On the last day of this month, the General Teaching Council for England will breathe its last - abolished in a deregulatory swipe of the hand by the Westminster education secretary, Michael Gove.

A day later, on 1 April, the General Teaching Council for Scotland will gain independent status - no longer an arm of the Scottish government, but armed with greater powers to regulate the teaching profession. This will include a new duty of “re-accreditation” or “professional update” and refreshed disciplinary procedures over conduct and competence.

The contrast could not be more stark. But while the GTCE’s demise can be seen as illustrative of the general direction of travel in the English education system, its replacement with a lighter-touch, decentralised regime of regulation could have significant knock-on effects on Scotland.

The most worrying issue for Scotland is that from next month, it will be easier not only for incompetent teachers from England to cross the border in search of work but also for those whose misconduct falls short of the threshold that would see them placed on a “barred” list to seek work here - or in other parts of England, for that matter.

In a nutshell, the English legislation abolishing the GTCE means there will no longer be a national regulation system for teachers’ competence. And headteachers in the south will no longer have a statutory duty to refer cases of professional misconduct. Instead of the GTCE maintaining a comprehensive register of teachers - including details ranging from suspension orders, conditional registrations, reprimands and other findings - there will simply be the retained register of prohibited people.

Anthony Finn, GTCS chief executive, is quick to stress that his organisation’s concerns are over “a very, very small number of teachers”.

Nevertheless, he insists: “It is an issue and if one teacher is allowed to come and teach in a classroom because of the risk that he or she might present to pupils, it’s one teacher too many.”

Until now, information about any teachers subject to a disciplinary process with the regulatory body in either Scotland or England has been shared with the other.

“We send our information to England; England sends us information about the steps that they have taken. In future, it is less certain that we will know what has happened,” says Mr Finn.

“In the cases where someone is prohibited from teaching in England, we believe that we will get information from the department (of education) in Whitehall. But there will be significantly fewer hearings and significantly fewer cases, because the range of expectation for referral will be smaller than is currently the case,” he adds.

Cases of misconduct can be referred to the new Teaching Agency, which will be part of the Department for Education. But although the police will refer criminal convictions to it directly, any other referrals will be discretionary.

It is anticipated that guidelines will be produced specifying the criteria for referral, but referral will not be a requirement.

“The big concern we would have is that if there is no requirement on an employer or head to make a referral, a teacher who resigned in mid- disciplinary process could simply slip under the net and go somewhere else,” says Mr Finn.

Or a teacher who was subject to a process which wasn’t publicised, or referred, could easily go somewhere else.

“It could mean that someone who was dismissed in Carlisle could go and work in Manchester or in Motherwell without that knowledge following them. It could also mean that someone dismissed in Scotland on grounds of incompetence could go and work in England without there being a regulatory body which would know about it or pick it up,” he adds.

A lot of borderline cases fall short of criminal conduct, perhaps because of insufficient evidence to meet court requirements (beyond reasonable doubt), but nevertheless meet the evidentiary test required by employment law (balance of probabilities). Serious breaches of trust and inappropriate relationships with pupils are examples of the kind of behaviour which might slip through the regulatory net. It will be at the discretion of the headteacher or employer whether or not to refer such a case for adjudication by the Teaching Agency.

In future, there will be no halfway house - so if the provisional sifting by civil servants concludes that a case, for whatever reason, should not be taken further, there will be no trail of what has happened.

“At the moment, someone who is subject to a hearing in GTC England might receive some kind of reprimand, or condition or some other statement that might be on for a year or two, but that intelligence could be completely lost to the system,” says Mr Finn.

He is particularly surprised at the direction in which Mr Gove has chosen to take the regulation of teacher competence.

Despite its many pronouncements on the need to raise the bar on teacher quality, the Westminster government has handed the right of dismissal on incompetence grounds to headteachers - and even introduced an accelerated route allowing them to do so within a term.

What surprises Mr Finn is that there is no measure at national level to remove someone who is not competent from the teaching profession - from next month, a dismissed teacher will be free to simply move to another school and start again.

“To me, from a regulatory perspective, that’s a surprising step to take, when we would have expected competency to be part of the responsibility of the new Teaching Agency - but it isn’t,” he says.

Leaving competency decisions to an individual headteacher’s discretion carries potential dangers: although most will assess competence thoroughly, honestly and using valid criteria, not all may be able to navigate their way through the complexities of employment law - nor may they wish to do so. And as things stand, they have no national, consistent set of guidelines to follow, giving rise to fears that teachers will be subject to a postcode lottery of standards and sanctions.

The current GTCE chair, Gail Mortimer, believes that if heads are not compelled to report teachers’ misconduct to an external body, they may be keen to help them move on to another school instead, leading to sub- standard staff being “recycled”.

“There are enormous incentives for headteachers not to refer and these changes will completely undermine the regulatory process,” according to Tony Neale, who represents the Association of School and College Leaders on GTCE.

Because of its concerns about the lack of regulation on conduct and competence grounds south of the border, the GTCS has decided to take defensive - or preventative - measures by introducing a greater level of scrutiny than in the past.

Anyone wanting to join the register and work in Scotland will in future be required to give the GTCS the right to seek references from recent employers; and they may also be required to sign a form of legal disclaimer that they have not been subject to a disciplinary hearing for a competence process in the past.

The benefit of a disclaimer, according to Mr Finn, is that “were someone to be admitted to the register when we didn’t have that evidence, and we subsequently became aware that the evidence they provided was untrue in that respect, that would strengthen our hand in dealing more quickly with the matter”.

Leslie Manson, who represents the directors of education body ADES on the GTCS, is more sceptical of its value. He pins more hope on an improved system of professional review and personal development (PRPD) for picking up competence issues than on another layer of bureaucracy.

Mr Finn is convinced of the need for greater scrutiny: “If that information about the risk is not available, it makes it much more difficult for us to protect the profession and to protect children.”

Ronnie Smith, general secretary of the EIS, fears Scottish teachers are having to pay to pick up the pieces of the Westminster government’s rush to deregulate without thinking through how necessary functions can be delivered efficiently. There will certainly be implications for GTCS staff workload, not to mention the need for Scottish employers to be even more vigilant than in the past.

Jim Thewliss, headteacher of Harris Academy in Dundee, believes he is better placed than some of his colleagues - by dint of his experience as a former chair of the GTCS’s disciplinary sub-committee - to be aware of the potential cross-border difficulties on the horizon.

“A great many of my colleagues won’t have that kind of inside line on it,” he says.

His advice to other heads is to “take great care and make sure you do the background check because the checks and balances formerly there no longer exist”.

Leslie Manson says bluntly: “The problem is there is nothing you can look at, at all - this is entirely a hidden risk. Some folk will hide under the radar. It strikes me that you are only going to find out that you have got a risky pig in a poke after the event - if at all.”

`IT DID LITTLE TO RAISE STANDARDS’

The General Teaching Council for England (GTCE) was established by the Teaching and Higher Education Act 1998, which set two aims: “to contribute to improving standards of teaching and the quality of learning, and to maintain and improve standards of professional conduct among teachers, in the interests of the public”.

It is due to close at the end of this month, on 31 March - a victim of the government’s bonfire of the quangos. When the Westminster education secretary, Michael Gove, announced its abolition in June 2010 - a week after the case of BNP activist Adam Walker - he told the House of Commons he was “deeply sceptical” of the GTCE’s purpose and believed it “did little to raise teaching standards or professionalism”. He said the council took more than pound;36 each year from each teacher and “hardly gave them anything back”.

Keith Bartley, the GTCE’s chief executive, said at the time: “What is at risk is the teaching profession’s ability to demonstrate to the public its capacity to regulate itself and to run the most comprehensive register of teachers to show that they are fit and licensed to practise.”

The GTCE has a register of more than 550,000 qualified teachers. After its closure, powers to investigate cases will be handed to the new Teaching Agency. That new body will not recognise sanctions imposed by the other UK nations regarding teacher competence.

The agency will not mete out reprimands or other conditions currently placed on teachers for misconduct. The only sanctions it will register are bans for misconduct and “relevant” criminal convictions.

CASE STUDY: THE GTCE VERSUS ADAM WALKER

The decision by the General Teaching Council for England in 2010 to allow a teacher who described immigrants as “filth” and “savages” to return to the classroom was seen by some as the final nail in its coffin. At the time, Michael Gove, the Westminster education secretary, described the decision as “quite wrong”.

Adam Walker (pictured below right), a BNP member who stood for the party at the general election, used a school laptop to post a series of comments on an online forum about “filth from other countries” while he should have been supervising pupils.

But the GTCE said he had not broken any rules to bar him from the profession.

Its professional conduct committee said after the case: “The committee determined that while Mr Walker’s remarks were `troubling’ and some postings demonstrated an attitude that `might be considered racist’, it was not satisfied that the remarks demonstrated intolerance, which it defined as `. denying or refusing to others the right to dissent’.”

He was found guilty of a lesser charge of making personal use of a school computer during lessons and given a conditional registration order, which meant that he could still apply for teaching jobs. The committee added that “in his professional life, there was no evidence that Mr Walker had acted in a way that demonstrated racial or religious intolerance”.

Mr Walker’s posts, made under the name Corporal Fox, included: “Our country is fast becoming a dumping ground for the filth of the third world. And all we do is sleep. If we do not wake up and get a grip soon then the country we have fought and died for and cherish so much will itself be turned into a third world cesspit .

“We have enough on our plates sorting out our own home grown scumbags and scroungers without allowing filth from other countries to come here and destroy us.”

Mr Walker, who said he had never discussed his political views with pupils, claimed he was being targeted for his beliefs. There is no ban on BNP members being teachers.

Mr Walker resigned from his job as a technology teacher at Houghton Kepier Sports College in County Durham in 2007 after his headteacher asked IT staff to investigate his use of the internet.

Bradley Albuery, GTC presenting officer, said that the case was not about whether teachers should be allowed to be members of the BNP.

“This case is about the actions and behaviour of a registered teacher, using a school property on school premises in school time,” he said.

Anthony Finn, GTCS chief executive, said the outcome would probably not have been the same in Scotland.

DEREGULATION IN TRAINING

Alongside changes to the regulation of teachers’ competence and conduct in England, a variety of new routes into the classroom has been introduced.

TeachFirst - the organisation which attracts bright young graduates into tough schools, leap-frogging the initial teacher education stage - is now reasonably well-established in English schools. On-the-job training is becoming an increasingly popular approach and one of the most recent innovations is a scheme called Troops into Teaching, a route for those leaving the forces to enter the classroom.

Free schools and academies have added to an increasingly hybrid educational landscape in England. Their only significance north of the border is that their headteachers can decide who is suitable to teach in the classroom, and it need no longer be teachers who have gone through the traditional teacher-training and probation routes.

“Once you open that door and provide that flexibility, there are going to be teachers employed whom we would not consider qualified and whom we would not admit to Scotland,” says Mr Finn.

“Mr Gove takes the view that he doesn’t need to have the teaching profession regulated in the future as it was in the past, and while that’s a political decision he’s entitled to make, from a professional point of view, we consider that professional self-regulation is an important factor in determining, maintaining and recruiting quality,” he adds.

In brief, teachers who cannot satisfy GTCS conditions of training and qualifications will still have to go on bespoke courses or find ways of meeting the GTCS requirements if they want to teach in Scottish state schools - even if regulations have been relaxed in England.

Original headline: Beware those teachers who fall through the regulatory net