Sunday thoughts: Will we finally see the emergence of a coherent ‘middle tier’ in English education?

I spoke this weekend at a small conference in Cambridge. The theme was on the so-called ‘middle tier’ in education and my title was “The smashing and partial rebuilding of the middle tier, 2010–2022”. In lieu of much else going on in politics this weekend (!), I post a summary of my remarks below.

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1: There has been a long history of hostility to the middle tier from both left and right; the changes in 2010 followed in that tradition

Both Conservative and Labour administrations have long had scepticism or even hostility to the middle tier; this did not emerge in 2010 out of nowhere and can be traced back to at least 1988 if not before.

As early as 1905, one can trace echoes of the current dilemma between guidance and compliance from regulators, and school practice. The Board of Education created a wonderfully named “handbook of suggestions” for schools, on the basis that of course teacher autonomy is an important thing, but that there should be some consistency at regional and national level. This handbook stated that “Uniformity in details of practice (except in the mere routine of school management) is not desirable even if it were attainable. But freedom implies a corresponding responsibility in its use.” We can see that current non-statutory statutory guidance, as ASCL terms the volume of material coming from the Department at the moment, speaks to this same theme. Is this a suggestion? Is it guidance? Is it the role of Local Authorities to determine practice, or Whitehall, or schools?

Through the mid 20th century was probably the zenith of Local Authority power, with the system in England being described as “national system, locally administered”. Even perhaps the defining piece of education legislation in England, the 1944 Act, was not seen as one which would take this away. Churchill was brief on its consequences by Butler, but as the latter records in his diary; “he [Churchill] said that I must show him my plans when ready, and that he was sure that they would be very interesting. I gladly left it at that”.

But even as early as 1960, Minister of Education Eccles coined the term ‘secret garden’ to be dismissive of the lack of oversight from local authorities to school practice — a phrase which Callaghan then built on in his 1976 speech at Ruskin College pledging to dismantle this secrecy. And, of course, the 1988 Education Reform Act marked perhaps the beginning of the end of any system of local government as the pre-eminent power in governing state schools.

So the 2010 reforms come in a long tradition of scepticism. The difference is that since the 1980s, the centre has accreted more and more power to take effect to this conclusion. Famously, Tim Brighouse notes that the Secretary of State had only three powers over schools before 1980: to dismantle air raid shelters on school premises; to set the school capital budget; and to decide how many teachers should be trained. On current estimates the Secretary of State was said to have over 2,000 powers as long ago as 2011; education law now takes up over 3,000 pages of A4; and the Department for Education estimates — but can’t verify — that there are over 200 statutory duties on Local Authorities just as regards children’s services.

2: The unique circumstances of how mass state funded education in England emerged meant that the middle tier was always weak, with three strong countervailing forces

State funding and oversight and mass education in England emerged relatively recently in contrast to other developed nations, with school boards only being introduced in 1870 and universal state education only in the 1944 Act. By that time, of course, education in other forms had been progressing for decades if not centuries — and it is the presence of three of these strong countervailing forces which hampered any prospect of a consistent and strong middle tier emerging.

The first of these forces was the Church of England. As early as 1811, the Church had formed the “National Society for the Promotion of Education” to look fter the interests of church schools; and of course, broader education in the looser sense had been delivered in churches for decades if not centuries previous to that. The presence of many thousands of church schools while non-church schools grew, and their status as a semi-integrated part of the system with semi-independent funding and governance meant that the premises of a wholly managed state system never took off, even if desirable.

The second countervailing force is the independent sector. One can date the first formal independent school back to 597AD, and again, a model of independent education with parents paying sums of money for their sons to be educated goes back centuries as well. In 1964, amid the heyday of local authority growth, over 8% of the population were educated independently. And until 1975 and the changes to direct grant schools, many independent schools led a closer co-existence with the state sector. Again, the presence of this semi integrated group not under local authority oversight, weakened the middle tier.

And the third force was the power of headteachers (usually headmasters), in the independent sector and the state sector. By the time of the 1970s, nationally prominent heads were making their voices known and contradicting national and local policy; and even before then, locally, heads who were unhappy with local decision making had the authority, if not always the full legal power, to restrain or amend elements they didn’t like.

3: The reforms undertaken since 2010, while well intentioned, underestimated the scale of the challenge, and in particular five issues emerged quite quickly on

So the 2010 reforms, as I have said, didn’t come from nowhere — in fact, in some ways a logical conclusion at least from the 1988 Act. But the Gove reforms were so impactful because of five factors which led him to be able to make changes so quickly.

Firstly, he had time to prepare, being a shadow Secretary of State — and to work through to a level of detail (legislatively and otherwise) what he wanted to achieve; a luxury not granted to many Ministers.

Secondly, he had people around him who were intellectually aligned and who quickly took positions of power and prominence in the Conservative government and as outriders. People such as Sam Freedman, Dominic Cummings, Henry De Zoete, James O’Shaughnessy, Munira Mirza, Theo Agnew, Nick Boles, Rachel Wolf and Nick Gibb formed a fierce coterie of allies and implementers.

Thirdly, he had a supportive Prime Minister — with Cameron making clear that Gove had his blessing to move fast.

Fourthly, he had ideological backing from his party — again, not to be underestimated.

And fifthly [and here I am glad for a contribution from the audience last night from a senior figure in the education administrations in this time for suggesting this one], he took advantage of delivery vehicles — including agencies like the YPLA — that could be seized and reformed to make the changes technically happen.

So why did the changes run into difficulties from around 2013 on? I think that one can identify five reasons:

Firstly, the scale was underestimated. In May 2010, there were 203 Academies. In July 2011, there were 529. In July 2012, there were 1513. In the first year of the Gove administration, 600 Funding Agreements were signed — more than two per working day of the year. The breadth of this change, and what it meant for the Department, inevitably meant things fell between the cracks and the Department was permanently running one step behind, creating laws and regulation slower than the daily increase in number of Academies that would be governed by it.

Secondly, and relatedly, these implementation and monitoring arrangements were flawed, and I say more about this below. Managing 200 Academies via Funding Agreements is possible. Managing 1500 — let alone ten thousand — is not.

Thirdly, the government underestimated what would happen when, as was inevitable, failure happened. Whether it was new Free Schools (Discovery Academy, Al Madinah Free School); or whole chains of Academies (Bright Tribe, Perry Beeches); or individual MATs growing too quickly, failures came back to haunt an administration that was insufficiently ready for political pushback.

Fourthly, costs grew too quickly. For people like Jonathan Hill as the Academies Minister, and certainly John Nash who succeeded him, the costs of a free flowing system in times of austerity were too high.

And fifthly, the government were prepared to be hands off, except when they weren’t. The tension between tight and loose, or prescription versus flexibility, was always at risk of tipping — and over time, it tipped towards tighter control.

4: The current law and regulatory architecture around Academies is messy, and the role of the middle tier unclear; this hampers effective performance

In March 2017 I wrote a pamphlet with Tim Oates at Policy Exchange, which shockingly never made the best seller lists. Although one needs to be careful these days in drawing a link between what a right of centre think tank suggests and what a government may do (!), I think there are elements even from five years ago where our title and conclusion — “nice aims, shame the law’s a mess” — hold up, or are even more true today.

In this we cited other work, including from Thorley and Clifton at ippr, which discusses the flaws of the current way in which Academies are managed. This is through a strange combination of some primary legislation; a lot of secondary legislation; statutory guidance through the Trust Financial Handbook; Ofsted; non-statutory statutory guidance like on the length of the school week; the ‘bully pulpit’ of Ministerial announcements; and non-education law (including, most recently, things like Coronavirus regulation). Such a patchwork of regulatory tools is neither good government in principle, nor desirable from a sense of clear guidance and steering to the system. In particular, the role of Funding Agreements needs to be reconsidered. Holding schools to account via contract law doesn’t protect autonomy (because such contracts are onerous); but does lead to inconsistencies between different iterations of Funding Agreements; can hamper taking action on some ineffective providers; and offers very little transparency or scrutiny either from Parliament or parents.

It is urgent that as the Academies system grows, that a root and branch look at how the system is regulated takes place.

5: Since 2014, we have seen a partial re-emergence of a middle tier through what were called Regional Schools Commissioners, but we still face challenges with a coherent theory of change for what a middle tier will do

Because of the increasing vulnerabilities of the early Gove period, it was perhaps inevitable that some partial rebuilding of the smashed middle tier would take place to attempt to regularise the system. But the emergence of Regional Schools Commissioners was controversial, not least because there are conflicting accounts from the time as to what their role and purpose was meant to be, and the extent of powers they were meant to have. I can attest with some confidence that it is not the consensus view of people at the time that the role of what are now called the Regional Directors has emerged in the way that was forseen.

It is unquestionable that they now have significant powers. If one reads, for example, a couple of arcane but important documents for school leaders and local government — how to make significant changes to an open academy, or the guidance on establishing a new school and a presumption status, one doesn’t get more than four or five paragraphs in before it becomes crystal clear that the role of the DfE’s regional directors is overwhelming

Why has this conceptualising and defining this role openly and clearly been so difficult? Partly because, as discussed, there was conflict in the DfE as to whether these roles should exist at all; whether they amounted to a failure of the original programme; and what the extent of their powers should be. And partly because England has always had a complicated relationship with place based policy making, not just in education. Governments seek to devolve, but also to centralise. The Johnson administration desire to level up, for example, genuinely gave increased funding and powers to many major cities. Yet it was also bureaucratised to the extent that Local Authorities had to fill in complex forms to get funding for the building of disabled toilets in their area.

It is odd, in many ways, that the system of how to regulate and the role of the middle tier hasn’t been resolved. After all, it was as early as 2006, in the Labour Government’s “Higher Standards, Better Schools For All” White Paper in which Tony Blair set out his ambition for a “full system of independent, non fee paying, state schools”. This is universal academisation by another name. Ten years later, in 2016, Nicky Morgan committed formally to universal academisation. In 2022, the Department committed to it again. Yet in the substance of how to manage a middle tier was punted off to a separate (and much needed) regulatory review.

There have been many attempts to describe what the system could look like — from David Blunkett’s Directors of School Standards to Matt Hood and Laura McInerney’s HoodInerney model. But yet, 16 years after first being committed to, the Department is unwilling or unable to give sufficient detail to accompany a major structural shift.

6: An all Academised system, as promised in the White Paper, might be a solution to the current fudge, but is unlikely to occur, and wouldn’t stop all problems in any case. We are unlikely to see a resolution to this complexity anytime soon

I remain, as I have done for some time, an advocate of a universal academised system — for much the same reasons as the 2022 White Paper is. A single regulatory system, with a clear and unified role for local authorities, is a strongly desirable outcome. I also don’t think it is simply a matter of tidy minds. I don’t think you can separate out the biggest questions in English education — how to maximise the use of every taxpayer £; how to recruit and retain teachers; how to drive up standards and equity — from the question of the regulatory and legal structures in which such issues can best be addressed, which for me is within Academy status.

But even before the current interesting times in which we live, I was cautious about its chances of happening by 2030. The low hanging fruit has gone, and schools left under LA maintenance are almost by definition reluctant to convert. Any sensible school that is hostile to the premise of academisation will surely wait until after 2024 and a possible change of government. This would mean that a theoretically re-elected Conservative government in 2024 would still be faced with the bulk of current maintained schools — well over ten thousand — to convert in some way by 2030. And given the wider headwinds now facing the system, I cannot argue that this is a sensible priority for a department to focus on in the near term.

And the example of the NHS — in which each hospital trust was told by Andrew Lansley in 2011 to become or join a foundation trust by 2014 — shows both that such deadlines are always missed (spoiler alert: in 2022 there are a lot of trusts that are not foundation trusts) and that it doesn’t stop issues emerging, or central government needing to intervene.

So sadly, I suspect that we may remain with this very British fudge of a regulatory system for some years to come.