I am not a lawyer, but it appears to me that the crux of the issue is in the original concept that the new provision needed a sponsor grammar school whose admission rules, curriculum, uniform and organisation should be reflected in the satellite. This is confirmed in the reply to an enquiry made by the campaign group Comprehensive Future to the Department for Education (DfE) back in July, about the Sevenoaks scheme. This reads in part: “Admission arrangements, including the oversubscription criteria, are set at school level. Therefore, we would expect admission arrangements to be the same for the whole school including any annex or satellite site”. The article from which this is drawn suggests Comprehensive Future could be a legal challenger!
It was for this reason that KCC initially sought to bring two single sex grammar schools together to deliver a mixed gender grammar school. When they could not reach agreement, it began discussions with the two girls’ grammar schools to see if one of them could deliver. However, this immediately exposes the flaw in the scheme, as the admission criteria for a girls’ school do not allow for boys.
We now have two proposals being considered by the Department for Education, one from the Academy Trust incorporating Invicta Grammar School, the other from Weald of Kent Grammar School, both admitting girls only at the age of eleven. So, if the letter from the DfE quoted above holds, there is no way the annex would be acceptable to the DfE, and so it would become a new school, which would be illegal under current legislation.
Even if KCC now sought to find one of the four current mixed grammar schools in Kent to sponsor the annex there are problems over the distance criteria for oversubscribed schools that each operates, and more potential legal wrangles.
To underline the problem, the DfE reply also states: “It is also clear from the Academies Act 2010 that the Secretary of State may not enter into academy arrangements that have the effect of establishing a new selective Academy school. As such the powers to expand an existing selective school may not be exercised if the consequence of so doing so is in effect to establish a new selective school. Whether what is being proposed is an expansion or is in effect the establishment of a new school will depend on the individual circumstances of each case”.
Paul Francis of the Kent Messenger reports that the KM attempted to see the legal advice obtained by KCC and comments: "But the argument is clearly finely balanced. KCC wanted to assure itself that its case was solid by engaging the services of a specialist education lawyer. It will not disclose the lawyer's advice. In response to a Freedom of Information request, it said the advice (which cost £6,150) was confidential and it was not in the public interest to release it. In doing so, however, it implicitly acknowledges the issue of legality is one over which there may be persuasive grounds on both sides. The reply to our request stated "it would not be in the public interest for privileged legal advice to be revealed to a party who can then use that advice to further his or her own case. Releasing the advice would mean making it available to opponents of the annex scheme - effectively using public money to fund both sides of a potential judicial review, referral to the Secretary of State or to the Schools Adjudicator.
Now, the original proposers of the parental petition that triggered the annex proposal appear to be preparing to jump ship, one being quoted in this week’s Kent on Saturday as saying: “If Michael Gove is going to say no, then tell us, at least then we can look at what to do next; probably start voting for UKIP who want more grammars”!