Question: Is the memorandum of understanding between the Department for Education and the Church of England/Catholic Church a legally binding document? Can church schools become stand-alone academies or do they have to become part of a diocesan-led trust?
Victoria says: In order to answer the above, we need to look first at how a church school can become an academy and what influence the relevant diocese has over this process.
How can a church school become an academy?
For any maintained school to become an academy, they must first be issued with an ‘academy order’, which is the Secretary of State’s formal permission for the conversion to take place. There are two ways that an academy order can be obtained:
- The governing body of a school can apply to the Secretary of State for an academy order to be made – these are normally known as ‘converter academies’; or
- A school is ‘eligible for intervention’ (e.g. the school has been deemed by Ofsted to require significant improvement or special measures, or has been deemed to be ‘coasting’) and the Secretary of States makes an academy order in respect of that school – these are normally known as ‘sponsored academies’.
What influence does a school’s diocese have over the conversion process?
For converter academies, the governing body of a church school can only make an application for an academy order if they have the consent of the trustees of the school and the person(s) by whom the foundation governors are appointed. A church school will need to look at its trust deed and instrument of government to confirm who the trustees and appointees of foundation governors are. In many cases, this will be the Diocesan Board of Finance (DBF) and the Diocesan Board of Education (DBE) respectively of the diocese in which the school is situated. For Catholic schools, it is the relevant Bishop or Archbishop which appoints foundation governors.
The usual procedure is for the governing body to pass a resolution to apply to convert to academy status and then to submit an application to the diocese to obtain their consent. Significantly, there is absolutely no obligation on the diocese to consent to the school’s application and the diocese can impose whatever conditions they wish on the consent granted. For example, some dioceses will give consent only if the proposed governance structure of the academy trust meets the diocese’s requirements, or the school agrees to pay the diocese’s legal costs arising from the conversion.
For sponsored academies, the Secretary of State must consult the trustees of the school, the person(s) by whom the foundation governors are appointed and the relevant diocese, about who the sponsor of the school should be.
In addition, for both converter and sponsored academies, the DBF will often be the owner of at least some of the church land. This is normally licenced to the academy trust through the ‘Church Supplemental Agreement’. If the DBF refuses to sign the Church Supplemental Agreement, then the academy trust will have no right to occupy and use the church-owned school property.
Is the memorandum of understanding between the DfE and the Church of England/Catholic Church a legally binding document?
In April 2016, the Department for Education (DfE) published two memoranda of understanding: one with the National Society, for Church of England schools and one with the Catholic Education Service and Catholic dioceses in relation to Catholic schools. These memoranda set out the “key principles to inform the working arrangements” between the DfE and the relevant body. Like any memorandum of understanding, the provisions are not legally binding on the other party but the parties would anticipate that the agreed terms will be honoured.
Can church schools become stand-alone academies or do they have to become part of a diocesan-led trust?
For converter academies, the relevant diocese has the power to stipulate the conditions on which they will grant consent to the school’s conversion. It may be that the diocese will only grant consent if the church school is proposing to join a diocesan-led multi academy trust. As set out above, it is entirely at the diocese’s discretion and different diocesan bodies have different stipulations.
For Church of England sponsored academies, the memorandum states that the Secretary of State and the National Society both expect a diocesan or strong church school-led academy trust will be the sponsor for any church academy. For Catholic sponsored academies, the presumption will be that the diocese’s preferred sponsorship arrangements will be accepted.
Victoria Hatton is an associate specialising in education law at Browne Jacobson LLP. She is also chair of governors of a special school and a trustee of a cooperative trust.