Comment posted 2010 Schools Act: Hillhead School, Scottish Ministers’ Wick Determination and the cost of justice by Dr Douglas McKenzie.
Having read Western Isle’s reasons for going to judicial review, I’m failing to see how they will achieve this through the legal process which will only determine if the Minister acted legally within his powers. They also decided to go for judicial review in the heat of the moment rather than after having an extensive dialogue with the SG (as has Angus).
As Churchill said: “jaw-jaw always better than war-war”
Dr Douglas McKenzie also commented
- Newsroom: we are going round in circles on this . I’m not convinced by your argument and you are not by mine.
In practical terms much of this is semantic: if a school closure is not called in then the school closes (short of a legal challenge); if there is a ministerial call in but the proposal is allowed through then the school closes (short of a legal challenge); if the proposal is refused by the Minister then the process goes back to the LA to either abandon, start a new consultation or challenge the refusal. The school stays open in the meantime but it has not been saved. At no time, however, does the Minister close (or indeed save) a school: he merely grants or declines to grant permission for the closure to go ahead based on the LA’s adherence to the Act.
For Hillhead: what they are able to challenge is not the closure of the school, but the failure of the Minister to refuse the decision to close. This was perverse as the proposal was clearly legally incompetent (at least on the grounds of the information you have provided).
I repeat again, there is nothing in the Act that gives the Minister the power to judge on the relative merits of a closure case: he can only decide on whether the process was legally competent. I would personally like the Minister to be able judge on the merits of each case (and have the time to be able to examine each case in detail) but that is not what we have at present.
Regarding collusion, I’m sure the Mr Russell will be pleased that you have stated that it was not your intention to suggest that, as I felt this was exactly what some of the things you have written was suggesting, particularly in the case of Hillhead and the suggestion of collusion between the call in team and Highland Council.
Turning to the less circular part of this discussion: I don’t think HMIE are particularly suitable either and for two reasons:
1: There needs to be an independent examination of the EBS; placing the call in team within HMIE would result in the same conflicts of interest as occurs with the current set up – though possibly more in favour of the schools side of things than the LAs.
2: HMIE suggest themselves that they don’t have the economic expertise to judge on re-distributionist arguments used by LAs to justify closures so they just let these pass. Clearly the solution is to have a small team that contains both educational and economic expertise.
It would, I suspect, be difficult to justify having such a team solely for the purpose of call ins. One of the suggestions ARSN put to the Commission was that there was a need for scrutiny of LA closure proposals BEFORE they go to public consultation. This would adjudge if the proposals were competent under the Act at this stage and this would save a lot of shouting and waste of tax payers money. It would also reduce the numbers of call ins as these would become restricted to matters that arose during the actual formal consultation. The team would need to take a robust approach to challenging LA data supplied as part of the case for closure and good practise would be that extensive pre-proposal consultation will already have taken place. We don’t want just a box ticking exercise in scrutiny.
- Newsroom: one of the endless attraction of the law is that it can always be argued! Whether either of us are qualified to argue it is a mute point because if we are not then it rather stifles the discussion.
Nothing in the Act convinces me that the Minister closes schools, certainly not directly nor by collusion with the decision of a local authority. In the call in procedure the Minister does not judge on the merits of the case for closure (though I am sure he has his own opinions). The Minister’s powers relate solely to the determination of the competence of the procedures followed (including whether material facts were properly addressed during the consultation). Anything else is ultra vires. The school is closed by the decision of the LA. Ministerial call in may delay (perhaps indefinitely) that decision. The Minister does not sit in Olympian judgement over the fate of individual schools.
The Law is not like the laws of physics where we can define 5 sigma levels of certainty to our understanding. The Law is all about interpretation that, like Schrodinger’s cat, is only crystallised into some clarity when examined in a court of law.
The interpretation I have given is the one being followed by the Scottish Government. Other interpretations are possible: Highlande and Angus (and COSLA) believe in a much more truncated interpretation of the Minister’s powers; you believe that he could make a much more expansive interpretation of his powers. But what matters is the operational interpretation as that is what is driving things at present.
Regarding the call in team, I can see the logic of having this in the infrastructural team but I strongly agree that the lack of educational expertise makes this a nonsense when the core of the Act is the Educational Benefit Statement. The unit itself recognises it does not have the appropriate experience and relies instead on HMIE for guidance (they said as much to one of the school’s groups – I think it was Robslee). HMIE on the other hand don’t feel that they have any grasp of the economics. I think this may be at the root of this problem of an EBS being accepted if it is there even if it is a pile of mince.
I think the call in team should be enhanced in its expertise and you are also correct in arguing that potential conflicts in role between the infrastructure team’s wider remit and that of the call in team need to be addressed and that is best achieved by separating the two.
Of course, it was never anticipated or intended that the call in team would have been quite so busy.
- I disagree.
The decision to close a school is made by the local authority after the statutory consultation and voted on by the local councillors. This is the decision to close or retain the school.
Ministerial call in is not a final judgement on the merits of the closure. What the call in does is give the Minister the opportunity to consider the process that has led up to the LA’s decision and in particular to determine if the consultation process was competent under the Act.
Even if the Minister does not give permission for the closure to proceed, there is nothing to stop the LA bringing forward a new proposal to consult on closure and if they get it right then there is nothing the Minister can (legally) do to prevent the closure.
This is the reality of the implementation of the Act and the fact that the provision of school facilities is the remit of LAs and not the Scottish Government.
I know from conversations with Sandy that he at least felt there was a catch all provision in the Act to allow the Minister to prevent closures where the proposal is legally competent but daft. However, this is not the advice coming from the SG’c lawyers. As I pointed out some months back, teh Ministerial call in procedure does not give parents and communities the protection they believed it did and this needs to be both recognised and changed.
As can be seen by the recourse to judicial reviews by both Angus and the Western isles, there are those who believe that Mr Russell already exceeds his authority whereas you criticise him for not blocking (at least temporarily) Robslee, Uyeasound and now Hillhead. A rock and a hard place!
The ministerial call in exists to block a local authority’s decision to close a school that has followed a legally incompetent consultation. It does not allow the Minister to judge on the relative merits of the closure proposal.
What I will give you is that approval for the Highland closures, of which Hillhead is part, should not have been given as the proposals were clearly incompetent as they did not contain an EBS. This is something that Mr Russell should either explain or hold his hands up and admit a mistake was made.
Turning to the judicial reviews: Western isles are basing their case on the premise that the closure proposals were all effectively the same so why were some accepted and some rejected? The answer is that the proposals may have been the same but the schools were not. I am fairly certain that the review will conclude that Mr Russell acted within his powers under the Act.
In the case of Angus, I am surprised they have even considered taking the Muirfield and Timmergreens decision to court. By their failing to comply with the legal requirements of the Act the decision will again be that the Minister acted within his powers.
The one judicial review that would go against the Minister would be Hillhead. The decision was perverse as the proposals from Highland clearly did not comply with the Act (which is why they were called in). I’m sure someone has already put in FoI requests for the correspondence between SG and Highland on this issue and it will be interesting to see if it was Highland’s officials that suggested the Caledonian exercise could be used as a surrogate EBS or if this came from the call in team.
Off to bed now!
- It is you who is deluded (and deliberately so I suggest).
Mr Russell hasn’t shut a school in his life: Robslee was shut by ERC and Hillhead may be shut by Highland. Unnecessary school closures whether sadly successful or not are the responsibility of local authorities and voters will remember that in May. I know why you are desperate to suggest otherwise but that is the truth.
As to your other comment below: you are correct that it is hearsay in that I was not at the meeting but I was told by someone who was. Hearsay yes but hardly groundless.
Have you really nothing better to do than keep issuing these very cheap and ineffectual shots?
- Thank you for the wishes for a full recovery – certainly well enough to detect eye wash when I read it.
I noticed you said nothing in praise of Mr Russell when the Muirfield and Timmergreens decision came through.
As has been said many a time on here, you don’t give a flying cuss about any of these schools. Any excuse to bash the Nats and if you have the opportunity to take a swipe at those nasty degenerates in ARSN who showed your beloved Council Leader and his rag bag supporters to be nothing other than money wasting poltroons, then so much the better!
As you well know, you are (as usual) twisting my words. On Robslee my point was that the Act does not allow the Minister to oppose a closure on grounds other than a failure to adhere to the Act’s strictures. The fact that Mr Russell allowed ERC to proceed with the closure meant that the advice he had received was that ERC had complied with the requirements of the Act and he had no grounds upon which to refuse the proposal. What I said at the time was that this was an astonishing state of affairs as the Robslee proposal had no obvious educational benefit to either the children at Robslee or those at Giffnock. This showed that the Act was not working as intended ( at least by the defenders of rural schools) but Mr Russell had already acted on this in setting up the Commission.
The situation with Hillhead is entirely different. There was no unequivocal evidence that ERC had failed to comply with the Act whereas, as FA has laid out in exhaustive detail, Highland made a complete bourach of their proposals and Mr Russell’s department should have rejected the proposals for this reason, regardless of the underlying “rightness” of the overall proposal or parts therein.
The cock up in not doing this was compounded by the cack-handed attempt to excuse Highland Council’s failure to produce a competent EBS. What was going on in Education Scotland I don’t know but I am told that there is an acknowledgement within the Department that this was a cock up and that they have taken action (by writing to all the local authorities) to ensure that this does not constitute a precedent.
Ministers are responsible for the actions of their civil servants so Mr Russell deserves a skelp on the wrist for this state of affairs (and FA has already delivered a quite blistering condemnation). However, I for one, have confidence that Mr Russell’s heart is in the right place.
ARSN are working within the Commission and with SRSN to attempt to ensure that we achieve a clear and effective protection for rural schools that removes the imperfections of the Act and its interpretation. I have no doubt that this is what Mr Russell also seeks and so we support him in his endeavours. Should we become disabused of this notion then ARSN will oppose him.
However, we are very unlikely to do so at your behest as your motives are too naked to be given any credibility.
Get thee behind me “Simon”!
Recent comments by Dr Douglas McKenzie
- Rustle with Russell
More utter rubbish from Lynda Henderson. Have you actually spoken to Bob Allen? Whoever told you the story sold you a pup and in your arrogance you cannot admit to be wrong so you make up this story that he was persuaded not to resign.Your position is completely untenable.
- Russell back in the bathtub, now trying to sink Keith Brown’s boat
I’m afraid you condemn yourself by your own words. I don’t think that anyone reading what you have written here and the language you have used would conclude anything other than that you have a deep dislike for Mr Russell and that dislike is leading you to basically lose all sense of either proportion or impartiality. It doesn’t matter how well (or otherwise) you know Mr Russell you are clearly exercised by your interpretation of his actions and it is leading you well beyond the pale in what I would consider fair comment.This vendetta against Mr Russell and the SNP is destroying FA’s credibility and I have to confess that I’m seriously considering whether or not to continue reading FA (which will cheer Malcolm up if nothing else). I for one am becoming increasingly disenchanted by the constant negativity and sheer nastiness that has crept into this blog. I say that with a lot more sorrow than anger because I think that FA could have been great and indeed still could but there has to be a degree of balance, civility and indeed humour. All we are getting here is bile and it is causing me heartburn.
- Russell back in the bathtub, now trying to sink Keith Brown’s boat
To be honest, this post clearly shows that you are speaking from your personal dislike of Mr Russell rather than an unbiased analysis of the man. Phrases such as “publicity hungry coward” are well beyond what is reasonable comment. - Russell back in the bathtub, now trying to sink Keith Brown’s boat
You don’t seem to understand the separation of a MSP’s duty to his or her constituency and their responsibilities as a Government Minister.Yet again, this is another instance where a member of the Government can do no right: speak up and be condemned as “desperate” or stay silent and be accused of not serving your constituents’ interests.
It is just as well that Mr Russell has broad shoulders!
- Atlantic Islands Centre for Luing: biggest investment in island’s history
Well done Luing – an inspiration to all of Argyll’s communities.
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I wonder if any consideration has been given to whether Legal Aid is a possible route to fund judicial review. I am not a legal minded person so do not pretend to know the ins and outs of the criteria for qualification (I dare say someone out there could advise accordingly) however something in the back of mind tells me that an application for Legal Aid by a group (that being two or more people Simon) would not be allowable; however it may be possible for a single parent to apply for legal aid. If this is the case then it would need that one applicant to qualify on financial grounds so (and excuse how crass this sounds) you would be looking for someone on benefits with low, or no income.
I may be totally incorrect on this and if so I apologise, just throwing it out there as a suggestion.
It does appear inherently unfair that Angus Council can access public funds to take a decision to judicial review but a group of parents with what appears to be a pretty credible argument cannot.
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Your comment about fairness triggered an idea: perhaps Scotland should have a pot of money set aside to fund judicial reviews and other legal actions that are considered in the public interest?
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We got advice about Legal Aid when the school closures were in progress and your assumption about groups applying is correct. Quite simply they don’t qualify, it comes down to individuals and an individual meeting the criteria (low income etc) would be able to take up the case themselves, but not as part of the group.
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We had understood that legal aid is not available for Judicial Review but will check.
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My understanding was that (and I stress this is not information from a legal source) is that an application would need to come from a single applicant however most lawyers would not mind if that applicant was accompanied by additional people during meetings to discuss the issue.
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Dirty work at the crossroads?Gaggle of clowns? Where does it go from here? Interested to see what cards come out of your sleeve tomorrow.
My head’s sore staying in touch with this argument but I can see why legals have to be this way..
It stands up tho, so – yeah – respect and all that. You must have had a hell if a team on this one.
Something’s puzzling me. Argyll’s ed-heads have only just surfaced – but nothing on the issues only the peripherals? Education’s their thing but this must be four or five articles you’ve done on this topic and they must be interested in it but not a word out of one of them.
And where are the gurus who’s praises you’re always singing, the rural schools folk?
All a bit funny.
Sorry about this – but I wondered if you might have got this wrong (although I couldn’t see it)and I thought maybe if you were wrong that was why they were all respectfully quiet So I phoned someone I know well up the legal fraternity and got him to read this. And you’re on the money. In fact you got a pretty impressed verdict and he’s reading the other ones tonight.
So? What’s the story – there has to be one?
Or is nobody reading this stuff except me?
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It’s all politics, Blair D. Mikey boy Russell (all steam and hot water but no tea) at the heart of this cock up. And ARSN are SNP groupies who’d shaft schools for the cause. That’s why they’ve suddenly taken the vow – exceplt they found another wee nest to pass the time in – renewables. God help us, that lot can renew there own wind on a quiet day. This Wick schools act thing shows them up for what they are. Well named ARSN. I sometimes had a sort of respect for them even if theyre up tthemselves but theyre just the same as the rest. Come on Newsie tell us whats going on and A Blair’s Q, Is anyone but Blair and me reading this.
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Nothing short of nonsense which I am sure Newsroom and Sandy Longmuir can testify to.
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Oh dear God, not another Splinter Simon – the real Simon must be getting pretty fed up by now with all these doppelgangers hanging around him and sullying his good reputation.
Well done, though, for spotting that some ARSN members take an interest in other fields – I’m sure it helps to illustrate just what rounded characters we are.
Of course, not everything that ARSN says or does appears on here and as Integrity says, you can be sure that we are taking a keen interest in this issue, and the possible ramifications it has for Argyll in the longer term if it is seen as a precedent.
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I see the “Simons” are up to their usual trolling tricks.
I’ve been quiet of late as I’ve been recovering from eye surgery, not for any other reason. We RSN folk do comment on a variety of topics because we are well rounded, multi-dimensional individuals with wide interests (as opposed to the “Simons” whose interests appear to be exclusively slagging off the SNP and anyone or anything that has the temerity to criticise the leadership of ABC).
As to this specific issue, SRSN have it well in hand and FA seems to be on the money: this is a cock up that shouldn’t have happened and I am sure Mr Russell is asking stern questions of his civil servants as to how this came about. Action has already been taken to ensure that this is not seen as a precedent by local authorities and I for one would welcome a judicial review of the situation.
As to Hillhead itself, I cannot directly comment on the case as I don’t know the area. As FA suggests, there is a delicate balance here between the rights of the Hillhead community to keep their school and the people in Wick North who apparently really need a new school. That said, it is the policy of ARSN (and SRSN) to offer support to any parents council who wish to oppose the closure of their school and if there is anything we can do to help the PC at Hillhead we will (though they seem to be doing rather well on their own!).
As to ARSN being SNP groupies willing to shaft schools for the “cause”, this is the usual rubbish emanating from the “Simons”. As has been made clear on numerous occasions many of the more prominent ARSN’sts are not SNP supporters and we have consistently attacked the Government where we think they got it wrong. Robslee is a case in point: as I stated at the time this was a inexplicable decision as I could see no educational benefit in the proposal. This is something that we hope the Commission will straighten out and if it doesn’t then we will lobby the Government directly to get it sorted without fear of favour.
So how will the “Simons” be voting in the May elections I wonder?
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fanofsimon – Lol, that’s brilliant. I can’t help but imagine someone, somewhere is going “ssssh, ssssh, now listen! When you are in the castle don’t do anything it’s just too unsafe, we might get caught. When you leave the castle, remember the code word is ‘Simon’. Have you all got that?”
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BlairD,
Not sure about the ‘only just surfaced’ reference as people from Argyll have commented a number of times on previous articles regarding Hillhead and three times on this article before yours. Also worth noting that the article was posted today and people tend to be at work during the day.
That aside the advice provided by your friend in the legal fraternity is indeed encouraging and I wonder if you would be kind enugh to contact them again to ask about the matter I have suggested above (which CSB responded to) to confirm whether our understanding is correct.
Worth adding that most of the Argyll people are not ‘ed-heads’ and not professionally legally minded. We are just parents who were thrown into this by the shenanigans of our Council and made it our responsibility to learn quickly.
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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.
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Sorry for keeping my comments brief over the last couple of days, have been a bit pre-occupied here.
I’ve already stated my opinions on these schools etc when the news of them closing first came out and since Simon (the one and only original one) keeps banging on about me banging on.
If you want to check with your illustrious leader fanof and see if he wants me to resume banging on, please let me know.
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“doc” -first of all – hope your eye surgey went well and that you make a full recovery..
Secondly, “this is a cock up that shouldn’t have happened and I am sure Mr Russell is asking stern questions of his civil servants as to how this came about” What utter rubbish!! The last time Mike Russell agreed to close a school Robslee you defended him then saying words to the effect of ‘he had no option’. Now this time it’s ‘he’s stupid and not in control of his department’.
These schools should never have closed as the Act (brought in by the SNP) used to close them is flawed.
You guys are making a right arsn of yourselves trying to defend Russell. Just how many more schools will he have to close until the penny finally drops with you chumps? Or are you just waiting until after the election…..:)
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Thank you for the wishes for a full recovery – certainly well enough to detect eye wash when I read it.
I noticed you said nothing in praise of Mr Russell when the Muirfield and Timmergreens decision came through.
As has been said many a time on here, you don’t give a flying cuss about any of these schools. Any excuse to bash the Nats and if you have the opportunity to take a swipe at those nasty degenerates in ARSN who showed your beloved Council Leader and his rag bag supporters to be nothing other than money wasting poltroons, then so much the better!
As you well know, you are (as usual) twisting my words. On Robslee my point was that the Act does not allow the Minister to oppose a closure on grounds other than a failure to adhere to the Act’s strictures. The fact that Mr Russell allowed ERC to proceed with the closure meant that the advice he had received was that ERC had complied with the requirements of the Act and he had no grounds upon which to refuse the proposal. What I said at the time was that this was an astonishing state of affairs as the Robslee proposal had no obvious educational benefit to either the children at Robslee or those at Giffnock. This showed that the Act was not working as intended ( at least by the defenders of rural schools) but Mr Russell had already acted on this in setting up the Commission.
The situation with Hillhead is entirely different. There was no unequivocal evidence that ERC had failed to comply with the Act whereas, as FA has laid out in exhaustive detail, Highland made a complete bourach of their proposals and Mr Russell’s department should have rejected the proposals for this reason, regardless of the underlying “rightness” of the overall proposal or parts therein.
The cock up in not doing this was compounded by the cack-handed attempt to excuse Highland Council’s failure to produce a competent EBS. What was going on in Education Scotland I don’t know but I am told that there is an acknowledgement within the Department that this was a cock up and that they have taken action (by writing to all the local authorities) to ensure that this does not constitute a precedent.
Ministers are responsible for the actions of their civil servants so Mr Russell deserves a skelp on the wrist for this state of affairs (and FA has already delivered a quite blistering condemnation). However, I for one, have confidence that Mr Russell’s heart is in the right place.
ARSN are working within the Commission and with SRSN to attempt to ensure that we achieve a clear and effective protection for rural schools that removes the imperfections of the Act and its interpretation. I have no doubt that this is what Mr Russell also seeks and so we support him in his endeavours. Should we become disabused of this notion then ARSN will oppose him.
However, we are very unlikely to do so at your behest as your motives are too naked to be given any credibility.
Get thee behind me “Simon”!
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Dr D…
Returned fighting fit I see!!
Obviously eye surgery was success.
” Get thee behind me “Simon”!…….classic!!!
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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.
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Having read Western Isle’s reasons for going to judicial review, I’m failing to see how they will achieve this through the legal process which will only determine if the Minister acted legally within his powers. They also decided to go for judicial review in the heat of the moment rather than after having an extensive dialogue with the SG (as has Angus).
As Churchill said: “jaw-jaw always better than war-war”
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SRSN are new to this process and we are reading everything we can to get up to speed. We have taken a couple of cases to the point of judicial review under the old Act but have never got this far under the Schools Consultation Act. We are endeavouring to get hold of all of the papers and legal answers given in both the Western Isles and the Angus Council cases. We should have these very soon.
While we are still learning it has to be said that we have to agree with most people on here who have commented that newsroom has done her homework and that the article appears to be “on the money”.
The comments about the cost to pursue what should be an open and shut case are particularly apposite. There should not be access to justice only for the rich.
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I agree with Sandy entirely (not a lot new there). There is no way that the right of appeal should only be open to the rich (or Councils).
One of our parents made this very point as many on Angus Council ignored public opinion (again) to forge on with costly plans for Judicial Review. Would our Council have been fair-minded enough to offer to pay the legal costs for a parent-led challenge had the Scottish Government given the new school in Arbroath the green light? I think not.
This should, not, however lead to complacency. Councils would do well to remember that parents come from all walks of life, all professions and have a wide-cross section of skills. Above all, they believe in what they are fighting against which is more than can be said for those who propose the school closures.
Turning to Wick, specifically. It appears clear to me that Hillhead has been proposed for closure purely and simply due to geographical reasons. Had that school been ten miles further away no sane Council would even consider a closure proposal. I don’t think it’s fair to deny other needy schools the opportunity of a new facility, but at the same time I fail to see how this should mean that all schools in the area should be closed.
Surely a little bit of investment would bring a B/B school operating at 81 per cent capacity up to A/A? A smaller primary school could then be built instead of a merged one and without being a building expert I would hazard a qualified guess that the cost of refurb of one satisfactory building+smaller new build (which would in theory have much more outdoor space) would not outweight one merged new build?
Unless of course they want the land at Hillhead to build houses on…
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Ewan – As a general principle (and not knowing the specifics of the Hillhead case), I would go further and say that if a school is graded B/B (‘Satisfactory’) then the priority is adequate maintenance and keeping it open. At a time of capital constraint, I think most people would consider that to be a reasonable limit.
Raising all schools to grade A/A is certainly a noble aspiration, but Argyll & Bute claimed this would cost £61.72 million, and the unfeasibility of this was used as a key reason for closing a large number of schools, the vast majority of which were grade B.
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Tim is absolutely correct. There probably isn’t a COuncil in Britain who is actively looking to get their school estate up to A/A standards. B is considered perfectly acceptable and there are far higher priorities for capital investment. A&B’s £61.72m figure wwas entirely misleading as they would never have any intention of implementing a programme to achieve it – it was simply thrown in as a scare tactic to convince people of the need for closure.
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And if memory serves…
When challenged by opposition Councillors on this amount and how it was arrived at, didn’t Cleland Sneddon say there was actually no formula or basis for how they arrived at that amount and that it was a ballpark figure?
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Pretty much CSB – they said they couldn’t give us a price for any specific school – it was a cumulative figure. How you come to a cumulative figure without knowing the individual parts is beyond me.
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“How you come to a cumulative figure without knowing the individual parts is beyond me.”
Integrity….but A&BC are obviously cleverer than us!!
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I suppose the council must have used the same formula when they decided to remove the janitors from four community centres. The council couldn’t say how much would be saved in each individual centre, but were quite confident in the overall sum.
Maybe things are different nowadays, but when I was a wee lad we had to demonstrate a thorough understanding of a maths question by showing the calculations that resulted in our conclusion. It also made cheating quite impractical.
Oh, dear me! I wonder if that is the real reason why A and B Council are so averse to this procedure!
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Aw “doc” your faith in Mike Russell – depsite him having agreed to close both Robslee and Hillhead neither of which you believe should have closed – is really touching.
Misplaced, naive, deluded – but touching nevertheless…
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It is you who is deluded (and deliberately so I suggest).
Mr Russell hasn’t shut a school in his life: Robslee was shut by ERC and Hillhead may be shut by Highland. Unnecessary school closures whether sadly successful or not are the responsibility of local authorities and voters will remember that in May. I know why you are desperate to suggest otherwise but that is the truth.
As to your other comment below: you are correct that it is hearsay in that I was not at the meeting but I was told by someone who was. Hearsay yes but hardly groundless.
Have you really nothing better to do than keep issuing these very cheap and ineffectual shots?
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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.
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I disagree.
The decision to close a school is made by the local authority after the statutory consultation and voted on by the local councillors. This is the decision to close or retain the school.
Ministerial call in is not a final judgement on the merits of the closure. What the call in does is give the Minister the opportunity to consider the process that has led up to the LA’s decision and in particular to determine if the consultation process was competent under the Act.
Even if the Minister does not give permission for the closure to proceed, there is nothing to stop the LA bringing forward a new proposal to consult on closure and if they get it right then there is nothing the Minister can (legally) do to prevent the closure.
This is the reality of the implementation of the Act and the fact that the provision of school facilities is the remit of LAs and not the Scottish Government.
I know from conversations with Sandy that he at least felt there was a catch all provision in the Act to allow the Minister to prevent closures where the proposal is legally competent but daft. However, this is not the advice coming from the SG’c lawyers. As I pointed out some months back, teh Ministerial call in procedure does not give parents and communities the protection they believed it did and this needs to be both recognised and changed.
As can be seen by the recourse to judicial reviews by both Angus and the Western isles, there are those who believe that Mr Russell already exceeds his authority whereas you criticise him for not blocking (at least temporarily) Robslee, Uyeasound and now Hillhead. A rock and a hard place!
The ministerial call in exists to block a local authority’s decision to close a school that has followed a legally incompetent consultation. It does not allow the Minister to judge on the relative merits of the closure proposal.
What I will give you is that approval for the Highland closures, of which Hillhead is part, should not have been given as the proposals were clearly incompetent as they did not contain an EBS. This is something that Mr Russell should either explain or hold his hands up and admit a mistake was made.
Turning to the judicial reviews: Western isles are basing their case on the premise that the closure proposals were all effectively the same so why were some accepted and some rejected? The answer is that the proposals may have been the same but the schools were not. I am fairly certain that the review will conclude that Mr Russell acted within his powers under the Act.
In the case of Angus, I am surprised they have even considered taking the Muirfield and Timmergreens decision to court. By their failing to comply with the legal requirements of the Act the decision will again be that the Minister acted within his powers.
The one judicial review that would go against the Minister would be Hillhead. The decision was perverse as the proposals from Highland clearly did not comply with the Act (which is why they were called in). I’m sure someone has already put in FoI requests for the correspondence between SG and Highland on this issue and it will be interesting to see if it was Highland’s officials that suggested the Caledonian exercise could be used as a surrogate EBS or if this came from the call in team.
Off to bed now!
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YES
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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.
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Newsroom: one of the endless attraction of the law is that it can always be argued! Whether either of us are qualified to argue it is a mute point because if we are not then it rather stifles the discussion.
Nothing in the Act convinces me that the Minister closes schools, certainly not directly nor by collusion with the decision of a local authority. In the call in procedure the Minister does not judge on the merits of the case for closure (though I am sure he has his own opinions). The Minister’s powers relate solely to the determination of the competence of the procedures followed (including whether material facts were properly addressed during the consultation). Anything else is ultra vires. The school is closed by the decision of the LA. Ministerial call in may delay (perhaps indefinitely) that decision. The Minister does not sit in Olympian judgement over the fate of individual schools.
The Law is not like the laws of physics where we can define 5 sigma levels of certainty to our understanding. The Law is all about interpretation that, like Schrodinger’s cat, is only crystallised into some clarity when examined in a court of law.
The interpretation I have given is the one being followed by the Scottish Government. Other interpretations are possible: Highlande and Angus (and COSLA) believe in a much more truncated interpretation of the Minister’s powers; you believe that he could make a much more expansive interpretation of his powers. But what matters is the operational interpretation as that is what is driving things at present.
Regarding the call in team, I can see the logic of having this in the infrastructural team but I strongly agree that the lack of educational expertise makes this a nonsense when the core of the Act is the Educational Benefit Statement. The unit itself recognises it does not have the appropriate experience and relies instead on HMIE for guidance (they said as much to one of the school’s groups – I think it was Robslee). HMIE on the other hand don’t feel that they have any grasp of the economics. I think this may be at the root of this problem of an EBS being accepted if it is there even if it is a pile of mince.
I think the call in team should be enhanced in its expertise and you are also correct in arguing that potential conflicts in role between the infrastructure team’s wider remit and that of the call in team need to be addressed and that is best achieved by separating the two.
Of course, it was never anticipated or intended that the call in team would have been quite so busy.
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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.
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Newsroom: we are going round in circles on this . I’m not convinced by your argument and you are not by mine.
In practical terms much of this is semantic: if a school closure is not called in then the school closes (short of a legal challenge); if there is a ministerial call in but the proposal is allowed through then the school closes (short of a legal challenge); if the proposal is refused by the Minister then the process goes back to the LA to either abandon, start a new consultation or challenge the refusal. The school stays open in the meantime but it has not been saved. At no time, however, does the Minister close (or indeed save) a school: he merely grants or declines to grant permission for the closure to go ahead based on the LA’s adherence to the Act.
For Hillhead: what they are able to challenge is not the closure of the school, but the failure of the Minister to refuse the decision to close. This was perverse as the proposal was clearly legally incompetent (at least on the grounds of the information you have provided).
I repeat again, there is nothing in the Act that gives the Minister the power to judge on the relative merits of a closure case: he can only decide on whether the process was legally competent. I would personally like the Minister to be able judge on the merits of each case (and have the time to be able to examine each case in detail) but that is not what we have at present.
Regarding collusion, I’m sure the Mr Russell will be pleased that you have stated that it was not your intention to suggest that, as I felt this was exactly what some of the things you have written was suggesting, particularly in the case of Hillhead and the suggestion of collusion between the call in team and Highland Council.
Turning to the less circular part of this discussion: I don’t think HMIE are particularly suitable either and for two reasons:
1: There needs to be an independent examination of the EBS; placing the call in team within HMIE would result in the same conflicts of interest as occurs with the current set up – though possibly more in favour of the schools side of things than the LAs.
2: HMIE suggest themselves that they don’t have the economic expertise to judge on re-distributionist arguments used by LAs to justify closures so they just let these pass. Clearly the solution is to have a small team that contains both educational and economic expertise.
It would, I suspect, be difficult to justify having such a team solely for the purpose of call ins. One of the suggestions ARSN put to the Commission was that there was a need for scrutiny of LA closure proposals BEFORE they go to public consultation. This would adjudge if the proposals were competent under the Act at this stage and this would save a lot of shouting and waste of tax payers money. It would also reduce the numbers of call ins as these would become restricted to matters that arose during the actual formal consultation. The team would need to take a robust approach to challenging LA data supplied as part of the case for closure and good practise would be that extensive pre-proposal consultation will already have taken place. We don’t want just a box ticking exercise in scrutiny.
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“doc” I meant to say your comment “What was going on in Education Scotland I don’t know but I am told…” is pure unadulteratewd groundless hearsay and more worthy of Newsie than you. Tsk, tsk, tsk.
Have a nice day.
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“doc” I meant to say your comment “What was going on in Education Scotland I don’t know but I am told…” is pure unadulteratewd groundless hearsay and more worthy of Newsie than you. Tsk, tsk, tsk ”
You are a thief….
Not only do you steal the truth, but once stolen, you mangle it and redistribute your version to others.
Despicable…..
p.s. You forgot “edit” this time!
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Eh Morag? Not too sure what you are getting at but I didn’t “edit” I did a cut and paste from “doc’s” post. Is that thieving? I thought I was trying to ensure I was quoting accurately.
But there you go. Whatever.
You too have a nice day Morag
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