skip to Main Content

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?

Leave a Reply

Your email address will not be published. Required fields are marked *

Towards better reading and writing – AND lower workload

Sometimes several things happen at the nearly same time which seem unconnected but then illuminate each other. In the last month I’ve been struck by three blogs and their implications.

Comprehension practice doesn’t increase reading ability. Daniel Willingham is an American cognitive psychologist well-known for his books and blogposts. On 5th March he posted a fascinating blog outlining extensive research by himself and others that, above an initial stage that’s quickly reached, comprehension practice doesn’t improve reading. This links to his previous article outlining further meta-analyses in which he writes (italics added by me:

Ten sessions yield the same benefit as fifty sessions. The implication seems obvious; reading comprehension strategies (RCS) instruction should be explicit and brief. Far from a let‐down, this strikes us as wonderful news. To the extent that educators have been devoting time to RCS instruction, they can now focus on other, more fruitful activities, such as generative vocabulary instruction, deep content exploration, and opportunities for reading across genres and content areas. When it comes to improving reading comprehension, strategy instruction may have an upper limit, but building background knowledge does not; the more students know, the broader the range of texts they can comprehend.

It follows that, beyond a limited level, reading with understanding can’t be taught by direct instruction. It can only be taught by deep exploration of a wide variety of texts.

Interestingly, on the day he posted this Willingham received a plaintive, single-sentence comment: “At some point we need to get into specifics about what the teaching looks like in a classroom.” Many teachers will sympathise. The basic question is: how do I ensure my students do better without working even harder than I do already? Show me the actual method – the specifics – for improving my teaching without increasing my workload. Large numbers of bloggers, researchers and trainers give general advice about what to do. Please give me something specific and time-saving that definitely works.

Reading is a complex, personal activity – every student’s needs are different depending on their individual, social and cultural background. This was explained very well on 21st March in Barbara Bleiman’s blog, Overemphasising the vocabulary challenge? Bleiman points out how effective readers often understand the overall meaning of a text without understanding individual words, but also how individual words can cause misunderstanding, even apparently simple words:

For all that we talk about the detrimental impact of the ‘vocabulary gap’ on reading, it can be the simple words, used in idiomatic or unusual ways that can floor inexperienced readers, pulling the rug out from under their feet. Floor? Rug? That last sentence is just one example of potentially confusing language where the words themselves are perfectly simple, monosyllabic, everyday ones, yet they’re being used in ways that might not be familiar. It might be no less difficult for a student to understand this idiomatic use of language than it would be for me to say, ‘It can be the simple words that can be disconcerting, capable of disorientating inexperienced readers.’ Only seeing vocabulary as hard words misses out a much bigger aspect of what it means to understand a text.

Bleiman ends her blog with a detailed account of her own responses and strategies when reading the opening of A Christmas Carol. They are inevitably personal – quite different in some ways from mine and, I guess, yours. We each read texts differently.

Deep down we know this, but the implications seem daunting. How can we possibly provide individual learning programmes for, in secondary schools, at least 150 separate students? We can’t and, in fact, realising this is liberating because, in reality, no teacher can correct all a student’s misunderstandings. Hundreds of hours of marking can’t possibly put right all the errors of understanding a student may make, so there is no point in trying. We actually enable students to improve their reading by reading with them and, as Vygotsky showed, guiding them to construct their understanding collaboratively with us and with their peers.

Cognitive acceleration significantly raises attainment in Reading and Writing after one year. On 30th March Alex Black published his results from using cognitive acceleration Let’s Think in English lessons fortnightly for a year –
Using the Australian Council for Educational Research (ACER) test, the students achieved increased attainment in Reading, Narrative Writing and Expository Writing comparable to the top 14 International Baccalaureate schools in the control sample (effect sizes of +0.30, +0.12 and +0.42 respectively). The students also achieved significant increases in scientific reasoning ability as measuring by Piagetian science reasoning tests and mathematical literacy as measured by ACER. This further confirms work by Adey and Shayer that cognitive acceleration raises general, not just subject-specific, cognitive skills.

As background, Let’s Think in English (LTE) provides 30 lessons for KS3, designed to be used fortnightly (15 per year) over 2 years. Other suites of lessons are available for KS1, KS2 and GCSE. They use a wide variety of short texts – poems, fiction, non-fiction, drama and film – which are explored intensively. As Black points out, teachers are trained to use the lessons effectively. See

Taken together, these three blogs have several implications:

  • The LTE lessons provide “deep content exploration and opportunities for reading across genres and content areas” (Willingham) which build students’ background knowledge and develop their reading strategies (Willingham, Bleiman).
  • The lessons increase teachers’ awareness of each student’s cognitive processes, enabling more focussed personal guidance (Bleiman).
  • The lessons do not involve writing (so less marking), but nevertheless significantly improve students’ Writing (Black).
  • Suites of fully trialled lessons (lesson plans and Powerpoints) are provided so teachers don’t need to create their own (less workload), though many choose to do so as they become familiar with the lessons’ structure.
  • Teachers are trained to use the lessons effectively, including demonstration lessons taught in new schools (Black). The CPD is therefore embedded in the school as is increasingly recommended.

Cognitive Acceleration is one of several well-researched cognitive development programmes, with Philosophy for Children, Feuerstein’s Instrumental Enrichment, Alexander’s and Mercer’s Dialogic Teaching; but it is the only programme with suites of fully-trialled lessons focussed on the cognitive skills required for individual subjects. I’ve put a sample lesson at the end of this blog for you to try and there are some more at .

This approach may fit with Ofsted’s imminent review of teaching and learning. They will shortly publish a major review in which they will try to persuade schools to reduce routine assessment and focus on more effective teaching – In a fascinating Twitter exchange on 26th – 28th March between Sean Harford, Ofsted’s National Director for Education, and Professor Becky Allen of the IoE, Harford wrote “Sounds like it could be a misinterpretation of the word ‘track’. ‘Track’ doesn’t necessarily mean ‘use data’.” @HarfordSean This tweet has already been liked by 70 people. No wonder.

But if schools don’t need to use data to track progress, they will need to do it some other way. Understanding each student’s individual cognitive needs and responding to them by direct personal spoken feedback looks a good way.

Here is the sample lesson and there are others at

And here are details of our next introductory course.

Leave a Reply

Your email address will not be published. Required fields are marked *