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.
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
- On nationalism
If you’re referring to the author of the letter, you demonstrate the process he is talking about.
If you’re talking about the author of the article, myself – I am a rationalist, not a nationalist. The two are not compatible.
- On nationalism
It has to be doubtful that the egg-lobbers of Kirkcaldy see: ‘a Yes vote about trying to protect what is left of the values and institutions that many of us used to think of as being British’.
There is though a very challenging play by the Irish playwright,Tom KIlroy – Double Cross.
This identifies the double-jeopardy of empire as being that a state newly emerged from empire into independence and forming its own identity, has no template other than empire – and so ‘creates’ itself in the image of its former imperial principal.
What you are saying here carries all of the symptoms of that particular double cross.
How can you know that there never was a better way of doing any of the British things you claim, bizarrely, that a ‘Yes’ vote is designed to preserve? [And the notion that the proposed new Scotland is conceived of as a place of sanctuary for the repository of the sacred artefacts of the Union you would destroy is the laugh of the campaign.]
The NHS, for example, is now a sacred cow by default. It would be a positive advantage to be free to start again in defining, shaping and delivering a national health service free at the point of delivery.
Your stance would be more worthy of respect had you shown an independence of mind that is willing to think newly.
It is also noticeable that you choose the soft option of engaging with the patently honest letter – from the already paralysed victim of the action you support Scotland to take; and that you are sufficiently arrogant to assume that your own idealism is in some way ‘better’ than his?.
You fail to engage with the major issues of the Achilles heels of nationalism – its chauvinism, its utopianism and its incipient racism.
And by the way, the federation that the United Kingdom should move to become and which would without doubt be the most popular option of all – cross-party and across the Union – would not be a ‘unitary state’.
- On nationalism
‘we ourselves’ and ‘ourselves alone’ have the same connotation of comfort in separateness.
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On a point of fact: the ‘Seagull Whisperer’ at Mr Murphy’s Oban street session was not an apocryphal incident. We were there. We have the photographs. We christened him. His powers were mesmeric.
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About 20 months ago, Alastair Darling who was Chancellor at the time of the major period of meltdown in the financial sector in the Autumn of 2008 gave this first hand insight on his experience of the recapitalisation of RBS: ‘All I can tell you is that, on the night of 7 [October] 2008, no one at all anywhere in the world rushed to chip in to bail out RBS, despite the fact that it had a very large trading arm in the United States and many of the losses that it made were there.
‘Obviously the US Fed was immensely helpful in terms of liquidity support and tiding over;it kept RBS going for a whole afternoon when it got into trouble on that Tuesday.
‘When it came to recapitalisation, though — I think that the recapitalisation figure is about 30 percent of Scottish GDP — there was no one queuing up to do it. As Mervyn King said, these banks are global in life but national in death.’
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