Local Authorities and the Accountability Gap in a Fragmenting Schools System

Published date01 July 2012
Date01 July 2012
AuthorNeville Harris
Local Authorities and the Accountability Gap in
a Fragmenting Schools System
Neville Harris*
Reforms to the English education system under the UK’s coalition government are building on
the so-called ‘schools revolution’ that previous Labour governments began through legislation
increasing both schools’ autonomy from local authorities and the system’s diversity. Growing
numbers of state-funded schools have converted to academies outside local authority control,
particularly since the Academies Act 2010, while opportunities have emerged for‘free schools’ to
be established by various interest groups.The r ight to establish a school has normative human
rights underpinnings, yet the government’s policy as a whole is particularly controversial due to
the increased risk of social division, instability of local schooling arrangements and signif‌icantly
reduced local democratic accountability for state funded education.This article questions whether,
against a background of three decades of centralising educational reform and a concomitant
decline in the role of local (education) authorities, the local public interest in education is being
adequately safeguarded.
We increasingly took roads, hospitals, social care and public utilities away from
localised administrations.Today we’re taking education away from local government
too – hooray for that.1
Take away the democratic elements of school planning and you are left with, on the
one hand, a kind of widespread anarchy, where anyone with special determination,
good contacts and inf‌luence, or a particular plan, can push ahead, and, on the other,
a series of mini-f‌iefdoms, controlled by powerful interests,who are permitted to r un
schools as they see f‌it...The loss of local authority involvement is literally
These two sets of comments represent the polar positions in the current debate
about control of the schools system.The f‌irst, by a Times columnist who is also
a former Conservative MP, is illustrative of a deep and longstanding mistrust of
local government among many on the political right.The second, by a journalist,
author and prominent campaigner for state education, ref‌lects a strongly felt
concern about the decline in local democratic control of and accountability for
schools. Local authorities have been affected both by huge shifts in power over
the years, alluded to in the above viewpoints, and by the institution of wide-
ranging reforms. Although the Labour government’s period of off‌ice may have
*School of Law, University of Manchester.The author wishes to express his g ratitude for the very
helpful comments and suggestions by the anonymous referees.
1 M. Parris, ‘Put local councils in the dustbin of history’ 16 June 2011 TheTimes 31.
2 M. Benn, School Wars:The Battle for Britain’s Education (London:Verso,2011) 112 and 176.
© 2012The Author.The Modern Law Review © 2012 The Modern Law ReviewLimited. (2012) 75(4) MLR 511–546
Published by BlackwellPublishing, 9600 Garsington Road, Oxford OX42DQ, UK and 350 Main Street, Malden,MA 02148, USA
brought ‘two decades of central-local government conf‌lict . . . to an end’,3there
is a signif‌icant residual and ongoing tension over the governance of the state
schools system in England. A recent illustration was the legal battle between six
local authorities and the Secretary of State for Education over the present
government’s cutbacks to the Building Schools for the Future programme
installed by its predecessor; Holman J held that it was unlawful as an abuse of
power for the government to have abruptly terminated individual building
projects without effective consultation.4
Central-local tension was in fact described recently as a ‘persistent theme’
running through each of three enquiries conducted by the Education Select
Committee into key aspects of education post 2007:the national cur riculum and
assessment; school accountability;and the training of teachers.5At the heart of the
tensions in central-local relations in this f‌ield has been three decades of increasing
centralisation. Ministers have acquired numerous additional statutory powers over
the schools system, many of which have undermined the role of local authorities
as a governance agency. One of the most recent enables the government to
instigate the conversion of an under-performing local authority maintained
school into an ‘academy’ lying outside the local authority sector.6The f‌irst use of
this power is currently in prospect in respect of a school in Haringey, London,
which, backed by local councillors and the local MP, is trying to resist the
imposition of academy status on it.7The Secretary of State,in a speech in January
2012, stated somewhat provocatively, and presumably with unintended irony, that
some local authorities were‘being obstr uctive’to academy status for their schools,
‘putting the ideology of central control ahead of the interests of children’.8
The changes in the f‌ield of education are in fact ref‌lective of a more general
shift in central-local relations over recent decades,9underscored by a desire to
‘reduce the political capacity of local government as a tier of gover nment’.10
Education has been affected by the ‘three P’s’ at the heart of transformations in
the governance of public services:11 privatisation, which, in relation to education,
3 I. Leigh,‘The New Local Government’ in J. Jowell and D. Oliver (eds), The Changing Constitution
(Oxford: OUP, 6th ed, 2007) 293, 311.
4R (Luton Borough Council and Nottingham City Council; Waltham Forest London Borough Council;
Newham London Borough Council; Kent County Council;Sandwell Metropolitan Borough Council) vThe
Secretary of State [2011] EWHC 217 (Admin). Holman J nevertheless held that the decision to cut
funding was not irrational, nor had substantive legitimate expectations had been denied. On the
programme itself, see NationalAudit Off‌ice, The Building Schools for the Future Programme:Renewing
the secondary school estate Session 2008–09, HC 135 (2009).
5 House of Commons Children, Schools and Families Committee, Ninth Report of Session
2009–10, From Baker to Balls: the foundations of the education system Report HC 422 (2010) para 4.
6 Academies Act 2010, s 4(1)(b).
7 G. Hurst,‘Gove ready to tackle “enemies of reform” and force poor schools to be academies’ 5
January 2012 The Times 11.
8 M. Gove, Speech on Academies at Haberdasher’s Aske’s Hatcham College, London 4 January
2012 at www.education.gove.uk/a00201425/michael-gove-speech-on-academies (last visited 10
January 2012).
9 D. Oliver, Constitutional Reform in the UK (Oxford: OUP, 2003) 312.
10 M. Loughlin, ‘Central-local government relations’ in J. Jowell and D. Oliver, The Changing
Constitution (Oxford: OUP, 4th ed, 2000) 137, 147.
11 M. Geddes,‘Neoliberalism and local governance: global contrasts and researchpr iorities’(2011) 39
Policy and Politics 439.
Local Authorities,Accountability and Schools
© 2012 TheAuthor.The Moder n Law Review© 2012 The Modern Law Review Limited.
512 (2012) 75(4) MLR 511–546
is not merely linked to structural changes within the schools system but also to
the increasing use of private sector management and expertise in the system;12
partnerships, in which local government has been expected to forge commercial
and other relationships with outside agencies in the delivery of educational and
allied ser vices; and participation, through individual and community involvement
in governance.At the same time, local service provision has become the subject
of a broad governmental policy theme of opening up services to increased
competition between autonomous providers with ‘freedom to innovate’ in order
to ‘improve the choices available to service users, as well as delivering better value
for money for the taxpayer’.13 Entrepreneurship has become a ‘pervasive theme’
in public sector change14 and, as discussed later, lies at the heart of the academies
programme, although it has a connotation that goes beyond private sponsorship
to include modes of governance of schools.15
The law’s establishment of greatly extended opportunities for schools to
operate independently of local authorities and for new types of semi-
autonomous schools to be opened, especially since the coalition government
took off‌ice in May 2010,threatens to have a further transformative effect on local
government’s role in education;and it is likely to remain a dominant issue in the
years ahead. The Academies Act 2010 (the 2010 Act) is already facilitating the
considerable expansion of the academies programme which Ball has described as
contributing signif‌icantly to ‘the break-up of the state education system’.16
England’s 22,000 publicly-funded schools include just over 3,000 secondary
schools more than one-third of which have academy status, and thus lie outside
the local authority sector altogether, and this proportion is set to increase further.
It has been widely reported that the entire contingent of schools in one local
authority (Lincolnshire), comprising some 360 in total, has been advised by the
county council to become academies and, while this has not as yet happened,
over f‌ifty per cent of the authority’s secondary schools now have academy
status.17 Additionally, the government’s controversial ‘free schools’ programme,
12 See S. J. Ball,‘Pr ivatising education, privatising education policy, privatising education research:
network governance and the“competition state”’ (2009) 24 Journal of Education Policy 83; and R.
Hatcher,‘Privatization and sponsorship: the re-agenting of the school system in England’(2006) 21
Journal of Education Policy 599. There is,additionally,the Pr ivate Finance Initiative (PFI),for which
a £2bn programme was announced last year,designed to support new school buildings: R. Muir,
‘Michael Gove’s school funding proposals scrutinised’20 July 2011 The Guardian online at http://
www.guardian.co.uk/commentisfree/2011/jul/20/michael-gove-school-funding-proposals (last
visited 19 August 2011). The PFI has been used particularly for projects requiring a signif‌icant
outlay or capital and ongoing service provision,as for example in the case of hospitals, schools and
roads: National Audit Off‌ice, Lessons from PFI and other projects Session 2010–2012 HC 920
(London:The Stationery Off‌ice, 2011) para 1.1.
13 HM Government, Open Public Services White Paper Cm 8145 (London:The Stationery Off‌ice,
2011) para 6.3.
14 P.A. Woods,Transforming Education Policy: Shaping a democratic future (Bristol: Policy Press, 2011) 44.
15 See below.
16 S. J. Ball, The Education Debate (Bristol: Policy Press, 2008) 187.
17 W. Mansell,‘What you might call a local authority “opt out” ’ 2 August 2011 The Guardian 31.
Channel 4 News, ‘The “education revolution” sweeping Lincolnshire’ 24 November 2011 at
http://www.channel4.com/news/the-education-revolution-sweeping-lincolnshire (last visited 13
January 2012).
Neville Harris
© 2012 TheAuthor.The Moder n Law Review© 2012 The Modern Law Review Limited. 513
(2012) 75(4) MLR 511–546

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