A second trip to the long grass for the Schools Act and school closures

To take the heat out of the battles fought on school closures across Scotland – and particularly in Argyll where the Council had proposed to close 26 rural primaries in one go, Education Secretary Michael Russell first set up the Commission on the Delivery of Rural Education in 2011.

This took a year and three quarters to report – in April 2013, rather than the promised one year.

Now, following the Scottish Government’s response to the Commission’s report, Mr Russell is sending the Schools Act to public consultation. The assumption had been that the work of the  Commission would be the end of the limbo, with the Government acting as it saw fit on the recommendations made.

But the Government, for obvious political reasons, is currently averse to any decision taking and is continuing the limbo with a consultation which actually calls into question the point and the work of the Commission itself.

It does, however, have the political advantage of introducing yet more delay, while conjuring the appearance of action.

The consultation

This morning’s statement from the Scottish Government says:

The Commission put forward proposals to improve the delivery of education, a number of which require changes to the Schools (Consultation) (Scotland) Act 2010.

The consultation seeks views, by 2nd September 2013, on:

  • the presumption against closure
  • providing financial information on closure proposals
  • clarifying and expanding Education Scotland’s role
  • the basis for determining school closure proposals
  • establishing an independent referral mechanism
  • views on a five year moratorium between closure proposals for the same school.

The Education Secretary says: ‘School closures are an emotive issue for all communities and it is important that they are dealt with in an open, effective and transparent manner. Rural schools have particular importance to the local economy and the viability of rural communities. I want to ensure we have measures in place to protect and enhance that, while still providing councils with the flexibility they need.

‘The Scottish Government and COSLA set up the Commission to examine the delivery of rural education and review the Schools (Consultation) (Scotland) Act 2010. I am committed to working closely with relevant stakeholders, parents and communities to tackle these difficult issues.

‘The Commission suggested a number of changes to the legislation on school closures. I encourage everyone with an interest in schools to consider this consultation and ensure their views are reflected in new legislation which delivers for education, economies and communities.’

The Schools Act and the Commission

The Rural Education Commission had – surprisingly, shockingly even, recommended downgrading the Education Benefit Statement, the key statutory element of any school closure or merger process.

This recommendation did two things:

  • It appeased COSLA, which wants to be free to close schools without the hindrance of such indulgent notions.
  • It let the education secretary off a large hook of his own making in the destructive precedent for this very aspect of the 2010 Schools Act that he set in an indefensible determination he made in allowing the closure of a school in Wick.

The Scottish Government, in its response to the Commission’s report, rightly refused to accept the exotic recommendation on diminishing the role of the Education Benefit Statement.

However, this may well be more gesture politics than a position of substance.

We note that the consultation just announced fails to identify as such the role of the Education Benefit Statement. We assume this item may be germane – should anyone chose to make it so – under the consultation heading of:  ‘the basis for determining school closure proposals’.

But it is not highlighted as an essential topic for consultation in its own right.

The Schools Act and the Judiciary

The revision of the act had actually been added to the remit of the Commission, which neatly ducked out of it. In the meantime, the Education Secretary lost a Judicial Review brought by Western Isles Council in respect of closure decisions he had reversed – and lost again at the appeal he instigated.

The two opinions in the case by the judges concerned, Lord Brailsford and Lady Paton, between them consolidated the intentions of the 2010 Schools Act and reversed the confusing precedents set by specific kinds of intervention in the process by the Education Secretary.

Central to the Western Isles challenge and to Lord Brailsford opinion in their favour was Section 15 [5] of the 2010 Schools Act. This reads: ‘A call-in notice has the effect of remitting the closure proposal to the Scottish Ministers.’  Lord Brailsford upheld this as the intention of the statute.

Lady Paton’s opinion at appeal was clear on two key interpretative reconciliations:

  • it identified that what Ministers call-in is a proposal and not a decision, pointing out that, where a call-in results in permission to a council to proceed, the council then converts its proposal into a decision.
  • it pointed to Section 17 of the Schools Act, on Grounds for Call-In and which describes the conditions requiring a call-in decision from ministers.  Here the opinion focused on Paragraph 17 [2c], obliging Ministers: ‘to take proper account of a material consideration relevant to its decision to implement the proposal.’

The judges unarguable view was that it is impossible to come to a conclusion on what is or is not a material consideration without engaging with the matter – the merits – as well as the procedure which has produced a proposal.

This is why the consultation launched today includes: ‘establishing an independent referral mechanism’. This is the Education Secretary’s preferred let out from the ministerial call-in procedure’s requirement to accept responsibility for decision taking on ‘emotive’ issues.

The delays

There were consultations on closure proposals for each affected school. The defences offered by threatened schools during these consultations highlighted deficiencies in the 2010 Schools Act, which is a less than proficient piece of legislation.

Then the Rural Education Commission was set up supposedly to establish order and credibility in a devalued process which became no more than pitched battles whose outcomes were decided on the political pragmatism of their respective moments.

In fact, the Commission was largely set up to cool the situation in the traditional trip to the grassy margins of the field, letting both school campaigners and the Convention of Scottish Local Authorities [COSLA] find in the Commission the reassurances each sought for their different positions. It’s all in the eye of the receiver until the report comes home.

And today, rather than take the executive action for which governments exist, the Education Secretary has opted for more consultation. It would be a naive observer who would hope for action before 18th September 2014. Between now and then no one must be offended – not school campaigners and not COSLA.

We noted that the statement issued this morning omitted the timescale for action following the closure of the consultation on 2nd September.

We have asked for information on this and will upgrade this article with the response when we get it.

How to respond to the consultation

The full online consultation paper is here – and includes a section on how to respond by 2nd September 2013.

Related documents

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2 Responses to A second trip to the long grass for the Schools Act and school closures

  1. In the Commission debate it was clear that altering the Act involved a timescale that would have left schools in a vulnerable limbo for too long so this was not the preferred option. Some of the changes proposed, however, might be made via secondary legislation currently in the making, a fact not obvious to either the Commission or the Government until the report was published. Hence a consultation on those changes. The timescale for that consultation is limited therefore so it’s important to respond quickly.

    Obviously the Commission work will form part of that process. The end result will prove more secure than changes to guidance within a timescale that would not have been possible if the Act itself was to be changed directly.

    Like or Dislike: Thumb up 4 Thumb down 1

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