Alasdair Stirling, parent of a child at Toward School in South Cowal, has fired a heavyweight legal 
stopper shot across the bows of the council’s ruling coalition.
Toward is one of Argyll’s rural primary schools currently threatened with closure in what the Education Spokesperson, Councillor Ellen Morton, has publicly described as ‘her list’.
Mr Stirling’s position and action
Mr Stirling may be bringing his expertise to bear to save his community’s school which his child attends, but he is primarily concerned with the integrity of process under the law. He says openly that if the council fulfill properly all of their statutory obligations under the laws that apply, there may well be schools that close. He would not oppose that. But he – like everyone concerned, will not accept the use of an unable case to close a single school – even if that school is currently not operating.
A competent case is made or is not made and closure may only follow if the case is competent according to the requirements of the law.
Mr Stirling has written an open letter (below) to all councillors, reminding them of their specific statutory duties in considering approving to proceed to statutory public consultation the closure proposals his argument shows to be legally unable.
He has also effectively warned them of the variety of legal consequences for the proposals and for the council should they fail to exercise their responsibilities.
Consequent legal guidance to councillors
On receipt of this letter, one administration councillor was – sensibly – moved to ask for advice. Councillor Neil Mackay asked Mr Douglas Hendry, the Council’s Executive Director responsible for legal advice, to offer members guidance on the matter.
We have seen both Mr Stirling’s letter and Mr Hendry’s consequent advice to councillors. We have discussed the legal points with Mr Stirling – who himself had taken qualified legal advice from two separate independent quarters. Both found bis case to be sound.
Following that and methodical study of our own to come to terms with the argument, we can say with confidence that Mr Hendry has not taken time to consider adequately the legal argument advanced – nor indeed is there any evidence that he has understood it.
Mr Hendry is an intelligent man, but a lazy one. He has not yet grasped the weight of expert authority brought together across a wide range of subjects by the young but vigorous Argyll Rural Schools Network ARSN), campaigning to save schools vital to the survival of the communities that host them.
For this reason, we would speculate that Mr Hendry simply dismissed the legal challenge as unlikely to be of any account and issued his guidance to elected members on that basis.
This speculation is supported by Mr Hendry’s sheer speed of response to Councillor Mackay and his fellow councillors.
There was no possible time for him to consult and to consider the impact of the specific case law cited by Mr Stirling – which set precedents for the admissibility into law of material held in parliamentary records such as Hansard and in explanatory notes to legislation issued by governing administrations.
Nor was there time for him to consider the impact of the judgments cited in these pieces of case law to the specific elements of the requirements of the Schools (Consultation) (Scotland) Act 2010 to which Mr Stirling pointed.
Nor was there time for him to consider the impact of the direct involvement in the Schools Act 210 of the Standards Act 2000.
Nor was there time or him to examine the closure proposal papers and test them against these demanding legal filters.
Mr Hendry’s response to Councillor Mackay’s request has all the hallmarks of an autopilot rather than a considered response. In that sense he does the councillors he is paid to serve a serious disservice as his advice may wrongly encourage them to vote for a legally unable action.
Any councillor would be ill advised to accept Mr Hendry’s rushed, complacent and underinformed guidance in this matter without seeking independent legal counsel as they are entitled to ask to have done.
Mr Hendry has form in speed to casual judgment in advice to date in the council’s efforts to close schools. As the responsible officer, he must have advised the hapless Cleland Sneddon, the Executive Director responsible for the first set of closure proposals, that they were legally compliant when the reverse was the case.
Yet a quick scrutiny of the key requirements of the 2010 Schools Act and a quick scrutiny of the table of contents of the closure proposals was all it would have taken to recognise the terminal deficiencies of these proposals in mere legal compliance.
These first proposals had to be retired prematurely from public consultation on 5th January 2011. They failed to resist the forensic scrutiny of the Scottish Rural Schools Network in a written report circulated in advance of that meeting to elected members and relevant council officers.
Before they vote to send even an already inoperative school to consultation at the council meeting on Tuesday 19th April 2011, members should reflect on the advice we transmitted in advance of their meeting on 25th November 2010. Then, they took, by the narrowest majority of 19-17, the catastrophic decision to send to short lived public consultation a set of closure proposals they had been warned were legally non-compliant. Many voted to do this while at the same time admitting that the proposals were flawed. Negligent by their own account.
An opportunity to think again
For Argyll may be brutally hard hitting in the face of maladministration and incompetence but we have no wish to see the council or individual councillors of any colour face a second public humiliation – and no one wants to see Argyll and Bute – or even its council – ever again feature as a national joke.
In the body of this article, we will seek to prioritise and lay out clearly the legal position Mr Stirling has presented to the council.
We will then offer access to Mr Stirling’s Open Letter to councillors; Mr Hendry’s over rapid consequent guidance to councillors; and a letter sent by Mr Stirling, on different subjects and dates, to each of Mr Cleland Sneddon and Councillor Ellen Morton in February and March this year. These are part of the argument and part of the material and the insights available to Mr Hendry.
The letters to Mr Sneddon and Mrs Morton gave the council early warning of the legal requirements governing the specification of the closure proposals to come in this second round. Neither councillors nor officers bothered to make use of this infomation.
Mr Stirling’s key points
Essentially, Mr Stirling is concerned to establish the precise nature of the statutory legal requirements of proposals to close rural schools.This then allows both the council and parent councils alike to test whether or not the legal obligations have been met – and properly met.
The founding principle of what he is saying is the obvious point that you cannot meet the requirements of one law by contravening another which is in operation in the same field. Any action must fulfill the requirements of all of the laws applying.
Three key pieces of governing legislation in this field are:
- Education (Scotland) Act 1980
- Standards in Scotland’s Schools etc Act 2000
- Schools (Consultation) (Scotland) Act 2010
Mr Stirling’s work has establishes two key facts:
- The statutory obligations on local authorities in the making of the Educational Benefit Statement that must accompany each closure proposal are very exact and very demanding indeed. This is enhanced by case law (Pepper v Hart 1994) which gives legal weight to material held in parliamentary records such as Hansard.
- Case law ( Regina [Westminster City Council] v National Asylum Seekers Support 2002) has admitted to legal argument the content of Explanatory Notes to legislation, issued by governing administrations. This has hard wired the existing connection between the Schools (Consultation) (Scotland) Act 2010 and the Standards Act 2000. The consequence of this is to ratchet up the specific bar the Educational Benefit Statements must cross. They have not done so.
There is no evidence in the texts of the second and current closure proposals that council officers have understood these requirements in their formulation of the proposal papers.
There is also no evidence in Mr Hendry’s guidance to councillors, following Mr Stirling’s open letter to them, that he has grasped the nature of the obligations imposed by the Schools (Consultation ) (Scotland) Act 2010; or the obligations imported by its legal linkage to the Standards in Scotland’s Schools etc Act 2000; or that he paid attention to the impact of the precedent setting case law cited by M Stirling.
The intentions of the Act
The piece of legislation most in focus in this matter is the Schools (Consultation) (Scotland) Act 2010.
In deciding how to meet the requirements of any piece of legislation and, for the judiciary, in deciding if they have been met, it is central to establish precisely what were the intentions of the Act by those who brought it into being.
This is where Mr Stirling’s application of the case law (Pepper V Hart 1994) is germane. That case set the precedent of admitting to legal argument the material held in official records of parliamentary statements and debate.
He cites the statement by the then Education Secretary, Fiona Hyslop, in the Scottish Parliament’s Official Record for the 2nd September 2009:
‘ To achieve a legislative presumption, the bill aims to make a decision to close a rural school one of last resort—that is, a decision that can be made only once full consideration has been given to the full facts, including alternatives to closure, the impact of closure on the community and the effect of increased travel on pupils and staff as well as on the environment.’
The point here is that, in the case of rural schools, the presumption against closure is, in the full intention of the Act and of the Scottish parliamentarians of all parties who voted it into law, a legislative presumption against closure. This means that the presumption carries the weight of law but, as a presumption, can be legally rebutted – although in the Act, the tests for rebuttal are very challenging
Then, significantly as Mr Stirling says, the Scottish Parliament ‘founded that legislative presumption upon full consideration of the full facts’. That obligation could hardly be more demanding in its comprehensiveness.
It means that where it can be shown that the local education authority has not fully considered the full facts it has not met the tests to rebut successfully the legislative presumption against the closure of a rural school.
Key test: the Educational Benefits Statement
The 2010 Act sets proof of educational benefit as the ultimate test of whether or not the legislative presumption against closure has been competently rebutted.
For that reason Mr Stirling has concentrated his interrogation of the relevant laws on their relation to the Educational Benefit Statement that the local education authority is statutorily obliged to prepare in respect of each closure proposal.
What an Educational Benefit Statement must do to comply with the law
According to the law an Educational Benefit Statement must show not that standards will be maintained but that they will improve.
It must also distinguish between the ‘effects‘ of closure and the ‘benefits‘ of closure – the educational effects and the educational benefits. . Section 3.1 of the Schools (Consultation) (Scotland) Act 2010 makes this clear, with 3.1.a, b and c requiring a focus on ‘effects’ and 3.1.d requiring a focus on ‘benefits’.
It must focus on the improving standards achievable by the individual child and not the general provision of education: ‘This new provision puts education authorities under a statutory duty to look beyond general provision to the development of the individual child. Standards in Scotland’s School etc Act 2002 Section 2.6
It must: ‘fully consider the full facts‘ in order to rebut the legislative presumption against closure of a rural school (Intentions of the Act as described by Education Secretary in Scottish Parliamentary Record and admissible in law [Pepper v Hurt 1994]
It must show how the local authority has met its responsibilities: ‘to endeavour to secure improvement in the quality of education in their schools, and exercise their functions with a view to raising standards of education. In making a relevant proposal an authority would have to be certain that it is fulfilling its duties in relation to that Act. Schools (Consultation) (Scotland) Act 2010 Explanatory Notes – Section 3.10 – linking Standards in Scotland’s Schools etc Act 2002, Section 3.2 and admissible in law (Regina [Westminster City Council] v National Asylum Seekers Support 2002)
An Educational Benefit Statement must:
- include the authority’s assessment of the likely effects of a relevant proposal (if implemented) on: (i) the pupils of any affected school; (ii) any other users of the school’s facilities; (iii) any children who would (in the future but for implementation) be likely to become pupils of the school; (iv) the pupils of any other schools in the authority’s area. Schools (Consultation) (Scotland) Act 2010: Section 3.1.a.(i), (ii), (iii), (iv)
- include the authority’s assessment of any other likely effects of the proposal (if implemented). Schools (Consultation) (Scotland) Act 2010: Section 3.1.b
- include an explanation of how the authority intends to minimise or avoid any adverse effects that may arise from the proposal (if implemented). Schools (Consultation) (Scotland) Act 2010: Section 3.1.c
- include a description of the benefits which the authority believes will result from implementation of the proposal (with reference to the persons whom it believes will derive them. Schools (Consultation) (Scotland) Act 2010: Section 3.1.d
- must also include the education authority’s reasons for coming to the beliefs expressed under subsection (1)(d) – quoted above. Schools (Consultation) (Scotland) Act 2010: Section 3.2.
The killer statutory requirement
This is found in the Schools (Consultation) (Scotland) Act 2010, Section 1 (1), (2) and (3).
The key linked points are Section 1.1.(2) and (3):
- (2) Before proceeding with the proposal, the education authority must comply with the initial and subsequent requirements set out in subsections (3) and (4).
- (3) The initial requirements are: (a) to prepare an educational benefits statement in accordance with section 3,
As have shown above, the legal requirements of Section 3 pf the Schools Act 2010 and its hard wiring to the Standards Act 2002 (by the legally admissible Explanatory Notes) are exceptionally demanding.
It is obvious – by running the total legal requirements of the Educational Benefits Statement (listed above) against what is put forward under that guise in the council’s latest school closure proposals, that the proposals do not deliver what is required of them.
As Section 1.1.(2) and (3) prescribe, the Educational Benefit Statements must comply with the requirements of Section 3 before the proposals can proceed.
Councillors have a legal obligation under the Act not to commit the council to an unlawful action in progressing statutorily unable material.
Postscript on anxieties
On the matter of the statutory obligations imposed on the council by the Standards in Scotland’s Schools etc Act 2002, the authority is required to publish ‘from time to time’ a statement of standards attained by each of its schools.
‘From time to time’ clearly allows a degree of latitude but no one could reasonably argue that a period of eleven years when no standards statement was published would qualify as being within the spirit of the provision of this law.
Argyll and Bute Council has not published a standards statement in relation to Innellan School for eleven years – yet it proposes to transfer pupils from Toward School to Innellan in a situation where it cannot hope to prove the required educational benefit of improved standards for the transferring children.
And on this matter, When did HMIE last report on Innellan School? Are they not concerned to see the legally required and published material on standards achieved?
The background documents
- Alasdair Stirling Open Letter to Argyll and Bute Councillors
- Douglas Hendry- Guidance to Councillors on Stirling open letter
- Alasdair Stirling letter to Cleland Sneddon
- Alasdair Stirling letter to Ellen Morton
Intrigued and can’t wait for the update!
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I have been fortunate enough to see both Mr Stirling’s submission to the Council and Mr Hendry’s reply. I am not qualified to comment on the strength of either position but the interesting conundrum is for councillors ahead of the meeting on Tuesday.
Mr Stirling is threatening legal action against the Council if they proceed with the closure proposals. Specifically he is considering Toward (where his child is presumably a pupil) but his interpretation of the legal position is generic and I cannot see anything to prevent a class action (no pun intended) on behalf of the other schools.
Opposition councillors will be sleeping soundly in their beds as I presume they will oppose the closure proposals wholesale (including the enabling motion). The interesting dilemma is for the ruling group (the ConDemAlls). If the intention is to to vote through the enabling motion but then vote to retain all but the empty schools then they too can sleep soundly. If the intention though is to vote through the proposals to consult on closure, specifically on Toward, then they have a problem.
I have no doubt that Mr Stirling is serious in his threat of legal action and, having read Mr Hendry’s response, I don’t see anything in that which would dissuade Mr Stirling from his course of action. The crucial point is that Mr Hendry is advising councillors that there is nothing in Mr Stirling’s letter that should impede them on moving forward with voting on the proposals on Tuesday. Avid readers of For Argyll will also remember that Mr Hendry has been unable to respond to ARSN’s complaint about a breach of the Code of Conduct because of peculiar (and convenient) problems with electronic media. I may be grasping at straws but these two may not be unrelated.
The Council has dug itself into a very large pit over the school closures and there is a huge vat of steaming manure precariously balanced on the edge of the pit. I don’t know Mr Hendry but I will guess that he is a good and loyal servant of the Council who has served it and the people of Argyll for many years. It is no surprise then that he wishes to avoid the inevitable deluge if either the school closure proposals progress or if they collapse (again). It may be that he sees the best solution is to have an orderly withdrawal: first allow the meeting on the 19th to progress (admission of Mrs Morton’s breach of the Code or that there are serious legal difficulties with the closure proposals would prevent this); next get the enabling motion passed (failure to do this would mean that the Council’s proposals are so flawed that the actions of Council officials and the huge waste of taxpayers money would demand a damaging enquiry); lastly have ALL of the school closures voted down except for the two empty schools. This result would pre-empt legal action and it is unlikely that anyone will have the stomach to then question his belated ruling that Cllr Morton did not breach the Code (as to do so would mean that closures were still on the agenda).
If this is the plan then I suggest a quiet word in the ear of the opposition might be in order.
As I have said before, I might be completely wrong in this but consider how this outcome would push so many buttons.
1: The schools and their communities: the threat of closure lifted, they will be unlikely to bother the Council further and can get on with their lives.
2: Council officials: I cannot imagine that the past (almost) a year has been pleasant for many hard working council employees who have had to peddle blatantly absurd arguments in favour of closing one third of Argyll’s primary schools. For the teachers and educational officials, blessed relief that they can get back to what they do best (and actually very well) without having to constantly bite their tongues. For Mr Hendry in particular, it relieves the problem of the complaint regarding Cllr Morton. He is between Scylla and Charybdis on this issue (and I’m not going to say which is ARSN and which Cllr Morton!) but if the driving force can be removed (the school closures) then he wriggle off the hook.
3: The opposition councillors: they will have won their fight to save the schools and can move onto weightier matters of governance
4: The Lib-Dem councillors: the big winners here on the Council: they can claim to have listened to the people (as is the Lib-Dem wont); they can trumpet Cllr Morton’s processional tour and resultant tablets of stone as proof of their brave, robust but ultimately compassionate leadership on this issue. Best of all, they can claim that they have saved Argyll from the wicked and foolish plans of the SNP, who wanted to close 26 primary schools but then didn’t have the bottle to carry their dastardly plans forward once they were exposed to public scrutiny. Clear proof that you should all vote for Alison Hay as the next MSP for Argyll!
5: the two Tories. They seem a bit lost here: early closure would enable them to escape the absurdity of them opposing the well known, dignified and entirely consistent position on school closures of their MSP, Mr Jame McGrigor (I would like to thank Mr McGrigor for his voluble and effective support of Barcaldine in Parliament).
6: The Alliance Councillors: OK there are some signed up members of the “let’s close all rural primary schools in Argyll society” in this disparate grouping and they won’t be happy over this. To them I say “tough”. For the rest, fundamentally decent folk, they will be relieved to be able to be able to look their constituents in the eye over this issue. To those who may feel uncomfortable that they may have taken the easy path on this rather than the tough but necessary path of saving money let me just assure them that the headline savings (down now to £500K per annum from an initial £2M per annum) were very unlikely ever to be realised and certainly not worth the cost in terms of social and economic damage to some of the most vulnerable areas of Argyll.
The only losers will be Mr Sneddon, who will have only ash in his hands as a reward for all that devious spinning , and his boss Mrs Louden, who has been responsible for a huge corporate failure and for bringing Argyll and Bute Council into disrepute. Given that Mr Walsh has been ill of late I hesitate to include him in this but we must all acknowledge the truth and perhaps it is time to let this go.
Sometimes everybody has to look at the real politik. I may completely wrong in terms of motivation and intentions of the different parties, but not I suggest in terms of the logic of the situation.
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I have also had sight of Mr Stirling’s submission to the Council and Mr Hendry’s reply. It interested me greatly because in the period building up to the collapse of the previous proposals in January I had a discussion with a leading Scottish Advocate about the scope for exploring judicial review in the event that closures went ahead.
That discussion focused on the specifics of one proposal however they were specifics that reared their head in countless other ones. His opinion was that there was a very clear case for judicial review and acting on his advice I made initial enquiries about exploring that route.
As it transpired the events of January 5th brought that possible requirement to an end although it was an end which was entirely temporary. It is an avenue that may well be explored again if the Council continue with this poorly constructed closure process.
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For DrDMcK. Dream on.
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Without dreams there are only nightmares.
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I think something that must be done, that I haven’t seen yet is to thank Mr Stirling on behalf of all the other schools in bringing this forward.
I am sure this must have taken a lot of researching and time to do and for that and the effect it might have, my sincere thanks Mr Stirling.
This basically covers concerns that other schools have had from the start and legal advice has been sought by a number of the original 25 and certainly a few of them remain in the 12.
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The important point here is that ABC have been informed consistently from the outset that their educational benefits evidence is lacking and they have chosen to again produce documents that have no substance. They would have been wise to take the advice of someone who actually knows a thing or two about education rather than only the advice of those who are hell bent on closing small schools.
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Amazing that Mr Hendry should have spotted the postscript to the Act that everyone else missed,viz: “This Act does not apply to Argyll and Bute Council because they have convinced themselves they know better”. Even without benefit of legal experience or training I can see that Mr Hendry’s reply selectively ignores those inconvenient words and clauses which do not support the Council’s actions.
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The key point of the issue that I have raised with the Education Authority is simple. If the educational benefits statement set out in the closure proposal is not in accordance with Section 3 of the Schools (Consultation) (Scotland) Act 2010, then any consultation that Argyll and Bute Council initiate is beyond their legal powers.
There is, however, a consideration much more important than an arcane legal point. Why is the Education Authority so resolutely unwilling to express in their writing their view as to the rise in the standards of education that the changes to the provision of education set out in the closure proposal will occasion? Could it be that the Education Authority has no good reason to believe that a rise in standards will occur, or is it simply that the Education Authority focuses only on the provision of education and cares little or not at all about the resulting standards that it achieves.
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Alasdair, any comments on the legal compliance of the proposals to close Western Isles schools which were accepted by the SG, their EBSs and the response to them by HMIE.
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