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Argyll & Bute 2010
Below is SRSN's response to the Scottish Government's consultation Amending the Schools (Consultation) (Scotland) Act 2010. The consultation documents can be found here.
In the light of the court judgement it is clear that if the government is to fulfill its original intention to establish a presumption, then this needs to be set out in the Act.
The provision of accurate relevant financial information is an essential part of an open and transparent consultation. Even the Commission itself had difficulties obtaining such information from some local authorities on occasion.
We are concerned that the reports made by Education Scotland on Educational Benefit Statements have not generally enjoyed the public confidence normally given to Education Scotland’s school level inspection
We believe that one reason for this has been the reluctance of Education Scotland to consider information from sources other than the local authority. When local communities have put challenges to the information on which Educational Benefit Statements have been based to Education Scotland, the response of ES has tended to be that the local authority must do more to get its message across, rather than to acknowledge that there may be a flaw in the consultation. The result of this has been that on occasion ES’s endorsement of the EBS has related to a significantly different proposal to the one that is voted on by elected members – the original proposal having to have been modified because the original information was indeed incorrect.
While it is proper for Education Scotland to issue guidance on the proper preparation of Educational Benefit Statements, it will create a conflict of interest if ES then have to adjudicate on an EBS that they have had a hand in preparing.
We support the proposal to clarify the ability of Ministers and / or any future body charged with determining call-in, to consult Education Scotland at any stage. Having this in the legislation avoids any doubt and does not preclude a Memorandum of Understanding setting out additional detail if that would be helpful.
Both Legislation and Memorandum of Understanding
As the interim judgement of the Court of Session in the Western Isles case laid out, attempting to separate issues of process and merit when considering school closure consultations may lead to undesirable results.
Any process that allows manifest inaccuracies to be used as the basis of decision making because a particular procedure has been adequately followed will not gain public confidence.
So long as the replacement mechanism fulfills the criteria laid out in section 5.7, in a way that command the confidence of stakeholders.
In order to achieve this it is essential that the replacement body is seen to be entirely independent of the educational establishment, local authorities and pressure groups. A lack of such independence simply opens the way for those unhappy with a decision to replace complaints of political interference (seen under the current system) with accusations of cronyism.
Openness and transparency of decision making are key to public acceptance of decisions. Those requesting call-in, and local authorities, must be able to understand why complaints have been accepted or rejected.
This is a difficult area and some flexibility must be allowed for. However it is essential that school communities cannot be undermined by repeated or long running threats of closure hanging over a school.
This tends to an issue most frequently seen in the case of small rural schools – a few of which are been consulted on repeatedly in the last few years until the recent moratorium. One way of ensuring this might be for the Statutory Guidance to make it clear that repeated closure threats would undermine the local authority’s ability to demonstrate that it that done all that it could to avoid bring forward a closure proposal, as required by “the matters to have regard”.
We strongly believe that the provision should be retrospective – the number of schools actually affected will be very small – but many of those are in extremely fragile communities where repeated closure threats and long running uncertainty have had a highly corrosive effect.
We are concerned about extending the concept of “significant relevant change” beyond those directly related to the school in question. As the commission itself pointed out, redeployment of resources to benefit a wider community can always be used to justify the removal of any or all services in rural areas.
On balance we believe that the principle of the 5 year moratorium should be on the face of the Act, but its detailed implementation specified in the Statutory Guidance.