Debates about the Children’s Wellbeing and Schools Bill, which has its second reading earlier this week, have been focused on how the government intends to use this legislation. This is interesting, but it’s just not that important. Legislation creates rules that, assuming they’re not repealed, last *forever*. Forever is a very long time. We should be far less concerned with the intentions of the current government, and far more concerned with the possibilities legislation creates for future governments.
An example - teacher pay and conditions
The Schools Bill (2024) will require all schools to employ teachers on a national pay scale with nationally-agreed working conditions. At the moment academy trusts can pay above the national pay scales. Many teachers are naturally concerned that this bill will reduce their pay by bringing it down to the national pay scales.
Government ministers have responded to this by promising that no teacher’s salary will be reduced because of the bill. The problem is, they cannot make this promise. I’m sure it is true that current ministers do not intend to reduce any teachers’ salaries. But it does not matter that they do not intend to use the new powers in this way. It matters that the new powers can be used in this way.
What happens next time the government finances are in bad shape and savings need to be found? Do we really want a law saying that no school is allowed to pay teachers a penny more than the Treasury decree? This is not a hypothetical situation - there has been teacher pay restraint in recent years and many academy trusts chose to pay above the national pay scale in response. This in turn puts pressure on government to increase salaries across the board, and so benefits all teachers.
The question isn’t whether this government currently intends to cut teacher pay. It’s whether we never again want a single school to pay a single penny more than the Treasury deem appropriate.
Many more examples
The Bill is full of such examples, where a bad power is being created with good intentions. But we cannot mistake the government’s intentions for the merits of the legislation. The way to judge whether a power is good is to ask what a “bad” government would do with it.
If you’re a progressive Labour voter, how would you feel if a Reform government had this power? If you’re a traditional Conservative voter, how would you feel if Corbyn had it?
Take a minute and ask what your least-preferred government might do, in addition to controlling teacher salaries and contracts, with these:
The power for the Secretary of State to require an academy trust to follow an action plan set by the Secretary of State, if the SoS deems it likely that the academy trust will *in the future* breach any of their duties
The power for the Secretary of State to mandate, in whatever level of detail they choose, exactly what is taught in every school in the country
The power for the Secretary of State to determine who is and isn’t allowed to become a teacher
The power for the Secretary of State to determine the exact details of how and when schools are allowed to use off-site education/alternative provision
The power for the Secretary of State to require local authorities to collect any information about home-educated children that the Secretary of State deems relevant to a child’s education and welfare
I am worried about all sorts of governments having these powers - including ones I’d like! I trust school leaders to make these decisions much more than I trust an under pressure minister who needs to be seen to do something in whatever the latest media storm is, and now has these powers at their disposal.
We need to be much more serious about legislation
This is not a particular dig at the current government. The 2022 Schools Bill that was proposed (disclaimer: I was in the DfE at the time) fell foul of this problem too. Governments draft bills that give them the powers they want to do the things they think are good. They don’t think about the consequences in 10-20 years’ time.
I am amazed by how easily we all fall into the same trap. If we like a government then we instinctively support their legislation because we trust them to use it well. But this is the wrong way to think about setting laws. The test for whether to support a new power is whether you want your political opponents to be able to use it.
I know that some people reading this will be thinking “but future governments can pass their own laws, so if they wanted to do this bad thing they’d do it whether or not the law is in place now”.
This is true in theory, but less so in practice. In practice governments are highly constrained. They’re constrained by parliamentary time, by holding together their Parliamentary coalition, by staying true to the manifesto under which they were elected. We can’t constrain future bad governments. But we can avoid giving them powers that exist on day one and don’t require them to spend any political capital to obtain.
This is a significant worry about the home education parts of this bill (possibly others, but those are the ones I'm most familiar with!). Regulations can be changed very easily and more or less silently, and the bill includes provisions which could have a massively different impact depending on what those regulations say.
The Education Provider Duty in the CNIS section will be dependent on the number of hours of provision, set in regulations. So in theory this could move from, say, 9 hours a week, which would not affect very many providers, to 1 hour a week - or even 1 hour a month if some future government felt like it. Suddenly more or less any activity with a vaguely defined curriculum - Scouts, say, or swimming lessons - could come into scope, and be asked to provide information on any home educated children who have attended in the last 3 months, with a potential fine if they don't respond accurately within 15 days. While this may be doable (though how a general provision knows who is home educated and who isn't I'm not sure), it's not something they would expect.
Worse, the definitions deliberately seem to include remote provision. There are lots of providers aimed at home educators who offer a variety of classes where you sign up for an hour's lesson, maybe in 4-6 week blocks. These providers could have thousands of sign-ups from students all over the country, and they don't actually know who is attending for a set number of hours or not, but they could be asked to provide personal information on any of those children who have attended (or signed up and might have attended or might not?) over the last 3 months - which apart from being a huge administrative task, is likely to be a volume of data your average LA worker should not have access to and is not equipped to handle safely. Are providers going to want to risk the threat of a fine if they get this information wrong, or will they think twice about providing an opportunity?
That's before you get on to the legislation that says a parent must - by law - notify the LA within 15 days of *any* other person who provides education to their child, with no bottom limit on time or clear definition of what 'education' means in this context (don't worry, it'll be set out in guidance...). So you sign up for one of those new classes, and must notify the LA within 15 days. Decide that wasn't much fun, stop it and try another one - same thing.
I don't think the current government really expects to be asking these things of casual education providers, and I don't expect the initial guidance and regulations to expect it - but the provision in law will be there. And I don't imagine either parents or LAs will take the law on notifying the LA of minor changes to education quite so literally as it is written - but it *really* doesn't seem like a good idea to draft laws intending for them not to be followed. Better to have workable limits up front.