FROM a legal perspective, there is only one firm foundation for many religious institutions — and certainly for church schools: a trust deed that transfers a site to be held by the trustees, and also prescribes the purposes and management both of the trust and of the school. Until recent years, almost all Church of England schools were underpinned by just such trust deeds.
The trust deed is crucial in prescribing three basic requirements for a C of E school: its fundamentally local purpose — in the first instance, for the children (especially the children of the poor) from a named parish; the requirement for C of E acts of worship and religious education; and a requirement for church involvement in the governance of both the trust and the school.
While the details of all three have been modified by successive Education Acts and by statutory codes such as the Admissions Code, the requirement for them in some form cannot be removed without a change to the trust deed, which can be achieved (short of major legislation on the part of a determined government with a sufficient majority) only by a Charity Commission Scheme made at the request of the trustees themselves, with the agreement of the relevant diocesan board of education, and often (but not always) of the National Society on behalf of the Church nationally.
The security provided by a trust deed contrasts with the insecurity of a basis in legislation, or in agreements with any particular government in power, or in reliance on government policies from time to time, or in the consequent documentation (school Instruments of Government, Academy Company Articles and Funding Agreements, or national Memoranda of Understanding, for example), all of which can be changed or repudiated even by successive ministers, let alone successive governments.
They are all shifting sands, offering no fundamental security whatever.
Yet the trend in recent years has been increasingly towards reliance on statute, agreements, and policies, and away from ensuring that a trust deed is in place.
Free schools (the only kind of new school now normally possible) do not have trustees and trust deeds. The site is merely leased by the Government or the local authority directly to the academy trust. So, as things stand, no new church school will ever have the protection of a trust deed. The Church merely manages the academy under contract to the Secretary of State, and that contract is not permanent.
Under the legislation originally drafted as part of the Schools Bill, and now incorporated (by agreement with the National Society) into the Levelling Up Act, no extensions to academy sites will be transferred to the trustees, and the provisions for the transfer of replacement sites provide for them to be on a narrower trust than the original trust deeds, despite requirements otherwise in the Schools Sites Acts and all historic legislation. This is contrary to the public assurances given by the Department for Education in papers issued in preparation for the ill-fated Schools Bill (News, 10 February), and will result in a weakening of the foundation.
Those same papers (which, we presume, still represent government policy) also appear to offer a way for trustees in receipt of such replacement sites for academies to decline to hand over the proceeds of the sale of their old site, and retain them instead for other charitable purposes. More weakening.
The 2022 Education White Paper (News, 27 May 2022) continued a policy emphasis on multi-academy trusts, and a lack of concern for real parental and local community involvement in schools which is absolutely contrary to the “local” character of church schools. With the continued weakening of real local-authority influence on schools and the centralisation of many functions (such as major capital works) in the DfE and its agencies, schools (and especially academies) are becoming nationalised institutions, with delivery controlled by ever more detailed contracts. This applies to church schools as much as others.
A new national Memorandum of Agreement between the Secretary of State and the National Society is — we believe — imminent, as is a revised model for church-academy articles. What impact will they have on the continuation of a firm foundation?
We cannot assume that a change of government might improve any of this. Present Labour policy (which could, of course, change in the lead-up to a General Election) would suggest that all academies would have to have a closer relationship with local authorities, particularly in relation to admissions, and there would be no forced conversions.
The detail of this, if it happens, will need very close attention from the Church. Pressure continues for the effective removal of religion from school life, and could result in serious breaches of the requirements of trust deeds in this respect. This could lead, under either Party (or a coalition), to legislation fundamentally changing the powers and freedoms currently enjoyed by church schools.
What is the Church of England doing about all of this? We read much about the “superstructure” of what it means to be a church school (and very welcome and important that is), but what care is being taken of the foundations?
Howard Dellar is senior partner and head of the ecclesiastical and education department at Lee Bolton Monier-Williams.