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We are still in the early days, so it's hard to tell quite how violently the Prime Minister's conviction has been rocked by the Election, or how her outlook will change without the firm grip on the policy tiller previously applied by Fiona Hill and Nick Timothy.  Right now, she looks and sounds like a bruised figure struggling beneath the weight of disappointment, and only just about managing to fend off angry colleagues and revitalised opponents.

What, then, should we expect from the Government on Schools?  To recap, last Autumn saw the publication of the green paper Schools that work for Everyone, consultation on which closed in December.  Among the proposals was a range of measures aimed at independent schools and intended to ensure that such schools did "more to increase the number of good and outstanding school places in the state system and to give more ordinary students access to the education they deliver".  The emphasis was on sponsoring academies and offering fully-funded bursaries.  The green paper recognised the range of schools within the independent sector and the differences in capacity that it spanned.  But it overlooked the logical dissonance inherent in the view that a social mobility objective could be addressed by threatening the charitable status of those independent schools that enjoyed it.  The paper proposed new benchmarks, and threatened legislation to remove "the benefits associated with charitable status" should schools (presumably only charitable schools) fail to meet them.

These proposals sat alongside a number of others in the green paper.  The plan to remove the prohibition on new grammar schools drew particular attention from both the media and the opposition (such as it was at the time).

The publication of the green paper galvanised the Independent Schools Council and its member associations into swift action – and in particular dialogue with the Department for Education.  By the spring of this year, the ISC and AGBIS were able to promote to their Schools a draft Agreement designed to stave off the threat of legislation.  This was, in our view, a genuine (if misconceived) threat, with rules to erode or remove the tax breaks associated with charitable status most obviously in the Government's cross-hairs.

Before the proposed Agreement could be settled, Theresa May called the snap election.  Manifestoes were drawn up and the rest, as they say… 

… So we will never know what Ms Hill and Mr Timothy made of the Agreement, if they saw it, or how they would have responded to it. What we do know is that the Tories' Manifesto reasserted their commitment to the expansion of grammar schools, as well as their proposals relating to Universities and faith schools.  In relation to independent schools, they intended to "work with the Independent Schools Council to ensure at least 100 leading independent schools become involved in academy sponsorship or the founding of free schools in the state system…" and would keep open "…the option of changing the tax status of independent schools if progress is not made".  So, as we have noted before, an indication of co-operation, a benchmark and a threat – this time specifically directed at the tax rules.

Prior to the election, this seemed a little like an iron fist in a velvet glove.  What do we make of it now? 

One rather odd outcome is that the Government effectively has a mandate to discard much of its manifesto.  More seriously, it is clear that any of its more controversial proposals will be firmly binned, so as not to risk a defeat in the Commons.  So, grammar school expansion is already out.  Our sense is that the proposals relating to independent schools will survive.  Politically, at least in the Commons, they are uncontroversial.  And although it seems clear that Hill and Timothy were key proponents of many of the features of the green paper, the underlying social policy objective is evidently close to the Prime Minister's heart.  But the early signs – post-election – may be promising: on Tuesday 27 June Justine Greening gave a written answer to a question about the fate of the green paper proposals for independent schools, in which she said:-

The Government has welcomed the way that our independent schools have actively considered and proposed what more they could do to raise attainment in state schools, in recognition of their responsibility to their own local communities. Over this Parliament, we intend to build on the positive and constructive conversations we have had with the sector to agree how they could do more to improve attainment for children from all backgrounds, and increase the number of good school places.

So we will see.

If you require further information on anything covered in this briefing please contact Sam MacDonald([email protected]) or your usual contact at the firm on 020 3375 7000. Further information can be found on the Schools page of our website.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, July 2017

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