Like the reanimated corpse of Jon Snow in Game of Thrones, grammar schools are back from the dead. Or at least, they might be. Since 2007, Conservative policy has been to allow existing grammars to expand but not to allow new ones to be built. But with a new prime minister and education secretary in place post-referendum, a group of Tory MPs has quickly relaunched a campaign to reintroduce grammar schools.
Specifically, they want the government to allow selective free schools in disadvantaged areas (though as they’d be selective, it’s not clear how they would actually support the local community).
It is to be hoped this campaign will fail but recent noises emanating from No 10 suggest not. A lengthy debate about selection will be a huge distraction for the new government, given there are so many pressing issues, such as teacher recruitment, regional inequality and ongoing assessment reform.
If the government really is biting, there’s a very interesting (to me anyway) set of questions as to the legality of new selective schools.
There’s a very interesting set of questions as to the legality of new selective schools
Let’s start with the easy bit. The rather excitingly named 1998 School Standards and Framework Act, introduced by Tony Blair, makes it very clear that the government cannot open a new maintained grammar school without changing the law.
But, of course, these days very few new schools are maintained. Instead, they are academies (or free schools – but these are legally the same as academies). Academies are not covered by the 1998 act but by the 2002 Education Act, which first established the legal framework for “independent state-funded schools”. The authors of this act did put in some provision against selection but it’s much less watertight than the 1998 act. It says academies must “provide education for pupils of different abilities who are wholly or mainly drawn from the area in which the school is situated”.
Certainly, the intention behind this clause was to allay fears among Labour MPs that academies would mean the reintroduction of selection, but the actual wording is not clear.
Arguably, a grammar does educate “pupils of different abilities” – they’re just all well above average (or their results are). And how big is “the area in which the school is situated”?
Fast-forward to the 2010 Academies Act. Under this legislation, existing maintained schools were allowed to convert to academy status. Intriguingly, the clause that allows maintained grammar schools to convert specifically exempts them from the 2002 requirement to “provide education for pupils of different abilities”, which does imply that selective schools don’t meet this requirement. Our 16-19 free schools are also exempt from the requirement in the 2011 Education Act. So, there are no existing selective academies that don’t have specific exemptions from the 2002 clause.
But we can’t say for certain that if the government now lets a selective free school open, it would definitely be illegal. It’s likely that if it tried there would be a judicial review as to whether such a decision was reasonable, given the intention of the 2002 act. The chance that this would succeed is hard to predict.
If it goes down the grammar route, the government may want to play safe by legislating – but that would risk a major political row and a possible defeat, given its slim Commons majority and the fact it has no majority at all in the Lords.
The only conclusion one can draw is that academies law is a mess that badly needs tidying up, and that the government could save everyone a lot of time and effort by ignoring the siren calls to return to the selective path and instead focusing on a stronger, comprehensive, future.
Sam Freedman is executive director of programmes at Teach First and a former government policy adviser