Ewan Smith, a doughty member of the Muirfield Action Group’s campaign to save their school, has persistently pursued Freedom of Information throughout the campaign.
He has been particularly assiduous in the strange matter of Angus Council changing the qualified surveyor’s gradings on aspects of the condition of Muirfield school. Alongside this he has investigated the related and equally strange matter of the survey of Muirfield’s heating and mechanical services. This was given a grading so groundlessly poor that it pulled the school’s overall grading down – and was graded thus in the absence of evidence, written or personal, that any physical survey of these features was actually carried out.
When Mr Smith was unable to get any documentary clarification on these matters from Angus Council, he eventually had recourse to the Scottish Information Commission.
The Commission conducted an investigation at Angus Council, into the information it held and asking for clarification and explanations on information it did not hold – some of which is statutorily required and some of which had been destroyed.
The Commission then wrote a report on its investigation for Mr Smith, which has recently been covered here.
Scottish Government intervention today – letter to Angus Council
That report, which was completed on 15th December 2011, was sent by Mr Smith to the ‘call in’ team in the office of the Education Secretary, Michael Russell, MSP.
The Head of the Scottish Government’s School Infrastructure Unit, Jonathan Moore, has today (22nd December 2011) written to Neil Logue, Director of Education for Angus Council.
Mr Moore informs Mr Logue that, following Mr Russell’s receipt of the Information Commissioner’s report:
‘The Cabinet Secretary has noted the Information Commissioner found no evidence that the Council holds information covered by Mr Smith’s request that has not been released to him. However, he also notes that there were two versions of the Timmergreens surveyor sheets, one dated 18 February with handwritten entries and the other dated 20 February with typed entries. Some of the gradings were different on the two entries. He notes that there are no records or notes explaining the reasons for the gradings being changed.’
He goes on to note that, alongside Mr Smith’s transmission to his office of the Information Commissioner’s report:
‘Mr Smith has made certain observations. He asserts that the school should not be closed when there is:
- (a) no physical record of inspection (mechanical services/electrical services – Muirfield)
- (b) altered gradings with no supporting evidence as to why surveyor reports were changed by Education Department
- (c) all handwritten notes and other notes relating to these surveys being destroyed by Angus Council’.
Following this listing of the concerns Mr Smith has raised with the Scottish Government, Mr Moore goes on:
‘In light of these observations the Cabinet Secretary has indicated that before he makes a decision on the proposed closures of Muirfield and Timmergreens Primary Schools, which are currently before him under the Schools (Consultation) (Scotland) Act 2010, he wishes to invite Angus Council to comment on the report by 13 January 2012.’
And with the response from Angus Council due to reach the Education Secretary on or before 13th January 2012, Mr Moore informs Mr Logue that:
‘The Cabinet Secretary will then wish to reflect carefully on any comments your Council wishes to make before issuing his decision on the two schools which he expects to do by 31 January 2012.’
Mr Moore then finishes by saying:
‘in the interests of transparency, a copy of this letter will be placed on the Government’s web site along side other letters relating to decisions under the 2010 Act.’
We expect this letter to be published on the Government website tomorrow (23rd December 2011).
The Information Commissioner’s Report on the investigation into Angus Council’s information holdings
This report confirmed Mr Smith’s concerns and is now of concern to the Education Secretary.
A key passage of the report focuses on what the Scottish Government requires, the degree to which Angus Council has not met those requirements and its apparent inability to account for the situation.
On this matter the Information Commissioner’s report said:
‘After completing the above report and receiving your comments, I asked the Council again about the lack of information that would show reasons for the altered scoring grades. I drew attention to the guidance on the Scottish Government website and in particular, the part that says:
’1. Local authorities should have a stated system setting out their process for assigning condition categories to schools. In addition, an auditable record of that process and its results should be maintained. As a minimum, this should reference the process used and document the sources of input data, the names and roles of the participants, the dates over which the condition review activities took place, and the condition categories assigned to each of the major elements and to the school as a whole. The record should also note any amendments made to the overall school condition rating arrived at by the standard process.
‘I asked whether the information about the grading process for condition categories is ‘auditable’ if no information is recorded that would show why some grades were altered during the process.
‘The Council replied on 13 December ………. The Council takes the view that the changes to the scoring grades are “auditable” but did not provide any detailed reasons why this would be the case.’
It is fair to say that it is hard to see how Angus Council can satisfy the Education Secretary either on this matter, when they have been unable to reassure the Information Commissioner.
The import of this development
It is clear, in every aspect of this intervention and its communication to Angus Council, that the Education Secretary is moving to stabilise what has been a volatile situation in the application, observation and scrutiny of the Schools (Consultation) (Scotland) Act 2010.
Much of this instability has resulted from the introduction of a new and untried law and some from what the Education Secretary himself has voiced – that this law may have its insecurities.
Such concerns were, in part, the reason for Mr Russell’s establishment, with the Convention of Scottish Local Authorities (COSLA), of the Commission on the Delivery of Rural Education, due to report in 2012.
Mr Russell is clearly adopting a position based on security of evidence, procedural integrity and transparency of argument in order to lay the foundations of a firm and objective universal process to receive the implementation of whatever emerges from the Commission.
This is encouraging as it may signal the establishing of a just, intelligible, consistent and open system governing all aspects of school closure proposals, worthy of universal respect. There is a lot of work to be done in this field, given the unsteady start of the performance under fire of the young Schools Act but this is a reassuring advance.
Emanating from this intervention, there is the sense of a determination to stabilise judgment and process. This will be widely reassuring and marries well with the probity of the Information Commissioner’s Office which has been graced by its first and now retiring Commissioner, Kevin Dunion.
Muirfield School now also has a date on which its future and that of its near neighbour in Arbroath, Timmergreens School, will be known. That information mercifully lets parents, children and communities stop looking over their shoulders over the coming weeks of the festive season and the early weeks of the new year.
How I admire people like Ewan Smith, patiently chipping away at the rotten foundations of a seemingly impregnable edifice until it collapses. We were fortunate to have a few such individuals in Argyll during our recent travails with Argyll and Bute Council’s education department. So best wishes to you, Mr Smith. After all, it was such nit picking forensics which eventually put Al Capone in the slammer.
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Yes, I agree wholeheartedly.
The way the Council are behaving and responding reflects an underlying cancer that impacts in other generally unseen ways. There will be others chipping away like Mr Smith, though perhaps lacking his direction, resourcefulness and clarity of focus on what is most pertinent (I know one such person very well personally).
In the end it might be a seemingly inconsequential “failure” that, thanks to the work of Mr Smith or someone else if this particular battle is lost, makes the edifice collapse.
Mr Smith is doing an excellent job of not just prising out truth but also wielding it as the most effective weapon there is against corruption.
(The forargyll team are also to be commended for the coverage they are giving this despite it being on the opposite side of the country. Oh that there was the like in Angus. Things would surely be different!)
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This is good news and especially for the affected schools. Ewan’s dogged determination to delve to the bottom of these school gradings appears to be bearing fruit.
The Information Commissioner’s report highlights something that was painfully evident during the Argyll tussle: local authorities in Scotland appear to lack efficient Quality Assurance (QA)systems. The huge number of transcription errors and arithmetical mistakes we found in the Council documents also points to a lack of quality control (QC). This deficit is ironic since government contracts are increasingly demanding that private bidders for these contracts have QA systems in place (usually one of the ISO systems)and that this is properly (and expensively) accredited – usually by UKAS. This insistence on QA systems is to ensure work is done properly and comprehensive audit trails exist to demonstrate that it has been done properly. This ensures that best value is obtained for the taxpayer. The irony is that the largest recipient of Scottish Government funding is the local authority sector and yet the same concern for QA is not imposed on them (or if it is then not effectively). The irony increases as LAs spend increasing amounts of money on performance indicators and bleat endlessly about best value and yet without proper and robust QA systems in place they themselves cannot know if they are effective or not.
Government bodies both national and local need to practise what they preach.
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Once again thank you to ForArgyll for publicising our plight. I would like to make it clear, though, that so many people have contributed to trying to save our schools – including people on here who have been so supportive.
This is indeed a very positive step by the Scottish Govt. I finally feel that our concerns over the surveyor reports are being taken seriously. Councils can’t be allowed to close schools when there is serious concern over the validity of the submitted surveyor report and the only way to prevent any councils from altering evidence to suit their aim is by taking the entire process out of their hands. I have no qualms with what I saw from the surveyor. I believe he did his job as asked. The trouble I have is what he WASN’T asked to do at Muirfield and how some of his gradings were changed on Timmergreens.
Our doubt (and the information commission’s subsequent doubt) over the validity of the surveyor reports shouldn’t be news to any of the Angus councillors or the Scottish Govt.
I actually held up the sheets and pointed out the differences between them during a deputation at the Final Vote meeting! All 29 of the councillors who voted that day knew our concerns but 15 chose to ignore us.
It was also in our ‘call-in’ and we notified the SG that it had gone to the Information Commission so there can be no claim that this has come to light outwith the official representation period.
Because of all the responses given to us and the Information Commission, I’m really struggling to see what our council’s argument is going to be on this one.
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The actions of the Cabinet Secretary and the call in team are most welcome but something which must be pointed out is that none of this is new information. Ewan held the changed survey sheets up at the Council meeting where the superschool was voted through. Numerous of the call in requests by individuals mentioned them in their representations. The track record of Angus Council changing grades ahead of closure consultations has been known about since 2008 and was used as evidence at the Committee stages of the Schools (Consultation) Act.
If the Information Commissioner can take this information and perform a detailed investigation of the procedure then why could the call in team not achieve the same? During an investigation the Information Commissioner maintains a dialogue with both sides in the dispute throughout. The responses he gets shapes how the investigation develops. The call in team appear only to ever enter into dialogue with the Council concerned and therefore miss out on the crucial rebuttal information which people like Ewan have at their fingertips.
If we are going to have an appeal process on the Schools (Consultation) Act (and all available evidence says it is essential) then it must be open, transparent and inclusive. The current system is not working and must change. During the progress of the Act, SRSN continually pushed for an independent panel to scrutinise the evidence from both sides and make recommendations to ministers. Their recommendations and the reasons for them would have been made publicly available.
It was in the spirit of compromise that we agreed to a call in system operated by Government officials. It is now clear that this compromise was a huge mistake and that the Information Commissioner has proven how important it is that someone with an unattached and fresh perspective weigh up the evidence from both sides.
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This is something that confuses me, the information was given in multiple call in requests why is it only now that they are actually paying attention to it?
They can’t have believed it was us who changed the grades so what gives?
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I’m guessing that the SG call in team was waiting for the Information Commissioner’s report rather than set up a parallel investigation. This avoids any accusation of political interference.
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That would make sense.
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For Dr Douglas Mackenzie: Do we know whether the Information Commission automatically informs government of investigations it is conducting?
What we do know here is that it was Ewan Smith of the Muirfield Action Group who provided the Information Commissioner’s report – which was prepared for him – to the Education Secretary’s call-in team. We have no reason to believe that they were expecting it.
We have no knowledge of any independent transmission from the Information Commission to the Scottish Government on this matter – nor do we know if this is to be expected as normal procedure.
If it is not, how would the call-in team have known that the Information Commission was conducting any investigation at Angus Council on information holdings connected with the proposal to close Muirfield?
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For Tamarto: The problem here is a form of classism in the acceptance of objective evidence.
The Muirfield Action Group already had and drawn attention to the documentary evidence of alterations to the qualified surveyors gradings on the condition of Muirfield school. It had also made public its inability to get documentary evidence of the reasons behind the changing of the surveyors gradings – and it had pointed out that it is a statutory requirement upon councils to keep such records. Similarly, it had also announced its inability to get any documentary evidence proving that a physical survey of Muirfield’s heating and mechanical services had been carried out – raising the question of how the apparently groundless and very poor grading of this element had been arrived at.
Evidence is evidence – and this was documented evidence Muirfield Action Group had acquired through Freedom of Informatikon, used and made public.
All that the Information Commission’s investigation and report added was that Angus Council was not holding any information it had not made available to Mr Smith.
The Information Commissioner had no more success than the Muirfield Action Group in discovering why the changes had been made to the surveyors gradings of Muirfield’s condition; nor had it either been able to discover whether a physical survey of the heating and services at Muirfield had been done, (and if so, who had carried it out) as the basis for the very poor grading recorded.
While the unchallengeable impartiality of the Information Commissioner in the findings in its report was reassuring, it still leaves open the question of why the same evidence was officially acceptable from that source but not from the Muirfield Action Group. Angus Council had not, as far as we know, challenged in any way the authenticity of that evidence nor had they provided any counter to it.
There are procedural and attitudinal issues here which require some careful reflection within the Scottish Government and the Scottish civil service.
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If I can comment on both of Newsroom’s replies in one:
No I don’t know if the Information Commission automatically passes information to the SG. However, the SG call in team certainly knew that the IC was investigating Ewan’s complaint – for the reasons you indicate. Given that they knew the IC was investigating they may have felt it prudent to await the outcome of the IC investigation rather than launching a duplicate investigation of their own. This seems reasonable – after all we would not have expected the SG to launch its own investigation into the allegations that someone in the Council had rigged the on line consultation whilst there was a police investigation underway.
To your last point about classism (which had me scratching my head for a minute!): it is true that the IC has added nothing new in terms of information to Ewan’s initial information but what it has added is valuable corroboration and officially pointed to Angus Council’s shortcomings in its audit trail.
Sandy is quite right in that the SG call in team could have done this work themselves but my point is why bother when an independent investigation was already underway, one whose outcome had the additional value that the IC could not be accused of political interference or bias in the way that anything originating from the SG could (and would) be.
However, none of this should in any way detract from the fact that this is a good news story. A quick calculation relating to council meetings, EU procurement rules and May elections suggest that even if Mr Russell were not to adjudge the closure proposals deficient there will not be enough time to ram through the “super” school to the point where a new incoming administration cannot cancel it.
If that does happen then it is down to the electorate in Angus to ensure that this proposal becomes as extinct as the proverbial dodo.
That said, I am still hoping that Mr Russell will refuse the application on the basis of the considerable grounds he already has.
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The Information Commissioner does not inform the Scottish Government of its investigations as routine. It places a list of current investigations on its website after a validation procedure has been carried out. This takes about three weeks. The investigation then takes place. In this case the call in team knew about the investigation during the investigation process because Ewan told them it was underway. I await an FOI request from the Scottish Government in very early January which will tell for sure but my impression from the Commissioner’s side is that there was no contact from the call in team asking about the progress of any investigation.
As one of the individuals who made a call in request detailing the changing of building condition grades I would be more than upset if the people charged under the Act with investigating my claims simply sat on their thumbs waiting to see if the Information Commissioner would carry out an investigation.
This should have been investigated in detail by the call in team in August – there could have been no inference of political interference – it is simply what the Act, and the requesters expect them to do —their job.
There is no question that the IC’s reports carry a huge amount of weight and it is actually better that it did come from them. Why would that be? Simply because every decision they make and report they issue are fully explained and come with the respect OSIC has earned. It is a crying shame that the same cannot be said for the reports issued by the call in team.
That said I received an FOI today from Audit Scotland which shows that the call in team were active in requesting relevant documentation in September. I have been given no record of Audit Scotland responding to that request so perhaps the failures go beyond just the call in department.
This is a good news story and it is to be hoped it is the start of a new era but information I received today leads me to think that any optimism is misplaced. We may yet get the right result on Muirfield but that will only be curing a symptom. The disease itself is so bad I think it may be terminal.
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Sandy “If we are going to have an appeal process on the Schools (Consultation) Act (and all available evidence says it is essential) then it must be open, transparent and inclusive.”
Agreed. And both sides should be able to appeal a decison.
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For Simon: That simply has to be the case.
From where we stand, this has to be a straightforward, objective, transparent process based on legal compliance, security of evidence, probity of process and equal access to key stages of the process – in the interests of all concerned.
There will be some cases where there is sound competing evidence, where call-in would have to be used.
In such cases, the Education Secretary of the day, in coming to a decision, would have to decide on the basis of priority to be given to one soundly evidenced position over another; and would have to be open and clear as to the reasons for prioritising whichever evidenced position was chosen.
In the case of rural schools, if the legal presumption against closure survives the Commission on the Delivery of Rural Education, such a presumption would be the obvious criterion for choosing one securely evidenced position over another.
In the case of an urban – or non-rural – school, the position would be different but if the primacy of educational benefit survives the Commission, this would be an unarguable criterion for deciding between two equal and evidenced logics. Again the detail of thinking behind the eventual decision would require to be made known – in the equal interests of parent councils and local authorities.
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Simon, could not agree more. The important thing for me is that the correct decision is made on the best possible information. The reasons behind that decision need to be laid bare for all to see. That way it is easier to accept the decision – even if you do not like the outcome.
I have been on the wrong side of a couple of the Information Commissioner’s decisions but in every case he details exactly what evidence he has viewed and how he has balanced that against the legislation. I may still want the information but I have never been able to quibble the decision. Both me and the authority then have the option of going to the Court of Session if we think the Commissioner is wrong on a point of law. That is how any self respecting appeal process should work.
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“Simon” How could a Council appeal its own closure proposal? It is the Council who makes the decision to close a school, the Minister is the final port of appeal against that decision. There is no point having an ability to appeal the Minister’s decision as it is meant to be the final port of call (short of judicial review or other legal action).
However, I agree with Sandy in that the current situation where a council is judge and jury should change so that a genuinely independent body scrutinises school closure proposals from the point at which they become formal. They would adjudge at the start of the proposal if the Council’s proposals are competent thus preventing the nonsense in Argyll where wildly incompetent proposals were brought forward and the Council breezily insisted that gaping holes in their adherence to the Act and numerous material errors in the proposals were unimportant as they would be amended during the process. The independent body would scrutinise the actual consultation process and rule if this was competent and if stake holders concerns were adequately dealt with. If yes, then councillors could vote on the proposal.
Done properly this should ensure that closure proposals were much more consensual and only rarely subjected to call in.
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“doc” – I’m not sure if you’re being deliberately obtuse or it just comes naturally – regardless.
If there is to be an appeal procedure then in the interests of justice that process should be open to both sides.
That means if the case is called in and
a) the Minister decides the school can close – then the community if is so wishes – can appeal that decision.
b )the Minister decides not to close the school – then the authority should also have a right of appeal against the Minister’s decision.
That is both even-handed and fair as well as being open and transparent. But I suspect that’s not what you want
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“Simon”: you just cannot let any opportunity pass without being nasty can you?
I thought this is what you meant: you want an ability for councils to appeal the Minister’s decision so that the whole thing goes on ad nauseum until the council gets the decision it wants. The whole point of the current set up is that Ministerial call in is supposed to be the last appeal for parents and communities, not an automatic process.
In any case, the ability to appeal the Ministerial call in already exists in the ability to ask for judicial review. This is easier for LAs to exercise that parents and communities of course since LAs can happily use taxpayers’ money for these purposes whereas parents and communities have to use their own resources.
The idea that councils are disadvantaged by the current situation is absurd. As has been noted, the council has the ability to enter into extensive dialogue with the Minister which the parents and communities do not enjoy. To build in some sort of appeal to the appeal is just mounting fleas upon fleas.
As I have said, my own solution would be to have independent scrutiny of the process from start to finish to greatly reduce the need for ministerial call in.
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Just as an addendum “Simon”, if anyone is being obtuse it is yourself: Nowhere in this thread does anyone from the “schools” side suggest having an appeal to the appeal process (I’ve just checked). When Sandy referred to having an appeal process he was meaning the call in process, not an appeal of that appeal.
What is important is that the call in process gives symmetrical rights to both the council and the community. This is not the situation at present.
A “doh!” from you in apology will suffice.
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In full agreement wit hthe fact that parents and Joe Public should be treated the same as the councils are when a decision gets to the ‘call in’ stage. The fact that it gets called in means there are questions to be answered who on earth thought it fair to only allow one side right of reply?
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All the “arguements” have been presented…. but the wishes of the parents of children at Muirfield seem to be ignored…. as the ground swell of opposition grew against Angus Councils plans the parents objections were swept aside with the indication a “consultation” had already taken place and their objections were to late…
Whatever happens my thoughts are that the “Council” should run a separate “new” consultation excercise on both Schools… At least we would get the correct feeling from all concerned parties and parents…
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“doc” – this is an outrageous comment from you “you just cannot let any opportunity pass without being nasty can you?”.
When I cam back on here after a long time your greeting was along the lines of ‘what stone has Simon crawled out fromm under’.So, again it’s obvious that what constitutes deflection or being nasty can only ever on here be defined by “doc”.
If you actually look at my post instead in reacting – I was being constructive.
But thank you for telling me what Sandy was thinking – personally I have to say I would’ve let Sandy speak for himself. But…..
Have a good Christmas “doc” – you and your family. And, get a grip and chill…..
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Read your own comment – you called me obtuse and being uninterested in being fair and transparent (itself quite amusing given our relative position viz a viz anonymity). If that is not being nasty I’m not sure what is. Read my comment that you were responding to. Was their anything in that that was a personal attack on you(se)?
In fact I have noticed that you are happy to dish personal insults but are remarkably sensitive to the least criticism of yourself. Get a skin I would say.
However, applauds for diverting the topic yet again: lose the argument, shoot the messenger. No acknowledgement then that you completely missed the point of the thread: that the process whereby councils can make extensive representations to the Minister post call in whereas parents/communities do not enjoy this privilege is unfair and needs to change.
I wish you well this Christmas. You have advanced the cause of the schools more than you will ever know and we are grateful.
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“doc” you don’t half talk pretentious rubbish at times. Even Newsie and Sandy agreed with my post but still you call it deflection??
I was proposing an open transparwnt process with both sides having the right of appeal against the decison of a Minister. To that I would add that maybe all decisions should be called in as a matter of course??
But anyway enough of this just now – I hope you and your family have good Christmas “doc”.
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For Simon: Agree absolutely on an open and informed system with both sides having equal access to the call-in process and equal right of appeal.
Your suggestion of an automatic adjudication of both cases by an independent higher authority – and perhaps as the decision taking stage? – is much to be supported.
It would reduce local antagonisms. It would leave local authorities and parent councils as equal petitioners. It would leave government as the final interpreter of its own laws.
We say ‘government’ because this is a minor point of departure For Argyll would have with SRSN. This is a small country. In the public sector, there are, for historical reasons, tight knit bonds between local authorities and civil servants and just about everybody else in the sector.
It would be impossible to find any body commanding automatic trust for independence – except the Information Commission whose conduct has been impeccable; which is evidence based; which is invariably open and fair to both parties; and which is transparent in publishing the detail of its findings.
What we need, as Sandy Longmuir has said is – in this instance – for the government education department’s call in team to act in exactly the same way as the benchmark set by the Information Commission – and to make that an unvarying position.
No one could fail to trust that, even when decisions went against them. And where there were differing views on a point of law, either side would have to have right of appeal.
And for the record, we are aware that it has long been the lack of such authoritative objectivity that has led local authorities into dark places. Most – but not all – people will do what they can get away with.
Yours is a first class and enabling proposal we would support.
And Happy Christmas.
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See – there you go again “Simon”: now I am talking pretentious rubbish. Rubbish is your opinion but why “pretentious” unless you just want to be nasty?
Anyway, read the previous posts and indeed Newsroom’s below. What Sandy and Newsroom were agreeing was that the school closure process should be fair to both sides (who wouldn’t?). Our point was that the process is too heavily geared to the council side at present.
No-one other than you suggested an appeal process against the Minister’s decision and I for one see no need for such a process beyond the legal remedies that already exist.
However, let’s look at the points of agreement. Go back to my earlier posts and read them: I advocate an independent body (ie not the councils) having control of the consultation process as soon as a proposal becomes formalised. Councils work up their closure proposals after going through the requirements of the Act and the independent body decides if the proposals are competent. It undertakes the consultation and produces a report at the end summarises the case for and against then councillors vote on it. If the community is unhappy with the outcome there is still the option that the council’s decision can be appealed to the Minister but this should be a rare case.
This produces the impartial and transparent process you seem to be calling for.
As to who the independent body is, there are plenty of models of arms length government bodies that allow independence without setting up new quangos. I’m pretty relaxed for it to be in the Education Department providing its impartiality is guaranteed.
And hopefully that sees us ending this topic (for now) on a note we can all agree on?
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Just another thought on this.
I do think this latest development is very positive. The surveyor reports have angered me ever since I first saw them and the ‘dog ate my homework’ excuse I got for the council not having the legally required physical records of inspection – either for the heating at Muirfield or to cite the downgrading of the surveyors reports.
I would like to see the surveys of the buildings redone by a non-council inspector and their response to the govt made public – without FOI – before Mike Russell makes a decision.
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