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.

Recent comments by newsroom

  • Time to stop to think – as the cult sweeps into Campbeltown
    In the spirit of what you say, we have removed the joke which signed off the piece above.
    There is a distinction between vigorous political campaigning and a level of proselytising that enters the territory of the formation of a cult.
    This article is a genuine warning that that line has been crossed; and that sensible people need to consider whether they stay on the dangerous side of that line, join it or retreat from it – while retaining their wish to vote however they like.
  • Time to stop to think – as the cult sweeps into Campbeltown
    This is not ‘political involvement’ as such, as it is understood – because it is unilateral political involvement and it is being recruited hard, as these three simultaneous initiatives demonstrate.
  • As he moves to Cabinet, former Transport Minister tells McGrigor options for the A83 ‘will be kept under review’
    Thee are sections of the A83 at Rest and Be Thankful and at Achnatra, where this looks to be an issue.
  • ‘And how much would this have cost an independent Scotland?’
    Agreed. It was a very serious mistake to insist in the full face of the evidence that the prospectus was correct.
    This produced three negatives:
    - distrust in competence – because the logic of what was ging to happen was clear [and was spelled out, for example, in For Argyll's own 8-piece series from independent research of the worldwide oil and refining sectors] and denying that logic looked clueless and ham handed;
    - distrust in integrity, where competence was assumed;
    - resentment at being takes for idiots.
    Had the lies on the possession of legal advice on Scotland’s potential EU membership not been told; had the prospectus not been calibrated on endless oil money to pay the bills for extravagant additional increases in benefits, with no increase in taxation; and had there been a well conceived alternative currency proposition, together those would have been worth at least another 5%.
  • Clegg dreams of threesome coalition for Westminster in the face of the Groper’s revenge
    Thank you db. Corrected to ‘…take some seats from both Labour and the Lib Dems’.
    And re yours and Lowry’s remarks on Alan Reid’s position, he lost nearly 5% of his vote last time but both the Conservatives and Labour candidates were between him and the SNP candidate Mike Mackenzie, in fourth place.
    This time, Alan Reid has nothing to thank his Leader for tonight.
    Clegg’s declaration that the Lib Dems would happily shack up in a Labour coalition with the separatist SNP may well cause the fairly numerous Argyll pro-union voters [alarmed by the growth of support for the SNP since they failed to win the independence referendum] to find a safer place for their votes than the Lib Dems.
    Where this happens, we would see the majority of those votes going to the pro-union Labour candidate rather than to the Conservative one, since that party is fielding a candidate untried at this level, from the islands and not widely known across Argyll and Bute.
    The SNP in Argyll have too much to purge from the chaos of their betrayal of their electoral support in the local authority election in 2012. They may improve their vote but here, on evidence, they cannot be trusted to put local before party interests and are unlikely to take the seat.
    The best bet is on either Alan Reid or the Labour candidate, Mary Galbraith – and it would be a foolish person who wrote off Alan Reid too early.
    He may issue silly self promotional material and have developed in his public speaking a shouty manner than does not suit him – but he has been an intelligent, dedicated, unshowy hard working constituency MP whom people will not want to let down.
    We do not see the SNP taking Argyll. We would see the Conservative vote fall after Gary Mulvaney’s impressive candidacy last time; but we cannot call it between Alan Reid and Mary Galbraith.

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20 Responses to What is hard to understand is that the …

  1. 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.

    Like or Dislike: Thumb up 0 Thumb down 0

    • 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.

      Like or Dislike: Thumb up 0 Thumb down 0

  2. 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.

    Like or Dislike: Thumb up 0 Thumb down 0

  3. 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.

    Like or Dislike: Thumb up 0 Thumb down 0

    • 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.

      Like or Dislike: Thumb up 0 Thumb down 0

  4. 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……

    Like or Dislike: Thumb up 0 Thumb down 0

    • 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.

      Like or Dislike: Thumb up 0 Thumb down 0

  5. 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.

    Like or Dislike: Thumb up 0 Thumb down 0

    • 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.

      Like or Dislike: Thumb up 0 Thumb down 0

    • 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

      Like or Dislike: Thumb up 0 Thumb down 0

  6. 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.

    Like or Dislike: Thumb up 0 Thumb down 0

  7. 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?

    Like or Dislike: Thumb up 0 Thumb down 0

  8. 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.

    Like or Dislike: Thumb up 0 Thumb down 0

  9. I agree Crazy (can’t quite believe I’ve just typed that…) intersting but not at all suitable for primary school children.

    Like or Dislike: Thumb up 0 Thumb down 0

  10. 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.

    Like or Dislike: Thumb up 0 Thumb down 0

  11. Pingback: Argyll News: Commission on the Delivery of Rural Education a dead letter box | For Argyll

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