Address to National Association of Grammar Schools at Birmingham

14th October 2000

Michael J.Beloff QC: President, Trinity College, Oxford

Years ago, Tony Crosland, a former member of my college, said memorably that he wanted to "destroy every .... grammar school in the country". The adjective I have omitted is one which at the time he uttered it was normally never used in public, although it is nowadays about the only adjective one hears broadcast on Channel 5.

In a sense this speech is an act of redemption. I doubt that Trinity even then applauded Mr Crosland's remarks. He had long since left the groves of academe for the jungle of politics: and Trinity (or its President) certainly would certainly not applaud it now.

My professional life - what I sometimes call my daytime job as a QC, has twice involved me in litigation over the fate of the grammar schools.

In Smith v. ILEA, I failed to protect the last grammar school which had survived within the jurisdiction of the Inner London Education Authority Lord Denning set the scene in inimitable style.

"The St. Marylebone Grammar School has a proud record. It has continued for nearly 200 years to carry on a system of education, the grammar school system, which has served this country so well. Yet it is now under sentence of death. The sentence has been pronounced by the Inner London Education Authority and it has been confirmed by the Secretary of State for Education and Science. It has all been done with complete legality. Section 13 of the Education Act 1944 gives the education authority express power to 'cease to maintain' the grammar school. The education authority have quite regularly submitted proposals to that end to the Secretary of State; and the Secretary of State has approved them. Everything is quite in order on the face of it.

But there are many who are very concerned that such a fine school should be closed down. The parents of the boys and the headmaster come to these courts. They ask for a stay of execution. They hope that before long there may come a new government, and with it a new Minister, who will grant them a reprieve, and perhaps quash the sentence. So that the school may live, and not die.

It has cost the parents much money to come to these courts. They cannot get legal aid. They have had to subscribe their own funds. They have come, day by day, to listen anxiously as the arguments go to and fro. As the case proceeded, it became apparent that there is an important question under discussion: to what extent are the courts of law entitled to interfere with the decisions of the executive branches of government, local or national? Parliament has entrusted great powers to education authorities and to Ministers - including a power by which they may cease to maintain a school like the St Marylebone Grammar School. They can let it die for want of sustenance. So long as this power is used properly and not misused, the courts cannot interfere. Such is the sovereignty of Parliament which is fundamental in our constitution."

In Birmingham City Council v. Equal Opportunities Commission, the Council, the local education authority in this very city, provided selective secondary education in independent, single sex grammar schools for some five per cent of the children at the age of 11, [largely but not exclusively, the famous King Edward foundations]. But there were more grammar schools for boys than for girls in the area, and as an inevitable result, a girl pupil required higher marks in the entrance examination to gain a grammar school place than did a boy. The Equal Opportunities Commission alleged that the council in carrying out its statutory duty was discriminating against girls contrary to the Sex Discrimination Act 1975.

The House of Lords held that to establish for the purposes of the Act that the council treated girl pupils less favourably on the ground of their sex than it treated boy pupils it was unnecessary to establish intention or motive on the part of the council to discriminate against girls. Therefore the council, in maintaining the existing grammar schools in its area with the resultant disparity in the numbers of places available for boys and girls, was in breach of the Act.

Lord Goff said

"it is not, in my opinion, necessary for the commission to show that selective education is "better" than non-selective education. It is enough that, by denying the girls the same opportunity as the boys, the council is depriving them of a choice which (as the facts show) is valued by them, or at least by their parents, and which (even though others may take a different view) is a choice obviously valued, on reasonable grounds, by many others."

Although Lord Goff, as you can see, avoided drawing invidious comparisons between the merits of selective and non-selective education, and the judges in both cases uttered the conventional disclaimer of preference for one system over another, it is hard to read their judgments without recognising that the sympathies of the Bench were very much with the supporters of grammar school education. Lord Denning, of course, was never one to conceal his emotions - they were worn on the sleeve of his judicial gown.

It was also clear to the Judges that the process of achieving equality inevitably involves levelling down, not up. The comprehensive ideology, as Geoffrey Lane LJ, a future Lord Chief Justice, observed in the Marylebone Grammar School case "depends upon each school having its quota of the bright and not so bright". And indeed Birmingham in the end solved its dispute with the EOC by converting one boy's grammar into a non-selective school - levelling down, not levelling up on a regional basis. Finally, it is clear that the judges did not believe that all children are equal - and that any diversity of achievement between them is the result of nurture, not nature. For Geoffrey Lane, I repeat, children are 'bright and not so bright'. One of those incidentally who was the brightest, was Peter Taylor, Lord Taylor of Gosforth, Lord Lane's successor as Lord Chief Justice, a rare combination of Jew and Geordie who was a product of Royal Grammar School, Newcastle and whose career I am myself summarising in an essay for the next volume of the Dictionary of National Biography. Was not Peter Taylor, and others like him, a fine example of the ladder of opportunity that grammar schools once provided to children from whatever background of high ability - the engines of true meritocracy, the inspirers of a truly classless society?

But the law cannot save the grammar schools. Even the European Convention on Human Rights, which entitles parents to have their philosophical convictions respected in the education of their children cannot be stretched to compel the state to promote, or even protect, selective schooling. In any event, a fiscally prudent government in incorporating the Convention into domestic law by the new Human Rights Act has made a reservation that refers to "the avoidance of unreasonable public expenditure". Governments can introduce and have already introduced legislation which lays down grounds rules of achieving the abolition of grammar schools. But the crabwise approach in 1999 legislation allowing local demand for ballot to trigger abolition has hardly created more than inconvenience for the supporters of the local grammar schools; opponents of selection by 11 plus have failed to force ballots in Barnet, Trafford, Kent and Ripon. However, Governments could, in the future, simply provide for abolition full stop - and no judge could prevent them.

So grammar schools will have to win a stay of execution on their own merits ...

What then is the case for the grammar schools?

Firstly, they work. They produce excellent results in national public examinations at GCSE and 'A' levels. The case against them has never indeed been that the education they give is other than of the highest standards. It is the effect on those who in the state sector, are educated elsewhere than at grammar schools, not on those who are educated at grammar schools which is said to require their abolition. But the old maxim "If it ain't broke, don't fix it" - adapted suitably to "If it ain't broke, don't throw it away", seems to me an apposite guide. It would require a very strong case to justify the destruction of a proven provider of high class education - it is not as if there are so many fine state schools that the grammars can be thought somehow superfluous to requirements. When the 250 top state schools were listed in The Times on publication of the 'A' level results this year, 17 out of the top 20 were selective schools and the highest comprehensive school was in 9th place. That school, the deceptively named Watford Grammar, is now, interestingly, introducing a measure of selection in its admissions.

Secondly, in almost every other walk of life the production or preservation of a elite fairly chosen is regarded as virtuous, not the reverse; and no-one seriously seeks to deny the fact that in certain areas some excel more than others - indeed, to be blunter, if less politically correct, that some excel, and others do not. No-one suggests that Manchester United's team should be chosen on a comprehensive basis, without consideration to the perceptible skills of the potential players - although I am bound to confess that such a curious method of selection might be the best explanation for the failure of the English football team in Euro 2000 and more recent matches.

Thirdly, in fact this Government has recognised that special talents demand special teaching - even within comprehensive schools, as, for example, streaming in music, languages or maths. Once the principle is accepted that not all men are created equal - in their abilities - that not even all women are created equal in their abilities - then it becomes the more difficult to make a coherent case against selective education across the board.

Fourthly, however, often educational sociologists or campaigning politicians suggest that mixed ability teaching does not hold back the ablest, anyone who has ever taught anyone for however limited a period of time knows that it just isn't true. Honesty is, I often feel, is the main quality missing from the debate about education. If only those whose oppose selective education at secondary level - and I respect their sincerity - would admit that they are - as is their right - preferring the values of social equality to those of educational excellence, then the debate as to the future of the grammar schools could at least go forward on a sound footing. Instead of which such opponents are compelled to pretend that, despite the failures significant - not universal, of course - of the many areas of the comprehensive system - all is for the best in the best of all possible brave new worlds. At the same time, as we know - no names, no packdrill - they send their own children to independent or grammar schools, or ensure that they live in a catchment area where the non-selective admissions policy conceals in fact a rigorous selection by wealth and social background.

From the perspective of an Oxford Head of House, the most dispiriting feature is that the charge launched so recently and opportunistically by the Chancellor of the Exchequer - that we take a disproportionate number of our intake from independent schools conceals the fact that so many of the schools from which that intake is derived are in fact ancient grammar schools, forced into the private sector because of the policies of the Governments of the 1960s and 1970s. Perhaps Gordon Brown's new and charming wife can educate him in her own skills as a public relations expert? The attack had every virtue - except accuracy and fairness. It proved only that Tony Blair made the wrong decision in taking even a day's paternity leave. We are like Sisyphus in the Greek myth condemned to pushing a rock up a hill which, just as it reached the summit falls back downhill to the bottom again. And at the same time, the Government deters the doubtful from seeking university admission at all by penalising them financially at point of entry as applicants rather than - as in my judgment would be more equitable - after their departure as graduates.

The debate about Oxford admissions is conducted in partisan and self-serving terms - although we may relish the irony that at the same time as Oxford is said to be slipping, to be out of touch, to represent the past, not the future, there is so much pressure on places there. As my late father Max Beloff once put it pithily; - the confused attitude can be summarised in this way "Oxford is awful - why can't everyone go there?" Both the leaders of the independent and of the comprehensive sector say that we are biassed against their products of their schools. They cannot both be right: and in fact neither of them are. And I note that the Headmaster of Carre's Grammar School in Sleaford, Lincolnshire espoused a third way! He was quoted as saying "Some admissions tutors favour comprehensives, others independent schools and we seem to be lost in the middle with no-one loving us". He isn't right either - with all due respect - that's what barristers always say in Court when they are violently disagreeing with their opponent. At Trinity we love - at any rate we welcome - bright children wherever they come from.

We are enthusiastic about access - the buzz word on everyone's lips. We want to maximize the number of applications from every sector of education, from every area of the country, indeed in these days of educational globalization, from every area in the world. We involve ourselves in all the usual initiatives - and in some of our own. We are one of only two Oxford colleges which are allied in the programme instituted by Manchester Grammar School - a prime example of the flight from the state sector - to inculcate in local sixth formers the ambition and the skills to win through the Oxford entry process.

But soliciting applications is one thing; granting admission is another. At that point we are looking - and looking only - for potential, the applicant's ability to profit from the three or four year degree course which he or she has chosen. In that exercise we have to use judgment - achievement to date is only one factor to be weighed up - and judgment can be fallible. We sometimes make mistakes - as do other colleges. The college, it shall be unnamed, who turned down an applicant for physics, whom we, as his second choice, admitted, just have smiled ruefully when the final honours results were published this year, since he came top of the firsts by a mile and won the prestigious Gibbs prize.

But our aims should be clearly understood. We are in the business of picking the best - we are not in the business of social engineering. If the Government truly want the state sector % at Oxford to increase, it is up to them to commit to the secondary education system the resources, human and financial required to improve its products so that they can compete, without inequitable positive discrimination, against their public school peers. At this point the Government must mouth a silent prayer, because, of course, it is the students from your schools who contribute so significantly to making the statistics at least appear respectable. And I assure you, in so far as I can, that no-one from a background such as your schools provide will ever find other than a welcome if he or she applies to my college, or a fair crack of the whip in the selection process.

Recently David Blunkett - what the late Robin Day would have called a "here today - and, if I may say so, Minister, a gone tomorrow politician" prophesied that the Grammar Schools would all be gone by 2011 - although precisely why he selected that date as opposed to any other is a mystery. I suspect, however, that rumours of the abolition of grammar schools, like rumours of Mark Twain's death, will prove to have been greatly exaggerated.