One of Michael Gove’s first decisions as education secretary was to abolish the General Teaching Council for England (GTCE) in 2010.
He was “deeply sceptical” of the body, which was responsible for maintaining a register of teachers and investigating alleged cases of misconduct, claiming that it did “little to raise the teaching standards of professionalism”.
It was mostly unloved by teachers, too. But the system set up by Gove to replace it, overseen by the National College for Teaching and Leadership (NCTL), placed the responsibility of regulating who could work as a teacher into the hands of politicians.
Discontent has grown ever since over the NCTL’s ability to fairly oversee teachers.
It came to a head last week when the high-profile misconduct cases against five teachers caught up in the Trojan Horse affair were sensationally dropped after an “abuse of justice”.
Now Schools Week has spoken to many of the lawyers and teachers involved to ask whether the NCTL is still fit for purpose.
Placing power in the hands of politicians
When Adam Walker, a teacher and a BNP activist, described immigrants as “savage animals” and “filth” on a political forum using a school laptop, he was hauled before a GTCE disciplinary panel accused of racial intolerance.
Although the panel stated it was “troubled” by Walker’s posts, they believed his “intemperate” views did not suggest intolerance.
The verdict was delivered in May 2010 – the same month Michael Gove was appointed education secretary.
Gove, as shadow education secretary, was already unhappy that the quango set up by Labour in 2000 was too lenient on teacher misconduct – a sentiment echoed by many in the profession.
In one of his first acts as education secretary, he highlighted the Walker case as the exact reason he was going to abolish it.
The abolition of the GTCE represented an attack on the idea of teachers in England as professionals
Teachers paid £37 per year to be registered with the body, which in turn regulated them all, in a manner similar to the system still used in Scotland, and by other professional bodies like doctors.
The GTCE was led by a council made up of 64 members, the majority of whom were registered teachers.
But Gove claimed the government didn’t need to “police the profession”, and wanted to “trust professionals – not busybody and patronise them”. However, where professionals do “dishonour the vocation of teaching, action needs to be taken”, he added.
Under the Education Act 2011, Gove – as secretary of state for education – was handed the power to ban any teacher from the classroom.
A new system was put in place to exercise this power: conduct panels of three independent people would oversee a trial to hear evidence against those accused of misconduct. That’s now overseen by the NCTL, an executive agency of the Department for Education.
But the panel can only make two recommendations to the secretary of state: either ban the teacher, or do nothing.
The education secretary is also free to totally disregard the panel’s recommendation without ever having taken part in the trial.
Andrew Faux, a barrister who has represented teachers in hearings under both systems, told Schools Week that the abolition of the GTCE “represented an attack on the idea of teachers in England as professionals”.
Faux, who worked at the GTCE until 2010, added: “The way the profession was regulated was fair; [but] now that is questionable. The GTCE may not be mourned, but its register of teachers and the standards of fairness it brought to its regulatory decision-making should be.”
Are teachers treated fairly?
It’s not just Faux who feels that fairness has been eroded. Schools Week spoke to several banned teachers who, maybe unsurprisingly, felt they were unfairly treated.
One of the main concerns seemed to be what they viewed as a lack of independence from political inference.
For instance, several outstanding headteachers dubbed “superheads” by politicians and the media feel that their public profile played a part in the outcomes of their misconduct hearings.
The political element resurfaced again last week when misconduct cases against five senior leaders accused of allowing undue Islamist influence in Birmingham schools were dropped.
The cases were thrown out after the NCTL failed to fully disclose witness statements its case was based on. The omission was described by the panel as an “abuse of justice”.
Lee Donaghy, a former assistant principal at one of the schools caught up in the Trojan Horse affair, said the case shows “teachers cannot trust the NTCL to treat them fairly”.
Teachers cannot trust the NTCL to treat them fairly
He said the move was driven by a “desperation” to secure judgments against the teachers, “fuelled by the DfE’s over-zealous reaction” to Trojan Horse, an alleged plot by Muslim hardliners to takeover state schools in Birmingham.
“If the NCTL can act with such dishonesty against my ex-colleagues, what gives any teacher confidence they won’t behave in a similar way if it were them in the dock, with their career at stake?” he asked.
It was stated during the Trojan Horse hearings by government lawyers that the DfE had tried to build a “structural divide” between itself and the NCTL to “assure the judicial independence of panels”.
But the NCTL is an executive agency of the DfE – meaning, as the panel said, it “sits within” the department.
NCTL misconduct hearings are even held in the DfE’s buildings in Coventry.
Katie Langdon, a barrister who represented one of the accused in the Trojan Horse cases, insisted that a misconduct panel not only has to be independent, but also “feel and appear independent”.
She added there was “arguably a risk” a teacher appearing before the regulator “may not perceive the independence so readily” given the location.
The panel, during its ruling last Tuesday, even felt the need to state it had “categorically” approached its task with “complete impartiality and independence” following a “suggestion” that the NCTL had been put under political and media pressure to pursue the cases.
Decisions overturned in high court
The collapse of the Trojan Horse senior leader cases isn’t the only recent public embarrassment for the NCTL.
In October last year, the High Court threw out lifetime bans already handed to two others teachers caught up in the Trojan Horse affair.
High Court judge Stephen Phillips overturned prohibition orders against Inamulhaq Anwar and Akeel Ahmed pointing to “serious procedural impropriety”, because the NCTL hadn’t disclosed evidence it used as part of its prosecution.
In January, the High Court also overturned a ban given to Greg Wallace, the executive headteacher of the Best Start Federation in Hackney.
The NCTL misconduct panel, which heard Wallace’s case last year, had ruled he shouldn’t be banned, stating there was “exceptionally strong public interest” in him continuing in the profession as an “inspirational example”.
Wallace, who was previously praised as a “magnificent” headteacher by Gove, was sacked in 2014 after awarding contracts worth more than £1 million, without approval, to a company owned by his partner.
But a senior civil servant acting on behalf of the then-secretary of state Nicky Morgan did not accept the panel’s ruling – and instead banned Wallace for a minimum of two years.
However, Mr Justice Holgate ruled that the ban on Wallace, handed down so he could reflect on his actions, had been pointless, as the panel had already said he showed “great insight” into his wrongdoing.
Schools Week asked the NCTL under Freedom of Information laws how many times the secretary of state had declined to adopt a panel recommendation since 2013.
It refused to release the information, claiming it was already available in the public domain. This information could only be retrieved by trawling through the scores of individual decisions published online each year.
The refusal to release overall figures suggests the NCTL doesn’t collate them and is not tracking how often decisions are overturned.
The body’s own annual accounts for last year state there is a “risk of challenge to the overall process of teacher regulation and the agency’s ability to make decisions on behalf of the secretary of state” in the case of a successful legal challenge.
While the NCTL stated last year that it had “managed this risk whilst dealing with increasingly complicated cases”, this could now be called into question.
There are also growing concerns over procedural problems with the system, which have been fully exposed by the Trojan Horse cases.
Although this has been deemed one of the most complex cases the NCTL has ever dealt with, the body has been criticised for not even being able to formulate clear allegations against the teachers.
The misconduct panel, while throwing out the cases last week, described the NCTL’s “broad-brush approach” to formulating allegations as “far from ideal”.
The length of trial against the five senior leaders – discontinued after more than 20 months – has also been heavily criticised.
Langdon, the barrister representing executive headteacher Lindsey Clark, one of the five senior leaders, said had the NCTL taken a more “measured and practical approach” the trial could have been heard in seven weeks.
“This time has had an adverse impact on all teachers involved,” she added.
A spokesperson for Clark, who has retired, said she is “utterly spent – both emotionally and psychologically”.
“The fact that the proceedings are now discontinued will not relieve the pain or remove the stain on an otherwise unsullied, indeed exceptional career.”
Another of the five defendants, Monzoor Hussain, told Schools Week: “It’s been hell. I’m the bread winner in my family, and suddenly I can’t teach for years.”
Hussain, who said he had no choice but to take state benefits while attending the trials, added: “I wanted to fight right to the end to show everyone our innocence, but having lived through this delay I just wanted to get it over.”
The NCTL aims to complete 70 per cent of teacher misconduct referrals that require a hearing within 12 months. But annual accounts show the agency missed its target last year, with just 59 per cent of cases concluded within a year.
The NCTL claims this was due to the complex Trojan Horse cases, and that targets were hit prior to August 2015.
Is the NCTL fit for purpose?
Schools Week understands the findings of an “ongoing review” of the NCTL, which had been due to published in April, have been delayed due to purdah rules around the general election.
But calls are now growing for teachers to take back control.
Micon Metcalfe, a school business manager, admitted the profession needs a regulatory body to uphold standards, but added: “I’m not sure the NCTL hits the mark though, and I believe teachers should own their standards and not let the government impose them.”
Faux, writing for this week’s edition, argues that the regulation system needs reform – including bringing back a register of teachers to avoid the panel facing “the stark binary choice” of either banning teachers, or taking no action.
The DfE said it trusts schools to tackle all competence and conduct related matters, taking any disciplinary action necessary.
The department said it would only become involved where the most serious misconduct is alleged.
How the case collapsed
When barrister Katie Langdon (pictured below right) queried a few of the witness statements submitted by the government as part of the prosecution against five senior school leaders in the Trojan Horse case, she was given a “torrid time” by the NCTL’S legal team.
Langdon was concerned to learn that NCTL’s lawyers had been given access to crucial witness transcripts from an earlier government inquiry led by counter-extremism chief Peter Clarke, but had failed to disclose this to the misconduct panel which was now considering whether the teachers were guilty of allowing undue Islamist influence at Birmingham schools.
The revelation, in November, came just one month before the misconduct panel had been due to deliver its verdicts following a trial that started over 18 months ago.
The prosecution claimed it was all down to a “misunderstanding” with the DfE – and it was expected to cause nothing more serious than a frustrating additional delay in the most complex case ever heard by the NCTL.
But Langdon, representing Lindsey Clark, the former executive headteacher of Park View Educational Trust, spotted something else: the statements contained chunks of text similar to transcripts from the Clarke inquiry.
Langdon raised this with the court in April and effectively suggested the NCTL’s lawyers had used the transcripts to develop the statements.
That was robustly shot down by the NCTL’s presenting officer Andrew Colman, who said that if Langdon had no further evidence “can we not just leave it at that?”
In the words of the misconduct panel, she endured a “torrid time” in court.
But her submission set off a chain of events that would eventually collapse the whole trial, with the panel discontinuing the cases last week.
Despite its earlier denial, the NCTL finally admitted in May – the second time the panel was due to publish its findings – that its solicitors had held the Clarke transcripts since 2014. That was before the teachers were even notified there would be a misconduct investigation.
Not only that, but the NCTL’s solicitors – which at the time were called Nabarros but have since merged to become CMS – said the Clarke transcripts were “utilised” when preparing witness statements for the trial.
Langdon told Schools Week the NCTL lawyers “cherry-picked” sections of the transcripts to include in witness statements.
“In so doing, neither I nor my client knew, for example, that one of the witnesses was actually saying, ‘this has nothing to do with Lindsey Clarke’.”
There have been serious failures with regard to disclosure, which are far-reaching and extend over the entire life of this case
Ongoing cases against other teachers could now be dropped. The legal costs of the failed trials are said to run into the hundreds of thousands of pounds.
It is a major embarrassment for the government, which was pursuing the cases following allegations first laid out in an anonymous letter of a plot by Muslim hardliners to take over several Birmingham schools.
While the Clarke inquiry found evidence of an “aggressive Islamist agenda”, a Birmingham City Council report later found no evidence of violent extremism or an anti-British agenda being promoted.
The NCTL had alleged the five senior leaders – Clark, Arshad Hussain, Hardeen Saini, Monzoor Hussain and Razwan Faraz – had allowed undue Islamist influence at Birmingham schools.
A review launched after the non-disclosure error emerged in November found the NCTL had failed to provide at least 1,600 pages of evidence.
Last month the NCTL attempted to delay proceedings for six weeks so it could explain the error. But the panel announced it would discontinue proceedings on Tuesday after the “deliberate decision” by government lawyers to withhold transcripts.
In a statement, the misconduct panel insisted that this represented an “extraordinarily serious error of judgement as opposed to bad faith”, but one that had only come to light “by chance”.
“There have been serious failures with regard to disclosure, which are far-reaching and extend over the entire life of this case,” it said.
The panel also decided there had been a “lack of candour and openness” from the NCTL and its solicitors over the failures, and too little cooperation in getting to the bottom of what happened.
An NCTL spokesperson said it was “carefully considering this latest panel hearing before deciding the next steps in this process”.
The so-called superheads burned by the NCTL
The Trojan Horse case isn’t the only time the NCTL’s heavy-handedness has been put under the microscope.
A pair of High Court rulings quashing bans very publicly handed out to two superheads both openly questioned whether they’d been treated too harshly due to the status awarded to them by politicians.
Jo Shuter was banned from teaching for life in 2014 for claiming “extensive” expenses for “personal gain” while head at the then ‘outstanding’-rated Quintin Kynaston School, in London.
Expense claims included £7,000 for her 50th birthday party, and £8,269 on a hotel stay for her leadership team.
An NCTL misconduct panel dished out the harshest possible sanction pointing to “strong public interest”. Shuter, a former headteacher of the year who had been awarded a CBE for her services to education, was punished due to her “high national profile as an influential figure”, it said.
She was also labelled as a superhead by the media, after being singled out for praise by former prime minister Tony Blair.
In its decision notice in 2014, the panel stated the “high profile increases the risk of public confidence in the profession being undermined”.
Shuter appealed, and the High Court agreed she shouldn’t have been banned for life.
Nicky Morgan, who had replaced Michael Gove just months earlier, agreed – and signed a consent order allowing the ban to be reviewed in two years.
She agreed that a lifetime ban was not a proportionate sanction given that “no dishonesty” had been found, rather than that on occasions she acted with a “misplaced sense of entitlement”.
However when the ban was set aside in November last year, no-one actually wrote a document, at least publicly, explaining why the NCTL had been wrong to issue a lifetime ban. Shuter’s name was just quietly wiped from the list of banned teachers.
Her original misconduct panel decision notice has also been taken down. Shuter told Schools Week that the only opportunity she had to give her side of the story was at the original NCTL hearing – over a year after she was first suspended.
But she said: “You [the public] can’t make a rational assessment of the case because the evidence doesn’t exist in the public domain.”
Shuter’s case has similarities with another superhead, Greg Wallace, once the executive headteacher of the Best Start Federation of schools in Hackney, who was praised as “magnificent” by Michael Gove.
The nature of headship has changed and now requires a thorough understanding of financial and HR management systems
He was banned from teaching for two years after he was caught awarding contracts totalling £1 million that hadn’t been approved by governors, to a company owned by a former partner.
Morgan used her powers to overrule the misconduct panel’s recommendation last year, that Wallace should avoid a ban because he was an “inspirational example” as an educator.
The civil servant acting on behalf of Morgan stated the panel had “not taken sufficient account of the public concern that would arise” if the case wasn’t treated with the “utmost seriousness”.
But the High Court threw out the ban on appeal in January.
Both rulings also raise the question of whether heads running more than one school are given enough support to understand the increased financial and leadership pressures.
Wallace’s misconduct panel stated that he had been under “an element of duress” including from “others outside the federation encouraging him to take on responsibility for more schools” to address poor achievement in the local area.
Shuter also previously said she told governors in 2001 before being appointed at Quintin Kynaston that “financial management was not my strength”.
“The nature of headship has changed and now requires a thorough understanding of financial and HR management systems.”
She added: “Nobody ever spelled out my financial responsibilities.”
Shuter told Schools Week that she still has a passion for teaching, but doesn’t know what to do with that as she had been “jaded by the whole process”.
A word from the editor…
Although this investigation might look like it was pulled together on the back of the Trojan Horse trial collapse last week, it has actually been months in the making.
Our reporter John Dickens first brought his concerns about the NCTL to me several months ago and has been conducting interviews and nerding up on the disciplinary hearing processes ever since. It was this preparation which meant he was able to write an in-depth piece of such quality this week.
One issue has plagued us over the past months though – and we don’t have an answer. So I thought I’d share what it is and where we got to with it.
Many of the people who go to disciplinary hearings become mini-celebrities within the education world. Once their alleged (or actual) misdemeanours are put out into the world, opinion toward them can plummet.
In the case of Jo Shuter, for example, many will baulk at the expenditure of taxpayers’ money on her birthday party. In the case of Greg Wallace, people have no time for his giving a contract to a partner. Both are fair reactions.
As a paper, we therefore knew there was a danger that if we highlighted injustices in the disciplinary system, we risked looking like we were on the side of discredited people. But we also knew that if we didn’t look at the issue we would do the reader a disservice. It helps no-one that Lindsey Clark cannot now clear her name. It helps no-one if we turn a blind eye to superhead bans being overturned in court.
Justice processes matter because any one of us can, at any time, find ourselves facing allegations. Any one of us could see the secretary of state overturn a decision that would transform our career because it suits their own career to do so. And that, to us, seems like a thing we should highlight, regardless of the guilt, innocence or otherwise, of anyone who has already faced the NCTL panels.
So, we decided to tell the story. We believe you will understand why.
– Laura McInerney, Editor, Schools Week