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
- 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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