‘Why do we legislate? – Because we can’: why is England number one for law-based reform?

Dan Gibton

The quote in the headline, from a senior MP, illuminates a unique quality of England’s education policy and reform: legislation. Putting it in first place worldwide, in a class of its own, England ratifies a comprehensive education act once every two-and-a-half years. Most of these bills deal exclusively with education reform, governance, and regulation; some also involve other areas, such as child welfare.

By way of comparison, in the US, for example, such whole system legislation, whether at state or federal level, is enacted about every decade.

My new study, based on more than 100 interviews with senior policy makers (MPs, DFE officials), implementers (Directors of Childrens’ Services, heads of NGOs and school networks) and recipients (“superheads”) of legislation (2000-11), attempts to uncover the intricacies of this phenomenon. Such a focus can scaffold and underpin the critical sociology of education policy and helps us understand the findings on the commodification and corporatism of education.

England’s legislation for regulating the education system has two layers of subtext. The first layer hides a contradiction between two viewpoints, held simultaneously by policy-makers. One viewpoint is a free market position suggesting that regulation and legislation are policy tools for emancipating a system that is over-regulated (largely by local authorities). It seeks to replace local democratic legitimacy with bureaucratic legitimacy and market forces. The democratically elected local authorities – blamed by interviewees for a large proportion of England’s problems in education, and often described as outdated and over-politicised – are replaced by business-oriented organisations that have no commitment to a community. The other viewpoint sees regulation as necessary to rein in market forces in order to provide advantages for students from deprived backgrounds. Here, legislation is a balancing mechanism that weakens quasi-privatization efforts within public education. The results of legislation in this regard are, however, contested at best.  The interviewees in this study were quite uniform in their opinion that the mass of legislation has not served equity – claiming that, in practice, much of it is ignored by schools and heads, or is impossible to implement. According to interviewees, admissions codes, for instance, have failed to prevent segregation in the school system and continue to allow advantages for more affluent parents.  They also suggest that, despite its frequency and scope, legislation has not prevented the commodification of education.

The second layer of subtext attributes a linear quality to legislation — the expectation that the arrangements envisaged by lawmakers will crystalise as is and that controlling certain denominators through legislation is possible without affecting others. The combination of the two contradicting forces in the first layer and the illusion of linear control produces a system dominated by haphazard processes, the opposite of what could be foretold by so much legislation. This is not just a scholarly issue – it is an issue of fairness and provision of a basic public and private positional good. As a senior policymaker said: “Honestly in five years time I’m not sure there will be anyone responsible to find each child a place in a school.”

Dan Gibton is Senior Lecturer on Education, Administration, Policy, and Law at Tel-Aviv University, and was until recently visiting fellow at the IOE


  Legislation   Main contents/policy
1988 Education Reform Act Established grant maintained schools, parental choice, the National Curriculum.
Education (Schools) Act 1992 Established OFSTED in practice – by defining HMCI’s authority and responsibilities; further powers and arrangements for grant maintained   schools.
1993 Education Act OFSTED powers of special measures etc; setting funding authorities.
1996 Education Act Key Stages 1-4 and standardised assessment of achievement in schools ages 5-16.
1998 Standards & Frameworks Act (and Circular 10/99 “Social Inclusion – Pupil Support”). Increased OFSTED’s powers; admissions appeal procedures; policy regarding permanent exclusions; establishing school governing bodies and Education Action Zones.
Learning and Skills Act 2000 Established city academies as a version of city technology colleges.   Inspections and teaching in post-16, and Learning and Skills councils for further education.
Education Act 2002 Defined the powers and structure of city academies; redefined powers of school governing bodies; allowed federations of schools.
Children Act 2004 Consolidated child services under local authorities, creating a ‘one stop shop’ in schools; placed these services under OFSTED inspection; later strengthened by the Education and Inspections Act 2006.
Education Act 2005 Important additions to the powers of OFSTED, HMCI, HMIs regarding the nature of school and local authority   inspections and schools causing concern (placement under special measures); re-named the Teacher Training Agency as the Training and Development Agency, and strengthened its independence as a quango.
Childcare Act 2006 Implemented and broadened ‘every child matters’ policy to early years education; created arrangements for childcare of working parents.
Education and Inspections Act 2006 Balanced powers of academies and local authorities; began the inspections policy of charter-type schools (academies and trust schools); strengthened the   admissions code; formalised OFSTED’s statutory status on top of that granted in 1992-3 to HMCI.
Education and Skills Act 2008 Set out local authority role on attendance and standards, SEN and   transport; parental contracts; adult and further education; raised the education and training participation age to 18.
Apprenticeships, Skills, Children and   Learning Act 2009 Established OFQUAL; established the post and appointed the Chief Executive of Skills Funding; established the Young People’s Learning Agency For England.
Academies Act 2010 Further spread of academies; established free schools; freed academies of training, curricular and admissions requirements.
Education Act 2011 Further autonomy for schools, heads, and teachers; powers of discipline on pupils; introduced the EBacc; weakened the powers of the admissions code.
Children and Families Bill 2013 Redefined the powers and responsibilities of local authorities in relation to looked-after and SEN children; redefined the powers of the Children’s Commissioner.
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