Comment posted Education Secretary loses Judicial Review of school closure rejections by newsroom.
What is hard to understand is that the government does not appear to know what its own law enables – or requires – it to do.
Lord Brailsfors has said that, in this case, the call-ins were unjustified and defective; and that he has been unable to find a consistent argument for calling-in these decisions between the reasons given in the call-in letters to Western Isles Council and those advanced in the pleadings in response to this challenge.
Interestingly – and with wide significance, he goes on to find that the process of call-in, once engaged, is very much more radical and protective than the government itself seems to have understood.
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- But we do continue to hope that half full fills up.
- Following Lord Brailsford’s findings, it is not going to be easier to call-in closure decisions. Quite the reverse.
From now on, call-ins will have to be strictly tied to clear procedural failures.
However, there is now a second non-legal constraint.
Once called-in, schools with a strong evidential case to stay open will have much more protection than they have had up to now.
The terms of the Act have now been clarified, with the Education Secretary, post call-in, required to take a full decision on the case in question – and not bound by anything that has gone before.
Since the Act puts no limit on the time that may be taken between calling-in a decision and coming to an independent decision, there is room for a largely new process of whatever kind the Education Secretary chooses.
But this means serious, detailed work and careful analysis – which the civil servants who would be doing it are not used to doing.
This is the invisible non-legal constraint now on call-ins. Imagine the work demanded by four simultaneous call-ins, as was the case here with Western Isles.
This situation will have a limited life since the Act is demonstrably quite seriously unable, both from weaknesses in its framing and from deforming precedents set in its erratic implementation.
The Commission on the Delivery of Rural Education has already been asked to take the lead in reviewing the serviceability of the Act, identifying where it needs revision and perhaps making recommendations.
The Commission is ‘owned’ jointly by the Education Secretary and COSLA, whose perspectives and pressures are at some variance.
It is hard to be hopeful of a coherent and balanced specification for a revised Act emerging from this essentially conflicted context.
It is at least as hard to be hopeful of a well framed Act being the end result, given the intellectual fragility of the current effort. - It’s the 2010 Schools Act, Simon. Most people know the SNP government came to power in 2007. ‘Government’? ‘It’s own law’?
You must be singularly short of a gripe. - No.
These findings are exceedingly interesting because the Brailsford reading of the ‘remitting’ of the decision to Scottish Ministers (aka the Education Secretary) which call-in sets in train, is that the law requires Scottish Ministers in taking the final decision, then to review the case and the substance of the case – not merely to check that procedures have been correctly observed.
This allows the Education Secretary to consider and evaluate the evidence – even to seek further evidence. It requires an independent pronouncement – as the superior authority at this stage – on whether, in the concerns and criteria expressed in the law, a school should close.
These findings provide for an unfettered, very vigorous and engaged decision taking process following ministerial call in of council closure decisions.
The threshold to be crossed remains a conceptual problem – in that the reasons for call-in remain the identification of procedural – not evidential – weaknesses.
The 2010 Schools Act was very poorly written. The Wick determination has left it unable to offer the required shelter to a school that should not be closed.
Properly speaking, we should be looking at a root and branch revision of that Act.
Recent comments by newsroom
- 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. - Radically new council group changes all the dynamics: party politics dead in Argyll
The fact is that the SNP councillors in the Argyll and Bute for Change group are not ‘SNP councilors’ in council group terms – as rules forbid membership of more than one group.
So the ‘Russell camp’ is definitely no longer in the council’s SNP group, although presumably they will personally vote in elections according to their preferences.
And IF the other 8 SNP members have actually joined [as opposed to supporting [the Argyll, Lomond and the Isles group, there is no formal SNP group at all in Argyll and Bute Council.
If this has become the situation, it means that the SNP as a party has no right of purview over the behaviour of ANY of its originally elected councillors, none of whom would now be SNP councillors.
You have to say this is fun. It's not politics but it is a laugh. - Argyll and Bute Council: Councillor McCuish leads again
As given in one of the recent updates above - the missing person is Councillor Strong - from the, as of this morning, Argyll and Bute for Change Group. This would leave that group with 18 members but only 17 present to vote - which would not be enough to carry them to administration IF all other 18 councillors voted together.
This has to be likely but in the current situation the finessing is so arcane that one cannot be certain of anything until it's done. - Argyll and Bute Council: Councillor McCuish leads again
The fact is that they were quite prepared to work with the Liberal Democrat and Conservative groups - but were ordered by the the SNP to face expulsion from the party or to leave the administration that was planning just such a coalition.
We do not yet know what the SNP party position is today - although in our 14.15 update above, we have laid out the range of possibilities - but we do know that the 8 SNP Councillors have not resigned from the party. - Argyll and Bute Council: Councillor McCuish leads again
Sincere apologies for the temporary error - now corrected - and thank you for the prompt.
We are doing our level best - live - to get changing situations out to people as fast and as best as we can.
When we inevitably have the odd muddle [like cloning Mary Jean Devon], it is corrected very quickly.
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So just to clarify:
This judgement is on the technicalities? Nothing to do with how important a school is to its community? And tells us the law is “defective”?
Perhaps Western Isles Council will wait for the outcome of the Commission for Rural Education before making any decisions? That would be judicious of them.
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No.
These findings are exceedingly interesting because the Brailsford reading of the ‘remitting’ of the decision to Scottish Ministers (aka the Education Secretary) which call-in sets in train, is that the law requires Scottish Ministers in taking the final decision, then to review the case and the substance of the case – not merely to check that procedures have been correctly observed.
This allows the Education Secretary to consider and evaluate the evidence – even to seek further evidence. It requires an independent pronouncement – as the superior authority at this stage – on whether, in the concerns and criteria expressed in the law, a school should close.
These findings provide for an unfettered, very vigorous and engaged decision taking process following ministerial call in of council closure decisions.
The threshold to be crossed remains a conceptual problem – in that the reasons for call-in remain the identification of procedural – not evidential – weaknesses.
The 2010 Schools Act was very poorly written. The Wick determination has left it unable to offer the required shelter to a school that should not be closed.
Properly speaking, we should be looking at a root and branch revision of that Act.
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This decision has ramifications but it is not at all clear what these are!
What it does show, and clearly, is that the Act does need redrafting and I look forward to seeing the Commission’s report when it is published and its take on this.
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Seems to me that the minister limited himself to process so as not to get into political deep water on the actual merits of a case for closure. The judgement means he has to put his neck on the line and take responsibility (or remit to hmself) for the decision. If he closes a threatened school after calling it in, he puts himself right in the firing line. Oh dear! He will truly have to ‘own’ his decisions then.
Don’t see him lasting long if the precedent set here remains unchallenged because this is a man who hates to take utmost responsibility.
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What is hard to understand is that the government does not appear to know what its own law enables – or requires – it to do.
Lord Brailsfors has said that, in this case, the call-ins were unjustified and defective; and that he has been unable to find a consistent argument for calling-in these decisions between the reasons given in the call-in letters to Western Isles Council and those advanced in the pleadings in response to this challenge.
Interestingly – and with wide significance, he goes on to find that the process of call-in, once engaged, is very much more radical and protective than the government itself seems to have understood.
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Newsie “What is hard to understand is that the government does not appear to know what its own law enables – or requires – it to do”. of course the SNP Govt don’t know the law – after all it was them that introduced this flawed Act in the first instance.
Will the Minister apoloigise? Will he……
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It’s the 2010 Schools Act, Simon. Most people know the SNP government came to power in 2007. ‘Government’? ‘It’s own law’?
You must be singularly short of a gripe.
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Well, strictly speaking all laws are open to interpretation and the actual definition of the law only crystallises when the law is tested in a court of law.
In this case the interpretation of the Act by the Government’s lawyers is at odds with what Lord Brailsford has ruled should be the interpretation. This is hardly unusual with new legislation and, of course, if the Government appeals the decision and wins then the interpretation then becomes something closer to the Government’s view.
That said, I would be surprised if the Government do appeal as the intention is in any case to revise the legislation and the current ruling, while producing a short term disadvantage for the Government viz a viz the Western isles position, it does seem to STRENGTHEN the Government’s powers on call in (which was presumably not what COSLA intended).
So swings and roundabouts. The Western Isles have won their argument that Mr Russell’s decision was inconsistent but in doing so seem to make it much easier for the SG to call in future proposals as they can do so on any criteria rather than just procedure (which is sensible).
Bit of a score draw I would say.
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Following Lord Brailsford’s findings, it is not going to be easier to call-in closure decisions. Quite the reverse.
From now on, call-ins will have to be strictly tied to clear procedural failures.
However, there is now a second non-legal constraint.
Once called-in, schools with a strong evidential case to stay open will have much more protection than they have had up to now.
The terms of the Act have now been clarified, with the Education Secretary, post call-in, required to take a full decision on the case in question – and not bound by anything that has gone before.
Since the Act puts no limit on the time that may be taken between calling-in a decision and coming to an independent decision, there is room for a largely new process of whatever kind the Education Secretary chooses.
But this means serious, detailed work and careful analysis – which the civil servants who would be doing it are not used to doing.
This is the invisible non-legal constraint now on call-ins. Imagine the work demanded by four simultaneous call-ins, as was the case here with Western Isles.
This situation will have a limited life since the Act is demonstrably quite seriously unable, both from weaknesses in its framing and from deforming precedents set in its erratic implementation.
The Commission on the Delivery of Rural Education has already been asked to take the lead in reviewing the serviceability of the Act, identifying where it needs revision and perhaps making recommendations.
The Commission is ‘owned’ jointly by the Education Secretary and COSLA, whose perspectives and pressures are at some variance.
It is hard to be hopeful of a coherent and balanced specification for a revised Act emerging from this essentially conflicted context.
It is at least as hard to be hopeful of a well framed Act being the end result, given the intellectual fragility of the current effort.
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Statute
Blacks Law Dictionary
• A LEGISLATIVE RULE of SOCIETY given the FORCE of law by the CONSENT of the GOVERNED a RULE as of a CORPORATION
• From the neuter of Latin: STATUS: the LEGAL CHARACTER or condition of a PERSON or thing
• Also by its own definition it is NOT LAW it is only given the FORCE of law by CONSENT of the Governed
• By its own definition it only applies to a person and not a MAN or WOMAN
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Splitting hairs I know but I don’t read this as making call ins more difficult – they were always supposed to be bound to procedural failures. What has changed (and in truth was never really any different) is that when a raft of proposals is put forward (as in Western Isles and ABC – a situation that the Act wasn’t designed to cope with)call in will need to include all of the proposals (presuming they all followed the same procedure). Given the lack of definition around, say, what constitutes viable alternatives, it is always going to be easy for the SG to justify a call in. I agree that once they have been called in it is now much easier for SG to reject specific proposals as they are not bound strictly on grounds of procedure.
However, as we both note, this is presumably a temporary state of affairs and we will need to await the outcome of the Commission before being able to decide if protecting rural schools has become harder or easier. As usual, I am a glass half full to your half empty.
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But we do continue to hope that half full fills up.
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A very interesting article on the BBC news website under business – Dying Schools ,perhaps the idea could be copied in Argyll & Bute ?
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Islay for ever: I can’t find the article you are recommending: would you lease provide the link.
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Doc. Link here…http://www.bbc.co.uk/news/business-18342083
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Newsie – I’m not sure the point you are trying to make at 4 above.
The fact is that the the Schools (Consultation) (Scotland) Act 2010 was introduced by the SNP. This is the flawed piece of SNP legislation that according to BBC “the legislation on rural school closures was not working properly” and according to Mike Russell had been “more difficult” than thought.
Now made even “more difficult” one rather suspects by the inept failure of the Education Minister to win a case that the comhairle brought to court claiming the government erred in law and failed to apply its mind to the right questions. Lord Brailsford agreed and found that the call-in notices issued by the Education Secretary were ‘not justified’ and that they were ‘defective’.
Inept failure by Mike Russell.
Were Western Isles awarded their expenses?
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Interesting approach Islay for Ever in the article.
Not sure how it would work on a practical level with children younger than high school age, which is where the council feels there is an issue.
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I agree Crazy (can’t quite believe I’ve just typed that…) intersting but not at all suitable for primary school children.
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The positive coming out of this (although not for the campaigners in the Western Isles) is that it reinforces the need for the call in process to be far more robust. This is something that ARSN has been calling for for a long time. Anyone with the remotest interest in fairness and proper process, irrespective of what side of the argument you are on, surely supports a case for the call in process to be transparent, to be better defined, and also, most importantly, to have a proper focus on quality of proposal rather than tick box compliance.
The A&B, Cleland Sneddon drafted, submission to the commission made it abundantly clear that they all they wanted to have to do was be able to say we have done X, Y and Z therefore we can close the school. They cared not one jot for whether the X, Y or Z was done competently or without material error or was drafted with an impartial mind – just that there was something written on a piece of paper which bore some passing resemblance to the required section as per the Act. This is unacceptable and has to be corrected by the commission via a strengthening of the Act. The Education Secretary is right when he says that it ‘indicates that Ministers should look at the merits of school closure, not just the process’ however I personally think it shouldn’t have taken a court ruling for this to be apparent. If there is one thing that should have been learned from the shambolic approach to closure adopted by A&B and Angus it is that the future of schools are often in the hands of senior officers, and elected members, who have a target outcome well before pen is put to paper or communities are consulted – the actual consultation process, and drafted papers are slanted accordingly and then pursued with an intent which is, at best, morally corrupt.
The Western Isles pursuing with the closure despite the moratorium is not an issue due to the timing of the call in and the moratorium being put in place however it does make a bit of a mockery of Ellen Morton’s claim that A&B’s closure proposal was halted because of the ‘flawed legislation’ (and, other than maybe Simon, we all acknowledge that that was playground politics by the ex Education Convener). If LA’s, and therefore COSLA, were so sure that the legislation was flawed then why is one of its members pursuing a closure programme which was carried out using that same legislation. It is a bit of a ‘cake and eat it’ scenario.
It also raises, once again, the role of judicial review in a school closure process. It is very convenient for Councils that they can invest public money into challenging a decision they don’t like. I actually have no problem with that mechanism being available as local authorities should be able to challenge a central government decision if they feel the decision is more about politics than it is about proper process. However what you can be sure of is that if the original decision by the government was not to call in the decision then the constraints of cost would have prevented campaigners from going down the judicial review route. Hence we have a phase in the process which is, really only available to one party.
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