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. 

Toby Young with Boris Johnson and school pupils at the opening of his West London Free School in 2011. Photo: Getty
Toby Young with Boris Johnson and school pupils at the opening of his West London Free School in 2011. Photo: Getty

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.