Educating Citizens: International Perspectives on Civic Values and School Choice

Chapter 4. Regulation, Choice, and Basic Values in Education in England and Wales: A Legal Perspective

The political, economic, and philosophical underpinnings of the development of school choice in England and Wales have been well covered by scholars.1 Less attention, however, has been paid to the role of law. The educational policy literature understandably adopts a broad-brush approach to the legal dimension of policy implementation—not least because the increasing volume and complexity of the law make any other approach appear impractical. This is doubly problematic because of the importance of the role of law in shaping not only the educational system itself but also the relationships among the various interested individuals and institutions. The framework of rights that is developing around these relationships has increased the importance of paying close attention to the legal dimension. The 1998 Human Rights Act, which came into full operation in England and Wales in October 2000, incorporates into national law the key articles of the European Convention on Human Rights and Fundamental Freedoms (referred to in this chapter as the European Convention on Human Rights). Particularly relevant are those providing for respect for private and family life, freedom of religion, nondiscrimination in relation to the rights and freedoms protected by the convention, and the right to an education respectful of parents ’ religious and philosophical convictions.2 So far as possible, the courts must construe U.K. legislation in a way that is compatible with the rights guaranteed in the convention and may strike down secondary legislation that 91 Regulation, Choice, and Basic Values in Education in England and Wales: A Legal Perspective neville harris 4 04 9516-5 ch04.qxd 8/25/2004 9:38 AM Page 91 92 neville harris is incompatible with the convention or issue a declaration of incompatibility to the government regarding acts of Parliament. Public authorities (a term that includes the courts for the purposes of this duty) must act in a way that is compatible with convention rights. 3 The rights framework is now particularly pertinent to any evaluation of the place of choice or civic values in the educational context, in addition to being relevant to wider social and political participation.4 Education is one of the most heavily regulated public sectors in the United Kingdom, irrespective of recent efforts by the government to reduce red tape and bureaucracy in the school system and to deregulate certain areas.5 It is perhaps ironic that the freeing up of state schools to form companies under the 2002 Education Act is being accomplished through a detailed set of new regulations!6 Regulation was used during the 1980s and 1990s to reconstitute the power relationships within the education system, adopt elements of market choice and competition, and transform the institutional framework. While elements of institutional autonomy considered necessary for choice and competition to flourish were introduced, central regulation enabled the government to exert considerable control over the flow of resources and to ensure the implementation of policy goals. Key landmarks included the 1980 Education Act, which introduced a presumption in favor of parental preference regarding school choice and requirements for publishing school information (including examination results); and the 1988 Education Reform Act, which provided for a national curriculum and pupil testing , leading in turn to the compilation and required publication of further school performance information. Delegation of budgets to individual schools, with funding allocations linked to pupil recruitment, was also introduced , and capping the number of pupils at a level below school capacity was banned. With the enactment of the 2002 Education Act, legal regulation of the English and Welsh education systems reached an important stage.7 It followed more than two decades of increasing centralization of power under a succession of legislative measures covering the organization and content of state education—a process that the election of the Labour government in 1997, after eighteen years of Conservative administrations, failed to halt despite changes in policy emphasis. The 2002 act provides for the selective relinquishment of central power in key areas. In particular, markedly successful state schools are now able to “earn” autonomy and freedom in relation to teaching the statutory national curriculum, and legislative barriers to collaboration between schools have been eased so that two or more schools can develop joint working arrangements and delegate certain decisions to joint 04 9516-5 ch04.qxd 8/25/2004 9:38 AM Page 92 regulation, choice, and basic values in education 93 committees, without becoming fully federated under a single governing body...