Is the Department of Education inept or is it nasty? Is it thoughtless and inconsiderate or is it, worse, callous and cruel? Has it taken its eye off the ball or is it, much more seriously, contemptuous of its legal and ethical duties to have due regard for the consequences of its actions and policies? Is it guilty not only of errors of judgement but also of deceit and bad faith?
These questions are about individual ministers and, at all pay-grades, civil servants. Also they are about systems, routines, procedures, habits, ways of doing things, and not doing things. And they are about the collective mindsets which underlie the DfE’s organisational culture – they are not only about racist actions, for example, but about institutional racism as well. And they of course apply not only to the DfE itself but also to agencies set up by and accountable to the DfE, for example the National College for Teaching and Leadership (ACTL), and to external consultants and advisers whom the DfE and its agencies from time to time engage, for example lawyers and legal teams for specific cases.
In the present context these questions arise from consideration of how, over the last three years, the DfE has handled and mishandled the Trojan Horse affair in Birmingham. The latest twist in this tangled and tortuous saga occurred on 30 May 2017, and was summarised with headlines such as Trojan Horse case against five Birmingham teachers thrown out by tribunal (Daily Telegraph) and Five teachers accused in Trojan horse affair free to return to classroom (Guardian).
A panel looking into allegations against some headteachers and other senior teachers had transferred its attention to the behaviour of the DfE itself, and had referred to repeated failures on the part of government lawyers to share crucial evidence that could have been of substantial assistance to the headteachers’ case, and that could have radically undermined the DfE’s own case. (Also, incidentally, the transcripts might well have confirmed what many observers suspected, which is that an earlier inquiry, the so-called Clarke inquiry, has been amateurish and improper in the way it was and was not conducted.) This was not merely a technicality of slight importance but, on the contrary, an abuse of justice whose seriousness was such that the panel had had no option but to end the hearings.
‘It is fundamental to the proper administration of justice,’ the panel pointed out, that an investigation such as the one it had been conducting ‘must be able to rely on the regulatory authority [namely, in this instance, the NCTL, set up by the DfE] acting in a way which ensures the integrity of the process.’ It continued: ‘There has been an abuse of the process which is of such seriousness that it offends the panel’s sense of justice and propriety.’
The panel also considered there had been a ‘lack of candour and openness’ by the DfE and ‘a lack of cooperation in assisting the panel to get to the bottom of what happened’. Serious errors had been far-reaching, it said, and had extended over the entire life of the case.
‘Such failures arise out of decisions which were consciously made,’ the panel declared, but also it considered that the DfE’s deliberate decision to withhold essential evidence represented ‘an extraordinarily serious error of judgment as opposed to bad faith’. The DfE had been inept, the panel in effect concluded, but not nasty.
However, is the distinction between being inept and being nasty really so very clearcut? Is it helpful, in instances such as this, to distinguish between errors of judgement on the one hand and bad faith on the other? Neglect and negligence can be criminal, not just bad manners or administrative oversights, and can cause real and lasting harm to certain individuals, and to the contexts in which individuals interact and have their being.
‘Without scheming to do wrong, or to make others unhappy,’ said Jane Austen two hundred years ago, ‘there may be error, and there may be misery. Thoughtlessness, want of attention to others’ feelings, and want of resolution, will do the business.’
It is almost certainly the case in the present instance (though not argued or even suggested by the Trojan Horse tribunal) that the DfE’s errors were in part or even largely due to hostility towards Islam and Muslims, and to callous indifference towards the misery for Muslims it was itself causing.
Did institutional racism and Islamophobia underlie not only the DfE’s careless conduct at the disciplinary tribunal but also how it perceived and reacted to the Trojan Horse forgery in the first place? Did racism and Islamophobia underlie the amateurish reports which the DfE in due course sponsored? Did they deeply affect the flawed Prevent and British Values projects which it then promoted, and zealously promotes still? Does the DfE realise, really realise, that the rule of law applies to itself as well as to everyone else?
Well, those are questions for thorough investigation at another time and in another place. In the meanwhile profound sympathy is due to the individuals, schools, families and communities in Birmingham that have been harmed over the last three years by the actions and non-actions of the DfE, and much corrective and restorative work needs to be done.
Robin Richardson, 1 June 2017, slightly updated 2 June
There is further information about the panel’s statement in news items by John Dickens in Schools Week, and Richard Adams in the Guardian, both on 30 May:
The panel’s statement itself is published in full at <a https://www.matrixlaw.co.uk/wp-content/uploads/2017/05/Panel-decision-and-reasons-on-behalf-of-the-Secretary-of-State-for-Education-in-respect-of-applications-for-the-proceedings-to-be-discontinued.pdf
There is an interesting legal opinion of the panel’s statement at >https://lawyerwatch.wordpress.com/2017/06/02/cryptic-trojan-who-takes-responsibility-if-disclosure-is-the-achilles-heel/
There is substantial discussion of the Trojan Horse affair and related issues in British Values and British Identity: muddles, mixtures and ways ahead by Robin Richardson, London Review of Education, autumn 2015. It can be read at http://www.insted.co.uk/london-review-education.pdf