Labour has accused Nicky Morgan, the education secretary, of “attempting to subvert the law” by approving a new grammar school, after it emerged there was only a 50% chance of fighting off any legal challenge.
Lucy Powell, the shadow education secretary, called on ministers to publish their legal advice, following reports that government lawyers were not convinced the decision would be found by a court to be lawful.
Morgan revealed last week that she would allow the Weald of Kent girls’ grammar school in Tonbridge to build a new “satellite” school in Sevenoaks, nine miles away.
Under a 1998 law, the number of selective state schools is fixed and any other new or existing state schools cannot use academic criteria for admission. The legality of the new Weald of Kent site will therefore rest on whether it can be considered a new school or an annexe of an existing school.
The Sunday Times (paywall) reported that Whitehall lawyers wanted to be convinced that the government stood at least a 60% chance of victory in any court battle but it failed to meet that threshold and Morgan was told she had to make a “political judgment”.
Powell said the Tory cabinet minister’s decision “looks like a clear attempt to subvert the law” in light of that revelation.
“Nicky Morgan must now publish the advice ministers received so we can see the basis on which she made the decision to open the floodgates on the expansion of selective education in this country,” she said.
“Grammar schools are not bastions of social mobility and it is becoming clear that many, many more areas are considering opening grammar schools as a result of this decision. Rather than focusing on an excellent education for all children the Tories are fixated on bringing back selection at 11, a wrong and backward step.”
Melissa Benn, who chairs Comprehensive Future, a group that campaigns against selective education, has said the group is looking into challenging the legal basis of this decision.
Morgan came under pressure to approve the school from cabinet colleagues who have grammar schools in their constituencies that want to expand. However, she has denied that the Sevenoaks expansion will lead to a wave of new selective schools opening up.
“This is one particular application with one particular set of circumstances. Why would I deny a good school the right to expand?” she said last week. “I don’t think this will open any kind of precedent or floodgates.”
A source at the Department for Education said the government was well prepared for a legal challenge through judicial review. “We will have to test the principle,” the source said. The department has no plans to publish the legal guidances demanded by Labour.
This article was written by Rowena Mason, for theguardian.com on Sunday 18th October 2015 11.32 Europe/Londonguardian.co.uk © Guardian News and Media Limited 2010