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Grammar school expansion is unlawful: will the unions take Hinds to court?

The teacher unions are united that the proposed expansion of grammar schools is a very bad idea and most teachers agree. The Government’s aim is to reintroduce selection into areas of comprehensive schooling. This will siphon off students assessed as able into separate schools and reduce teachers’ opportunities to teach the full ability range, without any evidence that this will increase social mobility – if anything, the reverse is true. But, crucially, the current plan to expand grammar schools is unlawful and can be stopped if the unions, acting on behalf of their members, wish.

Grammar school expansion has been Conservative policy since September 2016. The Conservative manifesto for the 2017 General Election included a commitment to lift the ban on creating new grammar schools, but the Government lost its majority and confirmed that the ban would stay in place.

How does the ban work?

Creating new selective schools is prohibited by two Acts of Parliament. The School Standards and Framework Act 1998, section 99, prohibits selection by ability except by schools that were already grammar schools when the Act was passed or, in special cases, by particular ability such as music.

The Academies Act 2010, section 1A, allows the DfE to approve the creation of an academy only if, among other things, “it provides education for pupils of different abilities”, i.e. is comprehensive. We have all heard of academies that try to slant their admissions by various subterfuges, but the principle hasn’t been breached. The only selective academies were grammar schools before they converted.

So creating new grammar schools would require changing these Acts of Parliament and the Government doesn’t have a majority for this.

Circumventing the ban

A way round the ban was found in October 2015 by Nicky Morgan, then Education Secretary, when she allowed the Weald of Kent Grammar School to expand onto a satellite site in Sevenoaks, several miles away. How did this work?

The Education and Inspections Act 2006, section 18, gives the Government power to make regulations allowing the Education Secretary to approve several possible changes to schools set out in section 19. These include change of status, e.g. from community school to academy, changing the age-range of pupils or enlarging the school’s premises.

The essential point is that Education Secretaries can’t initiate any changes. They can only respond to requests from governing bodies, local authorities and proprietors of academies. The procedure is laid down by the regulations under Section 18, most recently updated in 2013 –

The Government is now planning to use this process to create further grammar schools by enlarging existing ones into other buildings, perhaps miles from the original school, without changing the Acts that prohibit new grammar schools. Theresa May removed Justine Greening because she was unenthusiastic about this and appointed Damian Hinds to carry out her will. He has invited grammar schools to expand, subject to certain conditions, and provided £50 million for this when schools are badly short of funding –

Why this is unlawful

The Government is using the expansion procedure to get round the fact that it can’t change the law to allow new grammar schools. It would be easy to shrug and say “Well, that’s politics”, but, in fact, what the Government is doing is unlawful.

It is an established principle of law that “specific statutory rights are not to be cut down by subordinate legislation passed under a different Act”. This has been repeatedly confirmed, for example, by the Supreme Court in July 2017 when it decided that it was unlawful for the Government to charge fees for going to an Employment Tribunal (which had previously been free). The Court made it clear that this principle is basic to English law and the Fees Order was unlawful because ”it has the practical effect of making it unaffordable for persons to exercise rights conferred on them by Parliament” : R (on the application of UNISON) v Lord Chancellor, paragraphs 3, 65 and 103/104 –

The judgement took effect immediately. The Ministry of Justice had to stop charging fees at once and make arrangements to pay back fees it had already charged.

The same applies to the current expansion of grammar schools. The Government is using subordinate legislation – regulations under Education and Inspections Act 2006, section 18 – to circumvent (“cut down”) rights to comprehensive education set out in two Acts of Parliament. It is hard to see how a judicial review could fail. Grammar school expansion would be stopped in its tracks until a future Conservative Government had a majority to change the Acts.

This would be dramatic, but the process isn’t unusual. Judicial review enables the courts to review whether decisions by public bodies are unlawful, unreasonable or unfair and, if so, need to stop or be changed. Government departments are pulled up by this process several times a year, usually on technical matters. JR decisions aren’t usually as high-profile as UNISON stopping Employment Tribunal fees, though the most high-profile for many years was last year when Gina Miller used JR to force the Government to pass an Act of Parliament to start Brexit instead of doing it by decree.

As the UNISON case shows, a trade union can stop an unlawful policy for the good of its members and many others – all the people who can now go to an Employment Tribunal without paying. Will the teacher trade unions now get together and take Damian Hinds to court, for the sake of teachers and their students who would be harmed by the expansion of grammar schools? Or will one of them take the lead and earn the thanks of teachers and parents almost everywhere?

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