On Monday this week, 18th November, the Scottish Government announced planned changes to the 2010 Schools [Consultation] [Scotland] Act – which governs the process around local authority plans to close schools.
This was immediately welcomed, with a modest expression of disappointment, by Councillor Douglas Chapman, the spokesman for Education, Children and Young People at the Convention of Scottish Local Authorities [COSLA], who said: ‘I believe that many of the recommendations of the commission will give more confidence to parents and communities that any school closures are considered with the utmost integrity, detail and are considered across a wide range of factors.’
By the following day, a seismic change had taken place in COSLA, who then, according to The Herald: ‘…declared an official dispute with the Scottish Government and the country’s education minister over plans for new legislation to make it harder to close rural schools’.
The Herald also quoted COSLA as accusing the Education Secretary of ‘bad faith’ over the school closures issue.
This is not a morality tale opposing the bad with the good. This is politics, generally the breeding ground of bad faith all round.
The reality is that both of these parties have been royally guilty of bad faith and improper execution of their responsibilities, shafting each other as the need rose – but much more importantly, shafting those that each of them fly from their standards in battle – children, parents and communities.
If we accept that this mutual bad faith is fact [and our own series of articles, particularly during the schools closure wars of 2010-11, has all the evidence for it] and if we refuse to be distracted by the accusations on motive for some of the changes now proposed – the real issue is whether and to whom the changes are beneficial.
The presumption against the closure of a rural school
Starting with the frontline protective measure, we note that the government is to ‘clarify’ the presumption against the closure of rural schools – the core area of conflict, with community sustainability itself at risk.
‘Clarify’ is an interesting and careful choice of word in this matter.
The Scottish Government had previously claimed to have enacted a ‘statutory presumption against the closure of rural schools’.
In fact it had done no such thing. Our own examination of the 2010 Schools Act and its associated guidances revealed that the ‘presumption against’ had no statutory weight whatsoever and was mentioned only once and in a minor document accompanying the Act.
It remains hard to believe that the government could have been completely unaware that the claims they continually made on this presumption were no more than sleight of mouth.
Given this history, it would be foolish for anyone to read into the careful use of the word ‘clarifying’ the assumption that ‘the presumption against’ will have any greater legal weight than it has ever had. This is one to watch.
The key questions are:
- whether the ‘clarification’ gives the presumption against the closure of a rural school a solid statutory presence;
- and, if so, where that presence comes into effect in the closure process.
As the 2010 Schools Act stands, this presumption may be a consideration only before a closure proposal goes to consultation. Once consultation is formally opened, the presumption ceases to be relevant. It has already been overset and cannot procedurally be raised during consultation.
Five year moratorium before a reprieved school can be considered for closure again
This – a recommendation from the Rural Education Commission – is unequivocally beneficial to all concerned.
For schools and their communities, facing a closure proposal sees the ‘fight or flight’ adrenaline running on full for a prolonged period. It is exhaustively demanding for those defending against such a proposal and it is collectively debilitating. The local authority practice of simply starting all over again when they fail to get a closure decision ratified is predatory and feels sadistic at the receiving end. The spirit of a community is deliberately worn down in this manoeuvre.
A five year moratorium is a judiciously calculated period, allowing for recovery and for the regeneration of functions and relationships which may see the school more resistant to closure considerations in the future.
The presence of the moratorium rightly puts pressure on councils to get their proposals right first time. They may still fail but the moratorium should put an end to the pattern of casually thrown together, inaccurate and ill evidenced cut-and-paste proposals so surreally the practice in 2010-11.
The requirement to show ‘educational benefit’ in closure proposals
Councils must continue to demonstrate how a closure proposal may benefit a child’s education. This is the big one.
The Scottish Government is proposing to leave this requirement in place, despite the Rural Education Commission’s recommendation that a closure proposal should achieve an educationally neutral position – a less contentious and generally acceptable requirement.
This is an odd ground for Education Secretary Michael Russell to choose for what appears to be developing into a bit of a belated stag rut between himself and COSLA. It is insecure ground for Mr Russell on a variety of counts; and it is this issue on which COSLA is most exercised – and which is at the heart of the official dispute it has declared.
The source of difficulty is that ‘educational benefit’ is largely indefinable – only lucid if hedged about with qualifying criteria.
Councils have chosen to define it in physical terms of accommodation and facilities.
Parents and communities see it as much more expansive than that – but in numinous terms impossible to prove.
However inadequate it may seem to some, the Rural Education Commission’s recommendation that a closure proposal should at least leave the impact on a child’s education neutral, is sound. Pragmatically, almost anything can be defended as having, overall, a neutral impact.
However, since a neutral impact is therefore every bit as subjective as a positive educational benefit, it would make no difference to the level of disputation.
It would make more sense to drop the ‘educational benefit’ requirement and to replace it with something objectively definable and measureable. That could be the councils’ preference for accommodation and facilities. It could be the demonstration of proven educational quality – in HMIE reports, for example – which would be closer to the way parents and communities interpret ‘educational benefit’.
Closing a school which officially educates its pupils well is not defensible since the consequences of a move and of different circumstances cannot be reliably projected.
The last issue here – which again supports the replacement of the ‘educational benefit’ provision with something more empirically demonstrable – is that the interpretation of ‘educational benefit’ is in tatters, legally, after a genuinely bizarre determination of the Education Secretary in his 2011 decision to allow Highland Council to close Hillhead School in Wick.
The council’s ‘Educational Benefit Statement’ in support of this proposal was shown to have been cut and pasted from Angus Council’s proposal to close Timmergreens School in Arbroath. It bore no relation to the nature and context of Hillhead School.
This caused the Education Secretary to call-in Highland Council’s decision to close Hillhead.
There was political pressure in the matter since the Hillhead closure proposal was tied into complex and substantial revisions of the primary school provision in Wick, a town badly in need of the regeneration of its school estate.
In his determination, the Education Secretary, made a creative intervention in the original proposal document – which was by then well beyond the stage of public consultation. He:
- dismissed Highland’s submitted Educational Benefit Statement
- selected from a quite different section of the proposal
- a checklist of the physical properties of the school
- pronounced it to be the required Educational Benefit Statement
- pronounced himself satisfied with it
- and gave permission for the school to be closed.
This part of the Highland Council closure proposal:
- had never been conceived of as an Educational Benefit Statement
- had not been described as such in the proposal papers
- had not been addressed as such by the parents and community during consultation
- had been retrospectively reassigned by a third party – the Education Secretary – without the affected parties having any input to its acceptability in this unanticipated role.
This action would have been successfully challengeable at Judicial Review but the school concerned was in an economically deprived part of Wick [to which it was fundamentally socially important] and could never have afford access to law.
In our considered view, for as long as an unqualified ‘educational benefit’ statement remains a requirement of a closure proposal, this action of the Education Secretary creates a legal precedent by which any council remains entitled to submit a checklist of physical capacities to demonstrate why the closure of a school is preferable to its continuation.
This is alone a powerful reason to remove and replace ‘educational benefit’ as a requirement of a closure proposal.
An independent review body to adjudicate call-ins
The government intends to establish an independent review body to carry out the adjudication on closure decisions the Education Secretary has chosen to call in for ministerial review.
Political opponents of the Education Secretary have accused him of trying to have it both ways – of wanting to ‘play to the gallery’ in calling in appropriate closure decisions while shuffling off the responsibility for the final decision to a separate body.
This may or may not be fair comment but it is not the point.
Law cannot be concerned with the subjective. The 2010 Schools Act is not concerned with a specific Education Secretary.
The Act is concerned with the role, authority and responsibilities of the Education Secretary of the day – amongst others – in the process of proposals to close schools.
The issue here is whether the proposal would stabilise the process, making the final judgment on called-in closure decisions less erratic than they have been.
With qualifications, the answer here has to be positive.
The role of an objective and independent body working on all specific local authority decisions passed to it by the Education Secretary after taking a call-in decision – and dedicated to that single responsibility, ought reliably to deliver consistency of criteria and judgment.
However, it should not be forgotten that Lady Paton’s seminal appeal opinion at Judicial Review [where, like Lord Brailsford before her, she found in favour of Western Isles Council and against the Education Secretary], was an unequivocal clarification of the nature of the responsibility assumed upon call-in.
The work of the review body will be comprehensive, detailed and onerous, requiring a serious knowledge base and forensic intelligence.
The other qualification here is that in a small country given to patronage and parochialism, the definition and implementation of ‘independence’ in such a review body will be the determinant of its credibility.
Making children, parents and communities part of the decision taking
The Government is saying that part of the purpose of these changes is to make sure that children, parents and communities are better informed and involved in the decision taking.
Some of the measures proposed – like requiring clear financial information to be set out in school closure proposals – have the capacity to provide better information. We can, however, find no reference to anything that would make children, parents and communities part of the decision taking.
Advice to ministers
The proposal to allow ministers to seek additional advice from Education Scotland in considering closure proposals must refer to cases where the Education Secretary of the day has used ‘ministerial call-in’ authority following notification by a council of a decision to close a specific school. This is the only point of the process – and is not routime – where ministers ‘consider closure proposals’.
This measure hardly seems worth mentioning. Why would anyone taking any decision not seek advice from any useful and competent source? We are unaware of any current measure which insists that ministers act without advice.
Comments on the conflict
This will centre on the ‘educational benefit’ issue.
COSLA, which represents councils, says that its primary prime concern is the retention of the current requirement for local authorities to prove the educational benefit to pupils of shutting a school. They advance in support of their stance the recommendation of the Rural Education Commission -that it would be sufficient if the impact of closure was shown to be neutral.
The Education Secretary says: ‘I am absolutely determined that educational benefit should remain an important part of any proposal – and I am convinced these amendments we will bring forward will ensure this remains central to the decision-making process.
Sandy Longmuir, Chair of the Scottish Rural Schools Network [SRSN] which supports the proposed changes to the 2010 Schools Act, says: ‘It is essential to demonstrate the educational benefit of any proposals and to have a robust appeals process.’
Larry Flanagan, General Secretary of the Educational Institute of Scotland [the teachers' union], says: ‘Proposed school closures are often very challenging for communities, for parents, pupils and teachers so it is important that any such proposals are handled in an appropriate and transparent manner and with proper consultation with the school community.’
The Argyll response
The Argyll Rural Schools Network [ARSN] affiliated to the Scottish Rural Schools Network and born out of the cataclysmic school closure wars in Argyll in 2010-11, says: ‘ARSN commends the Cabinet Secretary for implementing many of the Commission’s recommendations and believe they will provide a more honest dialogue between parents and local authorities. We look forward to a better standard of consultation with clear and accurate information, much of which has been lacking in the past. Clarification of the presumption against closure will ensure that authorities see closure as a last rather than first resort.
‘ARSN is delighted that educational benefit will remain the priority. This remains true to the original debates in parliament which attracted cross-party support. Given the considerable disadvantages of travel for young children – lost daylight play times, longer hours, detachment from community input, loss of access to after school activities – it is the very least authorities should offer.’
Will the proposed changes make a difference?
In our view only the 5 year moratorium on further closure proposals for reprieved schools can be guaranteed to make a genuine difference – and that alone is worth all the fuss and feathers.
