Empowerment and State Education: Rights of Choice and Participation

Publication Date01 Nov 2005
AuthorNeville Harris
Empowerment and State Education: Rights of Choice
and Participation
Neville Harris
Two separate discourses surround the involvement of parents in their children’s education in
schools. One is concerned with what is often referred to as ‘parent power,’ based on the confer-
ment on parents of rights to a degree of choice and participation in respect of their children’s
education, a feature of legislative changes to the governance of state education that started with
the Education Act1980 and which, in part, rests on consumerist and liberal rights based notions.
The other focuses on the home-school partnership ideal in which parents and schools have obli-
gations tosupport each other in realis ingch ildrens potential. Labourand Conservative 2005 gen-
eral election campaigns includedproposals to ‘empower’parents. But social rights such as those in
education, which areimportant to notions of citizenship, tend to be weak.This article concludes
that overthe past 25 years little power has been ceded to parents, individuallyor collectively, and
that, in the case of rights of choice at least, any further empowerment seems unrealistic. More-
over, the principal mechanism of parental involvement, particularly since 1997, has been the
enforcement of parental responsibility,a formof ‘technologyof citizenship’.The extent to which
children hold participationa ndchoice rights is also considered.
The notion ofthe empowerment of citizens as usersof public services, which ¢rst
gained political currency in the UKduri ngthe 1980s and featured recently in both
Labourand Conservative generalelection manifestos,is consistent with both con-
tractarianand solidaristic notionsof citizenship and the relationship between state
and society.The former sees competitive individualism involving the exercise of
choice as themeans to ensuring a responsive, e⁄cientand accountableservice; the
assumption is that even if some individuals gain greater advantage than others at
any point in time, the whole of society will bene¢t in the longer term from
improvements in the standards of the relevant services. The latter reinforces the
idea that activeu niversal participation in the shaping ofservices binds individuals
to them and makes them more responsive to needs as well as promoting social
solidarity and greater equal ity of opportunity. An essential di¡erence between
these two notionsis, therefore, that contractarian citizenshipgives moderately free
rein to individualism, whereas solidaristic citizenship subordinates individual
freedom tothe wider social goals of social cohesion and mutual support.
By the time of the 1997 UK general election the education system in England
andWales had been re-shaped by nearly twodecades of reform into one in which
both elements of this dichotomy were evident.A state educationsystem accessible
School of Law, University of Manchester, UK. I am grateful to the anonymous referees for their
helpful comments.
1 See H. Dean,WelfareRights and SocialPolicy (Harlow:Prentice Hall, 2002) 187^189.
rThe Modern LawReview Limited 2005
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2005) 68(6)MLR 925^957
to all without charge, delivering a statutory national curriculum to all pupils,
mostly(at ages11^18) in non-selective‘comprehensive’schools, reinforced the soli-
daristic traditions of state education. The Labourgovernment nonetheless inher-
ited from the Conservatives a public education system whose framework of
governance, while dominated by central government control (in part through a
reallocation of power from town halls
) over areas such as the school curriculum
and ¢nance across all sectors, embodied market features of competition and
The process had begun with the Education Act (EA) 1980, which had
given parents a right to express a preference for a school, provided for publication
of school information (including examination results) and established a right
of appeal over admission decisions. This went much less further than the idea of
education vouchers that Margaret Thatcher, Keith Joseph and other prominent
Conservatives saw as a means to promoting not only individualism but also
competition to pressurise schools to raise standards.Their introductionwas ¢nally
abandoned in 1983 on the grounds that schools could not be expected to operate
along commercial lines, when (at that time) they had no historyor experience of
¢nancial control and budgeting.
Subsequently, the Education Reform Act 1988
did introduce manyof the keyelements that would have been needed for avou-
cher system, with devolved budgets and ¢nancial control to schools,‘open enrol-
ment’ (schools admitting pupils up to the full extent of their capacity) and
formula funding.
While consumerism in the public services such as education had not been
given free rein, and the shift from a producer-dominated to consumer-led system
as envisaged inthe Citizen’s Charter of John Majors ¢rst administration was by no
means complete by the mid-1990s,
factors such as the annual publication of
school ‘league tables,’the re-issuing of the Parent’s Charter
and the establishment
of a Special Educational Needs Tribunal
nonetheless reinforced the idea that
there was growing substance to the notion of ‘parent power’. Moreover, educa-
tion was seen as one of the key areas in which the principle of active citizenship
through the exercise of civic responsibility might be realised, through parental
involvement in schools (for example, as parent governors,
whose numbers were
2 Including most pupils with special educational needs: see Department for Education and Skills
(DfES), Special EducationalNeeds Code ofPractice (London: DfES, 2001) para1:5.
3 Part of what Loughlin has referredto as ‘asystematic attempt todi splacelocal authorities from the
key role which, throughoutthe twentieth century, they have performed in the provision of edu-
cation’: M. Loughlin, Legality and Locality.The Role of Law in Central-Local Government Relations
(Oxford:Clarendon Press, 1996) 104^105.
4 See N. Harris, Law and Education: Regulation,Consumerismand the Education System(London: Sweet
and Maxwell, 1993); M. Feintuck, Accountability and Choi ce in Schooling (Milton Keynes: Open
University Press,1994).
5 N.Timmins,The FiveGiants ^ A Biography of theWelfare State (London: Harper Collins,1995) 421.
6 Harris,n 4 above.
7 HMGovernment,The Citizen’sCharter Cm 1599(London: HMSO,1991).
8 First issued by the Departmentfor Education (DfE) in 1991, a revised version was published in
199 4: OurChildren’sEducation ^ The UpdatedParent’s Charter(London, DfE, 1994).
9 Underthe Education Act1993.
10 Parent governorship was referred to speci¢cally by John Major in the foreword to the Citizen’s
Charter, n 7 above.
Empowermentand State Education
926 rThe Modern LawReview Limited 2005
progressively increased
) and participation in decisions on the status of a school
(notably ballots on proposals that maintained schools acquire grant-maintained
status, which gave them greater independence by leaving the local authority
(LEA) sectoralthough remaininga state school
).With governing bodies gaining
increased autonomy over ¢nance and personnel management this meant that
there was the potential for the parental voice to exert a more powerful in£uence
overlocal schooling.Through the newopportunities for choice and participation
in decision-making, parents were said to be empowered as ‘consumer-citizens’.
This hybrid concept re£ected the fact that the emergent consumerism in relation
to public services such as education went beyond the basic notion of competitive
individualism and the enjoyment of a degree of market power, but also re£ected
aspects of citizenship concerned with democratic involvement and the exercise of
civic rights and obligations. Potter identi¢es access, choice, information, redress and
representation as the key factors that provide a structural u nderpinning of the notion
of consumerism in relation to public services and as a means to a degree of account-
ability on the part of the provider.
State education can be readily mapped onto this
typology, with reference to, for example: the long-standing pri nciple of free educa-
tion for all; the right of individual parents to a degree of choice in relation to school-
ing; rights of access to information; appeal and complaint rights; and the right of
representation on school governing bodies. A unifyi ng theme is the right of partici-
pation, which in itself is strongly associated with the notion of citizenship and,
according to Heater, is vital in giving proper e¡ect to a moral relationship between
citizen and the state in which‘thedign ityand worth of the individual’ is recognised.
The author has discussed citizenship and education in detail elsewhere,
has noted the importance attached to the rights of citi zenship in facilit ating e¡ec-
tive social and democratic participation and in promoting equality, while taking
accountof the ongoing politicaland academic debate about whether it is equality
of outcome or of opportunity that should be the law’s principal objective in this
Much of the discourse surrounding citizenship has focused on Mar-
shall’s typology of political rights (such as enfranchisement), civil rights (such as
equality before the law and access to the court s) and social rights (rights to welfare,
including social services and education).
Marshall saw social right s of citizenship
11 Elected parent governors (a maximumof two per school) were introduced under the Education
Act1980.Their numbers increased under the Education (No 2) Act1986 and EA1993 (up to 5 in
schools of over60 0 pupils or in all grant-maintained secondary schools).
12 Original lyu nder the Education Reform Act 1988 and subsequently under the EA 1993 (PartII,
Chapter II and Schedule 3).
13 P.Woods,‘Parents as Consumer-Citizens’, conference paper presented at the University of North
London, September 1992,4^5.
14 J. Potter,‘Consumerism and the Public Sector: How Well Does the Coat Fit?’ (1988) 66 Public
Admin149 150.
15 D. Heater,Citizenship.TheCivicIdeal inWorldHistory,Politicsand Education (Manchester: Manchester
University Press,3
ed, 2004),222.
16 See in particular, Harris, above n 4, especially chs 1and 8; Idem, ‘Students, mental health and citi-
zenship’ (2004) 24L egalStudies 349, especially 354^357.
17 See further Dean, n 1 above.
18 Per the typology identi¢ed inT. H. Marshall’s seminal essay ‘Citizenship and Social Class’, pub-
lished by Cambridge University Press in 1950 and reprinted inT. H. Marshall and T. Bottomore,
Citizenship and SocialClass (London: Pluto,1992).
Neville Harris
927rThe Modern LawReview Limited 2005

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