Yesterday (14th December 2010) Scottish Ministers called in the four of the current proposals by Western Isles Council to close eleven primary schools on the islands.
The consultation procedure was complete, the council report written and the vote to close taken.
The calling-in process means that the final decision on the future of the school in question is taken by the Scottish Government in a considered interpretation of the governing law.
This has not always been the case, most damagingly in the case of Crossroads School in Ayrshire where the Government refused even to call in clearly flawed proposals and a healthy school was lost.
After Crossroads, the Government has had work to do to restore trust in the law and in its own respect for that law.
The Western Isles call-in
The opening of the Government press release yesterday, announcing the call-in says: ‘Ministers have decided to call-in proposals by Comhairle nan Eilean Siar to close two primary schools and end S1/2 provision at two further schools because of flaws in the Council’s consultation process’.
The proposals were part of plans by the council to close a total of eight primary schools and end S1/S2 provision at three.
The proposals that have been called in are:
- The closure of Carloway and Shelibost Primary Schools
- The closure of S1/S2 provision at Lionel and Shawbost Schools
The Education Secretary’s Statement
Education Secretary Michael Russell said: ‘I have taken the decision to call in four of the proposed eleven school closures in the Western Isles.
‘Closure decisions must always be taken by those with the best knowledge of local circumstances and who are elected by and accountable to the local community.
‘My role is not to retake a democratically taken decision but to ensure that a robust consultation process was properly followed and the educational benefits of these decisions are clear.
‘I believe that the council has not properly considered the alternatives to closure, the likely effect on the local community and the transport arrangements in its consultations on these school closures. I therefore believe that the Council’s consultation was flawed.
‘I will now carefully consider all cases further and determine whether or not to grant consent to the closures as quickly as possible’.
The reasons for calling in the Western Isles proposals
The press release says that Minister concluded that the four proposals called in demonstrated that Western Isles Council had failed to consider sufficiently ‘factors which councils must have special regard to before consulting on the closure of a rural school, which ensure that the closure of a rural school is a decision of last resort’.
It reminds its readers that: ‘The Schools (Consultation ) (Scotland) Act 2010 established a presumption against the closure of rural schools by ensuring that a decision to consult on a closure proposal cannot be made until the local authority has explored all possible alternatives and assessed the likely implications of closure’.
Then it lists the three factors a local authority ‘must take into account before proposing to close any rural school’.
These are:
- ‘any viable alternative to closure’
- ‘the likely effect on the local community if the school were to close’
- ‘the likely effect of different travelling arrangements occasioned by the closure’
The government judgments
- Shelibost Primary School in the Isle of Harris: In this case ‘Ministers concluded that the Council had not had the level of regard to viable alternatives to the closure of this school as required by the 2010 Act and that the consultation was therefore flawed’.
- Carloway Primary School, Isle of Lewis: Here Ministers concluded that: ‘the Council had not had the level of regard to the likely effect on the local community of the school’s closure as is required by the 2010 Act and that the consultation was therefore flawed.
- Lionel and Shawbost Schools, both Isle of Lewis: In each of these cases Ministers concluded that: ‘Council had not had the level of regard to the likely effects of new travel arrangements required by the closure as is required by the 2010 Act and that the consultation was therefore flawed’.
The precedent set by the Western Isles call-in
Every one of the reasons given by the Scottish Government for calling in these particular papers highlights fundamental defects in compliance with the law.
The Argyll and Bute papers markedly feature all three of the crucial defects noted above by the Government in the case of the Western Isles proposals.
There are, in the Argyll proposals, an additional series of substantial factual inaccuracies which are fundamental to the case for closure and which will be made known when it is appropriate to do so.
The recurring travel time defects
Several of the Argyll and Bute closure proposals carry miscalculations of the new travel arrangements. These are the journeys and the duration of the journeys required of primary children from closed schools to the designated receiving schools.
One proposal – to close the school on the Isle of Luing – has already had to be removed from the list on these grounds alone.
Kilmodan School has timed and videoed its own real-time test of the council’s assertion that the journey from Glendaruel to Tiighnabruaich – with 30 seconds allowed for each pick-up of batches of five year olds – and shown it to be unachievable.
Councillor George Freeman has made a nonsense of the claim for the journey times for Kilcreggan and Rosneath – showing that the council’s ‘test’ of this route did not measure the full distance. Even as a councillor – with an automatic right of access to any information of any kind held by the council, Mr Freeman has, to date, also been denied access to the further evidence of the telematics reports on that test.
Ulva and Lochdonhead on the Isle of Mull will similarly display defects in the council claims of achievable journey times on the mountainous routes their children will be expected to travel – and in all seasons.
We understand that Keills School on the Isle of Islay will also challenge the journey time claimed and there may be others.
The council has admitted that the insupportable 30 second stoppage time allowed at each pick up point for batches of small children, does not come from any regulatory norm and is no more than (conveniently) notional.
It continues however, to insist, in the face of hard evidence to the contrary, that its journey time calculations are accurate.
Major errors of non-compliance with the law in the Argyll and Bute proposals
The Argyll and Bute documents consist of 19 remaining proposals to close a total of 25 rural primary schools.
Every single one of these proposals is non-compliant with the same two core statutory requirements of the law for closing rural schools that forced the call-in of the Western Isles proposals.
The Schools (Consultation (Scotland) Act 2010 – as underlined in the Explanatory Notes to the act, is utterly specific and sets a clear chronology on these particular requirements.
Local authorities are required – before publishing closure proposals – to:
- Consider viable alternatives to closure.
- Assess the impact on the community of the proposed closure.
The called-in Western Isles proposals were simply inadequate in the regard they paid to the statutory requirement to include consideration of altenatives to closure and community impact assessment.
Argyll and Bute, on the other hand, does not include such material at all – an even more flagrant act of non-compliance with the law.
So what did Argyll and Bute Council think they were doing?
At a full council meeting on 25th November 2010, the decision was taken – by the narrowest majority of 19-17, to send the admittedly flawed closure proposals to statutory public consultation
We have it on record that, at that meeting, the responsible Executive Director, Cleland Sneddon and the Chief Executive, Sally Loudon, each made confident but wrong assertions on the core statutory requirements of the Act.
On the requirement to consider viable alternatives to closure, Cleland Sneddon actually criticised the parent councils of the threatened schools for having failed to come up with any creative alternatives. Yet the law is unambiguous on this point – that this statutory obligation lies with the local authority.
CEO Sally Loudon chose to respond to criticism from some councillors on the council’s failure to prepare community impact assessments. She brushed the omission aside as of no account, saying ‘As long as we have done them by the time we come to make a decision…’
In each of these instances the most senior responsible officers of the council seemed – actually or opportunistically – to have misunderstood the governing law or to be indefensibly unfamiliar with its specifics.
Culpable negligence in senior officers
Both of these statements – and the underlying lack of care to absorb and apply the governing legislation, are evidence of culpable negligence by these very senior officers.
They failed to ensure that, at the most basic level, the nature of the content of the proposals was compliant with the law. They then recommended councillors to vote to send these flawed papers out to public consultation – which was approved.
These actions have brought the council into continuing disrepute, locally and nationally.
They have also, to date, wasted considerable financial and human resources at a time when the council is looking to make emergency savings by cutting into the flesh of frontline services like education.
These two senior officers’ appear not to understand either the letter or the spirit of the key legal obligations noted above.
If parent councils were intended to devise and propose viable alternatives to closure (which they could never be in a position fully to do), the law would not unambiguously attribute the obligation to the local authority.
If community impact assessments were not required to be completed until the point where councillors vote on the closure proposals – which is after the end of the consultation process – these crucial assessments could not be challenged.
This negligence – for it is beyond complacency – now compels the council to spend more money, effort and time in attempts to repair the situation.
Culpable negligence in councillors
In failing independently to acquaint themselves with the requirements of the relevant law, the councillors who chose to vote to send legally non-compliant proposals to statutory public consultation would appear to be in breach of key elements of the statutory Code of Conduct for Councillors.
Yet both the Schools (Consultation) (Scotland) Act 2010 and the Explanatory Notes to the Act are prominently available as linked downloads on the closure proposals page of the council’s own website.
Revision of proposals
The proposals will now not only have to be rewritten but also researched, for the first time, in the areas of the required and omitted issues.
They will then need to come back to the full council for debate. The Director responsible for legal and procedural advice, Douglas Hendry, is already on the record as saying that this is the council’s required procedure.
At such another council meeting, the Administration will have to attempt to ‘persuade’ the majority of councillors to vote to send another version of these proposals out again on formal public consultation. The 2010 Act makes it clear that, in this circumstance, a completely new consultation process must be engaged.
Mission fatigue will be a factor here.
By that time, councillors may also have become more familiar with the other and fundamentally serious flaws in the documents and may have refreshed their understanding of the statutory Code of Conduct for Councillors.
With Argyll and Bute Council being the outfit now pilloried in the national media as ‘dunces’, it would be foolish to predict the majority vote on this next occasion.
Council officers and councillors would need, however, to show greater care for their legal responsibilities.
They would also need to be aware that the problems noted above are the beginning and not the end of this damaging saga.
We have raised serious issues of competence and culpable negligence in this article and give notice that we will return to them at a future date.
The photograph at the head of this article is of Bàgh Mór in Grimsay, between North Uist and Benbecula in the Western Isles. It is by copyright owner Anne Burgess and is reproduced here under the terms of the Creative Commons licence.
It is completely disengenuous that you repeat again your claim of “flawed figures” in the case of Crossroads “the Government refused even to call in clearly flawed proposals”. The letter from the Government re Crossroads clearly stated that the “ministers concluded that East Ayrshire Council has fulfilled its obligations under the Schools (Consultation) (Scotland) Act 2010″. Obviously if the figures were flawed then the schools would have been called in – or are you in fact now suggesting that Ministers are incompetent as well just because they do agree woith your skewed view of the world? My source for that quote is the Kilmarnock Standard of 7 August 2010. Where is your source for your claim of flawed figures in the case of Crossroads? And if they are strong and robust why did no one (even you!) complain to the Ombusdman re your repeated claim of maladministration?
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For Simon: We’d have thought that the last thing our upfront stance could be described as is ‘disingenuous’.
We have been unequivocal that, in our view and on the evidence, the proposal papers to close Crossroads School in East Ayrshire were indeed flawed – and that despite those flaws, the Scottish Government – in our view indefensibly – refused to call in the papers and the school was closed.
You’re obviously not aware that we have published on this: http://forargyll.com/2010/11/school-closures-mcgrigor-and-russell-in-question-time-at-holyrood-and-argyll-at-the-crossroads/
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If as you claim ad nauseum the Governemt was wrong on the case of Crossroads – who is to say it is not also wrong in the case fo the Western Isles?
Undermine confidence in the legitimate democratic decisons and processes and nobody trusts anybody. So if you are so certain of of the Corssroads case – why not complain to the Ombudsman?
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Forgive me for saying so but it seems to mme at any rate that For Argyll is fiddling somewhat whilst Rome burns. It views the decison to call in Western Isles somehow as a victory in the case of school closures here in Argyll and Bute. And yet again it has made the School closures top story.
Yet much mor eimprtant things ar ehappening and are passed unnoticed anmd not commented on. we now know that Argyll and Bute Coucnil’s budget looks likely to be cut by almost 5% rather than the much trumpeted 2.6% that SNP’s John Swinney promised.
That is a cut of £15 million next year.
This is a drastic cut – way beyond the worst scenario that anyone envisaged, it will decimate services and jobs and For Argylls witters on about Western Isles.
The school closure documents are out for consultation and everybody – including For Argyll – has said that some schools should close. Well we really need to end the faffing around and delaying tactics and lets get on identify the schools that should be closesd and close them! Because this level of budget cut from the SNP government will decimate jobs and services throughout Argyll and Bute.
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If anyone is interested in what Simon has written here please see my response to his very similar post in the thread of the last story. I don’t intend to waste anyone’s time by posting the same points in more than one active threads.
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For Simon: We’re going to have to stop rising to your bait because there aren’t enough hours in the day – but the Government was wrong not to call in the papers on Crossroads.
It has called in the papers for four of the Western Isles proposed closures and on manifestly legally correct grounds, so lessons have clearly been learned, or we hope they have.
The precedent this sets – where the Argyll papers are significantly less compliant with the law than Western Isles’ were, is food for thought for Council and campaigners alike.
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Ok agreed Newsie – if you stop making unsubstantiated claims and fibs about Crossroads I’ll stop telling the truth about Crossroads. Deal?
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I can almost see my laptop screen jiggling as Simon jumps up and down with glee at the news that the cuts are going to be more severe than we thought, and that therefore he feels fully vindcated in his view all along that lots of thriving, happy, effective and highly valued schools will have to shut their doors for good.
Exclamation marks at the end of phrases such as “…lets get on identify the schools that should be closesd and close them!” only hint at the trembling excitement being generated by this supposed new twist. Just this once, I admit that I find that borderline offensive.
It’s an odd perspective, and rather unsettling if it comes from one who would claim any interest in the future of Argyll as a fantastic place to work, live & raise a family. I can’t work out what your vision is Simon – ‘managed decline’ doesn’t even come close.
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Hki Tim, certainly not gleeful and that the budget cut in Argyll and Bute is going to be nearer 5% than the oft-repeated claim on here by SNP activists that John Swinney has restricted the cut to 2.6%. (deafening silence on here don’t you think from the SNP usual suspects?)
What this swingeing increase means is a budget cut now of around £15 million. In all honesty like others on here I have said that some schools should close – this latest budget-cut underlines the seriousness of that position.
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Can I advise everybody what there is one way to make this debate more honest and balanced and do what I do? That is, listen to those who identify themselves, in this case Douglas McKenzie and Tim McIntyre, and just ignore anyone like “Simon Says “ who could be anyone with a vested interest that is not being declared. Just skip over what they say.
If it is not worth their confessing who they are, standing up and being counted, it is not worth listening to what they say.
Hiding your identity is cowardly and gives ample opportunity for dishonesty and deception. It may be excusable in certain cases like whistle blowers, but otherwise deserves to be treated as the chaff and waste that it is.
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Why mention me Neil Kay and no one else. Is it only those who are for the consultation process that you are targetting? What about for example:-
Newsroom?
Phil?
Robert?
Mugglemum?
Crazy-She-Bat?
John in Kintyre?
Alasdair?
GlenbarrMum?
Opinion?
Ardchattan Mum?
Pam@Luing?
BFOandC?
Linnhe?
NB Says?
Islay Parent?
Flaming June?
Southend Mum?
Aand Z Luing?
Zira?
Luss Mummy
etc,etc, and actaully most of the others on here.
All of these anons and only ‘Simon’ mentioned in this context. Anyone would think you were being biased Neil Kay or maybe trying to hide something.
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Neil Kay – by the way when I DON’T post I get pelters for NOT posting – ‘Where have you been”, “Have you been hiding?”, “Couldn’t answer that question Simon” etc, etc.
Mind you I’ve never seen anybody asking where Neil Kay was.
So, now that you are here what about the government decison to hike the budget cut in Argyll and Bute to around 5% (from the John Swinney promise of 2.6%) or £15million? Can this level of cuts be achieved without closing some under-occupied and over-expensive schools?
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One of the reasons some people will not be identifying themselves is because Stalin & Bute Council have imposed a gagging order on their staff. There are parents of children whose schools are under threat who can’t vocalise their opinion on it because they work as teachers, or janitors, librarians, cleaners, accountants, etc etc etc
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I have not read “Simon Says” follow on posts here for the same reason that i very clearly judged from his or her earlier postings that he or she has no legitimate reason for concealing his or her identity. There is nothing to be gained from reading them – the best thing you can do is ignore them. That is the best reply. For “Integrity. Not in the Independents” post) I accept with him or her that there are some who have legitimate reasons for concealing heir identities, such as teachers or council workers and if so they can make that clear in their posts or directly to “For Argyll” and ask for their identity to be concealed.
Beyond those legitimate cases concealing identity is cowardice – and in the worst cases turns into bullying which often goes hand in hand with cowardice. Should not humour or encourage it.
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You know what makes me worry? If this 5% cut is true (still trying to get on A&BC’s website, they seem to be ubdating the format today) and this extra cut is based on performance, what on earth are they going to cut next year?
Maybe they’ll just give our budget to the monkeys in Edinburgh Zoo.
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I would prefer not to be anon, but have good reason. Dont think my posts are ott or disrespecful in any way. In fact although i am against the manner in which the consultation process came about, i can see good stable thinking in the principle of those of differing views. I think that is healthy, and will continue in this way.
On another personal plus side i have learned a lot of the ‘goings on’ at kilmory that i would otherwise not been privvy to.
In this respect i can not agree wholeheartedly with Neil Kay. In a perfect world, yes we would all give our names. I for one will on a daily basis give opinions with friends colleagues etc, but would cause difficulties if i were to be outed! I would imagine quite a few in this category, but perhaps not all.
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For Crazy She-Bat: The council’s saving plans have been openly targeted on £15 million anyway – and we’d queried the necessity of so high a target when £9 million was the lower end of the spectrum.
So now that they actually need to save £15 million, they have no need to change any of the existing plans.
And as for the school closures, the actual savings, given the multiple flaws in the proposals’ various calculations, are not at all what has been claimed.
There’s a lot of dishonest smoke and mirrors stuff going on at the moment. it is designed to trick people into accepting cuts without either question or opposition.
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OK Simon and Neil Kay, it’s time to fess up. I retired to Barcaldine in 2002 having spent the previous 36 years in Education – as a teacher, a lecturer in Teacher Education (involved in Quality Assurance among other things incidentally) and latterly administering three University BA degree programmes. My intention was to leave all that behind me, cultivate my garden and live a quiet life among some of the most beautiful scenery and delightful people it is possible to imagine. However, on hearing of the proposed closure of Barcaldine School, I asked a few questions, did some Googling, and was appalled at what I discovered. What Loudon, Walker and Sneddon propose is MONSTROUS. It is profoundly UNEDUCATIONAL and professionally unworthy. It is incredible that publicly elected representatives should give these people carte blanche to proceed thus in any event – but to give legal validation to a set of DRAFT documents in the way that they did on November 25th immeasurably compounds the disgrace. It is a direct affront to democracy. In my view it does indeed amount to culpable negligence which in any just world ought to be legally actionable. Their ‘Proposal’ documents are void for uncertainty and any response to them from parents and others will simply mean they move the goalposts. The ‘naughty nineteen’ constitute a delinquent element in the Council and this needs to be recognized and dealt with, and perhaps not only at a future ballot box.
It is for these reasons that I decided it was time to go back to work and do what little I can to support those gallant parents who are fighting to preserve their children’s education and that of future generations – and not only in Barcaldine, but across Argyll.
In peace there’s nothing so becomes a man
As modest stillness and humility
But when the blast of war blows in our ears
Then imitate the action of the TYGER. (Shakespeare, HENRY V III 1)
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For Barcaldine Tyger: What a good decision you’ve made. And the source of the ‘Tyger’ doesn’t half stir the blood, as it was meant to do.
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If it is correct that Argyll and Bute were obliged in law to assess ‘the likely effect on the local community if the school were to close’ BEFORE ‘proposing to close any rural school.’ Then it has clearly failed in that obligation.
Their only ‘assessment’ as given in the emails, and repeated in the council chamber, was to quote research so inaccurately that those who conducted the research have publicly and emphatically rejected the Council’s erroneous use of the data.
So, on that one single point alone the Government should ‘call-in’ the proposals.
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BFOand C: Yes, but sadly the whole grisly process has to be gone through at vast expense (to us) before the Scottish Government can call the decision to close the schools in. We have pointed out the absurdity of a position where the Council can fail to adhere to even the first requirements of the Act but can then put hundreds upon hundreds of pupils and parents through months of unnecessary stress and cost the tax payer huge amounts of money BEFORE the closures can be called in. I understand the Scottish Government’s review group is urgently looking to see how the statutory guidance can be strengthened to prevent (or at least deter) councils from taking similar delinquent action in the future.
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Neil Kay, you forget this is an internet forum not a formal consultation discussion, the format of “nicks” such as “simon Says” and “John in Kintyre” are the norm for blogs such as these, and though I disagree with some of what “simon Says” I respect his right to post his views and strongly disagree that his points should be ignored solely because he uses a nickname. He is expressing his opinion in the debate on here as is his right.
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Sorry john in Kintyre, When you likes of “Simon Says” who has nothing but an Intemet connection backing him up him or her bullying Anne Baird who has worked tirelessly for Argyl schols over many years then enough is enough. I have had enough of anonymous bullies like this.
I’ll leave you to it. Best of luck
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