Toby Young with Boris Johnson and school pupils at the opening of his West London Free School in 2011. Photo: Getty
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The £1.1bn question: should we have the right to know why some schools succeed and others don’t?

My teacher friend requested information about free schools from the DfE under FoI law. After a year and a half of appeals ruling in her favour, the DfE still refuses to release the information. Now it’s going to court. 

By the time you read this, I’ll be in court. No, they haven’t finally caught up with me for that free cross-stitch kit I prised off the front of a sewing magazine in Worcester’s biggest Tesco in 1991 and shoved up my sleeve (although I would like to apologise unreservedly for that). Instead, I will be sitting in the glamorous surroundings of court 12 at Field House in London, exper­iencing something called a first-tier tribunal.

But let’s rewind. The story starts in October 2012, when my old friend Laura Mc­Inerney, a teacher-turned-education PhD student, asked the Department for Education (DfE) a simple question under freedom of information (FoI) law. Could it publish the applications made by everyone who wanted to open a free school and the letters accepting or rejecting them? Similar information had been available prior to 2010 and since the coalition was proposing to spend £1.1bn on the free schools programme, it would surely be in the public interest to see how the money was being spent.

Such disclosure seemed particularly important, given the autonomy of free schools. Outside local authority control, their founders are more able to experiment with their management and curriculums – which can encourage either free-thinking and entrepreneurism, as Michael Gove hopes, or rampant amateurishness and expensive disasters, as their critics allege. The National Audit Office found that £700,000 had been spent on schools that had passed the application stage but never opened and £241m had gone to schools in areas where there was no need for extra places.

The DfE shuffled its feet for a bit, then announced that handing the information over would encourage people to copy the best applications. (Horror!) Worse, scrutiny of the forms could lead to the “embarrassment, harassment or even ridicule of applicant groups”. (Which makes me think: if Gove really wants to protect Toby Young from ridicule, he should have a quiet word with him about how weird it looks to make more than 100 edits to your own Wikipedia page.) The department concluded that these factors outweighed the public interest of releasing the information.

After a year and a half of ever-higher appeals ruling in Laura’s favour, the DfE still refused to release the information. Michael Gove told an education select committee that he would do “everything possible” to stop it. “I do not think that people who made applications on the basis that those applications would be treated in confidence, and who may, if they have been unsuccessful, expose themselves to the risk of intimidation, should be exposed to that risk by my actions,” he told the Labour MP Pat Glass on 18 December 2013.

Here’s the thing: I’m looking at one of the original free school application forms right now and at the end it says: “Please note, all information provided on this form will be published on the Department for Education website . . . Submission of this form will be treated as consent, from both you and anyone else whose personal data is contained in this form, to the sharing of this information, as set out above.” It even mentions that the applications will be subject to FoI law.

I’ve been involved only tangentially up to this point and my role in the court case is to be Laura’s “FoI friend” because she’s representing herself. (I will be passing her notes like they do in Judge John Deed. If she’s lucky, some of them may even be relevant to the case.) But the process has made me remember something that Ben Goldacre – who is also running a campaign for transparency; in his case, the publication of all clinical trial data – once said: “It seems to me that a lot of the most important stuff in this world has a large tedium shield erected around it.”

The principle behind our freedom of information is a beautiful one: that the public interest is usually best served by knowing what our elected representatives are doing with the money we give them. How is any normal person – sorry, Laura, but you know what I mean – supposed to wrestle with the pages of legal arguments riddled with impenetrable jargon I’ve seen generated by this case? The DfE certainly doesn’t seem to think that FoI laws are the domain of the average citizen – one of its arguments is that Laura is “burdensome”. This makes me feel pretty damn burdensome, as it happens. She’s researching a PhD on free schools and is asking for the best available information on free schools. By this logic, every pupil in the country is even now burdening their teacher with their irritating desire for knowledge.

So why does this small, technical fight in a dusty courtroom matter? Because every new government comes to power mouthing platitudes about openness and transparency and then promptly discovers that it would really rather operate in secret, if that’s all the same to you.

Whether you agree with the free schools programme or not, it is a giant experiment – and if it goes wrong, there’s no chance for the children involved simply to start the experiment from scratch. The big bundle of documents we’ll be taking to court includes an Ofsted report on the al-Madinah free school in Derby. Not the one from October 2013 that labelled it “dysfunctional” and inadequate in every category, but the pre-opening report, which raised serious questions about its child protection arrangements, first aiders and fire exits.

Some free schools, such as al-Madinah, will crash and burn. Others will thrive, like the three-quarters that were rated good or outstanding in their first Ofsted inspection. But why would you want to stop anyone from trying to find out which are which as soon as is humanly possible? We’ll find out in court.

Helen Lewis is deputy editor of the New Statesman. She has presented BBC Radio 4’s Week in Westminster and is a regular panellist on BBC1’s Sunday Politics.

This article first appeared in the 04 June 2014 issue of the New Statesman, 100 days to save Great Britain

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The 11 things we know after the Brexit plan debate

Labour may just have fallen into a trap. 

On Wednesday, both Labour and Tory MPs filed out of the Commons together to back a motion calling on the Prime Minister to commit to publish the government’s Brexit plan before Article 50 is triggered in March 2017. 

The motion was proposed by Labour, but the government agreed to back it after inserting its own amendment calling on MPs to “respect the wishes of the United Kingdom” and adhere to the original timetable. 

With questions on everything from the customs union to the Northern Irish border, it is clear that the Brexit minister David Davis will have a busy Christmas. Meanwhile, his declared intention to stay schtum about the meat of Brexit negotiations for now means the nation has been hanging off every titbit of news, including a snapped memo reading “have cake and eat it”. 

So, with confusion abounding, here is what we know from the Brexit plan debate: 

1. The government will set out a Brexit plan before triggering Article 50

The Brexit minister David Davis said that Parliament will get to hear the government’s “strategic plans” ahead of triggering Article 50, but that this will not include anything that will “jeopardise our negotiating position”. 

While this is something of a victory for the Remain MPs and the Opposition, the devil is in the detail. For example, this could still mean anything from a white paper to a brief description released days before the March deadline.

2. Parliament will get a say on converting EU law into UK law

Davis repeated that the Great Repeal Bill, which scraps the European Communities Act 1972, will be presented to the Commons during the two-year period following Article 50.

He said: “After that there will be a series of consequential legislative measures, some primary, some secondary, and on every measure the House will have a vote and say.”

In other words, MPs will get to debate how existing EU law is converted to UK law. But, crucially, that isn’t the same as getting to debate the trade negotiations. And the crucial trade-off between access to the single market versus freedom of movement is likely to be decided there. 

3. Parliament is almost sure to get a final vote on the Brexit deal

The European Parliament is expected to vote on the final Brexit deal, which means the government accepts it also needs parliamentary approval. Davis said: “It is inconceivable to me that if the European Parliament has a vote, this House does not.”

Davis also pledged to keep MPs as well-informed as MEPs will be.

However, as shadow Brexit secretary Keir Starmer pointed out to The New Statesman, this could still leave MPs facing the choice of passing a Brexit deal they disagree with or plunging into a post-EU abyss. 

4. The government still plans to trigger Article 50 in March

With German and French elections planned for 2017, Labour MP Geraint Davies asked if there was any point triggering Article 50 before the autumn. 

But Davis said there were 15 elections scheduled during the negotiation process, so such kind of delay was “simply not possible”. 

5. Themed debates are a clue to Brexit priorities

One way to get a measure of the government’s priorities is the themed debates it is holding on various areas covered by EU law, including two already held on workers’ rights and transport.  

Davis mentioned themed debates as a key way his department would be held to account. 

It's not exactly disclosure, but it is one step better than relying on a camera man papping advisers as they walk into No.10 with their notes on show. 

6. The immigration policy is likely to focus on unskilled migrants

At the Tory party conference, Theresa May hinted at a draconian immigration policy that had little time for “citizens of the world”, while Davis said the “clear message” from the Brexit vote was “control immigration”.

He struck a softer tone in the debate, saying: “Free movement of people cannot continue as it is now, but this will not mean pulling up the drawbridge.”

The government would try to win “the global battle for talent”, he added. If the government intends to stick to its migration target and, as this suggests, will keep the criteria for skilled immigrants flexible, the main target for a clampdown is clearly unskilled labour.  

7. The government is still trying to stay in the customs union

Pressed about the customs union by Anna Soubry, the outspoken Tory backbencher, Davis said the government is looking at “several options”. This includes Norway, which is in the single market but not the customs union, and Switzerland, which is in neither but has a customs agreement. 

(For what it's worth, the EU describes this as "a series of bilateral agreements where Switzerland has agreed to take on certain aspects of EU legislation in exchange for accessing the EU's single market". It also notes that Swiss exports to the EU are focused on a few sectors, like chemicals, machinery and, yes, watches.)

8. The government wants the status quo on security

Davis said that on security and law enforcement “our aim is to preserve the current relationship as best we can”. 

He said there is a “clear mutual interest in continued co-operation” and signalled a willingness for the UK to pitch in to ensure Europe is secure across borders. 

One of the big tests for this commitment will be if the government opts into Europol legislation which comes into force next year.

9. The Chancellor is wooing industries

Robin Walker, the under-secretary for Brexit, said Philip Hammond and Brexit ministers were meeting organisations in the City, and had also met representatives from the aerospace, energy, farming, chemicals, car manufacturing and tourism industries. 

However, Labour has already attacked the government for playing favourites with its secretive Nissan deal. Brexit ministers have a fine line to walk between diplomacy and what looks like a bribe. 

10. Devolved administrations are causing trouble

A meeting with leaders of Scotland, Wales and Northern Ireland ended badly, with the First Minister of Scotland Nicola Sturgeon publicly declaring it “deeply frustrating”. The Scottish government has since ramped up its attempts to block Brexit in the courts. 

Walker took a more conciliatory tone, saying that the PM was “committed to full engagement with the devolved administrations” and said he undertook the task of “listening to the concerns” of their representatives. 

11. Remain MPs may have just voted for a trap

Those MPs backing Remain were divided on whether to back the debate with the government’s amendment, with the Green co-leader Caroline Lucas calling it “the Tories’ trap”.

She argued that it meant signing up to invoking Article 50 by March, and imposing a “tight timetable” and “arbitrary deadline”, all for a vaguely-worded Brexit plan. In the end, Lucas was one of the Remainers who voted against the motion, along with the SNP. 

George agrees – you can read his analysis of the Brexit trap here

Julia Rampen is the editor of The Staggers, The New Statesman's online rolling politics blog. She was previously deputy editor at Mirror Money Online and has worked as a financial journalist for several trade magazines.