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What is hard to understand is that the …

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.

newsroom also commented

  • 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.

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