Last week, the Department for Education launched the second stage of its consultation on proposed changes to broaden the scope of the Teaching Regulation Agency’s (TRA) powers.

This contained several notable proposals that teachers, schools and even ex-teachers need to be aware of if they were to come into force - with some legal experts raising concerns with some of the wording put forward in the document.

So what might these new proposals mean for teachers and those working in education?

What does the TRA do?

Before delving in, it’s worth outlining exactly what the TRA is and what it does.

The first is easy - it is an agency of the Department for Education. What it does is the complicated part - broadly speaking, it investigates cases of serious teacher misconduct and decides whether to refer the case to a professional conduct panel for a prohibition order to be issued.

A prohibition order essentially bans teachers from the classroom, and the panel will decide if that lasts a lifetime, or if following a review they can return.

The TRA won’t investigate underperformance or low-level misconduct - this is dealt with internally by the school. Instead, it only looks at cases of serious misconduct such as illegal behaviour.

Clearly, any changes to their remit could have big implications for the sector

What changes are being proposed?

1. Changes to how teachers are regulated after they have left the profession

The first change in the consultation pertains to the TRA having the authority to look at issues of misconduct after a teacher has left the profession. Specifically, on page nine of the consultation, it states:

“We want to broaden the scope of the teacher misconduct regime to enable the TRA to consider all referrals of serious misconduct committed by any individual who has at any time in the past been employed or engaged to undertake teaching work in a relevant setting.”

The rationale behind this change is that it prevents those teachers who commit serious misconduct while they are “on a career break or teaching infrequently, or supply teachers between jobs” from avoiding TRA referrals.

On the surface, this may sound sensible and it’s something that Edapt - a subscription service that provides teachers and school staff with edu-legal support in individual employment disputes and allegations - says has merit. 

A spokesperson from Edapt explained to Tes that they believe this is a sensible move, and that they “welcome any proposal that strengthens safeguards for employment”.

“Widening the scope to consider all referrals of serious misconduct by individuals not currently working in teaching or in between jobs closes a loophole and prevents unsuitable individuals from re-entering the profession,” they say.

However, Victoria Rees, associate of professional discipline and regulatory team from Richardson Nelson LLP, and who regularly deals with teachers facing TRA hearings, is concerned by this.

She says while there is a logic to the proposal in some circumstances - “If a teacher left teaching, did something awful, and then wanted to return, then they would pose a safeguarding risk” - she worries it could impact people with no intention of returning to teaching.

“There is no mechanism for ex-teachers to say ‘I never want to teach again’,” she explains.

“[Because there is no registration] teachers never officially ‘leave’ and because of this, from the moment you qualify, you can always return to teaching.”

As such, broadening the guidance to cover anything a teacher has done outside the classroom after they have left teaching could see many ex-teachers facing costly, stressful and unnecessary TRA hearings - even if they never want to return to the classroom.

Although the proposal does say the guidance will take into consideration “the length of time a person has been away from the profession…and the likelihood of them trying to return to the classroom”, Rees still holds reservations about extending these powers.

“[The phrasing] is very broad and non-committal,” she says. “People who have chosen to leave the profession shouldn’t have their behaviour regulated by the TRA.”

2. Regulating a wider range of settings

The second proposal, on page 12 of the consultation, wants the TRA to have the scope to consider a wider range of settings, specifically further education colleges, providers of post-16 education and providers of online education.

If approved, this proposal will mean that teachers in these settings who commit serious misconduct can be referred to the TRA and be issued with a prohibition order.

This is a change Rees says is sensible and address a major oversight in current TRA guidance.

“[In the current form there is a] loophole where not only can teachers in these settings not be referred, but if you are prohibited [by the TRA as a teacher], you can still go and teach in those areas,” she explains. “So it is sensible to make the change.”

However, although Rees welcomes this update, she hopes the wording is updated after the consultation to ensure anyone in a further education setting is not caught up in these rules unnecessarily.

“It shouldn’t apply to those who are teaching adults in those settings, as these rules are there to protect children,” she says.

3. Referrals to the TRA can be made by Department for Education officials

Perhaps the most notable change proposed is the third and final one. This relates to wanting to broaden the scope of the officials who can refer a teacher who they believe has committed misconduct to the TRA.

Currently, the provisions do not permit anyone who acts on behalf of the secretary of state (ie, a DfE official in any DfE group, agency or arm’s-length body) to make a referral to him on the basis of information obtained through their role acting on behalf of the secretary of state as it would be seen as a self-referral. However, the government wants to change this: 

“We want to enable the secretary of state to consider referrals of serious misconduct regardless of how the matter comes to his attention.”

The DfE gives the following example of when this may be a useful change.

“For example, DfE officials in ESFA (the Education and Skills Funding Agency) may uncover fraud during an academy audit, or STA (the Standards and Testing Agency) may uncover serious exam malpractice during an investigation.”

These examples may sound reasonable and again close a loophole in the system. But it is the wording that follows on that has raised concerns from some in the profession, where it states:

“Our proposal here is to allow DfE officials to refer a case to the TRA where, in the course of their normal duties, they are presented with a matter where the teacher involved may be guilty of unacceptable professional conduct or conduct that may bring the teaching profession into disrepute, or has been convicted (at any time) of a relevant offence.”

Andrew Faux - who has previously worked as an in-house prosecutor for the General Teaching Council for England and now works for Lawyers for Teachers, which provides legal assistance for teaching unions and individual teachers - says this makes sense.

“It has always seemed odd that the TRA has to wait for a complaint from an employer or member of the public before they can act against a teacher,” he says. “In my view, they should be able to start a regulatory investigation as soon as they become aware of serious wrongdoing by a teacher.”

However, for headteacher and chair of the Headteacher’s Roundtable, Caroline Derbyshire, the use of the phrase ”conduct that may bring the teaching profession into disrepute” raises concerns about how that may be interpreted.

“Is there any danger that ‘misconduct’ is confused with ‘policy challenge’?” she asks. 

“It is not long since heads marched to Downing Street to demand better funding for schools,” she says. “Some in the DfE might have viewed this as disreputable. I see it as using informed influence and a citizen’s democratic right.”

Derbyshire suggests that the power given to the TRA could be tempered by restricting it to referrals for certain types of serious misconduct, such as financial.

Edapt shares this concern that the referrals might be seen as “arbitrary” due to the “inherent proximity between the DfE and the TRA”.

“The change would need to be managed carefully to ensure that conflicts of interest do not arise,” they say. “The DfE would need to give careful consideration to implementing internal measures to promote independence.”

It is worth noting in the consultation there does appear to be recognition of this issue, as it says that in order to “maintain the independence of the TRA in the operation of the teacher misconduct regime”, only referrals found during the course of normal DfE work would be considered: “DfE officials will not be permitted to pro-actively seek out referrals.”

Rees is slightly sceptical about this claim, though. “Although they say they’re not proactively seeking referrals and suggest it would not be a ‘fishing expedition’, the concern is this is what will end up happening and it could leave teachers more vulnerable,” she says.

What’s more, Rees says it also raises concerns that if the TRA were to start investigating an issue such as exam malpractice through a self-referral, rather than being referred, it could mean teachers face multiple investigations at once.

“The stress and anxiety teachers face when under investigation is astronomical - and this would add an extra concern of being under investigation not just internally, not just by JCQ, but also the TRA,” she says. “It’s like someone is coming at them from every angle.”

As such, she questions the rationale for this proposal. “There are already other mechanisms in place to deal with this misconduct,” she says. “Using the example provided of fraud and exam malpractice - with both of those examples there are already procedures in place to deal with this.”

Waiting for results

There is a lot being proposed that teachers and schools need to be aware of - and many are concerned by what could be brought into force.

For Edapt, it’s clear that the consultation “leads to the question of whether this is the right overall approach and whether a wider review of the TRA and its funding and independence from the DfE is needed”.

The consultation is open until 14 March and can be accessed here.