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section 5: referrals for ministers' consent
The current system
76. Under the current system for handling school closures and certain other proposals, the law requires that once the final decision has been made by the Council, in certain circumstances it must be referred to Scottish Government Ministers for their consent. This has to be done before the Council can put its decision into practice. Ministers then have the power either to give their consent (in a closure case the school could then be closed) or not to give it (in which case the school could not be closed). Ministers have made clear in guidance issued that they do not see their role in the process as re-taking the Council's decision. In deciding whether to give their consent Ministers largely focus on the process by which the decision was reached.
77. Council decisions are not 'appealed' to Ministers by anyone, or referred to Ministers at the discretion or on the decision of the local authority. The law requires that in certain specified circumstances school closure and certain other decisions are automatically referred to Ministers. These circumstances (for closure proposals) are summarised below:
- where primary pupils are involved and the alternative school is 5 or more miles distant from the school to be closed;
- where secondary pupils are involved and the alternative school is 10 or more miles distant from the school to be closed;
- where the school to be closed is 80% or more full to capacity, at the time the proposal to close is made;
- where the closure would mean a reduction in denominational education provision in the area, or that there might be significant deterioration in the denominational provision.
78. The distance grounds for referral were introduced in the original 1981 Regulations and the capacity ground was introduced by the 1988 amendment regulations. The denominational provisions were introduced in 1981 by way of amendment of the Education (Scotland) Act 1980. Since 1997 an average of 16 cases a year (closures, changes of site or catchment area, or of denominational provision) have been referred to Ministers for their consent.
The need for change
79. There are several problems associated with the current referral system. There is misunderstanding and confusion about Ministers' role in the process. Many people mistakenly see the referral system as some sort of 'appeal' to Ministers. Representations made directly to Ministers by parents and communities groups often use such language. But Ministers' role cannot, feasibly, be to re-take the Council's decision as though they were in possession of all the background, local intelligence, knowledge and information that was available to the Council. What they can do is satisfy themselves as to the processes by which authorities have reached their decision, for instance that all the consultation processes and requirements were properly carried out. They can and do also seek the independent, professional advice on the proposal from HMIE.
80. One of the key weaknesses of the current system is what is seen as the rather arbitrary basis for which cases are referred and which are not. Those rural school closure decisions which are referred, tend to be referred on distance grounds, whereas in the case of urban schools the referral is almost exclusively on capacity grounds. The provisions relating to referral of denominational school closures currently sit separately from the other referral criteria (and are set out in the 1980 Act itself rather than in regulations).
Future referral of school closure cases
81. Two of the objectives of the proposals set out in this consultation paper are the establishment of key matters which should be had regard to when rural school closures are contemplated, and are robust and rigorous consultation and decision-making process that is seen as more open, transparent and fair than at present. If those objectives are achieved then it is arguable whether any kind of referral process would still be necessary. There is another more fundamental argument for removing the referral system. All the statutory duties and responsibilities for the delivery of education locally are placed on the local authorities. That is absolutely where such decisions should be taken. Locally elected representatives are best placed to understand all the local circumstances, the views of local people and communities, and to weigh all the relevant considerations which may bear on a school closure proposal or decision. Again, when it comes to balancing the wishes of one local group or community against the need to deliver an education service across a wider area, as every local authority has to do, no body is better placed to exercise that judgement than the local authority itself.
82. Alongside arguments for the removal of the referral system in its entirety, some have suggested that local authority closure decisions instead should be referred to a new body operating entirely independently of local and central government. Others argue for the retention of some sort of referrals to Ministers as a safeguard against local authority consultations and decisions that groups believe to be flawed. Some argue, based on a lack of confidence both in the way closures are currently handled and a scepticism regarding whatever will replace it, that all closure cases should be referred to Ministers, or all to which there are objections (which in practice would perhaps amount to much the same thing). It is not the Government's belief that because the current school closure system is flawed, a workable system cannot be devised to replace it. Every local authority will of course be bound by any new legislation and regulations. If anyone is of the view that the authority has breached either, it would be open to them to seek remedy through the courts or to seek judicial review of the local authority decision. However, Ministers recognise that court action can be both lengthy and expensive and may not therefore be a realistic option in all or many cases.
83. This is far from a clear cut issue, one way or the other. A balance needs perhaps to be struck between referring all cases to Ministers and referring none. There is an argument that having such a 'safeguard' in the system has an effect beyond the confines of particular cases - in other words retaining some categories of referral would help to maintain a rigorous and robust system for all school closure cases. What is important is that if in future there is still to be a system of referrals to Ministers, it should be well understood by all parties, while preserving in a carefully delineated way Ministers' role in the process, and also respecting the rights and role of the local authority to take the final decision, as should be the case, at an entirely local level.
84. Achieving this would be challenging. Criticism of the current system of referral of closure cases to Ministers comes from many quarters and targets different aspects of the system. What the Government does not detect is anything resembling a groundswell of opinion or consensus as to what changes and improvements should be made to the referral system. The Government has an open mind on this issue. Rather than offering a set of specific proposals for comment, we are asking two entirely open questions; whether consultees are content with the present system and set of referral criteria and, if not, what changes they would wish to see made, and why.
85. There are two provisions which currently apply to the referral to Ministers of proposals relating to denominational schools which focus specifically on the provision of denominational education. The wording of sections 22C and 22D of the Education (Scotland) Act 1980 is complex and has given rise to some issues of interpretation.
86. In summary the first requirement is for closure proposals to be referred to Ministers where the result would be a reduction in the proportion of denominational places available in an area. The second refers to other types of proposal and only comes into play if, after the relevant church or denominational body has had discussions with the authority about the continued provision of denominational education it still has concerns that there would be likely to be a significant deterioration in such education. In both cases Ministers can only give their consent to what is proposed "if they are satisfied that adequate arrangements have been made for the religious instruction of the …children who will no longer receive or be likely to receive school education" in a denominational school. 11
87. With both logic and simplicity in mind, the Government proposes to place on local authorities in both of these instances a statutory duty to satisfy themselves as regards the implications of a proposed closure on the same basis that Ministers are currently obliged to satisfy themselves before giving their consent in cases which are referred to them. That would seem to place the responsibility where it should be placed, squarely with local authorities. However we would propose that the right for such cases to be referred to Ministers for their consent should still be retained, albeit only if the church or denominational body concerned objects to what the local authority proposes.
Non-referral of other cases
88. At the moment, some cases other than closure proposals are also referred to Ministers. Proposals for changes of site and catchment area are referable, in practice only on capacity grounds i.e. where the school in question is more than 80% full. Although
a change of site proposal to be referred on distance grounds, no referral on distance grounds has ever been made.
89. The Government proposes to restrict future referrals to Ministers solely to school closure cases. This is because closure cases tend to involve a wider complexity and dimension of issues beyond the essentially local and largely educational ones which are the principal focus of changes of site and catchment area proposals.
90. While there may be local controversy around changes of site, the educational benefits of the change (very often to move to a new or better building) are usually clear, so long as any distance or 'travel to school route' issues are addressed. Where there may be planning issues there are well established planning processes through which views can be expressed. Catchment area changes can also be controversial, but are usually driven by the need to redress a mismatch in the supply of and demand for school places and facilities. Without redress, the pressure on facilities in some schools may reach the point where the education of pupils would start to suffer. It is therefore to the advantage of all pupils that adjustments are made periodically to catchment areas. As with changes of site, the case for changes of catchment area again revolve almost exclusively around local, largely educational issues and although there may also be distance and travel to school route issues, they are not, in the Government's view, appropriate cases for referral to Ministers.
Consultation Questions
Q10. Are you content with the present system of referrals of closure cases to Ministers?
Q11. If not, what changes would you wish to see made, and why.
Q12. Do you agree with the proposal to place the responsibility on authorities to satisfy themselves regarding the provision of denominational education? If so, do you agree with the proposal to continue to allow referral to Ministers if the Church or denominational body has an objection?
Q13. Do you agree with our proposal that in future only school closure cases should be referable to Ministers?
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