Introduction

Since February 2014 the Department for Education (DfE) has been working on replacing the statutory framework within which independent schools – including academies and their variants such as free schools - operate. The existing framework is set by the Education Act 2002. However, a number of concerns, including inspection findings of inadequate safeguarding arrangements at a few fee charging schools and cases of financial impropriety in a small number of such schools and also academies – have caused the DfE to decide to replace this framework with that in the Education and Skills Act 2008. Most of the provisions in the 2008 Act relating to independent schools will be brought into force shortly. In addition, there will be changes to the Independent School Standards, on which a consultation closed on 18 August 2014. Details of the proposed changes to the Standards are accessible here.

The changes include a new standard on leadership and management, tougher standards for safeguarding pupils and for their spiritual, moral, social and cultural development, and putting Ofsted’s monitoring of the work of the independent inspectorates on a statutory basis. The first set of amendments, that to the Standard on spiritual, moral, social and cultural development and requiring the active promotion of fundamental British values, will come into force on 29 September 2014. Details are accessible here.

Tighter controls on school & academy management

The first step in this tightening of the regulatory framework will be implementing stronger powers to bar unsuitable people from managing independent schools and academies. Regulations (The Independent Educational Provision in England (Prohibition on Participation in Management)  Regulations 2014, 2014  No. 1977 http://www.legislation.gov.uk/uksi/2014/1977/regulation/1/made) have been made under section 128 of the 2008 Act setting out the grounds on which a direction can be made barring a person from taking part in the management of an independent school or academy in England, or restricting a person’s ability to do so. The Management Regulations come into force on 1 September 2014. Directions may be given where a person has been convicted of or received a caution for a relevant offence or has engaged in relevant conduct if the Secretary of State considers that they are therefore unsuitable to take part in the management of an independent school. Relevant conduct includes conduct that is aimed at undermining fundamental British values, or is in breach of professional standards, or is so inappropriate that it makes the individual unsuitable to take part in school management. There are procedural protections for the individual concerned to ensure they have their say before a direction is made, for directions to be revoked if circumstances have changed, and for a right of appeal against a direction to the First-tier Tribunal.

These provisions in terms of suitability of managers are similar to the requirements  for  academy and free school governors and academy company members contained in the Summer 2014 academy and free school model funding agreement. Clause 7.12 entitles the Secretary of State to require the academy governors to remove a governor or member whom the Secretary of State has adjudged unsuitable to hold office, or to terminate the funding agreement.  The agreement also defines “fundamental British values” as:

“Respect for the basis on which the law is made and applied in England; respect for democracy and support for participation in the democratic processes; support for equality of opportunity for all; support and respect for the liberties of all within the law; and respect for and tolerance of different faiths and religious and other beliefs.”  This definition is similar to but not identical with that in the Management Regulations and the recent amendments to the Independent School Standards which is: “Democracy, the rule of law, individual liberty, and mutual respect and tolerance for those with different faiths and beliefs.”

Next steps

In the light of recent events in Birmingham and elsewhere it is likely that DfE will be monitoring the issue of suitability of those involved with independent schools and academies more closely in the future.  We will be monitoring the issue of the new Independent School Standards and other measures to implement the new legal framework and will circulate further briefings in due course.