Draft non-statutory guidance on Section 128 of the Education and Skills Act 2008

ASCL response to the consultation on draft non-statutory guidance on Section 128 of the Education and Skills Act 2008.
What is this consultation about? 
Section 128 provides the Secretary of State with the power to issue a direction prohibiting an unsuitable individual from participating in the management of an independent school. The Independent Educational Provision in England (Prohibition on Participation in Management) Regulations 20142 (the “2014 Regulations”) are made (principally) under section 128 and section 129 of the 2008 Act, and these prescribe the grounds and procedure for giving a section 128 direction, as well as the grounds upon which a direction can be revoked, varied or appealed.

Independent schools include academies and free schools and a direction under section 128 also has the effect of disqualifying a person from being a governor of a maintained school.

The department is proposing to introduce non-statutory guidance setting out the types of conduct which might indicate that an individual is unsuitable and the factors which the Secretary of State will take into account when considering whether to issue a Section 128 direction.

This consultation refers specifically to the draft non-statutory guidance, rather than the legislation that provides for Section 128 directions.

How did we respond? 
There are several areas of the draft guidance that we feel needs to be improved.  These mainly relate to the examples of misconduct listed, which include things like ‘dishonest behaviour’ which are too broad and appear without context.

The guidance would also benefit from better signposting to the appeals process and to further information.

Finally, we believe that the Secretary of State should consider any new evidence presented during the appeals process.

Why have we taken this view? 
Although the guidance is non-statutory, there are several areas that need to be improved before we would be content with it being published.   These could result in unfair treatment of individuals, including trust leaders, Executive Headteachers and others.  The examples listed are too broad and as such could be taken out of context with individuals being subject to section 128 directions unnecessarily and inappropriately.

Full response to consultation