Comment posted 2010 Schools Act: Hillhead School, Scottish Ministers’ Wick Determination and the cost of justice by newsroom.
We had understood that legal aid is not available for Judicial Review but will check.
newsroom also commented
- This sort of statutory setting of process is not open to question and actually has an irrefutable logic.
And none of the qualified sources we talked to doubted the clarity of the Act in the shift of responsibility it describes at call-in. The legal phrase is ‘remit to themselves’ upon call-in; and there it no mention in any part of the Act, the Explanatory Notes and the Statutory Guidance of the responsibility ever moving back to the local authority.
The legal refutation of what you are arguing is that if the call in decision was in some way remitted back to the local authority, they could only object by taking themselves to Judicial Review.
The only point where the local authority legally owns the decision to close and is therefore open to challenge, is when, at the end of the statutory period of three weeks, Scottish Ministers consent to the closure decision without calling it in – which is what has happened with the majority (the small majority) of schools.
In the case of Hillhead School in Wick, where having remitted the matter to themselves, Scottish Ministers took the decision to close the school, it is the Scottish Ministers’ decision on which Hillhead would petition for Judicial Review.
And the denial of ‘collusion’ between the Education Secretary and an LA somes out of left field. We have neither suggested nor considered that.
On the most appropriate source of a call-in team: logically, if educational benefits are, as the Guidance prescribes, at the heart of any decision to change the circumstances of a school, Education Scotland (the former HMIE) would be the logical home for a ministerial call-in team.
Their current role in the process is, following the consultation period, to reporting on their view of the Educational Benefits Statement advanced by the local authority, with consideration of issues raised during consultation; and approving or not the proposal to close.
The stability of judgment in their performance to date in this role does not exactly offer confidence in their potential performance as a call-in team. But they could be beefed up and scrutinised more rigorously.
The worst case of incompetence or complicity – there are no alternatives – is where, they gave Uyeasound School in Shetland what was the best HMIE report in Scotland, written in such terms that any reader would want to turn the clock back and have a second chance themselves.
HMIE’s report on the proposal and its consultation, submitted prior to Shetland Isles Council taking the decision to close Uyeasound, expressed their concern on the robustness of the Educational Benefits Statement. The decision to close was called-in. HMIE then went on to approve Scottish Ministers’ call-in decision to close of the school and the transfer of its pupils to another school with inevitably a less stellar educational standard.
- Sorry DDM – but this is not something for agreement or disagreement. It’s a description of the legally prescribed process. Neither you nor I have latitude to argue it.
What we have reported is the position laid down in those words in the Act, in the Explanatory Note to the Act and in the Statutory Guidance to the Act.
I think (hope) that’s been made specific in the article
An application of this matter also forms part of another interesting legal question raised in one of this series of articles – ‘Whose decision is challengeable?’
There IS a degree of confusion in imprecise practice in the terms used by the call-in team in communicating call in decisions to local authorities.
The failure of this team to grasp legal issues securely is a major cause of the illegality of the Wick determination which undermines the operation of the Act.
- FYI: By law, the Education Secretary has indeed shut several schools.
We know that legal argument is fine, close focus and tedious to read but in trying to do a decent forensic job on what is a serious mess, it is an imperative.
The legal fact is that the act of calling-in a local authority decision to close a school has the statutory effect of ‘Scottish Ministers’ remitting to themselves – or taking upon themselves – responsibility for the closure proposal and for the decision taking that – whatever way it goes – descends from that proposal.
So the Education Secretary is directly, both practically and legally, responsible for every school closed on a call-in determination of consent.
That includes Robslee, Hillhead and Uyeasound. It very nearly included Muirfield.
- The Education Secretary is already facing two Judicial Reviews on his determinations in school closure cases.
The first in the Court of Session (in court yesterday and today) has been raised by Western Isles Council over their overset decisions on four simultaneous closure proposals. It is instructive to read their reasons for going to Judicial Review: http://www.cne-siar.gov.uk/press/120306.asp
The second will be in the Court of Session on 3rd May, a deeply ironic coincidental date (2012 local authority elections) and has been raised by Angus Council. This relates to the Education Secretary’s determination which overset the Angus decision to close Timmergreens and Muirfield schools in Arbroath, transferring pupils to a new school on the town bypass.
- For BlairD and fanofsimon:
Each of the articles in this series have been the best read story in the 24 hours following its publication, some for longer than that.
We have noticed that there are two types of article we publish which are universally very well read but do not attract much comment.
One is heavyweight material as with the series of articles on the legal difficulties created for the 2010 Schools Act following Scottish Ministers’ Wick determination.
The other is photojournalism material on places, events and businesses in Argyll.
Both are invariably very heavily read but little commented.
At a guess, the first type demand the sort of serious engagement that takes readers to the coffee mug rather than the comment button; where the second are somehow complete in themselves, with people enjoying them but not feeling the need to add a lot.
Recent comments by newsroom
- Serenissima waits for higher tide – and she has had earlier identities
We are, of course aware of that.
Watching at the time, what we saw her do was make marked changes of course over a short distance, some times at 90 degrees and at one point turning through 180 degrees three times in a row.
While some of this could have swinging to tide and current, the repetitions did seem to suggest controlled activity.
And it was only when she settled that her AIS recorded ‘At Anchor.’
- Update on SNP meeting
As we have said, the potential Holyrood candidate offered support for SNP selection against Mr Mackenzie, as we reported,is not a political figure – and that includes Mr Allan, who is certainly one such.
We will identify the person concerned when selection time comes around but not until then. Until that point, it is not the person offered the goodie bag who matters, it is the easy use of the patronage of the pork barrel to buy obligation where it might be personally useful – and the continuing failure of loyalties.
Councillor Semple is certainly much more experienced than Councillor Taylor and has held a range of senior responsibilities.
The ‘why not’ question is one for the party and it would be interesting to know the answer.
Councillor Semple is apparently to be given the Economic Development brief – which would be far more personally developmental than trying to lead, with no authority whatsoever, in the current circumstances, with party control now at the level of ‘submission of intent in advance and sign-off – or not’.
- Good news from salmon farming sector: Marine Harvest breaks ranks and seeks ASC certification
The ‘end of the decade’ limitation is germane and explain why S&TAS rightly gave the news no more than a qualified welcome.
It is as admission that change is necessary, though – so it’s important to push for that to be sooner rather than at the end of 2019. There is no reason why it should not be.
- Update on SNP meeting
The fact that Mr Allan was asked and agreed not to resign does not negate the fact that he was to resign – and should have done so.
Councillor McCuish was persuaded not to resign and will have to make his mind up at what point he puts the interests of his constituents before those of his party.
Sandy Taylor IS a novice councillor.
As a former council officer and not at the most senior level, it is hard to see how he would – if he were to be voted Council Leader – successfully translate to being senior to those who have been his own line managers.
The fact that he has not been able to protect his group of councillors from tightened control measures from party central does not suggest someone with what it takes to stand ground over those he perceives to be his seniors.
- SNP meeting on Monday may be testing time for mega-coalition proposal
We’re not going to do a ’20 questions’ routine but, to let local politicians off the hook, it’s not any of them.
And we’re now taking a vow of silence.
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