Dan Gibton

THE JAIME AND JOAN CONSTANTINER SCHOOL OF EDUCATION

The legislative & regulative context of 'polycentric inspections‘: Policy Windows – or a Looking Glass?

Prof. Dan Gibton, (Ph.D, MA, LL.B) Tel-Aviv University School of Education & Faculty of Law, Research Fellow, UCL Institute of Education Thanks to the London Centre for Leadership in Learning (UCL Institute of Education) Thanks to all those who took part in the study and dedicated their time and thoughts and whom I cannot name here for ethical reasons.

dangi@post.tau.ac.il

Prefatory quotes: Government agendas are the result 'of considerable doses of messiness, accident, fortuitous coupling and dumb luck‘ (Kingdon, 2003:206) Optimistic approach…: 'rules can control just enough to allow professional judgment to be used effectively' …Pessimistic approach that rejects the idea of a linear and controlled governance model and views it 'as inevitably a squeaky wheel system' (Paul Hill, 2003: 62) It is easier to fight for one's principles than to live up to them. (Alfred Adler, 1870-1937) There are only two kinds of madness one should guard against. One is the belief that we can do everything. The other is the belief that we can do nothing.

(Andre Brink, 1979) Everything works somewhere – nothing works everywhere (Tony Bryke, Carnegie Foundation) 2

RESEARCH QUESTIONS 1.

1. How and whether can the arrangements enacted in the 2000-2015 legislation regulate England’s school system?

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2. What are the actual implications and consequences of legislation on the regulation of education?

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3. How does legislation-based regulation qualify as an equity tool and what are its implications on equality and access to quality education?

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4 1988-2012 EDUCATION-RFORM LEGISLATION IN ENGLAND 1988 Education Reform Act (ERA) 1993 Education Act (EA) 1996 Education Act (EA) 1997 Education Act (EA) 1997 DfEE white paper “Excellence in Schools” 1998 Standards & Frameworks Act (SSFA) (& Circular 10/99 “Social Inclusion – Pupil Support”).

Education Act, 2002 Children Act, 2004 Higher Standards, Better Schools For All: More choice for parents and pupils (White Paper10/05) Education and Inspections Act 2006 Academies Act, 2010 The Importance of Teaching – white Paper 2010 Education Act, 2011.

(Kingdon, 2003)

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(an educational regime) … a collective response to a primary problem of political economy. … acceptance of a core of political ideas that may derive from a dominant political ideology but more often will be created from conflict and compromise among the proponents of opposing doctrinal positions. … implies a distinctive set of public policies covering both the governance and the provision of education. (Manzer, 2003: 3–4) 6

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‌put crudely the education market both de-socializes and re-socializes; it destroys older forms of sociability, while at the same time encouraging competitive individualism and instrumentality.

Prevailing values are changed and spaces within which reflection upon and dialogue over values were possible are closed down and replaced by the technological promiscuity of the technical and managerial profession (Ball, 2007: 188).

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Optimists about governance think rules can control just enough to allow professional judgment to be used effectively' standards-based reform, today’s mainstream approach to improvement of public education takes this ‘just enough guidance’ approach. Its supporters urge states and localities to strip away all requirements that do not promote good instruction… supporters… criticize the extant governance system for getting in the way of good instruction. Pessimist about governance doubt that rules can be so perfectly aligned. What is not controlled – what is literally left to chance – is whether teachers, principals, and parents retain the capacity , resources, and freedom required to provide and to support good instruction.

Pessimists… view governance tic approach as inevitably a squeaky wheel system. (Hill, 2003: 62) 8

Attention is transferred to other subjects, public support is lacking and the agency becomes vulnerable to domination by the regulated interests. ‌the information required by the agency may be obtainable only from the regulated industries; lack of expertise in the subject-matter may mean that the agency has to recruit its officials from those industries; and the industries may threaten the agency with costly time wasting appeals should it fail to be 'cooperative'.

(Ogus, 2004: 58). ‌the centralized pool of information on which rulers must rely for regulatory measures could never replicate the widely dispersed fragments of knowledge which individuals use in pursuance of their own ends and therefore could never be adequate to anticipate all the variety of circumstances to which specific regulation must be applied. (Ogus, 2004: 57).

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METHODOLOGY: RESEARCH TOOLS AND POPULATION 

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: A longitudinal study Included 136 in-depth interviews with senior educational figures in England, conducted in 2001, 2005-6, 2010-11, 2014-15. The interviewees were located using a ‘snowball’ technique. Seven leading professors in top-UK centers of research on educational policy, some who are consultants to the ministry of education, all experts in educational policy, were asked to name senior figures, who have, or have had, influence over educational legislation between 2001-2015.

Content analysis of legislative tools, primary & secondary legislation, reports, diurective, circu;lars, policy documents.

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POPULATION: 100 INTERVIEWEES / 110 INTER VIEWS Senior DfE officials1 DfE ‘political’ appointments2 Teacher’s/ principal's associations/unions’ senior staff Consultants to ministry officials/departments Directors/CEOs of education for LEAs ‘Super heads’3 Senior OFSTED personnel Legal advisors Members of Parliament(MPs) NGOs’/QUANGOs', think-tank heads/CEOs Senior academics involved in policymaking Privately financed foundations / ALBs: 11

CONCEPTUAL FRAMEWORK Equity and equality in education, Neo-Liberalism, corporatism, comodification and mangerialism (Ball, 2007; Bottery, 2002; Gillborn, 2008; Fitz. et.al., 2006; Whitty et. al., 1998)

Political thought

(Kingdon, 2003; Manzer, 2003) and regulation theory (Ogus, 2004)

Public education

(Boyd, 2003; Wong, Shen, 2008)

Law-based reform and socio-legal studies (Ewick, Silbey, 1998; Heubert, 1999; Harris, 2007) Governance (Ball, 2007; Hill, 2003; Glatter, 2002; James et. al., 2011; Campbell, Whitty, 12 2007;)

EA 1992  

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Her Majesty's Inspectorate for England 1.—(l) Her Majesty may by Order in Council appoint a person to the Her Majesty's office of Her Majesty's Chief Inspector of Schools in England ("the Chief Inspectorate of Inspector for England").

Schools in England.

(2) Her Majesty may by Order in Council appoint persons as Her Majesty's Inspectors of Schools in England.

(3) Any person appointed as one of Her Majesty's Inspectors of Schools in England shall serve, in accordance with the terms and conditions on which he is appointed, as a member of the staff of the Chief Inspector for England.

(4) The Chief Inspector for England shall hold and vacate office in accordance with the terms of his appointment, but— (a) shall not be appointed for a term of more than five years; (b) may at any time resign by giving written notice to the Secretary of State; (c) may be removed from office by Her Majesty on the ground of incapacity or misconduct.

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(6) The interval is a period not exceeding 5 years after the end of the school year in which the latest of the inspections mentioned in paragraph (5) was carried out.  (8) The first condition is that the inspection is carried out within the period of 5 years beginning with—  (a) the end of the school year in which the earlier section 5 inspection was carried out; or  (b) if one or more relevant section 8 inspections have already been carried out, the end of the school year in which the most recent of those inspections was carried out.  (9) The second condition is that the Chief Inspector—  (a) carries out the inspection for the purposes of determining whether the school would be likely to achieve a grade of “good” or better for the quality of education it provides if a section 5 inspection were carried out; and  (b) having carried out the inspection, is satisfied that the evidence does not suggest that the school would not achieve such a grade if a section 5 inspection were carried out. 

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2.—(1) The Chief Inspector for England shall have the general duty of Chief Inspector keeping the Secretary of State informed about— for England. . (a) the quality of the education provided by schools in England; (b) the educational standards achieved in those schools; (c) whether the financial resources made available to those schools are managed efficiently; and (d) the spiritual, moral, social and cultural development of pupils at those schools.

(2) When asked to do so by the Secretary of State, the Chief Inspector for England shall— (a) give advice to the Secretary of State on such matters as may be specified in the Secretary of State's request; (b) inspect and report on such school, or class of school, in England as may be so specified.

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(3) The Chief Inspector for England shall, in addition, have the following specific duties— (a) establishing and maintaining the register mentioned in section 10(1); (b) giving guidance to inspectors registered in that register, and such other persons as he considers appropriate, in connection with inspections of schools in England under section 9 and the making of reports of such inspections; (c) keeping under review the system of inspecting schools under section 9 (so far as it relates to schools in England) and, in particular, the standard of such inspections and of the reports made by registered inspectors; (d) keeping under review the extent to which any requirement imposed by or under this Act, or any other enactment, on any registered inspector, local education authority, proprietor of a school or governing body in relation to inspections of schools in England is complied with; (e) promoting efficiency in the conduct and reporting of inspections of schools in England by encouraging competition in the provision of services by registered inspectors.

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SSFA, 1998 

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25 Adjudicators (1) The Secretary of State shall appoint for England such number of persons to act as adjudicators for the purposes of this Act as he considers appropriate.

(2) Any matter which by virtue of this Act is required to be referred to “the adjudicator” shall be referred to such person appointed under this section as may be determined in accordance with regulations under Schedule 5.

(3) Accordingly in this Act “the adjudicator”, in relation to any such matter, means the person mentioned in subsection (2).

(4) Schedule 5 has effect in relation to adjudicators.

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EDUCATION AND INSPECTIONS ACT 2006    

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PART 1 EDUCATION FUNCTIONS OF LOCAL AUTHORITIES 1 Duties in relation to high standards and the fulfilment of potential For section 13A of EA 1996 substitute— “13A Duty to promote high standards and the fulfilment of potential (1) A local education authority shall ensure that their functions relating to the provision of education to which this section applies are (so far as they are capable of being so exercised) exercised by the authority with a view to— (a) promoting high standards, 2 Education and Inspections Act 2006 (c. 40) Part 1 – Education functions of local authorities Document Generated: 2011-01-17 Status: This version of this Act contains provisions that are prospective. (b) in the case of a local education authority in England, ensuring fair access to educational opportunity, and (c) promoting the fulfilment by every child concerned of his educational potential.

(2) This section applies to education for— (a) children of compulsory school age (whether at school or otherwise); and (b) children under or over that age who are registered as pupils at schools maintained by the authority, 18

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5 School improvement partners (1) A local education authority in England must appoint, in relation to each maintained school which they maintain, a person (to be known as a school improvement partner) to provide advice to the governing body and head teacher of the school with a view to improving standards at the school.

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THE EDUCATION (SCHOOL INSPECTION) (ENGLAND) (AMENDMENT) REGULATIONS 2015 

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3.—(1) This regulation prescribes the interval between inspections of a school for the purposes of section 5(1)(a) of the 2005 Act (duty to inspect certain schools at prescribed intervals).

(2) In this regulation, “the earlier section 5 inspection”…

(3) Paragraph (4) applies where— (a) the school is not awarded a grade of “good” or better in the earlier section 5 inspection for the quality of education it provides; or (b) the school is awarded such a grade in that inspection, and no relevant section 8 inspection is subsequently carried out.

(4) The interval is a period not exceeding 5 years after the end of the school year in which the earlier section 5 inspection was carried out.

(5) Paragraph (6) applies where the school is awarded a grade of “good” or better in the earlier section 5 inspection for the quality of education it provides, and one or more relevant section 8 inspections are subsequently carried out.

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SANCTUARY BUILDINGS GREAT SMITH STREET LONDON SW1P 3BT TEL: 0370 000 2288 2ND APRIL 2014

Dear colleague Regional Schools Commissioners and Headteacher Boards As you may know, I recently took up the post of national Schools Commissioner. As Commissioner it is my role to promote the benefits of the academies and free schools programmes among school leaders, local authorities and parents, recruit high-quality academy sponsors and encourage school-to-school collaboration and support. The role also allows me to work closely with academies and ministers to shape the future of academies and free schools as we develop a self-managing, selfimproving system. ‌ Within government and the education sector there is a growing consensus that decision making should lie closer to academies and that those who have a track record of leading good schools should have a stronger role in shaping the system.

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This change will not cut across existing accountability lines; accountability will remain with the Secretary of State. The role of the RSCs will include the following functions: Monitoring performance and prescribing intervention to secure improvement in underperforming academies and free schools.

Taking decisions on the creation of new academies and making recommendations to ministers about free school applications.

Ensuring that there are enough high-quality sponsors to meet local need.

Taking decisions on changes to open academies, including changes to age ranges, mergers and changes to multi-academy trust arrangements, as well as changes to admission arrangements. …

Yours sincerely, Frank Green Schools Commissioner

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2014-15 QUALITY REVIEW RUBRIC The 2014-15 Quality Review (QR) rubric continues to have ten indicators within three categories as outlined below:  I. Instructional Core across Classrooms  Curriculum (1.1)*  Pedagogy (1.2)*  Assessment (2.2)*  II. School Culture  Positive learning environment (1.4)  High expectations (3.4)*  III. Structures for Improvement  Leveraging resources (1.3)  Teacher support and supervision (4.1)  Goals and action plans (3.1)  Teacher teams and leadership development (4.2)*  Monitoring and revising systems (5.1)

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The 2014-15 framework for the QR rubric continues to align with the diagram above. The instructional core is the relationship between the student, teacher, and content (e.g., academic tasks). For the instructional core to improve or to maintain a high standard across classrooms within a school, the school’s culture and structures for improvement must facilitate efforts to increase and sustain quality.

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ISRAEL 

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An independent statutory unit - the National Authority for Measurement and Evaluation – RAMA - shall be established as the entity that leads and provides professional guidance to the education system with respect to measurement and evaluation.

RAMA will conduct periodic evaluations of the education system and evaluations in schools, and will publish its findings in an annual report submitted to the National Council for Education.

From the Dovrat National Task Force in Education (2004) 26

It’s a change not a trend. Blair’s attempts to keep Labour governments a second, third, maybe fourth term achieving history, so there is a tendency to legislate for the consumer because it’s the consumer who carries the large vote. (senior political advisor to no. 10) All along the years new types of schools were introduced or strengthened, with hope they would pull the whole system behind them. First were GM schools, then CTCs, then specialist schools, then academies, and further perhaps trust schools. By I think there is no evidence that any of these changed anything except for the specific schools that took part in the change, which indeed do better, sometimes on the expense of the remaining ones. (Senior DfES officail, 2005)

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Do you know why we legislate? Because we can. New education legislation is somehow embedded in the DNA of administrations and secretaries of state. We simply have to come up with a new education bill every second tear or so, and if there's a new government, even if its run by the same party and headed by the same prime minister as the previous one, it still has to come up with a new education bill in its first six month. (Senior MP, 2011) 28

New Labour would have seen themselves as the custodians of inclusion and social justice they had confused signals on special education. They got to a point where LAs wanted to asset a degree of social engineering Academies played a small part in education, but this isn’t what this government has intent on. LAs saw this as every child should be part of mainstream education.

This government will take a different approach and put emphasis on how a child is taught not just where. (Think tank CEO, 2011) 29

The legislation the government brought forward in the summer of 2010 was fast tracked. It wasn't against it when it came on time, but it happened too quickly there hasn't been enough time for consultation. Time will tell how robust or not and do with future challenges that come it's way. A lot of the thinking on the Academies was already there, there has been a change of regime and the department has had to come into a different thinking mode. The job of the civil servants is not to pass judgments but their job is to turn ideas into new policy if Michael Gove wasn't in opposition and people of Sam Friedman were not around . (Superhead) 30

Michael Gove has talked of the centrality of teaching but he's making big changes. Look at Pupil Premium. If we were expecting 3000 pounds and this is still a band aid. People underestimate the power of class and the ways your kids get effected by disenchanted aspirations . we stay here because the kids deserve a decent crack so we understand the expectations have to be a solid commitment and kids first legislation second. So if I have to ignore the law to reach the kids I will do it. I’m not indifferent to what I’m doing but I’ll do it anyway.

(Superhead, 2010) 31

One of the things that eluded practitioners was the level of intervention by the center, and it was overwhelming and it was necessary to avoid.

Some of the schools were not run by your government not even the LEA because they lost a lot of their power, but by a group of people in Sanctuary building set out to micro manage everything, give you the full Monty people got fed up and are not following any more. (superhead 2011) 32

I've been a headteacher since 1986 in three different schools. The conclusion I've come to is that it’s my job to advance the learning and wellbeing of my students and if I have to do, in means of legal device, to ignore any type of legislation by government because it is destabilizing - I will. I'm a gate keeper to allow in these initiative and keep at bay these pieces of legislation that I think might work against the interest of the children. My parents are not as sophisticated as middle class parents. I have to work within the law I will not break the law but I will bend where I can. (Superhead, 2006) 33

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In terms of my policy what I work on today one of the areas isd regulation and therefore OfSTED how there are incentives for the system of school’s self improving the way we think to improve is to have a the best leaders to improve the weaker ones … these things do not happen on their own. What is the approach of the regulator ? You can get into definitions, but it’s rubbish they are all about making judgments… OfSTED are the only body with impact above government . I have concern that the whole system is based on capture were the expertise is and it will live or die by whether you have leadership capacity so you can get the best leaders into where they can make the most impact, to get them to work for all… the role of the regulator is problematic and the reason is OfSTED needs different accountability measures there are different ways and stories what a good school is and there's a problem in OfSTED because the value is too raw… I think if you are a ks4 school and your are in the top quartile pupils in prior attainment, you have a 90% chance to be good or outstanding.

When OfSTED looks at schools there's a historical reason for this but their inspectors are not trained to look at a school through prior attainment for a series of reasons. (Senior DfE person, 2015)

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OfSTED’s role within education the phrase regulator has a specific meaning wer’e not a regulator of maintained schools and not a regulator of non maintained schools, we are an inspectorate we are a regulator of early years. Regulation is legislation, enforcement, we only do the inspection bit. For academies maintained schools, and free schools we are an inspectorate as such people think we can do, and we cannot is, close schools down that’s somebody else's job, within our framework we identify the status everything we do is transparent and is published. So therefore in part you can end the conversation there, so our role is key in the accountability framework and in doing that it’s a historical point of view OfSTED came around in 1993 but the 88 act was much more forming because of the NC, someone who goes into schools now, looking at regulation in this soft sense, there is much more consistency. … Were we are now with academioies it was a foundation laid down by GM schools. What we should be very clear is on OfSTED’s role is it doesn't matter to us what school it is re the type of governance of the school our directives have nothing to do with that. (Senior OfSTED person, 2014) 35

Degree of freedom

Equity CTC 'extensions'

HIGHER Trust Schools

CTCs Foundation Schools

Grant Maintained Schools

Academies

LOWER

EA 1988

non-incremental change ('leap')

Specialist Schools

EA 1993

SSFA 1998

Free Schools

City Academies

Learning & Skills Act, 2000

EA 2002

EIA 2006 Academies Act 2010

EA 2011

Legislation / Year 36

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Figure 9.1: the field of adhocracy and long-term planning, politics and ideology in law-based reform

Degree of adhocracy HIGH

LOW

Ideological

Motivation

Political

Legend: Legislation in bold & italics; policy & reform in regular font.

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Equality ESEA Title I

Improving America’s NCLB Schools

US Abott Brown

England

Israel

Keys, Ridick Sheff

Year

Gratz/Grutter

Rodriguez

Missouri v. Jenkins

EA 1944 Bill ‘Butler’

ERA, 1988

Parents Involved / Meredith

SSFA,1998

National Rimalt Admissions Ed. Act, 1853 committee Code, 1978

Kremer

1960

1970

ESEA reform blueprint /reauthorization

Dikman

1980

Academies Act, 2010;

Ed 2011

Cultural Schools Act, 2008 Combined Schools amendment

Shpekman

1990

Poriya

2000

AlKasami

2010

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Figure 9.3: Kingdon’s model and England’s law-based reform

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New Party rule (1998; 2010) New Administration (1998; 2007) New Secretary of State ; Heads of Delivery / Standards Unit, undersecretaries, advisors to the SoS.

 Decentralization & school choice;  Standards in teaching, learning and assessment;  Admissions policy  Community cohesion

 Poor results on international tests;  Social unrest and religious / ethnic confrontations.  School segregation and issues of placemnets in schools

Based on: Kingdon, 2003.

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In a political context, the end result of the ‘transaction’ is normally legislation which has a general coercive effect, applying to’ and often imposing costs on, those who did not vote for it or did not want it. From a normative perspective, it should be noted that unless a unanimity voting rule (allowing any potential cost-bearer to veto a proposal) is adopted, the collective choice may give rise to economic inefficiency… But in the absence of constitutional constraints, collective decisions are made on the basis of less-that-unanimity voting rules can be used to oppress minorities. (Ogus, 2004: 59)

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…the centralized pool of information on which rulers must rely for regulatory measures could never replicate the widely dispersed fragments of knowledge which individuals use in pursuance of their own ends and therefore could never be adequate to anticipate all the variety of circumstances to which specific regulation must be applied. (Ibid: 57).

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There is no going back to a past in which public sector as a whole worked well and worked fairly in the interests of all learners. There was no such past. …it is difficult to deny that some education businesses do some things well, and perhaps better than some of the public sector, and do enhance the lives and opportunities of young and not-so-young people. This is not a defense of the private sector as a whole but it may involve an acceptance of some kinds of private sector participation are more defensible than others and that some public sector 'work' is not as defensible as all that.

(Ball, 2007: 187).

…unstable, uneven but apparently unstoppable flood of closely interrelated reform ideas is permeating and reorienting education systems in diverse social and political locations with very different histories. This convergence had given rise to what can be called a generic global policy ensemble that rests on a set of basic and common policy technologies… the components of this ensemble and the workings of these technologies (are)… the market, management and performativity. (Ball, 2008: 39).

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Each time our secretary of state visits a foreign country, and is invited into the one successful school – we cower in fear and prepare for the worst (Secondary school principal in London, 2011) Gibton D (2012) Law, Education, Politics, Fairness: England's fantastic legislation for education reform . UCL Institute of Education: IoE Press.

Thank you dangi@post.tau.ac.il

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