NINE

The NCTL hearings and their collapse

In a short space of time – from early March to June 2014 – a particular narrative of the Trojan Horse affair became firmly established. This was that a small group of individuals, associated with PVET and operating with a hardline and conservative religious agenda, had taken over control of a number of local community (that is non-faith) schools in East Birmingham and had sought to establish an Islamic curriculum. In doing so, head teachers and other teaching staff had either been bullied into line or had been forced out. This narrative was given particular emphasis by the Clarke Report, which proposed that this conservative religious agenda was also extremist (as defined under Prevent) involving active hostility to ‘British values’.

The nature of the evidence put forward was largely statements by witnesses involved in changes in local schools in the context of the government’s academies programme. There was little opportunity for those at the centre of the charges to provide their own account. Although Ofsted inspections allow some involvement by a school, there is no formal opportunity to engage with a draft report and have inspectors reflect upon and modify their judgement (though we have seen suggestions that the 2014 Ofsted report on Park View Academy was modified at the instigation of Ofsted or the DfE).³⁵⁴ Inspections are simply a description of what is said to be found at the time of the visit. Nor is there an obligation upon the inspectors to reflect on those findings in the light of previous reports. Equally, the Clarke and Kershaw Reports took witness statements from many individuals, but did not seek to test whether the events described had, in fact, taken place, or were as described to them. Indeed, the Clarke Report provides a list of 20 serious incidents at PVET, about which it comments, somewhat laconically, ‘it is only fair to point out that the Trust disputed most, if not all, of the allegations’.³⁵⁵ This comment is itself misleading, since, as we shall see, exculpatory evidence was provided not only by the Trust, but also by an official at the DfE responsible for the academies programme and by the religious education adviser at Birmingham SACRE, but those views are not presented in the Clarke Report.³⁵⁶

Yet the ‘serious incidents’ were widely reported in the press as illustrations of the problems in the schools. For example, it was reported – among other claims – that teachers at PVET mixed religious views into the teaching of science, taught that wives had to consent to sex with their husbands and that there was no rape within marriage, coerced children into prayer (including during lessons), had invited an extremist speaker to address an assembly, and had banned Christmas celebrations. Most significantly – because it was the one incident that the House of Commons select committee that considered the reports in March 2015 accepted as a serious example of extremism³⁵⁷ – there was a report that IT technicians at Park View had recorded onto a DVD a terrorist video believed to be from Al Qaeda. In fact, although this allegation was initially brought forward as part of the NCTL schedule of charges against teachers at PVET, it was dropped before the hearings began (there was a first Case Management Hearing on 27 July 2015 and a second on 27 August 2015 which altered the charges). It had emerged that the recording was made at the request of West Midlands Counter Terrorism Unit to use as illustrative material in a session for pupils at the school on the risks of radicalisation. In other words, it was an example of the very opposite of what had been stated in the Clarke Report and reported in the press; it was an example of the school’s engagement with the Prevent agenda.

We saw in Chapter Seven that the EFA Review had also accused PVET of financial irregularities and poor procedures. External accountants were commissioned to examine these irregularities in June 2014 and do a full audit. They reported in February 2015, having found only minor irregularities, mainly associated with lack of clarity over procedures.³⁵⁸ They are not part of the charges made by the NCTL against the teachers, in contrast to high profile cases against other academy trusts, indicating that they were judged to be of a low level and they were not pursued as instances of misconduct.³⁵⁹

Possibly Peter Clarke, as a former serving policemen, felt that the place to test allegations was in something equivalent to a court of law. He recommended that professional misconduct hearings should be convened. In the public mind, however, the narrative was firmly established through regular statements to the press which referred back to the Trojan Horse affair as part of the framing for other stories. For example, reports on government policies to extend Prevent to include extremist ideology and measures to tackle extremist ‘entryism’³⁶⁰ used the case, as did reports on a renewed emphasis on the promotion of shared values (now called ‘fundamental British values’) in schools.³⁶¹ In each case, the government used the Trojan Horse affair as an example of what could go wrong, and the media faithfully reported in those terms.

Similarly, having once endorsed Park View Academy as exemplary, Sir Michael Wilshaw regularly referred to the Trojan Horse affair and claimed that there were continuing problems in Birmingham schools (and elsewhere) in speeches throughout his term of office. He warned that a repeat of the so-called Trojan Horse scandal, which saw a radical Islamic ethos introduced to schools in the city, was likely unless the government acted.³⁶²

The NCTL hearings, problems of procedure

The NCTL is the body responsible for teaching standards. Previously, that function was carried out by the General Teaching Council for England, established by the Teaching and Higher Education Act of 1998 which set up separate bodies for England, Wales and Scotland. Michael Gove, as Secretary of State for Education, announced its closure in 2010 as part of the government’s ‘bonfire of quangos’, directed against non-departmental independent advisory or regulatory bodies. It was replaced by the Teaching Standards Agency in 2012 and renamed the National College for Teaching and Leadership in 2013. It is an executive agency within the DfE.

The NCTL hearings represented the first opportunity for the individuals who had been named in the investigation reports and in the media as part of a plot to Islamicise schools to respond, yet they had to do so in the context of widespread assumptions of their guilt. In April 2015, Richard Kerbaj and Sian Griffiths reported in the Sunday Times that the NCTL was ‘currently looking at about 30 teachers, but in total there are about 100 who will be targeted’.³⁶³ This served to create the idea of the scale of the problem and the expectations of what was to come, yet no other cases were brought forward.

In the event, cases were brought against just 12 teachers (15 in some newspaper reports), mostly associated with PVET (one hearing, concerning three teachers, subsequently reduced to two, involved teachers at Oldknow primary). The teachers were divided among four hearings, which all began at around the same time in early October 2015. The hearings took place before a lay panel (of three members) supported by legal advisers, with a barrister and solicitor representing NCTL and barristers and solicitors representing those charged with misconduct. The hearings took place under court rules and procedures.

The hearings did not begin until October 2015, with a schedule for conclusion before Christmas of that year. In fact, they were to go on for another 18 months (the hearings were not continuous, and, if they ran over schedule, new dates had to be found when the Panel members and lawyers were available). One hearing was set up to address the senior leadership team at PVET, which included some who had previously held senior positions at Park View school. Thus, Lindsey Clarke, former head teacher at Park View and subsequently executive head teacher at the Trust was one, as was Monzoor Hussain, acting head teacher at Park View Academy, Hardeep Saini, acting principal at Golden Hillock and formerly at Park View, Arshad Hussain (no relation to Monzoor Hussain), assistant principal at Park View Academy, and Razwan Faraz, formerly a teacher at Park View and vice-principal at Nansen Primary (Hearing 1). The other hearings involved two junior teachers at Park View, one of whom had also been seconded to Oldknow and Golden Hillock (Hearing 2), and three teachers from Park View at a different hearing (Hearing 3), with the case against a fourth teacher from Park View at this hearing dropped. This hearing was scheduled to finish after Hearing 1. Another hearing involved the former acting head teacher and another teacher at Oldknow (Hearing 4). The teachers at Hearing 3 were separated, with one teacher found not guilty in September 2016. A third teacher was initially included in Hearing 2, but the case against him was postponed because of serious ill health. A separate case was brought against a teacher at Park View and Golden Hillock in an individual hearing which concluded with a guilty verdict, but no ban, in February 2016. It is clear that Hearing 1 is the most important of the hearings since it involved the senior leadership team at PVET (the chair of the Board of Governors, Tahir Alam, was not under the jurisdiction of NCTL, but was separately banned from involvement in school management).³⁶⁴

We set out in the introduction to the book how one case (Hearing 2) that had concluded in February 2016 went to the High Court on appeal and, in October 2016, its findings were quashed on grounds of procedural irregularities involving failures to disclose evidence that had been presented in Hearing 1 (although the NCTL was subsequently allowed to convene a new hearing). However, this raised the question that there might be broader issues of the disclosure of evidence relevant to Hearing 1. There began a process of reviewing areas in which there might be documents for disclosure – including, but not only, statements provided to the Clarke Report. The High Court Appeal judgement had generated hostile media reports, which repeated the allegations against the teachers.³⁶⁵ Now hostility was directed at the possible disclosure of evidence statements that had been provided to the Clarke Report under conditions of anonymity.³⁶⁶ This gave rise to further legal representations (including on behalf of some of those witnesses) in February 2017, and, finally, the identification of some 1600 pages of documents to be considered for their relevance to the defence. This all took place after the main evidence for prosecution and defence had been presented and witnesses questioned.

In fact, the evidence that was most at issue was not provided under conditions of anonymity, although some witnesses were doing so (as Witness A, Witness B, etc). There was an interest in their statements to the Clarke Report and the extent to which claims had subsequently been modified, but this need not have involved any breach of anonymity. However, as we will see when we consider the evidence in the next section, the key issues of disclosure concerned witnesses who had made more extended statements to the Clarke Report that included material that was favourable to the defence and yet had not been included either in the Clarke Report or in the witness statements elicited by NCTL. There was also an issue of disclosure of material outside the Clarke Report; for example material associated with preparations for the EFA Review visit to PVET.

These later developments were symptomatic of a larger problem created by the delays in hearings. There was intermittent media reporting about the hearings, especially during the period that the NCTL presented its evidence. The latter was completed by December 2015. The evidence for the teachers was completed by June 2016, with little media reporting of their detailed rebuttal (together with documentary evidence and supporting witnesses) of the claims against them, which took place after December 2015 when media interest had waned. The Panel had already put back the date at which it would make its judgements from 18 December 2015 to 29 July 2016, then to 14 October 2016 and, then again, to 23 December 2016, a date that was itself postponed while consideration was given to the disclosure of documents following the High Court ruling on Hearing 2.

Hearing 1 itself finally collapsed in May 2017 on grounds of irregularities so grave that, in the Panel’s view, they represented ‘an abuse of the process which is of such seriousness that it offends the Panel’s sense of justice and propriety. What has happened has brought the integrity of the process into disrepute’.³⁶⁷ The NCTL could have applied for a judicial review of the decision, but decided to drop all outstanding cases. In the event, just one teacher was sanctioned (a five-year ban – the case against the other teacher was dismissed) as the outcome of a hearing (Hearing 4) that had already concluded, where that teacher had not had the benefit of the undisclosed documents whose potential relevance had led to the findings in Hearing 2 being quashed.³⁶⁸

The reasons for the Panel decision to discontinue the main hearing against the senior teachers make up 28 pages of text and are not restricted to discussion of the NCTL misleading the Panel about the use of transcripts of statements given to the Clarke Report in the preparation of witness statements for the NCTL hearing. At different points in the hearing, lawyers for the defence had made applications for the case to be dismissed – for example, immediately following the completion of the presentation of the prosecution case in June 2016 and at other times, up to and including on 3 May 2017, when there was the submission of a Note from the solicitors representing the NCTL (although the responsible partner failed to attend, as requested by the Panel, and the presenting officer for the NCTL case was also unavailable to respond to questions). This Note, the Panel concluded, contained an admission that they and the defence lawyers had been deliberately misled. The Panel decision sets out the reasons for the discontinuation, but it also rehearsed reasons why it had not previously stopped the case in the light of other claimed problems with procedures.

The Panel considered the claims in the light of article 6 of the European Convention on Human Rights concerning the right to a fair trial.³⁶⁹ The Crown Prosecution Service also provides guidance on fair process.³⁷⁰ It does so under four headings: delay; adverse media publicity; non-disclosure by prosecutor; and inability of the defence to examine evidence or to question prosecution witnesses. The NCTL Hearings potentially failed under all four categories.³⁷¹ For example, the hearings were still underway nearly three years after the allegations were first raised in the Kershaw and Clarke Reports. In the meantime, the media had reported those allegations as fact, with the government citing the Trojan Horse affair in justification of its counter-extremism strategy in October 2015 just as the substantive hearings were starting. The delays allowed adverse publicity to build and continue uncontested for a very significant length of time.

Indeed, the then Secretary for State for Education, Nicky Morgan, gave a major speech in January 2016 at Bethnal Green Academy where she stated:

what defines every extremist organisation throughout history is that more than anything else their mission is to close and narrow young minds – to indoctrinate, instruct and inspire hatred. That’s what we saw in the Birmingham schools at the heart of the Trojan Horse Affair: a concerted attempt to limit young people’s world view and spread poisonous views which had no place in our education system.³⁷²

This is significant since the NCTL hearings report to the Secretary for State to decide on the nature of the sanction to be applied in the light of any findings of misconduct, findings and sanction which she seemed to have presumed in her speech and in advance of the conclusion of the hearings. Nicky Morgan went on to declare, ‘that’s why we are taking action to remove those responsible from our classrooms’.

The Panel’s reasoning addresses each issue singly, without, however, considering how they are mutually compounded. The Panel found precedents where the dates of hearings were taking place over a number of months, and also proposed that judgements by a Panel of three members when compared with a decision by a judge sitting alone would be likely to take up more time.³⁷³ Of course, the latter suggests that more time should have been scheduled, it does not explain the fact that the times set aside for the hearings were fragmented. It is not unusual for insufficient time to have been scheduled in the light of the nature of arguments that emerge in the course of the consideration of evidence. What is most unusual is for a hearing to begin in the knowledge that it is going to take place over fragmented sessions.

Were the hearing to have continued, the Panel would have been basing its decision on its recollection of witness statements going back 18 months. However, it was argued that the production of transcripts facilitated recall: ‘the Panel was able to maintain a clear recollection of the witnesses who gave evidence but, even had this been an issue, it would not have been ameliorated to any extent by the hearing taking place in one block of time taking account of the fact that it took place over 34 days.’³⁷⁴ They also cited a judgement in another case to the effect that, ‘the balance must always be struck between the public interest in ensuring that those who are accused of serious crimes should be tried and the competing public interest in ensuring that executive misconduct does not undermine public confidence in the criminal justice system and bring it into disrepute’.³⁷⁵ As we shall see, the Panel seems to be extraordinarily willing to regard ‘executive misconduct’ as a singular event and not something that is evident from the special Ofsted reports onwards. In its view, failures of process are contingent rather than systematic. In addition, the Panel was not considering a ‘serious crime’, but a charge of ‘professional misconduct’ where the consequences were grave for those concerned but where the public interest would be best served by a judicious consideration of the evidence, rather than one where the rights of those accused were breached.

Lawyers for the defence in Hearing 1 had raised a number of fundamental issues with how the NCTL was conducting the case(s). These were associated with the separation of the different hearings and the problem of late disclosure. These were issues that followed the quashing of the judgement in Hearing 2 and arose as a concern when the Panel appeared minded to consider late disclosure as a ‘misunderstanding’ rather than deliberate. The Panel had convened on 3 May to consider this matter, before being presented with the Note from the NCTL solicitors. The defence lawyers were also concerned about the ‘framing’ of the charges against the teachers by the NCTL. We will discuss the latter in the next section.

The hearings were not only fragmented in terms of hearing evidence, they were also separated. It is not clear why this was done. NCTL probably thought it was relatively unproblematic, with all cases initially due to conclude at more or less the same time – 18 December 2015 for Hearing 1 and 18 November for the other hearings. However, even this gap might be taken to be prejudicial for judgements in any later case. This is especially so given that the charges against all the teachers were, in effect, that they were involved in a conspiracy (as the Clarke Report had alleged). Guilty outcomes in the earlier hearings of junior teachers would potentially put pressure upon Panel members in the later hearing, since it would not be comprehensible that the junior teachers could be found guilty of something for which their seniors were not also guilty. In the case of a conspiracy, it would be usual for all those party to it to be heard together, even if their defences might be different and relate to their degree of seniority.

The evidence presented in the hearings, especially that presented for the defence, was different at each hearing. Clearly, there was a risk that the same instances of alleged illegitimate practices would be presented in the different hearings, with counter-evidence unavailable to some of those hearings. This would offer the possibility of contrary findings on matters supposedly of ‘fact’. This became a reality when the findings in Hearing 2 were quashed in the light of the failure to disclose evidence. The judge did not rule on whether the new evidence would have led to a different conclusion, since that evidence was currently under determination in Hearing 1. Nor did the judge state that the separation of hearings could not lead to a fair outcome, as the appeal had proposed; that was a matter that would also need to be considered in the light of what happened at those other hearings, possibly as the basis of separate appeals to the High Court.

The issues of concern are broad in that, where witnesses appear across different hearings, their responses to questioning can become ‘rehearsed’, especially if not challenged because the evidence to do so was not available. This compounds the problem that earlier media reporting might also be regarded by witnesses as having corroborated their own understandings, for example regarding the status of Islamic practices in a supposedly ‘secular’ school.³⁷⁶

These concerns arose in Hearing 1, when, following limited disclosure of the Clarke transcripts for the purpose of determining their relevance and, therefore, admissibility, one of the lawyers for the defence noticed similarities between their content and statements given in written evidence submitted to the hearing. She inferred that this suggested that the witnesses to the hearing had their testimony to the Clarke Report to hand when preparing their statements. She was severely criticised for the impropriety of her inference, with the view expressed by the presenting officer for the NCTL case that ‘it was not surprising that there should be such similarity because it just means that the witnesses’ accounts are consistent’.³⁷⁷

The Panel was further confronted by the fact that late disclosure occurred after witnesses had already appeared and they could not be cross-examined about their evidence. However, following a lengthy discussion across four pages, the Panel concluded that allowing the submission of new evidence (arising from some of the Clarke transcripts, but also of other documents, amounting to some 1600 pages) would enable the defence to challenge the credibility and reliability of some evidence without the need for cross-examination.³⁷⁸ Indeed, in the view of the Panel some statements directly supported the defence case, so cross-examination was not necessary. In other instances, it was the presenting officer for NCTL that might wish to cross examine, but ‘it is very unlikely that such an application from NCTL would find any favour with the Panel’. It had already been confirmed that the NCTL presenting officer ‘did not intend to apply for leave to submit any further evidence’. None of these difficulties, in the Panel’s view, made it impossible for the teachers to receive a fair hearing, notwithstanding that it was a ‘wholly unsatisfactory situation’.³⁷⁹

The Panel summed up:

Clearly, what should have happened is that the NCTL, with the assistance of its lawyers, should have fulfilled its responsibilities with regard to disclosure before the hearing commenced. The material disclosed since November 2016 which, by the NCTL’s own admission, is capable of assisting the teachers’ case or damaging that of the NCTL, should have been available to the teachers when preparing their defences to the allegations prior to the commencement of the hearing in October 2015. It should also have been available when testing the evidence of the NCTL’s witnesses.³⁸⁰

No doubt the Panel was moved in its opinion by the ‘genuine public interest and importance in knowing the findings of the Panel in respect of the allegations which have been made’. In the end, it emerged that the Panel had been misled and it judged that, ‘there has been a lack of candour and openness with regard to the underlying reasons for those failures and a lack of cooperation in assisting the Panel to get to the bottom of what has happened’. Even at this point it regarded it as ‘an extraordinarily serious error of judgement as opposed to bad faith’. However, the case was discontinued because it was, ‘of such seriousness that it offends the Panel’s sense of justice and propriety’.³⁸¹

What, we might ask, of the sense of justice of the teachers? The case was discontinued without clearing them of the charges against them and alongside continued publicity of claims that were rebutted at the hearings. It is to this we now turn: the nature of the charges and the evidence associated with them.

… as charged

In this section, we will consider the charges against the teachers, for which they were to be judged by the Panels at the different hearings. We will consider Hearing 1 in detail, since that is where the core of the case against all the teachers was to be made.

As we have seen, what lies behind all the cases are the various reports on the Trojan Horse affair, but especially the Clarke Report, which recommended that misconduct cases be brought against teachers for their involvement in a ‘plot’ that it claimed to have uncovered. The Clarke Report (but not the Kershaw Report) was provided as evidence by the NCTL in presenting its case. However, it was offered only as the ‘background’ against which the case was being brought. In the light of the failure to disclose evidence from the report, it would seem that this ambiguity of status was designed precisely to avoid directly addressing witness statements made to the Clarke team. In the Opening Note of the NCTL case (which documents and explains the charges), it is stated:

the case has attracted considerable publicity but you will set that all aside and decide the matter judiciously according to the evidence. It has also generated a number of enquiries and you have the Clarke report within your papers. That report is not, though, the primary evidence on which you should decide this case. Whereas it contains useful background information, the primary evidence comes from the witnesses from whom you will hear.³⁸²

Of course, the publicity associated with the Clarke Report was very significant. However, while the report was to be regarded as a source of ‘information’, it was not something that could be tested at the hearing, except indirectly.³⁸³ At the outset, then, the intention was that some of the witnesses who had provided evidence to the Clarke (and Kershaw) investigations would present their testimony separately to the NCTL hearing. It would only be this evidence that would be tested, though it would be treated as evidence of the conspiracy that was outlined in the Clarke Report. It was this approach by NCTL which was in disarray once it was admitted that the witness statements provided as evidence to the NCTL hearing had been drawn up in the light of earlier statements to the Clarke team – in other words, they were basing their evidence to the NCTL on transcripts previously supplied to the Clarke enquiry.³⁸⁴

The Opening Note does, however, contain a very significant variation from the Clarke Report, at the same time as upholding that report’s narrative of a conspiracy. According to the NCTL, the case was not about extremism. Instead, the case was about:

the failure to respect diversity. The education of children in a number of schools in Birmingham was altered at the instigation of a group of like-minded individuals who all shared deeply-held religious beliefs. They were not malicious or ill-willed but they believed that the best way to educate the children of their community was to make them mirror their vision of good Muslims.³⁸⁵

This approach was somewhat compromised by the fact that one of their key witnesses was an education adviser to the Clarke Report, Ann Connor, who had also been a member of the EFA Review of PVET. She did believe that the case was one of extremism, as defined under Prevent, although, under cross-examination, she was unable to provide any details of guidance to schools, other than the July 2015 guidance, which post-dated the period in question.³⁸⁶

Indeed, the Panel in Hearing 2 made its initial judgement of findings in line with that set out in the Opening Note for Hearing 1, that the case was not about extremism. However, it was asked by the DfE to amend this aspect of its judgement. Thus, Mr Justice Phillips, in his High Court judgement, states:

The Panel expressly stated in each decision, when pronounced on 9 February 2016, that the allegations were ‘in no way concerned with extremism’. It appears that this wording troubled the Head of the Department for Education’s Due Diligence and Counter Extremism Group, Hardip Begol. He asked for publication to be delayed pending ‘clarification’. With the apparent agreement of the chair of the Panel, the decisions were amended prior to publication so as to state that the allegations against Mr Anwar and Mr Ahmed were ‘in no way concerned with violent extremism’.³⁸⁷

The nature of the EFA Review’s attitude to the PVET was also a matter of concern for the lawyers representing the teachers in Hearing 1. Ann Connor, for example, declared that she had limited knowledge of discussions at the DfE that might have taken place as part of the preparations for the EFA Review of the Trust and which may have guided it in terms of what it was looking for.³⁸⁸ This was so, she claimed, notwithstanding that individuals from the Department’s Due Diligence and Counter Extremism Division were involved in the visits. However, subsequent disclosure of evidence revealed email exchanges at the DfE that indicated the pressures brought to bear upon officials. The Panel commented that ‘no doubt it would be argued that this further undermined her credibility and the reliability of her evidence’.³⁸⁹

The idea of a conspiracy between individuals and across schools, which was such a significant part of the Clarke Report, is also evident in the Opening Note. The evidence, it states, is focused:

on two secondary schools, Park View and Golden Hillock, and one primary school, Nansen, but the pattern of behaviour, and the network of contacts, extended beyond those schools to others in the same local area … The similar changes wrought in different schools were not co-incidental. There was agreement between the teachers in this case, in concert with other teachers and Governors, to increase the religious content of education to a level more like that provided in faith schools.³⁹⁰

The Opening Note is also accompanied by charges against each teacher. One of the features of a court case is that the charges need to be ‘particularised’; that is, they need to identify and differentiate charges against individuals, as well as identify the nature of the evidence that is associated with those charges. This is to enable the defence to prepare its case. The Panel accepted that this was not properly done and that this had been a concern of the defence team from the start. The Panel writes, ‘concerns with regard to the difficulty experienced by the teachers and their representatives in understanding the NCTL’s case in respect of the allegations and their particulars have been expressed from the outset’. The Panel goes on to state that cross-referencing of evidence to the allegations in the Opening Note under discussion at the case management hearing on 27 August 2015 ‘did not happen to the extent that it should have’. However, the Panel judged that the fact that the defence had presented arguments and evidence against the allegations provided effective particularisation, notwithstanding that the onus of particularisation properly fell on the NCTL! Thus, ‘the Panel’s assessment of the cross-examination of the NCTL’s witnesses by those representing the teachers is that it was focussed and relevant to the issues to be determined by the Panel’.³⁹¹

A glaring example of the problem of the particularisation is evident in the first of the (three) charges, which is the one involving conspiracy associated with undue religious influence (where particularisation is especially important). Thus, a typical set of charges reads:

1. … you agreed with others to the inclusion of an undue amount of religious influence in the education of the pupils at … School and/or … School … by: 2. a. appointing members of staff who might assist with that aim, b. reforming the … School’s curriculum to exclude the proper teaching of Sex and Relationship education, c. organising and/or delivering assemblies and/or meetings of an overly religious nature and/or with inappropriate content; 3. Your conduct as described in paragraph 1 above tended to undermine tolerance and/or respect for the faith and beliefs of others.³⁹²

The charges are not particularised with regard to time or with regard to what constitutes undue religious influence. The charges cover the period from 2001 through to March 2014, yet the teachers were appointed at different times and with different (and changing) roles. As we have seen, this time period also covers the period when Park View was improving and before and after it became an academy. With regard to the second issue, the very reference to undue religious influence supposes the possibility of an appropriate amount of religious influence (as, indeed, follows from the legal requirements of religious education and collective worship). In these circumstances, then, it is necessary for a line to be drawn, where practices can be identified as falling on one or other side of that line. The NCTL called upon no expert witness to establish a benchmark for their claim about undue religious influence and seemed to approach the matter through itemising specific instances.

It is necessary to reproduce the Panel’s comment at length about this approach:

The Panel considers that the teachers understood what the case was primarily about, namely the allegation of the existence of an agreement to the inclusion of an undue amount of religious influence in the education of pupils at one or more of three schools. However, the way in which the allegations were particularised meant that there had to be a careful and close scrutiny of the evidence to determine whether, in respect of allegation 1 for example, any of the particulars had been found proved in order then to determine whether the overarching allegation contained in allegation 1 was proved. There is the added complexity that, within certain of the particulars themselves, alleged conduct and alleged events and alleged characteristics were pleaded in the alternative. For example, in respect of particular 1(d), the Panel calculated that, in respect of this particular alone, it is necessary to reach 64 separate decisions.³⁹³

It may be noted that this degree of complexity should also be understood in the context of the failure to join the different hearings and delays, as well as the issue of the disclosure of new evidence bearing upon those manifold decisions.

But let us now turn to what some of that evidence might be. As we noted in Chapter Seven, recruitment practices (for example, the failure to advertise the ‘acting’ positions that were a consequence of the movement of staff across the schools as part of putting in place a programme of improvement) were also part of the process associated with the stalled takeover of Al-Furqan primary school and involved the DfE’s approval. The NCTL did not provide any context or evidence relating to ‘interactions’ between teachers at Park View and Golden Hillock and Nansen, for example, involving Park View Academy as a sponsoring academy as part of an intervention in the other two schools at the behest of the DfE in discussion with Birmingham LEA officials. The intervention is implied as seeking to bring about undue religious influence, rather than to improve academic performance. Indeed, evidence provided by an adviser on academy sponsorship at the DfE and given to the Clarke Report, but not discussed there, confirmed the DfE’s positive engagement with PVET and that there was no concern about extremism or problematic religious influence.

Moreover, failure to establish a clear timeline meant that there was no clear distinction made between recruitment practices under the auspices of the LEA (prior to 2012) and those undertaken after the formation of PVET when appointments were made by the governing body of the Trust. In addition, witnesses were recalling events that were also reported in the press, which may have influenced their testimony. This is an issue addressed by the Panel when discussing the disclosure of documents that were withheld.³⁹⁴ A similar problem arises with regard to the government modification of the Prevent strategy after 2015 to include the ending of partnerships with Muslim organisations. While Peter Clarke is clearly sympathetic to this development – after all, he regards the Muslim Council of Britain as a problematic organisation – it means that such judgements are applied retrospectively. Thus, Sheikh Shady Alsuleiman is regarded as an ‘extremist’ speaker, who gave a talk at the school in 2013, yet he was widely consulted by schools and educational authorities in Australia and had not at the time been subject to any sanction.³⁹⁵

Of course, the issue of religion and academic performance need not be seen as mutually exclusive, as we saw in Chapter Six. However, the practices associated with PVET are understood by NCTL to involve a ‘religious monoculture’ in so far as they failed to respect diversity. However, as we saw, while a religious or cultural ‘monoculture’ is not correlated with academic success, confidence in one’s own religious or cultural background on the part of ethnic minority pupils is associated with success.

The core of the case against the teachers was that of an ‘inclusion of an undue amount of religious influence in the education of pupils’ and that this entailed a ‘failure to respect diversity’. Yet we have seen that there is a requirement on all schools to provide religious education and collective worship. We have also seen that the latter need not be Christian and a ‘determination’ can specify other forms of collective worship. The NCTL case makes a surprising admission that ‘many schools do not teach according to an agreed religious education syllabus or provide a daily act of collective worship despite the legal requirements’. The argument goes on:

you may think that it would be ludicrous, or offensive, in a school with a 98% or higher Muslim intake to require the children to undergo an act of Christian worship. We do not, therefore, criticise these teachers for failing to do so, nor for not specifically teaching the Birmingham Agreed Syllabus for Religious Education (although it remains a useful benchmark for what broad and balanced religious education should look like). Rather, it is what they did instead that is the basis of the allegations.³⁹⁶

We have already presented the key features of the Birmingham agreed syllabus, in particular that it is based on the idea of common ‘dispositions’ which are exemplified across different religious traditions. It is a syllabus that is particularly well suited to the circumstances of multi-faith and multicultural communities such as Birmingham. It is also effective in promoting children’s understanding of, and respect for, diversity. While secularism is not part of the syllabus, as we saw, secular values – for example, democracy and the rule of law – would be part of a curriculum on citizenship education, such as that taught at Park View.

The NCTL was not referring specifically to the Birmingham syllabus. It was basing its case on what would be entailed by any locally agreed syllabus; such a syllabus, in principle, would be a ‘useful benchmark for what a broad and balanced religious education should look like’. Because Park View Academy, as an academy, did not have to teach such a syllabus, there is an assumption that it did not. This is not the case. The NCTL’s very benchmark, against which Park View might be judged, was precisely what was being taught at the school. Notice, though, that the syllabus for religious education is not particularised in the charges set out above, and nor was evidence provided about the religious education curriculum; for example, no evidence was provided of lesson plans deemed to be problematic. So what, then, is the evidence of ‘undue religious influence’?

We have already seen in Chapter Four that the locally agreed syllabus for religious education was controversial even though it was arrived at through a consensual process. In a similar manner, not all witnesses against the teachers believed that Islamic collective worship is appropriate in a school, even where there is a determination, and certainly not after the determination has lapsed (notwithstanding the failure of the DfE to put in place measures for renewal). The NCTL claims not to take this view. Instead, the Opening Note suggests that the problem is that the assemblies are potentially ‘too denominational’ in their approach to Islam (an interpretation of the fact that Christian collective worship is not supposed to be denominational, though the NCTL Opening Note accepts that Islam does not have ‘denominations’ as such). However, this seems to derive from their understanding that, of the five senior teachers under scrutiny, the three who are Muslims share a Sunni religious affiliation (as does Tahir Alam).

Nonetheless, the Department of Education’s adviser to the Clarke Report and member of the EFA Review of PVET, Ann Connor, testified that when the ‘determination’ lapsed in 2012, Park View Academy should have reverted to Christian worship. When asked about the possible impact on children at the school (98.9% of whom were Muslim), her response was that ‘there isn’t any reason why the, um, the nature of the worship shouldn’t have prepared the children, and there’s also a possibility for, um, the teaching of Islam in other, in other aspects of school life in religious education’.³⁹⁷ In other words, while Christian collective worship would be unproblematic (‘preparing children for life in modern Britain’), notwithstanding the background of the pupils, Islamic collective worship is suggested to be problematic in itself. It also rather misses the point that collective worship is supposed to afford pupils a moment of spiritual reflection on values, not information about Britain’s religious heritage.

Moreover, much of what was taking place at Park View school was subject to scrutiny and review by Birmingham SACRE. According to evidence from Simone Whitehouse, Religious Education Adviser to Birmingham Schools and Birmingham SACRE, Nansen Primary had a determination which ran until September 2016, while that of Park View Academy was due for renewal in April 2013. Golden Hillock had a determination for ‘multi-faith assemblies’ which expired in November 1998 (but of course, it did not enter under PVET’s remit until 2012). The most recent submission from Park View was from September 2008 and it provided a description of what an assembly would involve, as well as an explanation that space constraints made it impossible to have ‘whole school’ assemblies:

Prior to starting, a Qur’anic recitation is played to create atmosphere for worship. The format for Collective Worship that is adhered to is as follows: Greeting (Assalaam Al-Alaikum); Recitation from Qur’an in Arabic and English; Delivery of theme which may be using a story, poetry, audio or visual aids; Opportunity to reflect on what has been said; Prayer (Du’a) in Arabic and English.³⁹⁸

The application also explains that private prayer facilities are available to students.

Simone Whitehouse’s evidence to the Clarke Report was more extensive, bearing directly upon the claim by witnesses put forward by NCTL that there should not have been collective worship that was wholly Islamic even where there was a determination. The Panel commented on the disclosure of this evidence that:

in her interview for the purposes of the Clarke Report, SW goes into considerably more detail about SACRE and her role within it. In particular, it is suggested by Ms Langdon that the account SW gave to Peter Clarke conflicts with the evidence of NCTL witnesses who had been saying that it was wrong for collective worship to be solely about Islam when a school had a determination but SW, who had been with SACRE for 9 years, said it was acceptable.³⁹⁹

It seems that not only was religious education provided to the ‘benchmark’ of Birmingham SACRE’s locally agreed syllabus, its provision of collective worship and other provision for Muslim pupils was also approved by them (and, of course, commended by Ofsted prior to March 2014). Despite the idea that announcing the time for prayer, or displaying posters, was regarded as coercive by some witnesses, only about 20% of pupils made use of the facility of private prayer, with around 80% of girls wearing the ‘hijab’. Indeed, girls at the school complained about being asked by the EFA inspection team, ‘who forced you to wear a headscarf?’,⁴⁰⁰ as if it could not be understood as a voluntary expression of religious commitment.⁴⁰¹

In failing to set out how Park View ‘deviated’ from what had been subject to scrutiny and review, ‘undue religious influence’ for NCTL became a matter of specific instances claimed by witnesses as not right, but subject to cross-examination as to their real substance. Let us take several of them, in turn. A number arise from the visit to the schools as part of the EFA Review which refers to their ‘Islamic focus’. We have already had occasion to refer to Ann Connor’s views (once again, she was a member of the EFA Review of PVET and adviser to the Clarke Report). She also seemed to believe that the curriculum should be ‘compartmentalised’ – that is, that it would be inappropriate if reference to Islam arose in lessons other than religious education. This included classes in PSHE, where she commented that ‘I could see no reason in a, a non-faith lesson for the word “Muslim” to be in the books’.⁴⁰² Of course, as we saw in Chapter Three, meeting the cultural and religious sensitivities of children and their parents is precisely what is recommended in guidance provided to schools. In other parts of her evidence, Ann Connor revealed herself also to be unaware of guidance on collective worship and religious education, as well as on promoting community cohesion, and did not see it as part of her role as education adviser to the Clarke Report to draw such guidance to the attention of the team.⁴⁰³ Nor was she aware of guidance about how to improve the academic performance of boys from Bangladeshi and Pakistani backgrounds, which included the use of examples from Islamic traditions within lessons.⁴⁰⁴

The cross-examination also shows that she interpreted the presence of posters of prayers in Arabic on some classroom walls – for example, in the maths classrooms – as an indication that pupils were encouraged to pray in classes, and perhaps end each lesson with a prayer. The children she spoke to on visits are presented as being nonplussed by her questions on this, but the posters are nonetheless cited by her as a problematic indication of an ‘Islamic focus’. The simple explanation was that, for reasons of space constraints (in part, deriving from building work), Park View held ‘group assemblies’ in form rooms. The posters she observed were related to the provision of collective worship and not an indication that prayer was part of all classes that took place in the room. Other kinds of displays were not recorded in reports or evidence statements, yet were described in notebooks of the EFA visit that were subsequently disclosed to the Hearing – one instance is the note: ‘walls covered with British history’.⁴⁰⁵

One of the main concerns for the lawyers acting for the teachers is that the EFA inspection team members seemed to have prior information about the context of their visit. This visit took place on 21 March, three days after the final day of the Ofsted inspection on 18 March. Both members of the inspection team who appeared before the NCTL Panel – Ann Connor and Anthony Dunne – deny that they were aware of the Trojan Horse affair, either from the media or from briefings from the DfE, although each accepted that the visit was focused on safeguarding and leadership and management rather than academic performance.⁴⁰⁶ Their cross-examination addresses statements made about observations of classes (lasting 10 to 15 minutes) and what appeared to the defence lawyers to be a lack of follow-up to clarify them. For example, Anthony Dunne described a music room in which he saw no evidence of musical instruments (although there were computers with musical keyboards attached and a large keyboard). Yet evidence provided by the head of music at Park View was that:

the curriculum covered topics such as blues, the history of pop music, in media and song writing. The students were all taught how to play the keyboard, compose their own music, learned how to work with music technology, whilst many also learned to play the guitar and steel bands. All students were also taught how to play the African drums and were encouraged to sing a wide variety of songs.

She goes on to say that she ‘ran music clubs every lunch hour. These clubs included the school choir. On average there were 40 members. There were ensemble groups, solo singing, steel bands, drumming and keyboard’.⁴⁰⁷

There were similar concerns about the lack of follow-up associated with Anthony Dunne’s account of a class for the lowest ability group in GCSE maths, in which he understood the class to be performing at the level of grade D and suggested that they could be encouraged to achieve grade C. A girl followed him out of the class and said she is not allowed to attend a supplementary class provided on Sunday mornings for pupils who might achieve a grade C with extra support. Anthony Dunne observed that the pupil was not wearing a hijab and therefore deduced that she is either not a Muslim, or is not devout. He met with the acting head teacher Monzoor Hussain, who expressed his consternation at what is described to him. This is taken as him being found out as having failed properly to monitor how pupils were selected for the supplementary class. However, it will be recalled that the school has particularly good achievements in maths, partly because of their interventions. Monzoor Hussain’s response reflected his perplexity about the situation being described to him. It transpired that the class was, in fact, at a level well below that surmised by Anthony Dunne (in fact, it was for grades E–G) and that the supplementary class was not available for the girl because it was not suitable for her level of ability.⁴⁰⁸

Another claim associated with other witnesses – staff at the school – was that a teacher issued a handout in a sex education class in which it was stated that wives must consent to sex with their husbands. The incident is described as taking place sometime in 2011 and a witness also reports arranging for the handout to be sent to the British Humanist Association.⁴⁰⁹ The witness also alleges failures of senior teachers to act when informed about the matter. However, it was accepted on cross-examination that the incident involved a printout from an internet source distributed by some boys and not a teacher. It was also accepted that when brought to the attention of the senior teacher with responsibility in the area, it was made a topic in the next assembly when it was clearly repudiated with the statement that consent was required under English law and by Islamic teaching.⁴¹⁰

There were also allegations about gender segregation, although, as we have seen, it is something that is allowed for in PE and sensitive topics in PSHE. We have also seen that a preference among pupils for same-sex socialising during meals and breaks, as well when sitting in classes, is well documented and is independent of religious orientation.⁴¹¹ Park View was also involved in major building works between 2011 and 2013, which meant that there were constraints on space, something we have already noted with regard to holding assemblies. However, having separate classes for PE meant that there needed to be separate classes for the subject scheduled at the same time (for example, for boys, when girls were at PE). This was the case for some religious education classes, but follows from the inability to schedule separate PE classes at the same time.⁴¹²

Allegations were also made that the ‘celebration of Christmas’ was banned at Nansen Primary. It should be recalled that the main concern within the Trust was how to raise academic performance at the schools they were asked to sponsor. They were concerned that preparing for Christmas was taking up too much time, with children being shown videos and doing other activities that were a distraction from the improvement that was being sought. In this context, it was proposed that celebration of Christmas should be restricted to the last week of term and activities should also have a substantive aim. Documentary evidence was provided to show what was suggested – for example, in literacy/religious education it was proposed that children could listen to, and retell, ‘The Story of the Nativity’; in art/design technology pupils could make moving Christmas cards; while in mathematics there could be an identification of symmetry within churches. The final afternoon of the term involved a party where pupils brought and shared food and had a celebration before leaving for the Christmas break.

If it is made to appear by the nature of the charges that the experience of pupils at PVET was ‘joyless’, and perhaps overly committed to academic success, we should recall the warm commendations that are otherwise found in Ofsted reports prior to the Trojan Horse affair. However, there is one area where Park View’s approach comes under particular scrutiny. This concerns the alleged role of prefects in monitoring relationships among pupils. It is alleged that the school forbade physical relationships among pupils – for example, hand holding or kissing. It was school policy that pupils should conduct themselves professionally; but relationships were not, as such, forbidden, only their physical expression on school premises.⁴¹³ Prefects were not asked to report on personal relationships.

Indeed, in a different context, the school’s rules might have been regarded as ‘feminist’, rather than Islamic, and indicative of a proper safeguarding approach in seeking to protect pupils from harassment and sexual bullying. Indeed, in September 2016 the House of Commons Women and Equalities Committee published a report on the topic, including concern about behaviour that tended to be accepted as ‘low level banter’, which was widely reported.⁴¹⁴ In fact, Sir Michael Wilshaw adopted similar policies when he was headmaster of Mossbourne Academy. Thus, in an interview with the Guardian in 2010, it is reported that ‘hugging has been ruled unacceptable lest, as Wilshaw coyly puts it, “boys use it as an opportunity to do things they shouldn’t do”’.⁴¹⁵

Conclusion

At the heart of our argument is that there have been fundamental flaws in the NCTL case and of the investigations leading up to it. The first is associated with a failure properly to consider the context of the affair. Nowhere in the Clarke and Kershaw Reports, and nowhere in the NCTL hearings, is it acknowledged that Park View was a highly successful school and that the DfE and Birmingham City Council each believed that its sponsorship of Golden Hillock and Nansen schools would solve problems identified at each of those schools. This is most egregious when the criticism of academic achievement at those schools, and the subsequent resignation of the head teacher at Golden Hillock, are presented as having been instigated by teachers and governors at Park View. Their involvement comes afterwards, when their intervention is promoted as the solution to such problems.

PVET was accused of introducing an Islamic curriculum and practices. However, there is no evidence that this was outside the (non-statutory) guidance provided by many local authorities and other bodies. The simple and deeply worrying fact is that the authors and advisers associated with the Kershaw and Clarke Reports, as well as the NCTL itself, seemed unaware of practices in this area. This is most evident in their comparison of non-faith with faith schools and the claim that ‘undue religious influence’ meant the introduction of practices appropriate in a faith-designated school into a non-faith school. It seemed to be enough that some of the practices at the school(s) were Islamic, without there being any attempt to consider how that related to the nature of their pupil intake, the expectations of their local community and statutory requirements and guidelines on good practice.