A legal bind: The future legal framework for England's schools

The government has promised to convert more maintained schools into academies. The number of academies has increased from around 200 in May 2010 to over 5,000 today; prime minister David Cameron has expressed his desire for ‘every school to become an academy’.

While most commentators have focussed on the implications that ‘academisation’ will have for the role of local authorities in the school system, less attention has been paid to the growing difficulties with the legal framework that governs schools – specifically the fact that an increasing proportion of schools are now governed through individual contractual funding agreements with the secretary of state for education, rather than through legislation.

This may sound like a small technical issue, but it cuts to the heart of debates about school autonomy, and is integral to the way in which the government manages the education system. Contractual funding agreements set out the combination of freedoms and constraints that are placed on individual academies, but have proven unable to provide a consistent set of freedoms across schools, and have a number of drawbacks:

• they don’t always protect autonomy
• they have created a large bureaucratic burden on government and schools
• they have created an inconsistent and contradictory set of freedoms among different academies
• they risk tying academies to poorly performing chains
• they are subject to less parliamentary scrutiny.

A system based on legislation and common statute, by contrast, would have the potential to allow all academies, regardless of the timing and circumstance of their creation, the optimal balance of autonomy and accountability necessary to deliver a first-class education to pupils.

This briefing paper explores these issues in full, and argues that, as it moves towards creating a ‘fully academised’ school system, the government must grasp the opportunity to address the difficulties that arise from the governance of academies through contractual funding agreements. Informed by a seminar on the future of schools’ legal frameworks attended by prominent figures from education law, policy, professional bodies, academia and academy trusts, it presents a number of options for how the legal framework governing academies can be reformed in order to give all academies equal autonomy and make them subject to the same constraints. These proposals include:

• abolishing funding agreements and setting out academy governance through legislation
• retaining a slimmed-down funding agreement that requires academies to adhere to subsequent changes in primary or secondary legislation
• making funding agreements more like standard contracts by requiring them to be renewed every five years, rather than having them continue on a rolling basis as they do currently
• encouraging the creation of school trusts that enable individual schools within them to retain their status as a legal entity, therefore allowing them to change trust.