The Schools Bill 2022: some initial observations

In a guest post, Russell Sandberg looks at the religious elements in the Schools Bill announced in the Queen’s Speech. 

The Schools Bill is one of several bills mentioned in the Queen’s Speech that will be of interest to readers of this blog. It had its First Reading in the House of Lords on 11 May 2022 and will have its Second Reading on 22 May. It is being led through the Lords by Baroness Barran.

Explanatory Notes and the text of the Bill are now available. The following provides some initial observations based on these documents. The Bill is largely about the regulation of schools. There are two aspects of the Bill that impact directly upon freedom of religion or belief: clauses 19-27 deal with the regulation of academy schools with a religious character while Part Four considers the regulation of what it calls “independent educational institutions” and extends this to deal with unofficial religious schools. The bill also deals with school funding, attendance and teacher misconduct, but the following will briefly explore the provisions on Academies and independent educational institutions.

Academies

Academies in England are not new. Techni­cally, they are independent schools but they are funded directly by the Government rather than being run by the local authority. Academies are set up by private or charitable “sponsors” who are funded fully by cen­tral government by means of a funding agreement with the sponsors. All maintained schools can apply to become Academies. Where a school is to be converted into an Academy and has been previously designated as having a particular religious character, then the Academy is to be treated as being designated as an independent school having that religious character. This is laid out in the Academies Act 2010.

This Bill provides for their regulation, largely by giving the power to the Secretary of State to do so by secondary legislation. It provides that the Secretary of State can set “academy standards” by secondary legislation. This includes standards as to the spiritual development of pupils and the application procedure for being designated as an Academy school with a religious character (clause 1(2)). A standard cannot be set about the arrangements for collective worship and religious education (clause 1(6)). Standards would supersede any corresponding provisions in academy agreements (clause 2).

Regulations may apply or “disapply” educational legislation that applies to other schools (clause 3). Academies must have regard to guidance issued by the Secretary of State, and the Secretary of State may give the proprietor of an Academy a notice to improve or a “compliance direction” (clauses 4, 5 and 6). However where the proposed compliance direction relates to an Academy school with a religious character then the relevant religious body for the school must be consulted (clause 5(5)). Provision is also made for the Secretary of State to appoint or require the appointment of directors and for the termination of Academy agreements (clauses 7 to 18).

Perhaps the most interesting provisions for readers of this blog are clauses 19-27, that deal with the regulation of academy schools with a religious character. These provide that the Secretary of State must make regulations that would require that the articles of association of Academy proprietors secure that the majority of directors are persons appointed for the purpose of securing as far as is practicable that the character of the school ‘reflects the tenets of its designated religion or religious denomination’ and that the school is ‘conducted in accordance with any trust deed relating to the school’ (clause 19). It must also ensure that a majority of members of Academy proprietors are appointed by, or represent the interests, of the “relevant religious body” as defined under clause 31. Regulations may be made to make further provisions as to governance but the Secretary of State must consult first (clause 20).

Clause 21 concerns worship and according to the Explanatory Notes (para 166), it ‘mirrors as far as possible provisions for maintained schools designated with a religious character in sections 70 and 71 and paragraphs 1, 2 and 5 of Schedule 20 of the School Standards and Framework Act 1998’. It stipulates that each pupil at an Academy school with a religious character must take part in a daily act of collective worship in accordance with the trust deed or the tenets and practices of the school’s designated religion or religious denomination. This may be a single act for all pupils or separate acts for different groups and must take place on the premises unless it is a special occasion.

Clause 22 states that religious education is to be provided to all pupils at an Academy school with a religious character. For Academies with a religious character which were formerly foundation or voluntary controlled schools, this religious education must conform to the agreed syllabus adopted for the school unless the parents of any pupils request religious education in accordance with the trust deed or the tenets of the school’s designated religion or religious denomination (clause 23). According to the Explanatory Notes (para 178) this ‘mirrors, as far as possible, provisions for foundation or voluntary controlled maintained schools designated with a religious character, principally in paragraphs 1 and 3 of Schedule 19 to the School Standards and Framework Act 1998’.

For all other Academies with a religious character, including those that were formerly voluntary aided schools, the position is reversed: religious education is to be provided in accordance with the trust deed or the tenets of the school’s designated religion or religious denomination unless parents of any pupils request religious education in accordance with the agreed syllabus of the local area (clause 24). According to the Explanatory Notes (para 182) this too ‘mirrors, as far as possible, provisions for other maintained schools designated with a religious character, principally in paragraphs 1 and 4 of Schedule 19 to the School Standards and Framework Act 1998’.

There are rights for parents and sixth-form pupils to withdraw their children or themselves from religious worship in whole or in part and for parents to withdraw their children in whole or in part from religious education (clause 25). This can include withdrawal from the school to receive religious education elsewhere. In relation to boarders at an academy school, such alternative arrangements must be made. According to the Explanatory Notes (para 187), this too mirrors the existing law on maintained schools with a religious character.

Provision is made for the inspection of the arrangements of worship and any “denominational education” (clause 26), which as the Explanatory Notes state ‘is separate and different to a school’s wider inspection’ (para 194). Clause 26(10) provides a definition of “denominational education” as ‘religious education which is required to be provided under [clause] 22, and is not provided in accordance with an agreed syllabus adopted for the school or for any pupils at the school’. According to the Explanatory Notes (para 203), this means that ‘religious education in an academy school with a religious character would need to be inspected unless it is provided by the school in accordance with any agreed syllabus adopted by the local authority. Collective worship in an academy with a religious character would always need to be inspected’.

Clause 27 states that any provision of an Academy agreement, including those entered into before this section comes into force, ‘is void so far as it is inconsistent with any provision made by or under sections 19 to 26’ (clause 27).

The provisions on religious education and worship are, therefore, in line with the position for schools with a religious character generally. However, no equivalent provisions to the rules concerning teachers’ rights not to teach religious education or attend worship are included here.

The position drawn here in relation to academies with a religious character is also in line with the position in Wales for schools with a religious character even once the Curriculum and Assessment (Wales) Act 2021 comes into effect, with one significant difference: in Wales, there is no additional right of parents to withdraw their children from religious education.

In my forthcoming book, Religion in Schools: Learning Lessons from Wales, and in numerous guest posts on this blog, I have argued that the Welsh reforms do not go far enough in relation to schools with a religious character. The reforms are generally radical in respect of religious education: the parental opt-out is removed, sixth-formers must now opt in, and the subject is renamed Religion, Values and Ethics (RVE) to reflect how non-religious beliefs must be taught and how such groups are to be involved in the drafting of the agreed syllabi. However, in respect of schools with a religious character in Wales, the old law pretty much continues to apply. For voluntary controlled schools, the default is agreed syllabus RVE but parents can request denominational RVE while in voluntary aided the reverse is true.As I have previously argued, this will mean that not all pupils will be taught non-denominational RVE. A better approach would be to require non-denominational RVE to be taught in all schools including those with a religious character with such schools being permitted to teach denominational religious education as well.

The inclusion of these provisions in the Bill may stimulate Parliamentary discussion of whether the law needs changing more generally, not only in relation to schools with a religious character but also those that are not faith schools. Perhaps this is an opportunity to bring about in England a much-needed update of the law generally which the new law in Wales will only partly achieve.

Independent educational institutions

One of the most important provisions in terms of the regulation of unofficial religious schools is actually found in Part 3 of the Bill which deals with attendance. Clause 48 would substitute a new section 436B into the Education Act 1996 to impose upon local authorities in England to maintain a register of children not in school.

In terms of Part 4, the major change is that clause 56 expands the current definition of an independent educational institution so that it covers unofficial religious schools. This basically makes such schools subject to the similar regulations as existing independent educational institutions such as independent schools

Under the current law (Education and Skills Act 2008, section 92) the term “independent educational institution” covers independent schools and institutions that provide part-time education for one or more persons of compulsory school age. Clause 56 would substitute a new definition into section 92 of the 2008 Act to define an independent educational institution as an institution that provides full-time education for at least five children of compulsory school age or at least one child of compulsory school age who is looked after by a local authority or who has special education needs. ‘Full time’ means that a child receives all or a majority of their education there. This does not include institutions providing only early years provision, local authority maintained schools, hospitals, 16-19 academies, institutions with Further Education or Higher Education and other listed ‘excepted institutions’.

This change captures unofficial full-time schools which previously fell outside the 2008 Act. A new 3A to section 92 would provide for the purposes of this section that education is provided at any institution “where the institution provides instruction or guidance on any matter and regardless of whether or by whom the children are supervised when attending the institution”. The Explanatory Notes (para 378) states that this ‘clarifies that education is provided irrespective of the subject-matter of what is taught’. In effect, these changes will close a loophole under which educational settings were only required to register as schools if they taught for 18 hours a week entirely during school hours, nor did they no need to register if they offered only a restricted curriculum.

They therefore bring unofficial religious schools within the regulatory system. The Guardian reported the Department of Education as commenting: “Although certain faith groups, such as people of Charedi Jewish faith, may be disproportionately affected by the proposals, the benefit it brings to children’s quality of education and in providing oversight of safeguarding through the regulated activity is of greater importance.” In 2019, Ofsted estimated that a fifth of unregistered schools were faith schools, including 36 Muslim, 18 Jewish and 12 Christian schools.

Clause 58 provides that Regulations may provide for provisions that apply to independent schools in England could also apply to an independent educational institution which is not an independent school.

The change in the definition of independent educational institutions also means that the independent school standards under section 94 of the 2008 Act will now apply to those schools now caught by the definition (clause 59) and that failure to comply with such standards will result in the suspension of the independent educational institution (clause 60). It will be a criminal offence for education to be provided to one or more students while it is suspended. Powers of entry are given to Chief Inspectors to enter any premises where there is reasonable cause to believe that a relevant offence is being or has been committed or evidence of the commission of a relevant offence may be found there as well as powers of investigation (clause 63). In short, as the Explanatory Notes summarise (para 1), the Bill enhances “powers to investigate and act against criminal offences by schools, notably against those operating illegal unregistered schools”.

The Bill, therefore, is of importance, in terms of the way in which it extends the regulatory framework to cover what have hitherto been unregistered schools. It does so by requiring a new register of children not in school and by extending the definition of independent educational institutions so that unregistered schools are likely to fall under this definition and therefore be subject to roughly similar levels of regulation as independent schools. This should not affect Sunday schools, youth clubs and the like given the full-time requirement but the question of where the line is drawn is likely to prove problematic. The extra-legal nature of unregistered schools means that we know little about them. Comparisons can be drawn with the issue of unregistered religious marriages.

Concluding thoughts 

Despite its length, this post is neither exhaustive nor comprehensive. The Schools Bill is loaded with technicalities and largely amends existing legislation that is already overly complex. Yet, its provisions in relation to religion are of importance.

What is largely a reiteration of existing rules for Academies should give an opportunity for those rules to be questioned. The law on religious education and worship in England is not fit for the twenty-first century. This Bill provides an opportunity to change this, through amendments and making the argument for wider reform.

In terms of unregistered religious schools, this Bill will have a significant impact and provides another example of extra-legal religious activities being increasingly subject to the same laws as if they had complied with legal registration. (For another example of this see the new Marriage and Civil Partnership (Minimum Age) Act 2022, which Kathy Griffiths and I commented on recently)

A final word can be said as to application. 10 Downing Street briefing notes on the Queen’s Speech stated that the Schools Bill would apply to England only. However, the matter is not as simple as that statement would suggest. The Bill states that it extends to England and Wales, but as the Explanatory Notes point out, it mostly applies only to England. As para 36 points out, the territorial extent of the Bill ‘is the jurisdictions of which the Bill once enacted would form part of the law. The extent of an Act can be different from its application. Application is about where an Act produces a practical effect’.

Although education is a devolved matter in Wales, most of the developing Welsh law on education continues to be found in existing Acts of Parliament. The Bill therefore amends some provisions that apply in both England and Wales but preserves “the provisions as they apply in Wales where a provision is to be amended or repealed in England only” (Explanatory Notes, paras 39-40). This, coupled with the significant amendments made by the Curriculum and Assessment (Wales) Act 2021, underscores the argument that it is time for consolidation of the law of education into separate Acts for England and Wales in order to remove the complexity and confusion for policymakers and educational professionals.

Russell Sandberg

3 thoughts on “The Schools Bill 2022: some initial observations

  1. Pingback: New Blog Post – The Schools Bill 2022: some initial observations – Russell Sandberg

  2. Thanks as ever for the swift analysis.

    A question on s. 23 & 24 (right of parents to specify which syllabus is followed for Religious Education):

    The provision refers to “the parents of any pupils”.

    Does this mean that the two parents of a single pupil at the school, or the single parent of siblings, has no standing to make such a request? In other words, it is a provision that parents can only really invoke if they act as a group, albeit possibly a tiny group?

    Thanks!

    • Sounds to me like slightly sloppy drafting – which, of course, might be clarified in the course of the Bill’s passage. But even if it is enacted as drafted, I can’t imagine that a single parent of siblings (eg) would lack standing. Apart from anything else, to distinguish in that way would surely be in conflict with A2P1 ECHR, particularly ” In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions”.

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