The question of who, other than government, can tell schools what to do - ie, which organisations sit in the “middle tier” between ministers and schools - is the cause of constant debate. I agree with Julie McCulloch in her recent blog, in which she refers to the middle tier as “messy”. I also think it generates a messy, noisy debate. 

Part of the problem is that the arguments tend to involve a lot of legacy thinking. It is the case that local authorities once provided a “middle tier” between national government and schools. But this concept of a middle tier has been eroding for at least two decades, if not longer. 

When I worked in local government as a director of education, I tried to map the middle-tier functions as they were then described in law. This exercise was interesting - the functions we ascribe to the middle tier are often not those encoded in law. For example, it is often assumed that local authorities have a statutory role to provide school improvement. In fact, the statutory duty is only to identify maintained schools causing concern and use powers of intervention accordingly.

It’s helpful, then, to reframe the debate by abandoning the term middle tier and, in its stead, take a closer look at system governance. That is what we are aiming to do on the regulation and commissioning review.

System governance refers to the structures, mechanisms and processes by which the organisations responsible for delivery of education are held to account. As the government develops the approach to commissioning and regulation, it is fundamentally important that we ask the question “how does it all cohere?” 

In the light of continued uncertainty about the Schools Bill, we should also ask whether the legislative basis for the school system is sufficient.

We have a once-in-a-generation opportunity to build system coherence and create a school system that can potentially become the best in the world at getting better. If the new system governance arrangements mean any children fall through the gaps, these will be gaps we have created. We must be sure that this is a system that works for all children. 

What follows are the key questions we need to ask and answer to ensure we have the right system in place.

1. How do we define the regulatory approach - and do we need a regulatory strategy? 

The principle of the trust movement - that of strong and independent state schools unfettered from micromanagement, misplaced compliance and unnecessary interference - is fundamentally important to protect as we develop the commissioning and regulatory approach. It is this principle of independence that has driven innovation and excellence into the sector. 

The White Paper makes two significant proposals in relation to regulation:
•    The creation of statutory trust standards and new intervention powers that will underpin the standards.
•    A definition of trust strength.
 
As we approach regulation and commissioning, 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.

At this time, there is no single commissioning or regulatory strategy or framework. The Academy Trust Handbook (formerly the Academies Financial Handbook) conflates regulation with guidance. It is still unclear what role (if any) the Academy Trust Handbook would have alongside the proposed statutory trust standards and definition of trust strength.

I propose that there is a need for a commissioning and regulatory strategy accompanied by strong frameworks - these would help us to develop a strong commissioning and regulatory approach.

2. What are the ‘goods’ of education we want to promote? 

Drawing on the work of Malcolm Sparrow, regulation can be viewed as:
•    The prevention of harms - or indeed the correction of harms.
•    The promotion of “goods” - or perhaps differently worded, the benefits of education.
 
It is clear from the White Paper that the statutory trust standards and intervention powers are intended to address the first of these, the prevention or correction of harms. But what are the goods of education we want to promote? And will the definition of trust strength be a strong basis for this?

The White Paper proposed to develop a collaborative standard to ensure that trusts work constructively with each other, their local authorities, and the wider public and third sector. The Confederation of School Trusts has long made the case for trusts as a new form of civic structure with wider civic responsibility. We believe there is a moral case for the civic work of trusts but does it need to be underpinned by a statutory standard? And should a collaborative standard, if it exists, apply equally to all system actors?

3. Is there a distinction between regulation and commissioning? 

For some, the promotion of goods is a strategic commissioning function (as opposed to a regulatory function), which would grow strong providers based on good performance. We might think about strategic commissioning as stewardship of the system - an approach to the complex challenges associated with managing public service markets. Stewardship involves ensuring that there is sufficient but not superfluous high-quality provision, ensuring the system grows by design and developing strong trusts.

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 to 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 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. How do we 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 on the public purse.

As I said above, 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. What is the role of inspection in a new regulatory approach? 

The White Paper commits to considering the “evolving role of inspectorates” in a fully trust-led system. Ofsted (the inspectorate) is not a regulator of schools but inspection is a useful regulatory tool. 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. There are a number of ways in which this could be considered:

The regulator could commission the inspectorate to undertake an inspection of a trust where the regulator has concerns.
Trusts could be inspected on a rolling programme - as schools are now - and the regulator could take inspection outcomes into consideration in regulatory activity.

Adverse inspection outcomes could trigger statutory intervention in trusts.

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.

In part two of this article (next week), I’ll consider the potential role of local authorities within a coherent approach to system governance, and the thorny question of where school improvement sits. 

Leora Cruddas is chief executive of the Confederation of School Trusts