘religious education’ since 1988 (per the Education Reform Act) in place of ‘religious instruction’ that was used in the 1944 Act. Since there is no guarantee that the national RVB syllabus will satisfy all religious and non-religious parents and sub-groups, however, there will still be some who would want to withdraw their children from it, either wholly or from parts that they find objectionable. Lundie reports evidence of apparently racial or anti-Islamic motivations behind withdrawal requests from some parents in the schools in his survey, noted above, particularly when the request concerned only part of the RE course, such as several parents who did not want their children to visit a Mosque, but Lundie and O’Siochru, who also found Islam to be a focus for a number of withdrawal requests, consider it unclear whether prejudice or ignorance may have fuelled them.127 Either possibility necessitates consideration of whether retention of the right of withdrawal is desirable, but there is also an issue as to whether the domestic law requirement is legally necessary. While finding that a majority of education professionals are in favour of abolishing it, the Commission on Religious Education recommended that it should be retained, mainly on the basis that that would be consistent with the individual’s human rights.128 The test of whether for the purposes of a right to education respecting one’s religious or philosophical convictions per ECHR, A2P1 the curric ulum is critical, pluralistic and objective, set out in Kjeldsen, was discussed earlier in the context of a prescribed national curriculum and, as has been shown, was applied in Folgerø129 (and Zengen)130 and also by the High Court in Fox (above). The Commission’s concern is that because, under its proposals on religion and worldviews, described above, schools would have freedom over the design of their curriculum, there would be no certainty that all their relevant curricula would be critical, pluralistic and objective.131 However, if Clarke and Woodhead’s proposed RVB had an appropriate balance, in its approach and content, between different faiths and beliefs, including atheistic viewpoints, it is entirely possible that it may not be necessary to provide a right of withdrawal. Even so, the objective behind the ‘inclusive’ RVB syllabus would be lost if the parent, in consequence of lacking such a right, exercised his or her right to home-educate the child. This risk was noted by the House of Commons Education Committee in relation to right of 127 Lundie n 95 above, 6; Lundie and O’Siochru (2019) n 97 above, 8–9. On the existence of this basis for withdrawal from RE, see also K Burgess, ‘Parents withdraw pupils from lessons about Islam’, The Times 27 April 2017, 15. 128 Commission on Religious Education (2018) n 69 above, paras 135–144. 129 Folgerø n 121 above. 130 Zengen v Turkey (Application No 1448/04) (2008) 46 EHRR 44. Discussed in ch 6 under ‘Can a prescribed national curriculum be reconciled with the notion of parental choice and the accommodation of cultural preferences as a human right?’ 131 Commission on Religious Education (2018) n 69 above, para 144.

408 Religion in the School Curriculum withdrawal from sex education.132 The Committee heard that if no withdrawal from sex and relationships education were permitted, some Muslim parents might home school their children.133 It is reasonable to assume that there could be a similar possibility in the case of RE. The risk is that since withdrawal from the system as a whole is most likely to happen where the parent has a strict or highly zealous attachment to a particular religion, it could contribute to the separation from wider society of children within some groups.

III. Collective Worship A. The Statutory Requirement for a Daily ‘Act of Collective Worship’ While there seems little threat to the continuation of RE as a part of the legally required school curriculum in England, the position of collective worship is less secure. There are alternatives that might be considered more in tune with contemporary society and the place of religion and religious observance within it. Moreover, there is a view that collective worship serves no useful purpose and should be scrapped. There is, nevertheless, a rationale for retaining some kind of collective, reflective activity and it has persuaded a number of commentators to the view that complete abolition of the duty, as opposed to reforming it, would not be the best option. Before considering these issues it is necessary to clarify the legal requirements. The present law on collective worship originated in the EA 1944. Both county (now community) and voluntary schools had to begin each day with an act of collective worship which had to include all pupils in attendance at the school unless the premises made a whole school assembly for that purpose impracticable.134 There was no stipulation regarding the form of this act, nor was it specifically required to be Christian in character. When the ERA 1988 replaced the 1944 Act requirements on collective worship, it adopted a broadly Christian emphasis, which has continued under the present law, in the School Standards and Framework Act 1998.135 There must be a single act for the whole school or separate acts for different school groups or age groups.136 In community schools and foundation schools without

132 See ch 6 above. 133 Yusuf Patel, the founder of SREIslamic, cited in House of Commons Education Committee, Life Lessons: PSHE and SRE in Schools, Fifth Report Session 2014–15 (HC 145) (London, The Stationery Office, 2015) para 146. 134 EA 1944, s 25(1). 135 See now SSFA 1998, s 70. The requirement that the act be at the start of the school day, in EA 1944, s 25, was lifted when the ERA 1988 came into force. 136 SSFA 1998, Sch 20, para 2.

Collective Worship 409 a religious character, the act must generally be ‘wholly or mainly of a broadly Christian character’, reflecting ‘the broad traditions of Christian belief without being distinctive of any particular Christian d enomination’.137 The requirement as to Christian collective worship resulted from pressure in the House of Lords from ‘Christian religious right’ peers.138 Although this requirement has met considerable criticism from some minority and secular groups due to its Christian emphasis, which some regard as making it discriminatory, Adhar and Leigh argue that ‘[t]he majority status of Christianity and the cost to the state if it had to provide a comprehensive range of alternative forms of collective worship’ might satisfy the test of ‘reasonable and objective justification’ to discrimination for the purposes of Art 14 of the ECHR.139 But in any event the law has enabled local SACREs to grant applications by head teachers for exemption on the ground that the standard requirement for a Christian character to the act is not appropriate for their school or in relation to a class or description of pupils.140 This enables the SACRE to modify or lift the requirement where, for example, the school has many non-Christians.141 Indeed the SACRE is required, when considering the head teacher’s application, to have regard to ‘any circumstances relating to the family backgrounds of pupils’.142 Such an exemption can be granted only following a request by the head teacher, rather than from the parents. Moreover, when (as the statute requires) the head teacher consults first with the governing body regarding the matter, the governing body has but a discretion (not a duty) to consult the parents.143 By 2010, 230 schools had reportedly been granted exemption from the Christian daily worship requirement.144 The trend has continued since then, with 125 schools seeking exemptions between 2012–15 and 46 in the year

137 ERA 1988, s 7, now found in the SSFA 1998, Sch 20. This also provides that from time to time acts of collective worship do not have to comply with the above requirements, provided most of them do. 138 See A Mawhinney, ‘The Law on Collective School Worship: The Rationale Ten and Now’, in Cumper and Mawhinney n 104 above, 117–45 at 134–5. 139 R Adhar and I Leigh, Religious Freedom in the Liberal State (Oxford, OUP, 2005) 242. This could be put to the test in a forthcoming judicial review brought by the parents of a child attending a community school who claim that the collective worship does not meet the needs of non-Christian pupils: see K Burgess, ‘Couple fight to make school hold non-believers’ assembly’, The Times, 29 July 2019. 140 SSFA 1998, Sch 20, paras 1–4. The application is made under EA 1996, s 394, as amended by the SSFA 1998, Sch 30, para 97. A dis-application decision must be reviewed within 5 years: EA 1996, s 395. The head teacher must consult with the governing body before making an application: s 394(5). 141 See generally S Poulter, ‘The Religious Education Provisions of the Education Reform Act 1988’ (1990) 2 Education and the Law 1; A Bradney, ‘Christian Worship?’ (1996) 8 Education and the Law 127; C Hamilton and B Watt, ‘A Discriminating Education – Collective Worship in Schools’ (1996) 8 CFLQ 28; and P Cumper, ‘School Worship: Praying for Guidance’ [1998] EHRLR 45. 142 EA 1996, s 394(2). 143 Ibid, s 394(6). 144 J Henry, ‘More than 2030 schools have ditched Christian assemblies’, The Telegraph (online), 9 Jan 2010, www.telegraph.co.uk/education/educationnews/6956365/More-than-230-schools-haveditched-Christian-assemblies.html. The figure was based on FOI requests for a Sunday Telegraph survey.

410 Religion in the School Curriculum and a half to Spring 2017.145 These are not large numbers and perhaps the DfE’s interpretation of ‘wholly or mainly’ in the statute as meaning that it would be sufficient if 51 per cent of the acts of worship are C hristian and 49 per cent of them concentrate on other faiths may have persuaded some schools that it would not be necessary to make an application. In voluntary schools and foundation schools with a religious character the required collective worship is to be in accordance with the school’s trust deed or, if the deed does not make provision for it, then in accordance with the tenets and practices of the religion or religious domination in question.146 In the case of academies, the position is, as in the case of RE, governed by the school’s funding agreement. The model agreement places academies in the same position as other state schools in terms of both the requirement to hold a daily act of collective worship and as to its character, distinguishing between academies with and without a religious character in the same way as the legislation does in relation to local authority maintained schools. The term ‘worship’ is not defined in the legislation but clearly imports some form of devotional activity. It would, moreover, probably be considered contrary to the spirit and tradition of this provision, and the intention underlying it, for such devotion to be other than religious or spiritual in nature. The official guidance has long stressed the association to be made with reverence or veneration of a divine being or power.147 However, even the emphasis that the legislation places on Christian belief does not necessarily mean that Christ has to be the specific object of the worship, leaving aside cases where an application to modify or lift the requirement on such belief has been granted with respect to the school. As we have seen, the acts have to be only ‘broadly Christian’ and reflect the ‘broad traditions’ of Christianity. This matter was considered by the High Court in R v Secretary of State for Education ex parte R and D,148 where some parents argued, inter alia, that the Secretary of State had wrongly rejected their complaints that the pupils at the school were not practising worship and/or that the school’s multi-faith worship was illegal as it was not broadly Christian. McCullough J explained, first, that ‘act of collective worship’ in the statute referred to the ‘totality of events’ when pupils were assembled, ‘rather than each of the successive incidents’ which took place.149 With regard to the act of worship, the Secretary of State had indicated that what was required was reverence or veneration of a divine or supernatural power. But the complainants contended that to meet the statutory requirement the power had to be identified as God, of a broadly Christian character. The Secretary of

145 J Staufenberg, ‘Over 40 schools allowed to stop daily Christian worship’, Schools Week 9 Apr 2017, at https://schoolsweek.co.uk/over-40-schools-allowed-to-stop-daily-christian-worship/, reporting on a survey based on FOI requests to 101 local authorities. 146 SSFA 1998, Sch 20, para 5. 147 DfE, Religious Education and Collective Worship, Circular 1/94 (London, DfE, 1994). 148 [1994] ELR 495. 149 Ibid, 499D.

Collective Worship 411 State had said that it was not necessary to make such identification. But the judge considered that the Secretary of State had indicated separately his satisfaction that on most occasions the object of worship at the school was God of a broadly Christian character.150 The Court accepted that the Secretary of State had been entitled to take this view, given that the prayers that were recited ‘reflected Christian sentiments’ and that in any event not all Christian prayers mention Christ or the Trinity by name.151 Moreover, the Christian character of the act of worship ‘would not be lost by the inclusion of elements common to Christianity and to one or more other religions’.152 The R and D judgment therefore helped to clarify the legal position on collective worship. While it would not have satisfied all the critics of the Christian emphasis within the relevant law, it supported the broader, inclusive approach adopted in many schools. However, there still are several areas of uncertainty. One is whether an act of collective worship can include individual forms of worship albeit in a communal setting. The central guidance, which has not been updated since 1994 but still at least reflects current legislation, partly answers the question by stating that to ‘take part’ in collective worship ‘implies more than simply passive attendance’ and that ‘an act of collective worship should be capable of eliciting a response from pupils, even though on a particular occasion some of the pupils may not feel able actively to identify with the act of worship’.153 It would seem likely that the incorporation of a period of private prayer or contemplation within a school assembly would not be inconsistent with the statutory requirement regarding collective worship. One of the reasons that the current collective worship duty has become so problematic for schools is that many teachers refuse to participate in it. Indeed, the official guidance makes allowance for this by advising that where there are insufficient willing teachers the head teacher must take steps to find others, including a senior pupil, who are not employed at the school to undertake the task of leading collective worship.154 In most state schools teachers have the right to refuse to take part in collective worship or to teach religious education, without suffering any damage to their employment status and without discrimination in terms of pay or promotion.155 They also enjoy special statutory protection (additional to that under general discrimination and human rights law) against disqualification from being a teacher on the grounds of their religious opinions or for attending or not attending religious worship.156 150 Ibid, 501H. 151 Ibid, 502D–F. 152 Ibid, 502H. 153 DfE (1994) n 147 above, para 59. 154 Ibid, paras 146–148. The head teacher is advised by the guidance to take advice from the LEA or SACRE where appropriate. 155 SSFA 1998, ss 58 and 59. ‘Reserved teachers’ – those employed in denominational schools as teachers of religion – are excepted from this protection. See further ch 4 n 306. 156 See Ahman v Inner London Education Authority [1978] QB 36.

412 Religion in the School Curriculum Staff non-participation is almost certainly one factor behind the consistent absence, over a number of years, of participation among a majority of pupils in a daily act of collective worship at school. Ofsted reported that at least 75 per cent of secondary schools in England in 2003–04 were failing in their duty to ensure a daily act;157 and in a ComRes survey for the BBC in 2011, 64 per cent of the 500 parent respondents stated that their child did not attend an act of collective worship in school.158 With, additionally, no efforts being made to enforce the law, and the demands on the school timetable to ensure adequate curricular time for all subjects being so acute, it can hardly be claimed that collective worship is either indispensable or indeed a priority for schools. It is also the case that there is no legal imperative on the state under human rights law to ensure that religious observance is actively promoted in schools or to facilitate collective worship.159 A Times editorial, in condemning compulsory religious worship in schools as ‘an anachronism that is ripe for abolition’ and concluding that collective worship should be ‘a question for governors of individual schools’, argued that it would ‘be inconceivable, indeed unconstitutional … in other modern democracies’ for schools to be required by law to hold acts of worship.160 That is certainly true of state schools in, for example, the US161 and France.162 The case for abolition also hinges on society’s increased secularity but also on its increased religious and cultural diversity – which means that ending the duty to ensure collective worship in non-denominational schools might offer the only effective means to greater religious neutrality and end complaints of discrimination within the current law. Mawhinney explains that the introduction of the collective worship duty under the 1944 Act, supported by the Churches, was motivated by an Anglican Church wish to revive religious/Christian life but also due to a more general desire to strengthen Christian values at a time of war and threat to the nation from totalitarian regimes.163 She argues that by the time of the ERA 1988, which as noted above reinforced the duty by requiring collective worship to be ‘broadly Christian’

157 Ofsted, The Annual Report of Her Majesty’s Chief Inspector of Schools 2003/04 (London, TSO, 2005) para 123. (Collective worship is not reported on in the annual report for 2004/05.) This is precisely the same figure as that given for 1995/96: Ofsted, The Annual Report of Her Majesty’s Chief Inspector of Schools: Standards and Quality in Education 1995/96 (London, TSO, 1997) para 86. 158 BBC News Report ‘State schools “not providing group worship”’ 6 Sept 2011 at www.bbc.co.uk/ news/uk-england-14794472. 159 See A Blair and W Aps, ‘What Not to Wear and Other Stories: Addressing Religious Diversity in Schools’ (2005) 17 Education & the Law 1, 5. 160 ‘Rights of Assembly’ The Times¸7 December 2015. 161 See the First Amendment Establishment Clause: ‘Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise of ’. See Engel v Vitale 37 US 421 (1962) and Abington v Schempp and Murray v Cartlett 374 US 203 (1963). The issue has also arisen in relation to prayers at student graduation ceremonies: see Lee v Weisman 505 US 577 (1992) and Santa Fe Independent School District v Doe (Santa Fe) 528 US 290 (2000). See also n 2 above, especially Barendt. 162 As reinforced by the French Ministry of Education’s charter of secularism at school: Ministère Éducation Nationale, Charte de la Laïcité à l’École (Maris, Ministère Éducation Nationale, 2013). 163 A Mawhinney, ‘The Law on Collective School Worship: The Rationale Then and Now’, in Cumper and Mawhinney n 104 above, 117–45, 129–30.

Collective Worship 413 in character, the collective worship requirement had ceased to become a legitimate part of the state’s means to ‘meet its identified needs of promoting democratic values and protecting the country’s Christian heritage’, not least because of the changed composition of society and in particular the fact that Christianity had ceased to be dominant.164 Part of the case for retaining some form of collective act tied to religion or more broadly to moral and social values such as honesty and respecting others is the social benefit to be derived from bringing children from diverse faith and non-faith backgrounds together for the specific purpose of promoting mutual understanding. As Mawhinney argues, the ‘traditional’ act of collective worship cannot fulfil this need: ‘it would be counter-intuitive to expect that this can be achieved through an act of collective worship from which significant numbers of pupils would be disaffected’.165 Various possible alternative arrangements that could achieve the desired objective, in place of collective worship, have emerged. Such activities, such as ‘extended assemblies’ or ‘time for reflection’,166 would not necessarily need to be underpinned by statutory requirements – although Clarke and Woodhead consider they are needed to prevent possible ‘disappearance of the school assembly’167 – but could be linked, via official guidance, to the existing statutory duty resting with schools to operate a curriculum that, inter alia, promotes the spiritual, moral and cultural development of pupils.168 As things stand, the law on collective worship is unsatisfactory. It is, as Cumper and Impgrave, among others, have explained, contradictory.169 It is premised on the inclusivity of collective worship yet requires the act to be in the main ‘broadly Christian’, and it expects the act to be suitable for all but yet there is a right of withdrawal (discussed below). It is also considered out of step with modern, mostly secular, society.170 The element of compulsion is also inconsistent with the general trend to allow schools a degree of flexibility over how they promote spiritual awareness among pupils. Surely it is time to give individual schools the choice, in consultation with parents and pupils, over what form of assembly, if any, to hold and whether it will include any element of collective worship. There is little argument for retaining the law in its present form and there is a strong case for change.

164 Ibid, 138–9. 165 Ibid, 140. 166 See P Cumper and A Mawhinney, Collective Worship and Religious Observance in Schools: An Evaluation of Law and Policy (London, AHRC, 2015). The report of the Commission on Religion and Belief in Public Life in December 2015 articulates support for the ‘time for reflection’ initiative in Scotland between the Church of Scotland and the Humanist Society Scotland: Butler-Sloss n 38 above, para 4.17. 167 Clarke and Woodhead (2018) n 22 above, http://faithdebates.org.uk/wp-content/uploads/2018/07/ Clarke-Woodhead-A-New-Settlement-Revised.pdf. Clarke and Woodhead favour retaining the statutory requirement but making it more inclusive. However, they only suggest a change to the wording in the Circular rather than indicating how the legislation itself might need to be amended. 168 EA 2002, s 78(1). 169 P Cumper and J Ipgrave, ‘Collective Worship in England’, in Cumper and Mawhinney n 104 above, 17–41. 170 Ibid.

414 Religion in the School Curriculum

B. The Right of Withdrawal from Collective Worship Parents were given a right to withdraw their child from collective worship at school by the EA 1944. This right continues; and as with the corresponding right of withdrawal from RE, it is unconditional and no reasons will have to be provided.171 There is only limited evidence on the utilisation of this right. A survey in the 1990s showed that less than one per cent of secondary school parents exercised it.172 A more recent survey, although over a decade ago, suggests that a propensity to withdraw children might vary across different religions: it was found in one Roman Catholic school that most Muslim children were withdrawn from Christian acts of collective worship but almost all Hindu children participated in it.173 There is also the evidence from the recent survey by Lundie, which indicated a generally low level of withdrawal from RE and collective worship but, as noted above, does not fully distinguish between the two in the rates of withdrawal reported.174 Issues of children’s rights that were discussed in relation to withdrawal from religious education, above, also apply to collective worship, including the arguments about the denial of children’s autonomy and evolving capacity to exercise choices, as also discussed in Chapter 6 in relation to sex and relationships education. One important difference between the position relating to RE, however, is that sixth-form pupils (defined as those above compulsory school age (16) who are receiving education suitable to the requirements of those in their age group)175 have been given an independent right of withdrawal from collective worship at school.176 The idea of adopting a basic age threshold for this right rather than a Gillick-type competency test to determine capacity was that although such competency was ‘a relevant consideration’, the test was difficult to apply since ‘competence does not necessarily arise all at once, nor does each pupil become competent at the same time’; and there was a ‘need to deliver a practicable and workable solution for schools so that schools can function effectively’.177 The new right itself was not borne out of any ideologically-based policy initiative aimed at extending young people’s rights but rather constituted a pragmatic response to political pressure resulting from the Joint Committee on Human Rights’ report which drew attention to the incompatibility the existing right had with the ECHR, Art 9 and

171 SSFA 1998, s 71(1A). Previously EA 1944, s 25, re-enacted in ERA 1988, s 9(3). But note that sixth formers have been given a right to withdraw themselves from such worship: see below. 172 Office of HM Chief Inspector of Schools/OFSTED, Religious Education and Collective Worship 1992–93 (London, HMSO, 1994), para 42. 173 G Smith, Children’s Perspectives on Believing and Belonging (London, National Children’s Bureau, 2005) 34. 174 Lundie n 95 above. See ‘The right of withdrawal from RE’ above. 175 SSFA 1998, s 71(8), inserted by the EIA 2006, s 55(9). 176 SSFA 1998, s 71(1B), inserted by the EIA 2006, s 55(2). 177 HL Debs, Vol 685, Col 736, 17 October 2006, per Lord Adonis, Parliamentary Under-Secretary of State, DfES.

Creationism and ‘Intelligent Design’ 415 the UNCRC, Art 12.178 However, the UN Committee on the Rights of the Child continues to regard with concern the lack of an independent right of withdrawal in year groups prior to sixth form and recommends that all pupils should be able to enjoy such a right.179

IV. Creationism and ‘Intelligent Design’ Over the years, there have been a number of surveys which reveal support, among a sizeable although declining proportion of the UK population, for creationist or other theistically-related explanations for the origins of life and human existence. Creationism is the idea that the origins of man and other living things lie in the Creation as depicted in the Book of Genesis. Darwin’s theory of evolution, despite being by far the most scientifically accepted explanation, remains doubted or rejected by significant numbers of people. In the Rescuing Darwin survey conducted by ComRes in 2008, for example, one-third of adults stated that the idea that God created the Earth some time in the past 10,000 years (‘Young Earth Creationism’) was definitely or probably true; only 38 per cent definitively rejected it as untrue.180 In relation to the more general issue of whether God created life on Earth, 44 per cent believed it was definitely or probably true. In a more recent survey, conducted by Elsdon-Baker et al, published in 2017, nearly one in ten adults in the UK believed that life was created by God and has continued in the same form since, and over one in five that life evolved over time but was guided by God.181 Slightly under half believed in evolution over time, based on natural selection, without any divine involvement; and the remaining two in five adults either did not know or had another explanation for the origin of species and the development of life on Earth.182 Since the Creation is central to Christian and Judaic religious beliefs it would be expected to occupy a place within some part of the school curriculum in faith schools serving these traditions. On the other hand, the origins of life are part of the science curriculum in all schools and constitute an area where science and 178 Joint Committee on Human Rights, Twenty-eighth report of Session 2005–2006, Legislative Scrutiny: Fourteenth Progress Report, HL Paper 247, HC 1626 (London, The Stationery Office, 2006) paras 2.2–2.4. 179 Committee on the Rights of the Child (2016), Concluding Observations on the Fifth Periodic Report of the United Kingdom of Great Britain and Northern Ireland (CRC/C/GBR/CO/5) (Geneva, UN, 2016) paras 35–36. 180 The survey was published in 2009 and the results are posted at www.comresglobal.com/polls/ rescuing-darwin-survey/. 181 F Elsdon-Baker, C Leicht, W Mason-Wilkes, E Preece and L Piggott, Science and Religion: Exploring the Spectrum. Summary report of preliminary findings for a survey of public perspectives on Evolution and the relationship between Evolutionary Science and Religion (Newman University Birmingham and YouGov, 2017), https://sciencereligionspectrum.org/in-the-news/ press-release-results-of-major-new-survey-on-evolution/. 182 Ibid.

416 Religion in the School Curriculum religion may potentially come into conflict, particularly in light of the diverse perspectives on this issue within the population as a whole. There is a question as to what place should be given within the school curriculum to creationism or ideas such as the theory of intelligent design, which holds that life on earth was designed by an unknown intelligent force, and has reportedly been described by the academic Fuller as a scientific rather than religious theory.183 García Oliva and Hall argue that there should be an acknowledgement that ‘it is possible to overstate the issue of the teaching of creationism, given that the majority of faith schools have either an Anglican or a Roman Catholic ethos, and neither denomination encourages or expects believers to renounce Darwinian theory’.184 Nonetheless, the teaching of creationism has provoked a degree of controversy, particularly in relation to academy schools, which as noted in Chapters 3 and 6 have enjoyed a greater degree of autonomy and fewer prescriptions regarding their curriculum than other state-funded schools. Part of the controversy arose from the establishment by the Vardy Foundation of two academies (now operated under the Emmanuel Schools Foundation (ESF), a charitable trust), one in Gateshead and the other in Middlesbrough, with a commitment to presenting a creationist viewpoint. They are non-denominational but Christian in ethos.185 It was reported at the time they were established that these schools ‘accord equal importance to both creationism and theories of evolution’.186 The initial concern held by some about these schools stemmed from a perceived risk that the scientific importance and widespread credence attached to the theory of evolution might be underplayed. Richard Dawkins and the Bishop of Oxford, who wrote critically about the creationist approach adopted by the Vardy Foundation, stated that ‘[t]he evidence for evolution is so overwhelming that we can reconcile it with young earth creationism only by assuming that God deliberately planted false evidence, in the rocks and genetic molecules, to trick us’.187 The situation with the Vardy academies raised an important issue about the divide between science and religion within the school curriculum. Whilst in most state schools the science curriculum is closely regulated, it is less so in academies, which also have wide autonomy over matters of religious education. In the US, the Establishment Clause in First Amendment to the Constitution, which in effect proscribes state sponsorship of religion,188 has been invoked to curb attempts to promote creationism within the school curriculum. Creationism or the theory of intelligent design are sometimes presented as critical alternatives to the theory of evolution, but the teaching of them in public sector schools has more or less 183 See S Jones ‘UK academic gives evidence in intelligent design case’, The Guardian, 25 Oct 2005, 17. 184 J García Oliva and H Hall, Religion, Law and the Constitution: Balancing Beliefs in Britain (London, Routledge, 2017), 66. 185 See www.esf-web.org.uk/. The Foundation subsequently opened two further schools, in Doncaster and Blyth. 186 J Harris, ‘What a creation …’, The Guardian, 15 January 2005. 187 R Dawkins and the Bishop of Oxford, ‘Questionable foundations’, The Sunday Times (News Review), 20 June 2004, 12. 188 See n 161 above.

Creationism and ‘Intelligent Design’ 417 consistently been struck down by the US courts in decisions going back as far as 1925, the first two of which concerned a state statute that forbade the teaching of evolution.189 While the US courts regarded such a ban as unconstitutional, a subsequent statute that required a balance (involving equal amounts of curriculum time) between evolution and creation science was also struck down.190 This was because it failed the test established in Lemon v Kurtzman191 for the First Amendment Establishment Clause, namely that in order to be constitutional a provision must have a secular purpose; its primary or principal effect must not be one that advances or inhibits religion; and it must not foster ‘an excessive government entanglement with religion’.192 In both this case and Edwards v Aguillard, which concerned a Louisiana state statute that forbade coverage of one theory without that of the other,193 the US Supreme Court considered that the statute’s purpose was in part to advance religion by altering the curriculum in schools. Russo does not see these rulings, plus lower court litigation that preceded it, as meaning that necessarily all coverage of alternative cultural beliefs to the theory of evolution should be excluded from biology teaching in the US, but that they would have to be treated as ‘supplemental to the primary instruction on evolution’; yet he questions whether their inclusion might undermine ‘the study of a legitimate secular topic’.194 That view is clearly premised on the idea that religion and science are separable in this context. Some, however, see the boundary as less than clear cut where theories of intelligent design are concerned. This has been well illustrated by Kitzmiller et al v Dover Area School District et al,195 in the federal District Court. It concerned a complaint by eight families in Pennsylvania against the Dover Area School Board’s declaration that students should be read a disclaimer in the ninth grade biology class, stating, inter alia, that Darwin’s theory was ‘not a fact’ and had gaps, that ‘Intelligent Design is an explanation of the origin of life that differs from Darwin’s view’, and that ‘[w]ith respect to any theory, students are encouraged to keep an open mind’. Some families contended that the Bible’s view of creation was being promoted and that the board’s regulation was unconstitutional. Cornelius and Selfridge predicted that the board’s policy would be taken to promote the idea of a creator, which would be in violation of the Establishment Clause.196 They argued that although alternative theories to Darwin’s ideas about macro-evolution were

189 Scopes v State, 278 SW 57 (Tenn 1925) and Epperson v Arkansas, 393 US 97 (1968). 190 McLean v Arkansas, 529 F Supp 1255 (ED Ark 1982). 191 403 US 602 (1971). 192 Ibid, at 612–3. See Russo (2002) n 2 above, 155. The Lemon test was modified, with the third element, ‘entanglement’, applied as a factor in assessing the effect of the statute (the second element), in Agostini v Felton, 521 US 203 (1997), cited in Russo (2006) n 2 above. 193 Edwards v Aguillard, 482 US 578 (1987). 194 Russo (2002) n 2 above, 158. 195 Kitzmiller et al v Dover Area School District et al (USDC MD Penn), 20 Dec 2005, Judge Jones. 196 LM Cornelius and JL Selfridge, ‘“Studies Carefully and Critically Considered”: Evolution Battles Return to the Spotlight’ (2005) 47 School Law Reporter 61 at 63.

418 Religion in the School Curriculum being developed by some scientists – their premise being that evolution accounts not only for changes to species but also the emergence of new species – the attack on evolution theory was drawn mainly from those who preferred a religious explanation, so that ‘any attempt to undermine its teachings will immediately implicate religious motivations’ and place evolution theory ‘above reproach’.197 These comments were prompted by the decision in Selman,198 which arose from a school board policy requiring the placing of stickers in science textbooks in North Georgia, stating: ‘This textbook contains material on evolution. Evolution is a theory, not a fact, regarding the origin of living things. This material should be approached with an open mind, studied carefully, and critically considered’. The stickers had been placed following a campaign, which included a petition with 2,300 signatures, attacking the presentation of ‘Darwinism unchallenged’.199 The court considered that the stickers had a secular purpose but, due to being placed prominently at the front of textbooks and carrying a message explicitly endorsed by the school board, they had ‘sent a message that the School Board agrees with the beliefs of Christian fundamentalists and creationists’ and the board had ‘effectively improperly entangled itself with religion by appearing to take a position’.200 However, the court specifically declined to resolve the question whether science and religion were mutually exclusive.201 Selman was later remitted on appeal for a further investigation of facts and evidence.202 Judge Jones in Kitzmiller et al203 examined the issue of whether intelligent design (ID) was science, finding that it was not, primarily on the ground that it failed ‘the essential ground rules that limit science to testable, natural explanations’.204 Moreover, it rested partly on dualism, namely that by showing flaws in evolutionary theory it might thereby confirm the validity of the theory of ID. The court concluded that ‘ID is not science and cannot be adjudged a valid, accepted scientific theory as it has failed to publish in peer-reviewed journals, engage in research and testing, and gain acceptance in the scientific community’.205 The theory of evolution, on the other hand, met these conditions and was ‘good science’.206 This represents a somewhat orthodox view of science as a field of investigation, but it enabled the court to confine ID to being no more than ‘an interesting theological argument’ and a ‘re-labeling of creationism’.207 As regards the question of constitutionality, the court found that the ID policy would be viewed by the o bjective 197 Ibid. 198 Selman v Cobb County Sched. Dist., 390 FSupp.2d 1286, 2005 WL 83829 (NDGa). 199 See G Younge, ‘Evolution textbook row goes to court’, The Guardian, 9 Nov 2004, 12. 200 Selman v Cobb County n 198 above, 25; see also Freiler v Tangipahoa Parish Bd. Of Educ, 185 F3d 337 (5th Cir, 1999) (challenge to oral disclaimer regarding evolution). 201 Selman, ibid, 1. 202 449 F.3d 1320 (2006). 203 Kitzmiller n 195 above. 204 Ibid, 70. 205 Ibid, 89. 206 Ibid, 136. 207 Ibid, 43.

Creationism and ‘Intelligent Design’ 419 student as a strong official endorsement of religion, in particular because the disclaimer singled out evolution from the entire biology curriculum and undermined it in order to put ID in a favourable light. The objective adult member of the Dover community was also thought likely to perceive an endorsement of religion. The court also found the policy to fail the Lemon test (above), since the purpose was not secular but to advance religion, and that was also its effect. As Barendt explains, since ID was therefore held a religious theory it could ‘not be taught in science classes without infringing the First Amendment’, although he argues that it would not preclude discussion of ID or indeed creationism in civics or philosophy classes.208 Given the national control of much of the secular curriculum content in England for local authority maintained schools, only the position of academies is really analogous to that in the US schools.209 There is an argument that if parents have chosen to send their children to an academy knowing that it places an emphasis on particular Christian ideas, they can have no grounds of objection over the curriculum content. However, given that these schools also open their doors to those of other faiths, it has been questionable that they should be permitted to adopt an overtly creationist stance – as opposed to explaining creationism as a theory alongside others – in an area of the curriculum over which parents may have no statutory right of withdrawal (and no statutory right of complaint). Also, there is a question over whether it would be right to permit one group of children to be presented with a view of something so fundamental to basic biology that is different from that offered to the majority of pupils across schools, particularly one that does not accord with normative scientific principles.210 In fact, Darwin’s theories are generally included at key stage 4 within GCSE syllabuses (although not at earlier key stages), which means that academy and maintained school pupils should be exposed to them. Indeed, the AQA syllabus for Biology for exams from 2018 onwards states that ‘Students should appreciate that the theory of evolution by natural selection developed over time and from information gathered by many scientists’. It refers to Darwin’s theory of evolution by natural selection and to Lamarck and others’ idea that changes to an organism over its lifetime can be inherited. But it specifically states: ‘A study of creationism is not required’. This statement seems to acknowledge the possibility that creationism may be covered by some schools even if pupils may not be tested on their knowledge of it. 208 Barendt n 2 above. 209 There was a belief that schools with trust status (see ch 3) might have sufficient curricular autonomy to teach creationism as part of their science curriculum: Joint Committee on Human Rights, Ninth Report, Session 2005–06, Schools White Paper, HL 113, HC 887 (London, TSO, 2006), para 28. However, this freedom does not seem to have materialised. 210 On this, see the separate articles by Steve Fuller and Harry Brighouse under the joint heading ‘Schools for the Enlightenment or Epiphany?’ THES, 23/30 Dec 2005, 20–1. See also S Baird, ‘Teach two origins of life based on evidence, scientists demand’, The Times, 22 June 2006, reporting the signing of a statement by national science academies from 67 countries (the Royal Society signed for the UK) calling for science courses to be, as they saw it, properly scientific rather than concealing or avoiding evolution theories or confusing them with theories not testable by science.

420 Religion in the School Curriculum In 2006, a Government minister, in a Parliamentary Written Answer, indicated that pupils in mainstream schools may be able to debate issues such as creationism and intelligent design in key stage 4 science lessons when considering ‘how scientific controversies can arise from different ways of interpreting empirical evidence’.211 However, The Times Educational Supplement offered a disparaging view of the inclusion in the curriculum of controversies surrounding creationism, saying that if the examiners wanted to increase interest in science, ‘a module on Star Trek would be better and more scientifically sound’.212 Also, when Rowan Williams was the Archbishop of Canterbury he said in a newspaper interview that he was not comfortable with the teaching of creationism in schools, because creationism is ‘a kind of category mistake, as if the Bible were a theory like other theories. Whatever the biblical account of creation is, it’s not a theory like other theories’.213 These developments suggested that the debates over the inclusion of creationism in the school curriculum, particularly in the science curriculum, could intensify. Indeed, the Government’s post-2010 policy of encouraging the opening of free schools seemed to raise the prospect of increased coverage of creationism in schools, since fundamentalist faith groups that were committed to it and indeed to a ‘literal interpretation of the Bible’ would be among those seeking to establish such schools.214 As noted in Chapter 3, some schools supporting creationism were established in the early years of the free schools policy,215 but the Secretary of State for Education was reportedly of the view that ‘teaching creationism is at odds with scientific fact’ and would not allow that to happen.216 From 2014 onwards the model funding agreement for these schools (and academies) prohibited the teaching of creationism as ‘scientific fact’. Since 2016 the model agreement has proscribed the teaching of any view or theory ‘as evidence-based if it is contrary to established scientific or historical evidence and explanations’, whatever the subject area in which such teaching occurs.217 These schools are also precluded from the receipt of state funding if they are teaching evolution in a way that implies that it is other than a ‘comprehensive, coherent and extensively evidenced theory’.218 There has to date been no legal challenge to 211 HC Written Answers, Vol 443, Col 520w, 27 Feb 2006, Jacqui Smith MP. 212 Opinion (Editorial), ‘Creation debate out of bounds’, TES, 10 Mar 2005. 213 A Rusbridger, ‘“I am comic vicar of the nation”’ interview with Rowan Williams, Archbishop of Canterbury, The Guardian (G2), 21 Mar 2006. 214 R Butt, ‘Free schools will not teach creationism, says Department for Education’, The Guardian (online) 21 Mar 2011, www.theguardian.com/science/2011/mar/21/free-schools-creationismdepartment-education. 215 See J Vasager, ‘Creationist groups win Michael Gove’s approval to open free schools’ The Guardian (online) 17 July 2012, www.theguardian.com/education/2012/jul/17/creationist-groupsapproval-free-schools. 216 Butt n 214 above. See also R Butt, ‘Gove “crystal clear” that free schools cannot teach creationism as fact’, The Guardian 22 March 2011. 217 DfE, Mainstream academy and free school: single funding agreement (DFE-00437-2014) (updated 2016), para 2.44, www.gov.uk/government/publications/academy-and-free-school-fundingagreements-single-academy-trust. 218 Ibid, para 2.45.

Conclusion 421 these elements of the agreement, for example based on Art 9, ECHR (freedom of thought, conscience and religion) or the second sentence of A2P1 (relating to teaching which respects parents’ convictions). As the detailed earlier discussion of minority rights and the National Curriculum indicated, the case law suggests that such a challenge would almost certainly fail.

V. Conclusion Although the place of religion in public life and under the law may have become a contentious issue in the UK as in other western societies, individual religious freedom is legally well protected as is the place of religion institutionally. Although the position of religion institutionally has been associated primarily with faiths within the Christian tradition it has also benefited the minority faiths many of which now have a significant presence in the UK. This chapter has explained how religion is woven into school life and the curriculum, underpinned by statutory requirements governing religious education as a compulsory curricular area and provision for a daily act of collective worship, while the state continues to fund denominational schools with a Christian or other religious ethos, as explained in Chapter 3. To some, the entrenched position of religion within schools has become more difficult to defend, whether because of its disjunction with modern secular society as a whole or because of the pressure on time and resources as the curriculum as a whole becomes more crowded and prioritisation occurs. Indeed, the Commission on Religious Education reports that a significant minority of schools, but an increasing number, are not offering any RE at all at key stages 3–4 (ages 11–16), including (at key stage 4) over 40 per cent of academies without a religious character.219 Yet there have been increasing attempts to stress the educational benefits of RE to other parts of the curriculum such as PSHE, the humanities and ‘education for sustainable development’220 and the wider social benefits from ensuring that children are aware of different religions and faith traditions and that their understanding leads to greater respect for others and thus ultimately to a more cohesive society. This has, as we have seen, led to attempts to develop new approaches to religious education involving more comparative elements and the inclusion of ethics and common values. Despite the continuing protection of religious freedom and association, both under domestic and international human rights law, it seems clear from the developing case law that the ECHR tolerates this kind of pluralistic approach to education with a religious element. As yet, however, many of the denominational schools in England enjoy considerable autonomy over religious education and there is little sign of this changing soon,

219 Note

69 above, para 20 and fig 2. n 23 above, 7.

220 DCSF

422 Religion in the School Curriculum particularly when there are attempts to instill common values elsewhere in the curriculum, particularly through the requirements on inclusion of ‘fundamental British values’ and Citizenship, as discussed in Chapter 6. There seems to be a hope that such elements will provide a common framework for social membership and solidarity that tempers any divisiveness that a specific focus mainly around one religious tradition may engender, although in reality in many schools there is quite a broadly based RE curriculum covering a range of religions and more secular ethical components. Meanwhile, the provision for a daily act of collective worship may not endure, particularly when compliance with the law is so weak and there is little supporting rationale for retaining it as a compulsory element of school life rather than as a matter for the discretion and choice of individual schools, in consultation with parents and pupils.

8 Education Outside the State Sector I. Introduction This chapter focuses on the significant minority of children who are not being educated within the state schools system. Many of these children are enrolled at independent schools. In January 2019 there were nearly 581,000 pupils registered at independent schools in England, including just under 58,500 who were under the age of five.1 Overall, approximately six and a half per cent of the school population comprise children attending schools in the independent sector. As discussed below, schools in the independent sector enjoy significantly greater autonomy over the content of the curriculum than state schools, but the degree of disparity between the sectors has reduced in recent years, partly as a result of academisation – since the academy, while a publicly funded institution, has in some ways been modelled on the independent school – but also due to the increased regulation of the curriculum in independent schools under the prescribed independent school standards. A much smaller, but, according to official estimates, growing number of children – now in excess of 50,000 (see below) – are in receipt of ‘elective home education’. As noted in Chapter 2, the parents or carers of home educated children are under a duty to ensure they receive an efficient full-time education that is suitable having regard to their age, ability, aptitude and any special educational needs they may have,2 but there is currently no effective control over the content of their education. In recent years there has been growing concern about the risks that some of these children may face, not merely in relation to their education but also their well-being as a result of the potential lack of contact with outside agencies and with their peer group. Many parents of home schooled children do make strident efforts to ensure that, so far as possible, their children have the same kind of social life as those who attend school. Nonetheless, this is a time when an increasing policy emphasis, underscored by legislative changes, is being placed on the role

1 DfE, Schools, Pupils and their Characteristics 2019 (London, DfE, 2019) tables 1a and 3, www.gov. uk/government/statistics/schools-pupils-and-their-characteristics-january-2019. 2 EA 1996, s 7.

424 Education Outside the State Sector of schools in instilling common or, more specifically, ‘British’ values, in order to underpin a notion of shared citizenship, bolster social cohesion and prevent extremism, and in responding to a range of social and health problems including substance abuse, mental health problems and sexual ill-health. So the regulatory immunity enjoyed by elective home education seems to many professionals to be increasingly perverse. At the time of writing, government proposals to remedy this deficiency, including a registration system for home schooled children, have recently been published and are likely to have cross-parliamentary support.3 Some children who are considered to be home educated are in fact attending unregistered schools operated within their own communities. There is evidence that the education received by some of the children in such a setting may be strongly orientated towards quite extreme or ultra-orthodox religious or other cultural norms and perspectives, and would not meet the curricular requirements set by legislative and inspection frameworks for state schools and registered private schools, as discussed below. There are concerns about the potential impact of such out of school arrangements on social integration and the capacity of the children to play a part in wider society and to enjoy their right to receive an education that, inter alia, prepares them for ‘responsible life in a free society …’ .4 From a parental perspective, however, the opportunity to educate children in a way that helps to preserve their community’s cultural identity and meet members’ cultural or religious preferences with regard to the values and social norms instilled in the children is fundamentally an important issue of choice. There is therefore huge potential in some cases for conflict between family and state – although, as the discussion in earlier chapters has sought to indicate, it is one that, so far as education is concerned, extends beyond these alternative settings.

II. Regulation and Control of the Curriculum in Independent Schools The private schools sector comprises (2019 figures) 2,319 independent schools,5 educating 580,955 pupils, comprising 6.6 per cent of the pupil population in England.6 The general position and status of independent schools was discussed in Chapter 3. Their long-standing curricular freedom has survived despite the general policy trend towards increasing regulation and control of the education

3 See part IV of the chapter below. 4 UNCRC, Art 29.1(d). 5 Defined as an institution (other than a local authority maintained school or a non-maintained special school) in which full-time education is provided for five or more pupils of compulsory school age or for one or more pupils with SEN or who are ‘looked after’ by the local authority: EA 1996, s 463. 6 DfE n 1 above, table 1a. Note that academies (including free schools), which are not included in the quoted figures, are nevertheless legally categorised as independent schools even though largely state-funded: see the Academies Act 2010, s 1A.

Regulation and Control of the Curriculum in Independent Schools 425 system marking the past three to four decades. While educational reform has transformed the way children’s education is governed in the state sector, the independent sector has largely avoided government interference apart from the prescription of a framework of prescribed standards, as discussed below. The relative freedom of the independent sector has traditionally been justified with reference to a rationale of parental choice: independent schools provide ‘opportunities for parents who wish their children to receive forms of schooling not found in the [state sector]’.7 It is a freedom underscored by Art 13.3 of the International Covenant on Economic, Social and Cultural Rights, which requires States Parties to: have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.

Despite the complaints of elitism surrounding the independent schools sector,8 only marginally met by the assisted places scheme in operation in the 1980s and 1990s,9 which offered a subsidy to enable academically able children from poorer backgrounds to attend independent schools at the state’s expense, their survival has also owed something to their reputation for high academic standards. Nonetheless, the curriculum in some independent schools, particularly in some of the schools operated by religious bodies, has in fact long been a subject of concern. For example, a report by Ofsted in 2003 based on the inspection of independent schools by the Independent Schools Council, which at that time held responsibility for such inspections, commented: In a minority of independent schools with a religious basis there is still insufficient time allocated to the secular curriculum and the balance is unsatisfactory. Many of these schools have a pattern of religious studies in the morning, with a secular curriculum delivered in as little as two hours in the afternoon and with limited learning resources. The creative and aesthetic areas of the curriculum are often poorly represented.10

Rather than diminishing, concern has been growing in recent years, albeit focused on a relatively small number of independent schools. Nevertheless, Seldon claims that independent schools offer a broader, more holistic, form of education, with more sports and arts provision than state schools, where the

7 DES, Better Schools (White Paper) (London, HMSO, 1985) para 289. 8 These complaints continue: see M Benn, ‘The only way to end the class divide: the case for abolishing private schools’, The Guardian (online) 24 Aug 2018, www.theguardian.com/news/2018/aug/24/ the-only-way-to-end-the-class-divide-the-case-for-abolishing-private-schools. 9 See ch 3. 10 Ofsted, Annual Report of Her Majesty’s Chief Inspector of Schools: Standards and Quality in Education 2001/02 (London, Ofsted, 2003) para 445.

426 Education Outside the State Sector ‘scope of education … is narrow’.11 Certainly there is evidence that the pressures felt by state secondary schools to focus on the core GCSE subjects, on which official assessment of performance is based, including commencing GCSE studies as early as year 7, has limited the opportunities for pupils in relation to subjects such as music, art and drama.12 However, despite the greater scope (and often resources) enjoyed by the independent sector to develop a broader curriculum than the state sector, their curricular freedom seems in a small number of cases to have resulted in educational provision that is overly restricted in outlook and content for pupils living in modern British society. Moreover, the standards of provision are sometimes considered poor, in some cases worryingly so. For example, Her Majesty’s Chief Inspector reported in 2017: Within the independent school sector, the proportion of schools judged to be less than good has increased again this year, from 28% to 32%. A number were faith schools, either Christian, Jewish, or Muslim, which tended to be highly conservative. In some of the schools found to be inadequate, the premises were unsafe, even squalid. The most basic checks, such as whether staff were suitable to work with children, were not in place. Perhaps more significantly, in a handful of schools inspectors found instances of sexist and sectarian literature.13

This issue was also discussed in the context of the legislative requirement that independent schools promote ‘British values’.14 It was introduced via an amendment to the prescribed independent school standards, for which there have been two stages of reform. The first in 2003 (under the EA 2002, Pt 10 and regulations15) and the second in 2015 (when changes set out in the Education and Skills Act 2008 were finally implemented). A major reason for the declining proportion of independent schools judged to be ‘good’ or ‘outstanding’ following inspection by Ofsted under the common inspection framework for education and skills applicable to all schools, state and private, has been failure to meet the new standards.16 Before the tightening up of regulation, starting in 2003, the kinds of curricular arrangements that now generate concerns largely escaped interference, save where the Secretary of State was under a duty to serve a notice of complaint on the proprietor because, inter alia, ‘efficient and suitable instruction is not being provided at the school having regard to the ages and sex of

11 A Seldon, Schools United. Ending the divide between independent and state (London, Social Market Foundation, 2014) 49. 12 Based on a YouGov survey of parents and teachers commissioned by GL Assessment, reported in N Woodcock, ‘Schools push pupils to focus on GCSE curriculum from age of 11’, The Times, 16 Nov 2018. 13 Ofsted, The Annual Report of Her Majesty’s Chief Inspector of Education, Children’s Services and Skills 2016/17 (HC 618) (London, Ofsted, 2017) 15. 14 The expectations on state schools in this regard were discussed in ch 6. 15 The Education (Independent School Standards) Regulations 2003 (SI 2003/1910). 16 Ofsted (2017) n 13 above, 44.

Regulation and Control of the Curriculum in Independent Schools 427 the pupils attending it’.17 The difficulty was that although there was non-statutory guidance for inspectors, there was no prescribed curriculum content for these schools, or even broad aims, set out in law. Furthermore, the original system of registration, derived mostly from the EA 1944, had ‘not done enough to force [the worst independent] schools to improve, or close’.18 The 2003 prescribed standards related partly to the curriculum, although also covered matters such as premises and accommodation, pupil welfare, pupil development, the suitability of proprietors, and the handling of complaints.19 A school proposing unsuitable provision could be refused registration by the Secretary of State (the maximum penalty for running an unregistered school was a £5,000 fine, up to six months in prison, or both), while a failure to meet the prescribed standards could result in immediate removal from the register if there was a risk of serious harm to pupils or if appropriate remedial work were not carried out in a timely fashion.20 However, in relation to the curriculum, the prescribed standards were characterised by a lack of specificity. The Government had given a commitment to ‘minimise regulation’ of the independent sector, so that areas such as the spiritual, moral, social and cultural development of pupils would be matters for the schools themselves – and indirectly for parents, through choice of school – provided the curriculum aimed to ensure that pupils, on leaving school, would be ‘likely to become well adjusted citizens’.21 The reforms under the Education and Skills Act 2008, while installing the Chief Inspector in place of the Secretary of State as the registration authority for independent schools, retained the duty of the latter to impose institutional standards for the sector.22 The Act also increased the prescribed maximum period of imprisonment as a punishment for operating an unregistered school to 51 weeks, the alternative being a fine.23 In October 2018 there were what were reported to be the first ever convictions for running an unregistered school. The Al-Istiqamah Learning Centre, which had 58 pupils who were taught in an office block in West London, was held to be ‘being operated as

17 EA 1996, s 469(1)(e). The other grounds (in subs (1)) related to the unsuitability of the premises, the inadequacy or unsuitability of the accommodation, the proprietor’s or any teacher’s unfitness for their role (not being a ‘proper person’ to undertake it), or failures for the purposes of the Children Act 1989 concerning the welfare of a child boarding at the school. 18 D Bell HMCI, ‘Standards and Inspections in Independent Schools’, Address to the Brighton College Conference on Independent Schools, 29 Apr 2003. 19 SI 2003/1910, n 15 above, and the Independent School Standards (Wales) Regulations 2003 (SI 2003/3234 (W314)), made pursuant to the EA 2002, s 157. 20 EA 2002, s 165. Appeals in respect of registration and other decisions lie to a tribunal established under the Protection of Children Act 1999: EA 2002, ss 166 and 167. 21 DfES, Draft Regulations for Registration and Monitoring of Independent Schools (London, DfES, 2001) 4. 22 Education and Skills Act 2008, s 94. 23 Ibid, s 96. A level 5 fine (£5,000) was prescribed as the maximum. However, it is unclear whether this maximum still applies, because of the application of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, s 85. It has removed the limit on fines of £5,000 or more subject to prescribed exceptions, which do not appear to include fines for running an unregistered school.

428 Education Outside the State Sector an unregistered independent educational institution providing full-time education’ and the two defendants were convicted and received fines of £300 and £400 respectively and community orders involving a twelve-week night time curfew.24 There is more detailed analysis of issues surrounding unregistered schools in the next section. The new standards were introduced in January 2015 and are the most prescriptive to date.25 They include standards relating to premises, accommodation, staff and proprietor. They also cover the welfare, health and safety of pupils. On the curriculum, they refer to ‘the quality of education’ that is provided and ‘the spiritual, moral, social and cultural development of students’. There are also standards related to ‘the quality of the leadership … and management’ and about complaints-handling. The standards also require that the school ensures a balanced presentation of opposing views on political issues and an absence of political bias in teaching, as is also required of state schools. Principles are also prescribed on matters such as pupils’ understanding of right and wrong, personal and collective responsibility, knowledge of public institutions, respect for others and for democracy and democratic processes, and the furthering of ‘tolerance and harmony between different cultural traditions by enabling pupils to acquire an appreciation of and respect for their own and other cultures’. Each school is also required to have a written policy on the curriculum, with plans and schemes of work, all of which take into account pupils’ ages, aptitudes and needs, and ‘do not undermine fundamental British values of democracy, the rule of law, individual liberty, and mutual respect and tolerance of those with different faiths and beliefs’. Independent schools must also actively promote British values. The written curriculum policy, plans and schemes of work must, among other things, provide for: ‘the opportunity to learn and make progress’; full-time supervised education for those of compulsory school age which ‘gives pupils experience in linguistic, mathematical, scientific, technological, human and social, physical and aesthetic and creative education’; pupils to ‘acquire speaking, listening, literacy and numeracy skills’; English lessons where the principal language of instruction is not English; PSHE which reflects the school’s ethos and encourages respect for people with different protected characteristics (per the Equality Act 2010); up-to-date and impartially presented careers guidance; a programme of education suitable to the needs of any pupils below or above compulsory school age;

24 ‘Two convicted of running an illegal school in west London’, ITV News Report 24 Oct 2018: www.itv.com/news/london/2018-10-24/two-convicted-of-running-an-illegal-school-in-west-london/; S Coughlan, ‘Two convicted of running illegal school’, BBC News Report 24 Oct 2018, www.bbc.co.uk/ news/education-45959283. The convictions were under the Education and Skills Act 2008, s 96. The Al-Istiqamah Learning Centre Limited was also convicted under s 96: www.cps.gov.uk/london-south/ news/unregistered-school-prosecuted-legal-first. See further DfE, Policy statement: prosecuting unregistered independent schools (London, DfE, 2019), which explains the kind of public interest considerations (eg children’s welfare) that will influence decisions regarding prosecution. 25 The Education (Independent School Standards) Regulations 2014 (SI 2014/3283). See also DfE, The Independent School Standards. Guidance for Independent Schools (April 2019) (London, DfE, 2019).

Regulation and Control of the Curriculum in Independent Schools 429 and the ‘effective preparation of pupils for the opportunities, responsibilities and experiences of life in British society’. A majority of these requirements replicate those in the 2003 standards. However, the last one above, referring specifically to ‘life in British society’, is different to the equivalent standard in the 2003 regulations, which referred to ensuring ‘adequate preparation of pupils for the opportunities, responsibilities and experiences of adult life’. The reference to ‘British life’ means that the current requirements reflect an important principle established 35 years ago in R v Secretary of State for Education and Science ex parte Talmud Torah Machzikei Hadass School Trust.26 The case centred on a denominational independent school. The fact that some parents may prefer to send their children to such a school, often at some expense, will in most cases reflect the importance that they attach to the school’s religious ethos and its role in helping to preserve the integrity and values of their particular faith community and its members’ way of life. Parents have a contractual right not only that the education provided will be of a reasonable standard but also that it will meet their reasonable expectations as regards the values, curriculum and overall approach at the school.27 In judging the suitability of the Talmud Torah school the Secretary of State therefore needed to take account of the statutory duty to have regard to the general principle that children must be educated in accordance with the wishes of their parents,28 a principle discussed at various points throughout this book. As Woolf J recognised, consistent with this requirement it was necessary that regard be had to the parents’ religious preferences. Also relevant was the parent’s right under the second sentence of ECHR, A2P1, to ensure the teaching of their child in accordance with the parent’s religious and philosophical convictions, a right the existence of which, as noted in Chapter 2, supports the right of religious and other groups to found private schools. Indeed, in Costello-Roberts v UK the European Court of Human Rights has confirmed that the ‘fundamental right of everyone to education is a right guaranteed equally to pupils in State and independent schools, no distinction being made within the two’ and that other Convention rights might be engaged where independent school education was concerned.29 Arts 3 (freedom

26 The Times, 12 Apr 1985, also reported in Lexis Library (Lexis Nexis). 27 Mount v Oldham Corporation [1973] 1 QB 309 (CA); Price v Dennis, 29 Jan 1988 (CA). Since it is likely to be linked to the results achieved by a pupil, the standard may easier to test in relation to preparation for public examinations than in respect of the imprecise standards prescribed by the regulations. See Buckingham et al v Rycotewood College, Warwick Crown Court, 28 Feb 2003; and G Hackett, ‘Private school pays out for poor teaching’, The Sunday Times, 10 Nov 2002, reporting an out-of-court settlement of £30,000 in a case where it was alleged that poor teaching of Latin A level resulted in a much lower pass than might reasonably have been expected and thereby reduced a girl’s employment prospects. 28 EA 1996, s 9. 29 Costello-Roberts v United Kingdom, Case No 89/1991/341/414, (1993) 19 EHRR 112, [1994] ELR 1, at [27]–[28].

430 Education Outside the State Sector from torture or inhuman or degrading treatment) and 8 (right to private and family life) were specifically mentioned, but others such as Art 9 (freedom of religion) may also be applicable. The Talmud Torah case pre-dated the Human Rights Act 1998 and the direct enforceability of the above A2P1 right in the UK courts, but the second sentence of A2P1 was nevertheless referred to by Woolf J in his judgment. The A2P1 right could not, however, refer to education classed as unsuitable by the state. Woolf J held that the Secretary of State was ‘perfectly entitled to have a policy setting down a minimum requirement which he will normally apply to all schools irrespective of the background of the children sent to that school’. He appeared to accept that this Hasidic school might meet this requirement by primarily equipping the pupils for a place in their own particular religious community, provided they were left with the capacity to choose some other way of life later on. In the event, Woolf J rejected the assertion that the Secretary of State had acted unlawfully in making a notice of complaint about the school, although the judge disapproved the specification of a minimum number of hours for secular subjects and also considered that the Secretary of State should not have expected that music and drama would be part of the curriculum, as ‘drama is not acceptable to the community on religious grounds and instrumental music is only tolerated on special occasions, such as weddings’. Still, the overriding message of the decision is that total or substantial exclusion of the kind of secular curriculum found in other schools, state or private, was likely to render the education unsuitable because the educational provision should enable students from all religious minority backgrounds to participate in wider society. Although doubts have been expressed concerning the role of some religious schools in ‘providing children with open futures’,30 the message from the judgment is clear. Moreover, it is now reinforced by the above-mentioned requirement under the revised independent school standards for the school’s curriculum to provide for the effective preparation of pupils for ‘life in British society’. The standards prescribed for independent schools have traditionally fallen some way short of requiring the instillation of common values of a kind that supporters of provision leading to a greater sense of common, national identity might advocate. This, while perhaps to a degree altered by the requirement actively to promote fundamental British values, may have helped to preserve the distinctive culture and ethos of independent schools, and both their and parents’ freedom to maintain their religious and cultural traditions through children’s education. These elements are associated with basic liberalism that rests on freedom of choice for the individual or for groups. There have nevertheless been

30 C Henricson and A Bainham, The Child and Family Policy Divide. Tensions, Convergence and Rights (York, Joseph Rowntree Foundation, 2005) 79.

Regulation and Control of the Curriculum in Independent Schools 431 ways in which the majority culture, while prepared to surrender a degree of its dominance over the form of children’s education, has continued to be able to set limits of acceptability for independent education, even in the Human Rights Act era. This was illustrated by the Williamson case on corporal punishment in independent Christian Fellowship schools;31 and see also the decision on similar facts of the Constitutional Court in South Africa, where Sachs J (giving the court’s judgment) noted that there is an underlying problem in open and democratic societies that seek to respect human dignity, equality and freedom, including religious freedom, namely ‘how far such democracy can and must go in allowing members of religious communities to define for themselves which laws they will obey and which not’, since ‘such a society can cohere only if all its participants accept that certain basic norms and standards are binding’.32 The Trojan Horse affair in Birmingham schools, discussed in Chapter 3, while not involving the independent sector, not only led to the introduction of the legal requirement on independent schools to promote British values, noted above, but also helped to foster greater scrutiny and a reduced tolerance of school practices and curriculum content seen as inconsistent with dominant cultural norms. Ofsted – whose leader, the Chief Inspector, has advocated an approach by schools amounting to, reportedly, ‘“muscular liberalism” to promote British values’33 – has for some years been keen to see in the independent sector a broader approach to the curriculum, more consistent with that in the state sector. The Chief I nspector has issued warning notices34 to a number of independent faith schools which have failed to meet the required standard of effectively preparing pupils for life in British society.35 Civitas has hyperbolically accused Ofsted (or rather its application of the prescribed standards) of ‘sabotaging independent school freedoms’.36 But there is no prospect of the independent sector enjoying the scale of regulatory immunities and autonomy that it had in the past, not least where the curriculum is concerned – although, as we have seen, despite the specification of standards,

31 Discussed in ch 6 under ‘Can a prescribed national curriculum be reconciled with the notion of parental choice and the accommodation of cultural preferences as a human right?’ 32 Christian Education South Africa v Minister of Education, Case CCT 4/00 [2001] 1 LRC 441, at [35]. 33 R Adams, ‘Hijab attempt is “racism dressed up as liberalism”, teachers’ conference told’, The Guardian (online) 1 April 2018, www.theguardian.com/education/2018/apr/01/attempt-to-ban-hijabracism-dressed-up-as-liberalism-teachers-conference-told. 34 Under the Education and Skills Act 2008, s 114. 35 See, eg, the notices issued to the Lubavitch Yeshiva Ketanah of London school in September 2018 (www. gov.uk/government/publications/lubavich-yeshiva-ketanah-of-london-warning-notice), the Talmud Torah Bobov Primary School in London (www.gov.uk/government/publications/talmud-torah-bobovprimary-school-warning-notice-2) and Al Ashraf Secondary School (London) (www.gov.uk/government/ publications/al-ashraaf-secondary-school-warning-notice). As regards a problem concerning a state school, see the discussion of Her Majesty’s Chief Inspector of Education, Children’s Services and Skills v The Interim Executive Board of the Al-Hijrah School and Others [2017] EWCA Civ 1426; [2018] ELR 25 in ch 4 under ‘Discrimination, including segregation’. 36 A de Waal, Inspection, Inspection, Inspection. How OFSTED crushes Independent Schools and Independent Teachers (London, Civitas, 2006) Ix and 3.

432 Education Outside the State Sector the law only prescribes a general framework of knowledge and principles for the curriculum in independent schools. As discussed below, there is a prevailing climate of concern which extends to the risk of children being subject to extreme influences. It lies behind the move to tighten up significantly on education in out-of-school settings, discussed next.

III. Home Education and Unregistered Schooling Education in unregistered settings, including home education, has become a significant area of concern in recent years, for reasons discussed below. But it is important to recognise both the apparent popularity of education in such settings and the belief held by many of its users and providers concerning its benefits to children, such as enhancing their ‘cultural awareness’ and language learning, ‘building self-esteem, encouraging children to become active citizens’ and, somewhat counterintuitively, ‘promoting social integration’.37 In addition to home education, received by tens of thousands of children, with the numbers increasing in recent years (see below), there is communal provision, usually for children from a minority cultural background, in out-of-school settings, such as in ‘supplementary’ (or ‘complementary’) ‘schools’.38 There are an estimated 3,000–5,000 such schools in England – it is telling that the precise number is unknown – providing part-time education with an emphasis on mother tongue teaching, faith and cultural studies, but also additional tuition in mathematics, English and science.39 A report by a commission set up by Hackney Borough Council, for example, reportedly stated that between 1,000–1,500 boys who belonged to the Haredi Jewish community were being educated at 30 unregistered schools in that borough of London.40 However, as discussed below, there are concerns that at some out-of-school settings parental rights are being permitted

37 DfE, Out-of-school education settings. Report on the call for evidence conducted November 2015 to January 2016 (London, DfE, 2018) 5. See also Muslim Council for Britain (MCB), Submission to the ‘Out-of-School Education Settings’ Call for Evidence by the Department of Education (London, MCB, 2016), http://archive.mcb.org.uk/wp-content/uploads/2015/12/Submission_to_DE_out_of_school_ education-11.01.16.pdf. 38 The DfE has defined an ‘out-of-school setting’ (OOSS) as an institution providing ‘tuition, training, instruction, or activities to children in England without their parents’ or carers’ supervision’ that is not a ‘school’, ‘college’, ‘16–19 academy’ or a ‘provider caring for children under 8 years old which is registered with Ofsted or a childminder agency’; and examples given of OOSSs include supplementary/ complementary ‘schools’, the Scouts and Guides, and settings offering religiously specific provision such as Jewish yeshivas and Muslim madrassahs: DfE, Out-of-school settings: voluntary safeguarding code of practice. Government consultation (London, DfE, 2018), https://consult.education.gov.uk/ regulatory-framework-unit/out-of-school-settings-voluntary-safeguarding-code/supporting_documents/Outofschool%20settingsvoluntary%20safeguarding%20code%20of%20practice.pdf. 39 D Evans and K Gillan-Thomas, Supplementary Schools (London, Paul Hamlyn Foundation, 2015). 40 N Woodcock, ‘Councils are “powerless to tackle” rogue faith schools’, The Times, 6 January 2018.

Home Education and Unregistered Schooling 433 to outweigh children’s educational and welfare needs. In particular, highlighted risks include that many of the children in these settings will not receive an education anywhere near equivalent in scope and effectiveness to that available within the schools system. Their often covert arrangements, and the limited regulation to which these settings have been subjected, mean that scrutiny may be inadequate and there are fears of some children’s potential exposure to extremist ideas and abuse. The issue flared up in 2015 when the then Chief Inspector of Schools, Sir Michael Wilshaw, wrote advice letters to the Secretary of State about unregistered schools. Under the present law, schools outside the local authority sector will be required to be registered as independent schools only if they fall within the definition of ‘independent school’ within the EA 1996.41 Among other things, the definition only extends to schools providing full-time education.42 However, Ofsted is able to inspect any institution which it suspects is being operated as an unregistered independent school.43 In the second of Wilshaw’s advice letters, in November 2015,44 he noted that the DfE had since September 2014 requested that 28 suspected unregistered schools be inspected; 15 of them were found to be operating illegally. The advice letter stated that there was ‘evidence to suggest some of these schools are using the freedoms afforded to genuine home educators as a cover for their activities’. The inspectors found ‘squalid conditions’, timetabled teaching of less than 20 hours per week, and ‘pupils being taught a narrow curriculum that was failing to prepare them for life in modern Britain’. The following month, in another advice letter,45 it was reported that three settings in Birmingham had been inspected and the findings included ‘a narrow Islamic-focused curriculum’ and ‘inappropriate books and other texts including misogynistic, homophobic and anti-Semitic material’ as well as, in one of the settings, ‘unhygienic and filthy conditions’. The Chief Inspector called for a review of policy and procedures to ensure that greater action could be taken against such settings, in view of the risks to children’s welfare.46 In January 2016 there was a press report that a home-schooled boy, aged eight, had died of scurvy; although this took place in Wales it added to the climate of concern around education in unregistered settings more broadly.47

41 Per EA 1996, s 463. See n 6 above. 42 Generally the DfE considers that an institution operating during the day for 18 hours or more per week is providing full-time education, since it is ‘a substantial part of the week in which it can reasonably be expected that a child can be educated, and therefore indicates that the education provided is the main source of education for that child’: DfE, Registration of Independent Schools. Departmental advice for proprietors and prospective proprietors of independent schools in England (London, DfE, 2016) 6. 43 Confirmed in ibid. 44 The letter is dated 10 Nov 2018 and is available at www.Ofsted.gov.uk. 45 10 Dec 2018, also available at www.Ofsted.gov.uk. 46 See further R Adams, ‘Ofsted raises alarm over “squalid” illegal schools’, The Guardian (online) 10 Nov 2015, www.theguardian.com/education/2015/nov/10/ofsted-raises-alarm-over-squalid-illegalschools. 47 R Bennett, ‘Boy who died from scurvy was “invisible” due to home schooling’, The Times, 23 January 2016.

434 Education Outside the State Sector Around the same time, Ofsted recruited seven experienced inspectors who, working with DfE officials, identified another 100 suspected illegal schools.48 The Chief Inspector stated that many of the schools were providing a ‘substandard education’ and that ‘the Government’s efforts to ensure that all schools are promoting British values, including tolerance and respect for others’ were being undermined.49 These concerns were re-iterated by him in his annual report for 2015–16, which referred to unregistered schools ‘associated with particular faith groups’ which ‘deliberately teach a restricted, faith-based curriculum’ and where pupils are left ‘unprepared for life in modern Britain’ and can be placed ‘at greater risk of exposure to indoctrination, radicalisation and extremism’.50 The DfE reportedly allocated additional resources to Ofsted not only to investigate unregistered schools but also to prepare files for the Crown Prosecution Service for possible prosecution. As noted in the previous section, the first conviction for running an illegal school finally occurred in 2018. In a front page article in The Times in March 2018 headlined ‘Children taught hatred’ it was reported that ‘Religious extremists are exploiting lax home education laws to expose children to hate-filled material at scores of unregistered “schools” and secret teaching groups’.51 The same month the Sunday Times reported that a ‘confidential police study’ had revealed that half of 70 ‘known extremists in London had removed their children from state schools to educate them at home’.52 However alarmist some of the reporting of the issue was, the degree of exposure given to it gave it a public prominence that was certain to prompt a political reaction. Moreover, the objective facts did point to a problem. By September 2018 Ofsted had identified 420 possibly illegal schools; and it was reported that since the establishment of a specialist inspection team in 2016 (above), 63 had received warning notices and 56 had been closed or had ceased to operate on an illegal basis.53 Then, in April 2019, Ofsted published figures showing that since 2016 the total number of unregistered settings investigated by the end of 2018 had reached 521, with 259 inspected (of which one quarter were faith settings)54 and 71 warning notices issued (resulting in 15 closures, 39 making changes to ensure legal compliance and 9 registering as independent schools).55 Altogether an estimated

48 Advice letter from Sir Michael Wilsham to the Secretary of State for Education, 16 May 2016. 49 Ibid. 50 Ofsted, The Annual Report of Her Majesty’s Chief Inspector of Education, Children’s Services and Skills 2015/16 (HC 821) (London, Ofsted, 2016) para 255. 51 N Woodcock and N Johnson, ‘Children taught hatred’, The Times, 4 Mar 2018. 52 S Griffiths et al, ‘Half of extremists take children out of school’, The Sunday Times, 4 Mar 2018. 53 J Roberts, ‘Ofsted “needs powers to close illegal schools”’, TES, 30 October 2018. 54 In terms of faith group, 12 were Christian, 18 Jewish and 36 Muslim: separate figures in Ofsted’s published unregistered schools team management information (at www.gov.uk/government/statis tical-data-sets/unregistered-schools-management-information), table 2c. 55 Ofsted, ‘New data shows illegal schools are a huge nationwide problem’, Press Release, 12 Apr 2019, www.gov.uk/government/news/new-data-shows-illegal-schools-are-a-huge-nationwide-problem.

Home Education and Unregistered Schooling 435 6,000 children were being educated in the unregistered settings which had been inspected and Ofsted expressed concern that these children were ‘potentially at risk because there is no formal oversight of safeguarding, health and safety or the quality of education provided’ and many of the premises were ‘unsafe – with poor facilities and hygiene’ and had ‘badly trained or untrained staff ’.56 Parental freedom to educate their children in these out-of-school settings derives legal sanction from the EA 1996. As noted in chapter two,57 under s 7 parents have a duty to ensure their child receives ‘an efficient full-time education suitable … to his age, ability and aptitude, and … to any special educational needs he may have, either by regular attendance at school or otherwise’.58 Therefore parents do not need to register their child at a school within the education system. They can opt to educate their child themselves, through what is termed ‘elective home education’ (EHE), or via some other alternative and essentially private arrangements, such as provision made within their own community, noted above. Such arrangements are currently largely unregulated and are not intensively monitored by local authorities, notwithstanding authorities’ enforcement powers where a child is not receiving suitable provision.59 As a result, there are no firm assurances regarding the quality of education that will be received nor that children not enrolled at a school will be able to gain social benefits of interaction with others and acquire the capacity to function within a democratic, pluralistic society as free-thinking members able to accept cultural and ethnic differences between its members. The risks that arise from the separation of children from mainstream social institutions such as schools has been viewed by the European Court of Human Rights as justifying the state’s interference with parental freedoms, as in Wunderlich.60 In that case, as discussed in Chapter 2, the Court found that the state’s removal of four children from their parental home following the parents’ prolonged refusal to enrol them at a school, contrary to domestic law, represented a justifiable interference with the parents’ right to family life under Art 8(1) of the ECHR. It follows the ruling in Konrad v Germany,61 which concerned parents from a Christian community who objected on religious grounds to certain aspects of school education, such as sex education and literature which referenced witches, dwarfs and other mythical creatures. Germany’s laws that made education at school compulsory and the domestic courts’ view that the goal of

56 Ibid, quoting from the Deputy Director of Ofsted. 57 Under ‘Enforcement of the parental statutory duty to ensure the child receives education’. 58 EA 1996, s 7, emphasis added by author. 59 See D Monk, ‘“Out of school education” and radicalisation: home education revisited’ (2016) 17(1) Education Law Journal 17. 60 Wunderlich v Germany, Application No 18925/15, 10 January 2019 [2019] ELR 149. Also discussed in ch 2 under ‘Reflections on the effectiveness of the state’s response to truancy’. 61 Konrad and Others v Germany, Application No 35504/03 [2007] ELR 435.

436 Education Outside the State Sector social integration could not be adequately met through education at home were held to be consistent with the ECHR. The interference with the Art 8(1) right and with freedom of religion and belief under Art 9(1) were considered justified62 as being ‘provided by law and necessary in a democratic society in view of the public interest in ensuring children’s education’.63 The Court noted that there was no consensus among the States Parties regarding compulsory attendance at primary schools. The German state was entitled due to its margin of appreciation to determine that ‘not only the acquisition of knowledge but also integration into and first experiences of society are important goals in primary education’,64 from which children should not be allowed to be excepted. There was considered in Germany to be a ‘general interest of society in avoiding the emergence of parallel societies’ and in ensuring the integration of minorities, which was consistent with the Court’s established position.65 The parents’ right to education in conformity with their own religious values was ‘not restricted in a disproportionate manner’ because they were free to educate and guide their children in accordance with their faith values outside school hours.66 It is important also to view home education from the perspective of the rights of the child, especially with regard to the right to education. In Leuffen v Germany67 the Commission of Human Rights recognised that home education could result in a denial of the child’s right to education. The child’s mother, who believed that she had divine authority for the education of her child and considered that sending the child to school would be sinful, refused to send him to kindergarten, attendance at which was compulsory. She was wary of what she saw as an academic and moral decline in state schools and how her son might learn obscenities and be exposed to violence and ‘negative socialisation pressure’. The Commission stated that ‘parents may not refuse the right to education of a child on the basis of their convictions’ and noted that the state had fulfilled its responsibility to place the child at a school which, as far as possible, met the parent’s convictions (it was a Roman Catholic school and she was a practising Catholic).68 The Commission also appears to have been influenced by the authorities’ finding, supported by an expert, and the domestic court’s view, that the educational provision made at home by the parent alone would be damaging for the child. The Commission also noted the Düsseldorf Court of Appeal’s view that compared to education provided by one person alone, ‘conventional schools had the advantage of contributing to the child’s ability to interact successfully on a social level’.69

62 Per

Arts 8(2) and 9(2) respectively. n 61 above, at 443. 64 Ibid, at 442. 65 Ibid. 66 Ibid, 442–3. See also the discussion of Konrad in ch 2 above. 67 Application No 19844/92 (9 July 1992). 68 Ibid at [1]. 69 Ibid, ‘The Facts’. 63 Konrad

Home Education and Unregistered Schooling 437 There seems to have been a large growth in the numbers of children receiving EHE. Information based on a BBC survey of local authorities published in December 2015 showed that 36,600 children were under EHE, a 65 per cent increase over the previous six years.70 Annual surveys by the Association of Directors of Social Services (ADCS) in 2016, 2017 and 2018 revealed totals of home schooled children at 37,500, 45,500 and 57,800 respectively.71 Separately, the OSA, which received information from all 152 English local authorities, reports a figure in 2017–18 of 52,770.72 The ADCS believes that there are also likely to be other children being home educated but ‘hidden from sight’.73 As noted in Chapter 2,74 local authorities have a statutory duty to make arrangements to enable them to identify, as far as possible, any children in their area who are of compulsory school age and not registered at a school nor receiving suitable education.75 But data on home educated children are likely to be incomplete. This raises a concern in relation to Gypsy, Roma and Traveller communities, a significant number of whose children do not attend school regularly although could be being home educated, as highlighted recently by the House of Commons Women and Equalities Committee.76 With the limited monitoring of education away from schools that local authorities are able to undertake, the identity of every home educated child in their area may not be known to them, as the DfE has admitted.77 Over 90 per cent of local authorities are reportedly unable to be certain about which children in their area are being home educated.78 There has, however, been some recent improvement in the recording by local authorities of home educated children,79 and the ADCS surmises that this along with a greater awareness of the opportunity of home education and rising birth rates helps to

70 BBC News, 21 Dec 2015, ‘Rising numbers of pupils home educated’ www.bbc.co.uk/news/ education-35133119. The figures are based on freedom of information requests to 190 local authorities in the UK. 71 ADCS ‘Elective home education survey 2018 comment’, 15 Nov 2018, http://adcs.org.uk/education/ article/elective-home-education-survey-2018-comment. 72 Office of the Schools Adjudicator (OSA), Office of the Schools Adjudicator Annual Report September 2017 to August 2018 (Darlington, OSA, 2018) para 86. 73 ADCS n 71 above. 74 Under ‘Reflections on the effectiveness of the state’s response to truancy’. 75 EA 1996, s 436A. ‘Suitable education’ is discussed below. 76 House of Commons Women and Equalities Committee, Tackling inequalities faced by Gypsy, Roma and Traveller communities, Seventh Report Session 2017–19 (HC 360) (2019) paras 66–67. 77 DfE, Elective home education: call for evidence (London, DfE, 2018) para 2.3(b). 78 Cited in Children’s Commissioner for England, Skipping School. Invisible Children: How children disappear from England’s Schools (London, Office of the Children’s Commissioner, 2019) 14. 79 One likely element in this is that changes in the Education (Pupil Registration) Regulations 2006 in 2016 (by the Education (Pupil Registration) (England) (Amendment) Regulations 2016 (SI 2016/792)) so that all cases where pupils are deleted from the admissions register (which will happen after 20 days of continuous unauthorised non-attendance, unless for example the pupil is ill) must be notified to the local authority by the school: Education (Pupil Registration) (England) Regulations 2006 (SI 2006/1751), reg 12, as amended. Previously, only cases where parents had informed the school in writing that they were going to home educate the child had to be notified by the school to the local authority.

438 Education Outside the State Sector explain the increases in EHE numbers that have been recorded.80 For children who tend to move with their families from one area to the next, such as those with fairground or circus families and some from Gypsy, Roma and Traveller communities (who sometimes also involved in these occupations) there is also a problem that their educational history may be unclear, prompting the Committee to suggest the adoption of some kind of ‘pupil passport scheme’ based on a central database.81 Evidence has emerged of the range of motivations that lie behind a decision to opt for EHE. Ofsted has found that bullying of the child in school or the child’s special educational needs (SEN) are the most prominent factors; monitoring, in 2010, revealed that among the families who had home educated children, one-third were driven by bullying and over a quarter by the child’s SEN.82 The parents, in most of these cases, believed that their child’s needs were not being met. According to the OSA, local authorities have also found that some parents opt for EHE after failing to secure their child’s admission to a preferred school or as a tactic to gain advantage in the competition for such a school place.83 Also, some parents of children at risk of permanent exclusion from school are encouraged by their school to home educate,84 which obviously raises a concern that this represents a form of ‘off-rolling’,85 as discussed in Chapter 2 above. The Office of the Children’s Commissioner reported recently that many parents and children were choosing home education only due to the ‘desperate’ situation at the school – ‘sometimes traumatic for the children involved’, particularly those with SEN.86 The Children’s Commissioner cites ‘squeezed budgets and the drive for good results’ as making schools less able and willing to retain pupils whose SEN, which may include behavioural problems, are difficult to manage.87 But in a 2016 survey by the BBC, some of these issues, notably bullying and SEN, were less significant than in the Ofsted survey six years earlier: in 13.4 per cent of cases a difference of philosophy or lifestyle from the mainstream was the principal factor, in 9.3 per cent it was dissatisfaction or conflict with school, in 6.2 per cent it was cultural or religious factors, while bullying comprised just 4.8 per cent of cases and the child’s SEN or medical circumstances 4.3 per cent.88 It is not clear whether all local authorities classify these reasons the same way and this could affect the reliability of the figures. Either way, while it would obviously be wrong to assume

80 ADCS

n 71 above. of Commons Women and Equalities Committee n 76 above, paras 68–71. 82 Ofsted, Local Authorities and Home Education (London, Ofsted, 2010) 4 and 7. 83 OSA n 72 above, para 89. 84 Ibid. 85 See the discussion in ch 2. 86 Children’s Commissioner n 78 above, 7. 87 Ibid, 8–9. 88 BBC survey n 70 above. 81 House

Home Education and Unregistered Schooling 439 that any individual child is being exposed to extremist ideas in such a setting, the BBC survey clearly indicates that a culture clash and desire for separation from the mainstream lies behind the parent’s choice in a small number of cases. Concern over educational quality in itself has over the years been insufficient to prompt greater state intervention in the UK in these arrangements, although departmental guidance for local authorities in England was issued in 2007 and retained with amendments,89 and revised guidance is currently expected following a government consultation.90 Furthermore, the Government has been supportive of the parental right to arrange education in an out-of-school setting and views most parents engaged with EHE as ‘educating their children well’.91 Nevertheless, it has reacted to public and professional anxiety about the risks such education generates and to the inability of children’s services authorities to feel sure that all such children are ‘safe and receiving a good standard of education at home’.92 Indeed, this combination of factors, along with an intent to cast the anti-radicalisation and anti-extremism net as widely as possible, has prompted a much sharper policy focus on this issue of late. In 2016, measures were proposed in a Bill announced in the Queen’s Speech but not subsequently published or read in Parliament: the Counter-Extremism and Safeguarding Bill. The brief summary to the Bill issued at that time refers to clauses on ‘[s]afeguarding children from extremist adults, by taking powers to intervene in intensive unregulated education settings which teach hate and drive communities apart and through stronger powers for the Disclosure and Barring Service’,93 the latter being the body responsible for vetting teachers and other adults for safety to work in child settings. This proposed framework of regulation would not form part of the Prevent strategy, discussed in Chapter 6, but was regarded as sitting alongside it94 and the Government linked the proposal to its wider counter-extremism strategy.95 The proposed framework would ‘avoid placing unnecessary burdens’ on the majority of settings where children’s education is being positively enhanced, but would facilitate intervention ‘where settings are failing to safeguard and promote the welfare of children, which includes protecting them from the harm caused by extremism’.96 The Government cited

89 DCSF, Elective Home Education. Guidelines for local authorities (London, DCSF, 2007, amended 2013), www.gov.uk/government/publications/elective-home-education. 90 DfE n 77 above. 91 Ibid, para 2.1. 92 Debbie Barnes, Chair of the ADCS Educational Achievement Policy Committee, quoted in ADCS ‘Elective home education survey 2018 comment’ n 71 above. 93 The Queen’s Speech 2016 – Contents (May 2016), 49, www.gov.uk/government/uploads/system/ uploads/attachment_data/file/524040/Queen_s_Speech_2016_background_notes_.pdf. 94 See, eg, MCB, n 37 above, para. 9. 95 See HM Government, Counter-Extremism Strategy (Cm 9148) (2016), www.gov.uk/government/ uploads/system/uploads/attachment_data/file/470088/51859_Cm9148_Accessible.pdf. 96 DfE, Out-of-school education settings: call for evidence (London, DfE, 2015), para 1.1, www.gov. uk/government/uploads/system/uploads/attachment_data/file/480133/out_of_school_education_ settings_call_for_evidence.pdf.

440 Education Outside the State Sector findings from the Clarke investigation into the Trojan Horse affair, discussed in Chapter 3,97 as part of the case for reform. The argument was that while unregistered settings may be making a positive cultural and educational contribution it was necessary to ensure that children were ‘somewhere which does not teach children views which undermine our fundamental British values of democracy, the rule of law, individual liberty and the mutual respect and tolerance of different faiths and beliefs’.98 The proposal was for a registration system, a framework for inspection of settings, and a power to impose sanctions on settings found to be wanting, such as to bar unsuitable personnel or close unsafe premises, all of which suggests similar enforcement criteria to those applicable to independent schools. Not all settings would be covered, however, only those offering ‘intensive tuition, training or instruction to children’, defined with reference to a certain number of hours of attendance (as yet unspecified, although eight hours per week is among the possibilities suggested).99 The registration system would be operated by local authorities and would thus tie in with their broader duty for safeguarding the welfare of children in their area.100 Ofsted would investigate any concerns coming to light as well as sampling particular settings.101 Such concerns could be linked to the activities which the Government intends to prohibit at these settings, which would relate to, inter alia, appointing unsuitable staff, having unsafe premises, and providing ‘[u]ndesirable teaching, for example teaching which undermines or is incompatible with fundamental British values, or which promotes extremist views’.102 Again, this was in line with the arrangements governing independent schools, discussed in the previous part of this chapter. Similar proposals were separately presented by the Welsh Government in 2016,103 identifying a need to guard against the promotion of ‘intolerance against others’ by those working in positions of trust and potential influence with children, and to ensure that ‘fundamental values of democracy, the rule of law, individual liberty and the mutual respect and tolerance of different faiths and beliefs’ are promoted.104 Teaching undermining such values or which is incompatible with them or promoted extremist views would be prohibited.105 As with the English proposals, home

97 Under ‘School autonomy and the lessons of the “Trojan Horse” affair’. 98 Note 96 above, para. 2.5. 99 Ibid, para 2.7. See also para 3.7. 100 Children Act 2004, s 11. 101 DfE n 96 above, paras 3.15 and 3.16. 102 Ibid, para 3.19. The consultation paper adopts (para 3.19) the definition of extremism in the Counter-Extremism Strategy (n 95 above): ‘the vocal or active opposition to our fundamental values, including democracy, the rule of law, individual liberty and the mutual respect and tolerance of different faiths and beliefs. We also regard calls for the death of members of our armed forces as extremist.’ 103 Welsh Government, Out-of-school education settings (Cardiff, Welsh Government, 2016), http:// gov.wales/docs/dcells/publications/160223-consultation-doc-en.pdf. 104 Ibid, para 3.3. 105 Ibid, para 9.2.

Home Education and Unregistered Schooling 441 education would not be included in the proposed framework of registration, inspection and sanctions. Following a call for evidence from November 2015 to January 2016 the UK Government decided not to proceed with its proposed registration arrangements in England for the time being but to gather more evidence, while opening up the possibility of future legislation to fill any gaps in the existing powers.106 Reform was seemingly pushed into the long grass and the emphasis appeared to shift towards encouraging local authorities to use existing powers and work with other agencies to intervene in settings where there are concerns.107 There was also to be a consultation with providers on a new voluntary code of practice on outof-school education settings.108 Yet Amanda Speilman, the Chief Inspector of Schools, called for legislation to be strengthened to facilitate the closing down or prevention of settings which ‘circumnavigate legal loopholes in order to operate’ and present risks of radicalisation and denied educational opportunities.109 Whether a proposed code of practice would ‘give parents choosing out of school settings increased confidence that their children will be taught in a safe environment’, as was claimed,110 is uncertain. The OSA has reported that many local authorities favour compulsory registration in order to provide greater safeguards for home educated children.111 As Monk has pointed out, leaving home education out of a proposed regulatory framework would be inconsistent with the UK Government’s Prevent Duty guidance which acknowledges that radicalisation can occur in the home environment.112 The body representing local authorities in England, the Local Government Association (LGA), is concerned that some children whose parents purport to be home educating are in fact attending unregistered schools.113 The Government has emphasised the role that local authorities have in safeguarding

106 DfE, Out-of-school education settings. Report on the call for evidence conducted November 2015 to January 2016 (London, DfE, 2018) 19. 107 Ibid. 108 Ibid. See also HM Government, Integrated Communities Strategy Green Paper (London, 2018), 34, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/ 696993/Integrated_Communities_Strategy.pdf. A consultation on a code of practice was launched in December 2018: DfE, Out-of-school settings: voluntary safeguarding code of practice. Government consultation (London, DfE, 2018) at https://consult.education.gov.uk/regulatory-framework-unit/ out-of-school-settings-voluntary-safeguarding-code/supporting_documents/Outofschool%20 settingsvoluntary%20safeguarding%20code%20of%20practice.pdf. 109 Ofsted, The Annual Report of Her Majesty’s Chief Inspector of Education, Children’s Services and Skills 2017/18 (London, Ofsted, 2018) 6. 110 DfE (2018) n 106 above, 19. 111 Office of the Schools Adjudicator (OSA), Office of the Schools Adjudicator Annual Report September 2017 to August 2018 (Darlington, OSA, 2018), para 94. 112 D Monk (2016) n 45 above, 26. 113 LGA press release ‘LGA – Councils need more powers to protect children and tackle illegal schools’ 16 Sept 2016 published at www.wired-gov.net/wg/news.nsf/articles/LGA+Councils+need+more+pow ers+to+protect+children+and+tackle+illegal+schools+16092016124000?open.

442 Education Outside the State Sector the welfare of children in such settings and has reminded local authorities of their existing intervention powers under the Children Act 1989 in respect of children at risk of harm. It has also highlighted their duties and powers (which were discussed in Chapter 2) concerning enforcement of school attendance and the parental duty to ensure children receive efficient full-time education at school or otherwise.114 The LGA has, however, called for additional powers for local authorities to be able to enter homes to assess the suitability of education being provided, since they can only do this at present if a child’s safety is at risk.115 It is quite a long time since the Labour Government attempted, via its Children, Schools and Families Bill in 2009–10, to establish a registration system, as had been recommended by the Badman review of EHE in 2009.116 However, there was a lack of political consensus over the relevant part of that Bill and it was jettisoned by the Government to ensure the rest of the Bill’s provisions made it onto the statute book before the general election.117 An individual peer has subsequently attempted to introduce a framework of regulation and enforcement via a private member’s Bill. Lord Soley’s Home Education (Duties of Local Authorities) Bill, published in 2017, sought to place a duty on local authorities to monitor EHE in their area and to require parents whose children receive EHE to register the child as such with the local authority.118 Lord Soley’s Bill lacked Government support but managed to complete its House of Lords stages and was scheduled for its second reading in the House of Commons by the time that the Conservative Government finally, in 2019, set out proposals for legislation on education out of school, including EHE.119 At the time of writing, the proposals are still out for consultation and it seems unlikely that legislation will come before Parliament until the end of 2019 at the earliest. The proposals draw on the evidence the Government gathered in 2018, which indicated strong support from local authorities and other bodies for a compulsory registration system and monitoring duties.120 The specifics of the requirement on registration arrangements, involving a local authority registration system, would be set out in secondary legislation. The proposals emphasise

114 See DfE, Unregistered independent schools and out of school settings – Departmental advice for collaborative working between the Department for Education, Ofsted and local authorities (London, DfE, 2018). 115 LGA n 113 above. 116 G Badman, Report to the Secretary of State on the Review of Elective Home Education in England (HC 610) (London, The Stationery Office, 2009) R1. 117 The relevant provisions were among a number sacrificed by the Government to ensure the Bill’s passage prior to the 2010 general election. 118 It also proposed an annual assessment by the local authority of the child’s ‘educational development’ (including a possible visit, an interview with the child and the parent, and an inspection of the child’s work), advice and information for the parent if requested, and new guidance from the Secretary of State. 119 DfE, Children not in school: proposed legislation. Government consultation (London, DfE, 2019). 120 DfE, Elective Home Education: Call for Evidence 2018. Government Consultation Response (London, DfE, 2019).

Home Education and Unregistered Schooling 443 that registration would not in itself establish that the parent is discharging their duty under the EA 1996, s 7, noted above, to ensure their child is receiving an efficient full-time education suitable to his/her age, ability, aptitude and any SEN he/she may have, at school or otherwise; the local authority would still have to assess whether the parental duty was actually being fulfilled.121 To ensure that the register is as complete as possible the Government favours placing the parent under a statutory duty to notify the local authority of their child’s details if the child would come within the scope of the new register. In relation to cases of non-compliance the Government’s expressed preference is not for a separate enforcement regime, with sanctions and a new criminal offence, but rather for making a failure by the parent a possible trigger for a school attendance notice under EA 1996, s 437.122 This, however, merely reaffirms the existing legal position for enforcement for breach of the parental duty under EA 1996, s 7. A further element of the proposals relates to children who, whilst home educated, also attend other settings, often unregistered, for part of the week. The Government proposes that the proprietors of those settings which make provision during normal school hours be placed under a duty to respond to enquiries from local authorities about children who may fall within the scope of the register, although no view is expressed about what kind of sanction might be employed in cases of non-compliance.123 The consultation revealed less than unequivocal support for requiring local authorities to provide support for home-educating parents, but the Government nevertheless favours introducing such a duty, applicable when support is requested.124 While the costs that might fall on local authorities in making such support arrangements is acknowledged, no additional funding allocation is promised by central government to meet them.125 One of the principal concerns held by local authorities about enforcing the duty in EA 1996, s 7 (above) has been an uncertainty over the meaning of efficient education suitable to the child’s age, ability and aptitude and any SEN.126 ‘Efficient’ is open to wide interpretation. The DfE has relied on the basic meaning presented by Woolf J in the Talmud Torah case (above), interpreting it as education which ‘achieves that which it sets out to achieve’. The Badman report, while against prescription on suitability, argued that at the very least parents should be expected to ‘articulate their educational approach or “philosophy”, intentions and practice and … demonstrate its effectiveness’.127 If adopted, that would build on the recommendation of Donaldson LJ in the Divisional

121 DfE,

Children not in school n 119 above, para 2.15. ch 3 above under ‘Responsibility and the truancy problem’. 123 DfE, Children not in school n 119 above, para 4.5. 124 Ibid, paras 5.1–5.2. 125 Ibid, paras 5.12–5.13. 126 EA 1996, s 436A(3). This definition was previously in a repealed part of s 437(8). 127 Badman n 116 above, para 3.12. 122 See

444 Education Outside the State Sector Court in Phillips v Brown in holding that when the local authority is enforcing the parental duty to ensure the child receives suitable education, although the parent is under no legal obligation to provide information on how he or she is performing the duty, ‘it would be sensible for them to do so’ to prevent the local authority concluding that they appear to be in breach of the aforementioned duty, which would trigger the service of a school attendance order.128 There is also no formal definition of ‘full-time’ so far as EHE is concerned, and the official guidance still provides that the normal expectations of total contact (ie lesson) time in school do not apply, nor are providers expected to have ‘set hours during which education will take place’ or a lesson timetable.129 While the DfE’s draft revised guidance published for consultation in April 2018 broadly adopted the same approach, there are, however, subtle indications that a slightly stricter approach than hitherto should be adopted. It recommended that local authorities bear in mind that, in school, children of compulsory school age receive about five hours of formal education per day for 190 days of the year and that there should be an expectation that parents will confirm the amount of provision they make. Local authorities would then have to view the issue of ‘full-time’ education ‘on a spectrum’, but if the education ‘is not occupying a significant proportion of the child’s life’ it would probably fail the test.130 The post 2007 guidance on EHE applied the broad test of suitability referred to in Talmud Torah (above): that the education – primarily equips a child for life within the community of which he is a member, rather than the way of life in the country as a whole, as long as it does not foreclose the child's options in later years to adopt some other form of life if he wishes to do so.131

In 2012, the House of Commons Education Committee concluded, without offering any reasoning, that the above definition was adequate, although acknowledged that ‘some aspects of existing guidance require clarification’.132 In 2016, the Casey review, while not coming out against home education per se, argued that as independent schools had a duty to provide education in ‘British values’ home education should also include it.133 On that basis, home education would need to do this in order to be considered ‘suitable’. In its draft revised guidance in 2018 the DfE did not go that far, emphasising that, unlike

128 20 June 1980 (unreported), Lexis Library [1980] Lexis Citation 1003. 129 DCSF, n 89 above, para 3.13. 130 DfE, Elective Home Education. Departmental guidance for local authorities: draft for consultation (London: DfE, 2018), paras 9.8 and 9.9. 131 Cited, without naming the case specifically, in DCSF n 89 above, para 2.3. 132 House of Commons Education Committee, Support for Home Education Fifth Report of Session 2012–13, vol 1 (HC 559-I) (London, The Stationery Office, 2012) para 15. 133 L Casey DBE, The Casey Review: A Review into Opportunity and Integration (HMSO, 2016), para 7.62, www.gov.uk/government/uploads/system/uploads/attachment_data/file/575973/The_Casey_ Review_Report.

Home Education and Unregistered Schooling 445 schools, parents are not required to promote fundamental British values but that if the provision made at home conflicts with those values it should not be considered suitable.134 This is also in the final version of the guidance on home education aimed at local authorities, issued in April 2019.135 It rejects the idea of a centralised prescription of suitability, although draws attention to the issue of suitability related to the child’s options in later life (above) and also emphasises that there should be ‘sufficient secular education’.136 It does not specify what the content of secular education should be and, since it accepts that local authorities are entitled to specify requirements on matters such as literacy and numeracy, could obviously have gone much further without compromising the essential freedom that it is still intended that parents should enjoy. In private settings, as Hamilton argues, it is difficult to see how education could prepare the child for life in wider society, and to ensure equality with other children, if a certain amount of secular provision is not made.137 Another important issue is that of isolation from one’s peers and the risk to social inclusion. The guidance is therefore right to acknowledge that suitable education is not merely about academic learning but also socialisation.138 Ultimately, the success of the registration reforms will hinge on the capacity and determination of local authorities to play their part in ensuring that EHE does not deprive the children in question of the education they need and have a right to expect. That this is an issue of children’s rights is insufficiently emphasised in the official guidance. A limited UNCRC assessment was, however, carried out by the DfE for the purposes of the 2019 reform proposals and it claims that the policy will in particular engage, to positive effect, Arts 3 (best interests of the child), 28 and 29 (concerned with the right to education and the goals of education respectively), by ‘helping to ensure the child receives a suitable education’, with the benefits to the child that flow from that.139 Less clear is whether there will be adequate protection of the public interest in ensuring that children’s education in these settings conforms with the liberal and democratic values that government is keen to promote and which is reflected in some of the UNCRC’s requirements on the aims of education – for example, that it prepares the child for ‘responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes’ and seeks the ‘development of respect for the natural environment’.140

134 DfE n 130 above, para 9.4(c). 135 DfE, Elective home education. Departmental guidance for local authorities (London, DfE, 2019). 136 Ibid, para 9.4. 137 C Hamilton, ‘Religious Schools and Religious Schooling’ in N V Lowe and G Douglas (ed), Families Across Frontiers (The Hague, Martinus Nihhoff, 1996), 395–405, 402. 138 DfE (2019) n 135 above, para 9.4. 139 DfE, UNCRC Asessment: Children Not in School (London, DfE, 2019). 140 UNCRC, Art 29.1 (d) and (e).

446 Education Outside the State Sector

IV. Conclusion Following the progressive development of a legal framework of standards for independent schools, albeit involving a less intense regulatory regime than applies to state schools, there is now a clear momentum towards the imposition of much stricter controls over elective home education and unregistered schools. In some ways it is surprising that the kind of intervention that is currently proposed has not occurred before now. However, there are several factors that have given reform an increased urgency. First, the numbers of children being educated in such settings seem to have greatly increased in recent years and yet the identity of the children is not always known. Secondly, there is more evidence of the poor standards of provision in some of the unregistered settings, with the spotlight being increasingly shone by Ofsted, which is targeting them for inspection. Thirdly, there is a concern that because some of the unregistered schools may be operated by minority groups or communities with conservative religious values and, from a liberal western perspective, extreme positions on a range of social issues, some children may be subject to extremist and illiberal ideas that might be prejudicial to their interests as future members of wider liberal democratic society, as well as to wider social cohesion. Fourthly, and linked to the previous factor, the way that many of these settings operate without proper external scrutiny raises serious concerns about issues of child welfare as well as access to effective education. That is not to say that all or some of these concerns would be applicable to the arrangements under which a majority of children in these settings, or even a large minority, are being educated. It is just that the evidence points to risks which government and regulatory agencies consider to have reached an unacceptable level. What makes the current prospect of reform particularly welcome is the shift in balance between, on the one hand, respect for parental rights to educate their children at home, or via community or other arrangements outside the education system, whether driven by religious or philosophical preferences or because of a genuine belief that the child’s interests will be better served, and, on the other, the protection and upholding of the rights of child – in accordance with the state’s view of what respect for the rights of the children concerned demands, albeit as yet to be fleshed out in firm legislative proposals.

9 Special Educational Needs: Voice, Place and Choice I. Introduction When the term ‘special educational needs’ (SEN) was first incorporated into law under the Education Act 1981 it represented an attempt to establish a new legal classification for children for whom the standard educational provision would not be adequate. The hope was that it would also provide for a less stigmatising status for those to whom it would apply. The SEN terminology has survived under the legislation in both England1 and Northern Ireland,2 whereas Wales is currently replacing SEN with ‘additional learning needs’ (although this is in substance the same as SEN)3 and Scotland has adopted the somewhat broader classification of ‘additional support needs’.4 With regard to the English legislation specifically, it is important also to understand the role of this classification. Under the Children and Families Act (CFA) 2014, part 3 of which now governs this whole area of provision, a child cannot be classed as having SEN unless their learning difficulty or disability ‘calls for special educational provision to be made for him or her’.5 As Avramidis and Norwich explain, the definition ‘SEN’ reflects a view of such children as ‘“special” within a particular educational context’.6 It is intended to ensure that the needs of children whose particular inherent difficulty or disability affects their capacity to learn are responded to via appropriate provision from the state, with the necessary support as their education progresses. Since a strict duty is owed to such children (albeit with a degree of resource contingency with regard to how the duty falls to be met) it is necessary to have, as far as possible, a clear divide between children who do or do not have SEN.

1 Now in the CFA 2014, s 20. 2 In the Education (Northern Ireland) Order 1996, Art 3, as amended. 3 Additional Learning Needs and Education Tribunal (Wales) Act 2018, s 2. 4 See S Riddell, E Weedon and N Harris ‘Special and additional support needs in England and Scotland – Current dilemmas and solutions’, in L Peer and G Reid (eds), Special Educational Needs. A Guide for Inclusive Practice (2nd edn) (London, Sage, 2016) 11–27 and E Weedon and S Riddell, ‘Additional support needs and approaches to dispute resolution’ (2009) 41 Scottish Educational Review 62. 5 CFA 2014, s 20(1). 6 E Avramidis and B Norwich, ‘Special Educational Needs: The State of Research. From Methodological Purism to Pluralistic Research Progress’, in Peer and Reid (eds) n 4 above, 28–44, 29.

448 Special Educational Needs: Voice, Place and Choice Yet, the legal construction of ‘special educational needs’ can contribute to the over-simplification of a complex issue, for example on the basis that other factors in low attainment, such as social or socio-economic factors, tend to be mostly irrelevant to whether a person should or will be classed as having SEN.7 As Weedon comments, ‘thinking of learning difficulties as intrinsic to the individual’ means that there will not be any focus on ‘the context in which they function’.8 Or as Swain et al put it, ‘needs are seen as residing in personal rather than structural deficiencies’.9 There is an inbuilt potential, resulting from the attempt to apply legal precision in a medically/psychologically related educational decision-making context, for a disconnect between special educational needs decisions and the way that some children, such as some of those with Autistic Spectrum Disorder, function in the world.10 However, a further, philosophically-orientated, critique suggests that distinguishing between special needs, on the one hand, and needs which are not ‘special’, on the other, and differentiating between people on that basis, may be philosophically justifiable if it is ultimately conducive to social inclusion and, in terms of the capability approach (discussed in Chapter 1),11 provides opportunities for ‘valued functionings’ of a kind that are integral to the individual’s well-being.12 This rests on the idea that if being identified as having SEN leads ultimately to a higher level of capability than would otherwise be the case then the classification brings a net gain to the individuals concerned. Once it is established that a child or young person has SEN there is a question as to the kind of educational arrangements that should be set in place for him or her. It is a question which is tied to a supplementary question of where – in which particular institution or in what kind of educational setting – the child or young person should be educated. Tensions can arise in the resolution of these questions, because central to them are key principles and resource-allocation issues over which there is considerable scope for disagreement and because this is a particularly rights-infused area of education law which provides many opportunities for choices and preferences to be expressed. The central principle, which is also a moral and philosophical issue, concerns inclusion – the idea of being educated within a mainstream setting alongside others who do not have SEN

7 D Monk, ‘Theorising Education Law and Childhood: constructing the ideal pupil’ (2000) 21(3) British Journal of Sociology of Education 355, 364. 8 C Weedon, ‘The Potential Impact and Influence of the Social Model of Disability’ in Peer and Reid (eds) n 4 above, 63–76, 65. 9 J Swain et al, Controversial Issues in a Disabling Society (Buckingham, Open University Press, 2003) 123. 10 See M King and D King, ‘How the law defines the special educational needs of autistic children’ (2006) 18(1) Child and Family Law Quarterly 23. 11 Per M Nussbaum, Frontiers of Justice: Disability, nationality, species membership (Cambridge MA, Harvard University Press, 2006) and see also Idem, Creating Capabilities. The Human Development Approach (London, Harvard University Press, 2011) and A Sen, Inequality Re-examined (Oxford, Clarendon Press, 1992). 12 S Vehmas, ‘Special needs: a philosophical analysis’ (2010) 14(1) International Journal of Inclusive Education 87, 94.

Introduction 449 and disabilities (SEND) rather than in a specialist setting catering exclusively for children with SEND. The issues of inclusion and resources are linked, since significant cost considerations arise from the choice of education setting. In order to understand how and on what basis such questions should be resolved, it is important to be aware of the various interested parties and decision-makers in this field. Children and young people are clearly the most directly interested in and affected by decisions taken. However, while there has for some years been a policy and professional commitment to engage with their views, much more so in the field of SEND than in other areas of education,13 there have until recently been no assurances of this being central to established practice. Changes made by part 3 of the CFA 2014, fully implemented by 2018, have now introduced a new framework of statutory rights for children (aged 0–15)14 to express their views and have them taken into consideration. Moreover, those it defines as young people (16–24)15 are recognised by the Act as independent actors able to have a direct input into key processes, including a right to express choices and to appeal, as discussed below. These statutory rights are, of course, additional to the rights of children under international treaties to which the UK is a party, not merely those of general application – especially the ECHR and UNCRC – but also, and of particular relevance to children with SEND, the CRPD, with for example its requirements for an ‘inclusive education system at all levels’ and access for c hildren with disabilities to primary and secondary education on an equal basis with others in their community.16 Notwithstanding these various rights, however, children and a majority of young people depend on their parents or carers to support their interests when decisions fall to be taken about their education. Parents are equipped with a wide range of participation and choice rights in this field, initially established in support of the principle articulated in the Warnock report in 197817 around which the landmark EA 1981 was based, that good decisions and educational progress for children with SEND is dependent on the involvement of parents in a partnership with schools and local authorities. Given the particular vulnerabilities and reduced capacity levels of many children with SEND, the parental role also underlines an essentially paternalistic approach to respecting children’s independent interests.18 While the CFA 2014 has enhanced the recognition given to the independent rights

13 See N Harris, ‘Playing Catch-up in the Schoolyard? Children and Young People’s “Voice” and Education Rights in the United Kingdom’ (2009) 23(3) International Journal of Law, Policy and the Family 331 and N Harris and G Davidge, ‘The practical realisation of children and young people’s participation rights: special educational needs in England’ (2019) 31(1) Child and Family Law Quarterly 25. 14 EA 1996, s 579(1). 15 CFA 2014, s 83(2). 16 UNCRPD, Art 24. See ch 4 above. 17 M H Warnock (chair), Special Educational Needs. Report of the Committee of Enquiry into the Education of Handicapped Children and Young People, Cmnd 7212 (London, HMSO, 1978). 18 See J Fortin, Children’s Rights and the Developing Law (3rd edn), (Cambridge, CUP, 2009) 20–22.

450 Special Educational Needs: Voice, Place and Choice of children and young people, as discussed below, it has also aimed to strengthen parental rights and to provide parents with ‘more control’ and ‘real choice over their child’s education’.19 For both parents and children/young people the Act and the SEND Code – the Code sets out detailed guidance to which local authorities, schools and health bodies must have regard when exercising their SEND functions20 – recognise that information and support are needed. Two key duties are placed on the local authority, concerning the publication of a ‘local offer’ intended to enable parents and children/young people to find information about the SEND provision available in the area,21 and the provision of advice and information about SEND matters for parents and children/young people.22 Overall responsibility for children with SEND rests under the CFA 2014 with each of England’s 152 local authorities. They hold a duty to engage with parents and children/young people and provide them with opportunities to participate when decisions fall to be made. Their responsibility extends to all children who have or may have SEND. The local authority has a duty to identify all such children,23 although clinical commissioning groups and NHS trusts/foundation trusts must also play their part.24 In practice, it may well be the parent or a teacher who first picks up on the child’s learning difficulties. The SEND Code sets an expectation that the class or subject teacher, working with the institution’s SEN co-ordinator (SENCO), should analyse the child or young person’s needs, drawing on factors such as the pupil’s progress and attainment levels, behaviour and any concerns raised by the parent.25 A plan is to be drawn up to provide ‘SEN support’, representing the arrangements to meet the child or young person’s needs, and it has to be periodically reviewed.26 Both schools and parents also have a right to request a formal assessment of a child’s needs by the local authority.27 As discussed below, not all children with, or believed to have, SEND require a formal assessment. Such an assessment is only considered necessary where there may be a need for the local authority to allocate additional resources, above those which the school or college already holds (intended to facilitate ‘SEN support’), to meet the child’s needs under the terms of an education, health and care plan (EHCP).28 19 DfE, Support and Aspiration: A New Approach to Special Educational Needs and Disability (Cm 8027) (London, DfE, 2011) 5. 20 CFA 2014, s 77(1). 21 Ibid, s 30. 22 Ibid, s 32. 23 Ibid, s 22. 24 Ibid, s 23, which provides that if they believe a child has or may have SEND they must inform the parent of that view and give him or her an opportunity to discuss the view with them, before then notifying the local authority. 25 See, eg, DfE and Department of Health (DoH), Special educational needs and disability code of practice: 0–25 Years (London, DfE/DoH, 2015) (SEND Code) para 6.45. 26 Ibid, paras 6.45–6.51. 27 CFA 2014, s 36. 28 CFA 2014, s 37. A claim that a denial of an assessment could amount to a denial of the right to education for the purposes of ECHR, A2P1 was rejected in H v Kent County Council and the Special Educational Needs Tribunal [2000] ELR 660.

Introduction 451 EHCPs have replaced statements of SEN, which had a similar role under the previous legislation (the EA 1996, part 4), but EHCPs as their name suggests are broader in scope so that, for example, any health care provision and social care that is needed should also be included in the plan. An EHCP will, among other things, set out the child’s or young person’s educational and other needs and the provision considered necessary to meet them. It will also specify the type of placement or name of institution that the child should attend. Local authorities are responsible for drawing up EHCPs, but this is a key area for parental and child/young person engagement, with rights to have an input into the process, as discussed below. Formal assessment also requires specialist inputs in the exercise of what Mashaw, in his models of administrative justice,29 refers to as ‘professional treatment’, where contextual interpretation forms the basis for decision-making, drawing on professional expertise in relation to the relevant client’s needs.30 This model is in tension with the ‘bureaucratic rationality’ model – referring to rule-based decision making aimed at ensuring an accurate application of rules consistent with the realisation of the established goals of the policy in question31 – which is also evident in this field.32 Dispute resolution also plays an important role in this field. SEND (including disability discrimination) is the only area of education decision making where those who are dissatisfied with the outcome may select mediation or an appeal to an administrative tribunal – the First-tier Tribunal (Health, Education and Social Care Chamber), with a right, with permission, to appeal further to the Upper Tribunal (Administrative Appeals Chamber). The involvement of a second-tier judicial appellate body in this field has meant that SEND has by far the largest body of accumulated case law of any area of education law. The aim of this chapter is to assess how far the rights of parents and children are realised from three thematic perspectives, which are quite closely inter-related and which are identified here as voice, place and choice. ‘Voice’ is concerned with the general opportunity to express one’s views, be supported in doing so, have one’s views taken into account and have proper weight attached to them, so that they may be acted upon whenever that is appropriate.33 It also concerns the specific circumstances in which the parent, young person and child must be given an input into a decision or process – for example, when an assessment of needs is

29 J L Mashaw, Bureaucratic Justice: Managing Social Security Disability Claims (New Haven and London, Yale University Press, 1983). 30 Ibid, 26–29. 31 Ibid. 32 See S Riddell, ‘Procedural Justice and Special Educational Needs Assessments in England and Scotland’ (2003) 7(3) International Journal of Inclusive Education 201; and N Harris, ‘Dispute Resolution in Education: Roles and Models’ in N Harris and S Riddell (eds), Resolving Disputes about Educational Provision (Farnham, Aldershot, 2011), 25–48. 33 See, eg, L Lundy, ‘“Voice” is not enough: conceptualising Article 12 of the United Nations Convention on the Rights of the Child’ (2007) 33(6) British Educational Research Journal 927 and the discussion below.

452 Special Educational Needs: Voice, Place and Choice conducted or an EHCP is being drawn up. ‘Place’ is concerned with the discrete issue of where children with SEND should be educated. Placement is a particular focus of the expression of choice. ‘Choice’ is concerned with the extent to which any expressed preferences or selections are adhered to – in other words, the degree of choice that is actually afforded. It is therefore a specific issue related to the question of empowerment of parents and young people in this context. The expression of choice is placed within a legislatively-prescribed bureaucratic framework that is consistent with the underlying principle of engagement and partnership. Yet this is a principle that will in some cases clash with that of inclusion, which also has legal force in that, as discussed below, there is a legislative presumption that children with SEND will be educated in a mainstream setting. The analysis below therefore focuses on the issues of voice, place and choice. However, first it is necessary to discuss in more detail the way that SEND is defined. The terms ‘SEN’ and ‘SEND’ are used interchangeably in this chapter, as occurs in the field itself. However, ‘SEN’ is used whenever reference is being made to special educational needs specifically, as for example when the term is used in the legislation.

II. SEND and Children and Young People in England It is nearly 40 years since the Education Act 1981 embedded in law the concept of ‘special educational needs’ related to a ‘learning difficulty’. It was retained in the EA 1993,34 consolidated within the EA 1996,35 and is now in the CFA 2014. The term SEN is defined now as where a child has ‘a learning difficulty or disability which calls for special educational provision to be made for him or her’.36 The emphasised words were additions made by the 2014 Act. The juxtaposing of ‘learning difficulty’ and ‘disability’ – ‘disability’ being defined for the purposes of the 2014 Act37 as a disability under the Equality Act 201038 – reflects the close association between SEN and disability. Indeed, it is common practice now to use the conjunctive ‘SEND’ when referring to this area of provision and as a term of reference for the children and young people to whom it is applicable. Furthermore, the 2014 Act left intact the widened jurisdiction of the SEN tribunal, encompassing both SEN appeals and complaints of disability discrimination in or about schools, following a change made by the Special Educational Needs and Disability Act (SENDA) 2001. At the same time, the distinction between ‘learning difficulty’ and ‘disability’ as the basis for having special educational needs a cknowledges that a person may

34 EA

1993, s 156(1). 1996, s 312(1). 36 CFA 2014, s 20(1). Emphasis added by author. 37 CFA 2014, s 83(3). 38 EqA 2010, s 6 and Sch 1. See ch 4 above. 35 EA

SEND and Children and Young People in England 453 have such needs but not necessarily a disability per se, and vice versa: ‘[n]ot all disabled children have special educational needs’.39 A ‘learning difficulty’ is defined, in the case of a child of compulsory school age or a young person, with reference to having either ‘a significantly greater difficulty in learning than the majority of others of the same age’ or a disability preventing or hindering the individual from using the standard facilities provided for others of their age in mainstream schools or post-16 institutions.40 The definition is substantively the same as when first introduced under the 1981 Act. Also retained are the application of the definition to those aged under two who would, if over that age, be considered to have a learning difficulty,41 and the exclusion from it of those whose difficulty stems from having a different language spoken at home to that in which he or she will be taught at school.42 Judging whether a person has a special educational need with reference to the expected experience of most others involves a relativistic approach which is very different from that which preceded it, under the EA 1944. The 1944 Act placed LEAs (as they then were) under a duty to ‘ascertain what children in their area require special educational provision’ and empowered them to serve a notice on the parent requiring the child to be examined by a medical officer in order to provide the LEA with ‘advice as to whether the child is suffering from any disability of mind or body’.43 The 1944 Act also empowered the minister to make regulations defining the categories of pupils who required ‘special educational treatment’, and ten categories were subsequently prescribed.44 They included physical disabilities, such as total or partial deafness or blindness, epilepsy and a general category of physical handicap. There was also a category of ‘delicate’ children. Mental factors were reflected only in the broad categories ‘educationally sub-normal’ and ‘maladjusted’. The final category was ‘speech defective’. The narrowness of these categories meant that many children who needed special forms of educational provision, for example those who had dyslexia, were excluded.45 The LEA had a duty to educate a child ‘whose disability is serious’ in a special school where that was practicable.46 The emphasis in the pre-1981 law therefore was on the severity of a person’s condition rather than precisely how it affected their capability to learn. The approach taken with the 1981 Act and carried through into the present law, however, looked to how far a person’s ability to learn was inherently limited – the precise nature of their physical or mental condition would not be relevant. 39 Ofsted, The special educational needs and disability review. A statement is not enough (London, Ofsted, 2010) 77. 40 CFA 2014, s 20(2). 41 Ibid, s 20(3). 42 Ibid, s 20(4). 43 EA 1944, s 34(1). 44 The Handicapped Pupils and School Health Service Regulations 1945 (SI 1945/1076) and 1959 (SI 1959/365). 45 V Hannon, ‘The Education Act 1981: New Rights and Duties in Special Education’ [1981] Journal of Social Welfare Law 275, 277. 46 EA 1944, s 33(2).

454 Special Educational Needs: Voice, Place and Choice Nevertheless, there has still been a need to show how the child’s condition affects his or her ability to learn. Even after the new definition of SEN was introduced under the 1981 Act there was still a degree of legal uncertainty over whether some kinds of difficulty were covered by it. However, judicial clarifications have occurred. Over the years the courts have confirmed that dyslexia47 and speech problems giving rise to a need for speech therapy48 are capable of giving rise to special educational needs, while arguments that this was the case with regard to a child’s religion or culture,49 the domestic circumstances in which they live,50 a need for home to school transport,51 or a need for constant supervision outside school hours,52 have all been rejected. Another issue that has received judicial consideration in this context is giftedness or exceptional ability. During the New Labour years there was government support for education initiatives designed to assist children who possessed high ability levels. Lest the policy might have been regarded as focused on the privileged rather than serving Labour’s then core goal of reducing social exclusion, the Government emphasised that children of exceptional ability came from ‘every background – children from disadvantaged backgrounds are just as likely to be gifted and talented as those from the middle class, and may need greater support to fulfil their potential’.53 Since 2010, however, this has been an area of policy neglected by government. In a review for the Sutton Trust in 2012, Smithers and Robinson found that provision and policy vis-à-vis the highly able were ‘in a mess’.54 Although New Labour’s initiatives in this field were developed outside the SEN framework, there have been individual attempts via legal action to position the needs of the exceptionally able within it. The courts accepted that a child with exceptional ability could have special educational needs,55 but that was not the same as saying that exceptional ability per se could constitute a learning difficulty. It is true that children of exceptional ability can find that standard educational provision does not meet their needs, since they may be insufficiently stretched and become bored and frustrated, and so there is an argument that for these children the criterion of having

47 R v Hampshire Education Authority ex parte J (1985) 84 LGR 547. 48 R v Lancashire CC ex p CM (A Minor) [1989] 2 FLR 279, CA; X and X v Caerphilly Borough Council and the Special Educational Needs and Disability Tribunal [2004] EWHC 2140 (Admin); [2005] ELR 78. See also DfES, Special Educational Needs Code of Practice (London, DfES, 2001) para 8:49. 49 G v London Borough of Barnet and the SENT [1998] ELR 480; A v Special Education Needs and Disability Tribunal and London Borough of Barnet [2003] EWHC 3368 (Admin); [2004] ELR 293, QBD. 50 G v Wakefield Metropolitan Borough Council, 29 January 1998, QBD (unreported). 51 Staffordshire County Council v JM [2016] UKUT 0246 (AAC); [2016] ELR 307. 52 W v Leeds City Council and the Special Educational Needs and Disability Tribunal [2004] EWHC 2513 (Admin); [2005] ELR 459. 53 DfES, Higher Standards, Better Schools for All (Cm 6677) (London, DfES, 2005) para 4.21. 54 A Smithers and P Robinson, Educating the Highly Able (London, The Sutton Trust, 2012) para 7.40. 55 R v Secretary of State for Education ex p C [1996] ELR 93; R v Hampshire Education Authority ex parte J (1985) 84 LGR 547; and R v Portsmouth City Council ex p F [1998] ELR 619.

SEND and Children and Young People in England 455 a ‘significantly greater difficulty in learning’ than the majority of those of their age may be satisfied. Such an argument was pursued in the High Court in S,56 although the alternative limb of SEN, relating to disability, was also in focus. S centred on a 16-year-old girl of exceptional ability. She had a statement of SEN due to having emotional and behavioural difficulties. She had become inattentive towards her homework and started to arrive late to school. Her father became dissatisfied with the school and moved her to a small independent school. He sought an assessment of her needs from the local authority. His aim was to have her new school named in her statement so that her place there would be funded by the local authority. The SEN tribunal upheld the local authority’s decision not to carry out an assessment, on the basis that, inter alia, no new needs had been identified. It was argued on appeal before Elias J that a functional and purposive approach should be adopted in construing the statutory definition of SEN, one which took account of the greater professional and policy recognition since the enactment of the EA 1996 of the need to support those with exceptional ability. But Elias J held that ‘[e]ven if, which I doubt, it can be said that there has been a change since 1996 in recognizing the needs of the exceptionally able student’ the wording of the statute was ‘not sufficiently flexible to give effect to any such change’.57 He said that it was ‘impossible’ to read the definition of learning difficulty to include exceptional ability. Parliament could have included a specific provision catering for the ‘high flyer’ but had not done so.58 He further stated that ‘disability’ meant ‘want of an ability, not excess of it’ and that while a particularly ‘bright child’ might not be being provided with an education appropriate having regard to his/her needs, ‘that is not the same as saying that [the child] is prevented or hindered from taking advantage of such facilities as are being provided for [him/her]’.59 Elias J also rejected an argument that there was unjustifiable discrimination for the purposes of Art 14 of the ECHR, read with A2P1, arising from the exclusion of exceptionally able children from the scope of the SEN duties. He doubted whether the different treatment of such children required specific justification; there were ‘obvious social and economic reasons why it may be thought desirable to use resources to help the less able but not the most able’.60 While the judicial reasoning in this case is not beyond criticism,61 the judgment in S resolved definitively the question whether exceptional intellectual ability could give rise to a learning difficulty for the purposes of SEN law. While the case law has resolved some areas of uncertainty over when a child may have special educational needs, the relative imprecision of the statutory

56 [2005] EWHC 196 (Admin); [2005] ELR 443. 57 Ibid, at [26]. 58 Ibid. 59 Ibid. 60 Ibid, [36]–[38]. 61 See N Harris, ‘Exceptionally able children: the current state of the law in England’ (2015) 16(3) Education Law Journal 175.

456 Special Educational Needs: Voice, Place and Choice definition means there remains significant scope for interpretation. This could be one factor behind the local variations in identification of children and young people with SEN, although the most deprived areas tend to have the highest rate.62 Nationally, there is also variability over time in the proportion of pupils identified as having learning difficulties. In January 2010, for example, they comprised almost 21 per cent of the school population in England,63 but the level was much lower, at 14.6 per cent, in January 2018, although it has since risen slightly to 14.9 per cent in January 2019.64 There has been a concern that the distinction between those who have or do not have SEN can be arbitrary and that ‘false classifications’ occur.65 In 2010, Ofsted, in a review of SEND, was critical of the numbers of pupils being identified as having SEN, claiming some had been wrongly classed as having SEN when in reality ‘their needs were no different to those of most other pupils’.66 In 2011 the Government warned that over-identification of SEN was harming children placed in this category because it led to a ‘culture of low expectation’.67 Schools and local authorities appeared to get the message being conveyed, because the proportion of pupils classed as having SEN fell each year between 2010–2017,68 before rising slightly (by 0.2 of a percentage point) to reach its January 2018 level noted above. Statistics on pupils’ primary types of need are recorded and show (January 2019) that for those with SEN whose needs are met via ‘SEN support’ rather than via an EHCP, the largest categories are ‘Moderate Learning Difficulty’ (22.8%), Speech, Language and Communication Needs (SLCN) (23.4%), Social, Emotional and Mental Health (SEMH) (18.1%) and Specific Learning Difficulty (dyslexia) (14.9).69 For pupils with an EHCP, the largest categories of need relate to Autistic Spectrum Disorder (29%), SLCN (15%), SEMH (13.3%), Severe Learning Difficulty (11.9%) and Moderate Learning Difficulty (11.5%).70 Almost twice as many boys as girls are identified as having SEN, and more than twice as many boys than girls have an EHCPs; and both are the case throughout all age groups.71 There are variations in the prevalence of SEN across different ethnicities. The groups with the highest proportion are children of travellers of Irish heritage (30%) and

62 Sir B Lamb, Lamb Inquiry, Special Educational Needs and Parental Confidence (London, Department for Children, Schools and Families, 2009) paras 4.1–4.2, citing an unpublished report by J Lewis et al. 63 DCSF, Special Educational Needs in England, January 2010, Statistical First Release SFR 19/2010 (London, DCSF, 2010) tables 1A and 1B. 64 DfE, Special Educational Needs in England, January 2018 (London, DfE, 2018) 1; DfE, Special Education Needs in England, January 2019 (London, DfE, 2019) 1. 65 House of Commons Education and Skills Committee, Third Report, Session 2005–06, Special Educational Needs (HC 478-I) (London, TSO, 2006) para 34. 66 Ofsted n 39 above, para 22. 67 DfE (2011), n 19 above, para 3.40. 68 Noted in DfE (2018) n 64 above, 4. 69 DfE (2019) n 64 above, fig C. 70 Ibid. 71 Ibid, fig G.

SEND and Children and Young People in England 457 those of Roma/Gypsy families (26%).72 Consistent with the link between special educational needs and relative deprivation, pupils entitled to free school meals are over twice as likely as other children to have SEN (28% and 13% of the respective categories).73 Returning to the statutory definition of SEN, it is important to recall that it refers to ‘having a learning difficulty or disability which calls for special educational provision to be made’.74 Special educational provision (SEP) is defined as any educational provision required for a child aged under two years or, in the case of those aged two or over, ‘educational or training provision that is additional to, or different from, that made generally for others of the same age’ in mainstream schools or mainstream post-16 institutions in England.75 The issue of what kind of provision is ‘educational’ as opposed to non-educational is sometimes contentious and is just as likely to arise, if not more so, in relation to the content of an EHCP (as was the case with the content of a statement of SEN in the past). This is because the SEP required by a child with an EHCP not only needs to be set out in the plan but also, as a result of being so specified, must be secured for the child by the local authority with additional funding, if necessary, unless the parents have made ‘suitable alternative arrangements’.76 Cases in which SEP has been a contentious issue include one where the provision of a lift in a school to enable a child in a wheelchair to ascend and access first floor rooms, including the science room and junior library, was held not to amount to SEP,77 and another where the same conclusion was reached in relation to nursing care to enable severely disabled child to be safe at school.78 The latter case was decided 20 years ago, however, and in recent years one finds judges being more willing to categorise provision as educational even if it is involves a health professional, as where provision needed to address an autistic child’s sexualised behaviour could be considered to amount to SEP as it was directly related to his learning difficulty.79 In another case, in 2017,80 it was held that ‘the support of a psychiatrist’ could be categorised as SEP and the judge referred to mindfulness training and cognitive behavioural therapy as potentially educational because they 72 Ibid, 9. 73 Ibid. 74 CFA 2014, s 20(1), emphasis added. 75 CFA 2014, s 21(1) and (2). 76 Ibid, s 42(1)–(2) and (5). (‘Health care provision or social care provision which educates or trains a child or young person is to be treated as educational provision (instead of health care provision or social care provision)’: ibid, s 21(5).) Any health care provision specified in the plan must be made by the responsible commissioning body: ibid, s 21(5). 77 R v London Borough of Lambeth ex p. MBM [1995] ELR 374: ‘I cannot find that the provision of a lift could be regarded as provision for an educational need … If the provision of a lift is necessary it is necessary to assist M’s mobility and not as special educational provision. The installation of a lift would be no more special educational provision than is the provision of M’s wheelchair’ (per Owen J at 382F-383B). 78 City of Bradford Metropolitan Council v A [1997] ELR 417. 79 H v A London Borough [2015] UKUT 316 (AAC); [2015] ELR 503. 80 DC and DC v Hertfordshire County Council (SEN) (Special Educational Needs: Description of Special Educational Needs) [2016] UKUT379 (AAC); [2017] ELR 27.

458 Special Educational Needs: Voice, Place and Choice involved systematic training for the child and ‘learning coping strategies to help him learn in the classroom and get along with fellow pupils, as a member of the school community’.81

III. Voice In March 2019, as part of its evidence gathering for its inquiry into SEN, the House of Commons Education Committee held an oral evidence session with a number of children and young people with SEND. The first session involved Ben, Jordan and Eva, members of the RIP:STARS,82 a group of disabled young people who had been conducting research with the assistance of Coventry University into young people’s experience of the SEN system, particularly EHCPs. Ben told the Committee: ‘children weren’t actually being involved in the process of their EHC plans’.83 This reflected evidence in the RIP:STARS research report: When asked about whether disabled children and young people should be given a “voice” in the EHCP, most professionals stated that this was the ideal, but in reality there was a long way to go to achieving creative, person-centred planning with disabled children and young people.84

This, and other recent research evidence on how children and young people’s voices are heard within the SEN process, is discussed below. An important point is that one of the key strands within the CFA 2014 reforms was the introduction of a strong presumption and new culture of child and young person participation within the SEND field, as well as a strengthening of the opportunities for parental participation and influence.

A. Background to the CFA 2014 Provisions on ‘Voice’ The involvement of parents in decisions about children’s SEN and provision has long been a normative feature of SEN processes, being encouraged by the Warnock Report and continually promoted in government policy. In many respects the 2014 Act builds on an existing framework of parental rights that was strengthened

81 Ibid at [18] per UTJ Lane. 82 Research Into Plans: Skilled Team with Ambition, Rights and Strength. 83 Oral Evidence: Special Educational Needs and Disabilities, HC 968, 19 March 2019, http://data. parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/education-committee/ special-educational-needs-and-disabilities/oral/98374.html. 84 RIP:STARS, Defining quality and rights-based Education, Health and Care Plans (EHCPs) for disabled children and young people 2018 (Coventry, RIP:STARS, 2018), 13, https://ripstarsnet.files. wordpress.com/2018/10/ripstars-finalreport2018-2.pdf.

Voice 459 under the EA 1993. For example, the 1993 Act conferred a right to express a preference for a school to be named as the placement in a statement of SEN, after an important study by the Audit Commission and Her Majesty’s Inspectorate of Schools (HMI) had reported that, a decade on from the implementation of the 1981 Act, local authorities and schools tended not to pay sufficient attention to parents’ views.85 Engagement with parents was seen as facilitating positive support for children’s education. By aiding the SEND professionals’ understanding and effective planning, it could be highly beneficial for meeting children’s needs.86 More broadly, engagement could be a ‘powerful lever for raising achievement in schools’.87 However, there were, and remain, tensions in the relationships between some parents and schools or local authorities,88 flowing from parents’ natural concerns to ensure their children’s needs are met in combination with the potential for conflicting perspectives over the various possible options for responding to those needs. SEN is a field where professional viewpoints still tend to dominate, potentially leading some parents to feel disempowered,89 but one where, as the legal ground has increasingly shifted in favour of parental engagement, many parents are determined to assert their rights. Research continues to demonstrate the importance parents attach to ‘being listened to’ and having ‘their views taken on board’ in the context of SEND.90 Over the years, the tension between parental rights and local authority budgetary constraints, borne out of the significant potential cost implications of SEN decisions, has manifested in disputes as parents ‘fight’ for a better deal for their child.91 The language of conflict was also adopted in the findings presented by the Lamb Inquiry, whose report Special Educational Needs and Parental Confidence92 in 2009 proved very influential in relation to the reforms proposed by the Coalition Government in its Green Paper in 201193 and subsequently incorporated into the CFA 2014. The report noted that some parents faced a ‘battle to get the needs of [their] child identified and for those needs to be met’.94 Lamb wanted the heat to be taken out of parent-local authority relationships in all parts

85 Audit Commission and HMI, Getting in on the Act. Provision for Pupils with Special Educational Needs: the National Picture (London, HMSO, 1992). 86 See, eg, the DfES, Special Educational Needs Code of Practice (London, DfES, 2001), section 2. 87 A Harris and J Goodall, Engaging Parents in Raising Achievement – Do Parents Know They Matter? (DCSF RW-004) (London, DCSF, 2007) 5. 88 See House of Commons Education and Skills Committee, Tenth Report of Session 2006–7, Special Educational Needs: Assessment and Funding (HM 1077) (London, DfES, 2007) 3. 89 R Rogers et al, Evaluation of Special Educational Needs Parent Partnership Services in England (RR719) (London, DfES, 2006). 90 M A Cullen et al, Review of Arrangements for Disagreement Resolution (SEND). Research Report (London, DfE/Ministry of Justice, 2017), 24. 91 House of Commons Education and Skills Committee (2006), n 65 above, para 147. 92 Lamb n 62 above. 93 DfE (2011) n 19. 94 Lamb n 62 above, 2.

460 Special Educational Needs: Voice, Place and Choice of the system – which needed to ‘feel more like one where “everyone is on the same side”’95 – and also a less adversarial approach to resolving disagreements or disputes. The report recommended a radical overhaul of the system. Both the Lamb report and a separate report by Penfold et al for the Department for Children, Schools and Families in the same year,96 found that there was a lack of parental confidence in the system resulting from the kind of relationships they had with local authorities. Parents were kept at arms-length and communication with them was often inadequate. Lamb found that parents’ views were ‘often not reflected in the statement [of SEN]. This undermines parental confidence in the process.’97 There was a belief that parents should instead be more directly involved and better informed to play a part as partners with the local authority in addressing the child’s needs. Proper systems for the provision of advice and information were also needed for parents, and it was important that they be consulted much more than had been happening, over local policy and other matters. Overall, Lamb was looking for a cultural shift in how schools, local authorities and parents engaged with parents, and a more accountable SEN system. The previous Government responded to Lamb by setting out an ‘implementation plan’ with a discrete chapter on ‘Strengthening the voice of parents’.98 The proposals were, however, rather limited and evinced a lack of urgency. For example, improving the information for parents would be a matter included in the next revision of the SEND Code of Practice, but it was not clear when that would occur, and other changes would hinge on the outcome of a consultation on information for parents. Other substantive changes that were proposed included a new national helpline for parents and training for parent partnership services (providers of advice and information) in education law. Training for local authority staff in improving parental confidence in the processes of assessment and provision to meet needs was also recommended. Although there was a change of government in 2010, the incoming Coalition Government was committed to implementation of the central tenets of the Lamb report. There was a promise to ensure ‘better support and more control’ for parents, the possibility to express a preference for any state-funded school (including an academy) for a child, and the creation of a ‘local offer’ with information about SEND provision in the area.99 Statutory assessment of needs would be subject to a stricter timescale and the process would be more transparent. There was also a commitment to provide clearer and more accessible guidance on the SEN framework and the rights and duties within it. A more streamlined Code was also promised, but as things have turned out, the

95 Ibid, 6. 96 C Penfold et al, Parental Confidence in the Special Educational Needs Assessment, Statementing and Tribunal System (DCSF-RR117) (London, DCSF, 2009). 97 Lamb n 62 above, 65. 98 DCSF, Improving parental confidence in the special educational needs system: an implementation plan (London, DCSF, 2010). 99 DfE (2011) n 19 above, 17, 42–46, 52.

Voice 461 new SEND Code that emerged in 2015 runs to nearly 300 pages (A4 size) and is over 80 pages longer than the previous (2001) edition. The Lamb report also made reference to the voice of children and young people. ‘Pupil participation’ was the subject of a whole chapter in the 2001 Special Educational Needs Code,100 which refers to ‘the right of children with special educational needs to be involved in making decisions and exercising choices’.101 Yet over seven years after the Code’s publication, Lamb was reporting that the involvement of the child in SEN processes was ‘rare’ or ‘tokenistic’.102 Lamb identified that children and young people’s own insights into their learning needs and the help they needed were ‘critical in informing statutory assessment and the drawing up of a statement’ and considered there was therefore a clear case for strengthening their involvement in individual decision-making.103 Lamb also made reference to how the collective voice of children and young people could provide ‘an important user perspective on quality and equality’ and deliver ‘feedback to inform the development of schools and services’.104 Despite this support for engagement with children or young people the report could have gone much further in offering firm practical proposals for extending their agency. The Labour Government’s implementation plan in 2010 said little about independent rights for children and young people, merely endorsing Lamb’s view on the importance of an ongoing national survey of this age group (called ‘TellUs’) and expressing a commitment to disaggregate the responses to the survey of those with SEND, if possible.105 However, it proposed extending to children and young people an independent right to appeal or bring a disability discrimination complaint to the First-tier Tribunal.106 Children with SEND would, along with other children, also have benefited from the ‘pupil guarantee’ provisions of the Children, Schools and Families Bill 2009–10. The guarantee was to be set out in a document to be issued by the Secretary of State and framed with reference to the ‘pupil ambitions’, which included pupils being able to attend schools ‘where they are able to express their views’, although there was no specific guarantee that regard would be given to them. However, neither the pupil guarantee nor the proposed ‘parent guarantee’ – with ‘parent ambitions’ which included having ‘opportunities to exercise choice’ and be ‘engaged in their children’s learning and development’ – were retained in the Bill. The Government, running out of parliamentary time with the approach of the 2010 general election, sought to accelerate the Bill’s passage into law and cleared the path by removing these contested clauses.

100 DfES,

Special Educational Needs Code of Practice (London, DfES, 2001) ch 3. para 3:1. See also DfES, SEN Toolkit (London, DfES, 2001). 102 Lamb n 62 above. 103 Ibid, 65 and 70. 104 Ibid, 70. 105 DCSF n 98 above, para 4.3. 106 Ibid, para 4.25. 101 Ibid,

462 Special Educational Needs: Voice, Place and Choice The proposals for SEND reform published by the Coalition Government in 2011107 recognised the force of the Lamb proposals on enhancement of parental engagement and control but offered almost nothing on the promotion of children and young people’s participation and rights, the exception being proposals for extending independent rights of appeal, initially under a pilot, and to bring a claim of disability discrimination.108 Although SEN appeals clearly concern the interests of children, parents alone held appeal rights as set out in the appeal provisions.109 Although children’s right to be heard under the UNCRC extends, inter alia, to ‘any judicial … proceedings affecting the child’,110 it is not required that the child has party status in such proceedings.111 Yet there has long been a concern about the position of ‘looked after’ children112 with SEND. Apart from when they have foster parents,113 their parent is in law the local authority, yet the local authority which made the SEN decision would also be the respondent to the looked after child’s appeal. Consequently the appeal right is in effect nugatory in such circumstances. Giving the child an independent right of appeal would therefore remove this obstacle as well as bring the system into line with Children Act 1989 public law proceedings, to which the child is a party. In calling for an independent SEN appeal right for children in the UK the UN Committee on the Rights of the Child has specifically referred to the disadvantaged position of looked after children.114 Although the CFA 2014 contains a power to introduce a pilot for a children’s right of appeal,115 its implementation was held back116 pending the results of the Welsh Government’s piloted SEN right of appeal in Carmarthenshire and Wrexham between 2012–2015.117 In the event, the Welsh pilot offered little encouragement to ministers, since there was but one disability discrimination complaint and no SEN appeals by children.118 The power to initiate the pilot in England was not exercised and then lapsed, since the 2014 Act provides for the

107 DfE (2011) n 19 above. 108 Ibid, paras 2.67 and 2.68. 109 S v Special Educational Needs Tribunal and the City of Westminster [1996] ELR 228. 110 UNCRC, Art 12.2. 111 A Daly, Children, Autonomy and the Courts: Beyond the Right to be Heard (Brill Nijhoff, 2018) 273. 112 Per the Children Act 1989, s 22(1), referring to children under local authority care or provided with accommodation by the local authority under its children’s services functions. 113 The foster parents would then be classed as the legal parent: Fairpo v Humberside County Council [1997] ELR 12. 114 UN Committee on the Rights of the Child, Concluding Observations: United Kingdom of Great Britain and Northern Ireland, CRC/C/GBR/CO/4 (Geneva, Switzerland, 2008) para 67 – and see also the concerns raised at para 66(a) and (b). 115 CFA 2014 Act, s 58. 116 DfE (2011) n 19 above, para 2.47. 117 Education (Wales) Measure 2009 (2009 nawm 5), art 17 and the Education (Wales) Measure 2009 (Pilot) Regulations 2012 (SI 2012/321) (W 52). 118 D Holtom, S Lloyd-Jones and J Watkins, Evaluation of a Pilot of Young People’s Rights to Appeal and Claim to the Special Educational Needs Tribunal for Wales (Llandudno Junction, Welsh Government, 2014).

Voice 463 revocation of the power five years after the date of the Act’s Royal Assent (which was on 13 March 2014).119 The Welsh Government has nevertheless proceeded with extending a right of appeal to children across Wales.120 The child’s appeal right in Wales is ‘exercisable concurrently with the parent’s rights’121 and is set to continue under the new Education Tribunal for Wales established under the Additional Learning Needs and Education Tribunal (Wales) Act 2018. Where young people (aged 16–24 inclusive, as in England) are concerned, they alone will have a right of appeal and their parents will not have one.122 In England, in addition to the now lapsed power to pilot a right of appeal for children with SEND the 2014 Act contains a power for children to be provided with an independent right of appeal and complaint on a permanent basis. However, it is only exercisable after the completion of a two-year piloted appeal right.123 Since the power to introduce a pilot has now lapsed, as noted above, this pre-condition can no longer be met. Aside from the proposals on the right of appeal, it was not until its response in 2012 to the Green Paper consultation that the Government set out its plans for children and young people’s rights to be legally incorporated, including a framework for engagement with their views.124 This was an area of policy intention that, along with others such as giving parents greater control and co-ordinating education, health and care arrangements, were able to be tested out in the ‘Pathfinders’ programme across 20 areas (covering 31 local authorities) in two stages up to September 2014.125 The evidence from the Pathfinders was, however, that while engagement with children and young people was occurring to a certain degree it tended to be lacking in the handling of individual cases, where the process was mostly parent or carer focused.126 Other research confirmed that children and young people were not involved much in local preparations and in the support planning process.127 The final impact report of the Pathfinders128 painted a slightly more favourable picture on children and young people’s engagement, but nevertheless

119 CFA 2014, s 58(5). 120 Education (Wales) Measure 2009 (Pilot) (Revocation) Regulations 2014 (SI 2014/3267) (W 334) and the Education (Wales) Measure 2009 (2009 nawm 5), art 1, inserting ss 332ZA into the Education Act 1996. 121 EA 1996, s 332ZA(3). 122 Additional Learning Needs and Education Tribunal (Wales) Act 2018, s 70. 123 CFA 2014 Act, s 59. 124 DfE, Support and aspiration: a new approach to special educational needs and disability: progress and next steps (DfE, 2012). 125 Ibid, para 1.30. 126 M Craston, G Thom and R Spivak, Evaluation of the SEND pathfinder programme: process and implementation Research Report June 2013 (DfE, 2013), 39. 127 K Hill et al, The SEN and Disability Pathfinder Programme Evaluation: Readiness for reform and effectiveness of Pathfinder Champions. Research report (London, DfE, 2014); M Craston et al, Special Educational Needs and Disability Pathfinder Programme Evaluation. Summary of interim impact findings. Research report. December 2014 (London, DfE, 2014). 128 G Thom et al, Special Educational Needs and Disability Pathfinder Programme Evaluation. Final Impact Research Report. July 2015 (London, DfE, 2015).

464 Special Educational Needs: Voice, Place and Choice only 37 per cent of parents and carers agreed that their son or daughter’s views had been taken into account,129 with the main reason for non-participation being the child’s young age or the nature or severity of their needs/disability.130 The report’s overall comment on the piloted reforms in general, that more remained to be done before ‘aspiration’ was translated into ‘reality’,131 was apposite to the specific issue of engagement with children and young people.

B. The CFA 2014 and Parents, Children and Young People: Engagement and Participation i. Principles of Participation Part 3 of the 2014 Act, which governs SEND provision in England, commences with a list of general principles which, ‘in particular’, should govern local authority actions: (a) the views, wishes and feelings of the child and his or her parent, or the young person; (b) the importance of the child and his or her parent, or the young person, participating as fully as possible in decisions relating to the exercise of the function concerned; (c) the importance of the child and his or her parent, or the young person, being provided with the information and support necessary to enable participation in those decisions; (d) the need to support the child and his or her parent, or the young person, in order to facilitate the development of the child or young person and to help him or her achieve the best possible educational and other outcomes.132

It is important to stress that while this provision appears far reaching, these are only expressed as matters to which local authorities should ‘have regard’.133 Moreover, they only apply to local authorities – yet for the majority of children and young people with SEND, decisions about their educational arrangements will be made at an institutional level, by their school or college. Nevertheless, the principles and their position at the start of part 3 of the Act send out an important message to everyone working in the field of SEND and, moreover, are also reflected in the SEND Code, to which governing bodies of schools and other institutions, among others, are under a statutory duty to have regard.134

129 There were 698 Pathfinder families and a comparison group comprising 1,000 families where there was a statement of SEN under the EA 1996 and no EHCP under the CFA 2014: ibid, 25. 130 Ibid, 42. 131 Ibid, 103. 132 CFA 2014, s 19. 133 Ibid. 134 CFA 2014, s 77(1) and (4).

Voice 465

ii. Capacity What is particularly marked about the specific engagement or participation duties under the 2014 Act is that they recognise the autonomy of those aged 16 or over with SEND. In practice, the exercise of the rights to which they give rise is contingent on the young person’s mental capacity. The test of capacity is prescribed with reference to the Mental Capacity Act 2005.135 Local authorities (or, in an appeal or discrimination case, the tribunal136) are the arbiters of capacity. If the young person lacks capacity there is provision for their rights normally to be exercised by another person on their behalf – the ‘alternative person’, who will be either a representative holding a lasting power of attorney or appointed by the Court of Protection or, if there is none, the young person’s parent.137 Lack of capacity is clearly a potential barrier for quite a number of children and young people with SEND, but the General Comment on UNCRC, Art 12, which applies on an equal basis to all, emphasises that children’s capacity should be presumed rather than having to be proved by them.138 Research by the author and others has shown that local authorities tend to adopt a rather looser test of capacity than that prescribed by the legislation, resulting in the potential application of a lower threshold of incapacity, raising the risk of an inappropriate denial of participation rights in some cases.139 This ESRCfunded research has also revealed that in SEN processes such as reviews of their needs many children and young people with SEND prefer their parent to speak for them anyway, although in some cases it is the parent who is ‘hanging on’ protectively.140 On the other hand, it is important to recognise that support from adults, and knowing how to secure it, will often be necessary to ensure the capability of children and young people to participate in decision-making.141 Capability, argues Doyle, may be a better way of t hinking about participation of children and young

135 Mental Capacity Act 2005, s 2(1): ‘incapacity to make a decision for oneself due to an impairment of, or a disturbance in the functioning of, the mind or brain’. For discussion, see M Doyle, A Place at the Table: A report on young people’s participation in resolving disputes about special educational needs and disabilities (Colchester, University of Essex, 2019) 38–41. 136 Capacity is to be determined as a preliminary issue, for example where there is a question whether a young person is able to bring an appeal independently: see Buckinghamshire County Council v SJ [2016] UKUT 254; [2016] ELR 350 and London Borough of Hillingdon v WW [2016] UKUT 253 (AAC); [2016] ELR 431. 137 Special Educational Needs and Disability Regulations 2014 (SI 2014/1530) (SEND Regs), regs 64 and 65 and Sch 3; and CFA 2014, s 80. There are some exceptions. For example, both the young person and the alternative person must be consulted where the local authority undertakes a review of an EHCP. 138 UN Committee on the Rights of the Child, General Comment No.12 (2009) on the right of the child to be heard (CRC/C/GC/12) (Geneva, Switzerland, Centre for Human Rights, 2009) para 20. 139 Harris and Davidge (2019) n 13 above. The research was part of an Anglo-Scottish project with Professor Sheila Riddell (University of Edinburgh) entitled ‘Autonomy, Rights and Children with Special Needs: A New Paradigm?’ (ref ES/P002641/1): see www.ed.ac.uk/education/rke/centres-groups/creid/ projects/autonomy-rights-sen-asn-children. 140 Ibid (Harris and Davidge). 141 As explained in Doyle n 135 above, 40–1.

466 Special Educational Needs: Voice, Place and Choice people with SEND than the legal construct of ‘capacity’, since it accepts the need for supported decision-making without compromising the independent rights linked to participation.142

iii. Engagement and Co-production Areas where children and young people enjoy new rights of engagement as result of the 2014 Act include the duty on local authorities to keep local provision of education, training and social care for children and young people with SEND under review143 and a separate duty to prepare and maintain a ‘local offer’ – comprising information, to be published by the local authority, on education, health and care provision, training provision, travel to school arrangements, and provision to assist in preparation for adulthood and independent living.144 In relation to both of the above areas there is a duty to consult with children and young people with SEND and the parents of children with SEND, along with schools and others.145 In the case of the local offer, local authorities are required to seek comments from the parents, children and young people on the local offer’s contents, the accessibility of its information and ‘how the local offer has been developed or reviewed, including how those children, parents and young people have been involved in the development and review of the local offer’.146 Local authorities must publish at least annually the comments they have received provided they are not ‘vexatious’.147 They must also publish their comments in response along with any action they propose to take in the light of the public’s views.148 Publication is to be on the local authority’s website. The SEND Code says there needs to be ‘strong feedback mechanisms to ensure that children, young people and parents understand the impact their participation is making’.149 Without it, there is risk that engagement processes of this nature with children

142 Ibid. See also the discussion of the capability approach above and in ch 1 at 10–11. 143 CFA 2014, s 27. 144 CFA 2014, s 30. 145 In relation to the duty in s 27, in R (KH and Others) v Surrey County Council [2019] EWHC 618 (Admin) (which concerned a challenge to SEN funding cuts) the High Court emphasised that local authorities had ‘to consult at reasonable intervals, those identified in section 27(3) in order to keep the provision referred to under review, in which connection local authorities must consider the extent to which the provision referred to is sufficient to meet the educational needs, training needs and social care needs of the children and young people concerned’: ibid, [103] per Sharp LJ. It does not require the local authority to do this ‘every time a change is made to the provision of SEN’ (ibid, [102]). This ruling was applied with approval by Supperstone J in R (AD) v London Borough of Hackney [2019] EWHC 943 (Admin); [2019] ELR 296, in deciding not to set aside for want of consultation the council’s decision to cut its ‘Resource Levels’ for funding special education provision in EHCPs by 5%. See also R (ZK) v London Borough of Redbridge [2019] EWHC 1450 (Admin). In the case of the local offer, see the SEND Regulations 2014, n 137 above, Pt 4. 146 SEND Regulations 2014 (ibid), reg 56. 147 Ibid. The comments must be anonymised for publication. 148 Ibid. 149 DfE/DoH, SEND Code n 25 above, para 1.12.

Voice 467 and young people, while a valuable demonstration of how participatory citizenship can work, may be perceived as tokenistic and not genuine.150 The very specific nature of these duties indicates a level of seriousness about the intention to ensure engagement with users of SEND services and those directly affected by them and to facilitate ‘co-production’, which has been described as ‘a service delivery philosophy that shifts the balance of power and control from the provider of a service to the user’.151 This reflects a policy intention underlying the Green Paper’s commitment to giving parents more control, noted above. The collective participation of children and young people with SEND that these requirements demand represents a significant advance in recognition of their agency and is consistent with the idea promoted by the UN Committee on the Rights of Persons with Disabilities that the equal participation of children with disabilities on an inclusive basis (required under UNCRPD, Art 24) and the need to ensure they ‘feel valued, respected and listened to’, extends not merely to plans related to their own learning but also to involvement in ‘the development of school policies and systems, and in the development of the wider educational policy’.152 In practice, this aspect of the reforms under the CFA 2014 seems to be working reasonably well. The ESRC-funded research by the author and others, noted above, has indicated that a majority of local authorities are engaging with children and young people over their local offer and when reviewing local provision, using either a youth forum or equivalent body or consulting via voluntary organisations or surveys.153 However, DfE monitoring of co-production and user engagement via local authorities and Parent Carer Forums154 has revealed some scope for improvement, since participation levels are mostly ‘moderate’, particularly where children are concerned.155 There are also potential opportunities for the collective voice of children with SEND to be heard via school councils, which are not mandatory in England although are in Wales.156 They comprise bodies of pupils of a school which discuss issues of relevance to the school and perhaps the wider community and communicate their views to the head teacher and governing body, who would be expected to consider them and provide a response. In Wales, the head teacher must arrange for school councils to convene at least six times per annum.157 The UN Committee 150 See L Lundy, ‘In defence of tokenism? Implementing children’s right to participate in collective decision-making’ (2018) 25(3) Childhood 340. 151 A Paget, ‘Pupil Power’ (2014) 4(6) Every Child Journal 49. 152 UN Committee on the Rights of Persons with Disabilities, General comment no. 4 on right to inclusive education (CRPD/C/GC/4) (Geneva, UN, 2016) paras 12 and 47. 153 As reported in Harris and Davidge (2019) n 13 above. 154 Local groups of parents and carers which provide feedback and represent parent and carer interests to local authorities in relation to local policy and practice: see DfE/DoH, SEND Code, n 25 above, para 1.13. 155 DfE, 0–25 Special Educational Needs and Disabilities, Alternative Provision and Attendance Unit, March 2018 Newsletter, Annex B. 156 The School Councils (Wales) Regulations 2005 (SI 2005/3200) (W.236). 157 Ibid, reg 3.

468 Special Educational Needs: Voice, Place and Choice on the Rights of Disabled Persons has advocated the participation of children with disabilities in school councils.158 It would be consistent the CRPD, Art 7.3: States Parties shall ensure that children with disabilities have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children, and to be provided with disability and age-appropriate assistance to realise that right.

There is limited evidence, however, on how effectively children and young people with SEND are able to participate in these councils. Just over a decade ago, Whitty and Wisby found that the school councils in special schools were enabling the voice of children with SEND to be heard but concluded that these children might require specific forms of support in order to be able to participate and that there was a need for schools to be assisted in ‘designing provision for pupil voice that can accommodate a wide spectrum of abilities and disabilities among pupils’.159 More recent research reports that while many children and young people with SEND have participated in school councils in mainstream schools, or in student councils in post 16 provision, those with SEND tend nevertheless to be under-represented on these bodies.160 This research has also shown that those who have participated in their council have felt a sense of satisfaction in having the opportunity to influence their learning environment.

iv. Participation in EHC Assessment and Planning Turning to involvement in decisions about provision in individual cases, parents and young people, as independent actors, do not have the level of knowledge and experience of local authorities and SEND professionals and this disadvantage may hinder participation. SENDA 2001 placed a duty on local authorities to arrange for parents to receive advice and information on matters relating to the child’s SEN and to make the advice and information services known to parents, head teachers and others.161 Lamb made repeated reference to the importance of ensuring such provision was made and specifically recommended that parent partnership services (a support service arranged by local authorities but meant to operate independently) should be re-launched ‘to provide parents with expert, high-quality advice’.162 So far as children are concerned, the UN Committee on the Rights of the Child has stressed the importance of

158 UN Committee on the Rights of Persons with Disabilities n 152 above, para 47. 159 G Whitty and E Wisby, DCSF Research Report DCSF-RR001 Real Decision Making? School Councils in Action? (London, Department for Children, Schools and Families, 2007) 18 and 86. 160 N Harris and G Davidge, ‘The rights of children and young people under special educational needs legislation in England: an inclusive agenda?’ (2019) 23(5) International Journal of Inclusive Education 491 and G Davidge and N Harris, Autonomy, Rights and Children with Special Educational Needs. Working Paper 9, English Case Study Findings (Edinburgh, CREID, 2019). 161 SENDA 2001, s 2, inserting EA 1996, s 332A. 162 Lamb (2009) n 62 above, 3, 4 and 8.

Voice 469 the availability of advice for children on expressing their views.163 So it is significant that the CFA 2014 has extended the scope of the local authority’s duty on advice and information to include provision for children and young people with SEND as well as children’s parents.164 Local authorities are also under a duty, when carrying out an assessment of individuals’ education, health and care needs, to consider the need for the child’s parent or the young person to have information, advice and support to ensure effective participation in the assessment.165 They also have to inform them of the availability of this help where the need exists166 – a duty which, on the whole, seems to be mostly complied with.167 According to a survey, those availing themselves of these services have viewed them in positive terms.168 Nevertheless, the services seem to be little used by children and young people.169 One contributory factor is likely to be the shortfall in the availability and resourcing of advice services in some areas.170 The Government’s announcement in 2018 that a contract had been entered into with the third sector at a cost of £20 million for the provision of SEND information, advice and support171 therefore represented a necessary and positive development. Opportunities are now provided throughout the SEN processes for children and young people as well as children’s parents to have an input into them.172 Young people and children’s parents may, for example, request an ‘EHC assessment’ (an assessment of education, health and care (EHC) needs) by the local authority,173 have a right to be notified when the authority is considering such an assessment,174 and may express their views and give evidence to the authority.175 Such views will need to be considered by the authority before it decides if an assessment is to be carried out,176 the test for whether to conduct an assessment being whether, in the authority’s view, it may be necessary for special educational provision to be made for the child or young person in accordance with an EHCP.177 The latest available statistics show that at the start of 2019, 2.8 per cent of the pupil population in

163 UN Committee on the Rights of the Child, General Comment No 12 (2009) on the right of the child to be heard (CRC/C/GC/12) (Geneva, Centre for Human Rights, 2009), para 16. 164 CFA 2014, s 32. 165 SEND Regs 2014 n 137 above, reg 9. 166 Ibid. 167 L Adams et al, Experiences of Education, Health and Care Plans. A survey of parents and young people. Research Report. March 2017 (London, DfE, 2017). 168 Ibid. 169 Doyle, n 137 above, 44. 170 See Harris and Davidge (2019) n 13 above. 171 DfE, ‘Boost in support for children with additional needs’, 10 May 2018, www.gov.uk/government/ news/boost-in-support-for-children-with-additional-needs. 172 As noted earlier, in the case of young people, the parent has no independent right (although may be acting on behalf of the young person if the latter lacks capacity). 173 CFA 2014, s 36(1)–(2). 174 Ibid, subs (7). 175 Ibid. 176 CFA 2014, s 36(3)–(4). Similar provision is made in relation to a re-assessment: ibid, s 44. 177 Ibid, s 36(8).

470 Special Educational Needs: Voice, Place and Choice England had an EHCP (or a residual statement of SEN), equivalent to about one in five of the pupils with SEN.178 If an EHC assessment is carried out the authority must consult with the child, the child’s parent or the young person and take into account their views, wishes and feelings; and it also has a separate duty to ‘engage’ with them ‘and ensure they are able to participate in decisions’.179 Children’s parents and young people also have a range of rights in connection with EHCPs. The local authority is under a duty to make an EHCP where, having carried out an EHC assessment, it is in its view, ‘necessary for special educational provision to be made for a child or young person in accordance with [one]’.180 This of course connotes a significant element of discretion on the local authority’s part, but it must be guided by the SEND Code, which advises that the local authority should take account of whether the child or young person is making sufficient progress under his or her current arrangements and whether the special educational provision required to meet his or her needs could reasonably be provided from the resources available to a mainstream school or post-16 institution. If neither is the case then an EHCP would be necessary.181 The local authority must consult the child’s parent and the young person over the proposed contents of a plan182 and inform them of their right to make representations about the draft plan’s contents and to request that a specific school or other institution should be named in it (see below).183 At appropriate points when a decision is made, such as where it has been decided not to carry out an assessment, or not to make an EHCP, or about the contents of the plan, or if the local authority decides that a plan is no longer needed and therefore should cease to be maintained,184 the child’s parent or the young person also have a right to be informed by the local authority of their right of appeal.185 Despite the independent rights held under these provisions, it is clear from the recent ESRC-funded research that relatively few young people are exercising them, often preferring their parent or carer to act on their behalf or being subjected to the parent’s assumption of a protective role in which the parent prefers to relinquish control of decision making to the young person gradually or not at all, depending in part on the young person’s perceived vulnerability.186 In relation to a right to express a preference for a school to be named in an EHCP, 42 per cent of the local authorities responding to a survey for the research project indicated that the young

178 DfE (2019) n 64 above, 1. 179 SEND Regs 2014, n 137 above, reg 7. See also DfE/DoH, SEND Code, n 25 above, para 9.21. 180 CFA 2014, s 37(1). 181 DfE/DoH, SEND Code, n 25 above, paras 9.3, 9.54 and 9.55. 182 CFA 2014, s 38(1). 183 Ibid, s 38(2). 184 A decision made under ibid, s 45. 185 SEND Regs 2014 n 137 above, regs 5(3), 10(3), 14(2) and 22(10). The right of appeal is in CFA 2014, s 51. See below. 186 Harris and Davidge, ‘The rights of …’, n 160 above, 501.

Voice 471 person hardly ever informs them of the school they would like to have named in their plan and a further 32 per cent said it happens in less than half of all cases.187 One of the key prescribed components of the EHCP188 is section A, which has to set out ‘the views, interests and aspirations of the child and his parents or the young person’. Research has found that children and young people generally do not complete this section independently and that usually their parents have a significant input into its content.189 The research by Adams et al, conducted as the EHCPs were being phased in, revealed that while most parents had had their wishes or feelings recorded in the EHCP, it was far less common for those of young people and especially children to be included.190 It is anyway unclear that the views expressed by children and young people in section A in themselves have much of an influence on the arrangements made by the plan,191 although there are, as mentioned above, opportunities for young people and children’s parents to influence, through an expression of preference, the nature of the education placement. Reviews, which generally involve a meeting to which the parties are invited and which are undertaken annually and when a child or young person is within 12 months of transferring to a different stage of education,192 are another aspect of EHC planning in which there are opportunities for children and young people, along with parents, to have an input. However, they are an area where, whether as a result of lack of confidence, lack of capacity or the influence of the parent, many children and young people struggle to participate.193 The Local Government and Social Care Ombudsman, in a report on its first 100 investigations into 187 G Davidge and N Harris, Working Paper 4 English Local Authority Survey Results (Edinburgh, CREID University of Edinburgh, 2018) table 27. 188 On the prescribed contents of an EHCP, see the SEND Regs 2014 (SI 2014/1530), reg 12. The plan must contain: the views, interests and aspirations of the child and his parents or the young person (Section A); the child or young person’s SEN (B); the child or young person’s health care needs related to their SEN (C); the child/young person’s social care needs related to their SEN or disability (D); the outcomes sought for the child/young person (E); the special educational provision required by the child/ young person (F); any health care provision reasonably required by the learning difficulties or disabilities linked to the SEN (G). In addition, it must indicate: any social care provision (H1/H2); the name of the school, post-16 institution or other institution (and the type of that institution) to be attended by the child or young person, or if it is not considered appropriate to name a school then the type of school or institution (I); and if any special educational provision for the child/young person is to be met via a ‘direct payment’, which SEN and outcomes the payment is to meet (J). Advice and information obtained by the local authority must be appended (Section K). 189 O Palikara, S Castro, C Gaona and V Eirinaki, ‘Capturing the voices of children in the education, health and care plans: Are we there yet?’ Frontiers in Education (2018) (doi: 10.3389/feduc.2018.00024) and N Harris and G Davidge, ‘The rights of children and young people under special educational needs legislation in England: an inclusive agenda?’ n 160 above. 190 L Adams et al, Experiences of Education, Health and Care Plans. A survey of parents and young people. Research Report. March 2017 (London, DfE, 2017) 121–2. 191 Harris and Davidge ‘The rights of …’, n 160 above. 192 See CFA 2014, s 44 and the SEND Regs 2014, n 137 above, reg 18. The review at year 9 (14 years) and every review the child has thereafter has to have a focus on ‘preparing for adulthood’: DfE/DoH, SEND Code, n 25 above, paras 8.9–8.12. 193 Harris and Davidge, ‘The rights of …’, n 160 above.

472 Special Educational Needs: Voice, Place and Choice complaints about EHCPs and planning, identified as a common complaint a failure by local authorities ‘to consider whether an annual review format with a range of professionals attending is the best one to allow the child or young person to participate fully in the assessment and planning process’.194 Reviews are an area of strategic planning where the recommended provision of an ‘independent skilled supporter’ to help young people ‘in expressing their views about their education, the future they want in adult life, and how they prepare for it, including …. How they will achieve greater autonomy and independence’195 may be particularly important. Local authorities are expected to ensure access to such support for those who need it, but there is no evidence on the extent to which this occurs in practice.

v. Personal Budgets One of the measures aimed at giving parents and young people greater control involves the provision of a ‘personal budget’.196 Personal budgets are used across a range of settings, including care (being built into the Care Act 2014197) and represent an element within a broad ‘personalisation’ agenda aimed at giving a greater say and more power to the service user.198 In the case of SEN, the budget is based on an amount to meet the cost of securing provision specified in an EHCP. Being granted a personal budget enables the child’s parent or the young person to be involved in securing the provision. There is the possibility of direct payment of all or some of the relevant amount to the young person or parent, although the local authority must be satisfied that, inter alia, the intended recipient is ‘capable of managing direct payments without assistance or with such assistance as may be available to them’, does not lack capacity within the terms of the Mental Capacity Act 2005 (see above), and will (in the case of a parent/carer/nominee), act in the child’s or young person’s best interests when using the budget to secure p rovision.199 In practice, although parents and young people have a right to a personal budget, very few personal budgets have so far been granted, especially in the case of young people.200 In 2017 there were just over 11,500 personal budgets in place, representing just four per cent of all cases where the child or young person had an EHCP; and although the total rose by one-third to 15,700 in 2018 this still only represented

194 Local Government and Social Care Ombudsman, Education, Health and Care Plans: Our First 100 Investigations (2017) 9, www.lgo.org.uk/assets/attach/4197/EHCP%20FINAL2.pdf. 195 DfE/DoH, SEND Code, n 25 above, para 8.18. 196 CFA 2014, s 49; and the Special Educational Needs (Personal Budgets) Regulations 2014 (SI 2014/1652). 197 See the Care Act 2014, ss 26 and 31–33. 198 See P Spicker, ‘Personalisation falls short’, British Journal of Social Work (2013) 437, 1259–1275. 199 SI 2014/1652, n 196 above, regs 5 and 6. 200 Davidge and Harris (2018), n 187 above, 10 and 53.

Voice 473 4.4 per cent of EHCP cases.201 A personal budget must be requested by the parent or young person and clearly relatively few are taking this step. It is unclear whether that is due to lack of awareness or understanding (although the local authority must provide information to parents and young people about personal budgets202) or because of a reticence to take on the responsibility that is involved in holding a personal budget. Research into the use of personal budgets for care for adults with mental health difficulties has shown that while being a budget holder can be empowering, some will require considerable support in being able to handle their budget and that managing a budget can be stressful.203

vi. Dispute Resolution One of the most important areas in which the participation of children and young people needs to be secured is dispute resolution. The 2014 Act has built on the pre-existing structure involving an appeal (and/or complaint of disability discrimination) to the First-tier Tribunal (Health, Education and Social Care Chamber) and mediation as the principal mechanisms for dispute resolution. Their role is discussed below, particularly with regard to the opportunities for children and young people to participate in these processes. One other mechanism which has a role in the resolution of disputes about SEND is disagreement resolution services (DRS). They are aimed at avoiding or resolving disagreements between young people/parents of children and local authorities or educational institutions; and local authorities are required to commission them, although the DRS must be independent of them.204 DRS are intended to offer a ‘quick and non-adversarial’ process.205 However, DRS are under-utilised by parents and this seems to be largely due to a lack of understanding of their role and how they differ from mediation.206 Resolution also occurs, quite frequently, via negotiation with the local authority, often aided by information, advice and support services (SENDIASS) (as with their predecessors the parent partnership services).207 However, in relation to dispute resolution the quality and quantity of these information, advice and

201 DfE, Statements of SEN and EHC plans: England 2018 (London, DfE, 2018) 1 and 9; DfE, S tatements of SEN and EHC plans: England 2019 (London, DfE, 2019), 7. 202 If there is an EHCP or one in preparation the local authority must provide the child’s parents or young person with information about personal budgets (PBs): SI 2014/1652, n 196 above, reg 3. Also, the authority is expected to include information about PBs, including the support in managing one, in the published ‘Local Offer’ (above): DfE/DoH, SEND Code, n 25 above, para 4.58. 203 S Hamilton et at, ‘Power, Choice and Control: How Do Personal Budgets Affect the Experiences of People with Mental Health Problems and Their Relationships with Social Workers and Other Practitioners?’ (2016) 46(3) British Journal of Social Work 719. 204 CFA 2014, s 57 and DfE/DoH, SEND Code, n 25 above, para 11.6. 205 DfE/DoH, SEND Code, n 25 above, para 11.7. 206 M-A Cullen et al (2017), n 90 above, 28. 207 See Harris and Riddell (2011) n 32 above, 61–3.

474 Special Educational Needs: Voice, Place and Choice support services tend to be variable and there is a concern among some parents that they are insufficiently independent of local a uthorities.208 It is also important to note the significant number of SEN issues that are central to complaints taken to the Local Government and Social Care Ombudsman (LGO). Complaints by any ‘member of the public’209 (which appears to enable children and young people as well as parents to bring them) may be investigated into the administration of SEN processes, including adherence to statutory time limits, provision of information, arrangements for assessments and consultation and engagement with parents and young people over EHC plans.210 There were 217 complaints about SEND recorded with the LGO in 2016–17, but 315 in 2018–19.211 Complaints over EHCPs are particularly prevalent. Complaints and enquiries to the LGO over these plans doubled between 2014–15 and 2015–16, which perhaps might have been expected as the new system was introduced, and 80 per cent of the complaints investigated were upheld,212 well above the LGO average of 53 per cent,213 an indication perhaps of the difficulties the burden of EHC planning and the scale of demand for EHC assessments may be having on the efficiency of local administration of SEND case work in some areas. a. Mediation Mediation has been used as a dispute resolution method in the field of SEN for over 20 years214 but was regularised following the establishment in 2001 of a statutory duty215 for local authorities to make arrangements involving the appointment of independent persons to facilitate dispute avoidance or resolution, that it was intended would involve mediation services.216 Mediation has advantages of relative accessibility and informality compared with tribunal hearings as well as being less adversarial. It thus should facilitate participation by parents and young people. It is also potentially more conducive to better long-term relationships between the parties, which may be important as children continue within the education system. 208 M-A Cullen et al (2017) n 90 above, 27 and 72–81. 209 Local Government Act 1974, s 26A(1). 210 See, eg, Local Government and Social Care Ombudsman n 194 above. Reports of investigations of individual SEN complaints are posted at www.lgo.org.uk/decisions/education/ special-educational-needs. 211 LGO, Not going to plan? Education, health and care plans two years on (Coventry, LGO, 2019), 1. 212 The jurisdiction centres on complaints of maladministration. If injustice to the complainant is found to have occurred as a result the LGO can issue recommendations to remedy it, ranging from compensation to an apology. For examples relating to SEN, see ibid and Local Government and Social Care Ombudsman, Guidance on good practice: remedies (Coventry, LGO, 2018), 87–8, www.lgo.org.uk/ information-centre/reports/guidance-notes/guidance-on-remedies. 213 Local Government and Social Care Ombudsman, n 194 above, 1–2. On the power of the LGO to make recommendations, including as to action to be taken to remedy injustice, see Local Government Act 1974, s 31. In 2018–19 the LGO (Review of Local government complaints 2018–19 (Coventry, LGO, 2019)) upheld 58% of complaints overall. 214 See J Hall, Resolving Disputes Between Parents, Schools and LEAs: Some Examples of Best Practice (London, DfEE, 1999). 215 SENDA 2001, s 3, inserting EA 1996, s 332B. 216 DfES, Special Educational Needs Code of Practice (London, DfES, 2001) paras 2.29–2.30.

Voice 475 But mediation can also be problematic due to the risk that settlements reached in some individual cases may not fully uphold the legal entitlements of children and parents,217 since in terms of outcome, mediation as a process aims primarily at settlement rather than substantive justice.218 Evidence from research under the pre-2014 Act arrangements indicated that not only was the take-up of mediation significantly sub-optimal,219 but children had little involvement in the process even though official guidance stressed the importance of ascertaining their ‘wishes, needs and views’.220 Parents often resisted children’s participation for protective reasons or because children’s involvement was not explicitly encouraged.221 Measures were taken to encourage the use of mediation in cases in which an appeal path was being embarked upon. The tribunal’s rules introduced in 2008 required tribunals to seek, where appropriate, to bring suitable alternative dispute resolution procedures to the parties’ attention. If the parties were in favour and the tribunal’s overriding objectives, such as avoidance of delay, were not in conflict with it, the use of that procedure was to be facilitated.222 The tribunal was reported to have advised those lodging an appeal to consider mediation and to have provided them with details of local mediation providers.223 Under the CFA 2014, however, mediation has now been given a more central position within SEN dispute resolution. In support of its aim of ensuring a less adversarial approach to dispute resolution, the Government had initially proposed to make participation in mediation a pre-requisite to appealing.224 Consultation suggested quite strong support for this, with 70 per cent of respondents to the 2011 Green Paper being in favour.225 At that point it was expected that the Government would await the outcome of the SEN Pathfinders, noted above, in which the role of mediation was one of the matters to be assessed. It later became clear that the appellants would be expected to speak by telephone to a named independent mediation provider, and with the knowledge and insight gained would be able to make an informed choice about participating in mediation.226

217 See House of Commons Education Committee, Pre-Legislative Scrutiny. Special Educational Needs. Sixth Report of Session 2012–13 Vol 1. (HC 633-1) (2012) para 108; Harris and Riddell (2011) n 32 above, 35–40. 218 H Genn, Judging Civil Justice (Cambridge, CUP, 2010). 219 See Harris and Riddell (2011), n 32 above, ch 3. A Ruff, ‘Mediation: Its Role in Special Educational Needs and Disability Cases’ (2010) 11(4) Education Law Journal 289, table 2, provides figures on mediations conducted by KIDS London Mediation between 2006–07 and 2008–09 which show that there were below 100 requests for it per annum across the capital. 220 DfES, SEN Toolkit (London, DfES, 2002) pt 3, para 45. 221 K Soar, I Gersch and J A Lawrence, ‘Pupil involvement in special educational needs disagreement resolution: a parental perspective’ (2006) 21(3) Support for Learning 149. 222 Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI 2008/2699) (L.16), rr 2 and 3. 223 Ruff, n 219 above, 295. 224 DfE (2011), n 19 above, 53. 225 DfE (2012), n 124 above, para 2.41. 226 See Senior President of Tribunals, Senior President of Tribunals’ Annual Report (February 2012) (London, Ministry of Justice, 2012) 31.

476 Special Educational Needs: Voice, Place and Choice Thereafter, as provided for under the initial draft Bill published in 2012 the authority would have to arrange for mediation by an independent provider and the would-be appellant would have to take part in it. A pre-legislative scrutiny by the House of Commons Education Committee, however, found much resistance from local authorities, voluntary sector bodies and others to the idea of compulsory mediation;227 and compulsion was subsequently abandoned. Nevertheless, there would be a condition of receiving information and advice on mediation and deciding whether to participate in it before an appeal could be made. As a result, even with time limits applicable to the various stages in the process, the parent or young person who appealed faced a potentially more protracted dispute resolution process overall. Nonetheless, the Government drew support from the initial Pathfinders pilot which indicated that where mediation occurred there was a higher settlement rate for disputes.228 Research by Cullen et al revealed that where mediation occurred the likelihood of an appeal being pursued or taking place was reduced by 14 per cent and that there was a consequential saving, calculated at £12,800 per case (of which about half was a saving to the parent and the rest was to the public purse (the local authority’s and the tribunal’s expenditure), or £499 per case overall (ie taking account of cases both where mediation did and did not occur prior to the appeal).229 Official statistics have since shown that only one quarter of the mediations which have taken place have been followed by an appeal in the same case.230 As discussed below, the numbers of both mediations and appeals have increased significantly over the past few years. The finalised arrangements for mediation in the Children and Families Bill were preserved more or less intact as the Bill completed its parliamentary stages. Now, under the 2014 Act, a right to mediation arises where there has been a decision in respect of which an appeal may be brought or when an EHCP has been made, amended or replaced.231 Mediation can concern education and/or health care issues.232 The process is excluded, however where the dispute relates to what are in effect matters over which there is no scope for compromise or settlement because they are yes/no issues: the name or type of school to be stated in an EHCP or the fact that a plan does not name a school or other institution.233 The local authority has a duty, when giving notification of a decision which is appealable,

227 House of Commons Education Committee, Pre-Legislative Scrutiny. Special Educational Needs. Sixth Report of Session 2012–13 Vol 1. (HC 633-1) (2012), paras 104–110. 228 Cited in ibid, para 109. 229 M-A Cullen et al (2017) n 90 above, 32–3. 230 DfE, Statements of SEN and EHC plans: England, 2018 (London, DfE, 2018) 9; DfE, Statements of SEN and EHC plans: England, 2019 (London, DfE, 2019) 8. 231 CFA 2014, s 52. 232 CFA 2014, ss 53 and 54. The local authority and, if health is involved in addition to education/ social care, the relevant health body, must participate, but if the matter concerns only health, the health body alone would need to participate. 233 CFA 2014, s 55.

Voice 477 to inform the child’s parents or the young person of their right to pursue mediation, the need to contact the mediation adviser, and the adviser’s contact details.234 The adviser has to provide information and advice to the parent or young person about mediation and respond to any questions.235 To bring an appeal, the parent or young person must obtain a certificate from the adviser. A certificate must be issued by the mediation adviser (within three working days)236 if, after they have received information and advice from the adviser, the child’s parent or young person either (a) has participated in mediation, having notified the adviser that they wished to do so; or (b) has notified the adviser that they do not wish to participate in mediation.237 So participation in mediation itself is not a pre-requisite to an appeal, but at the very least consideration of it is. These requirements resulted in a significant increase in the number of mediations as the CFA 2014 framework progressed towards its full implementation, in 2017–18. In 2016 there were 1,886 mediations,238 rising by one-third to 2,497 in 2017 and by a slightly small proportion to 3,200 in 2018.239 The parties – including the young person or parent of the child – plus the child (if the parent and mediator both agree) have a right to attend the mediation; and in any event the mediator has a duty to ‘take reasonable steps to ascertain the views of the child about the mediation issues’ and, if the young person’s ‘alternative person’ is a party,240 the young person’s views.241 As Walsh points out, the views of the child may not be the same as that of their parent,242 so it is important that the child’s own views are heard. There is no prescribed procedure for the mediation itself and no explicit right to speak is conferred on those entitled to attend. Nor is the SEND Code expansive on this issue. However, it does advise of the need of young people with learning difficulties for advocacy support when participating in a mediation session.243 In Walsh’s study of SEN mediation, such support from advocates was viewed positively by families.244 Evidence suggests that the participation of children and young people in mediation meetings remains far from normative,245 with one report indicating that attendance occurs in only one in 12 cases involving young people.246 In addition to wishing to shield children from harmful information, there may be a concern that the child will be bored or 234 DfE/DoH, SEND Code, n 25 above, paras 11.18–11.19. 235 Ibid, para 11.20. 236 SEND Regs 2014, n 137 above, reg 34(1). 237 CFA 2014, s 55. 238 DfE, Statements of SEN and EHC plans: England, 2017 (London, DfE, 2017) 9. 239 DfE, Statements of SEN and EHC plans: England, 2018 (London, DfE, 2018) 9; DfE, Statements of SEN and EHC plans: England, 2019 (London, DfE, 2019) 8. 240 The young person has an ‘alternative person’ if lacking capacity: see ‘Capacity’ above. 241 SEND Regs 2014, n 137 above, reg 38. 242 B Walsh, ‘“A Powerful Thing”: Exploring the Participation of Children and Young People in Special Educational Needs Mediation’ (2017) 18(1) Education Law Journal 13, 33. 243 DfE/DoH, SEND Code, n 25 above, para 11.38. 244 Walsh, n 242 above, 27–8. 245 Harris and Davidge (2019), n 13 above. 246 Doyle, n 135 above, 9.

478 Special Educational Needs: Voice, Place and Choice their attendance would, depending on their particular needs, inhibit discussion or be distracting,247 although such problems can be ameliorated by having the child present for just a part of the meeting. In some cases the views of children and young people are fed into the mediation via alternative means, for e xample through video clips or written comments.248 Walsh makes quite a strong case for giving children and young people a degree of autonomy in deciding what their level of participation should be and for ensuring the provision of information to them on how their preferences and wishes can be conveyed.249 SEN mediators, who are required to have ‘sufficient knowledge of the legislation relating to special educational needs, health and social care to be able to conduct the mediation’,250 seem well aware of the importance of involving children and young people.251 Their involvement would of course be consistent with Art 12, UNCRC, but in practice mediation remains almost exclusively an adult domain. One of the drawbacks to mediation, and a reason that some advice agencies consider an appeal to be a more valuable route to redress, is that the agreement or settlement reached through mediation is not legally binding, unlike a decision by the tribunal on an appeal.252 Cullen et al, referring to mediation, found that to parents and professionals there ‘did not appear to be accountability about honouring the agreement’253 and Drummond refers to concerns by parents as to ‘the resoluteness of the outcomes reached during the process’.254 b. Appeals A right to appeal against SEN decisions was established under the EA 1981 following a recommendation of the Warnock report that parents should be able to have a decision by the local (education) authority on whether or not the child needed special educational provision to be referred to the Secretary of State for a ruling.255 But when the Education Bill was before Parliament in 1980–81, it was very much expected that appeals would be rare.256 The right of appeal was narrowly cast, largely because there was an expectation that local authorities would adopt a pragmatic approach to decision-making and would aim to be accommodating

247 Harris and Davidge ‘The rights of …’ n 160 above. 248 Ibid. 249 Walsh, n 242 above, 30. 250 SEND Regs 2014, n 137 above, reg 40. 251 As explained by, for example, Global Mediation and KIDS, who both engage in SEN mediation: www.globalmediation.co.uk/what-is-mediation/ and www.kids.org.uk/mediation-info. 252 SEND Regs 2014, n 137 above, regs 43 (powers of the tribunal to make orders and as to the kind of orders) and 44 (requiring compliance with the tribunal’s orders within set time limits, subject to exceptions). But note the tribunal’s power to make recommendations re social care or health, below. 253 Cullen et al, n 90 above, 29. 254 O Drummond, ‘When the Law is not Enough: Guaranteeing a Child’s Right to Participate at SEN Tribunals’ (2016) 17(3) Education Law Journal 149, 156. 255 Warnock (1978), n 17 above, para 4.74. 256 See N Harris, Special Educational Needs and Access to Justice (Bristol, Jordans, 1997) 16.

Voice 479 towards their parent ‘partners’. Thus, for example, an appeal against a decision about whether to carry out a formal assessment of a child was considered unnecessary, because non-assessment would normally be the result of representations by the parent.257 Parents were, however, granted a right of appeal against a postassessment decision not to make a statement of SEN (the forerunner of today’s EHCP, as noted above). This appeal lay to the Secretary of State who could not overturn the authority’s decision but only direct it to reconsider the matter.258 There was also a right of appeal to an appeal committee, organised by the local authority, over the provision proposed in a statement of SEN. The committee’s decision was not binding – it could only uphold the decision or remit the case to the authority with recommendations259 – but the parent had a right of further appeal against the committee’s ruling to the Secretary of State, who had a power to amend the statement or order its cessation.260 It was felt to be inappropriate to enable the committee to issue a binding ruling on, for example, school placement even though decisions by appeal committees handling ordinary school admissions appeals under the EA 1980 were binding. This was because whereas school admissions appeals were all about parental choice and preferences, the focus of the SEN appeal was on the suitability of the school or other placement to meet the child’s needs, and the appeal committee might lack the expertise ultimately to determine such a question.261 With the establishment of the Special Educational Needs Tribunal (SENT) under Part III of the EA 1993 there was an appeal body which had the requisite expertise. Ever since then, appeal decisions have been binding on the parties. With a much more elaborate framework of law to be grappled with and appropriate procedural standards to be met, legal skills were required on the SENT. The tribunal was required to have a legally qualified chair in addition to two lay members from a panel comprising persons with experience in respect of either children with SEN or local government.262 The EA 1993 also significantly expanded the grounds of appeal. It enabled parents to appeal against a refusal to make a statement, a decision to make, amend or not amend one, a decision to not to comply with a parent’s request for an assessment or a further assessment, the content of the statement and a refusal to agree to the naming of a different school in it, and a decision to cease to maintain a statement. The SENT was established as a national judicial body with a President. The 1993 Act also established a second-tier appeal jurisdiction; appeals could be brought on a point of law from the SENT to the High Court,263 a jurisdiction held since 2008 by the Upper Tribunal

257 HL

Debs, Vol 423, Col 999, 30 July 1981, per Baroness Young, Minister of State. 1981, s 5(6) and (8). 259 Ibid, s 8(4) and (5). 260 Ibid, s 8(6) and (7). 261 Harris (1997), n 256 above, 18. 262 Special Educational Needs Tribunal Regulations 1995 (SI 1995/3113), reg 3. 263 Tribunals and Inquiries Act 1992, s 11, as amended by the EA 1993, s 181(2). 258 EA

480 Special Educational Needs: Voice, Place and Choice (Administrative Appeals Chamber) in respect of decisions of the First-tier Tribunal, which replaced the SENT at the same time. Second tier appeals have given rise to a large body of case law on SEN. Having a proper judicial character, including independence, a legally qualified chair and a body of procedural rules, the SENT stood out as a model adjudication body compared to those handling cases in the two other major education dispute areas – school exclusions and school admissions.264 For the purposes of both appeals to the SENT and further appeal to the High Court the appellant was the parent, as noted above.265 The Court of Appeal held that the child did not hold a right of appeal, because the legislation on appeals specifically and exclusively referred to the parent.266 Until the CFA 2014 gave young people with SEND an independent right of appeal it was therefore the case that even an appeal relating to a young person of 18 who was still covered by SEN law (as a result of still being at school) would have to be brought by the parent. In S, Leggatt LJ (as he then was) acknowledged that that was ‘what the 1993 Act dictates’ even though it was somewhat ‘anomalous’ since there ‘might be a dispute between a child who had attained his majority and his parents’.267 But the chief problem was that within a system so geared towards the rights of the parent as appellant the independent voice of the child was at risk of being marginalised. There was also nothing in the procedural regulations that provided a child with a right to attend the appeal hearing or give oral evidence, although the parent could call the child as a witness.268 Although the tribunal was not placed under a duty equivalent to that of the courts under the Children Act 1989 to ‘have regard in particular to – (a) the ascertainable wishes and feelings of the child (considered in the light of his age and understanding)’,269 reflecting the principle established in Art 12 of the UNCRC, the SEND Code of Practice at the time did call upon decision-makers to adopt this approach.270 When S was before the High Court Latham J responded to a contention that, at the tribunal, the child’s wishes (in this case, those of a child aged 13 with dyslexia) were not taken into account, by holding that the tribunal’s decision indicated that ‘his views were heard; there was no obligation upon the tribunal in this case to do more’.271 Nevertheless, research indicated that, in appeals, the child’s perspective was only

264 See N Harris, ‘The developing role and structure of the education appeal system in England and Wales’ in M Harris and M Partington (eds), Administrative Justice in the 21st Century (Oxford, Hart Publishing, 1999) 296–325 and, on school exclusion appeals specifically, N Harris, K Eden and A Blair, Challenges to School Exclusion. Exclusion, Appeals and the Law (London, Routledge Falmer, 2000). 265 Under ‘Background to the CFA 2014 provisions on “voice”’. 266 S v Special Educational Needs Tribunal and the City of Westminster [1996] ELR 228. 267 Ibid, at 230E. 268 SI 1995/3113, n 262 above, reg 17. 269 Children Act 1989, s 1(3). 270 DfE, Code of Practice on the Identification and Assessment of Special Educational Needs (London, DfE, 1994) para 1:3. 271 Note 266 above, 115F.

Voice 481 at the margins of what was being considered and a tribunal member admitted that it was ‘sometimes very difficult to find the small, individual voice of the child’.272 As noted above, SENDA 2001 widened the jurisdiction of the tribunal to include disability discrimination (DD) cases and its name was also extended to ‘the Special Educational Needs and Disability Tribunal’ (SENDIST). A further appeal ground was added, relating to a refusal to carry out an assessment at the request of the school.273 The expertise of the tribunal in the area of SEND was strengthened by a requirement that all lay members had to have knowledge and experience of children with SEN or disabilities or both.274 The procedure regulations for both SEN appeals and DD cases now gave the child a specific right to attend the hearing,275 although enabled anyone, including the child, to be excluded by the tribunal if their conduct had disrupted the hearing or was likely to do so or if their presence would make it difficult for anyone to adduce evidence or make necessary representations.276 The tribunal was not placed under an explicit duty to hear from the child but was empowered to ‘permit the child to give evidence and to address the tribunal on the subject matter of the [appeal/claim]’.277 While none of these provisions, nor the opportunity for the parent’s appeal or claim to include the child’s views,278 guaranteed that the child’s voice would be heard and listened to, the requirement that the local authority’s written case statement in response to a SEN appeal should set out the child’s views or explain why it had not been possible to ascertain them279 should at least have ensured that any such views would be before the tribunal in most cases. The 2001 changes, according to the tribunal’s President, reinforced the tribunal’s ‘established policy of welcoming children at hearings wherever it is appropriate’.280 In November 2008 the SEN appeals and disability discrimination claims jurisdiction was transferred to the First-tier Tribunal, part of the unified tribunal structure established under the Tribunals, Courts and Enforcement Act 2007 (and now falling within HM Courts and Tribunals Service) and the only education adjudication body to be brought within it. The structural change has not altered the essential components of this appellate jurisdiction. The composition of the tribunal has continued as before, although the chairs are now tribunal judges. Save for an additional ground added in 2010,281 the grounds of appeal were unaltered. 272 Tribunal member quoted in Harris (1997), n 256 above, 149. 273 SENDA 2001, s 8, adding EA 1996, s 329A. 274 See the Special Educational Needs Tribunal Regulations 2001 (SI 2001/600) and the Special Educational Needs and Disability Tribunal (General Provisions and Disability Claims Procedure) Regulations 2002 (SI 2002/1985). 275 Ibid, reg 30(2)(a) in both sets of regulations. 276 Ibid, reg 30(4) in both sets of regulations. 277 Ibid, reg 30(7) in both sets of regulations. 278 Ibid, reg 9(1) in both sets of regulations. 279 SI 2001/600, n 274 above, reg 13(2). 280 T Aldridge, ‘Special Educational Needs Tribunal: New Procedure’ (2001) 2(3) Education Law Journal 131, 131. 281 The appeals jurisdiction was extended further by s 2 of the Children, Schools and Families Act 2010 to include a decision not to amend a statement of SEN following a review: EA 1996, s 328A.

482 Special Educational Needs: Voice, Place and Choice The grounds of appeal as set out now in CFA 2014 obviously relate to the processes under that Act, so that for example they cover a decision on whether to make an EHCP and on the contents of a plan, such as the SEN, special educational provision, and name or type of school or other institution specified in it.282 Although, as noted above, EHCPs may include health and care elements, these parts are not specifically covered by the appeal grounds. Rather, the Act enables a power to be conferred on the tribunal to make recommendations on ‘other matters’ and it has been used to confer a power to make non-binding recommendations on health and care needs and provision.283 This extension of the tribunal’s powers was broadly welcomed as being in line with the integrated approach reflected in EHC planning itself,284 but there is concern about how the unenforceability of the health and care recommendations ‘weakens the impact of the EHC [plan] as a co-ordinated plan’ and about a continuing uncertainty regarding the boundary between health and education needs.285 The power to make these recommendations is in effect being piloted for two years under a Single Route of Redress National Trial, which commenced in April 2018.286 The essential participation rights of children, young people and parents have broadly continued as before, but some of the procedural requirements, notably those concerned with setting out the views of the child, are laid down in a Practice Direction rather than in regulations.287 The child’s right to attend the hearing (but with the possibility of being excluded if there is a risk of disruption or of inhibition of oral submissions etc, as previously) is preserved under the tribunal rules, which also empower the tribunal to permit the child to give evidence and address the tribunal.288 Both the level and frequency of participation among children and young people in SEN tribunal hearings have been and continue to be low, notwithstanding the independent right of appeal that the 2014 Act has, as noted above, conferred on young people (although very few appeals are brought by them289). The ESRC Autonomy research in England, referred to 282 CFA 2014, s 51. They also include a decision not to assess, not to re-assess, not to make an EHCP, not to amend or replace an EHCP following a review or re-assessment, or to cease to maintain a plan. 283 The Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017 (SI 2017/1306). 284 Cullen et al, n 90 above. 285 SEN Policy Research Forum, An early view of the new SEN/disability policy and legislation: where are we now? (2016), 17, www.sendgateway.org.uk/download.sen-policy-research-forum-an-early-reviewof-the-new-send-policy-and-legislation-where-are-we-now.html. See, eg, East Sussex County Council v JC [2018] UKUT 81 (AAC) [2018] ELR 383, where use of a powered wheelchair was held to be potentially educational provision. 286 As to how the pilot will be evaluated, see DfE/DoH, SEND Tribunal: single route of redress national trial (March 2018), https://assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/686902/SEND_Tribunal-single_route_of_redress_national_trial_guidance.pdf. 287 Practice Direction, Health, Education and Social Care Chamber, Special Educational Needs or Disability Discrimination in Schools Cases (2008). 288 Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI 2008/2699) (L.16), rr 24(b) and 26. 289 Harris and Davidge (2019), n 13 above, reporting a recent survey of local authorities in which over half of them indicated that in the previous 12 months no appeals had been brought by young people independently and a further third of authorities had had no more than two such appeals.

Voice 483 above, and Drummond’s research in Wales and Northern Ireland, have shown how parents are often resistant to their child’s attendance at the tribunal, fearful that the child would experience undue stress or suffer emotional harm due to what might be said about them or their learning difficulties or disabilities,290 echoing similar concerns regarding mediation meetings noted above. Although local authorities are expected to ensure that the child’s views are put before the tribunal, or explain why those views are not available, a majority of local authorities appear to have difficulty in complying with this requirement. Reasons include issues to do with the child’s capacity, a lack of parental co-operation or consent, or the family’s legal advisor’s resistance.291 There is also a concern that any such views that have been elicited are in reality the parent’s rather than those of the child.292 Of course, if the case concerns the contents of an EHCP, the tribunal should also have access to the child’s views as set out in section A, although as noted above the parent may have had a considerable input into what is recorded there. Three decisions of the Upper Tribunal, all in the past few years, have focused specifically on the way tribunals deal with the views of children and young people. In S v Worcestershire County Council (SEN)293 part of the challenge to the First-tier Tribunal’s ruling that the local authority had been entitled not to name a specific independent school as a suitable placement for the appellant, aged 17, was that the tribunal had failed to have regard to his wishes and feelings. However, this was argued on the basis of the general duty to have regard to the views, wishes and feelings of the young person under s 19 of the CFA 2014, noted above. Although that duty is in fact imposed only on the local authority, UTJ Mitchell was not convinced that it did not also apply to the tribunal. But in any event he considered that the tribunal had had a duty to consider the young person’s views by virtue of his status as an appellant and in compliance with the ‘overriding objective’ laid down in the tribunal rules.294 The judge presumably had in mind (although did not refer to) the part of the objective requiring that a case be dealt with ‘justly and fairly’ by, inter alia, ‘ensuring, so far as practicable, that the parties are able to participate fully in the proceedings’.295 However, somewhat curious is the judge’s conclusion that although the First-tier Tribunal ‘did not in terms explain why it would not implement his wishes’ it was sufficient that it had explained its reasons for rejecting his case, ‘which amounts to the same thing’.296 One would hope that a tribunal would not always regard a young person’s perspective as limited to a specific argument in support of an appeal. In St Helens BC v TE and another297 the focus was on the weight attached to the views of the child, F, a 7-year-old boy with autistic spectrum disorder. The local

290 Ibid

and Drummond n 254 above. and Davidge (2019) n 13 above.

291 Harris 292 Ibid.

293 [2017]

UKUT 92 (AAC); [2017] ELR 218. [70] and [71]. 295 Tribunal Procedure (Etc) Rules, n 288 above, r 2. 296 Note 293 above, [71]. 297 St Helens Borough Council v TE and Another [2018] UKUT 278 (AAC); [2018] ELR 674. 294 Ibid,

484 Special Educational Needs: Voice, Place and Choice authority wanted to name school R, a maintained primary school, in F’s EHCP, but his parents favoured school O, an independent special school. The parents appealed to the First-tier Tribunal (the FtT). The FtT considered school R unsuitable for F and that school O should be named in his plan. It found that F had ‘formed an entrenched and currently intractable opposition to attending [school R] or any mainstream provision’. The FtT did not consider that F had been manipulated by his parents, nor that his opposition to school R was attributable to their objection to it. The FtT explained in its stated reasons that it was not permitting F a veto but felt that his ‘attitude to the proposed placement is part of the complex and significant needs which must be met by the provider.’ The FtT found that even a skilled parent would not be able to persuade F to attend school R, such was his fear and anxiety about doing so. His opposition stemmed from his SEN as outlined in his plan. The FtT accepted that if school R were named it would have negative consequences for F’s well-being. On appeal to the Upper Tribunal, the local authority argued that although the authority had a duty under s 19 of the CFA 2014 to have regard to the views wishes and feelings of the child and of his parent, the FtT had wrongly allowed F’s views to be ‘paramount’. But UTJ Ward disagreed and in effect endorsed the FtT’s approach: Clearly F’s opposition played a central part in the FtT’s decision to reject school R, but that does not mean that the FtT misapplied s.19. Among other things, it satisfied itself as to the genuineness of those views and that they were rooted in his special educational needs, examined their genesis in his school experiences to date, and considered whether the strategies which his parents had employed, and those which school R would employ, would overcome them. In my view that is conscientiously to “have regard” to them, as s.19 requires. As the FtT noted, the views were part of F’s “complex and significant needs” and it was on the basis of those needs that the FtT reached its decision.298

There was no error of law and the local authority’s appeal was dismissed. It might be thought problematic to regard s 19, CFA as imposing a duty on the appeal tribunal, since, as noted above, the section specifically refers only to the local authority. However, the Upper Tribunal recently in M and M v West Sussex County Council (SEN)299 clearly found the principles it sets out to be applicable to the FtT. M and M concerned a 14-year-old with a range of needs relating to sensory processing, attention and social communication. She had experienced sexual exploitation and was considered to be vulnerable and at risk. She had taken naked pictures of herself and searched the internet for sexual material. Her sexualised behaviour diminished when she was schooled at home, relative to how it was when she was in a mainstream secondary school, but the local authority proposed that such a school be included in her EHCP. The parents’ subsequent appeal to the tribunal was dismissed. One of the three grounds of appeal concerned the

298 Ibid,

[17] per UTJ Ward. UKUT 347 (AAC); [2019] ELR 43.

299 [2018]

Voice 485 t ribunal’s failure to take into account the girl’s views. The UT noted that the girl’s views set out in the EHCP, which would have been before the tribunal, did not deal with her feelings about education at school. There was other evidence that she felt safe and happy being home schooled and was worried about being bullied and taken advantage of at school. She wanted to continue to be home schooled. UTJ Mitchell said that while no legislative requirement for the First-tier Tribunal to have regard to or take into account the child’s views, wishes of feeling had come to his attention, such a duty did exist.300 First, he said that it would ‘not accord with the statutory purpose’ if the local authority’s duty to have regard to the child’s wishes etc ‘were to fall away once an appeal is made to the First-tier Tribunal’.301 Secondly, he reasoned that since in both the carrying out of an assessment and the framing of an EHCP the local authority was under a duty to take into account the child’s views, wishes and feelings, and was also required to set them out in the plan itself, it would again run counter to the statutory purpose for the tribunal not to have to take them into account. Finally, the local authority’s duty to ensure the child’s views were before the tribunal would be of ‘little point’ if the tribunal was not expected to take them into account.302 To avoid the possibility of a tribunal’s decision being set aside for non-consideration of the child’s views, wishes and feelings, the First-tier Tribunal should, UTJ Mitchell said, deal expressly with those views etc in its statement of reasons. In this case the judge found that the tribunal had not addressed the child’s views and thus had erred in law. The above decisions in S, TE and M and M make clear that tribunals are under a clear duty, based on the CFA 2014, s 19 and the overriding objective stated in the tribunal rules to have regard to the views, wishes and feelings of children and young people (whether or not legally adults) and to demonstrate that they have done so in their written statement of reasons. This sends an important message, since there is evidence that this has not been happening routinely.303 It is also clear, particularly from M and M, that a tokenistic approach will not be sufficient, that the tribunal will have to show that it has paid due regard to the views expressed. If it does not do so, therefore, its decision would be amenable to being stuck down for an inadequacy of reasons and error of law. Viewing these judgments from a children’s rights perspective, it is unfortunate and perhaps surprising that Art 12 of the UNCRC, noted above, did not feature in any of the judicial reasoning. Indeed, an Art 12 approach could potentially be broader since it could prompt interrogation of whether children and young people are given the ‘space’ and the support to enable them to express their views.304 In any event, consideration of Art 12 would certainly reinforce the conclusions that were reached by the Upper Tribunal in these cases, although it was perhaps not essential in light of the firm view as to the

300 Ibid

301 Ibid. 302 Ibid.

at [55].

303 Harris 304 See

and Davidge, ‘The rights of …’, n 160 above. Lundy (2007), n 33 above.

486 Special Educational Needs: Voice, Place and Choice presence of the relevant duty within domestic law as applied to the circumstances of these decisions. Art 12 could also have come into the reckoning prior to the 2014 Act, but appears not to have been relied upon.305 Since, as noted above, parents and carers are the principal actors when SEN dispute resolution processes are invoked it is important to return briefly to their position. SEN is a field where parents ‘fight for their rights’306 and to some of them, you are ‘only going to get it if you really shout for it’.307 Although the reforms to dispute resolution under the CFA 2014 involving a greater emphasis on mediation were intended to make dispute resolution less confrontational, parents and carers seem to value the appeal right and be prepared to exercise it. Evidence has consistently shown that while they find the appeal process stressful and taxing they view the tribunal itself positively in terms of its independence and fairness.308 One cannot, though, discount the potential influence of the very high success rate for appeals across all categories of case: the proportion of appeal decisions in favour of the appellant (wholly or in part) was 86 per cent in 2014/15, 88 per cent in 2015/16 and 89 per cent in both 2016/17 and 2017/18.309 Many local authorities, by contrast, have a more negative perspective, seeing the appeal process itself as costly both in time and resources and likely to exacerbate tensions between them and parents/carers. Many also regard the outcomes as overly generous to parents/ carers and as interfering with efforts to allocate resources fairly across all those with SEN.310 On the last point, it was argued by a former President of the tribunal that there should be a requirement that tribunals take account of the effect of an appeal decision on ‘other children, from whom resources might be diverted’,311 although it is not clear how that factor could be applied in practice without knowledge of the circumstances and needs of those other children. After a 22.5 per cent annual fall in the number of registered appeals in 2014–15 there have been huge annual increases (see table 9.1), perhaps reflecting the

305 See N Harris ‘Court of Appeal (England and Wales) S v Special Educational Needs and D isability Tribunal (SENDIST) and Oxfordshire County Council’ in H Stalford, K Hollingsworth and S Gilmore (eds), Rewriting Children’s Rights Judgments (Oxford, Hart Publishing, 2017) 370–80. See also S Byrne ‘Commentary on S v Special Educational Needs and Disability Tribunal and Oxfordshire County Council’ in ibid, 363–9. 306 Ofsted, The special educational needs and disability review. A statement is not enough (London, Ofsted, 2010), 6. 307 N Harris ‘“You are only going to get it if you really shout for it”: education dispute resolution in the 21st century in England’, in C Holden, M Kilkey and G Ramia (eds), Social Policy Review 23 (Bristol, Policy Press, 2011) 233–55. 308 See, eg, C Penfold et al, Parental Confidence in the Special Educational Needs Assessment, Statementing and Tribunal System. Qualitative Study Research Report (DCSF-RR117) (London, DCSF, 2009) 52 and Cullen et al, n 90 above, 30 (para 4.2.6). 309 DfE, Tribunals SEND 17–18 Tables (2018), table SEND 7, https://assets.publishing.service.gov.uk/ government/uploads/system/uploads/attachment_data/file/768080/Tribunals_SEND_17-18_ Tables_v4.ods. 310 Harris and Riddell (2011), n 32 above, 83–4. 311 T Aldridge, Special Educational Needs and Disability Tribunal Annual Report 2002–2003 (London, SENDIST, 2003) 5.

Voice 487 extended age range of SEND applicability as a result of the CFA 2014 (indeed 12 per cent of appeals in 2017–18 concerned over 16s compared to 1 per cent in 2013–14312) but also probably because of the growing demand for EHC assessments and plans, with the resultant increased pressure and scope for conflict with local authorities. Table 9.1 SEN Appeals Registered with the First-tier Tribunal 2015–18313 Year to

Number of appeals registered

% annual change (+/–)

31 August 2015

3,147

–22.5

31 August 2016

3,712

+18

31 August 2017

4,725

+27

31 August 2018

5,679

+20

Very many of the disputes centre on the needs or provision made in plans, particularly whether there is a sufficient degree of specificity contained within them314 (with appellants concerned to benefit from the legal guarantee arising from the duty to ensure that the special educational provision specified in an EHCP be delivered to the child)315 or as to the school named as the placement316 (since a school named in an EHCP has a duty to admit the child).317 One third of all appeals in 2018 concerned, in whole or in part, special educational provision; and nearly half of all appeals wholly or partly concerned the name or type of school included in the plan, of which one third were exclusively about it.318 These can be

312 DfE, Tribunals SEND 17–18 Tables, n 309 above, table SEND 5. 313 Ibid, table SEND 1. Note that there are only very incomplete statistics on the ethnicity of appellants and so it is not possible to draw reliable conclusions from them. The notes to the relevant table (ibid, table SEND 4) state that returns on ethnicity are no longer mandatory and there were none in 2017–18. 314 The SEND Code, n 25 above, 166, advises that the provision ‘must be detailed and specific and should normally be quantified, for example, in terms of the type, hours and frequency of support and level of expertise …. [and] must be specified for each and every need specified in section B. It should be clear how the provision will support achievement of the outcomes’ (original emphasis). See, eg, R v Cumbria County Council ex p. P [1995] 337; L v Clarke and Somerset CC [1998] ELR 129; S v City and Council of Swansea [2000] ELR 315; J v Devon County Council and Strowger [2001] EWHC Admin 958; E v Rotherham Metropolitan Borough Council [2001] EWHC Admin 432; [2002] ELR 266; E v LB Newham and SENT [2002] EWHC 915 (Admin); [2002] ELR 453, QBD, and [2003] EWCA Civ 09; [2003] ELR 286, CA; CL v Hampshire County Council [2011] UKUT 468 (AAC); [2012] ELR 110; JD v South Tyneside Council (SEN) [2016] UKUT 0009 (AAC); [2016] ELR 118; East Sussex County Council v TW [2016] UKUT 528 (AAC); [2017] ELR 119; and SB v Herefordshire County Council [2018] UKUT 141 (AAC); [2018] ELR 537. 315 CFA 2014, s 42(2). 316 See ‘Place’ and ‘Choice’ below. 317 CFA 2014, s 43(2). Whether a mainstream school named so often in EHCPs that it finds it necessary to limit admission of EHCP children in order to maintain the quality of its SEN provision and outcomes would be legally entitled to do so is expected to be tested via judicial review: see L Tickle, ‘“Cleansed by cuts” Desperate heads refuse school places to pupils with special needs’, The Guardian 7 May 2019. 318 DfE, Tribunals SEND 17–18 Tables, n 309 above, table SEND 2.

488 Special Educational Needs: Voice, Place and Choice very contentious issues in view of the potential cost implications of the decision for the local authority. The proportion of appeals that go all the way to a decision by the tribunal rather than being settled or withdrawn has also increased: it rose by eight per cent to 36 per cent in 2016–17.319 c. Comment: Inequality Many advisers give preference to appealing over mediation because it is seen as offering considerable leverage. This view might support the idea that the appellant’s action, borne out of self-interest (albeit, as a parent/carer, seeking also to advance their child’s interests), is consistent with a consumer paradigm fostered by government education policy post 1980, as discussed in the context of school admission in Chapter 5. This in turn leads to concerns, also discussed there, about inequality, since the more socially advantaged tend to be the most active pursuers of redress and this is perhaps reflected here in the disparity between the SEN rate of appeal in the relatively poorer North of England and the more affluent South. Across the North-West, North-East and Yorkshire/Humberside it was barely half the national average in 2016/17 whereas it was above the national average across the South.320 Yet at the same time, having an opportunity for redress is a civil right that is consistent with notions of citizenship – indeed it was one of the triad of rights categories (civil, political and social) identified in Marshall’s much-cited citizenship concept.321 That is why the continuing availability of legal aid for SEN cases322 is so important – although the rationale for its retention at a time of general retrenchment of legal aid availability323 is rightly based around the importance of the SEN field for children, particularly taking account of any difficult surrounding family circumstances; it was also considered that an increased take-up of mediation would mean that only the more difficult and intractable cases, where legal help was most needed, would be going to the tribunal.324 Legal assistance may also be important in helping to ensure that the voice of the parent, the young person and the child, whether directly or indirectly, is heard within the redress process.

319 Senior President of Tribunals, Senior President of Tribunals’ Annual Report 2018 (2019) 27, www. judiciary.uk/wp-content/uploads/2018/05/spt-annual-report-2018-v3.pdf. 320 Cited in A Gillhooly and S Riddell, Autonomy, Rights and Children with Special Needs: A New Paradigm? Working Paper 1. An Overview of Statistics on SEN in England and ASN in Scotland March 2019 (Edinburgh, University of Edinburgh, 2019) fig 34. 321 See T H Marshall and T Bottomore, Citizenship and Social Class (London, Pluto, 1992). See also C Fabre, Social Rights under the Constitution. Government and the decent life (Oxford, Clarendon Press, 2000). 322 By virtue of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, s 9 and Sch 1, pt 1, para 2. 323 See N Harris, Law in a Complex State. Complexity in the Law and Structure of Welfare (Oxford, Hart Publishing, 2013), 164–71. 324 Ministry of Justice, Legal Aid in England and Wales: the Government Response (Cm 8072) (London, The Stationery Office, 2011) paras 63–66.

Place 489 Legal advice is particularly valuable in SEN appeal cases, indeed resulting in a much greater premium than legal representation.325 Representation in SEN cases is not in fact covered under the legal aid scheme apart from in relation to appeals on a point of law to the Upper Tribunal from a decision of the First-tier Tribunal326 (or possibly via exceptional funding327). This again reinforces socio-economic disadvantage since better off parents are more likely to be able to afford to hire a legal representative to argue for them at an FtT hearing, although past evidence suggests that lay representation may be no less effective for such proceedings.328

IV. Place A. Special Educational Needs Inclusion Policy, Presumption and Trends For any child identified as having special educational needs, there is question of where he or she should be educated. This is of course primarily an educational question, in the sense that the education should be provided in a setting appropriate to the child’s educational needs, although other needs, particularly health, will additionally be relevant. Since there is a wide public cost spectrum across the range of different settings – save where the parents use an independent institution out of preference and meet the cost themselves – placement of the child also has a financial dimension. That aspect is explored primarily in the section on choice below, since in most instances the granting of parental preference is constrained by the resource limitations of the local authority. However, the issue of place is also partly one of principle in this context – the principle of inclusion, as reflected in the right of those with SEND to inclusive education per Art 24 of the CRPD, as discussed below. As Reiser sees it, inclusion ‘is about a child’s right to belong to her/his local mainstream school, to be valued for who s/he is and to be provided with all the support s/he needs to thrive’.329 In England there is essentially a binary choice regarding placement – between, on the one hand, a mainstream institution,330 and on the other, a special school (whether state 325 M Adler, ‘Self representation, just outcomes and fair procedures in tribunal hearings’, paper presented at the Senior President’s Conference for Tribunal Judges, 20 May 2009. 326 Legal Aid, Sentencing and Punishment of Offenders Act 2012, Sch 1, pt 3, para 17. 327 Ibid, s 10, which relates, other than in inquest cases, to cases where there is a potential breach of a person’s human rights or EU rights. 328 Harris (1997), n 256 above, 102. 329 R Rieser, ‘Special Educational Needs or Inclusive Education: The challenge of disability discrimination in schooling’, in M Cole (ed), Education, Equality and Human Rights (London, Routledge Falmer, 2000) 141–61, 151. 330 A mainstream school (defined as a maintained school (a community, foundation or voluntary school, or a community or foundation special school not established in a hospital) that is not a special school, or an academy which is not a special school) or a ‘mainstream post-16 institution’: CFA 2014, s 83(2).

490 Special Educational Needs: Voice, Place and Choice or private/independent sector).331 Some pupils with SEND at mainstream schools may in fact receive some or all of their education within a specialist unit at their school. There are also a small number of children with SEND who receive education at home arranged by the local authority, or at a hospital school. The Warnock Report supported the principle of inclusion, which was at that time referred to as ‘integration’. The report identified three relevant forms of integration.332 The first related to the ‘location’ of the provision and, in particular, the child’s attendance at a mainstream school, even if in a special unit within it. Secondly, there was the ‘social’ aspect, involving social interaction between children with special needs and other pupils. Thirdly, there was ‘functional’ integration, involving ‘the closest form of association’, with ‘joint participation in educational programmes’ and in ‘regular classes’, and the opportunity to make ‘a full contribution to the activity of the school’.333 Warnock was clear that to effect integration throughout these elements required a shift in approach by professionals: ‘Such an outcome will not occur spontaneously. Nor will it be achieved by legislation alone. It has to be contrived and patiently nurtured.’334 The report then explored the various ways in which such a policy could be implemented within schools. While downplaying the role of law in this context, Warnock nevertheless wanted ‘a framework’ within which children with special needs ‘may use AS OF RIGHT the general facilities available at school and also receive the help they require’ and have ‘maximum opportunity … in the ordinary school for shared experience through both curricular and extra-curricular activities’.335 At this time, the Education Act 1976 had recently been enacted providing for the education of what the Warnock report referred to as ‘handicapped children’, in mainstream (the report calls them ‘ordinary’) schools. The relevant section of the 1976 Act, s 10, was not implemented, however. The EA 1944 continued to require the education (referred to then in quasi-medical terms as ‘special educational treatment’) of children whose ‘disability is serious’ to be in special schools of an appropriate category unless that was ‘impracticable’, in which case arrangements should be made in any other school maintained by the local authority.336 The categories of special school reflected, as noted above,337 the largely medicallyrelated classification of children requiring ‘special educational treatment’: ‘blind’, ‘deaf, ‘physically handicapped’, ‘maladjusted’, ‘educationally subnormal’, ‘epileptic’, ‘speech defect’ and so on.338

331 A special school is defined as a school that is ‘specially organised to make special educational provision for pupils with special educational needs’ and is either local authority maintained, an academy, or a non-maintained special school: EA 1996, s 337, as substituted by CFA 2014, Sch 3, para 36. 332 Warnock (1978), n 17 above, paras 7.6–7.9. 333 Ibid. 334 Ibid, para 7.11. 335 Ibid, para 7.15 (original emphasis). 336 EA 1944, s 33(2). 337 Under ‘SEND and Children and young people in England’. 338 See T Burgess, A Guide to English Schools (3rd edn) (Harmondsworth, Penguin, 1972) 99.

Place 491 Since the 1944 Act set a legal presumption in favour of segregated s chooling for children with special needs, it is unsurprising that after 1950 the trend was towards segregation. The proportion of children attending special schools increased right through to the 1970s,339 but after 1973 an increasing proportion of children requiring special provision were being educated in ordinary schools, albeit in special classes and units: 6.8 per cent in 1973 rising to 12 per cent in 1977.340 The way that the unimplemented s 10 of the EA 1976 would have promoted inclusion was by inverting the presumption of segregation. It provided that the child’s ‘special educational treatment’ would have to be in a local authority mainstream school unless it would be ‘impracticable or incompatible with the provision of efficient instruction in the schools’ or if it ‘would involve unreasonable public expenditure’, in which case it should be in an appropriate category of special school, public or private. Reflecting on these exceptions, the Warnock report emphasised the potential cost of mainstream inclusion, commenting that ‘the integration in ordinary schools of children currently ascertained as handicapped, if achieved without loss of educational quality, is not a cheap alternative to provision in separate special schools’.341 The cost of provision was, either way, an important factor 40 years ago and remains so today. Section 10 of the 1976 Act, still by then unimplemented, was repealed by the EA 1981, which however set in place a new inclusion duty, which came into force in 1983. The inclusion presumption in the EA 1981342 only applied to children for whom a statement of special educational needs was maintained. Since the category of having SEN was intended to apply to many more children that were covered by the ‘special educational treatment’ duty under the 1944 Act, and most of the children with SEN were expected not to require a statement, there was an expectation that the inclusion presumption would not need to be more widely cast. Secondly, in addition to a mainstream placement having to be dependent on its non-incompatibility with efficient education and the efficient use of resources, which broadly reflected what the position would have been under the 1976 Act, there was now a further condition of compatibility with the child receiving the special education that he or she required. Finally, and consistently with Warnock’s advocacy of increased parental involvement, the local authority had to take account of the view of the child’s parent. The 1981 Act also gave effect to Warnock’s ‘functional’ form of integration/inclusion by establishing a presumption of engagement of children with SEN in activities within the school together with children who did not have SEN, subject to the same conditions as those applied to mainstream placement (above) and a test of reasonable practicability.343

339 V Hannon, ‘The Education Act 1981: New Rights and Duties in Special Education’ [1981] Journal of Social Welfare Law 275, 277. 340 Warnock (1978) n 17 above, para 7.2. 341 Ibid, para 7.56. 342 EA 1981, s 2. 343 EA 1981, s 2(7).

492 Special Educational Needs: Voice, Place and Choice These various inclusion duties were in substance fully restated in the EA 1993344 and then replicated in the consolidating EA 1996,345 but the presumption in favour of a mainstream placement was no longer restricted to those children for whom a statement was maintained, but also applied to any child with SEN. Also, while the exceptions to the duty were replicated, a mainstream placement had not to be ‘incompatible with the wishes of the parent’,346 which arguably went further than the previous requirement to take account of the parent’s view. Indeed, there was a perception that this apparent advancement of the parental interest had given parents a veto over a mainstream placement for their child. It was a view that might perhaps have been influenced by the general policy trend in support of consumer-orientated rights in education and the recent Parent’s Charter at that time, which while promoting choice also made schools more antipathetic to the admission of pupils with SEN who could be seen by them as a potential threat to their overall levels of academic success.347 The Audit Commission identified this as ‘perhaps the key issue’ that was considered to need addressing by Government ‘if committed to pursuing its policy of greater inclusion’.348 However, in terms of a supposed parental veto, the courts concluded that if the parents objected to a mainstream placement the presumption in favour of it did not apply but the local authority still had a duty to meet the SEN of the child and was free349 to decide on the place(s) where that should happen.350 The SEN policy of the Labour Government post 1997 was dominated by a commitment to increase the proportion of pupils with SEN being educated in mainstream schools.351 The Government’s case was that there were both educational and moral grounds for inclusive arrangements, which led ‘naturally to other forms of inclusion’.352 Implementation of the policy was brought within an Inclusion Development Programme, initially targeted on: autism; behavioural, emotional and social difficulties (BESD); speech, language and communication, including dyslexia; and moderate learning difficulties.353 However, some 344 EA 1993, ss 160 and 161. 345 EA 1996, s 316 and 317. 346 EA 1993, s 160, replicated in EA 1996, s 316(1). 347 See, eg, S Riddell and S Brown, ‘Special educational needs provision in the United Kingdom – the policy context’, in S Riddell and S Brown (eds), Special Educational Needs in the 1990s (London, Routledge, 1994) 1–28, 19. 348 Audit Commission, Special Educational Needs: A Mainstream Issue (London, Audit Commission, 2002) para 122. 349 Subject to any duty to adhere to the preference of the parent as to the naming of a school in an EHCP as was the case earlier in a statement of SEN: see below. 350 See L v Worcestershire County Council and Hughes [2000] ELR 674 and South Glamorgan County Council v L and M [1996] ELR 400. 351 See, eg, DfEE, Excellence for all children: Meeting Special Educational Needs (Cm 3785) (London, TSO, 1997). 352 DfEE, Meeting Special Educational Needs: A Programme of Action (London, DfEE, 1998) ch 3, paras 1 and 3. 353 DfEE, SEN and Disability Rights in Education Bill Consultation Document (London, DfEE, 2000); DfES, Removing Barriers to Achievement. The Government’s Strategy for SEN (London, DfES, 2004); and see also Disability Rights Task Force, From Exclusion to Inclusion (London, DfEE/DRTF, 1999).

Place 493 mainstream school staff were concerned that they or their school would not be fully able to support children with SEN, particularly those with BESD.354 In light of these tensions the Steer report, a report of a practitioners’ group on school behaviour and discipline, prepared for the DfES, recommended further resources to assist schools in meeting pupils’ SEN. There was a particular need for this given the ‘close link between poor behaviour and previous failure to deal with a pupil’s special needs properly’ (the rate of permanent exclusion among pupils with SEN was four times the average355) and the high level of support some pupils with BESD could require.356 Inclusion was already on the increase – for example, while in 1995 approximately 54 per cent of pupils with statements of SEN attended maintained mainstream schools, by 2000 it stood at 61 per cent357 – by the time that an amendment to the inclusion duty, made by the SENDA 2001 and designed, in line with government policy, to strengthen it further, came into force.358 For c hildren with statements, the only exceptions to the duty to educate the child in a mainstream school became incompatibility with either the wishes of the parent or with the provision of efficient education for other children.359 Incompatibility with the efficient use of resources was thus no longer a basis for not placing the child in a mainstream school. Moreover, the local authority could now only rely on the ground of incompatibility with others’ education if there were no reasonable steps that could be taken to prevent the incompatibility.360 The Court of Appeal confirmed that if the local authority decided to make a mainstream placement it should normally specify a particular school in the child’s statement, even though the statutory duty was merely to specify the type of school.361 In the case of pupils without statements the position after SENDA 2001 was that if they were to be educated in a school it had to be in a mainstream school.362 Unchanged, but clarified, was the position of children with SEN who were to be placed at an independent school or an approved special school: a non-mainstream placement was to be permitted provided the cost was to be met other than by the local authority, which in most cases meant by the parents.363 Despite SENDA’s broadening of the 354 See Audit Commission, n 348 above, para 43. 355 DfES, Permanent and Fixed Period Exclusions from Schools and Exclusion Appeals in England, 2003–04, SFR 23/2005 (London, DfES, 2005), table 10. 356 Sir A Steer (Chair), Learning Behaviour. The Report of the Practitioners’ Group on School Behaviour and Discipline (London, DfES, 2005) para 128. 357 Department for Education and Employment, Statistics of Education: Special Educational Needs in England: January 2001 (London, DfEE, 2001), and 9. 358 SENDA 2001, s 1, inserting a replacement s 316, and a new s 316A, into the EA 1996. 359 EA 1996, s 316(3), as substituted by SENDA 2001, s 1. 360 EA 1996, s 316A(5) and (6). 361 Ibid, s 324(4)(a); Richardson v Solihull Metropolitan Borough Council and the Special Educational Needs Tribunals [Etc] [1998] ELR 319; R (MH) v Special Educational Needs and Disability Tribunal and London Borough of Hounslow Borough Council [2004] EWCA Civ 770; [2004] ELR 424, CA. 362 EA 1996, s 316(2), as substituted. 363 Ibid, s 316A(1). There were other exceptions: for example, when the child attended a special school for the purposes of an assessment of his special educational needs (s 316A(2)).

494 Special Educational Needs: Voice, Place and Choice inclusion duty, and although all children without a statement, if attending school, would now be at a maintained school (almost all would have been anyway even if the law had not changed), the proportion of pupils with statements of SEN who were being educated in a mainstream school fell. It stood at 55.6 per cent in 2009 and 54.9 per cent in 2010,364 more or less the same level as in the mid-1990s. Possible factors behind this lack of progress are discussed below. The CFA 2014 has continued the inclusion duty on the same substantive basis as previously, stipulating that children without an EHCP who are to be educated in school must be placed at a mainstream school.365 For those with an EHCP, there is also to be a mainstream placement provided it is compatible with the wishes of the young person or those of the parent of the child and with the provision of efficient education for others.366 As before, the latter proviso may only be applied where the local authority can show that there are no reasonable steps that could be taken to prevent the incompatibility.367 Additionally, both in the case of children with or without an EHCP, there is a further exception to the requirement for a mainstream placement, which replicates the previous law. It is where the child or young person is to go to an independent school or a non- maintained special school and the cost is to be met other than by the local authority or the Secretary of State.368 A duty on inclusion within a school continues, requiring those making special educational provision for a pupil within SEN within a mainstream school to make sure that that the pupil ‘engages in the activities of the school together with children who do not have special educational needs’.369 As previously, there is however a caveat to such inclusion, in that it must be compatible with the child receiving the necessary special educational provision, the provision of efficient education for the child’s fellow pupils, and the efficient use of resources.370 Academies are now also within the scope of the statutory provisions on inclusion.371 Although, from an international perspective, the inclusion of children with disabilities within mainstream education has progressed unevenly,372 there has

364 DfE, Special Educational Needs in England, January 2010 (SFR 19/2010) (London, DfE, 2010) 1. 365 CFA 2014, s 34(1)–(2), although they can be admitted to a special school if, for example, there has been a ‘change of circumstances’ and all parties agree to it or if they are admitted to a special school for an EHC assessment: ibid subss (5)(9). 366 Ibid, s 33(1)–(2). 367 Ibid, s 33(3)–(5). See AKT and Another v Westminster City Council [2018] UKUT 47 (AAC); [2018] ELR 247 (albeit concerned with the equivalent provisions under the EA 1996, ss 316 and 316A). 368 Ibid, s 33(3). 369 Ibid, s 35(1) and (2). 370 Ibid, s 35(3). 371 Under the EA 1996, as amended by SENDA 2001, they were not, because they were outside the definition of a mainstream school: EA 1996, s 316(4). 372 See C J Russo (ed), The Legal Rights of Students with Disabilities: International Perspectives (Lanham (Maryland), Rowman and Littlefield, 2011) and L Lundy, ‘Schoolchildren and Health: The Role of International Human Rights Law’, in N Harris and P Meredith (eds), Children, Education and Health.

Place 495 been a clearly positive trend towards it across the EU.373 In the UK, the legal presumption of inclusion matches a general professional commitment towards it as generally being in the best interests of children with SEND and of society as a whole. Nevertheless, in one important respect inclusion for those with SEND seems to be declining in England. The proportion of children with statements of SEN or, now, an EHCP in maintained special schools rose in each year from 2010–18 before falling very slightly. It was at 38.2 per cent in 2010 and rose progressively to 44.2 per cent in January 2018 and then fell to 44 per cent in January 2019, while the proportion of those with a statement or EHCP who were in mainstream secondary schools fell by over one quarter over this period.374 So, after a period in which New Labour had closed a significant number of special schools in order to promote inclusive education375 there has been an overall trend away from inclusive placements. It is a trend which has been reinforced by a Government announcement in March 2019 of funding for 39 new special school academies, which the Secretary of State has said recognises a need for an increase in specialist provision for those with more complex needs.376 However, the Alliance for Inclusive Education has responded by accusing the Government of adopting ‘an ideological drive … towards the dogma of investing in segregated provision’.377 One factor in the decline in mainstream placements seems to be a reduction in the number of mainstream schools with specialist units378 or ‘resourced provision’ (where pupils with particular forms of SEND are mainly but not exclusively taught in mainstream classes). A 14 per cent reduction in such units in secondary schools occurred between 2017 and 2018 alone and there appears to be falling support for

International Perspectives on Law and Policy (Aldershot, Ashgate, 2005) 3–28. In the US, individual states must ensure that each child with a disability (which includes, inter alios, those with autism, specific learning disabilities or developmental delays: IDEA 20 U.S.C.A. § 1401(3)) must be educated in the ‘least restrictive environment’, which means being educated alongside other children, to the maximum extent possible. Segregation is only permitted where the child’s needs cannot be met in a mainstream setting even with the provision of supplementary aids and services: Ibid, § 1401(5)(A). See further A G Osborne and C J Russo, Special Education and the Law, 3rd edn, (Thousand Oaks, CA, Corwin Press, 2006) ch 2 and C J Russo and A G Osborne Jnr, ‘United States’ in C J Russo (ed) (2011) (above), 211–31. 373 Directorate General for Internal Policies, Inclusive education for learners with disabilities (Brussels, EU, 2017). 374 DfE (2018) n 64 above, 6; DfE (2019) n 64 above, 6. 375 See BBC News Report, 29 Nov 2006, ‘Special school closures “absurd”’, http://news.bbc.co.uk/1/hi/ education/6196098.stm. 376 DfE Press Release, 11 March 2019, ‘thousands of places created in new special free schools’, www. gov.uk/government/news/thousands-of-places-created-in-new-special-free-schools. 377 Allfie, Press Release 11 March 2019, www.allfie.org.uk/news/press-releases/press-release-39-newspecial-schools/. 378 These units may be regarded as part of the mainstream school, and thus a placement would meet the presumption set by CFA 2014, ss 33 and 34 (noted above), or could be considered sufficiently separate as to take the unit out of mainstream provision. It is a question of judgment in the individual case: see TB v Essex County Council (SEN) [2013] UKUT 534 (AAC); [2014] ELR 46 and MA v Borough of Kensington and Chelsea [2015] UKUT 186 (AAC); [2015] ELR 326.

496 Special Educational Needs: Voice, Place and Choice them within schools.379 The pressure on mainstream schools, among others, to raise overall pupil attainment levels is likely to be a related factor in the increase in special school placements, since although more parents may favour such a placement this may in many cases be down to the unwillingness of mainstream schools to take or retain some children with SEND.380 At the same time, there has been a shift in some expert viewpoints regarding the desirability of inclusion. Perhaps the most prominent has been the view of the architect of the modern SEN system, Baroness Warnock, in Special Educational Needs: A New Look, published in 2005.381 Re-visiting the main issues from her report over 25 years previously, she said that inclusion was not working, at least in secondary schools, and needed to be reconsidered.382 She referred to the evidence of bullying of children with SEN in mainstream schools. She argued that children with statements of SEN (now EHCPs) should not be taught in mainstream schools. Instead, statements should be the passport to special schools, where the provision that was needed would be made. Warnock’s proposals therefore focused on those whom she felt could not fully benefit from their education if it took place in a mainstream setting. The challenge lay and continues to lie in identifying such children effectively. Her views attracted immediate criticism, however. Len Barton, Professor of Education at the Institute of Education in London, argued that Warnock’s paper was ‘a reflection of naivety, arrogance and ignorance’ and downplayed the wider importance of SEN inclusion as contributing to the challenging of all forms of discrimination and exclusion.383 A third sector body, IPSEA, wrote that ‘Mary Warnock would seem, now, to know little of how the special educational needs system operates’.384 Yet Warnock’s new perspective did reflect a wider shifting perception of SEN. A few years earlier, the Audit Commission had noted that ‘there are many children for whom the SEN label might no longer be appropriate or necessary, as schools become more adept at responding to the diversity of needs in today’s classrooms’.385 The year after Warnock’s apparent volte face, which it noted, the House of Commons Education and Skills Committee concluded that the Government had also made a ‘significant

379 H Ward, ‘Big drop in mainstream school SEND provision’, TES, 30 July 2018, www.tes.com/news/ big-drop-mainstream-school-send-provision. 380 See National Audit Office, Department for Education. Support for Pupils with Special Educational Needs and Disabilities in England (HC 2636) (London, NAO, 2019) paras 2.11 and 2.12; and N Morrison, ‘Increase in number of special school pupils reverses the trend towards inclusion’, TES, 10 Aug 2014. 381 M Warnock, Special Educational Needs: A New Look (London, Philosophy of Education Society of Great Britain, 2005). 382 Ibid, 35. 383 L Barton, Special educational needs: an alternative look (A Response to Warnock M. 2005: Special Educational Needs – A New Look) (undated) https://disability-studies.leeds.ac.uk/wp-content/uploads/ sites/40/library/Barton-Warnock.pdf. 1 and 4. 384 IPSEA, Submission to the Education and Skills Select Committee Inquiry into Special Educational Needs (Woodbridge, IPSEA, 2005) para 3.11.1. 385 Audit Commission, n 348 above, para 130.

Place 497 change in policy direction’ on inclusion, adopting a more flexible stance.386 The Committee also observed that: Many of the major disability charities have ‘sharpened their policy’ (Down’s Syndrome Association) on inclusion and now recognise the importance of ‘specialist units’. Many disability campaigners such as the National Autistic Society and Mencap until recently were strong supporters of a strict line on inclusion policy but are now taking a more pragmatic approach.387

So while the SEN legislation strengthened the presumption of mainstream schooling, it was becoming out of step with a range of professional views and increasingly, as the figures on placement (above) show, practice as well.

B. Inclusion as an Issue of Human Rights Despite the apparent shift away from inclusive education, noted above, it remains an important issue of human rights. Prior to the adoption of the CRPD in December 2006, which changed the disability rights landscape significantly, support for inclusion might nevertheless be found in the UNCRC. Article 28(1) of the UNCRC recognises the child’s right to education on the basis of equality of opportunity and provides for secondary education to be ‘available and accessible to every child’. Article 23 recognises the right of a child with disabilities to a ‘full and decent life, in conditions which … facilitate the child’s active participation in the community’ and to assistance ‘designed to ensure that the disabled child has effective access to and receives education … in a manner conducive to the child’s achieving the fullest possible social integration and individual development …’ .388 Freeman observes that the Art 23 provisions do not contain a specific requirement regarding inclusive education and says that they use ‘the language of anti-discrimination, rather than the principle of inclusion’.389 Fortin, however, explains that the Committee on the Rights of the Child has promoted a child’s right to inclusion in mainstream schooling and been critical of segregated provision.390 Saleh considers that the combined effect of Arts 23, 28 and other provisions, notably Art 6 (the child’s right to development), mean that inclusive education for disabled children is at least implicitly recognised as a right under the UNCRC.391 Moreover, Kilkelly notes that the UNCRC reflects the increasingly normative status of inclusion under international standards.392 Since its adoption,

386 House of Commons Education and Skills Committee (2006), n 65 above, para 79. 387 Ibid, para 80. 388 UNCRC, Art 23(1) and (3) respectively. 389 M Freeman, ‘The future of children’s rights’ (2000) 14 Children and Society 277, 282–3. 390 J Fortin, Children’s Rights and the Developing Law 3rd edn (Cambridge, CUP, 2009) 433. 391 See L Saleh, ‘Rights of the Child with Special Needs’, in S Hart et al (eds), Children’s Rights in Education (London, Jessica Kingsley, 2001) 119–35, 122–123. 392 U Kilkelly, The Child and the European Convention on Human Rights (Aldershot, Ashgate, 1999) 80.

498 Special Educational Needs: Voice, Place and Choice however, the CRPD, to which the UK is a signatory, must now be considered the primary reference point for a human right to inclusive education. Article 24 of the CRPD places an obligation on states to ensure ‘an inclusive education system at all levels’ not only directed to ‘enabling persons with disabilities to participate in a free society’393 but also to ensuring that children and young people with disabilities have access to primary and secondary education ‘on an equal basis with others in the communities in which they live’.394 However, the UK entered a reservation to the effect that children with disabilities could be educated outside their local community if ‘more appropriate education provision is available elsewhere’. An interpretive declaration entered by the UK Government expresses a commitment to ‘continuing to develop an inclusive system where parents of disabled children have increasing access to mainstream schools and staff ’ but notes that the education system has both mainstream and specialist schools. Their combined effect was intended to indicate that the UK does not consider itself required by the Convention to abolish special schools, a rationale that the Joint Committee on Human Rights broadly accepted.395 While inclusive education itself is not defined in the CRPD, Art 24 also deals in very specific terms with the measures to be taken by the state to ensure that those with disabilities are able to participate effectively in education, including being able to go on to tertiary education. They must not be ‘excluded from the general education system on the basis of disability’ and children with disabilities must not be deprived of access to free and compulsory primary education, or to secondary education, on the basis of disability.396 General Comment No 4 on the right to inclusive education, in identifying the ‘core features of inclusive education’, refers to ensuring that pupils ‘feel valued, respected, included and listened to.’397 It also places considerable emphasis on the importance of ensuring that children with disabilities receive all appropriate assistance and support with communication, which is essential to participation and thus inclusion. The General Comment is a detailed document that cannot be fully explored here,398 but the key point is that it calls on states to make a wholesale investment in and commitment to inclusive education as a matter of policy and principle, directed, above all, at the human rights of the individual as an equal member of society.399 So far as 393 Article 24.1(c). 394 Article 24.2(b). 395 Joint Committee on Human Rights, Twelfth Report of Session 2008–09 UN Convention on the Rights of Persons with Disabilities: Reservations and Interpretive Declaration (HL Paper 70 HC 397) (2009) paras 33–46. 396 Article 24.2(a). 397 UN Committee on the Rights of Persons with Disabilities, n 152 above, para 12(e). 398 See V Della Fina, R Cera and G Palmisaro (eds), The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (Cham, Switzerland, Springer International, 2017). 399 For a discussion of the way the CRPD has been interpreted and applied judicially in the UK courts and tribunals, see A Lawson and L Series, ‘United Kingdom’, in L Waddington and A Lawson (eds), The Rights of Persons with Disabilities in Practice: A Comparative Analysis of the Role of the Courts (Oxford, OUP, 2018) 417–65.

Place 499 on-inclusion in mainstream settings is concerned, the General Comment refers n to this as ‘segregation’ and clearly discourages it strongly – for example, in advising of the need for monitoring to ensure ‘it is not happening either formally or informally’,400 by emphasising that segregation is a form of discrimination,401 and by urging States Parties to transfer resources from segregated to inclusive environments.402 It also claims that the progressive realisation of Art 24, to which States Parties must direct measures to the maximum extent of the available resources (per Art 4.2 of the Convention), ‘is not compatible with sustaining two systems of education: mainstream and special/segregated’.403 In light of the strict approach adopted in its General Comment, therefore, it is not surprising that the UN Committee on the Rights of Persons with Disabilities has, notwithstanding the UK’s interpretive declaration, above, been critical of the UK’s ‘persistence of a dual education system that segregates children with disabilities in special schools’ and ‘the increasing number of children with disabilities in segregated education environments’.404 The CRPD is referred to in the UK courts mainly as an aid to the interpretation and application of the ECHR or EU law.405 However, it seems that the ECHR, as interpreted and applied, itself offers little to support inclusion in mainstream education. The second sentence of A2P1 requires the state, in the exercise of its education functions, to respect the right of parents to ensure the teaching of their child in conformity with their own religious and philosophical convictions. In Simpson v UK406 a local authority’s decision to place a boy with a statement of SEN at a mainstream comprehensive school rather than an independent special school was held to be legitimate. The boy had been placed by his mother at the independent school and the local authority had met the cost, but when the family moved area the new local authority was unwilling to provide the funding. At that time, the domestic legislation (the EA 1981) (as noted above) in effect required non-segregation of children with a statement of SEN provided, inter alia, parents’ wishes were taken into account and it was compatible with the efficient use of resources. The child was the applicant in this case and among his complaints was that his mother was entitled to have him educated in accordance with her ‘firm philosophical convictions’ regarding placement. The Commission of Human Rights, however, held that the boy could not rely, on a vicarious basis, on the second

400 UN Committee on the Rights of Persons with Disabilities, n 152 above, para 12(i). 401 Ibid, para13. 402 Ibid, para 68. 403 Ibid, para 39. 404 UN Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of the United Kingdom of Great Britain and Northern Ireland (CRPD/C/GBR/CO/1) (Geneva, UN, 2017) para 52(a) and (b). The Committee also referred to school authorities’ unwillingness to accommodate disruptive pupils and to inadequate professional training in respect of inclusive education: Ibid, para 52(c) and (d). 405 See Lawson and Series, n 399 above, 437–41. 406 (1989) 64 DR 188.

500 Special Educational Needs: Voice, Place and Choice sentence of A2P1 and said it was unclear why the boy’s mother had not made an application herself. It also held that the right to education itself was not being denied. The state enjoyed ‘a wide measure of discretion … as to how to make the best use possible of the resources available to them in the interests of disabled children generally’.407 As discussed in Chapter 2, there is a consistent line in the Strasbourg jurisprudence broadly recognising the legitimacy of resource-driven decision making on education by the state, but at the same time a concern that states should be sensitive to the particular needs of those with disabilities.408 The question whether an expressed preference for or against mainstream inclusion could be on the basis of a ‘philosophical conviction’ for the purposes of A2P1 was not considered in Simpson, but on several occasions there has been an explicit refusal to accept that the state has an obligation to subsidise a particular form of provision in order to meet such convictions.409 In Graeme,410 for example, a mother was opposed to a plan that her son, who had SEN, should be sent to a residential boarding school. She claimed that there was a breach of A2P1 because, inter alia, her son was not being educated in accordance with her religious and philosophical convictions relating to ‘the education of her son with ordinary children’ and ‘his education in a private, independent school of her choice’. The Commission of Human Rights left open the question of whether the parents’ disagreement with the local authority over school placement concerned ‘deep-founded philosophical convictions rather than a difference of view as to the best way of providing the boy with an education’.411 The Commission said that even if it did concern philosophical convictions, the child’s right to education under the first sentence of A2P1 was dominant, implying that the most important consideration was that the child was to be suitably educated. In relation to that issue, the state was under a duty to ensure that the child’s education ‘is as far as possible in conformity with the parents’ religious and philosophical convictions’, but ‘[i]t does not, however, require the State to provide special facilities to accommodate particular convictions’.412 The Commission noted, in that regard, the UK’s reservation to the second sentence of the Article, to the effect that the UK accepted the duty ‘only so far as it is compatible with the provision of efficient instruction and training and the avoidance of unreasonable expenditure’, and how the EA 1981 requirement to educate a child in a mainstream school was subject to conditions as to compatibility with efficient education and the efficient use of resources. The Commission, observing that the principle of inclusion was backed by an increasing body of opinion, 407 Ibid, 7. 408 As in Stoian v Romania (2019) Application No 289/14. See also Belgian Linguistics (No 2) (1979–80) 1 EHRR 252 and the discussion in ch 2. 409 PD and LD v United Kingdom (1989) 62 DR 292; Graeme v United Kingdom (1990) 64 DR 158; Klerks v Netherlands (1995) 82 DR 41. See also W and KL v Sweden (1983) Application No 14688/83, Cohen v United Kingdom (1996) 21 EHRR CD 104. 410 Graeme v United Kingdom n 409 above. 411 Ibid, The Law, Pt 1. 412 Ibid.

Place 501 nevertheless said that ‘this policy cannot apply to all handicapped children’.413 The Commission reiterated that authorities had ‘a wide measure of discretion … as to how to make the best use possible of the resources available to them in the interests of disabled children generally’ and concluded that while they had to place weight on parental convictions, ‘it cannot be said that the second sentence of [A2P1] requires the placing of a child with severe development delay in a private school for able children rather than in an available place in a special school for disabled children’.414 To some, the inclusion of children with SEN in mainstream schools represents a moral or ethical issue. Moreover, while both government education policy and the domestic legislation now place considerable weight on inclusion, some professionals and education authorities are, for various reasons, resistant to it, or at least the idea of extending it. These factors might reinforce the argument that views on mainstream inclusion, whether for or against it, could amount to a philosophical conviction, particularly in view of the widespread importance attached to the principle of inclusion internationally, noted above. The European Court of Human Rights’ conclusion in Campbell and Cosans that a belief against the use of corporal punishment in schools could amount to a philosophical conviction415 led Black-Branch to conclude that a parent’s views on special educational provision could also do so.416 The House of Lords’ confirmation in Williamson that a belief in favour of the use of corporal punishment also amounted to a religious or philosophical belief417 (see below) adds further weight to this viewpoint and certainly casts doubt on the conclusion reached by Richards J in the High Court in T v Special Educational Needs Tribunal and Wiltshire County Council.418 The parents in T wanted their autistic child to receive a home-based specialist programme leading to his integration into mainstream schooling, whereas the local authority considered that he should be placed at a special educational needs unit, a conclusion upheld by the tribunal. The parents argued that a belief in inclusive education amounted to a philosophical conviction for ECHR purposes and the tribunal should have interpreted s 9 of the EA 1996, which sets out a general principle that children are to be educated in accordance with the wishes of their parents,419 consistently with A2P1. Richards J said it was too late in the proceedings to raise the human rights arguments, but he in any event rejected them. He said that a belief in inclusive education ‘seems to me to fall far short of a philosophical conviction’ in favour of the specialist programme.420 Although 413 Ibid. 414 Ibid. Cf Family H v United Kingdom (1984) 37 DR 105. 415 Campbell and Cosans v UK (1982) 4 EHRR 293. 416 J Black-Branch, ‘Equality, Non-Discrimination and the Right to Special Education: From International Law to the Human Rights Act’ [2000] EHRR 297–314, 306. 417 R (Williamson) v Secretary of State for Education and Employment and Others [2005] UKHL 15; [2005] ELR 291. 418 [2002] EWHC 1474 (Admin); [2002] ELR 704. 419 See ch 5 under ‘“Pupils are to be educated in accordance with the wishes of their parents”’. 420 Note 418 above, [39](iii), per Richards J.

502 Special Educational Needs: Voice, Place and Choice it was apparently not determinative, Richards J cited the ruling of Elias J at first instance in Williamson, where the Court had found a belief in favour of the use of corporal punishment at a school to be incapable of amounting to a moral conviction.421 However, Elias J was subsequently overruled by the majority in the Court of Appeal, whose view was later endorsed by the House of Lords on that point, as noted above.422 One of the majority judges, Rix LJ, referring to the conclusion in Campbell and Cosans that indicated that a ‘conviction’ denotes a view or views that have reached a certain level of cogency, seriousness, cohesion and importance,423 said: One may profoundly disagree with the appellants’ views, but it seems hard to say that they are not cogent, serious, cohesive and important … I cannot see why the belief in favour of the use of corporal punishment in schools as here described does not equally well qualify as a philosophical conviction, and … as a religious conviction.424

When Williamson reached the House of Lords, Baroness Hale accepted that beliefs in the value or undesirability of corporal punishment would be ‘essentially moral beliefs … entitled to respect’ on the basis that ‘[a] free and plural society must expect to tolerate all sorts of views which many, even most, find completely unacceptable’.425 On that basis, a firm and sincere belief in inclusive education might now be recognised as amounting to a philosophical conviction, just as, for example, a religiously-based belief in single sex education could also fall within the remit of A2P1. Even so, the Strasbourg case law provides the state with ample grounds on which to reject the parents’ choice, such as the need to operate policy in the general interest, in addition to those grounds for denying choice already set by the domestic legislation. In any event, establishing such a conviction to the satisfaction of the court may not be that straightforward. In L v Hereford and Worcester County Council and Hughes426 the mother of a nine-year-old girl with cerebral palsy and Turner’s syndrome made clear her strong opposition to a mainstream placement due to the girl’s vulnerability and the very small number of children with SEN at the proposed school. She was also totally against any mainstream placement for her daughter. Carnwath J said the mother’s strong feelings had ‘nothing to do with a religious or philosophical opposition to mainstream schools’ but rather were ‘concerned, very properly and understandably, with practical concerns about the day-to-day needs and education of her child’.427

421 The Queen on the application of Williamson v Secretary of State for Education and Employment [2001] EWHC Admin 960; [2002] ELR 214. 422 R (Williamson) v Secretary of State for Education and Employment [2002] EWCA Civ 1926; [2003] ELR 176, CA; [2005] UKHL 15; [2005] ELR 291. 423 Campbell and Cosans v UK (No 2) (1982) 4 EHRR 293 at [36]. See further the discussion in ch 2. 424 Williamson (CA), n 422 above, paras [150]–[152]. 425 Williamson (HL) n 422 above, [77]. 426 [2000] ELR 375. 427 Ibid, 384D-E.

Choice 503 In Graeme, discussed earlier, the mother also argued that the residential placement preferred by the local authority would conflict with her right to respect for family life for the purposes of Art 8 of the ECHR. The Commission said that the interference was justifiable as it was ‘in accordance with the law, or prescribed by law, and necessary in a democratic society for the protection of the rights of others, namely the son’s right to a suitable education for his disabilities’.428 In a case in the High Court a similar complaint was rejected by Sullivan J on the basis that Art 8 was not engaged, because the decision (by the tribunal) that the child should attend a boarding school for those with severe hearing impairment did not compel the child’s attendance there, as the parents could make alternative arrangements (although would have to meet the cost).429 The fact that at the core of parental preference for inclusive education is the desire that children with SEND, even quite severe and complex needs, should as far as possible be able to participate fully within wider society, does not mean in itself that exclusion from mainstream schooling necessarily engages Art 8. In one case outside the field of SEN where the child had been excluded from mainstream education for disciplinary reasons, the parents argued that the child had a right under Art 8 to develop a personality within the school community and that it was being denied. Newman J, however, refused to recognise the existence of such a right and said that the child was ‘not being denied the opportunity to develop his personality in conjunction with others simply because he is not in mainstream school’.430 Inclusion not only concerns an important principle linked to the rights of the child, as discussed above. Being to a large extent concerned with school placement, it is also linked to a much wider question of choice, which is discussed below.

V. Choice A. Background In the post-Warnock period, parental involvement and choice took a major step forward with the EA 1993, which gave parents a right to express a preference for a school to be named in a statement of SEN.431 The law required the local authority

428 Within the terms of Art 8(2) – Graeme, n 409 above, The Law, Pt 1. 429 CB v London Borough of Merton and Special Educational Needs Tribunal [2002] EWHC 877 (Admin); [2002] ELR 441. However, Sullivan J also felt that Art 8(2) would have applied, on a similar basis to that identified in Graeme. 430 R (B) v Head Teacher of Alperton Community School and Others; The Queen v Head Teacher of Wembley High School and Others ex p T; R v Governing Body of Cardinal Newman High School and Others ex p C [2001] ELR 359, [67]. 431 EA 1993, Sch 10, para 3.

504 Special Educational Needs: Voice, Place and Choice to specify in the statement the type of school or other institution that it considered would be appropriate for the child.432 The local authority had a discretion rather than a duty to name a specific school. However, if the local authority considered that a name should be specified, then, if the parent had expressed a preference for a specific school the authority had to name it unless either the school was unsuitable to the child’s age, ability or aptitude or to his or her SEN, or the child’s attendance there would be incompatible with efficient education for the other pupils or with the efficient use of resources.433 It was consistent with the general consumerist policy direction surrounding education and other public services at the time, that increased parental choice of institution had been conferred in this field as it had in the context of school admission more broadly (and note that the general law on school admissions, which was discussed in Chapter 5, governed the rights of those without a statement of SEN to secure admission to a particular school). The Audit Commission had recommended giving parents a right to state a preference as regards placement because there was evidence that their views were not considered or acted upon and the appeal right offered an insufficient safeguard for their interests because its procedure was lengthy and one ‘which very few parents undertake’.434 Giving parents a right to express a preference for a school to be named in a statement would be a step towards increased accountability, but the Commission recommended it be limited to maintained schools only, since non-maintained or independent schools providing special education were ‘usually very expensive’ and might not be able to deliver an appropriate education.435 Having this right would not, the Commission argued, mean that parents would always get their choice, since the conditions noted above about efficiency etc should be attached.436 The Government adopted this as official policy437 and took it forward via the EA 1993, later consolidated within the EA 1996.438 Essentially, the legal position has been maintained under the wider reforms to SEN culminating in the CFA 2014, save that young people aged 16 or over now hold independent rights under the Act that would previously have rested with their parents. The discussion of choice below focuses on the choice of institution to be named in a child’s or young person’s EHCP. As noted earlier, once named the institution will be under a legal duty to admit the child. Choice of placement for a child with SEND is a critical issue and one on which many disputes in this field

432 EA 1993, s 168(4). 433 Ibid, Sch 10, para 3(3). There had to be prior consultation with the school’s governors before it could be named: ibid, para 3(4). 434 Audit Commission, Getting in on the Act. Provision for pupils with Special Educational Needs: the National Picture (London, HMSO, 1992) para 133. 435 Ibid. 436 Ibid, para 134. 437 See DfE, Special Educational Needs, Access to the System (London, DFE, 1992) and DfE, Choice and Diversity. A new framework for schools (Cm 2021) (London, HMSO, 1992) para 9.3. 438 See in particular EA 1996, Sch 27, para 3.

Choice 505 centre. There are, of course, other SEN issues over which children’s parents and young people, as well as children themselves, may seek a degree of influence, as discussed under ‘Voice’ above. They would include decisions about the special educational provision specified in an EHCP, such as one-to-one teaching, communication support and various specialist teaching inputs. However, as we have seen, unlike the naming of a placement there are no specific rights of preference attached to these aspects, only opportunities to make representations and to appeal if in disagreement with the final decision about them. So it has not been appropriate to discuss them as an issue of choice here.

B. The CFA 2014 and Placement Preference The right to express a preference for a school or other institution to be named in an EHCP under the CFA 2014 is one of the decision areas in which the agency and autonomy of those aged 16 or over with SEND have been recognised in law. However, as noted above, in practice relatively few young people are exercising this right, certainly not independently. Nonetheless, they will tend to have an input into the decision, as the SEND Code suggests would be expected to be the case: a ‘decision by a young person in respect of an EHC plan will typically involve discussion with their family and others’.439 The Code emphasises that ‘the final decision rests with the young person’,440 but research has indicated that they tend to want their parent or carer to be involved and can lack confidence to make an independent choice.441 In the case of a child, it is the parent who holds the right to request that a specific school be named in the plan. Research indicates that while parents will make the choice they will, however, generally take account of the child’s view.442 As noted above, when making an EHCP the local authority is under a duty to send the child’s parent or the young person the draft plan and notify them of their right to express a preference.443 The draft plan sent by the authority must not specify a type of school/institution or name a specific school/institution.444 The local authority has to notify the parent or young person of the period (15 days) within which their request must be made and advise them where they can find information about schools and colleges available for the child or young person to attend.445 The local authority must name the school requested by the child’s

439 DfE/DoH,

SEND Code, above n 25, para 8.15. See also para 9.25. para 8.15. See also para 9.25. 441 Davidge and Harris, Working Paper 9, n 160 above, 38–41. 442 Ibid. 443 CFA 2014, s 38(2). 444 Ibid, s 38(5). 445 Ibid, s 38(4) and the SEND Regs 2014, n 137 above, reg 13(1). 440 Ibid,

506 Special Educational Needs: Voice, Place and Choice parent or the young person (although, as noted earlier, requests by the latter are uncommon) unless one of the prescribed conditions applies.446 However, this duty only applies where the expressed preference is for a maintained school, maintained nursery school, academy, further education institution, non-maintained special school or an approved (by the Secretary of State)447 independent special school or special post-16 institution.448 If a different kind of placement to these is preferred, particularly a placement at an independent non-special school, the only statutory basis for choice would be the general but rather limited requirement under the EA 1996, s 9 that children are to be educated in accordance with the wishes of their parents – see the discussion below. The grounds under the CFA 2014 for denying the preference are the same as those which applied under the previous legislation: the unsuitability of the school/ institution for the age, ability and aptitude of the child or young person; or that his or her attendance there ‘would be incompatible with – (i) the provision of efficient education449 for others,450 or (ii) the efficient use of resources’.451 These exceptions – especially (ii), the application of which has been problematic due to its imprecision, as discussed below – can represent significant barriers to choice of placement. If the expressed preference is denied on one of these bases (or if no preference was expressed within the permitted time) the local authority has to select and specify an appropriate school or other institution, or an appropriate type of school/other institution.452 One of the trickier issues arising from this process and the rather technical provisions governing it has concerned the inter-relationship between the mainstream school presumption, discussed in the previous section, and the child’s parent’s or young person’s conditional right to select a specific school/institution to be named in the EHCP. Following amendments made by SENDA 2001, the law provided that the right of preference was not affected by this presumption which at that time was set out in the EA 1996.453 This meant that if a parent expressed a preference for a specific maintained special school, the local authority’s conditional duty to name the school would not be affected by the mainstream presumption.454 This legal position now 446 CFA 2014, s 39(3). 447 The approval is covered by CFA 2014, s 41. 448 CFA 2014, s 38(3). 449 Held, in relation to the equivalent condition under the previous legislation (EA 1996, Sch 27, para 3(3)(b)), that ‘“Efficient education” indicates a standard, not the very highest desirable standard or the very basic minimum, but something in between’: NA v London Borough of Barnet [2010] UKUT 180 (AAC); [2010] ELR 617, [34], per UTJ Mesher. 450 The test would be whether the impact on others would be disproportionate: Hampshire County Council v R and SENDIST [2009] EWHC 626 (Admin); [2009] ELR 371 at [45]–[48], per Stadlen J. 451 CFA 2014, s 39(4). 452 CFA 2014, ss 39(5) and 40(1) and (2). Before it names a school/institution in the plan at this stage the local authority must (unless it has already done so) consult with its governing body: ibid, ss 39(6) and 40(3). 453 EA 1996, ss 316 and 316A(3). 454 As confirmed in R (MH), n 361 above. (See also KC v London Borough of Hammersmith and Fulham (SEN) [2015] UKUT 177 (AAC); [2015] ELR 317.) Note that this was held not to apply to cases

Choice 507 continues under the CFA 2014.455 If any of the grounds for denying the expressed preference applies, or where no specific preference for a school or other institution has been expressed by the parent or young person, the local authority must apply the mainstream school presumption.456 The local authority must secure that the EHCP provides for the child or young person to be educated in a maintained mainstream school, nursery school or post-16 institution, unless that would be either incompatible with the wishes of the young person or the child’s parent or, provided no reasonable steps could be taken by the authority to avoid it, incompatible with the provision of efficient education for others.457 A more problematic issue, as noted above, concerns the ‘efficient use of resources’ ground for denying preference.458 In recent years local authorities have been under enormous general financial pressure and their SEN budgets have been under particular strain not only because of limits to funding allocations from central government but also the increased demand for EHC assessments and the extension from 18/19 to 25 years in the upper age to which local authorities’ SEN obligations apply. Several judicial view challenges have been brought with a view to setting aside local decisions to make cuts in SEN funding.459 The prevailing funding conditions reinforce the likelihood that the additional cost of a specific placement might result in the negation of the young person’s or parent’s choice. Clearly if a placement at the school or other institution that the parent or young person has selected would be no more expensive than that selected by the local authority then the incompatibility with efficient use of resources test will not be satisfied. However, even where there is a positive cost differential between the former and the latter it does not necessarily mean that the placement preferred by the parent/young person would not represent an efficient use of resources. It would be necessary to consider the degree of additional expenditure the parent’s/young person’s choice would involve weighed against the respective benefits, including educational advantages, of the two placements.460 If both placements would be suitable, comparative cost could be the decisive factor.

where the request related to a change of school named in a statement (made under Sch 27, para 8): see Slough Borough Council and the Special Educational Needs and Disability Tribunal v C [2004] EWHC 1759 (Admin); [2004] ELR 546 per Richards J at para 28(vii). 455 See CFA 2014, s 39(3) and (4). 456 See ME v London Borough of Southwark [2017] UKUT 73 (AAC); [2017] ELR 209 at [12], per UTJ Edwards. 457 CFA 2014, s 33(1)–(4). See ‘Place’ above. 458 Ibid, s 39(4)(b)(ii). 459 Those that have reached judgment to date include R (KE, IE and CH) v Bristol City Council [2018] EWHC 2103 (Admin); [2018] ELR 502 and R (KH and Others) v Surrey County Council [2019] EWHC 618 (Admin). Both of these decisions – one (Bristol) upholding the application, the other (Surrey) refusing it – centred on a lack of consultation over the decision taken by the council, including breach of the PSED (see ch 4, ‘The Public Sector Equality Duty’). 460 See eg R (RG) v London Borough of Ealing and SENDIST [2005] EWHC 2335 (Admin); [2006] ELR 197, per Beatson J at [28]–[29].

508 Special Educational Needs: Voice, Place and Choice Kay J said in Surrey County Council v P and P: If the situation was that one alternative would result in significant additional expenditure, then provided both schools were appropriate for the child’s special educational needs, the local authority would be entitled to justify sending the child to a school other than that of the parents’ choice.461

What amounts to ‘significant additional expenditure’ will vary from case to case. It is clear that the courts will generally want to leave this to the judgment of the local authority or, on appeal, the First-tier Tribunal. Indeed, in one case where the tribunal rejected the local authority’s preferred placement of £12,200 per annum and upheld as a reasonable use of public funds the parents’ choice of a residential placement which involved an annual cost of £70,000, Jackson J said that as the case involved an appeal on a point of law only, the court ‘cannot quash the tribunal’s decision on grounds of undue extravagance’.462 The courts have nevertheless offered some guidance on the effect of various cost differentials in this context.463 In R (D) v Davies and Surrey County Council,464 for example, a cost difference of £20,000 between two placements gave rise to additional expenditure that Maurice Kay J considered to be firmly within the bounds of an inefficient use of resources. Another case, Essex County Council v SENDIST, concerned a 12-year-old girl who had been unhappy at her school for several years and had been a victim of racial abuse there, making her reluctant to attend. The local authority refused to name a different school preferred by the parent in her statement, on the grounds of the additional cost. Gibbs J considered that the cost difference, within the range £2,000–£4,000, was ‘in no way disproportionate when balanced against the effect of refusing the parent’s reasonable wishes’.465 There was confirmation in Shurvington466 that costs to be met by the local authority for the child’s transport that is needed in respect of a placement are also relevant to the resources issue. In weighing up the cost of alternative placements, including the transport costs, the marginal or additional cost to the authority of each placement falls to be taken into account. However, if the local authority is already paying for a vehicle to take children to a particular school and a further child can be included at no

461 [1997] ELR 516, at 523C. See also R (RG) v London Borough of Ealing and SENDIST [2005] EWHC 2335 (Admin); [2006] ELR 197. 462 R (Wiltshire County Council) v YM and Special Educational Needs and Disability Tribunal [2005] EWHC 2521 (Admin); [2006] ELR 56, [21]. 463 This is important, because the SEN Code (n 25 above) offers no guidance on this issue. 464 [2003] EWHC 2682; [2004] ELR 416. 465 Essex County Council v SENDIST [2006] EWHC 1105 (Admin); [2006] ELR 452, [32]. Note that this case was concerned with the identical test regarding parental preference for a different school to be named in an existing statement of SEN under EA 1996, Sch 27, para 8, but can be considered also relevant to Sch 27, para 3 and to CFA 2014, s 39(4). 466 Dudley Metropolitan Borough v Shurvington and Others [2012] EWCA Civ 346; [2012] ELR 206 (Court of Appeal).

Choice 509 extra cost, the marginal cost in that case, at least in respect of transport, would be zero.467 It does not matter if the preferred placement is in one local authority area and the placement proposed by the local authority is in another, the same issue of cost differential will apply, since it is the additional cost to the public purse as a whole that is relevant.468 Recoupment arrangements between local authorities mean that the ‘sending’ local authority – the one which has statutory responsibility for ensuring the child’s SEN are met – must meet the costs incurred by the ‘receiving’ authority. However, a question has arisen as to whose costs are relevant for the purposes of the test of incompatibility when determining whether a parental preference for an out of authority school should be met. In B v London Borough of Harrow and Others469 the family lived in the London Borough of Harrow and the child, who was severely disabled, was placed in one of its special schools. The child’s mother later argued that the child’s needs were not being met and she wanted her to be placed in a school in neighbouring Hillingdon. Harrow refused to support this move, saying that it would make it more difficult for it to manage a co-ordinated response to the girl’s needs and would cost too much – an extra £7,000 per annum. The tribunal agreed that a placement at the school in Hillingdon would not be compatible with ‘the efficient use of resources’. The House of Lords held that the relevant resources were those of the sending authority, Harrow. That enabled account to be taken by the sending authority, which had responsibility for the child, of the additional cost that educating any child outside the borough would involve.470 Lord Slynn of Hadley,471 however, opined that as a result it could be more difficult for a parent to secure their child’s placement at a school outside the local authority’s area, presumably because of the additional costs that would often be involved, particularly as a result of transport needs.

C. The General Statutory Duty to Educate in Accordance with Parents’ Wishes A further consideration in relation to choice of school for an SEN placement is, as it has been in ordinary school admission cases (see Chapter 5), the general duty on local authorities under s 9 of the EA 1996 to have regard to the general principle

467 R (W) v The Special Educational Needs and Disability Tribunal and the London Borough of Hillingdon [2005] EWHC 1580 (Admin); [2005] ELR 599. 468 See, eg, FS (Re T) v London Borough of Bromley [2013] UKUT 529 (AAC); [2014] ELR 1. 469 [2000] ELR 109. 470 Note that the duty to admit a child to a school named in an EHCP would apply even where the school is outside the sending local authority’s area: see R v Chair of Governors of A and S School ex p. T [2000] ELR 274. 471 Note 469 above, at 116C-D.

510 Special Educational Needs: Voice, Place and Choice that pupils are to be educated in accordance with the wishes of their parents, ‘so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure’. It is clear that this duty is relevant to cases where the parent or young person selects an independent school placement472 – to which the conditional duty to uphold their preference, set out in the CFA 2014 (above),473 does not apply – but will also be applicable to decisions about mainstream school placements.474 Of course, s 9 of the 1996 Act is only a general principle and ‘does not require the local education authority to give priority to parental wishes, so long as they are properly considered and taken into account’,475 reflecting the earlier case law on school admission discussed in Chapter 5. The established view is that parental wishes, while ‘important … are not decisive’.476 Those wishes must, in any event, play against the judgement of the local authority concerning the suitability of the school, for they need not prevail if, for example, the authority considers that the school it prefers is markedly more suitable for the child than the one chosen by the child’s parent or the young person.477 As Sullivan J put it in a case where the mother of a 10-year-old boy with dyslexia wanted the local authority to fund a placement for her child at an independent school, parental preference ‘will rarely be determinative. In the great majority of cases it will, no doubt, be outweighed by degrees of appropriateness and/or question[s] of cost … and convenience’.478 In one case, the court, having judged the tribunal to have properly weighed up the two placement options, considered that the parents’ preference for a particular independent school was intrinsically ‘of little significance’.479 Indeed, the s 9 principle seems only to come into play in order to resolve a choice between ostensibly equally suitable alternatives for meeting the child’s needs.480 It is likely to be the decisive factor only where there is ‘parity of cost and parity of facilities’.481 The way that account is to be taken (both by the local authority and, on appeal, the tribunal482) of the cost of a placement preferred by the child’s parent derives, 472 See C v Buckinghamshire County Council and the Special Educational Needs Tribunal [1999] ELR 179, CA. Such placements generally cost local authorities far more than others cost: see NAO n 380 above paras 2.16–2.17. 473 CFA 2014, s 39(3)–(4). 474 See, eg, CM v London Borough of Bexley [2011] UKUT 215 (AAC); [2011] ELR 413 and KC v London Borough of Hammersmith and Fulham (SEN) [2015] UKUT 177 (AAC); [2015] ELR 317. 475 R v West Sussex County Council ex p S [1999] ELR 40, per David Pannick QC, sitting as a High Court judge, at 45A-B. 476 A v Birmingham City Council [2004] EWHC 156 (Admin) at [24], per Sir Richard Tucker. 477 C v Buckinghamshire County Council and the Special Educational Needs Tribunal, n 472 above, per Sedley LJ at 188E. 478 B v Gloucestershire County Council and the Special Educational Needs Tribunal [1998] ELR 539, at 547B-C. 479 W-R v Solihull Metropolitan Borough Council and Wall [1999] ELR 528, per Latham J at 534D-E. 480 S and S v Bracknell Forest Borough Council and the Special Educational Needs Tribunal [1999] ELR 51, per Scott Baker J. 481 C v Buckinghamshire, n 472 above, per Thorpe LJ at 189F-G. 482 KE v Lancashire County Council (SEN) [2017] UKUT 468 (AAC); [2018] ELR 196, holding that even where the preference is for a maintained school, and the local authority and the tribunal consider

Choice 511 as noted above, from how the duty to adhere to parental wishes is conditional on the parents’ choice not giving rise to ‘unreasonable public expenditure’.483 It is a condition that aims to ‘prevent parental choice placing an undue or disproportionate burden on the education budget’.484 In S v London Borough of Hackney and the SENT, Collins J said that ‘parental preference will not prevail over unreasonable public expenditure’ and that the tribunal had been entitled to conclude that a net cost difference of £2,000 per annum between a private school and maintained school placement was ‘significant’ and ‘meant that the increased public expenditure was unreasonable’.485 But in Ealing LBC v SENDIST, Plender J doubted that an extra annual cost of £2,000–£4,000 which, as noted above, Gibbs J in Essex County Council v SENDIST486 had considered to be of insufficient magnitude to give rise to an incompatibility with the efficient use of resources in that case, should be regarded as ‘informative of the general level of cost that can be considered to constitute reasonable public expenditure for the purposes of the application of the general principle contained in s 9 of the 1996 Act’.487 There was a much more substantial additional cost in PD and AD v Stockton-upon-Tees Borough Council (SEN),488 amounting to £30,000 per annum as between the two possible academy school placements. The First-tier Tribunal had found this to be incompatible with the efficient use of resources for the purposes of s 39 of the 2014 Act, and the Upper Tribunal confirmed that it was also a cost difference that made it ‘inconceivable that any reasonable Tribunal applying s 9 [of the 1996 Act] consciously could have come to any … decision other than that the additional public expenditure was unreasonable’.489 In any event, the local authority must name a school at which the child will receive appropriate provision;490 and as Jackson J said in R (Wiltshire County Council) v YM and SENDIST, that means that inappropriate educational provision may not be made ‘simply on the grounds of cost’.491 Once it is established that provision is appropriate, it becomes a question of determining whether the

the placement would be incompatible with the efficient use of resources for CFA 2014, s 39 purposes, they must also take account of EA 1996, s 9. See also PD and AD v Stockton-upon-Tees Borough Council (SEN) [2019] UKUT 57 (AAC) per UTJ Lane at [47]. 483 The issue of whether ‘place funding’ allocated to a maintained school should be taken into account as a cost to the local authority where there was a vacancy at the school was considered in London Borough of Hammersmith v L; London Borough of Hammersmith and Fulham v F; O v Lancashire County Council; H v Lancashire County Council [2015] UKUT 523 (AAC); [2015] ELR 528, a decision which also reveals some of the complexity in the computation to be made in these cases more generally. 484 Oxfordshire County Council v GB, n 463 above, [15], per Sedley LJ. 485 [2001] EWHC Admin 572; [2002] ELR 45, at [40] and [44]. 486 Note 465 above, [32]. 487 Ealing London Borough Council v Special Educational Needs and Disability Tribunal and Mr and Mrs K [2008] EWHC 193 (Admin); [2008] ELR 183, [16]. 488 Note 482 above. 489 Ibid, per UTJ Lane at [55]. On cost calculation, see EH v Kent County Council [2011] EWCA Civ 709; [2011] ELR 433. 490 CFA 2014, s39 (and previously EA 1996, s 324). 491 R (Wiltshire County Council) v YM, n 462 above, [20].

512 Special Educational Needs: Voice, Place and Choice extra cost of the more expensive independent school placement can be justified. The Court of Appeal confirmed in the Oxfordshire case that the additional cost has to be weighed against the educational benefits of the placement;492 and in Wardle-Heron v London Borough of Newham and the SENT, the court seemed to proceed on the basis that the expression of parental preference itself and the educational advantages of the preferred placement were relevant.493 Where there are wider health or social benefits that would arise from the parents’ preference they should also form part of the balancing exercise involved in determining whether the additional public expenditure is unreasonable.494 The question whether ‘public expenditure’ for the purposes of the s 9 balancing exercise is restricted to expenditure by education authorities was for a time unresolved. In HW and W v Bedfordshire County Council,495 where the local authority had acknowledged that if the child, who was profoundly disabled, was to be placed in a day school he would also need provision out of school hours from the local authority’s social services department, Stanley Burnton J concluded that that question was to be decided ‘on another occasion’.496 However, it was considered subsequently in O v London Borough of Lewisham by Judge Andrew Nicol QC, who favoured ‘the natural meaning of the term “public expenditure” in s 9, namely that it is concerned with the impact of a parent’s choice on the public purse generally, and not exclusively with the cost to the LEA’.497 In WH v Warrington Borough Council, however, UTJ Williams declined to follow O and preferred to adopt ‘the narrow view not the wide view of the proper interpretation of “unreasonable public expenditure”’.498 But when the case reached the Court of Appeal (sub nom Haining v Warrington Corporation499) the UTJ’s decision was overturned, the appeal judges preferring the wider approach. Lord Dyson MR contrasted s 9 with the ‘efficient use of resources’ condition (now in the CFA 2014),500 which he said referred exclusively to the local authority’s resources. He said that ‘a natural reading of s 9 clearly supports the wider interpretation’ and that this was consistent with Parliament’s intention.501 This meant that the cost of respite care was a relevant factor in determining the degree of public expenditure that was involved. In many cases, taking account of a wider range of public expenditure will mean that there will be a greater barrier to the granting of parental wishes for the purposes of s 9. However, there may be exceptional cases. Indeed, in Haining there was a potential public

492 Oxfordshire County Council v GB, n 463 above. 493 [2002] EWHC 2806 (Admin); [2004] ELR 68. 494 K v London Borough of Hillingdon [2011] UKUT 71 (AAC); [2011] ELR 165, [29]–[30], per HH Judge Pearl. 495 [2004] EWHC 560 (Admin); [2004] ELR 586. 496 Ibid [20]. 497 [2007] EWHC 2130 (Admin); [2007] ELR 633, [36]. 498 [2013] UKUT 391 (AAC); [2013] ELR 568, [80]. 499 [2014] EWCA Civ 398; [2014] ELR 212. 500 CFA 2014, s 39(4), noted above. 501 Note 499 above, [28] and [31].

Choice 513 expenditure saving from the parents’ preferred placement, since no or not as much social services respite care would be needed for the child. Although there is no limitation to the subject matter of the parental wishes that fall to be taken into account, the duty in s 9 is in other respects similar to the duty under the second sentence of A2P1 of the ECHR, discussed earlier in this chapter, which requires the state to respect the parent’s right to ensure the education of their child in conformity with their religious or philosophical convictions. That requirement is subject to the reservation entered by the UK that adopts exactly the wording of the conditions attached to EA 1996, s 9 (formerly EA 1944, s 76) (that the right will apply subject to compatibility with the provision of efficient instruction and training and ‘the avoidance of unreasonable public expenditure’). On the basis of the approach adopted by the Strasbourg jurisprudence, and in particular the decisions in Simpson v United Kingdom502 and Belgian Linguistics Case (No 2),503 the state has, as we have seen, considerable discretion and is able to take account of the need to manage its resources appropriately and in the national interest. Against this background, and particularly in the light of the UK’s reservation, the Human Rights Act 1998 appears not to have advanced the prospects for parental choice of placement in the context of special educational needs. Although argued in a small number of cases centred on the issue of inclusion (noted above), it has thus far been little relied upon by parents in this context. However, in one SEN placement case the court indicated, hypothetically, that an argument that account should have been taken, for the purposes of ECHR, A2P1, of the parents’ preference for a Roman Catholic School placement for their child might have succeeded.504 In the case of a philosophical conviction, as discussed earlier, it may be difficult for a parent to be able to rely on A2P1 in support of a school placement choice. Other Convention rights, such as those contained in Arts 8 (respect for private and family life) and 9 (freedom of thought, conscience or religion), may also be considered, although as discussed above and in the context of school admissions more generally,505 Art 8 claims over school choice have had little success. Both Articles were cited in A v Special Education Needs and Disability Tribunal and London Borough of Barnet506 in support of a challenge brought by Jewish parents of a disabled child for whom the local authority considered a state special school placement should be made. The parents wanted her to be educated at a private Jewish day school. The tribunal found in favour of the authority. The parents argued that the tribunal had failed to take account of the child’s cultural and practical need to attend a Jewish school and had therefore violated her rights under Arts 8 and 9. The court, however, held that the tribunal had to consider the child’s Jewishness as part of its statutory responsibility in assessing her SEN and 502 Note 406 above, The Law’ para [2]. 503 Note 408 above. 504 The court said that the point would have to have been raised before the tribunal: S v London Borough of Hackney and the Special Educational Needs Tribunal [2001] EWHC Admin 572; [2002] ELR 45. 505 See ch 5. 506 [2003] EWHC 3368 (Admin); [2004] ELR 293, QBD.

514 Special Educational Needs: Voice, Place and Choice the provision that would need to be made for them; as a result, the Convention rights ‘add nothing’.507 One final point is that there are, of course, other SEN issues over which children’s parents and young people, as well as children themselves, may have a degree of influence, as discussed under ‘Voice’ above. They would include the special educational provision specified in an EHCP, such as one-to-one teaching, communication support and various specialist teaching inputs. However, as we have seen, unlike the naming of a placement there are no specific rights of preference attached to these aspects, only opportunities to make representations and to appeal if in disagreement with the final decision about them. So it has not been appropriate to discuss them as an issue of choice here.

VI. Conclusion The field of special educational needs is governed by a complex statutory framework which aims to ensure that the education system caters properly for the diverse requirements of children and young people with disadvantages in learning arising from their particular difficulties and disabilities. The legislation also seeks to involve children, their parents, and young people in decision-making processes and to engage them in ways that enable their views to inform strategic planning. In recent years, recognition of the need to increase support for participation by children, young people and parents and thus give them increased opportunities to exert influence has resulted in further extensions of their rights. Recognition of the voice and autonomy of young people with SEND through the conferment of independent rights on them, under the CFA 2014 in England, is a development of huge importance which is also reflected in recent amendments to Scottish additional support needs legislation. Indeed, the Education (Scotland) Act 2016 has, through amendments to the Education (Additional Support for Learning) (Scotland) Act 2004, conferred on 12–15 year olds most of the rights508 which are held by young people and parents, subject to a test of ‘maturity and understanding’509 and confirmation by the education authority that it would not ‘adversely affect the wellbeing of the child’ to exercise the particular right.510 These developments in England and Scotland could be seen to reflect a new paradigm in youth rights in this field. Yet in some respects these independent rights seem thus far to have more symbolic than practical importance, since relatively few young people appear to be able or

507 Ibid, [41], per David Lloyd Jones QC (deputy High Court Judge). 508 The exclusions are: requesting mediation, making a placement request, and appealing a placement decision. 509 See S Riddell and D Carmichael, ‘The biggest extension of rights in Europe? Needs, rights and children with additional support needs in Scotland’ (2019) 23(5) International Journal of Inclusive Education 473. 510 Amendment made by the Schedule to the Education (Scotland) Act 2016.

Conclusion 515 keen to exercise them, although the reasons for this are complex.511 Yet it would be wrong to dismiss the new rights, which apply to collective and individual participation processes, as tokenistic.512 They are certainly helping to shift the balance in the perception of rights in education under domestic law away from parents and more towards children and young people. With improvements in implementation, they could yet alter SEND decision-making in a meaningful way. Special educational needs is a field where there is a constant and acute tension between rights and resources. Rights are generally linked to processes rather than outcomes, and choice is far from guaranteed. Yet this is a field where the processes are important. An EHCP, like a statement of SEN before it, has a premium as a ticket to additional resources. It can thus provide an opportunity for the realisation of choice for the individual, albeit within limits. However, the assessment process which proceeds it, while concerned with the needs of individual children, also serves as a rationing device for state resources. As an allocation mechanism, though, it is problematic due to the influence of social class and cultural capital which enable better-educated families from more advantaged socio-economic backgrounds to gain more than others from the system and the rights connected to it, as well as greater access to the redress mechanisms.513 The Lamb-inspired reforms aimed at giving parents in particular more control are very likely to have given most benefit to the more socially advantaged. There is also a question arising from the way that special education, with its own statutory regime and matrix of rights and responsibilities, plus its well-developed and robust dispute resolution framework, is distinct and separate from other areas of education notwithstanding the many interactions between it and them. The SEND framework may make sense as a means of ensuring a rational system for the important educational decisions and resource allocations that fall to be made both in individual cases and on a collective scale. But its place arises from an artificial separation, both within the field of education itself and in the wider context. It is, for example, inexplicable why the case for a single appeal system for both SEND and school exclusion cases has yet to be accepted by government, when the links between these areas of practice and decision-making are so strong and children with SEN have a much higher than average risk of exclusion. Addressing social inequalities and meeting educational and social needs in a coherent fashion is rendered all the more problematic, particularly where multiple disadvantage is concerned. The scaling back of inclusion for children with SEND, notwithstanding the legally based presumption that these children should be educated in mainstream settings, seems to be compounding this problem and working against wider social equality goals that the CRPD in particular seeks to promote. 511 See Harris and Davidge (2019), nn 13 and 160 above; Davidge and Harris, n 160 above; and S Riddell et al, Autonomy, Rights and Children with Special Needs: A New Paradigm? Report (2019) www.ed.ac.uk/education/rke/centres-groups/creid/projects/autonomy-rights-sen-asn-children. 512 See L Lundy, ‘In defence of tokenism? Implementing children’s right to participate in collective decision-making’ (2018) 25(3) Childhood 340. 513 See S Riddell et al, ‘Dispute resolution in additional and special educational needs: local authority perspectives’ (2010) 25(1) Journal of Education Policy 55.

10 Conclusion: Schooling for One and All? This book’s title includes a question to which attention needs to be paid in drawing some conclusions from the discussion in the preceding chapters. The starting point is the principal expressions of the right to education under international law, noted in Chapter 2.1 They are not only clear that the right is universal and to be enjoyed on an equal basis, but also that the state has an obligation to ensure that education is available and free of charge – at least at the primary education stage,2 although the UN’s Sustainable Development Goal 4 envisages free, equitable and quality primary and secondary education for all, by 2030.3 It is also provided that education must be directed at certain key matters which, among other things, reflect children’s individuality in terms of their character, abilities, gender, ethnicity and cultural background. Among other things, they reflect the perceived importance of ensuring that, as far as possible, education meets each child’s individual developmental needs – as for example in the UNCRC’s requirement that education be directed to the ‘development of the child’s personality, talents and mental and physical abilities to their fullest potential’.4 They also have a citizenship aim which one can see in the objective of enabling ‘all persons to participate effectively in a free society’, set out in the ICESCR,5 and that of ‘preparation of the child for a responsible life in a free society’, as required by the UNCRC.6 Inclusive citizenship is also reflected in the requirement under the CRPD to ensure ‘an inclusive education system at all levels’ which is directed to, inter alia, ‘enabling persons with disabilities to participate in a free society’.7 The CRPD is one of several measures, including the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which aim to combat the particular disadvantages suffered by some groups as a result of exclusionary and discriminatory practices and stereotyping in education and other

1 Under ‘The state’s role in supporting access to education’. 2 Reflecting the fact that as states are at different stages of development there is a need to allow for the progressive realisation of free secondary education: see in particular the ICESCR, Art 13.2(c). 3 UN Sustainable Development Goal 4, Target 4.1. 4 UNCRC, Art 29.1(a). 5 ICESCR, Art 13.1. 6 UNCRC, Art 29.1(c). 7 UNCRPD, Art 24.1(c). See ch 4 above.

Conclusion: Schooling for One and All? 517 spheres. Here the aim is not, however, merely to promote equality and inclusion for individuals within these groups, but also to shape social attitudes. Thus, for example CEDAW, noted in Chapter 4, not only provides for girls to have ‘[a]ccess to the same curricula, the same examinations’ and ‘teaching staff with the same qualifications’ as boys, but also requires the ‘elimination of any stereotyped concept of the roles of men and women at all levels and in all forms of education by encouraging coeducation and other types of education which will help to achieve this aim’.8 The General Recommendation on girls’ and women’s right to education, which amplifies the nature of the right and sets out guidance on the right’s implementation, refers to how transformation achieved via the education system can help to ‘accelerate positive change in other areas’.9 More generally, we saw in Chapter 4 how the Public Sector Equality Duty, despite its limitations, has an important role to play within the education system through the promotion of equality and good relations between people with and without a particular protected characteristic. In order to fulfil its responsibility to ensure that education is inclusive in terms of both access and approach or content, so that it meets individual needs and supports wider social goals of equality and unity, there is also a perceived need for adaptability to social diversity. This is specifically identified in the General Comment on Art 13 of ICESCR, which advises that education should be ‘flexible so it can adapt to the needs of students within their diverse social and cultural settings’.10 We saw in Chapter 1 in the discussion of multiculturalism and cultural pluralism that the issue of how adaptable the education system and schooling should be to the needs and wishes of minorities the education system is part of a much broader question for liberal democratic societies. For example, there has been increasing support for the idea that while education should develop respect among pupils for those of different cultural backgrounds to their own, as called for by the UNCRC,11 it should also impart common values in order to improve intercultural understanding and social cohesion. We have also seen at various points throughout the preceding chapters how education can be a site of conflict that is often centred on issues of human rights and fundamental f reedoms, when it fails to adapt fully to the culturally-based wishes of those from certain minority groups. This has been a particular issue for the school curriculum, both in relation to secular and religious elements, as discussed in Chapters 6 and 7 respectively. Against a traditionally quite liberal approach that is reflected in the accommodation of and support for faith schools in the state system, including some of the free schools and academies established over the past decade, cultural clashes nevertheless seem likely to increase. At the time of writing, education about same sex relationships is a particular area of tension, as highlighted in Chapter 1. 8 CEDAW, Art 10(b) and (c). 9 Committee on the Elimination of Discrimination against Women, General recommendation no 36 on girls’ and women’s right to education (CEDAW/C/GC/36) (2017), para 26. 10 Committee on Economic, Social and Cultural Rights, General Comment No 13 (twenty-first session, 1999) The right to education (article 13 of the Covenant) (E/C.12/1999/10) (1999) para 6(d). 11 UNCRC, Art 29.1(d).

518 Conclusion: Schooling for One and All? It is likely to remain so following the introduction in 2020 of a new framework for relationships and sex education following the reforms made by the Children and Social Work Act 2017, which was discussed in Chapter 6. The risk of such conflicts has increased with the adoption by government of ‘muscular liberalism’,12 an approach to policy that involves a greater willingness to regulate to prevent or limit activities seen as socially unacceptable or threatening to society’s interests, or more rigorously to promote certain values or educational objectives, regardless of clashing with particular minorities’ cultural traditions. An example is the Government’s response to the Trojan Horse affair, discussed in Chapters 3 and 6. Elizabeth Poole sees it as an example of muscular liberalism where the response was in part influenced by the prominence given to the affair in the media and the way the issue was represented there – as she sees it, ‘through a radicalisation narrative allowing for a renewed push for anti-extremist measures across the public sector, but especially in education’.13 Concerns arising from the affair and from separate evidence from Ofsted about unregistered schools, discussed in Chapter 8, have been influential in the measures contained with the Counter-Terrorism and Extremism Act 2015 and the requirements on the promotion of ‘fundamental British values’, which were discussed in Chapter 6. The proposed new regulatory measures governing unregistered education settings and home education, discussed in Chapter 8, offer further examples. Part of the concern is about protecting the interests of children by ensuring that they are not being denied a suitable education or being exposed to risks of harm. But a more general issue, one exercising many European states, is the potential development of ‘parallel societies’14 with segregation between people of different cultural backgrounds – not segregation by the state, as in the cases before the European Court of Human Rights such as DH v Czech Republic15 concerning the allocation of school places for Roma children, discussed in Chapter 4,16 but due to people choosing to educate their children separately for cultural/religious reasons. De facto segregation on the basis of religion, ethnicity and socio-economic status continues to arise from school admissions policies and criteria, including those by which faith schools operate religious preference, as shown in Chapter 5. Schooling in England is now governed by a vast framework of law, including a very significant body of case law. Such is the scale and complexity of the legislation, especially when account is taken of the relevance to education of more general legal areas, particularly equality law (covered in Chapter 4) and human rights law, that it 12 Coined by the then Prime Minister, David Cameron, in a speech in 2011: see, eg, J Jose, ‘A liberalism gone wrong? Muscular liberalism and the question for monocultural difference’ (2015) 21 (5) Social Identities 444. 13 E Poole, ‘Constructing “British Values” within a Radicalisation Narrative’ (2018) 19(3) Journalism Studies 376, 378. 14 Referred to, for example, in Dojan and Others v Germany (Application Nos 319/08, 2455/08, 7908/10, 8152/10 and 8155/10), 13 September 2011, [2011] ELR 511, at [2]. 15 Application No 57325/00 (Grand Chamber, 13 November 2007) [2008] ELR 17. 16 Under ‘Equality and the Right to Education’.

Conclusion: Schooling for One and All? 519 seems unlikely that professionals and administrators working in the field will fully understand all its requirements. It may accordingly be even more problematic for parents and children to know their rights and understand the nature of the state’s and their own responsibilities. This is likely to be particularly true among those from disadvantaged backgrounds – for whom the realisation of the child’s right to education seems often at greatest risk (for example due to the child’s truancy or exclusion) and among whom the ability to exercise rights of choice and participation in decisions about their child’s education may be more limited. As shown in Chapter 9 in the discussion of new legal framework under the CFA 2014, an aim of the SEND reforms was to give parents more control over their child’s education and to extend independent rights to young people, and yet significant barriers remain in a system that while in many respects rights-based, nevertheless operates under a complex bureaucratic framework. There has been a significant focus, throughout the chapters, on the rights and interests of children, particularly the extent of the realisation of their right of participation reflected in the right to express their views and for those views to be given due regard, under Art 12 of the UNCRC. There has been a gradual increase over the past decade in opportunities for children’s agency and for the enjoyment of autonomy over some issues of education particularly once reaching the age of 16 – as in the right to appeal over a SEN decision or to pursue a disability discrimination claim independently, to withdraw from collective worship, to request an EHC assessment, and to express a preference for a SEND placement. Also, as noted in Chapter 6, older children will no longer face the risk of being withdrawn from sex education automatically on their parent’s request, once the new regulations on relationships and sex education come into force.17 In all of these specific cases the equivalent rights of the parents have been removed, although in general parents remain the default rights holders under domestic law in relation to their children’s education. But there is still scope for conflict between children’s and parents’ rights – for example, over participation in religious education. Children’s agency could be extended further in this field and particularly through the provision of greater opportunities for collective participation. For example, there could be a legal requirement for each school in England to have a school council (school councils are compulsory in Wales) and a specific duty could be placed on head teachers, when devising disciplinary and behaviour measures at their school, to have regard to pupils’ views.18 There seems to be a growing professional acknowledgement that children’s voice on matters of importance to them ought to be heard, as in the recent tacit support among teachers for pupils withdrawing from school in the UK and elsewhere to protest against a perceived insufficiency of government action in response 17 As was noted, the head teacher will have a discretion not to excuse the child from sex education. 18 But note that currently the school’s governing body must make a written statement of general principles to which the head teacher must have regard when determining the measures and, in doing so, the governing body must consult with registered pupils: EIA 2006, s 88(3)(d) read with s 89(1).

520 Conclusion: Schooling for One and All? to climate change. In relation to decisions about their own education, however, there is also a need for more practical support for children and young people in exercising their rights. As noted in Chapter 9, there is a requirement in relation to SEND matters to ensure information and advice are made available to them, and although voluntary sector help will often be available for those that seek it there is a case for extending such a duty more broadly across education. Twenty years ago the UN Rapporteur on the Right to Education, in a report on the UK, expressed the hope that ‘the spirit and wording of the Convention on the Rights of the Child will gradually influence English educational law, policy and practice’.19 The ‘gradually’ competent of this wish has certainly been realised, but there has also been some general movement in this field towards recognising the child as a holder of rights. Indeed, in view of the Special Rapporteur’s support for the idea of a ‘human-rightsfriendly school’ as a way of translating the aims and content of the UNCRC into practice,20 it is encouraging that, as noted in Chapter 1, over one and a half million children now attend a ‘Rights Respecting School’ in the UK. One would hope this initiative spreads further across the system. The question whether there is schooling for all is not just about whether children are enrolled at a school or receive education elsewhere, including via attendance at an unregistered institution or the receipt of elective home education. As discussed in Chapter 2, there are children who miss out on at least some of the available education as a result of truancy, exclusion from school, or ‘off-rolling’, a consequence that raises concerns not only because of its potential effect on the individuals’ future trajectories and prospects but also because of the over-representation among them of children from less advantaged backgrounds. Some also receive very inadequate provision in their out of school settings. But there is also an issue concerning the ability of the school system to cater appropriately and in a rights-upholding way for the wide-ranging educational, social and cultural needs of the diversity of children who depend upon it. While of course the capacity of teachers and managers to ensure that schools operate in an inclusive way is very important to this issue, it is also a question that hinges to a significant extent on the way that the state’s responsibility to protect these rights and advance society’s interests in the education of children – supplemented by the parental responsibility to ensure children’s participation in education – is legally constructed. The law, an instrument of policy reform and regulation, sets out how the education system should operate, what kind of education children should receive (or more particularly, how and by whom the content should be determined) and in what environment. It also prescribes how and on what basis – for example, on the basis of equality – education should be accessed. Provided it upholds the rights of children and their parents, discussed in some detail throughout this book, the state 19 Commission on Human Rights, Report submitted by Katarina Tomaševski, Special Rapporteur on the right to education, Mission to the United Kingdom of Great Britain and Northern Ireland (England) 18–22 October 1999 – (E/CN.4/2000/6 Add.2) (Geneva, United Nations, 1999), para 90. 20 Ibid.

Conclusion: Schooling for One and All? 521 is given sanction by the law to manage the complex task of ensuring the education of the population in accordance with the policy priorities of the Government of the day. In seeking to ensure that there is schooling for one and all within a mass education system, albeit one that is itself increasingly diverse, the law has a key role in ensuring that children’s diverse learning and cultural needs are addressed, but also in setting limits to the accommodation of individual choices, whether for reasons of efficiency or to do with resource limitations or wider policy factors, including those to do with balancing perceived national interests against minority concerns. It means that individual choices and preferences will sometimes go unmet and tensions will arise. A pragmatic approach to governance may limit tensions of this kind, but it cannot realistically prevent them.

522

INDEX A Abbas, T 26 academies accountability 163–164, 167–168 admissions appeals 266 admissions policy 158–159, 246–247, 257–258, 282 alternative provision academies 123 autonomy 158–159, 171, 173, 295–297, 416 careers guidance provision 296 Coalition Government 148, 149–150, 155–168 collective worship 296, 410 conversion to academy status 156–157, 160–163 cost effectiveness 141–142 creationism 296, 416–417 curricula 110, 150, 158, 295–297, 298, 315–316, 326 development from CTCs 110–111 expansion of sector 33, 140–141, 148, 160, 161–162 faith schools 18, 178, 282, 283, 390, 395, 416, 517 free schools 149–150 funding 141, 156, 157–158, 162–163, 296 funding agreements 156, 167, 296 generally 27, 156, 178, 228, 295–296 grammar schools, conversion 175 Headteacher Boards 165 independent schools, status as 296, 423 inspection 164 introduction 94, 95 local authorities and 157, 158, 164, 167 monitoring performance of 163–167 multi-academy trusts (MATs) 162–164, 167–168 new schools 156, 161, 162 non-denominational 390 not-for-profit basis, limited to 163 number of 161–162 parent governors 134–135

parental choice and 234 private sponsorship 141, 162–163 quasi-independent status 141, 156 racial equality 193–194 Regional School Commissioners (RSCs) 164–166 regulation 156 religious education 296, 392, 395 salaries 167 SEND children 159–160, 460 sex and relationships education 296, 369–370 Single Academy Trusts 163 specialist 141, 158, 296 Trojan Horse affair 168–173 trusts 157–158, 162–163, 296 underperformance by 163–165 underperforming schools converting to 160–162 access to education children of migrants and asylum seekers 62–71 choice relating to 233 claims relating to denial 48–55 equal see equal access to education excluded pupils 34–40 higher education 60–61 illness, exclusion due to 34–40, 112 parental choice see parental choice right to see right to education selective see selection by ability or aptitude state responsibility 30–93 accountability gap academy sector 163–164, 167–168 Adams, L et al 471 addiction not amounting to disability 206 Adhar, R and Leigh, I 409 Adjudicator see Schools Adjudicator admission forums 244–245, 247 admissions, regulation Schools Adjudicator, role and powers 255–259 variation requests 255

524 Index admissions applications academies 266 appeals 242, 265–271, 275, 277, 279–281 application forms 260, 261 choice advisers 246 consultation of child 259–261 cross-boundary 251–253, 278 faith schools 245 false or misleading information in 243 interviews banned 245 judicial reviews 266 poor behaviour as basis for refusal 275 prejudice ground for refusal 232–233, 242, 262–271 variation requests 255 Admissions Code see School Admissions Code admissions policy see also selection by ability or aptitude academies 158–159, 246–247, 257–258, 282 banding arrangements 249, 272, 273, 285 bilateral schools 272 capping of places 242 catchment areas 243, 248, 251–254, 256–257, 277, 281–282, 286 class size and 122, 264–265, 268–270 consultation of child 259–261 criteria 243–244, 246, 247–255, 277, 286 deferred acceptance (DA) algorithms 279 discretion, room for 250 discrimination 213, 215–220, 226–227, 237–238, 245–246, 255, 257, 517 ECHR compliance 247, 250–251, 255, 261–262 efficient educational provision 232–233, 242, 262–271 efficient use of resources 49, 67, 232–233, 242, 262–271, 491, 493–494, 499–500, 504, 506–513 Fair Access Protocol 40, 276 fairness 256, 257 faith schools 245, 248–249, 250, 257–259, 278, 282–284, 286 feeder primary schools 248 free schools 282 grammar schools 248, 254, 255, 271–273 higher education 226–227 home to school distance 243, 248, 250–251, 256–257, 273 looked after children 248, 256, 273, 281

market competition and 244, 263–264, 276–277 objections to 255–259 open enrolment 242, 263 oversubscription criteria 243–244, 254, 258, 278–279, 281 parental choice and 232–233, 241–248, 276–285 parental preference 209, 232–233, 242, 252–253, 272, 276–285 permanent exclusion, child with record of 262, 265, 274–276 positive discrimination 226–227 prejudice ground for refusal 232–233, 242, 262–271 priority, determining 247–255, 256, 261, 278–279 published admission number 263, 280 pupil premium children 254–255 random allocation 245, 249, 280, 285 reasonableness 256 religion of parents 237–238 school uniforms and equipment 242, 245 scrutiny 246–247 siblings 243, 248, 250–251, 256–257, 261, 265, 267–268, 270 sixth forms 273 socially disadvantaged children 232, 243–246, 249, 253–255, 257 stratifying effect 254, 277, 281–285 universities 273 after-school arrangements 131 age discrimination 195, 204 see also discrimination agreed syllabus conference (ASC) 395–397, 398 Ahdash, F 359–360 Ajegbo, Sir Keith 305 Allen, R et al 285 Allen, R and West, A 249 alternative provision 34–38, 47, 112, 122–123 Asari, E-M et al 24 assessment tests 300, 315, 319–321, 322, 323–324, 326 assisted places scheme 99, 425 abolition 116 asylum seeker and refugee children ECHR 69–70 failed applicants 67–71 free school meals 66–67 generally 1 local authority duty 40, 67

Index 525 proportionality issue 69–71 SEN children 67, 69 state responsibility for ensuring education 62–63, 65–71 unaccompanied children 65–66 Vulnerable Children Resettlement Scheme 66 attainment gap academic attainment and first language 4 generally 176, 322–324 looked-after children 322 SEN children 323 attainment targets generally 300 Progress 8 framework 45 religious education 392 SEN children 44–45 attendance see enforcement of participation in education; school attendance; truancy attendance case management (ACM) 86 autistic spectrum disorder 206–209, 212–213, 323, 448, 456 Avramidis, E and Norwich, B 447 B Badman Report 442, 443 Bainham, A 26, 368 Ball, SJ 133, 244 Barber, P 29 Barendt, E 419 Barry, B 24 Barton, Len 496 Beacon status 140–141 Bell, David 26–27 Benn, Melissa 180, 228, 297 Bennett Review 44 Bew, Lord 316 Bielefeldt, H 390 bilateral schools 272 Black-Branch, J 501 Blackstone, WH 29 Blair, A 380, 382 Blair, Tony 114–115, 145, 146 Blaylock, D et al 18–19 boarding accommodation local authority failure to arrange 78–79 religious denomination and 235–236 Bradney, A 363 breakfast clubs 131 Bridgeman, J 368 Brighouse, H 338

British society preparation for life in, independent schools 429–430, 431–432, 434, 444–445 ‘British values’ conflict with 212 curriculum requirement to promote 20, 287, 306–307, 345–351, 361, 422, 431, 434, 518 generally 20, 25–26, 518 home education 346, 424, 440, 444–445 independent schools 426, 428, 429–430, 434, 444–445 introduction of policy 346 monitoring teaching of 348 National Curriculum focus 300–301 Britton, J and Dearden, L 82 Broderick, A 185 Brown, Gordon 25, 114, 140, 179 bullying, of child biphobic 376 generally 65, 74, 197, 304, 344, 376, 438, 496 homophobic 376 transphobic 376 bullying, of head teacher 169 Burger CJ 340 Butler, RA 103–104, 105, 234, 235, 239 C Cambridge Primary Review 306 Cameron, David 350 Campbell, Alastair 141 Cantle, T 16, 18, 24 careers guidance provision academies 296 independent schools 428 carers see parental responsibility Casey, Dame Louise 71 Casey Review 19, 24, 27, 284, 285, 353, 354, 358, 360, 444 catchment areas admissions policy 243, 248, 251–253, 286 determination 251–252 equal access and 181 home to school distance 243, 248, 250–251, 256–257, 273 house price premiums 282 local authority boundaries 252–253 school-community links and 253 social exclusion and 253–254, 277, 281–282 censorship 292

526 Index Channel programme 354, 355, 360 charter schools 151–152 childcare provision New Labour strategy 130–131, 177 Ofsted inspections 131 Sure Start scheme 131, 307 children’s rights capability approach 10–11 collective worship 404, 414 curriculum and 288, 337–342 domestic legislation 7, 8, 12 ECHR 449 education see right to education engagement and co-production 466–468 equal treatment 8, 13 freedom of expression 357–358, 386–387 home-schooled children 337–338, 436, 445 internationally established norms 7–8, 12, 516 language and cultural identity 345, 348–349 mental capacity and participation right 465–466 multiculturalism and 23 parental rights, conflicts with 8, 337–339, 403, 519 participation/consultation 8–13, 62–63, 241, 259, 260, 449, 451–453, 458–466, 505–506, 519–520 privacy 357 religious education 402–404 religious expression 8 Rights Respecting Schools awards 13, 520 SEND children 10–11, 13, 34, 449, 451–453, 458–489, 494, 519 sex and relationships education 8, 364, 380–387, 519 UNCRC see UN Convention on the Rights of the Child choice access to education 233 child’s consultation/participation rights 8–13, 241, 259–261, 449, 451–453, 458–489, 505–506, 514–515, 519–520 citizenship and 229 of educational content 327 ‘efficient instruction’ 29, 49, 233–234, 326, 337, 426–427, 435, 442, 443–444, 513 equality and 230 faith schools see faith schools generally 286

implications 276–285 independent schools 425 individualist and collectivist aspects 237–239 limited nature 232–242, 264, 277–281, 325–327 market competition see competition between providers National Curriculum and 325–345 parental see parental choice parental preference see parental preference rationale for offering 95, 228–231, 286 religious education 402–408 for schools 228 SEND children 503–514 social inequality and 232, 277 stratifying effect 254, 277, 281–285 ‘unreasonable public expenditure’ 233–234, 325–326 church schools see faith schools citizenship ‘British values’, requirement to promote 20, 287, 306–307, 345–351, 361, 422, 431, 434, 518 common identity 17 consumer-citizen 229 contractarian model 229 ICESCR 516 interculturality and common values 13, 15, 20, 21–27 market competition and 244 National Curriculum 20, 294, 302–307, 317, 319, 336–337, 422 New Labour policy 132–133 personal money management 307 preparation for, generally 342 preparation for life in free society 170, 332, 424, 445, 516 residence/citizenship status and right to education 60–61, 62–71 right to participate effectively in free society 516 rights, respect and responsibility programme 304 role of education, generally 15, 20 UNCRC 516 universal, framework for 13 city technology colleges (CTCs) curricula 110 introduction 94–95, 108, 110–111 public-private hybrids 108, 110–111 regulation of admissions 110

Index 527 renamed academies 141 specialist 141 Clarke Report 168–170, 172, 440 Clarke, C and Woodhead, L 282, 398–399, 406–407 class size attempts to reduce 116, 122 limit 264, 265, 268, 269 parental choice and 122, 264–265, 268–270 climate change strikes 10, 519–520 co-education CEDAW 184, 517 school 173, 175, 1183 Coalition Government academies 148, 149–150, 155–168, 175 charter schools 151–152 free schools 129, 149–155 The Importance of Teaching 126 institutional autonomy 142 localism agenda 149 ‘moralised mutualism’ 149 parental responsibility 133 school leadership agenda 140 collective worship academies 296, 410 background to present law 408–413 case for abolition of requirement 412–413 children’s rights 404, 414 community cohesion 404 community schools 408–409 emphasis on Christianity 409–411, 412–413, 421 foundation schools 408–409, 410 parental right to opt-out 28, 235, 236, 237, 390, 394, 402, 414–415, 519 possible alternatives 413 rationale for requirement 408, 413 sixth-form pupils 414–415 staff non-participation 411–412 state schools 390–392 statutory requirement 408–413, 421 voluntary schools 410 what constitutes worship 410–411 Committee on Economic, Social and Cultural Rights 20, 62 community catchment areas 253 ‘extended’ schools 131–132, 140 localism agenda 149 community schools collective worship 408–409

generally 27, 104, 129, 130, 134, 146–147, 390 religious education 395 community special schools 105, 130, 146–147 competition between providers admissions criteria 244 driving innovation 277 free schools 150 implications 276–285 parental choice and 263–264, 276–277 reforms introducing 95, 99, 107–109, 111, 116, 146–147, 228–232, 276–277 social cohesion and 244 stratifying effect 254, 277, 281–285 complementary schools 432, 435 see also unregistered schools Comprehensive Future 175, 177 comprehensive schools introduction 94, 105–107 New Labour policy 115, 141 system, generally 276 consumerism see competition between providers CONTEST strategy 351 Cooper, D 397 corporal punishment generally 78 independent schools 431 religious or philosophical belief in 329–330, 332–333, 501, 502 Coulby, D 301, 325 Council of Europe intercultural approach advocated by 22 county schools 104 Covell, K et al 304 creationism and intelligent design academies 296, 416–417 curriculum and 204, 389, 394, 415–421 faith schools 415–416 free schools 154, 420 US schools 416–419 Crick Report 24, 26 Crowther, K and Kendall, S 81, 86 Cullen, M-A et al 476, 478 Cullinane, C et al 253–254, 282, 285 cultural diversity see also multiculturalism; social diversity curriculum and 287–288, 517 inclusive educational provision 517 interculturality and common values 13, 15, 21–27, 288, 517

528 Index National Curriculum and 325–345 recognising religion or belief 342–344 UNESCO Universal Declaration on Cultural Diversity 17 Cumper, P and Ipgrave, J 413 curriculum see also vocational education and training academies 110, 150, 158, 295–297, 315–316, 326 ‘British values’ 20, 287, 306–307, 345–351, 361, 422, 431, 434, 518 censorship 292 centralised control 94, 108, 287, 288–295, 297, 298–299 children’s rights and interests 288, 337–342 city technology colleges 110 collective worship 235 combatting extremism 287, 336, 337, 345–347, 351–361, 424 creationism and evolution 154, 204, 296, 389, 394, 415–421 cultural conflict over 350 cultural preferences and 325–345 discrimination and 203–204 earned autonomy 128–129, 140, 143, 295–296 ECHR cases 327–334 English Baccalaureate 314–315, 392 free schools 150, 154, 326 health education 287, 365, 366, 374 ‘hidden’ 287 history teaching 23, 335, 336, 349–350 inclusivity 288, 321–325, 327, 335, 517 independent schools 346, 423 linguistic preference 344–345 minority rights and interests 288, 333–334, 335–342 moral development of pupils 294, 296, 303, 347–348 multiculturalism and 288, 301, 303, 321, 335–342 National see National Curriculum parental choice and 325–345 parental rights 288 political bias, prevention 111, 290, 291–294, 298–299, 304–305 preparation for later life 296, 326, 332, 335, 337–338, 342, 365, 368, 393, 424, 431–432, 434 Prevent Strategy/Duty 345–347, 348, 351–361 publication of information on 242

religious education see religious education school diversity and 287 school governing body setting 107–108 science 415–421 secular see secular education sex discrimination 184, 517 sex education see sex and relationships education social exclusion and 295 social importance 287 specialist schools 150–151, 158, 296 spiritual development of pupils 294, 296, 348, 392 D David, ME 301 Dawkins, R 18, 416 Dearing, Lord 145, 300 deferred acceptance (DA) algorithms 279 denominational schools see faith schools Dent, Harold 299 devolution 28, 95–96 disability see also special educational needs accessibility plan/strategy 222 assistance to be provided 184 auxiliary aids, provision 220–223 capability approach 10–11 definition 205–207, 452 discrimination on basis of 181, 184, 192, 193, 205–208, 212–213, 214, 220–225, 226–227, 451, 481, 519 education outside local community 185 equal access to education 181, 184–185 equality of disabled children 13 excluded conditions 206 higher education 185 human rights model 222–223 inclusive educational provision 322–323, 448–449, 489–503, 513, 516, 517 local offer 450, 460, 466–467 parental choice and 231–232, 233 participation right see children’s rights percentage of children with 2 physical features of premises 220–221 reasonable adjustments duty 220–223 school provision 102 selection by ability or aptitude and 223 SEND see special educational needs severe disfigurement 206 social model 222

Index 529 special schools 104–105, 119, 212, 468, 489–490, 491, 493, 495–496, 499 UN CRPD 7, 13, 44, 184–185, 223, 241, 449, 467, 497–500, 516 Disclosure and Barring service 439 discrimination access to benefit, facility or service 213 admissions policy 213, 215–220, 226–227, 237–238, 245–246, 255, 257 age, on basis of 195, 204 balancing individual and community rights 13–15, 207–208 behavioural conditions 206–208, 212–213 burden of proof 223–224 CEDAW 184, 516 compensation for 224–225 curriculum content 203–204 difference-blind rules 16–17 direct 185, 208–209, 216–220 disability/special needs 44–45, 47, 159, 181, 192, 193, 195, 201–202, 205–208, 212–213, 214, 220–225, 226–227, 451, 481, 516, 519 ECHR 60, 186–187, 189–192, 255, 455 educational provision 213 equal access to education see equal access to education Equality Act 2010 203–225 European Social Charter 184 examination rescheduling 222 exclusion from school 213, 214 faith schools 205, 212, 216–219 gender, on basis of 7, 102, 184, 186, 187, 192, 193, 195, 205, 516–517 gender identity, on basis of 195, 202 gender reassignment, on basis of 195, 202 indirect 185, 190, 196–198, 201, 208–209, 214–220, 225 legislation, generally 225–227 manifestly without reasonable foundation test 188–189, 207 marriage/civil partnership status 204 maternity, on basis 195, 205 parental preference and 209 participation in public life 222–223 positive 196, 200, 226–227 pregnancy, on basis of 195, 205, 209 prohibited conduct 208 proportionality 209, 213, 227 protected characteristics 7, 193, 195, 200, 203, 204–208, 223, 428, 517

public sector equality duty 102, 192, 193–203, 226–227, 517 racial 7, 183, 186, 187, 190–192, 193–194, 195, 197–198, 200–201, 202, 205, 209–210, 212, 215–219, 232, 264, 284–285 reasonable adjustments duty 220–223 religion or belief, on basis of 7, 195, 205, 212, 217–219, 226 remedies 223–225 Rights Respecting Schools awards 13, 520 school uniform policies 196–198, 214–215 segregation see segregation sexuality, on basis of 7, 192, 193, 195, 202, 205 single sex schools 178, 192, 212 travel to school 201 UN CRPD 516 UNESCO Convention against Discrimination in Education 184 diversity see also multiculturalism; social diversity capability approach 10–11 choice and see parental choice; parental preference cultural 17, 212, 412, 517 curricula and 287 National Curriculum and 303 New Labour reforms 114–148 religious 212, 336–337 school governing bodies 136–139 school population generally 181 schools system, generally 94–95, 110, 140–148, 180, 228, 264 UNESCO Universal Declaration on Cultural Diversity 17 Dixon, R and Nussbaum, M 10, 11 Doyle, M 465 Driscoll, Jenny 328 Drummond, O 478, 483 dyslexia 453–454, 456 E Educate Against Hate 352 education action zones (EAZs) 119–121, 130, 131, 295 education, health and care plan (EHCP) appeals 482, 484–488 child’s consultation/participation rights 458, 468–472, 483–488, 519

530 Index draft plan 505 financial considerations 515 generally 159, 231–232, 233, 240, 276, 450–451, 456, 457, 458, 494, 504–505 placement preference 505–514 unenforceability 482 Education Policy Institute Unexplained Pupil Exits 41 Education and Skills Funding Agency 156 education supervision order (ESO) 80, 86–88 education welfare local authority responsibility 112 educational maintenance allowance (EMA) abolition 82 educational provision see also access to education ‘at school or otherwise’ 29 child’s personal development 48, 516 compulsory education 29, 34–35, 100 developing state responsibility 99–103 devolved governance 28 discriminatory 213 diversity and choice 32, 94–95, 110, 140–148, 180, 264 enforcement of educative duty 29 excessive capacity 113 financing/financial management 99, 100, 107, 108 full-time, provision must be 29, 35–36, 37, 39 inclusivity 288, 321–325, 335, 449, 467, 497–500, 516, 517 local authority responsibilities 29, 33, 99, 100–103, 112–114, 238 parental responsibility 29 primary, secondary and further education 102, 516 realisation of child’s potential 48 religious/philosophical convictions, accordance with see religious/ philosophical convictions responsibility for, generally 29 right to education see right to education selective see selection by ability or aptitude special educational provision (SEP) 457–458, 494, 514 state responsibility see state funding; state responsibility; state schools system suitable to age, ability and aptitude of child 29, 33 universalism principle 100, 287–288

educational reforms centralisation 94, 99, 101, 113–114, 126–127, 180 choice see parental choice Coalition Government 148–156 developing state responsibility 99–103 devolved financial management 107, 108 ideologically-driven 94, 95, 178 institutional autonomy 95, 128–129, 140–144, 180, 277 local authority powers 95, 99, 107–110, 112–114 market competition see competition between providers New Labour 114–148, 178–179, 244–245 reform of institutional framework 94–95 school governance 95 efficient education generally 29, 49, 72, 232–235, 423, 435, 500, 513 suitable to the child’s age, ability and aptitude 443–444 Elsdon-Baker, F et al 415 enforcement of participation in education see also school attendance; truancy criminal prosecutions for truancy 73–81, 87 ECHR 90–91 local authority, by 73, 112 regular attendance 71, 73–74, 77 school attendance orders 73–74, 87, 443 statutory excuses for non-attendance 74–81 UNCRC 71 English Baccalaureate (EBacc) 314–315, 392 equal access to education see also equality catchment areas and 181, 277 disabled children 181, 184–185 discrimination, proscription 181, 184–187 diversity of school population 181 ECHR 181, 183–184, 185, 186–187, 189–192 education outside local community 185 Equality Act 2010 192–225 existing facilities, to 50, 185, 213 faith schools 186, 187–188 higher education 185 immigrant populations 186 inherent social inequalities 11 international human rights principles 181, 183–187 language issues 186, 189–190

Index 531 minority populations 7, 186, 190–192 nursery care 199–200 overriding importance 183 proportionality 187–190 racial discrimination 7, 183, 186, 187, 190–192, 193–194, 195, 200–201 religion, discrimination on basis of 7 segregation and 181–183 sex discrimination 7, 184, 186, 187 social origin, discrimination on grounds of 61, 181–182, 186 student loans 60–61, 186–187 UNCRPD 13, 44, 184–185, 467, 498 UNESCO Convention against Discrimination in Education 184 university tuition fees 61, 187, 199 equality admissions policy and 232, 243–246, 249, 253, 257 children’s right to equal treatment 8, 13 difference-blind rules 16–17 discrimination see discrimination ‘due regard’ duty 195, 199–200, 201, 202 educational 183, 227 educational content and 21 enforcement of equality duty 226 equal access to education see equal access to education examination grade boundaries 200 harassment affecting pupils 195, 203, 208–209, 214 impact assessments 199, 200–201 inherent social inequalities 11, 277 legislation, generally 225–227 No Outsiders programme 4–5, 13, 14, 28, 363 of opportunity 195, 201 parental choice and 230, 232 parental preference and 277, 281–285 participation in public life 196, 222–223 positive discrimination 196, 200 positive obligations 193 private bodies carrying out public functions 199 promoting equality or good relations 195, 198, 201 protected characteristics 7, 193, 195, 200, 203, 204–208, 223, 248, 517 public sector equality duty 8, 102, 192, 193–203, 226–227, 517 reconciling rights with wider interests 13–15

relationships education policy 6, 8 right to education and 7, 183–192, 516 Rights Respecting School award 13, 520 school uniform policies 196–198, 214–215 selection by ability or aptitude 232, 248, 273 social diversity and 1 socio-economic disadvantage and 187, 194–195, 199 travel to school 200, 201 victimisation affecting pupils 195, 203, 208–209, 213–214 Equality and Human Rights Commission (EHRC) 3, 194, 195, 196 ethnic diversity see multiculturalism; social diversity European Committee of Social Rights 84 European Convention on Human Rights (ECHR) censorship 292 children’s rights 449 collective worship 414 discrimination 60, 186–187, 189–192, 255, 455 educational provision 7, 14, 233 equal access to education 181, 183–184, 185, 186–187, 189–192 freedom of religion/belief 51–52, 328, 403–404, 513 home education 435–436 language and culture 344–345 proportionality 69–71 proscription of indoctrination 192, 292–293, 305, 327, 333–334, 348, 406 relationships and sex education 383–384 religious/philosophical convictions, education in accordance with 29, 261–262, 327–334, 403–404, 436, 499–500, 513–514 right to education 30, 34, 47–62, 184, 383, 400–401, 430 right to private and family life 250–251, 264, 334, 368, 383–384, 435, 503, 513 school attendance 90–91 school exclusions 47–48, 52–57 European Social Charter (ESC) discrimination 184 financial penalties and 84 generally 7–8 right to education 8, 30, 62, 184 state responsibility 71

532 Index European Union (EU) Charter of Fundamental Rights 31 children of EU migrants 31, 63–65 Citizenship Directive 63–64 derived right to reside 63 Framework for National Roma Strategies 21, 64 Race Equality Directive 21 Evans, J and Vincent, C 231 exams English Baccalaureate 314–315, 392 grade boundaries 200 publication of results 111, 242, 273 rescheduling 222 Excellence in Cities (EiCs) programme 121, 123, 130 exclusion see school exclusion exhibitionism, tendency to 206 extremism, combatting Channel programme 354, 355, 360 danger of stereotyping 353–354 Educate Against Hate 352 generally 287, 336, 337, 345–347, 351–361, 387, 424 guidelines 351–352 home-schooled children 439–440, 446 non-violent extremism 352 Prevent Strategy/Duty 345–347, 348, 351–361 pupil welfare 352, 359–361, 446 supplementary or complementary schools 432–433, 435 training for teachers 353 Trojan Horse affair 136, 168–173, 179, 346, 347, 431, 440, 518 unregistered schools 433–434, 439–440, 446, 518 F failed/failing schools closure 119, 123 controls over 117 education action zones (EAZs) 119–121, 131, 295 LEA powers 118–119 replacement of governing body 119 Secretary of State powers 119, 123 special measures 117, 119 faith schools see also Muslim schools academies 18, 178, 282, 283, 390, 395–396, 416, 517

admissions applications 245 admissions criteria 248–249, 250, 257–259, 278, 282–284, 286 creationism 415–416 cultural and curricular autonomy 346, 421 discrimination and 205, 212, 216–219 equal access to education 186, 187–188 exclusivity 399 free schools 151, 152–154, 178, 282, 390, 517 independent 180, 346, 425–426, 427–428, 429–432 New Labour reforms 129, 141, 145–146 Northern Ireland 18–19 number of 103, 390 parental choice and 95, 228–229, 234–235, 286, 390 preparation for later life 338, 424, 431–432, 434 public funding 104, 399, 421 religious education 395, 399, 421 religious segregation 518 secular curriculum 430 segregation by sex 173, 390 sex and relationships education 366, 375, 379–380, 517–518 social inequality and 232, 249–250, 282–283 social integration and 17–21, 27, 28, 182, 282, 518 special agreement schools 104 supplementary or complementary schools 432–433 travel to 186 unregistered 424, 427–428, 433–434, 446, 518 voluntary aided 104, 153–154, 173, 178, 283, 395 voluntary controlled status 104, 395 within state sector 28, 100, 103–105 Fast Track attendance case management 85–86 federation arrangements 128 Feintuck, M and Stevens, R 249 Fortin, J 358–359, 497 Foucault, M 357 foundation schools admissions appeals 265 collective worship 408–409, 410 introduction 110, 116 number of 144

Index 533 parent councils 132 parent governors 134 religious education 395 trust model 128, 132, 142–144 France religious dress in schools 17, 52, 328–329, 389 Fredman, S 194, 195, 201 free education development of provision 100–101 European Social Charter 8 free schools academy status 149–150 competition 150 concerns surrounding 150, 152, 154–155 creationism 154, 420 curricula 150, 154, 326 disadvantaged children 154–155 expansion of sector 176 faith schools 151, 152–154, 178, 282, 390, 517 funding 150, 154 generally 129, 149–155, 228 introduction 94, 95 New Schools Network 151 not-for-profit basis, limited to 152 number of 150–151 parental choice 155 pupil premium 154 rationale behind 95 sex and relationships education 369–370, 517–518 specialist 150–151 Studio Schools 150 teachers 150 university-led 150, 151 free society preparation for life in 170, 332, 359, 424, 445, 516 right to participate effectively in 516 freedom of religion/beliefs see religious freedom/beliefs Freeman, M 376, 497 Freeman, S 341 functional skills qualifications (FSQs) 311–312 fundamentalism combatting extremism 287, 336, 337, 345–347, 351–361 unregistered schools 424, 518 Funding Agency for Schools 108, 109, 116

further education county colleges 102 discretionary awards 112 functional skills qualifications 311–312 organisation of educational provision 102 racial equality 193–194 state responsibility to provide 32 G gang culture pupil referral units and 38 school uniform policy 198 García Oliva, J and Hall, H 416 Garnett, RW 230 gender identity discrimination on basis of 195, 202 diverse 2–3 Gender Identity Development Service 2 LGBT relationships teaching 4–7, 290–291, 363, 367, 376–378 No Outsiders programme 3, 4–7, 8, 13, 14, 28, 363 number of children transitioning 2 practical arrangements for transgender children 3 transgender issues 3, 376–377 gender inequality see also sex discrimination school promoting 347 gender performance gap 322 gender reassignment discrimination on basis 195, 202 General Teaching Council (GTC) 124, 126 Germen Janmaat, J 349 Gibton, D 94, 123 gifted children policy towards 454–455 Goldstein, S 19–20 Goodhart, D 26 Gorard, S 254 Gove, Michael 148 governing bodies see school governing bodies grammar schools conversion into academies 175 disadvantaged children 173–174, 176, 177 expansion of sector 173–177, 178 extending parental choice 176 government commitment to expansion 95

534 Index historical background 100 New Labour policy 174, 271 number of 173 pupil premium children 254 pupil selection 100, 101, 105–107, 173, 174–175, 178, 248, 254, 255, 262, 271–273 Schools that Work for Everyone 176 Selective School Expansion Fund (SSEF) 177 social mobility and 173–174 streaming 272 grant-maintained (GM) schools abolition 116 funding 108, 109 introduction 94, 108–110, 114 opposition to 109, 110 opt-out 109 Gunter, HM 116 Gutmann, A 14 Gypsy children attainment gap 323 educational participation rates 79, 89, 437–438 equal access to education 202 exclusion 42 local authority duty 40, 437–438 special educational needs 457 H hairstyle school uniform policy 197–198 Hall, LA 370–371 Halstead, JM 19, 182 Halstead, JM and Reiss, MJ 363 Hamilton, C 445 Hannett, S 219 harassment definition 214 equality and 195, 203, 208–209, 214 prohibition 203 public authority duty 195, 203 Harber, C 360–361 Hardy, J and Vieler-Porter, C 284 head teachers focus on strong leadership 140 importance to educational quality 126 leadership qualification 125–126 health education generally 287, 365, 374, 382 moral framework 366 Heater, D 304, 305

higher education see also university admissions disabled students 185, 498 discretionary leave to remain and 60–61, 186 entitlement to student loans 60–61, 186–187 racial equality 193–194 right of access to 50–51, 60–61 SEN children 185, 498 tuition fees 61, 187, 199 history syllabus multicultural 23, 335, 336 Hodgson, D 15–16 Holocaust education 349–350 Holy Cross school affair 48–49 home education Badman Report 442, 443 ‘British values’, promotion 346, 424, 440, 444–445, 518 children’s rights and interests 337–338, 436, 445 communal 432 ECHR 435–436 elective 423, 435, 437–445, 446, 520 excluded children 438 extremism and 434, 439–440, 446 full time, meaning 444 generally 95, 432 local authority duty to record 437 minority populations 336–337, 339–340, 518 motivations for choosing 438–439 number of children receiving 423, 432, 437–438, 446 off-rolling and 438 parental responsibility 423, 435 parental right 30, 71, 72–73, 92, 327, 330, 337–341, 432–433, 435–436, 439 preparation for later life 337, 424, 444, 445 proposed regulatory reforms 424, 440–445, 446 right to education and 436 right to family life 435 secular education 445 SEN children 438, 443, 490 social integration and 27, 28, 336–337, 423–424, 432, 436, 445, 518 UNCRC requirements 445 unregistered schools 424, 434, 446, 518 welfare of child 433, 439, 446

Index 535 home-school agreements 81, 133 home tuition excluded pupils 36 homework clubs 131 homework policy publication of information on 242 human rights principles corporal punishment 329, 332–333 cultural preferences, accommodation 325–345 disability 222–223 ECHR see European Convention on Human Rights education rights 30–31, 62, 183 equal access to education 181, 183–187, 498 equality see equality freedom of assembly 13, 291 freedom of association 13, 291 freedom of expression 13, 52, 291–292, 305, 342, 357–358, 364 integrity of the individual 1 language and cultural identity 13, 345, 348–349, 359 non-discrimination 13, 60 parental choice 95, 233, 325–345, 425 proscription of indoctrination 192, 292–293, 305, 327, 333–334, 348, 406 reconciling rights and wider interests 13–15, 212, 344 religious freedom 13, 32, 51–52, 328, 390, 402, 403, 421, 513 right to education 30–31, 48, 184, 498 right to privacy 357 right to private and family life 78, 90–91, 250–251, 264, 334, 368, 383–384, 435, 503, 513 school attendance 90–91 social diversity and 1 teaching 303 I illness alternative provision duty 34–40, 112 school attendance and 74 school exclusion due to 34–40, 112 immigrant populations children of EU migrants 31, 63–65 equal access to education 186 language/linguistic rights 20–21, 64, 344–345

limited/discretionary leave to remain 60–62, 66–67, 186 right to education under ECHR 52–53, 60–61 role of schools in social integration 328 social diversity 1–2, 3–4, 20–21 state responsibility for children’s education 62–71 independent schools academies see academies accommodation 428 assisted places scheme 99, 116, 425 ‘British values’, requirement to promote 426, 428, 429–430, 431, 434, 444–445 careers guidance provision 428 case for retaining 95, 425 charitable status 179 city technology colleges 110–111 class sizes 122 corporal punishment 431 countering extremism in 346–347 cultural and curricular autonomy 346, 423, 424–432 denominational 180, 346, 425–426, 429–432 economic cost of abolishing 180 education in accordance with parents’ wishes 429 funded places 179, 180 generally 101, 179–180, 423 inspection 426 as model to aspire to 142 moral and ethical education 428 number of pupils 32, 95, 423, 424 number of schools 32, 424 partnership arrangements 179 political bias in teaching, prevention 428 premises 428 preparation for life in British society 429–430, 431–432, 434 prescribed standards 425, 426–431, 446 principal language of instruction 428 protected characteristics, respect for 428 registration 427, 433 regulation 424–432 right to education 429 secular curriculum 430 SEND children 493, 506, 510 social integration and 27, 427 staff 428

536 Index university admissions policy 273 unregistered 424, 427–428, 432–435, 518 indoctrination 192, 292–293, 299, 304–305, 327, 333–334, 348, 406, 434 Inner London Education Authority (ILEA) abolition 107 inspections academies 164 Coalition Government reforms 148 independent schools 426 of LEAs 114, 117 nursery education 122 Ofsted 111, 117, 348 promotion of ‘British values’, assessment 348 publication of reports 111, 122 religious education 392 unregistered schools 433–435, 446 Integrated Communities Strategy Green Paper 27 integration see also faith schools Casey Review 284, 285 home educated children 27, 28 independent schools 27 interculturality and common values 13, 15, 21–27, 517 multiculturalism and 15–21, 26–27, 517 Prevent Duty 355 International Covenant on Civil and Political Rights 405 International Covenant on Economic, Social and Cultural Rights (ICESCR) generally 7 parental choice 425 religious freedom/beliefs 403 right to education 20, 31, 62, 184, 383 right to participate effectively in a free society 516 social and cultural diversity 517 Islam see Muslim schools J Jenkins, S et al 281 Joint Committee on Human Rights (JCHR) 9, 12, 66 K Keating, H 358 Keeping Kids Safe report 38 Kershaw Report 168, 170 Kilkelly, U 497

Kisby, B and Sloam, J 302–303 Kymlicka, W 24, 336 Kymlicka, W and Norman, W 16–17 L Lamb Inquiry 459–462, 468, 515 language teaching National Curriculum 300, 308–310, 318 language/linguistic rights ECHR 344–345 equal access to education and 186, 189–190 examination grade boundaries 200 first language not English 4, 325, 344–345, 453, 454 Gaelic language education in Scotland 97 linguistic diversity 3–4, 20–21, 23 migrant populations 20–21, 64 multicultural education 23 parental choice and 344–345 right to education 49–50, 344–345 UNCRC 345 Lansdown, G et al 260 league tables publication 111, 273 learning difficulty see also special educational needs definition 453 Learning and Skills Council (LSC) 310 Lewis, G 132 Lister, R 133 literacy national targets 115, 120 summer schools 131 local authorities academies and 157, 158, 164, 167, 178 accessibility strategy 222 accountability 114, 116, 118 admissions appeals 265–271 admissions policy 213 alternative provision duty 34–38, 47, 112, 122–123 asylum seekers, children of 40, 67 attendance case management 86 co-production, facilitating 467 Coalition Government 148 devolution of power from 12, 95, 99, 107–110, 112–114, 180, 234, 289 discretionary awards 112 education supervision orders 86–88 enforcement of educative duty 29 enforcement of participation in education 71–88, 444

Index 537 equality duty 102, 192, 194, 226, 517 failing schools, powers over 118–119 Fair Access Protocol 40, 276 grammar schools 105–107 Gypsy/Roma/Traveller children 40, 437–438 historical background 100–103 inspections of LEAs 114, 117 LEAs, generally 100–103, 147–148 New Labour reforms 116–119, 122–123, 129–130, 146–148, 178–179 non-discrimination, duty of 102, 192, 226 outsourcing of services 117 parent representatives on committees 118 parental preference duty 209, 252–253, 262–263 penalty notices, issue 83–85, 88 personnel shortages 33 resource shortages 33, 57–59, 102 responsibilities, generally 29, 33, 99, 112–114, 116, 118 school attendance, responsibility for 73, 112, 437, 444 school attendance orders 73–74 school organisation plans 118 school staff, employment 112 school transport 78, 112, 200 school uniform grants 112 SEN children 102, 112, 450, 453, 466–470 ‘sufficient’ schools duty 29, 33, 34, 47, 100, 102, 108, 109, 118, 146 truancy 71–73, 87 underperformance by 117 warning notice to school 160 welfare and education functions 147, 359 local authority care looked after children 33, 248, 256, 281, 322 Local Government and Social Care Ombudsman (LGO) complaint to 266 Local Management of Schools (LMS) 108, 263 local offer SEND children 450, 460, 466–467 looked-after children attainment gap 322 local authority powers 33 school admissions 248, 256, 273, 281 selective schools 273 state responsibility 32–33

Lundie, D 326, 402, 407, 414 Lundie, D and O’Siochru, C 402, 407 Lundy, L 11, 337, 339, 383, 387 M MacAllister, J 11 McColgan, A 201, 220 McCrudden, C 25 Macdonald, Sir Alasdair 381 Macedo, S 337, 341 McGlynn, C and McDaid, S 356 McGoldrick, D 13, 388 Major, John 134, 232 Manfredi, S 218 Manfredi, S et al 195, 202 Mansfield, Iain 173–174 market competition see competition between providers Marshall, T 488 Mashaw, JL 451 maternity discrimination on basis of 195, 205 Mawhinney, A 413 May, Theresa 176, 178, 179 mental capacity child’s consultation/participation rights and 465–466 mental health initiatives 287, 365, 373, 374, 388, 424 Merry, MS 336 minority rights and interests see also faith schools; multiculturalism; social diversity curriculum and 288, 333–334, 335–342, 517–518 parallel societies, development 518 racial discrimination 7, 183, 186, 187, 190–192, 193–194, 195, 202, 205, 209–210, 215–219 recognising religion or belief 342–344 social cohesion and 344, 436, 517–518 supplementary or complementary schools 432–433 unregistered schools 430, 432, 436, 446, 518 Modood, T 24 Moffat, Andrew 5 Monk, D 92, 350, 365, 376, 382 Montacute, R and Cullinane, C 253 ‘moralised mutualism’ 149 Morgan, Nicky 175

538 Index Mountfield, Helen 255 Muir, R and Clifton, J 165–166 multi-academy trusts (MATs) 162–164, 167–168 multiculturalism see also ‘British values’; language/linguistic rights; minority rights and interests Britishness and 24 Casey Review 19, 24, 27, 284, 285, 353, 354, 358, 360, 444 children’s interests, protection 335–342 children’s rights 23 difference-blind rules 16–17 educational content 21 faith schools 17–21, 27 history syllabuses 23, 335, 336 Integrated Communities Strategy Green Paper 27 integration and inclusion 15–21, 321–325, 517 interculturality and common values 13, 15, 21–27, 288, 517 languages 23 National Curriculum and 301, 303, 321, 335–342 parental influence and 23 reconciling rights and wider interests 13–15, 212, 344 religious education 23 resistance to 336 social division and 15–16, 23–27, 517 state funding and 15 UNESCO Universal Declaration on Cultural Diversity 17 muscular liberalism 518 Muslim schools see also faith schools academies 178 free schools 152–154, 178 gendered segregation 173, 183, 210–212 number of 145, 390 Prevent Strategy/Duty 345–347, 348 unregistered 433–434 N National Curriculum academies 158, 295–297, 298, 315–316, 326 assessment tests 300, 315, 319–321, 322, 323–324, 326 attainment gap 322–324 attainment targets 300, 323–324

‘British values’, requirement to promote 306–307, 345–351, 422, 424, 431 Britishness, focus on 300–301 centralised control, generally 288, 297, 298–302 citizenship education 20, 294, 302–307, 317, 319 cross-curricular themes 294, 301 CTC exemption 110 cultural preferences and 325–345 earned autonomy 295–296 education action zones 121, 295 entitlement areas 316 foundation stage 307–308 foundation subjects 300, 308–309, 317–319 free schools 326 history teaching 349–350 inclusivity 288, 321–325, 327, 335 introduction 108, 111, 287, 289, 290, 294, 297–302, 303 language teaching 300, 308–310, 318, 319 multiculturalism and 301, 303, 321, 335–342 New Labour policy 117, 302–303, 307–308 P scales 323–324 parental choice and 325–345 physical education 318, 319 pluralism and 335–342 political influence on 298–299, 301–302 post 2014 315–321 primary schools 307–308, 318 rationale 298, 299, 336–337 recognising religion or belief 342–344 reforms 297–298, 302, 308–321 religious education 334, 391, 392 resistance to 298–299, 301–302 responsibilisation, policy of 305–306 SEND children 298, 321–322, 323, 325 sex education 362, 363–364 social cohesion, promoting 305–306 socially disadvantaged children 322–323 standard assessment tasks (SATs) 300, 319–320, 326 teacher assessments 320 temporary exception from 298, 321, 325, 326 National Curriculum Council (NCC) 294, 301 national identity secular education 307

Index 539 New Labour academies 140–141 active citizenship 132–133 centralised regulation under 125, 126–127 childcare strategy 130–131 citizenship and ‘British values’ 25–26 class sizes 116, 122 diversity and control of schools 114–148 diversity of provision and providers 129–130, 264 earned autonomy reform 128–129, 140, 295 education action zones (EAZs) 119–121, 130, 131, 295 Every Child Matters policy 147 Excellence in Cities (EiCs) programme 121, 123, 130 faith schools 129, 141, 145–146 federation arrangements 128 Five Year Strategy for Learners 130 foundation schools 116, 128, 129, 134 grammar schools 174, 271 home-school agreements 81, 133 LEAs under 116–118, 122–123, 129–130, 146–148, 178–179 modernisation of teaching profession 124–126 National Curriculum 117, 302–303, 307–308 New Deal for Schools 115 nursery education 122, 307 Ofsted inspections 117 Opportunity for All 115 parent governors 133–140 parental choice 232, 244–245 parental responsibility 132–134 parenting orders 82–83, 133 public partnership approach 119–121 school government reforms 127–130 school leadership agenda 140 Schools: Achieving Success 140 Schools Adjudicator 118 schools’ community role 131–132, 140 SEN policy 492–493, 495 social inclusion 115, 119–121, 126, 130–144 Standards Agenda 115–123 Sure Start scheme 131, 307 Teachers: Meeting the Challenge of Change 125 trust schools 128, 132, 142–144 voluntary aided schools 129

New Schools Network 151 Newvell, J 88 No Outsiders controversy 3, 4–7, 8, 13, 28, 363 Northern Ireland education, governance 28, 96, 97–98 faith schools 18–19 Holy Cross school affair 48–49 shared education, facilitation and promotion 98 Norwood Report 105 numeracy national targets 115, 120 summer schools 131 nursery education equal access to 199–200 free, local authority provision 199–200 inspections 122 New Labour reforms 122, 307 pupil premium children 254 SEND children 506–507 Nussbaum, M 10 O off-rolling exclusion by 41–42, 520 home education and 438 Ofsted centralised regulation under 125 childcare inspections 131 defence of No Outsiders programme 5 inspections 111, 117, 131, 164, 348 Out of School 39 Safeguarding children and young people in education from knife crime 38 Trojan Horse investigation 168 unregistered schools, identification 434–435 oversubscription criteria 243–244, 254, 258, 278–279, 281 P P scales 323–324 Parekh, B 22–23, 26 parent councils 132 parent governors diversity 136–139 generally 99, 107, 133–140 removal 136 parental authority conflicting with right to education 359

540 Index parental choice see also parental preference academies and 234 child’s consultation/participation rights 241, 259–261 choice advisers 246 class sizes and 122, 264 contrary to the child’s interests 232–233 contrary to interests of others 232–233 ECHR cases 327–334 ‘efficient instruction’ 29, 49, 233–235, 262–271, 423, 435, 500, 513 equality and 230 faith schools 95, 278, 286, 390 free schools 155, 234–235 free transport enabling 246 generally 286, 435 grammar schools 176 home education 30, 71, 72–73, 92, 327, 330, 337–341, 435 human rights principles 95, 233, 325–345, 425 ICESCR 425 implications 276–285 independent schools 425 individualist and collectivist aspects 237–239 information about schools, publication 242 language/linguistic rights 344–345 limited nature 232–242, 264, 277–281, 325–326 local authority responsibility 33 market competition see competition between providers National Curriculum and 325–345 nature of child’s education 92 parental responsibility and 230–231, 435 permanent exclusion, child with record of 262, 265, 274–276 rationale for offering 95, 228–231, 286 reforms introducing 99, 107–111, 133, 179, 180, 228 religious/philosophical convictions see religious/philosophical convictions secular education 95 segregation enabled by 27, 264, 277, 281–285 SEN/SEND children 231–232, 233, 240–241, 449–450, 451–453, 458–489, 491–492, 493, 494, 499–514, 519

single sex schools 235, 240, 261–262 social division and 230 state responsibility to increase opportunity for 32 stratifying effect 230, 232, 243–246, 254, 264, 277, 281–285 ‘unreasonable public expenditure’ 233–234, 325–326 unregistered schools 435 parental preference see also parental choice admissions appeals 242, 265–271, 275, 277, 279–281, 510–511 admissions policy and 232–233, 241–248, 259–263 authorities’ right to refuse 510–511 contrary to the child’s interests 232–233 contrary to interests of others 232–233 discrimination and 209 efficient educational provision, prejudice to 232–233, 242, 262–271, 327, 504, 506, 513 efficient use of resources, prejudice to 232–233, 242, 262–271, 327, 504, 506–513 implications 276–285 local authority duty 209, 252–253, 262–263 permanent exclusion, child with record of 262, 265, 274–276 prejudice ground for refusal 232–233, 242, 262–271 racial disparity in first preference success 278 right to express 232–233, 259–262 school governing body duty to comply 262–263, 272 SEND children 448–449, 459–460, 503–514 social inequality and 264, 277 parental responsibility advice and information to parents/ carers 33 for child’s education 29–30, 71–73, 82–83, 90–91, 92, 423, 435, 444, 520 for child’s religious upbringing 402–403 generally 230–231, 337–338 home educated children 423, 444 home-school agreements 81, 133 New Labour reforms 132–134 regular attendance, failure to ensure 71, 73–81, 444

Index 541 school attendance orders 73–74 school exclusions 39–40, 82–83 truancy and 71–73, 82–87, 133 parental rights children’s rights, conflicts with 8, 11, 337–339, 403, 519 child’s best interests and 78, 432–433 choice see parental choice collective worship 28, 235, 236, 237, 390, 394, 402, 414–415, 519 curriculum 288, 325–345 ECHR cases 327–334 education in accordance with parents’ wishes 232, 233–241, 325–334, 429, 435–436 generally 8 home education 30, 71, 72–73, 92, 327, 330, 336–338, 339–341, 432–433, 435–436, 439 pluralism and inclusiveness 335–336 preference see parental preference reconciling with wider interests 13–15 religious education 28, 235, 236, 238, 334, 390, 394, 395, 402–408, 519 school exclusions, review 45–47 sex and relationships education 6, 8, 28, 325, 327, 342, 362–365, 369, 380–387, 435–436, 519 parenting contracts 82–83 parenting orders 82–83, 133 Parpworth, N 244 Pathfinders programme 462–463, 475, 476 penalty notices 39, 76, 77, 80, 83–85, 88 Penfold, C et al 460 performance targets planned introduction 111 personal, social, health and economic education (PSHE) 362 Phillips, Trevor 183 physical abuse, tendency to 206–207, 212–213 physical education generally 318, 319 hijab 329 mixed sex swimming lessons 328, 338 Plowden Report 233–234 political activity junior pupils 291–292 political bias prevention in classroom teaching 111, 290, 291–294, 298–299, 304–305, 428 Poole, Elizabeth 518

Poulter, S 16, 17 preference, parental see parental preference pregnancy discrimination on basis 195, 205, 209 Prevent Strategy/Duty Channel programme 354, 355, 360 danger of stereotyping 353–354 generally 345–346, 348, 351–361 training for teachers 353 primary education citizenship education 304 feeder schools 248 National Curriculum 307–308, 318 organisation of educational provision 102 pupil premium children 254 sex and relationships education 4–7, 8, 373, 374 state responsibility 32, 516 private schools see independent schools private sponsorship academies 141, 162–163 city technology colleges 108, 110–111 earned autonomy reform 129 education action zones 120–121 Progress 8 framework SEND pupils 45 public life equal participation 196, 222–223 public partnership approach 119–121 published admission number (PAN) 263, 280 pupil premium admissions criteria 254–255 generally 154, 177, 254 grammar schools 254 pupil referral units (PRUs) alternative provision academies 123 exclusion from 35, 41 gang culture and 38 generally 122–123 success rates 37–38 pupils’ rights see children’s rights R racial discrimination see also discrimination generally 193–194, 195, 200–201, 205, 209–210, 215–219 hairstyles 197–198 parental choice and 264 segregation 209–210, 212, 284–285

542 Index racial disparity in first preference success 278 Raz, J 23–24 Reay, D and Lucey, H 260 reforms see educational reforms refugee children see asylum seeker/ refugee children Regional School Commissioners (RSCs) 164–166 Reiser, R 489 relationships education (RSE) see sex and relationships education religious dress 17, 52, 328–329, 330–332, 343, 344, 389 religious education absence of prescribed attainment targets 392 academies 296, 392, 395–396 agreed syllabus conference (ASC) 395–397, 398 alternative arrangements outside school 402 alternative arrangements within school 404–405 children’s rights 402–404 community cohesion and 404 community schools 395 content 394–402 CTC exemption 110 discrimination 189 education in accordance with parents’ wishes 435–436 emphasis on Christianity 396–397, 400–401, 405–406, 421 faith schools 395, 399, 421 Faith in the System 397 foundation schools 395 as GCSE subject 392–393, 400–401 generally 294, 389–394, 421 inspection arrangements 392 marginalisation 392 model framework 391, 394 moral and ethical education 405, 422 multicultural 23 National Curriculum and 334, 391, 392 non-religious beliefs, coverage 400–402 parental right to opt-out 28, 235, 236, 238, 325, 334, 394, 395, 402–408, 519 preparation for later life 393 proposed changes 397–400 rationale for 393–394, 421 religious denomination and 394–395

right to education and 407 social cohesion and 393–394, 421 standing advisory council on (SACRE) 396, 409 state schools 390–392, 394–395 teacher’s refusal to teach 411 voluntary schools 395 religious freedom/beliefs children’s rights 403 ECHR 51–52, 328, 403 education and, generally 389–390 faith schools see faith schools ICESCR 403 limiting 212 parental choice and 95, 337, 390 parental responsibility 402 Prevent Strategy/Duty 358–359 protection, generally 421 recognising religion or belief 342–344 reconciling rights and wider interests 13–15, 212, 344 religious dress 17, 52, 328–329, 330–332, 343, 389 right to education 51–52 right to religious expression 8, 52 secular curriculum and 335–342 UNCRC 403 religious observance absence for day of 75–78 religious schools see faith schools religious symbols display in schools 192, 292–293, 389 school uniform policy 196–197, 214–215, 329, 343–344 religious/philosophical convictions corporal punishment 329–330, 332–333, 501, 502 creationism see creationism and intelligent design curriculum teaching evolution 204 discrimination on basis of 7, 193, 195, 205, 212, 217–219 financial considerations 500, 513 ICT teaching 326 mixed sex swimming lessons 328, 338 No Outsiders controversy 3, 4–5, 8, 13, 14, 28, 363 right to education in accordance with 29, 51–52, 228–229, 234–238, 261–262, 292–293, 305, 327–334, 389–390, 403–404, 436 SEND children 499–502, 513, 514

Index 543 sex and relationships education 4–7, 327, 362, 379–380 social diversity 2 teachers, religious discrimination against 226 right to education access to education see access to education; equal access to education accordance with religious/philosophical convictions see religious/ philosophical convictions adapting to changing societies 20–21 asylum seeker/refugee children 62–63, 65–71 disadvantaged children 519 ECHR 30, 34, 47–62, 184, 383, 400–401, 430 enforcement of educative duty 29 equal access see equal access to education equality and 7, 183–192, 516 EU Charter of Fundamental Rights 31 EU migrant children 31, 63–65 European Social Charter 8, 30, 62, 184 excluded pupils 34–40, 45–47, 56–57 existing facilities, equal access to 50, 185, 213 Fair Access Protocol 40 full-time provision requirement 35, 37, 39 funding 50–51 gender equality 517 generally 8 higher education 50–51, 60–61 home education and 436 ICESCR 20, 31, 62, 184, 383 independent schools 429 international human rights law 30–31, 61, 183–187, 498, 516 language used for teaching 49–50 linguistic preference 344–345 margin of appreciation 49 meaning of education 49–52 migrant children 31, 52–53, 60–61, 62–71 off-rolling 41–42, 438 parental authority, conflicting with 359 parental responsibility 423 religious education 400–401, 407 religious/cultural preferences, accordance with 29, 51–52, 228–229 residence/citizenship status 60–61, 62–71 SEND pupils 29, 51, 57–60, 498 state as guarantor of 29, 30–31 state responsibility under ECHR 47–62

suitable to age, ability and aptitude of child 29, 33 UNCRC 30–31, 48, 184, 189, 337, 364, 383 voluntary withdrawal 51, 57–60 rights children see children’s rights education see right to education human rights see human rights principles parental see parental rights Rochford Review 324 Rodger LJ 218 role of education integration 15–16 role in society generally 15–16 Roma children attainment gap 323 discrimination against 190–191, 202 educational participation rates 79, 89, 437–438 EU Framework for National Roma Strategies 21, 64 exclusion 42 local authority duty 40, 437–438 special educational needs 457 Roman Catholicism denominational schools 104 parents as primary educators 29 Rose Report 306 Rosenberg, D and Desai, R 219 Russo, CJ 417 S Saleh, L 497 Sandberg, R and Buchanan, A 396 school admissions see admissions applications; admissions policy School Admissions Appeal Code 265, 266, 268 School Admissions Code 159, 243, 245, 246, 247, 249, 250, 254, 257, 260, 261, 275, 277, 281 failure to apply correctly 266, 269 school attendance attendance case management 86 boarding accommodation, local authority failure to arrange 78–79 child’s best interests 68–69, 77, 90–91 day of religious observance, absence for 75–78 ECHR provisions 30, 34 education action zones 121 education supervision orders 80, 86–88

544 Index enforcement see enforcement of participation in education ethnicity and 89 Fast Track attendance management 85–86 Gypsy/Roma/Traveller children 79, 89, 437–438 home-school agreements 81, 133 local authority duty 112 no fixed abode, child of 79 parental responsibility 71–73, 82–86, 92, 133 parenting contracts 82–83 parenting orders 82–83, 133 parent’s itinerant trade/business 79 penalty notices 39, 76, 77, 80, 83–85, 88 pupil responsibility 81–82 regular, failure to ensure 71, 73–74, 77 social disadvantage and 71, 80–81, 88, 90, 520 state responsibility 71–93 statutory excuses for non-attendance 74–81 Taylor Report 75 term-time holidays 75–78, 84 travel, local authority failure to arrange 78–79 Troubled Families programme 71–72, 88 truancy see truancy truancy sweeps 90 school attendance order failure to comply 73–74, 87 proposed changes for EHE children 443 service of notice 73 school councils 467–468, 519 school discipline see also bullying corporal punishment 329, 332–333 ECHR 52 exclusion on grounds of see school exclusion strengthening 129, 148 UNCRC 44 school exclusion admissions criteria and 262, 265, 274–276 appeals 122 attainment targets and 44–45 behavioural conditions, discrimination rules 206–208 challenging 45–47 disciplinary 16, 35, 47, 52, 55, 122, 275 discriminatory 213, 214 duration 56–57

ECHR 47–48, 52–57 ethnicity and 42, 122, 275 fixed-term 42 full-time provision requirement 35–36, 37, 39 home education of excluded children 438, 520 indefinite 41 justification for 56–57 local authority duty 112 migrant children 52–53 New Labour policy 122–123 off-rolling 41–42, 438, 520 parental behaviour 56–57 parental duty 39–40, 82–83 part-time 41 permanent 122, 133, 262, 265, 274–276, 438, 493 power to exclude 40–45 precautionary 55–56 pupil referral units 35, 37–38, 122–123 reintegration arrangements 35, 56 review, right to seek 45–47 right to education 34–40, 56–57 SEND pupils 16, 34, 42, 44–45, 47, 214, 493, 515 suitable alternative provision duty 34–40, 47, 53–57, 112, 122–123 Timpson Review 40 UNCRC 44 UN CRPD 44 unofficial forms 41–42 school governing bodies admissions appeals 265–271 childcare services 131 community role 136–137 curriculum, setting 107–108 devolution of control to 95, 99, 107–111 dismissal of appointed governors 136 diversity 136–139 earned autonomy 128–129, 143, 295–296 failing schools 118, 119 federation arrangements 128 financial management by 107, 108, 134 New Labour policy 116, 127–130 parent councils 132 parent governors 99, 107, 133–140 parental preference duty 262–263 racial discrimination 193–194 recruitment to 136–139 removal of elected governors 136 size 134

Index 545 skills and expertise of membership 134–135 staff appointments and dismissal 112 Trojan Horse affair 136, 168–173, 179, 346, 347, 431, 440 trust schools 132 school identity, fostering 344 school leaving age 100 school meals asylum seeker/refugee children 66–67 free, qualification for 4 school organisation committees 147 School Teachers’ Review Body 111 school uniforms cost, admissions policy and 245 hairstyle requirements 197–198 indirect discrimination 196–198, 214–215 local authority grants towards 112 publication of information on 242 religious dress 17, 52, 328–329, 330–332, 343, 389 religious symbols and uniform policy 196–198, 214–215, 343–344 school identity and 344 social cohesion and 344 schools see also academies; community schools; faith schools; foundation schools; grammar schools; independent schools; pupil referral units; voluntary aided schools; voluntary controlled schools; secondary modern schools; special agreement schools; studio schools; trust schools accessibility plan 222 accountability 116, 136, 148, 163–164, 167–168, 180, 242, 244, 276 admissions see admissions applications; admissions policy attendance case management 86 competition between see competition between providers education ‘at school or otherwise’ 29 financial management 95, 107, 108 governing bodies see school governing bodies institutional autonomy 95, 140–144, 158–159, 171, 173, 179, 180, 277 local authority duty to provide 29 parental choice see parental choice; parental preference

penalty notices, issue 83–85 state responsibility, development 99–103 underperforming 180 Schools Adjudicator 118, 146–147, 159, 247, 255–259 Schools Commissioner 143, 151 Schools National Funding Formula 157–158 Scotland additional support needs 447 education, devolved governance 28, 95–97 exclusion appeals 45 Gaelic language education 97 pupil consultation 9 right to education 47 UNCRC 12 secondary education diversity 110 feeder primary schools 248 organisation of educational provision 102 selection by ability 101, 105, 173 specialist 110, 141, 158, 264, 296 state responsibility 32, 516 secondary modern schools 105 secular education academies 295–297, 298, 315–316 assessment tests 300, 315, 319–321, 326 ‘British values’, requirement to promote 20, 287, 306–307, 345–351, 361, 422, 434 centralised control 288–295, 298–299 children’s rights and interests 337–342 citizenship education 20, 294, 302–307, 317, 319 cross-curricular themes 294, 301 display of religious symbols 192, 292–293 earned autonomy 128–129, 140, 143, 295–296 ECHR cases 327–334 education in accordance with parents’ wishes 325–326 English Baccalaureate 314–315, 392 faith schools 430 foundation subjects 300, 308–309, 317–319 generally 318, 319, 387–388 health education 287, 365, 366, 374 home education 445 inclusivity 321–325, 327, 335 internet safety, teaching 371, 388 language teaching 300, 308–310, 318, 319 linguistic preference 344–345 mental health teaching 287, 365, 388

546 Index minority rights and interests 335–342 moral development of pupils 294, 296, 303, 347–348 multiculturalism and 301, 321, 335–342 National Curriculum see National Curriculum parental choice 95, 325–345 physical education 318, 319 political bias, prevention 111, 290, 291–294, 298–299, 304–305 preparation for later life 296, 326, 332, 335, 337–338, 342, 359, 365, 368 Prevent Strategy/Duty 345–346, 348, 351–361 recognising religion or belief 342–344 religious freedom/beliefs and 335–342, 389–390 sex education see sex and relationships education spiritual development of pupils 294, 296, 348, 392 standard assessment tasks (SATs) 300, 319–320, 326 teacher assessments 320 vocational education and training 310–313 segregation admissions policy and 232, 243–246, 249, 253–255, 257, 281–285 in educational provision 181–183, 208–213 faith schools 173, 183, 210–212, 518 gendered 170, 173, 183, 210–212, 390, 517 meaning 209 ‘parallel societies’, risk 518 parental choice and 232, 277, 281–285 racial 209–210, 212, 232, 264, 284–285 religious 232, 237–238, 518 SEND children 212–213, 491, 499 social 232, 243–246, 249, 253–255, 264, 281–285 Seldon, A 425–426 selection by ability or aptitude admissions criteria 249, 271–273 banding arrangements 249, 272, 273, 285 definition of ability 272 disability discrimination 223 equal access and 181 grammar schools 100, 101, 105–107, 173, 174–175, 178, 248 looked-after children 273 New Labour policy 115

parental choice and 262, 271–273 partial selection 272 sixth forms 273 social inequality and 232 SEN children see special educational needs sex discrimination see also discrimination CEDAW 184, 516–517 curricular access 184, 517 educational provision 102 equal access to education 7, 184, 186, 187, 517 gendered segregation 170, 173, 183, 210–212, 390, 517 generally 195, 205 school promoting gender inequality 347 single sex schools 178, 192, 212 vocational education and training 310 sex and relationships education (SRE) academies 296, 369–370 age appropriate teaching 6, 374, 377–378 aim 363, 365 appropriate sexual behaviour 371, 373–374 background to development 366–371 best interests of child 6, 8, 13 centralised control 111, 289–290, 294 children’s rights 8, 364, 380–387, 519 clause 28 291, 367 contraceptive advice 367–368 ECHR 383–384 equal treatment, state’s duty 8 faith schools 366, 375, 379–380, 517 family life, value of 290, 367, 368, 375 free schools 369–370 generally 287, 387 legal prescription 111 LGBT relationships teaching 4–7, 290–291, 363, 367, 376–378, 517–518 meaning of relationships education 373 moral considerations to be given 290, 362, 366–367, 374–375 National Curriculum 362, 363–364 No Outsiders programme 3, 4–7, 8, 13, 14, 28, 363 parental rights 6, 8, 28, 325, 327, 342, 362–365, 369, 380–387, 435–436, 519 parental support for 381–382 preparation for later life 365, 368 primary schools 4–7, 8, 373, 374 pupil involvement in school policies 387

Index 547 religious background of pupils 4–7, 374, 375, 379–380, 387, 390, 517–518 SEND children 378–379 statutory framework 362, 370–374 Trojan Horse affair 170, 431 sexual abuse, tendency to 206 sexual harassment 203, 214, 377 sexual violence 203, 214, 377 sexuality discrimination on basis of 7, 192, 193, 195, 202, 205 diversity 3, 4–7 LGBT relationships teaching 4–7, 290–291, 363, 367, 376–378, 517–518 No Outsiders programme 3, 4–7, 8, 13, 14, 28, 363 Sherlock, A 404 siblings admissions policy and 243, 248, 250–251, 256–257, 261, 265, 267–268, 270 Simon, B and Chitty, C 113 single sex schools parental choice 235, 240, 261–262 sex discrimination and 178, 192, 212 sink schools 276 Slynn LJ 509 Smithers, A and Robinson, P 454 social cohesion choice and citizenship 229–230 collective worship 404 faith schools 17–21, 27, 28, 182, 282 home education and 424, 436 interculturality and common values 13, 15, 21–27, 288, 517 market competition and 244 minority rights and interests 344 National Curriculum promoting 305–306 Prevent Duty 355 religious education and 393–394, 421 state schools system 30, 344 UNCRC provisions 19–20 social diversity see also diversity adapting to changing societies 20–21 ‘British values’, requirement to promote 20, 287, 306–307, 345–351, 361, 422, 431, 434, 518 challenge presented by 1, 520–521 curriculum and 287–288 disability and 2 faith schools and 17–21, 27 framework for universal citizenship 13

gender identity 2–3 ICESCR 517 immigrant populations 1–2, 3–4, 20–21 income disparity 4 individual integrity and 1 Integrated Communities Strategy Green Paper 27 interculturality and common values 13, 15, 21–27, 288, 517 language 3–4, 20–21 multiculturalism and 14–27, 288, 517 No Outsiders programme 3, 4–7, 8, 13, 14, 28, 363 reconciling rights and wider interests 13–15, 212, 344 religious affiliation 2 sexuality 3, 4–7 UNESCO Convention on … the Diversity of Cultural Expressions 22 UNESCO Universal Declaration on Cultural Diversity 17 social division choice enabling 27, 230, 277, 281–285 equal access to education 181–182, 186 faith schools 17–21, 27, 28, 182 grammar schools 101, 105 independent schools 101 social exclusion admissions policy and 232, 243–246 curriculum and 295 Social Exclusion Unit 115 social inclusion inclusive educational provision 322–323, 449, 467, 497–500, 516, 517 multiculturalism and 15–21, 321–325, 517 New Labour policy 115, 119–121, 126, 130–144 parental rights 335–336 SEN/SEND children 448–449, 489–503 social integration faith schools 518 home education and 27, 28, 336–337, 423–424, 432, 436, 445, 518 independent schools and 27, 427 role of schools 328 special needs children 490 state enforcement of school attendance 91 social mobility grammar schools and 173–174 Soley, Lord 442 special agreement schools 104

548 Index Special Educational Needs and Disability Tribunal (SENDIST) 481 special educational needs (SEN) (and disabilities (SEND)) 44–45, 47, 159, 201 see also disability academies 159–160, 460 advice and information to parents/ children 450, 460, 468–469, 489, 514 allocation of resources 450, 459–461, 500–501 allocation of suitable education 29, 448–449, 451, 452, 489–503 appeals 62–63, 452, 461, 462–463, 476–477, 478–489, 510–511, 519 assessment 450–451, 453–456, 468–472, 479 asylum seeker/refugee children 67, 69 attainment gap 323 attainment targets 44–45 autistic spectrum disorder 206–209, 212–213, 323, 448, 456 auxiliary aids, provision 220–223 capability approach 10–11 care provision 466, 482 classification as SEN/SEND 447–448 co-production, facilitating 467 communication, assistance and support with 498 complaints 472, 474 definition 252, 447, 454–456, 457 development of provision for 102 disadvantaged children 448, 454, 456–457, 515 disagreement resolution services (DRS) 473 discrimination/equality 44–45, 47, 159, 181, 192, 193, 195, 201–202, 205–208, 212–213, 220–225, 226–227, 451, 481, 519 dispute resolution 451, 452, 461, 462, 473–489, 515 domestic legislation 8–9 dyslexia 453–454, 456 ECHR 499, 513–514 efficient education for other children 67, 233, 493–494, 504, 506–507 efficient use of resources 67, 233, 491, 493–494, 499–500, 504, 506–513 EHCP see education, health and care plan equal access to education 13, 44, 184–185, 467, 498

equality of SEND children 13, 515 financial considerations 67, 233, 489, 491, 493–494, 499–501, 504, 506–513 first language not English 325, 344–345, 453, 454 gifted children 454–455 health provision 466, 482, 489 home education 438, 443, 490 hospital schools 490 identification 450 Inclusion Development Programme 492 inclusive educational provision 322–323, 448–449, 489–503, 513, 516, 517 independent schools 493, 506, 510, 512 learning difficulty 452–453, 457 legal aid 488 local authority duties 102, 112, 450, 453, 466–470, 508 local offer 450, 460, 466–467 mainstream schools 489–496, 499, 502, 506–507, 515 mediation 474–478, 488 mental capacity and participation right 465–466, 472 moral considerations 448–449 National Curriculum 298, 321–322, 323, 325 nursery education 506–507 off-rolling 41–42 over-identification 456 parental choice 231–232, 233, 240–241, 449–450, 451–453, 458–489, 491–492, 493, 494, 499–514, 519 parental preference 448, 459–460, 503–514 participation right 13 Pathfinders programme 462–463, 475, 476 percentage of children with 2 personal budgets 472–473 personalised education 287–288, 451, 472 placement in out of authority area 508–509 pupil’s consultation/participation rights 8–13, 62–63, 449, 451–453, 458–489, 494, 498, 505–506, 514–515, 519, 520 reasonable adjustments duty 220–223 religious/philosophical convictions, education in accordance with 499–502, 513, 514 residential schools 503 resourced provision 495 respite care 512–513 reviews of educational provision 471–472 right to education 29, 51, 57–60, 498

Index 549 school councils 467–468 school exclusions 16, 34, 42, 44–45, 47, 214, 493, 515 Scotland 447 segregation of SEND children 212–213, 491, 499 SEN co-ordinator (SENCO) 450 SEN support 450, 456 SEND, use of term 252 SEND Code 450, 460–461, 464, 466, 470, 505 SENDIASS 473 sex and relationships education 378–379 Single Route of Redress National Trial 482 Special Educational Needs and Parental Confidence 459–462, 515 special educational provision (SEP) 457–458, 494, 514 special schools 104–105, 119, 212, 468, 489–490, 491, 493, 495–496, 499, 506 speech problems 454 statement of SEN 491–496, 503–504 T levels 313 TellUs survey 461 terminology 447, 452–453 tertiary education 185, 498 travel to school 200, 466 UNCRC 497 UNCRPD 13, 44, 184–185, 223, 449, 467, 497–500, 515 upper age 507 Wales 99, 447, 463, 467 Special Educational Needs Tribunal (SENT) 479–480 special educational provision (SEP) 457–458, 494, 514 special measures failing schools 119 underperforming LEAs 117 special schools 104–105, 119, 212, 489–490, 491, 493, 495–496, 499, 506 school councils 467–468 specialist schools academies 158, 296 free schools 150–151 generally 110, 141, 264 speech problems 454 Stalford, H 21, 64–65 standard assessment tasks (SATs) 300, 319–320, 326

standing advisory council on religious education (SACRE) 396, 398, 409 state funding see also academies faith schools 104, 399, 421 generally 15, 31–32, 50–51 grant-maintained schools 108–110 historical background 100 Pupil Premium 154 Schools National Funding Formula 157–158 state responsibility access to education 30–93, 516 advice and information to parents/ carers 33 asylum seeker/refugee children 62–71 disciplinary authority of state 92 diversity and choice 32 for education, generally 29, 30–31, 32–33 enforcement of participation in education 71–93 equality duty 193–203, 226–227, 517 European Social Charter 71 further education 32 primary education 32, 102, 516 recently looked-after children 32–33 right to education 47–62, 516 secondary education 32 state school system, generally 99–103, 236 truancy and 71–73, 82–83 UNCRC 71 state schools system see also schools competition within see competition between providers diversification 94–95, 129–130, 228, 264 ensuring social cohesion 30, 344 expenditure on 32 generally 30, 95–96 local authority role 29, 30, 99, 100–102 number of pupils 32, 95 number of schools 32 secular education see secular education state responsibility 99–103, 236 UNCRC provisions 30–31 universality 287–288 Steer Report 493 streaming 272 Struthers, AEC 350 student loans entitlement to 60–61, 186–187 Studio Schools 150

550 Index suitable education age, ability and aptitude of child 29, 33, 233 excluded pupils 34–38, 47, 53–57, 112, 122–123 SEND children 29 Sunier, T 15 supplementary schools 432–433, 435 see also unregistered schools support staff 115 Sure Start scheme 131, 307 Sutherland, M 335 Swain, J et al 448 Swann Report 23 Sweden free schools 151 religious education 189 T T levels 313 Taylor, C 84 Improving Alternative Provision 37 Taylor Report 75 Teacher Training Agency 112 teachers accountability 124 annual appraisals of 125 appointment and dismissal 112 Code of Practice 124 disciplinary powers 148 Disclosure and Barring service 439 education action zones 121 employers 112 free schools 150 freedom of expression 305 gender, ethnic and disability diversity 226 headship qualification 125–126 leadership grade 125 New Labour modernisation 124–126 pay and conditions 111–112, 121, 125, 143–144 religious discrimination against 226 shortages of 33, 111, 126 training and qualification 112, 125, 126 Trojan Horse affair 170–171 trust schools 143–144 undermining of professional autonomy 111, 289 Teaching Agency (TA) 112, 125 technical schools 105 teenage pregnancy prevention 368, 369 TellUs survey 461

terrorism see also extremism, combatting Channel programme 354, 355, 360 CONTEST strategy 351 Prevent Strategy/Duty 345–347, 348, 351–361 tertiary education see higher education Thatcher, Margaret 99, 107, 232, 290, 299, 362 theft, tendency to 206 Tickell, Dame Clare 308 Timmins, N 101, 177 Timpson Review 40 Tomlinson, Sir Mike 310, 311 Tough, S and Brooks, R 285 Training and Development Agency for Schools 112 transgender children see gender identity travel to school cost 186, 508, 509 equality and 200, 201 faith schools 186 local authority duty to arrange transport 78, 112, 200 parental choice, enabling 246 SEND children 200, 466 walking distance, definition 79 Traveller children educational participation rates 79, 89, 437–438 equal access to education 202 local authority duty 40, 437–438 special agreement schools 456 Trojan Horse affair 136, 168–173, 179, 346, 347, 431, 440, 518 Troubled Families programme 71–72, 88 truancy attendance case management 86 boarding accommodation, local authority failure to arrange 78–79 child’s best interests 78, 90–91 criminal prosecutions 73–81, 87 definition of persistent absence 72 education supervision orders 80, 86–88 effectiveness of state’s response 88–92 ethnicity and 89 fast track 85–86 generally 520 Gypsy/Roma/Traveller children 79, 89 increasing rate 88 New Labour policy 115, 310 no fixed abode, child of 79

Index 551 parental responsibility 71–73, 82–86, 133 parenting contracts 82–83 parenting orders 82–83, 133 parent’s itinerant trade/business 79 penalty notices 39, 76, 77, 80, 83–85, 88 pupil responsibility 81–82 school attendance orders 73, 87 sickness as reason 74 social costs 71–72, 90 social disadvantage and 71, 80–81, 88, 90, 519, 520 state responsibility and 71–73 statutory excuses for non-attendance 74–81 term-time holidays 75–78, 84 travel, local authority failure to arrange 78–79 Troubled Families programme 71–72, 88 truancy sweeps 90 unavoidable cause 74 trust schools 128, 132, 142–144 co-operative 144 curriculum 143 parent councils 132 teachers’ pay 143–144 U UN Children’s Fund (UNICEF) Rights Respecting Schools awards 13, 520 UN Committee on Economic, Social and Cultural Rights (CESCR) 194 UN Committee on the Rights of the Child Northern Ireland school system 18, 19 right to inclusion 497 UN Convention on … Discrimination against Women (CEDAW) 184, 516–517 UN Convention on the Rights of the Child (UNCRC) best interests of child 49, 189 collective worship 415 compromises and inconsistencies within 359 consultation/participation, right to 8–13, 241, 260, 449, 462 development of child’s potential 48, 516 evolving capacities of the child 8, 10–11, 385–386, 403 family planning education and services 382 freedom of assembly 291 freedom of association 291 freedom of expression 357–358, 364, 386–387

freedom of thought, conscience and religion 403–404 generally 7, 8, 305, 520 impact assessments/memoranda by 13 language and cultural identity 345, 348–349, 359 preparation for life in free society 170, 332, 424, 445, 516 promotion of social cohesion 19–20 respect for national values 332, 348 respect for others 170, 517 right to education 30–31, 48, 184, 189, 337, 364 right to health 364, 365, 382, 383 right to privacy 357 school discipline 44 Scotland 12 SEND children 497 state responsibility 71 UN Convention on the Rights of Persons with Disabilities (UNCRPD) equal access to education 13, 44, 184–185, 467, 498, 515 generally 7, 223 inclusive educational provision 322–323, 449, 467, 497–500, 516 UN Educational, Scientific and Cultural Organization (UNESCO) Convention against Discrimination in Education 184 Convention on … the Diversity of Cultural Expressions 22 Universal Declaration on Cultural Diversity 17 UN Sustainable Development Goal 4 516 United States charter schools 151–152 creationism 416–419 racial segregation 181–182, 183 religion 389 university admissions difference-blind rules 16–17 independent school pupils 273 positive discrimination 226–227 voluntary withdrawal after offer 51 university education see higher education; university admissions University Technical Schools 150 unregistered schools ‘British values’ 440, 518 combating extremism in 433–434, 439–440, 446, 518

552 Index Disclosure and Barring service 439 faith schools 424, 427–428, 433–434, 446 generally 424, 432–435, 520 inspection 433–435, 440, 446 minority groups 430, 432, 436, 446, 518 number of pupils 435, 446 number of schools 434–435 parental choice and 435 penalty regime 427–428, 440 premises 435, 440 proposed registration reforms 440–442, 446 staff 435, 439, 440 supplementary or complementary schools 432–433, 435 welfare of child 435, 439, 446 V Van de Heyning, CJ 191 victimisation equality and 203, 208–209, 213–214, 295 local authority duty 213 meaning 213 prohibition 203 public authority duty 195 schools’ duty 213 vocational education and training BTECs 312 generally 310–313 GNVQs 312 qualifications 310–313 T levels 313 voluntary aided (VA) schools 104, 116, 129, 153–154, 173, 178, 283 admissions appeals 265 religious education 395 voluntary controlled schools 134 religious education 395

voyeurism, tendency to 206 W Wales additional learning needs 447 education, devolved governance 28, 96, 98–99 exclusion appeals 45 General Teaching Council (GTC) for 124 school councils 467–468, 519 special educational needs 99, 447, 463, 467 Walford, G 145, 146, 390 Walsh, B 477, 478 warning notice issue by local authority 160 Warnock, Baroness 496 Warnock Report 231, 449, 478, 490, 491, 492 Weedon, C 448 Weldon, Matthew 278–279 welfare of child home education 433, 439, 446 Prevent Duty 352, 359–361 unregistered schools 435, 439, 446 West, A and Wolfe, D 167 Whitty, G 132, 298, 300–301 Whitty, G and Wisby, E 468 Wilkins, A 230 Williams, Rowen 420 Wilshaw, Sir Michael 164, 433 Wilson, Harold 101 Wolf Report 312–313, 314 Woods, PA 149, 152 Y Yogyakarta Principles 377 Young, I 22