Trends and Practices in English Education Law

Abstract

In common with many other nations, education in England has been a political trophy since at least the nineteenth century, with all elements of the ideological spectrum keen to snatch it from their rivals, and demonstrate that their camp is best equipped to guard both its present and future.

1 Introduction

In common with many other nations, education in England has been a political trophy since at least the nineteenth century, with all elements of the ideological spectrum keen to snatch it from their rivals, and demonstrate that their camp is best equipped to guard both its present and future. Long before the inception of modern Human Rights Law, and the incorporation of guarantees to education within domestic law,¹ there was widespread consensus that the welfare of society depended on all sections of the populace receiving an adequate and appropriate education (Benchimol 2016).

This concern stemmed historically from two dominant anxieties: (1) that young people should grow equipped to be economically productive members of their community, and (2) that future citizens should receive a moral formation in conformity with prevailing societal norms (Button and Sheetz Nguyen 2013). At first blush these preoccupations might seem quaintly Victorian, and far removed from the debates of the XXI century era, but these twin themes remain at the heart of contemporary clashes over the educational scene. The desire to provide the economy with a deep pool of skilled workers is openly stated (Hurley 2022). In contrast, the battle to capture and mould impressionable hearts and minds is often less overt, but nonetheless easy to discern in controversies over the Prevent Strategy in schools (Busher and Jermone 2020), or acceptable parameters and content for teaching about gender and sexuality (Ferguson 2019).

Overlaying this, there is the pragmatic reality that manifesting an interest in the educational welfare of children and young people is likely to be a promising strategy with the electorate. Few people would contest the validity of this objective, and an image of championing the needs of children is class fodder for campaign managers and strategists: in fact, the stereotype of the baby-kissing politician exists for a reason. The consequence of this, from a legal perspective, is a scarred and bumpy landscape for analysists to navigate, as we are left with a hotchpotch of provisions which attest to generations of reforms, counter-reforms, fashions and fads. Sometimes new ministerial and parliamentary brooms have swept away previous structures, but accidentally left residual traces lurking in forgotten corners of the statute book. On other occasions, new schemes have been deliberately heaped up on top of the old, like a teetering pile of folders on a civil servant’s desk. At no stage has anyone had the will, or frankly capacity, to rationalise the framework into a coherent whole with unifying aims. However, with this extended health warning in place, we shall attempt to provide an overview of the current legal system, before moving on to look at recent developments, and then projected plans, on our way to finally drawing the threads together in a conclusion.

2 Nature of the Legal System

As set out in our introduction, the United Kingdom at state level has treaty obligations in International Law which recognise the right to education. Two particularly important instruments in this regard are the European Convention on Human Rights (“ECHR”)² and the United Nations Convention on the Rights of the Child (“UNCRC”).³ Nonetheless, it should be noted that in the United Kingdom, being a dualist state, the ECHR only becomes legally binding when it is incorporated into the corpus of national law.⁴

Alongside this black letter provisions, it is also critical that a commitment to free universal education for children from kindergarten age until an age of potential economic independence⁵ is a longstanding part of the Constitutional Culture (Garcἰa Oliva and Hall 2020) of modern Britain as a whole, including England. This was a key element of the post-war reconstruction which took place in the 1940s, and despite many points of disagreement, both right and left wing voices acknowledged the importance of equality of opportunity.⁶ Nevertheless, it is also vital to appreciate that while the offer of free, full time education is an integral part of our Constitutional Culture, there is an equally strong expectation that parents must have a choice to decide whether or not they wish to avail themselves of this. The freedom to make alternative, private arrangement for the education of minors is profoundly ingrained.⁷

The sole requirement imposed in respect of children of compulsory school age be in receipt of an “efficient” and “full-time” education,⁸ whist those vested with parental responsibility are at liberty to determine how this should be achieved.⁹ In practical terms, there are essentially three options: (1) Home education; (2) Privately funded education in a school setting; and (3) State funded education. The legal arrangements for each framework are distinct, so we shall address them in turn.

2.1 Home Education

This is an area of English life which is lightly regulated, and beyond the overarching mandate that the education must be “full-time” and also “efficient”, nothing concrete is specified. Clearly, the parameters are drawn in a way which precludes children being denied education in order to work in agriculture, the family business of any other industry. For instance, there are specific regulations which apply in respect of child performance, and these address educational provision, as well as welfare, in a more holistic sense.¹⁰ Other than that, however, the lines are extremely blurred, because there is no set curriculum, list of subjects, knowledges or competences required. Neither are there specifications in respect of the adults imparting the education.

Teaching qualification or form of license are not compulsory, and home educators do not need to demonstrate a bare minimum level of educational attainment. As a result, strikingly, it would be entirely feasible for a parent, or other figure, to teach a child in a home-schooling setting without ever having passed a public examination of any kind. This is obviously concerning from an educational perspective, but it is also problematic as no legal regulation restricts the freedom of individuals to offer themselves as tutors. This huge degree of flexibility is a major potential risk in terms of safeguarding in relation to people seeking to groom, exploit and abuse children, and the fact that such young people may have fewer independent adults to whom disclosures may be made, renders their position even more acutely perilous.

The situation becomes still more disturbing when it is remembered that there is no duty imposed on local authorities or state officials to proactively and/or regularly assess the standard of education being offered to a child, unless they have some reason to be concerned for that individual’s wellbeing. It is true that the Education Act declares that public authorities must identify children who are not registered and not receiving an adequate education, but this provision is vague in nature and gravely weakened by the caveat “in so far as possible.”¹¹ It does not come close to mandating, or even enabling, regular checks to be carried out. Either a lack of economic resources on the part of a struggling public sector, or refusal on the part of families to cooperate may render such checks and intervention “not possible”.

It must be emphasised that several factors lead to a worrying scenario: Parliament has remained ambiguous to impose any obligations on agents of the state to monitor home-schooling situations, no power of entry to a dwelling house is vested on local authority, and there is no right to demand that a child is subjected to an interview or written test. Indeed, the sole purpose of the exercise is to assess the quality of the education which has been arranged.¹² Predictably, this laissez-faire regime has generated considerable divergence of approach between local authorities. Given the acute ongoing economic crisis, and the twin forces of Brexit and a global pandemic, local government bodies in England have been in many cases unable to facilitate basic and fundamental services, e.g. keeping street lighting on during the hours of darkness,¹³ being the reality on the ground that those which have not been made non-negotiable by law are being retrenched in order to conserve meagre funds. The truth is that child services are under acute strain, and the optional monitoring of home-schooling is in jeopardy of removal.

Another layer of complexity, and potential danger for minors, lies in the fact that children who never enter the state school system (as opposed to those who begin attending, but are subsequently withdrawn), are likely to be unknown to the local authority.¹⁴ There is no duty imposed on parents to notify public authorities of their intention to home-school, if this is done from the time that the child reaches the age for compulsory education. This means that some children are in a practical sense invisible to the local educational authority, and it is clearly “not possible” to check on the progress of young people who are not identified. Department of Education guidance goes as far as to encourage parents to inform the local authority, and request the help and support which are on offer in their area, but there is no compulsion. Some (although of course by no means all) parents opt to home-school because of a distrust of state provision and intervention, and those in this category are highly unlikely to make any voluntary disclosures.

In contrast, where children have begun attending school, parents are required to write and give notice of their intention to withdraw a child and home-school, meaning that the possibility of oversight is greater (and if there are any wider welfare concerns, the school may already have flagged this to social services, which do have power to demand to see and check on a child). Nevertheless, even in the best case-scenario, there is no guarantee of any inspection or safeguarding. This has been a significant factor in exacerbating the problem of “illegal schools”, which are not licensed or regulated in any way.

Department of Education guidance makes clear that home schooling families may very properly use external tutors for some purposes (and it would clearly be detrimental to educational outcomes and the aims of the law, for example, to forbid home-schoolers paying for their children to attend an art class). They may also meet with other home-schooling families and share resources, which again is within the spirit of the law in relation to promoting a rounded and effective educational experience.

Notwithstanding, the government guidance explicitly warns in plain language that groups of five or more children being taught communally will be classified as learning within a school setting, and that operating an unregistered school may amount to a criminal offence. The Office for Standards in Education, Children’s Services and Schools (“Ofsted”) has power to enter, inspect and close down such underground schools.¹⁵ Unfortunately, this is of limited use when the lack of monitoring in respect of the individual children attending them means that it is easy for communities minded to behave unlawfully to simply decamp and set up a similar unregulated school elsewhere. This is an endemic issue with some small subsections of the Jewish and Islamic communities in England. Public authorities are hampered in tackling this evil, but there is, undoubtedly, a lack of political will to seriously undermine the immense latitude allowed for parental choices in relation to the education and upbringing of children. In addition, the rest of the educational landscape needs to be seen in light of this ordering of priorities.

2.2 Private Schools

Private or independent schools are educational establishments not in receipt of direct financial support (although they are permitted to benefit indirectly via Charity Law, for example receiving significant tax concessions). Commentators like James, Kenway and Boden observe that this is politically controversial, and are justified in the point, although it must be noted that private schooling has a hugely significant place in English culture and imagination (Malcolm et al. 2022). It is seen as something aspirational, and for instance, the popularity of the Harry Potter franchise is linked to nostalgic ideas of English boarding schools. In some ways, they are the direct descendant of twentieth century children’s novels featuring protagonists from socially disadvantaged backgrounds who break into this privileged world, overcome prejudice and find themselves beloved heroes and heroines (See for instance, the satirical, but fond, treatment of this genre by Neil Gaiman in the Ocean at the End of the Lane) (Gaiman 2013).

The romance and perceived desirability of private schooling has such a deeply rooted place in English culture and imagination, that it is very difficult to imagine it being abolished via means of legal reform. Concerns about their role in perpetuating social inequality are met with the counter argument that they relieve pressure on the strained public sector. Furthermore, it would make little or no sense to permit such broad scope for parental action in respect of home-schooling, and simultaneously restrict families’ ability to opt for fee-paying education.

Private institutions have a lot of freedom in relation to their curriculum, environment and ethos. It should be highlighted that even though many independent schools have a marked religious identity or tradition, state supported schools are also permitted to have a defined and marked faith character. As we shall discuss further, this is not uncontroversial, but is a long established part of the English educational system. The truth is that religious schools in the private sector generally draw less debate; the combined considerations that such institutions are not reliant on public funding, and that parents (whether paying or choosing to take advantage of a bursary scheme) are de facto paying customers. There is nothing oppressive or problematic about delivering a service that clients have requested, on the one hand, and businesses have a vested interest in cultivating, rather than alienating, those to whom they hope to sell their wares.

Of course, it might be questioned whether this model of parent as client and school as a provider is desirable from a child-centred perspective, given the vested interest that the school has in prioritising parental preferences over those of pupils should there be a clash. This is a valid point, but it can be seen as a natural and inevitable consequence of the wider balance between family autonomy and child autonomy (Gilmore and Bainham 2013).

Private schools are free to determine their curriculum, including in relation to religious studies, but must offer education on relationships and sex. Moreover, the environment, buildings and quality of teaching must satisfy minimum standards outlined in law, and this must be monitored by regular mandatory inspections.¹⁶ The regime does permit institutions to determine which of the available inspectorates they wish to engage with, having a choice between Ofsted (which undertakes regular inspection of state funded schools as one part of its remit), the Independent Schools Inspectorate or the Schools Inspection Service (UK Government 2022a, b, c). All of these frameworks of oversight ensure that the standard of teaching is acceptable and that the social, physical and emotional needs of pupils are appropriately cared for. Despite the fact that in some ways the system operates on a quotidian basis by the application of “soft law”, rather than with the constant menace of hard legal sanction, this does not mean it is ineffective. Obviously, Ofsted has the independence and rigor to be expected from a publicly funded entity, while the other two regulatory schemes not only have reporting powers to Government, they also have the influence of peer pressure and reputational capital.¹⁷ It would clearly been damaging for both an inspecting body and all schools associated with it, were it found to have endorsed an institution which was seriously failing its pupils.

As a related issue while it is true that private schools have considerable freedom in which to determine their own curriculum, this cannot be divorced from the realities and demands of life in contemporary Western Europe. A school failing to equip students for tertiary education or the world of work is highly unlikely to pass through the fire of inspection unscathed, and a reasonable spread of subjects must be taught. Equally, there is no explicit legal requirement to deliver a minimum percentage of the teaching content in English, nor even to ensure that pupils taught primarily in another language gain fluency in English. This flexibility exists for good reasons, and it is possible to envisage a wide range of circumstances in which parents might wish a child to learn primarily in a non-English tongue, e.g. families from non-Anglophone jurisdictions, who reside in England for a brief time for work purposes, or a community wanting to set up a Cornish language primary school to follow on from a Cornish nursery framework (Movyans Skolyow Meythrin 2023). Yet the lack of specificity which is characteristic of England’s legal model more generally does not render the borders of discretion infinitely plastic, and it would be very difficult to envisage a private school meeting the standards of any inspecting body if it did not demonstrate that pupils attained an acceptable level of fluency in written and oral English.

Nonetheless, academic rigor is not the only limitation placed upon the de facto operation of private schools. The concern for what Victorians might have termed moral upbringing remains present, as we shall discuss further below, although many of the values being inculcated have evolved. The contemporary law demands that within independent schools, Equality Law, as well as liberal democratic values and human dignity, must be respected (UK Government 2014).

As might be anticipated, there are also conditions about the suitability of teaching staff,¹⁸ even though the specific qualifications demanded of professionals in state-maintained schools are not imposed by law in the private sphere (UK Government 2022a, b, c). The nature of premises and accommodation are also regulated, in order to ensure that the health, safety and wellbeing of students are not placed in jeopardy.

Two things in particular are worth noting before we move on. First, despite the fact that there are far more controls, both legal and practical, in place than we see for education in a home-schooling environment, there is still considerable scope given for both parental and educational freedom. Secondly, the more prescriptive elements of legislation in force relate not to academic considerations, but the aspects of school life geared to forming the inchoate worldviews of children and teenagers. Even in the private sector, there is a recognition that despite the generous deference to parental choice and family autonomy, the wider community has a vested interest in the education of children.

2.3 State Funded Schools

As we have already touched upon, religion is not excluded from the publicly funded educational sector, and some so called “faith schools” are state maintained. Institutions with a defined religious alignment are commonly referred to as faith schools, and even governmental authorities sometimes use this label (UK Government 2023a, b). This is somewhat misleading, because it gives the erroneous impression that other schools have a secular, or least religiously neutral, nature, which is far from accurate. The principal difference between schools with a designated religious character (herein after referred to a “DRC Schools”) and other state schools (which we shall label “Non-DRC Schools”) is, as Vickers correctly observes, whether or not they can take advantage of legislative concessions within the Equality Law framework (Vickers 2011).

The divide between DRC and Non-DRC is distinct from a further division found in contemporary Education Law, namely that of governance arrangements. There are a range of different models operating within the state supported sector (UK Government 2023a, b). To give a brief overview, there are: Maintained Schools (community schools and foundation schools); Free Schools and Academies. Maintained schools are all funded and overseen by the local authority, and in the case of community schools this control is very direct, with the authority employing staff and overseeing pupil admissions. In contrast, foundation schools employ staff and have responsibility for admission.

Furthermore, where academies are concerned, funding and external oversight come directly from the Department for Education, via the Education and Skills Funding Agency. Academies enjoy far greater autonomy than maintained schools, they are not obliged to follow the National Curriculum (although given that pupils sit the same exams as the rest of the state sector, radical divergence at secondary level might be problematic), and they are free to set their own term times. Some schools, often with high rates of academic success, voluntarily choose to opt for academic status, and at the same time, any local authority school judged “inadequate” (effectively failing an inspection) will have no choice but to transition to academy status. Thus, these extremely autonomous state funded schools tended to be either high or low performing.

Academies are run by academy trusts, which are not for profit companies, and might be run as a single school or a cluster. Sometimes academies have “sponsors”, and these can take the form of a range of legal persons: businesses, faith groups, universities, other schools or voluntary groups. Free Schools have essentially the same governance arrangements as academies, but are founded as new initiatives, in contrast to academies which will have converted from a previous incarnation as a different type of school (UK Government 2023a, b).

Even from this whistle-stop tour, it is very clear that England currently has a bewildering array of governance arrangements, and these are potentially significant for the educational experience of pupils who join them. For example, an obligation to follow the national curriculum versus freedom to locally determine the teaching program is not a minor distinction. Yet it is doubtful how far the public at large understands the range of models in place, or the implications for each one. This is problematic, in and of itself, given its negative implications for transparency and freedom of parental choice, but the presence of sponsors in the background of many academy contexts has heightened controversy still further.

The policy of academies has been championed by Conservative, Labour and Coalition Governments, and underpinned by a suspicion of local authority control, associating this model with stagnation claimed by policy-makers to come from a lack of competition or external drive for improvement. Instead, marketisation, or at least quasi-marketisation, was heralded as a magic bullet, but unfortunately, there is mounting evidence that what was touted as a miracle cure may well have been snake oil, at least for many communities. A small number of academies have performed well, and built vibrant educational communities in place of predecessor schools which had let down generations of children. Nonetheless, in sharp contrast, there have been a number of scandals around financial irregularities and disaster, sometimes stemming from misfeasance or incompetence, or on other occasions being the result from ambitious acquisitions of further schools into an academy cluster.¹⁹ If this were not sufficient cause for concern, there is also mounting evidence that not everyone eagerly clamouring to run a school via an academy trust had the necessary expertise and understanding to perform effectively.

Another particularly unsuccessful feature of the academy model, driven by a combination of political policy translated into legal structures, and pragmatic considerations at a grassroots level, is that there is no effective way of de-transitioning, because once a school has jumped, or been plucked from, the local authority’s grasp, there is no going back. Like an amoeba engulfing another cell, a school entering this model will see its reserves and buildings absorbed into the legal entity of the trust, and it cannot, therefore, reverse this legal phagocytosis.

Moreover, even if matters do become dire enough to be untenable, the prospect of seeking refuge with another, more successful academy trust are not always good. A school saddled with poorly maintained buildings and tatty equipment, combined with demoralised staff and alienated pupils, is not an especially attractive prospect to take on. When financial challenges with ongoing implications are added into the equation (e.g. private finance initiative contracts of long duration which have gone sour. These schemes are intended to relieve the taxpayer of finding capital upfront for major projects, but have the draw back of leaving the public purse making payments for decades, sometimes in a context of substandard service provision), it is easy to understand why other trusts would not rush to take on the “opportunity”.

This backdrop of turbulence, complexity, and not infrequently dissatisfaction, in relation to the governance in schools, is a crucial consideration in relation to the discussion on which we are about to embark. We are moving to look at major legal developments, and shall focus, in particular, on the ideological controversies which are being felt in contemporary schools, reflecting fissures in society generally. However, their implications can only be fully understood if the degree of autonomy and instability inherent in the operation of contemporary educational structures is grasped. In other words, many legislative provisions are focused in guaranteeing a balance between the freedom of the quasi-market, on the one hand, and the societal interest in the developing ethics and worldview of young people, on the other, but it must be remembered that the governing bodies of schools will not necessarily, and automatically, reflect the will and desires of the local community, parents or pupils. This is very different from the literal market place of the private sector, and schools may find themselves in the control of academy trusts and sponsors not entirely of their choosing.

3 Major Legal Developments

English society has been rocked in recent years by anxiety over extremism, particularly in the forms of Islamic and Far Right extremism, as well as clashes over sexuality and gender identity. They will be dealt with towards the end of this analysis. These tensions have, in turned, spilled over into legal battles in the educational arena, and in both contexts, there is a struggle to influence the narrative being presented to future citizens. If the narrative is in the control of governing authorities of academy trusts who do not enjoy the support of school communities, then conflicts will inevitably be exacerbated. The language used to describe it may no longer be one of moral formation, but the essential project of moulding the worldview of young people around mainstream societies norms remains unchanged. Nonetheless, in order to fully understand this, we need to pause to consider the explicit ideological orientation of schools, and in particular the legal arrangements in place in respect of their defined religious character.

What makes “faith schools” so different? It must be stressed, once again, that the answer to this question is avowedly not the involvement of religion in collective school life. It is often counter-intuitive to people not familiar with the English paradigm to learn that all state schools are, in some sense, faith schools (Sandberg 2012). As Rivers explains, this a practical consequence of the structures of an established religion (Rivers 2010). It is striking that the Non-DRC schools are required by statute to hold a daily act of worship,²⁰ which is ‘wholly or mainly of a broadly Christian character’,²¹ a feature of the law which undermines any claim that England might have a secular educational framework.

Having said this, it is key to appreciate that the mandatory act of daily worship is interpreted in an expansive and inclusive manner. Most schools have some form of morning gathering which is partly administrative in nature, with reminders about rules about acceptable uses of footballs or the contents of lunchboxes. The “worship” element often takes the form of a short moral or philosophical reflection given by a teacher, and the “broadly Christian” character is frequently reflected in appeals to general principles which most people of good will would endorse, regardless of their spiritual orientation, e.g. showing kindness to other members of the community.

Similarly, non-DRC schools are required to provide religious education, but once again there is a parental right to withdraw pupils.²² Every local authority is bound by legislation to establish a Standing Advisory Council on Religious Education (SACRE),²³ in order to regulate the content of religious education in state funded non-DRC schools.²⁴ Church of England representation is mandatory, but the arrangements specifically allow for the presence from other faith groups and quasi-faith groups (e.g. humanism). Although the non-statutory governmental guidance promoting the incorporation of multiple religious perspectives onto the SACRE technically has the status of “soft law”, and is therefore non-binding, in the vast majority of areas it is accepted and seen as desirable (HM Government 2010). Working with grassroots faith groups to ensure that children gain an nuanced and accurate appreciation of the various beliefs in their surrounding district, as well as the wider world, is generally regarded as a positive project by public authorities.

Therefore, the key characteristic which renders DRC schools special is not their engagement with religion per se, but the manner within which this can happen. They may lawfully implement what would otherwise be unlawful discrimination of religious grounds when it comes to pupil admission, and give places preferentially to pupils from the designated believing community.²⁵ It must be acknowledged that this is not without limitation, as it may only be exercised if the school in question is oversubscribed.²⁶ This detail has critical implications on the ground for families hoping to send their child to such an institution, but at the same time, it is telling in relation to the principles underpinning the policy. The intention of the law as drafted was to allow religious believers to send their children into an education environment in line with their worldview, or at least to facilitate this. Moreover, the purpose of the statutory concession is not to enable schools to develop a monochrome religious and cultural environment, shielding pupils from wider English society, or transmit radically divergent views.

It is also fair to observe that the law enables DRC schools to discriminate with regard to pupil admission, but it does not require them to do so. Some institutions, for example, a considerable number run by the Church of England, have consciously opted to reject this policy, preferring instead to foster their particular ethos in an inclusive manner, whilst welcoming all perspective students on an equal basis (Romain 2013). Nevertheless, it would be disingenuous not to concede that many DRC schools do exercise their option to discriminate, and are able to do so effectively because over subscription is extremely common. One factor in this is, without doubt, that many publicly funded DRC schools have a reputation for academic success, high quality pastoral care and a wide spread of enrichment activities, making them a desirable prospect for both parents and students.²⁷ Given the disarray in some parts of the public sector, flagship schools are highly sought after.

As Johnes and Andrews argue, the reasons behind the impressive performance of these schools are complicated, but it is demonstrable that social factors play a key role (Johnes and Andrews 2017). A high percentage of pupils arrive having enjoyed numerous social, economic and cultural advantages in their upbringing and education beforehand, and therefore, have the dice weighed in their favour from the very outset as far as exam performance is concerned. This tends to create a cycle of self-seeding, whereby socially advantaged parents of younger pupils see data and hear anecdotes about the positive attributes of the school, opt to send their children there, and help to perpetuate its success. It is the equal and opposite effect to the downward cycle into which struggling schools, particularly academies, may fall.

The greatest focus for disquiet about this aspect of the educational framework relates to the exacerbation of social inequality, and the widening of the gap between different sections of English society. It is not primarily targeted at the DRC character of the schools, nor debates about their governance status (indeed, as noted above, it is common for both coveted and failing schools to function as academies). It must, of course, be conceded that Humanist and Secularist organisations campaign against state funded DRC institutions, but this (legitimately in democratic society) reflects their particular social and political agenda, whilst the preponderance of attacks are focused on the implications of sustaining structures of social marginalisation (Humanists UK 2023). Even though there are occasional expressions of frustration from parents about the effort sometimes required to engineer an admission (Penman 2010), and disquiet from faith communities around insincere expressions of belief and belonging, this is not a high profile or continual issue in public debates.²⁸

It is vital to emphasise that religion in the public square is not a hot-button issue, tied to political identities and loyalties in England, in a comparable way to that of many other jurisdictions. Both the left and ring of the political landscape have believing and non-believing elements (Conservative Humanists 2023), and debates around the future of matters such as Church of England establishment are possible without drawing out profound seams of ire and bitterness (Bates 2022). Support for DRC schools has come from Governments of all political colours, in the same way that the academy horse has been backed by both major sides. Furthermore, the nature of the academy governance structure, with the possibility of conferring responsibility for running schools on different types of enterprise, has given a new dimension to education with a faith-based character. The truth is that the problems in finding organisations willing to take on failing academies in dire straits, outlined above, are sometimes solved by religious groups prepared to do this as part of their commitment to social engagement. This reality is potentially problematic for a range of reasons: vulnerable members of society should not have ideological environments imposed upon them as a price for reasonable education, and spiritual motivations for taking on schools in financial trouble can lead to over stretching resources to snapping point.²⁹ Nonetheless, Governments are frequently inclined to overlook such issues when an apparent resolution to intractable challenges, or even an acute crisis, are offered.

As England continues to emerge from the devastation of a pandemic, neither the Government nor the opposition parties are proposing to dismantle the academy system. The Labour Party has indicated that it wishes to tighten up regulation, addressing abuses, increasing oversight and clawing back the freedom over curriculum setting.³⁰ It has also indicated that it will not force schools within local authority control to transition to this governance model, but has made it clear that it will equally not end the academy system or interfere with high performing academies. Consequently, the patchwork quilt of governance structures will probably stay, should these policy statements come in the fullness of time to reach the statute book (which is, of course, by no means a certainty).

In summary, both DRC schools, and a mixed economy of governance, including academies, are relatively fixed and stable parts of the legal and political landscape, but this does not mean that there are not live and ongoing struggles, particularly around worldview and environment, as we have already indicated. These legal conflicts, as might be anticipated, reflect the fault lines in English society more generally, and the prevailing anxieties of the day. Policy considerations on transgender issues are more likely to result in litigation than questions directly arising from a school’s religious ethos.

For example, conservative Christian parents Nigel and Sally Rowe threatened legal action against a Church of England primary school, which had opted to respect Equality Law and the gender identity of a transgender pupil (Dyer 2021). Their initial complaint was that their young son was confused by a classmate changing from a boy to a girl, and they feared that he would be disciplined for expressing this confusion at school. There was no evidence to support that this would have happened, however, and that their son’s understandable curiosity about the world would meet with anything other than age-appropriate responses to questioning. Probably for this reasoning, the claim was not pursued. Nevertheless, they did subsequently successfully bring an action for judicial review, challenging the decision of the Department for Education not to intervene in the local authority’s transgender uniform policy.³¹ It should be noted that requiring a review of a policy does not equate to having demonstrated that it was substantially inappropriate, but this is not a central concern at present, because the key question here was that a conflict over gender and sexuality arose between Christian parents and a Church of England school, reflecting wider social fissures. Clashes over these questions are indeed witnessed within faith groups and political parties, and do not split participants along easily predictable lines.

Nonetheless, this is not to suggest that legal clashes never arise where battle lines are drawn cleanly between secular, civic values and a religious ideology. For instance, in a litigation over children spending time with a transgender parent, courts recognised a factual concern that the minors involved would be subject to discriminatory behaviour in their state funded school DRC school if the relationship continued.³² However, as the Court of Appeal robustly outlined, such behaviour would have been unlawful, and it would have been serious for public authorities, including courts, to tolerate it unchallenged.

The handling of the case can partly be explained by the context in which it arose. It was a dispute between estranged parents over the upbringing of children, and as such as the primary objective of the court was to guarantee the welfare of those children.³³ The judge at first instance deemed that it was necessary to examine the factual backdrop as it was in reality, rather than as it ought to have been, and make decisions on the basis of what was likely to happen to those children in the future. In truth, no outcome of the dispute was going to be good, as the circumstances were tragic for all involved. The parents were from a conservative part of Ultra-Orthodox Judaism, and the biological father of the children was transgender and felt no longer able to hide this and continue living as male. He opted to transition and live as a woman, but this meant leaving his community and effectively cutting all ties. The mother argued that if her children were permitted to keep in contact with their father, they would be socially ostracised as a moral and spiritual risk to their peers and the wider community. The finding at first instance accepting this, and refusing the father’s application to spend time with the children was deeply unsatisfactory, but the decision of the appellate court to simply sweep aside such anxieties was also troubling. The dilemma required the wisdom of Solomon to resolve, and perhaps English judges cannot be castigated too much for failing to meet such an unattainable standard. For the purposes of our current investigation, the core point is that the approach of both courts was inevitably very different to what would have been witnessed in a Public Law clash around education policy or the governance of a school directly. The likely outlook of the school community was merely one factual element in the wider best interests’ decision, being taken in light of what was undoubtedly an agonising situation for all parties.

It is telling that we do not find large numbers of instances of either contemporary or historic cases of battles about alleged indoctrination accusation within DRC schools, and it is true that their raison d’etre is to provide education within a faith-based ethos, finding this reflected in the governance arrangements. This explains why, for example, as far as teacher recruitment is concerned, DRC schools are granted special accommodation in the application of Equality Laws. We should also note that the nature of this latitude depends upon the precise arrangements in place, meaning that we cannot entirely divorce the questions of governance and ideology. For instance, voluntary controlled and foundation schools may take faith into account during the appointment process for a head-teacher,³⁴ and also have the option of allocating up to one fifth of appointments as ‘reserved teachers’. This enables applicants during the recruitment process to be filtered according to their ‘fitness and competence’ to deliver religious education in harmony with the faith-based character of the employing institution.³⁵

Furthermore, the fitness of teaching staff is not measured exclusively on the basis of their knowledge of doctrine. In certain circumstances, staff at DRC schools undermining religious instruction by behaving in way that was incompatible with doctrine could legitimately face disciplinary action, and in the case of head-teachers and reserved teachers, even dismissal, if their actions were grave enough to undermine their ‘fitness and competence’ to perform the role they have been appointed for. Furthermore, DRC which are voluntary aided enjoy even greater discretion: faith related considerations may be taken into consideration when appointing all teaching staff and are a possible ground for disciplinary action and dismissal.³⁶

Therefore, we would not seek to deny that the legal machinery in place to guard the religious ethos of the school is weak or unimportant. Our observation is simply that in practical terms, the shape of the law is not producing clashes with aggrieved parents alarmed that teachers are intending to instil religious values or force elements of practice on pupils against their will. There may be problematic instances and cases, but we have not found evidence that DRC schools, regardless of their governance structure and levels of autonomy, are fostering oppressively religious environments in ways which are boiling over into litigation.

As stated earlier, we have already acknowledged the wider degree of flexibility given to DRC schools in relation to the nature and content of teaching. Religious education falls outside of the national curriculum, and as might be anticipated, DRC institutions deliver a program which aligns to their chosen ethos (UK Government 2023a, b). The freedom that institutions have to determine the structure for the delivery of other subjects varies according to the form of governance arrangements, but all come within the umbrella of state oversight.³⁷

One flashpoint bucking the trend of relative harmony is the topic of evolution and creationism, but even here there have not been a plethora of challenges from concerned families. It has generally been third parties asserting that the State needs to take a more hard-line approach to the presentation of narratives in conflict with mainstream scientific understanding being given space within science lessons, as opposed to religious education (Turner 2016). Having said which, it would be unjust to give the impression that teaching of creationism or intelligent design is widespread in English schools, and that authorities have been supine while this has continue, as, in fairness, the debates have involved a small minority of institutions. This may partly be because the shadow of the state inspectorate means that there are limits upon the nature of the material which can be conveyed, and it is also the case that the overwhelming majority of DRC would have no desire to promote such material, as it is not a mainstream position within the faith groups most commonly represented in defining ethos, e.g. Anglican, Roman Catholic. It is also fair to observe that belief in Darwinism or literal accounts of Scripture are not powerful social talismans in England. They are not indicative of voting choices on other issues, and not the source of high profile and bitter conflicts.

Of far more concern is the spectre of extremism. Safeguards against this are built into the legal framework, and schools seen to be presenting ideas which undermine individual liberty, the rule of law or democratic principles,³⁸ would be far more likely to bring down swift and decisive regulatory action.³⁹

There have been instances where extremist groups have been feared to have infiltrated and misappropriated school authorities, and both the State and the wider society have responded decisively. The high profile “Trojan Horse” scandal is a particularly powerful instance of this, when authorities at a number of Birmingham schools were accused of attempting to introduce a hard-line Islamic ethos into state funded institutions, and (as the label implies) to do so without attracting undue attention and consequently, interference.⁴⁰ The legacy of this affair has been extremely divisive, with some factions claiming that it was no more than an Islamophobic hoax, and others warning of the dangers of so lightly dismissing worries over genuinely alarming developments. The truth, as it often the case, is probably less binary than either of these perspectives imply. There is evidence of some very inappropriate conduct on the part of some figures running these schools, but nothing to suggest an organised conspiracy on the scale implied. For our current purposes, however, the point is that there is vigilance about the worldview being presented in state-funded schools, and legal and political action will be mobilised if this is seen as potentially harming children and young people.

In addition to extremism, to which we have already alluded, the other area in which this will probably arise is gender/sexuality. Both themes are issues which stalk the imagination and fears of English society at present, and as such, these are the questions which generate clashes over the indoctrination of children, far more than creationism or prayer in assembly. By and large, public authorities are trying to hold a middle line, and courts, needless to say, must maintain the norms and neutrality of the legal framework. So, for instance, protests around Birmingham schools, sparked by concerns, stemming in large part from the dissemination of misinformation, about the nature and content of teaching on human relationships and gender, resulted in prohibition on assembly and demonstration within a designated area.⁴¹ Nevertheless, there has been no decisive action from the national Government or Parliament effectively clarifying the parameters of what is both permitted and required within English state funded school on the subject of LGBTQ + inclusion, largely because there is not sufficient consensus within political parties. All sides of the debate are fearful that their opponents will go too far in influencing children and young people, so are vigilant, but no one faction is strong enough to force through its perspective.

It should be stressed that all schools have a specific duty to consult with parents in devising Relationships Education, but the Government has made it clear that there is no right of withdrawal from this aspect of the curriculum (UK Government 2022a, b, c). In theory, this is a field in which the needs of children have been clearly prioritised, by both executive and legislature,⁴² over and above the desire to respect parental control of the material and narratives to which those are exposed.⁴³ Sex education is not offered to pupils until secondary school, and there is an option for parental withdrawal in respect of this aspect of the program, up until three terms before the young person turns sixteen, at which point the pupils themselves may elect to attend these classes, irrespective of parental wishes.

It should be noted that the duty to offer relationships education during primary years, and sex and relationships education at secondary stage, applies to DRC as well as non-DRC institutions, and to the independent sector. As a result, there is no escape from the provisions at an organisational level with the lawful school system. Some (alternative to concerns) have been expressed over school authorities communicating with parents in an attempt to orchestrate a mass opt out of sex education (Woode 2019).

In fairness, there is a broad political consensus that it is important for individual welfare and collective social needs that young people grow up understanding their bodies, the mechanics of human reproduction, the practicalities of sexual health (e.g., ways in which STIs may be transmitted, prevented and treated), as well as the dangers of abusive relationships. However, beyond this, the border of consensus ends, and ideological factions are keen to police what children and teenagers might learn in a school setting. Consequently, we are likely to keep witnessing ongoing conflict in this area for the foreseeable future.

4 Outlook of Future Developments/Emerging Issues in Education Law

As we observed above, the leading opposition party has announced its intention to tighten up governance arrangements for academies, but essentially to continue with the current system of hybrid governance arrangements, should it be successful at the next election (and of course, should it find sufficient parliamentary time and agreement to implement its policy aims. The proposal is very much one of adjusting and improving the current model, as opposed to a legislative slash and burn tactic of removing one set of legal arrangements and replacing them with another. The truth is that both major political groupings are sufficiently invested in the academy project, and if they retreated and changed tactic, they would probably lose face and capital, in some instances literal as well as metaphorical).⁴⁴ Furthermore, at a time of ongoing fiscal strain, there is no readily available web of resources on which to draw in order to establish a new system. Local government, already staggering under economic and administrative burdens, is in no position to easily resume responsibility for schools now in receipt of central finances and independently managed.

Although there are ongoing concerns that government bail outs for academy trusts in financial crisis are costing the public purse dearly, there is an absence of practical options to otherwise address the situation.⁴⁵ Academies, like Private Finance Initiatives, were a means of public authorities deferring expenses until a later date, but did not come with any ready mechanism to extricate the state sector from debt or ongoing burdens should the arrangements become problematic in any way, shape or form. Under these circumstances, bailing out a vessel taking on water is preferable to allowing it to sink when there is no lifeboat on board, and precisely for these reasons, it is difficult to envisage major reform to the basic governance arrangements in place.

Nevertheless, based on the suggestions of the shadow Education Secretary, there may be a renegotiation of the relationship between governance structure and autonomy when it comes to curriculum setting and other academic decisions. Such approach would potentially, at least, allow for a greater degree of uniformity than we currently observe, and would perhaps mitigate some of the pockets of abuse in the present. Whilst the teaching of creationism is not high on the public and media agenda, no mainstream educationalists are advocating it as desirable, and a regime in which schools were required to follow a designated science curriculum, for example, might be an improvement.

In terms of proposals from the Government, it is telling that: (1) Of the two historical elements of concern around education, the economy productivity and the developing worldview of future citizens, the latter is a source of far more urgent public concern, particularly in light of the twin issues of extremism and LBGTQ + issues; (2) The focus of discussion should be, in fact, on the latter.

For that reason, Prime Minister Rishi Sunak’s announcement of plans for every pupil to study mathematics until the age of eighteen has come as surprise (Mitchell 2023). At least one commentator has opined that this proposal is slightly less useful than an initiative to provide a free cactus for every family in the nation. The stated intention behind the plan is to enable the future workforce to develop the skills that they need to maximise their employment opportunities, or productivity more generally. Significantly, more critics have suggested that this is a tactic to distract the political arena from a context of industrial strife, an acute cost of life crisis and a host of other problems to which there is no easy or immediate solution.

This is certainly good reason to fear that this is another example of education being a convenient political vehicle, especially in a tight corner. Sunak has no background as an educationalist, and no robust, objective evidence has been put forward to support the idea that obligatory maths until the age of eighteen would benefit the population as a whole.⁴⁶ Furthermore, worryingly, no bright line distinction appears to have been drawn between numeracy and financial literacy, and the reality is that many academic, but arts/humanities leaning pupils, will have attained the former long before reaching the age of sixteen, having mastered percentages, statistics and basic algebra to a level sufficient not only for their chosen career paths, but also to make informed choices about evidence on risk with regard to healthcare decisions or selecting a mortgage. They will no need more of this fundamental input, and will not gain from studying more mathematics, as opposed to devoting time to a pursuit that may benefit them to a much greater degree, and better match their aptitude, e.g. attaining greater fluency in a language.

Equally, there are other pupils for whom more basic skills are a struggle, but helping them effectively is a task which requires professional knowledge and an evidential approach, not a slick sound bite and a blanket policy. It is far from clear that labelling the input that they need as “mathematics” will do anything other than further demoralise and alienate them. Formulating the detail of educational policy and strategy requires expertise, dialogue and nuance, in ways that do not always fit neatly with political rallying calls.

In justice to the Prime Minister, the proposal has only recently been circulated, and there may be more subtly than first appears, but to date, this development has all of the hallmarks of an amendment to the education law framework rooted in political popularism and whims, rather than rational policy making. As observed at the outset of our discussion, a focus on the interests of children is perceived as a shrewd strategy to garner public sympathy and support.

Another possible motivation on the part of Sunak is to recall the policies of Margaret Thatcher, whose legacy still divides opinion starkly. To a considerable number of right-wing conservatives, she is associated with a golden age, and her own background as a chemistry influenced an ideological prioritisation of science within the educational system (Guise 2014). There may be perhaps an element of a beleaguered politician seeking to associate himself with an era and ideology viewed by many of his supporters with nostalgia.

All things considered, the dimension of Education Law is, perhaps regrettably, strongly tied to politics, and ultimately, what the law requires to be taught in schools is a matter for a politically dominated Parliament.

5 Conclusion

The foregoing discussion demonstrates that some key, overarching themes within Education Law and reform have been reprised many times over the last two hundred years. The vulnerability of this area of the juridical framework to be treated as a political football is all too apparent, and the latest attempts to reform control of the curriculum alone the lines of what appears to be a Prime Ministerial whim, rather than the result of coherent, researched and coordinated policy, are undoubtedly problematic, but they are in no sense unusual if the legal landscape of the past two centuries is surveyed. Enactments detailing what will be taught, how and to whom, have been fashioned more by the tides of political fortune than the work of independent commissions or other more balanced advisors.

We are not suggesting that neutrality is achievable, or even aspirational when it comes to educational frameworks, but an evidence-based approach would be preferable to appeals to emotive rallying calls. Moreover, reasoned and transparent decision-making would at least enable public debate about Education Law to be centred on the benefits and drawbacks of identifiable policies. Any policies put forward are likely to reflect the two core concerns which have been driving the field of education law in England since at least the Victorian era: (1) How to equip future members of adult society to be economically productive; and (2) How to ensure that the worldview of young people is shaped in accordance with the prevailing values of the community of which they will form an active part. These values change radically over time, but it was disingenuous to pretend that any human society is not at pains to transmit its cultural ideas and beliefs. Whether these be the Anglicanism of the XIX century English establishment, or the equality and diversity of the XXI century, the motivation to pass on what are deemed positive modes of thinking and doing, can be discerned.

At the present moment, English society is profoundly divided over core values in two respects: (1) How best to confront extremism; and (2) Questions surrounding gender identity and humanity. These tensions make the challenge of shaping education policy around such values almost insurmountable, as there is a lack of consensus. For this reason, the current executive actors are anxious to push this element of educational strategy into the background, and attempt to focus instead on the economic productivity question. However, addressing this without a well defined and justified strategy will not be really beneficial for anyone involved, and it is unlikely that ignoring the strong feelings and raging conflicts over prevailing worldviews will be a sustainable tactic in the long-term.