The Department for Education deserves some credit. Last week, the minister for the school system, Baroness Barran, made it clear that the government had listened to the sector when she announced it is removing clauses 1-4 and schedule 1 from the Schools Bill (those relating to secretary of state powers and academy standards). She also revealed the government’s intention to support amendments to clauses 5-18 and schedule 2 of the bill.
These are the elements of the Schools Bill that have drawn cross-party criticism and much concern from the education sector. They relate to the level of control a minister would have over the day-to-day running of a multi-academy trust and its schools, and the standards to which trusts are held accountable.
The government has confirmed that it will use the regulatory and commissioning review to engage the sector and help form future policy decisions in this area. The review’s final recommendations will be set out in a full report in December 2022.
The job of the commission will not be an easy one. Its task can be split into five key issues that need to be addressed.
1. Preserve the principle of independence, which is the strength of the trust movement
It is essential that we protect what is most important about the system of independent state schools: trust leaders must be able to determine how resources are allocated and how operations are structured, and be held accountable for running a strong organisation that delivers high-quality education for public benefit. The proposed statutory standards and definition of trust strength should not detract from this.
2. Promote the ‘goods’ of education through strategic commissioning
We should think about strategic commissioning as stewardship of the system, which is an approach to the complex challenges associated with managing public service markets. Stewardship involves ensuring there is sufficient, but not superfluous, high-quality provision, making sure the system grows by design and through developing strong trusts.
3. Prevent or correct harms through risk-based regulation
If we are to protect the legal independence of trusts, and avoid micromanagement and compliance-based regulation, we need an approach to regulation that is risk-based. This would ensure that regulation is exercised only where there is greatest risk to children’s education or safety - in other words, to prevent harms or correct harms.
We need to reach agreement on whether we think the regulator undertakes the functions of stewardship and strategic commissioning. And does it matter that the White Paper proposes that these functions will be performed by the same people - the new regional directors? Is it a problem that the regional delivery function will be undertaken alongside commissioning and regulation? And is it good practice to involve the regulated sector in regulatory decisions in the form of advisory boards - or does this practice involve too much risk associated with actual and perceived conflicts of interest?
4. Limit the burdens of regulation
Good regulation is constantly aware of balancing the burdens of regulation (on the regulated sector) with the good that regulation is likely to do. This is particularly important in the public sector, where the cost of regulation (borne by those who are regulated) is from public funds. Ultimately, public resource is used to meet regulatory activity and, therefore, regulators must be able to demonstrate the benefit of regulation to the public purse.
The literature on regulation points to risk-based regulation. In other words, the regulator should focus on trusts where there is a higher element of risk and loosen the compliance requirements on the overwhelming majority of trusts that present no risk indicators.
5. Define the role of inspection in the new regulatory approach
The White Paper commits to considering the “evolving role of inspectorates” in a fully trust-led system. If there is a move towards inspecting trusts (as distinct from school inspection), then we must be clear about the role of those inspections within the regulatory approach.
The development of a regulatory strategy that sets out the approach to regulation - and the role of inspection in regulation - may help us to be clearer on this important issue.
We must now ensure that revisions to the legislation are necessary and proportionate. We must also ensure that the approach to strategic commissioning and risk-based regulation protects the independence of school trusts and promotes high-quality education as a public good as we move forward to build a strong and sustainable education system in England.
Leora Cruddas CBE is chief executive of the Confederation of School Trusts
