Power is nothing without control

I first met Sam Freedman in the winter of 2011/12 at the DfE when Caroline Whalley and I and a small bunch of volunteers were setting up the Elliot Foundation. Over the years since I have sat opposite him at multiple think tanks and education events and occasionally exchanged tweets. But Twitter is not really my thing in the way that it is his. I have found him to be an interesting and deep thinker about education. I have been surprised by how often I have agreed with him and even when I don’t, how much I respect his approach. 

Last month he published a paper through the Institute for Government entitled, "Gove reforms a decade on: what worked. what didn't, what next?". I know there are much more important things going on but if we want to make the world a less stupid, selfish and dangerous place, then education policy is important. It is particularly important now as there is a government white paper about to be published and almost all eyes are looking elsewhere.

General background points

The founding idea of school trusts was to create organisations (charities), liberated from stifling bureaucracy and ineffective local government, with the single purpose of improving education for all. My concern about Sam's recommendations in their entirety is that they appear to recommend the reattachment of multiple levels of bureaucracy and the reconnection to local government, which is more ineffective now than when academies were originally conceived. 

If you want to improve the education system you have to rebuild capacity, coherence and clarity. Organisational groupings of schools (LAs and MATs) have to become legally equivalent and operationally compatible. To be more explicit 250-500 school operating organisations regulated by a single entity split into 10-15 regions would make the role of each regional regulator possible. I have long argued that LAs should be allowed to run MATs before they lose any more of their system knowledge and capacity.

But the difficulty of this proposed end state is that it would cost a significant amount to achieve. And we have spent most of our school improvement budget on the transaction costs of transferring 50% of schools to academy status. This is the equivalent of spending your entire system improvement budget on a new name for the project.

Premises on which we agree

The education sector is not in an ideal state. The impact of fragmentation was entirely predicted. I have written elsewhere on the challenges of incoherent, overlapping and occasionally contradictory regulation (Education System Design: Foundations, Policy Options and Consequences, Nov 2020). There has been marginal improvement in both the academy and LA maintained sector but nothing significant. There are good MATs and good LAs but equally there are poor MATs and poor LAs. However, the overall incidence of schools requiring improvement or worse has not moved outside the 13-15% bracket for the last decade.

Premises on which we disagree

Sam seems to feel that there is insufficient clarity around educational expectations, a lack of authority holding trusts to account and powers missing to intervene where necessary. On this we disagree. There is no shortage of authority. School Trusts are amongst the most regulated parts of the public sector. The problem is not the absence of power it is the absence of coherence and intelligence in the system to use its abundant powers with discretion.

The ESFA and RSCs between them have the power to take schools away from trusts and close trusts entirely in the event of contractual breach. If a school trust fails to improve outcomes across its schools as a whole, then it is failing to meet its core purpose. By definition this is a failure of governance. The statutory powers to intervene already exist they are just not being used very well. The reason for this is the gearing ratio between RSCs and the level below them. There are simply too many organisations, all of whom will plead special circumstances when challenged, for the RSCs or the ESFA to act confidently. RSCs have less than ½ a day per year for each organisation over which they have oversight.

In the 1990's Pirelli ran a print ad of American Olympic sprinter Carl Lewis in red high heels with the strap line, "Power is nothing without control". Legislators legislate and this is our danger. Adding more powers into a fragmented system will only cause more damage as they will be used without insight. You don't put a jet engine on a wonky bicycle and then act surprised when you're picking up teeth from the road.

Central recommendations from,"Gove reforms a decade on" with annotations

I have taken the 15 recommendations from the IFG paper and sorted them into three categories with rationales for each.

Support	Discuss further	Challenge
2. "Establish a single arm’s length regulator for academy trusts, merging the academies  responsibilities of regional schools commissioners and the Education and Skills  Funding Agency"  Completely agree! Create clarity and consistency. But separate out the Funding Agency from the Regulator to avoid perverse incentives and conflicts of interest. And most importantly ensure the regulator has the capacity to to perform its functions with discretion.	1. "Create a proper statutory basis for academies, MATs and academy regulation."   We don't need more statutory powers. We just need the clarity of structure and purpose for the powers that already exist to become useful.	4. "Publish a high-level framework setting expectations for MATs against which they  can be assessed by the regulator. All assessments should be transparent. " You don't need a new framework to exercise power with discretion. The success or failure of a school operating organisation is directly inferred from the performance of its schools in their contexts. An ‘angels on a pinhead’ league table would be a waste of time and money on which no one would agree. Why create independent organisations whose sole reason for existence is to improve outcomes for children and then tell them how to do it?
5. "Give local authorities the power to ask the regulator to direct academies to increase or reduce their published admissions number (PAN), if they can make a case that  they will not otherwise be able to meet their sufficiency duty effectively." Provided that this power was reciprocated and MATs could ask the regulator to adjust their own PANs up and down in the face of LA intransigence (which is as common as the MAT awkwardness implied by this recommendation)	3. "Give the new regulator powers to intervene to close or merge MATs for both  financial/compliance failures and failure to provide adequate educational support." I would argue this is not needed as it already exists. They already have the power to intervene on educational underperformance through their powers on failure of governance. They also have significant coercive powers. There is danger of creating an accountability revolving door here.	7. "Give local authorities control over all schools’ admissions policy to ensure fairness." I'm beginning to suspect that Sam has been captured by the LGA lobby. LA control does not necessarily equate to fairness. This would also set quite a lot of hares running with faith schools...
8.  "Give local authorities the right of access to MAT data, including attendance records."  I see no problem in this. We are public bodies funded by public money. We should be transparent and connected to local government.	6. "Give MATs a duty to set out their forward plans for expansion and to discuss these  with local authorities. "  MATs already have a duty in company and charity law to set out and publish their plans. Just make us write better annual reports	9. "Consider if further powers for local authorities are necessary in light of the ongoing  DfE review of SEND provision." Absolutely not! They don't need more power. They need more money. Otherwise they will simply transfer the problem to schools and blame them for failure in the same way that central government currently does to them. The challenge here is where in the overall education settlement we find this money for SEND as the treasury will not support otherwise. See earlier blog on SEND funding.
11.” Set a strong expectation that all schools will join a MAT. Use incentives and clear  messaging to encourage the shift to a single system rather than forcing schools  to comply. “ Yes absolutely.	10. "Create an additional package of legal powers for local authorities to be triggered  when all their schools are academies, including the right to hold public hearings  of MATs and a limited right to insist academies co-operate with integration of local  children’s services" I think this is dangerous. Yes, we need to incentivise a move towards a coherent system. But I suspect this would incentivise the wrong behaviours. Some LAs would kick all their schools out and then judge them in what looks like a kangaroo court. You would simply have a revolving door of suppliers overcharging and getting fired for not improving anything.	14. "Create a mechanism whereby an individual school can make a request to the regulator to move to a different MAT, if they can make a strong case that they would  benefit educationally. " This is the most dangerous idea of the lot. All you have to do is ask yourself how will people behave if this happens? First it allows schools to opt out of school improvement if they don't like their MAT. Second it requires legal contortions to apportion rights to a body that no longer exists. Third it will incentivise charities to act against their charitable purposes and give oil to squeaky wheels. And most importantly fourth it will create the situation where rather than act to improve outcomes for children, MATs will use public money to promote and market themselves to their school leaders, as it is much cheaper to get people to like you than to improve a system. All to address a problem which doesn't exist, to whit the false notion that regulators lack the power to take schools away from MATs that are failing them.
	12. "Inject significantly more capacity-building funding into high-performing small MATs  and provide funding to new strategic and high-potential MATs. This should include  organisations spun out of local authorities, many of which already exist to provide  support services." Maybe talk to some of the larger MATs who have done this already amongst the chaos of the last decade and could help. Giving money to small MATs who don't know about growth risk and organisational design is dangerous. And please don't ask the DfE about this as they do not know.	15. "This would require legislation to give a group of representatives associated with  each school a legal status independent of the MAT so that a body existed that could  make the request."  This is just an additional point which tacitly recognised the silliness of point 14 and creates a process so bureaucratic as to negate its own purpose.
	13. "Empower the new regulator to create regional MATs to take on schools that cannot find another MAT to work with. It may be necessary to create several of these with different functions (for example, to cover small rural schools). " This has already been partially done and isn't exactly flying as an idea. It also completely subverts the whole idea of school trusts. If the regulator you propose conceives, commissions, directs, manages and dissolves, then it is not a regulator. You have just subsumed the entire school system back into direct administration by the DfE, which I have already shown lacks the tacit knowledge or capacity to perform this role.

Summary

We should not legislate on the basis that we haven't done so for a while. And before we do, we should ask the question, if we create these new rules, how would different agents in the system behave?