Can the Conservatives still push through their plan for new grammar schools now they are a minority government? Editor Laura McInerney explains what we know so far.
The first rule of a government is that almost nothing will stop one implementing an outrageous policy if they really, really want to.
I learned this back in 2010 when Michael Gove pushed through new laws around academies using a five-day emergency process normally reserved for making rules related to terrorism. If politicians are determined, there’s almost no instrument of democracy likely to stop them.
There is a spanner in the works for the Conservatives’ grammar schools policy, though. They don’t have enough seats in parliament to be able to pass new laws just by having their own MPs vote for them. This is why they are seeking a “partnership” with the DUP, which would involve the DUP MPs promising to vote with the Conservatives in return for favours. (We don’t know what they will be yet).
Given the very slim majority even with the DUP, though, the Conservatives are unlikely to try passing new laws which are very controversial just in case backbenchers defect. (And we know quite a few Tory backbenchers don’t want grammars).
BUT – there is a twist.
Education is a devolved matter which means that parties outside of England cannot vote on new school laws only affecting English education.
This means the DUP cannot vote on the grammar school laws. But it also means other groups such as Plaid Cymru and the SNP also cannot vote.
When you strip out all the regions however the Conservatives have a bigger majority: 300 to around 276 in opposition.
So, theoretically, grammar schools could still go ahead if only voted for by eligible MPs.
BUT – there is yet another twist.
The biggest problem for Theresa May’s grammar plan has always been the House of Lords. Lots of people in there don’t like grammars and some of them are very experienced at disrupting schools legislation which they see as dodgy – including David Blunkett and Estelle Morris. (You can see why Gove went for the speedy process!)
May had a trump card. If she put the grammars into the manifesto, and she had won a majority, she could have pushed the new laws through parliament without fully involving the House of Lords under a rule called ‘The Salisbury Convention’.
This rule says that that if a party puts proposals “before the country at the recent General Election and that the people of this country, with full knowledge of these proposals” return a party to power then “they have a mandate to introduce these proposals”. In that case, then, it is wrong for the House of Lords to reject the policy – and so they don’t.
So here’s the million dollar question: Does the Salisbury Convention stand if you are in a minority government?
In the coalition government of 2010, it didn’t. But that was because the two parties came together and developed a brand new manifesto that was never shown to the public before the election.
In the case of the 1974 minority Labour government, no policies appear to have got to the Lords before a second election in the October when Labour was returned with a slim majority.
So there’s no clear precedent.
BUT, if we go back to the majority of MPs the Conservatives have for voting on English laws, it would not be outrageous of the party to claim that with a significant English majority then Salisbury should stand, and the grammar school policy should be waved through.
On the other hand, the Lords could disagree. Liberal Democrat peers have refused in the past to be bound by Salisbury and there’s not really anything to stop Labour’s peers doing the same thing in the first instance.
If it all got really grim then constitutional experts and legal people can get involved but, frankly, with everything else the Conservatives need to be getting on with, that seems a daft idea.
So: will we see new grammar schools under a Tory minority?
As I’ve already said, never rule out governments making outrageous moves to pass their favoured pet policy.
But it would seem more expedient for the Conservatives to simply beef up selection via other means. For example, we outlined the ‘grammar get-out clause’ by which academies can already move kids around and stick them onto different sites according to ability.
Anything else is simply a power play. And not one that I think will be backed by many.