| SPOTLIGHT |
The Department for Education has used its banning powers for the first time in a case arising out of the 'Trojan Horse' affair. Keri Tayler analyses the decision.
The 2014 controversy over the so-called Trojan Horse affair in Birmingham, where allegations were made by way of an anonymous letter that there was an Islamist plot to influence education in several Birmingham schools, rumbles on.
The Department for Education commissioned a report which, although it concluded that there was no evidence of radicalisation or violent extremism, recommended that the DfE should consider whether there was a case for preventing certain individuals from being involved in the management of schools.
The DfE has this week announced that it has, for the first time, used its powers under the Education and Skills Act 2008 (“the Act”) to ban a governor of several of the schools investigated from being involved in the running of any independent schools. Tahir Alam has denied the allegations made against him and says he intends to appeal the decision.
Section 128 of the Act grants to the DfE the power to direct that a person may not, or have limited opportunity to, take part in the management of an independent education institution (which for these purposes includes free schools and academies) if the criteria set out in prescribed grounds contained in the Independent Educational Provision in England (Prohibition on Participation in Management) Regulations 2014/1977 (“the Regulations”) are made out. These include certain criminal convictions and, pertinent to Mr Alam’s situation, “relevant conduct” which is defined in Reg 2(5) as follows:
5) For the purposes of paragraph (1), conduct will be relevant if it is conduct which —
(a) is aimed at undermining the fundamental British values of democracy, the rule of law, individual liberty, and mutual respect and tolerance of those with different faiths and beliefs;
(b) has been found to be in breach of professional standards by a professional body; or
(c) is so inappropriate that, in the opinion of the appropriate authority, it makes a person unsuitable to take part in the management of an independent school.
Apart from (b), which is reasonably straightforward, the criteria in (a) and (c) do not appear to be without some difficulty. The fact that (c) requires a certain degree of conduct, and is an alternative to (a) would suggest that any conduct which falls foul of (a), however minor, could lead to a ban. On the other hand although (c) does require a certain degree of conduct, it does not limit itself to conduct which might have any effect on the proper running of a school. Would a person involved in running a school who expressed support for the abolition of the right to trial by jury in the case of (a), or regularly but privately and without drawing attention to it attended at events for sexual purposes in the case of (c) be at risk of such a ban?
The Regulations also set out the procedure to be followed prior to the making of a ban, and any subsequent appeal. This includes the right to be given notice of the proposal to make a ban, and to make representations against its making.
An appeal against the making of a ban is to the First Tier Tribunal (“FTT”), but quite how well it is prepared for such cases is yet to be seen. Its own website makes no reference to such cases, or provide a category of case into which it could readily fall, and in the absence of such, one must wonder what training has been provided to enable Tribunal members safely to pass judgment on whether a ban was “appropriate” - the test which it must apply and a term which suggests the requirement for some sort of review whilst at the same time, by virtue of it being an appeal, conducting a full re-hearing. Reg 7(3) provides that unless the parties otherwise agree, the Tribunal must not take into account information which has become available since the date of the decision, or any material change in circumstances since the date of the decision. This limit to the Tribunal’s powers further enforces the view that what it is being charged with is a review, in spite of the description of the process in the Regulations and the fact that the FTT is normally engaged in straightforward re-hearings.
In seeking this power to remove persons from being governors, the Secretary of State was no doubt aiming for a process that would be reasonably certain, capable of being dealt with largely administratively, whilst granting a straightforward means of appeal. Unfortunately, the drafting of the Regulations appears to have achieved anything but.
That the Upper Tribunal might, therefore, be seized of an appeal in fairly short order seems inevitable.
Keri Tayler recently joined 42 Bedford Row, after 13 years spent at Hampshire County Council advising on all aspects of local government law. She can be contacted on 020 7831 0222 or This email address is being protected from spambots. You need JavaScript enabled to view it..
