Educational benefit must remain a key consideration of the school closure decision making process, Education Secretary Michael Russell said.
The Scottish Government’s formal response to the Commission on the Delivery of Rural Education report was put by the Education Secretary today, 13th June, to the Scottish Parliament, with the vast majority of the report’s recommendations accepted.
However, Recommendation 20 – to lessen the need to show education benefit in the consideration of a school closure – was not accepted.
The Scottish Government and COSLA will work closely together on how to reduce the number of call-in requests and explore options in the coming weeks on how to ensure the Schools (Consultation) (Scotland) Act 2010 is working effectively, including the possibility of final decisions being taken independently.
Text of Education Secretary’s statement
The Education Secretary said: ‘I am very grateful for the work of the Commission on the Delivery of Rural Education. By working closely with local government, I will be taking the steps necessary to implement the vast majority of them through a mixture of administrative and legislative change to ensure the policy Parliament intended when it unanimously passed the 2010 Act is effectively delivered.
‘I intend to use the Children and Young People Bill to bring forward any legislative changes required to the Act and there will also be further guidance to improve the understanding of the process.
‘However, I am absolutely determined that educational benefit should remain an important part of any proposal and so will not implement the Commission’s recommendation to change the need to show educational benefit.
‘That principle remains key to the Scottish Government and is vitally important to many local communities throughout Scotland.
‘Furthermore, I believe that we need to look again at the call-in system.
‘The processes set out in the 2010 Act were intended to ensure that call-in was a last resort, but COSLA and ourselves have acknowledged that there have been just too many which is neither helpful nor sustainable.
‘We will look again together at how we can reduce this number and how Education Scotland can play an enhanced role in the process.
‘Where a proposal does need to be called in, I also feel that the decision on whether to give consent or not to the closure needs to be taken independently of Ministers, and we will work closely with COSLA to develop further thinking on the best mechanism to deliver this.’
Commentary – educational benefit and the Wick determination
The obvious first question is why the Education Secretary feels that Scottish Ministers cannot act objectively in a final adjudication on an evidenced challenge to a school closure decision?
If we are to accept that Cabinet Ministers are not best placed to adjudicate in ruling on final decisions in their primary area of responsibility – what are they for?
- Has the Education Secretary reason to doubt the competence of Ministers to act in this capacity?
- Has he reason to be concerned about the impact of political motivation upon the objectivity of such Ministerial decisions?
He may, from his personal experience and performance, have good reason to entertain either or both concerns.
Amongst several of his call-in decisions, the Education Secretary:
- prevented the closure of a Glasgow School that was already closed because – if memory serves - it had been burned down [The Herald had a lot of fun with that one.];
- approved East Ayrshire’s closure of the healthy Crossroads School, against the soundest of evidence aligned with the governing statute that it should not have been closed;
- delayed for a strangely pronounced period of time – to which political motive was attributed, a call-in decision on Angus Council’s intention to close Muirfield School in Arbroath, in the face of hard factual evidence, present from the point of call-in, indicating the unsoundness and manipulation of evidence used by the council to support their decision;
- prevented Western Isles Council from closing schools on grounds which, in the council’s resort to Judicial Review, were not upheld by Lord Brailsford; and upon the Minister’s own appeal, were also dismissed in an intellectually exemplary judgment by Lady Paton;
- allowed Highland Council to close Hillhead School in Wick on grounds that no court could have sustained; and which left the same educational benefit he upholds today crippled by precedent no one but For Argyll has cared to examine.
It was, in fact, the erratic subjectivity of the Education Secretary’s decisions in and upon calling-in – and in not calling-in – some local authority closure decisions that led us to revise our evaluation of him.
The meaning of ‘educational benefit’
We have drawn attention to the impact of this matter in the headline to this article.
Before rural school campaigners start to celebrate the apparent support for the centrality of the educational benefit of closing or not closing a school, they should pay attention to three matters:
- the description of the ‘educational benefit statement’ in the 2010 Schools Act and its Statutory Guidance, together the statutory authority on the matter;
- the ‘Wick determination’ made by ‘Scottish Ministers’ – aka the Education Secretary – in upholding, at call-in, Highland Council’s decision to close Hillhead school in Wick.
- the impact of the Wick determination upon the nature of the ‘educational benefit statement’ whose provision is a key statutory obligation imposed by the 2010 Schools Act.
This matter could not be more important in law, because the Wick determination, in our considered view, materially altered the nature of the educational benefit statement as presented in the governing statute of the 2010 Schools Act.
The Wick determination
This was a precedent-setting determination and one which, as we demonstrated at the time in a detailed examination of how it would have to be viewed at Judicial Review, would have been set aside in any legal challenge to the Education Secretary’s decision, had the school in question been able to afford to do this.
- Highland Council grouped two Wick schools in one closure proposal – Hillhead and North Wick.
- While the 2010 Schools Act explicitly requires one Education Benefit Statement [EBS] to be presented in defence of each school proposed for closure, Highland Council used a single, all embracing EBS to cover both, although the two schools were very different in the key respects of community role, performance and condition.
- The EBS presented by Highland Council to cover both schools was also shown by Hillhead school campaigners to have been been copied virtually verbatim from an EBS presented by a different local authority in respect of a very different school in a very different urban context – Angus Council’s proposal to close Timmergreens School in Arbroath, itself near the great city conurbation of Dundee.
- The incontrovertibly unable legal status of this key supporting statement for the closure of Hillhead and North Wick ought, by the statutory authority of the 2010 Schools Act, to have led to an immediate rejection at Ministerial call-in of the closure decision.
- The Education Secretary nevertheless set aside this disability altogether. He selected a different passage from the closure proposal paper that was neither presented as being nor intended to be an Educational Benefit Statement. It was no more than an options appraisal check list on physical condition elements of the school/s.
- The Education Secretary then, voluntarily and arbitrarily, conferred upon that passage the retrospective status of the required formal Educational Benefits Statement – and accepted it as valid.
- He informed Highland Council that their proposal did indeed contain a valid EBS and that he was therefore approving the closure of both schools.
Why on earth did the Minister do something so outrageous? It would be good to see the shape of any defence of this.
The legality of the Wick determination
In law, we contend that this determination was legally insupportable.
Decisions made at Judicial Review are based on three key criteria:
- was the specific decision under challenge ‘illegal’ – or ultra vires – beyond the powers of Ministers under the 2010 Schools Act;
- was it unreasonable;
- was it demonstrably unfair.
We contend that the Wick decision was all of these things.
In the key matter of unfairness – the consultation process allows parent councils and community representatives to challenge and test aspects of a local authority’s closure proposals they deem unsound.
In this instance, the campaigners did challenge the legal ability of the Educational Benefit Statement. The soundness of their challenge was evident in the fact that the Education Secretary could not and did not attempt to defend its statutory compliance.
The campaigners had no reason to address the Options Appraisal element of the proposal as an Educational Benefit Statement – because it had neither been presented in that role nor had been envisaged or intended by its authors to fulfil it.
This is demonstrably unfair.
The campaigners defending Hillhead School found themselves faced with an Options Appraisal retrospectively elevated to the status of ‘Educational Benefit Statement’, after the consultation process was over, after the closure decision taken and after the proposal had been called in – with no opportunity whatsoever to challenge the status of a passage that during the consultation period was wearing a very different set of clothes.
The precedent set by the Wick determination for the 2010 Schools Act
The retrospective re-identification of a lesser element of a closure proposal to serve a statutorily higher purpose is procedurally indefensible.
That this was done by the Education Secretary himself as an act of creative intervention in a quasi-judicial process is bizarre.
The fact that this action raised to the level of EBS a check list of physical condition scores reduces the concept of ‘educational benefit’ in the 2010 Schools Act to a matter concerned with nothing other than the physical nature of the building, with no bearing on the quality of teaching and learning a school offers, nor on the overall educational experience it uniquely offers to its pupils.
But this fully surreal determination closed a school that ought not, in law, to have been closed; closed it against the wishes and the valid arguments of the school’s parent council and community; and by being effectively accepted without challenge as a legally able action, has set a precedent for the interpretation of ‘educational benefit’ by local authorities wishing to close a school.
This is why it is important to note that there is no secure legal definition of ‘educational benefit’ currently obtaining in respect of school closure proposals.
This is why school campaigners have nothing to celebrate in the proposed handing over to an independent body of the final adjudication of a called-in closure decision. And that is why there is nothing to celebrate in the Education Secretary’s hollow championing today of the centrality of educational benefit in such decisions.
All that any local authority has to do now is to present a school condition check list as an EBS and, if challenged, point to the precedent of the Education Secretary’s Wick determination – where he himself gave that status to just such a check list and pronounced himself ‘satisfied’ and ‘content’ that it fulfilled that statutory obligation.
The Education Secretary got away with this for the simple reason that the parents of Hillhead School, in their financially straitened community, could never afford to take his decision to Judicial Review.
And an SNP government, with the First Minister committing it to seeing one million acres of land in community ownership by 2020 and talking of Citizens Income instead of welfare benefits is happy to hide behind a system of justice available only to the wealthy – or to those who hold the strings of the public purse?