Comment posted 2010 Schools Act: Hillhead School, Scottish Ministers’ Wick Determination and the cost of justice by newsroom.
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.
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.
- We had understood that legal aid is not available for Judicial Review but will check.
Recent comments by newsroom
- Iain McCallum: the human bridge between Campbeltown and Heroes Challenge UK
Alan – we’ll try to get a message to the team for you – and will pass on your email to them for dir3ect contact.
The communications side of things is a weak link – not just with wifi and mobile signal problems but with accurate information on ETAs and even destinations.
We spent the afternoon today chasing around unsuccessfully to find them at their stated destination in Campbeltown – confirmed before we set off to drive – when in fact they finished at The Putechan Hotel, which is on the west coast of Kintyre and well short of Campbeltown. Very frustrating.
We did see the team doing the hard stuff though – passing them on the way south. They were cycling in two clusters, impressively easily and very disciplined in the way they were dealing with traffic streams behind them.
You should know that we now understand that they will row tomorrow from Campbeltown to Glenarm and not to Ballycastle; and that it looks as if they will row back not form Newcastle but from Bangor to Portpatrick.
They’ll be delighted to see you mi-channel. Great idea.
- Argyll and Bute Council: Where are we now?
The difference is that the new ferry to Campbeltown had an arrival time and actually arrived.
A major part of what we work to do is to support initiatives at all levels that are focused on regeneration and are driven by positive, creative energies that make things happen.
Campbeltown wins hands down over Kilmory any minute of any day on these criteria – and we never spare ourselves travelling and hard work on a cause that has some hope of going somewhere.
And just in case you are implying that this was a jolly – which we never do: I myself drove to Campbeltown – 1 hr 30m – did the work and drove back again immediately.
- Argyll and Bute Council: Where are we now?
This amusing spin disguises the fact that there was no political ‘speculation’.
There was formally recorded political realignment and manoeuvering by all councillors – which was done in some urgency before the council meeting, yet appears to have stalled – for some reason and for the time time being at least.
Councillors do not seem to realise that this adds to the alienation of voters rather than assuage concerns.
- Big welcome at Campbeltown for new Ardrossan ferry
We understand she carried about 60 passengers and although, flying around to catch as much as possible, we didn’t have time to count the cars coming off, we did look out for this and there were a respectable number of them.
- Argyll and Bute Council: Councillor McCuish leads again
We appreciate that it is inconvenient for a light to be shone on doings your party would prefer to keep hidden in shady places from those it asks to vote for it.
That is a dishonourable contract.
As the former Alliance of Independent Councillors [which had nothing at all do with Michael Russell ] knows very well, when it was damaging Argyll and Bute by its conduct during the 2010-11 schools closure wars, we were even more vigilant in keeping them under scrutiny and publishing on their manoeuvres.
We had to be even more vigilant because they were skilled at keeping things under wraps – where the SNP has conducted its acts of political genocide en plein air. All anyone has had to do is draw up a chair.
It should be obvious from our stance in recent weeks that we have no ‘vendetta’ against Councillor Dick Walsh, whom we dealt with arguably more harshly than we have done with Mr Russell.
A central function of our role is to contribute to the holding to account of those elected to serve the people. We do our best to fulfil this fairly – and hard. But we have no vendetta against anyone.
In Mr Russell’s case we simply feel he is a hot air balloon who has imploded over Argyll and done a great deal of harm – profoundly so to his own party, which we used to support. The evidence for our view is in the public domain.
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