Comment posted 2010 Schools Act: Hillhead School, Scottish Ministers’ Wick Determination and the cost of justice by Dr Douglas McKenzie.
Newsroom: one of the endless attraction of the law is that it can always be argued! Whether either of us are qualified to argue it is a mute point because if we are not then it rather stifles the discussion.
Nothing in the Act convinces me that the Minister closes schools, certainly not directly nor by collusion with the decision of a local authority. In the call in procedure the Minister does not judge on the merits of the case for closure (though I am sure he has his own opinions). The Minister’s powers relate solely to the determination of the competence of the procedures followed (including whether material facts were properly addressed during the consultation). Anything else is ultra vires. The school is closed by the decision of the LA. Ministerial call in may delay (perhaps indefinitely) that decision. The Minister does not sit in Olympian judgement over the fate of individual schools.
The Law is not like the laws of physics where we can define 5 sigma levels of certainty to our understanding. The Law is all about interpretation that, like Schrodinger’s cat, is only crystallised into some clarity when examined in a court of law.
The interpretation I have given is the one being followed by the Scottish Government. Other interpretations are possible: Highlande and Angus (and COSLA) believe in a much more truncated interpretation of the Minister’s powers; you believe that he could make a much more expansive interpretation of his powers. But what matters is the operational interpretation as that is what is driving things at present.
Regarding the call in team, I can see the logic of having this in the infrastructural team but I strongly agree that the lack of educational expertise makes this a nonsense when the core of the Act is the Educational Benefit Statement. The unit itself recognises it does not have the appropriate experience and relies instead on HMIE for guidance (they said as much to one of the school’s groups – I think it was Robslee). HMIE on the other hand don’t feel that they have any grasp of the economics. I think this may be at the root of this problem of an EBS being accepted if it is there even if it is a pile of mince.
I think the call in team should be enhanced in its expertise and you are also correct in arguing that potential conflicts in role between the infrastructure team’s wider remit and that of the call in team need to be addressed and that is best achieved by separating the two.
Of course, it was never anticipated or intended that the call in team would have been quite so busy.
Dr Douglas McKenzie also commented
- Newsroom: we are going round in circles on this . I’m not convinced by your argument and you are not by mine.
In practical terms much of this is semantic: if a school closure is not called in then the school closes (short of a legal challenge); if there is a ministerial call in but the proposal is allowed through then the school closes (short of a legal challenge); if the proposal is refused by the Minister then the process goes back to the LA to either abandon, start a new consultation or challenge the refusal. The school stays open in the meantime but it has not been saved. At no time, however, does the Minister close (or indeed save) a school: he merely grants or declines to grant permission for the closure to go ahead based on the LA’s adherence to the Act.
For Hillhead: what they are able to challenge is not the closure of the school, but the failure of the Minister to refuse the decision to close. This was perverse as the proposal was clearly legally incompetent (at least on the grounds of the information you have provided).
I repeat again, there is nothing in the Act that gives the Minister the power to judge on the relative merits of a closure case: he can only decide on whether the process was legally competent. I would personally like the Minister to be able judge on the merits of each case (and have the time to be able to examine each case in detail) but that is not what we have at present.
Regarding collusion, I’m sure the Mr Russell will be pleased that you have stated that it was not your intention to suggest that, as I felt this was exactly what some of the things you have written was suggesting, particularly in the case of Hillhead and the suggestion of collusion between the call in team and Highland Council.
Turning to the less circular part of this discussion: I don’t think HMIE are particularly suitable either and for two reasons:
1: There needs to be an independent examination of the EBS; placing the call in team within HMIE would result in the same conflicts of interest as occurs with the current set up – though possibly more in favour of the schools side of things than the LAs.
2: HMIE suggest themselves that they don’t have the economic expertise to judge on re-distributionist arguments used by LAs to justify closures so they just let these pass. Clearly the solution is to have a small team that contains both educational and economic expertise.
It would, I suspect, be difficult to justify having such a team solely for the purpose of call ins. One of the suggestions ARSN put to the Commission was that there was a need for scrutiny of LA closure proposals BEFORE they go to public consultation. This would adjudge if the proposals were competent under the Act at this stage and this would save a lot of shouting and waste of tax payers money. It would also reduce the numbers of call ins as these would become restricted to matters that arose during the actual formal consultation. The team would need to take a robust approach to challenging LA data supplied as part of the case for closure and good practise would be that extensive pre-proposal consultation will already have taken place. We don’t want just a box ticking exercise in scrutiny.
- I disagree.
The decision to close a school is made by the local authority after the statutory consultation and voted on by the local councillors. This is the decision to close or retain the school.
Ministerial call in is not a final judgement on the merits of the closure. What the call in does is give the Minister the opportunity to consider the process that has led up to the LA’s decision and in particular to determine if the consultation process was competent under the Act.
Even if the Minister does not give permission for the closure to proceed, there is nothing to stop the LA bringing forward a new proposal to consult on closure and if they get it right then there is nothing the Minister can (legally) do to prevent the closure.
This is the reality of the implementation of the Act and the fact that the provision of school facilities is the remit of LAs and not the Scottish Government.
I know from conversations with Sandy that he at least felt there was a catch all provision in the Act to allow the Minister to prevent closures where the proposal is legally competent but daft. However, this is not the advice coming from the SG’c lawyers. As I pointed out some months back, teh Ministerial call in procedure does not give parents and communities the protection they believed it did and this needs to be both recognised and changed.
As can be seen by the recourse to judicial reviews by both Angus and the Western isles, there are those who believe that Mr Russell already exceeds his authority whereas you criticise him for not blocking (at least temporarily) Robslee, Uyeasound and now Hillhead. A rock and a hard place!
The ministerial call in exists to block a local authority’s decision to close a school that has followed a legally incompetent consultation. It does not allow the Minister to judge on the relative merits of the closure proposal.
What I will give you is that approval for the Highland closures, of which Hillhead is part, should not have been given as the proposals were clearly incompetent as they did not contain an EBS. This is something that Mr Russell should either explain or hold his hands up and admit a mistake was made.
Turning to the judicial reviews: Western isles are basing their case on the premise that the closure proposals were all effectively the same so why were some accepted and some rejected? The answer is that the proposals may have been the same but the schools were not. I am fairly certain that the review will conclude that Mr Russell acted within his powers under the Act.
In the case of Angus, I am surprised they have even considered taking the Muirfield and Timmergreens decision to court. By their failing to comply with the legal requirements of the Act the decision will again be that the Minister acted within his powers.
The one judicial review that would go against the Minister would be Hillhead. The decision was perverse as the proposals from Highland clearly did not comply with the Act (which is why they were called in). I’m sure someone has already put in FoI requests for the correspondence between SG and Highland on this issue and it will be interesting to see if it was Highland’s officials that suggested the Caledonian exercise could be used as a surrogate EBS or if this came from the call in team.
Off to bed now!
- It is you who is deluded (and deliberately so I suggest).
Mr Russell hasn’t shut a school in his life: Robslee was shut by ERC and Hillhead may be shut by Highland. Unnecessary school closures whether sadly successful or not are the responsibility of local authorities and voters will remember that in May. I know why you are desperate to suggest otherwise but that is the truth.
As to your other comment below: you are correct that it is hearsay in that I was not at the meeting but I was told by someone who was. Hearsay yes but hardly groundless.
Have you really nothing better to do than keep issuing these very cheap and ineffectual shots?
- Having read Western Isle’s reasons for going to judicial review, I’m failing to see how they will achieve this through the legal process which will only determine if the Minister acted legally within his powers. They also decided to go for judicial review in the heat of the moment rather than after having an extensive dialogue with the SG (as has Angus).
As Churchill said: “jaw-jaw always better than war-war”
- Thank you for the wishes for a full recovery – certainly well enough to detect eye wash when I read it.
I noticed you said nothing in praise of Mr Russell when the Muirfield and Timmergreens decision came through.
As has been said many a time on here, you don’t give a flying cuss about any of these schools. Any excuse to bash the Nats and if you have the opportunity to take a swipe at those nasty degenerates in ARSN who showed your beloved Council Leader and his rag bag supporters to be nothing other than money wasting poltroons, then so much the better!
As you well know, you are (as usual) twisting my words. On Robslee my point was that the Act does not allow the Minister to oppose a closure on grounds other than a failure to adhere to the Act’s strictures. The fact that Mr Russell allowed ERC to proceed with the closure meant that the advice he had received was that ERC had complied with the requirements of the Act and he had no grounds upon which to refuse the proposal. What I said at the time was that this was an astonishing state of affairs as the Robslee proposal had no obvious educational benefit to either the children at Robslee or those at Giffnock. This showed that the Act was not working as intended ( at least by the defenders of rural schools) but Mr Russell had already acted on this in setting up the Commission.
The situation with Hillhead is entirely different. There was no unequivocal evidence that ERC had failed to comply with the Act whereas, as FA has laid out in exhaustive detail, Highland made a complete bourach of their proposals and Mr Russell’s department should have rejected the proposals for this reason, regardless of the underlying “rightness” of the overall proposal or parts therein.
The cock up in not doing this was compounded by the cack-handed attempt to excuse Highland Council’s failure to produce a competent EBS. What was going on in Education Scotland I don’t know but I am told that there is an acknowledgement within the Department that this was a cock up and that they have taken action (by writing to all the local authorities) to ensure that this does not constitute a precedent.
Ministers are responsible for the actions of their civil servants so Mr Russell deserves a skelp on the wrist for this state of affairs (and FA has already delivered a quite blistering condemnation). However, I for one, have confidence that Mr Russell’s heart is in the right place.
ARSN are working within the Commission and with SRSN to attempt to ensure that we achieve a clear and effective protection for rural schools that removes the imperfections of the Act and its interpretation. I have no doubt that this is what Mr Russell also seeks and so we support him in his endeavours. Should we become disabused of this notion then ARSN will oppose him.
However, we are very unlikely to do so at your behest as your motives are too naked to be given any credibility.
Get thee behind me “Simon”!
Recent comments by Dr Douglas McKenzie
- Rustle with Russell
More utter rubbish from Lynda Henderson. Have you actually spoken to Bob Allen? Whoever told you the story sold you a pup and in your arrogance you cannot admit to be wrong so you make up this story that he was persuaded not to resign.
Your position is completely untenable.
- Russell back in the bathtub, now trying to sink Keith Brown’s boat
I’m afraid you condemn yourself by your own words. I don’t think that anyone reading what you have written here and the language you have used would conclude anything other than that you have a deep dislike for Mr Russell and that dislike is leading you to basically lose all sense of either proportion or impartiality. It doesn’t matter how well (or otherwise) you know Mr Russell you are clearly exercised by your interpretation of his actions and it is leading you well beyond the pale in what I would consider fair comment.
This vendetta against Mr Russell and the SNP is destroying FA’s credibility and I have to confess that I’m seriously considering whether or not to continue reading FA (which will cheer Malcolm up if nothing else). I for one am becoming increasingly disenchanted by the constant negativity and sheer nastiness that has crept into this blog. I say that with a lot more sorrow than anger because I think that FA could have been great and indeed still could but there has to be a degree of balance, civility and indeed humour. All we are getting here is bile and it is causing me heartburn.
- Russell back in the bathtub, now trying to sink Keith Brown’s boat
To be honest, this post clearly shows that you are speaking from your personal dislike of Mr Russell rather than an unbiased analysis of the man. Phrases such as “publicity hungry coward” are well beyond what is reasonable comment.
- Russell back in the bathtub, now trying to sink Keith Brown’s boat
You don’t seem to understand the separation of a MSP’s duty to his or her constituency and their responsibilities as a Government Minister.
Yet again, this is another instance where a member of the Government can do no right: speak up and be condemned as “desperate” or stay silent and be accused of not serving your constituents’ interests.
It is just as well that Mr Russell has broad shoulders!
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