“Shoulda woulda coulda,” sang Beverley Knight, “can’t change your mind”. Someone might want to pass Beverley’s words of wisdom on to the DfE. ‘Should’, it seems, is their favourite word.
It plays a starring role in new draft guidance on children questioning their gender. In this short document, the word ‘should’ appears no fewer than 72 times. Parents ‘should not’ be excluded from decisions relating to requests for a child to socially transition. Primary children ‘should not’ have different pronouns used about them. Schools and colleges ‘should’ seek to understand the factors that may have influenced a child’s desire to transition. They ‘should not’ allow a child to share a room with a child of the opposite sex.
This is not a comment on the guidance itself; rather a somewhat exasperated observation on what ASCL has taken to calling ‘government by expectation’. This phenomenon took hold during the pandemic and evidently refuses to let go.
The wonderfully named ‘Parliamentary Joint Committee on Statutory Instruments’ highlighted this tendency in a 2021 report on regulations during Covid lockdowns. The committee noted that “a clear distinction [must be] made between non-statutory guidance and requirements imposed by law. Whereas non-statutory guidance may influence, the law requires compliance … Where control is thought necessary, it must be achieved through legislation and not be brought through the back door.”
In other words, when a government is asking institutions or individuals to take particular actions, it’s essential for it to make clear whether this is something they are legally required to do, or something ministers would quite like them to do (but have no powers to enforce).
In my view, there are two main reasons for this shift towards non-statutory guidance over legislation – for the creep of the ‘should’.
It’s an attempt to exert control by the back door
The first is our position in the electoral cycle. New legislation takes time and effort to draft and to shepherd through parliament. And it’s not guaranteed to succeed.
Take the 2022 schools bill. This was, to be fair to the government, an attempt to bring in new legislation to drive changes they wanted to make. But it was so poorly drafted it ended up having to be withdrawn. This made it much more difficult for ministers to introduce policies which would require changes to the law – hence the temptation to attempt to exert control by ‘the back door’ of non-statutory guidance, as the committee so tartly puts it.
The second reason that ‘government by expectation’ is so attractive to ministers is more pernicious. It enables them to shift the responsibility for difficult or contentious decisions away from themselves and onto those who have to implement them.
Want schools to stay open for longer but can’t quite face the work involved in amending the relevant legislation? Simple! Put out some non-statutory guidance saying that you now ‘expect’ schools to have at least a 32.5 hour week. (And for good measure include a confusingly worded threat that Ofsted will be checking.)
Want children who are struggling in English or maths to receive extra support, but not prepared to give schools any more money to provide it? Easy! Just introduce a ‘Parent Pledge’ which promises additional support, and leave schools to deal with angry parents when they’re not able to access it.
Want schools and colleges to turn back the tide on accommodations they’ve made for trans or gender-questioning pupils, but don’t want to open the can of worms of amending the equality act? No problem. Put out some non-statutory guidance telling schools what you’d like them to do, pepper it with ‘shoulds’ and hope no one remembers Schools Week’s scoop that the government’s own lawyers warned following the guidance would leave schools open to a “high risk of successful legal challenge”. Bingo.
I get it. Governing is hard, and time is running out before the general election. But governing is also – or should be – about making the tough decisions, putting in the legwork to ensure those decisions are legally sound, and taking the rap if that turns out not to be the case.
Amid unsustainable workloads and increased parental complaints, schools desperately need a government that’s willing and able to do that.
Great article. Much of the recent ‘guidance’ ‘review’ ‘consultation’ has been so slow – maybe another example of ‘creep’ and this leaves schools in the land of limbo. In recent months our partner schools have increasingly been asking for advice on many areas where there’s no clarity. ‘What do we do about students we have already supported around gender identity?’ ‘Can parents withdraw students from all things PSHE?’ ‘Should we avoid delivering any content on LGBTQ?’ ‘Is there an age limit to when we teach about pornography?’ ‘Will we encounter inspection problems if we don’t cover everything in RSHE?’ It seems that an already challenging but very important curriculum area is being made ever more confusing. Of course, while all of this indecision rumbles on the losers are students who want more of the ‘life skills’ that will compliment and enhance their academic learning.