2010 Schools Act: solution for recovery from the Wick determination

There are two immediate consequences to Scottish Ministers’ determination of Highland Council’s two proposals to close four schools in Wick.

The first is the clear injustice to Hillhead school which is now to be closed under a Scottish Ministers’ decision that was demonstrably illegal, unreasonable and unfair.

The second is the amending impact on the Schools (Consultation) (Scotland) Act 2010 of the substantial precedent set by the Wick determination.

There is a solution that could resolve both of these problems – and others – and do so cleanly and with necessary dispatch.

The Scottish Government’s Education Department is known to recognise privately that the Schools Act has been damaged in this action – although it prefers not to acknowledge the legally obvious precedent-setting impact of the Wick determination.

It has also – for reasons outlined below, set its face against admitting an error of both judgment and procedure and revisiting its decision on the Wick schools.

This position is born, in part, from the desire to save face and in part from political pragmatism – both at the expense of Hillhead, the powerless victim of the mis-taken decision.

Scottish Ministers’ position

Political pragmatism here dictates doing nothing.

This course of inaction is based on a canny judgment of the relative likelihood of the Education Secretary being faced with a third challenge by judicial review on Scottish Ministers’ decision taking at call-ins on school closures.

Having given Highland Council what they wanted by a process that was unprecedented and which we have shown to be illegal, unreasonable and unfair, any reversal of that decision would undoubtedly bring a petition for judicial review from Highland.

In such actions, councils and governments freely use public money to which, ironically, the public who provide that money are denied access to defend themselves.

Choosing to leave the legally unable decision standing is to compound the injustice to Hillhead – but the hard-faced analysis is that a modest primary school in a deprived area of a struggling town in the far north east is very unlikely to be able to muster the wherewithal to go to judicial review. And it is.

The financial obstruction to issuing legal challenges on public interest issues has been a matter of concern in legal and political circles for some time. It is a situation under formal review, a process the Justice Department would be wise to accelerate. Whatever recommendations are eventually enacted will, though, be a long way too late for Hillhead – but the solution proposed below addresses the interim situation.

In this case, it is of public interest that the viability of the 2010 Schools Act, which has been undermined by the legally unable Wick determination, should be quickly restored.

There is another factor at play in Scottish Ministers preference for doing nothing in the face of this crisis.

Were they to reverse their own unable decision, they would have to refuse to close all four Wick schools contained within two parallel closure proposals from Highland. These featured the same failure to observe the statutory obligation in respect of the key Educational Benefits Statement. They were called in for this same principal reason. They were adjudicated in the same way. All four schools concerned were closed by a decision based on the same creative and illegal intervention in the statutory process by Scottish Ministers.

Where Hillhead school neither needs nor wishes to close and its parent council have fought hard for its survival, the other three schools need and wish to close and Highland is urgent to get on with building their replacement accommodation.

But judicial review does not regard with favour a decision which elevates policy above what is legal, reasonable and fair – as has happened in the current sacrifice to pragmatism of an able school.

The solution proposd below addresses satisfactorily each of the elements involved in Scottish Ministers’ current paralysis – and addresses the wrong done to Hillhead, which is clearly of little concern to them.

How damaging are the legal precedents set?

How bad can it get?

The Wick determination should it go unchallenged, sets precedents that could not be more damaging.

The decision on the Wick schools makes it acceptable for a single options appraisal, produced by a specific identified methodology, to serve two very different functions at two very different stages in the statutory process of closing a school. This options appraisal may now act as both:

the entry level qualifier it is intended to be, used to decide on whether or not to progress a school closure proposal to statutory consultation;
the critical determinant of a decision to close a school – the Educational Benefits Statement, of which the Statutory Guidance to the Act says: ‘The Act reflects the Scottish Government’s view that the educational benefits should be at the heart of any proposal to make a significant change to schools.’ This Statement is the first to be written and is in play during the consultation period and in decision taking.

The retrospective conferring of superior statutory authority on material designed to fulfill an entry level role of a very different nature and focus is not legally sustainable.

Unless challenged, the Wick determination has committed Scottish Ministers to accepting as a valid Educational Benefits Statement an options appraisal produced by a specific and identified methodology (by Caledonian Economics Ltd, independent consultants hired for the purpose by Highland Council).

This methodology is a spreadsheet template whose category weightings are insupportably skewed in serious favour of new schools with bigger rolls.

Accepting this as producing a statutorily valid Educational Benefits Statement is a de facto setting of the Scottish Government ‘s definition of educational benefits. The 2010 Schools Act and its Statutory Guidance overtly set their face against a prescriptive listing process in this matter.

Beyond what is now this very prescription, the Wick determination commits the Scottish Government to a definition of educational benefits and a method of measuring them that has an unchallengeable ability to lay waste the rural education map of Scotland.

No school of 19 or fewer pupils can escape automatic closure under the precedent now set.
It will be a very rare school of 47 or fewer pupils that will survive a closure proposal tied to this precedent.
And a recently refurbished school of 145 pupils cannot better the score of the most deficient new school of 399 proposed to include its pupils.

This is clearly an educationally unacceptable set of criteria and a politically inflammatory result for the Scottish Government.

However, unless the Wick determination is challenged, this is the road onto which the delivery of Scottish rural education has now been channelled. This also usurps the role of the Commission on the Delivery of Rural Education, currently at work.

Unless challenged, the Wick determination has also set a precedent that Scottish Ministers may retrospectively replace text presented in one capacity with text presented as something quite different within the same closure proposal paper; and may accept this text as statutorily valid – after the event of consultation, the only period where consultees may engage with it.

Under this precedent, how, precisely, are future consultees to perceive, understand and address the case laid out against their school in statutory consultation?

Are they to examine every sentence of a closure proposal under every possible function Scottish Ministers might later assign to it and accept in that new capacity as satisfactorily fulfilling a local authority’s statutory obligations in respect of whatever that new function might be?

This is clearly impossible – but the Wick determination must be challenged to see it ruled impossible.

And if the function and identity of passages of a closure proposal are not to be so infinitely flexible in medias res, how will Scottish Ministers explain the particular uniqueness of the Highland case that led them to this extraordinary breach of their own statutory obligations?

The Wick determination has profoundly disabled the capable and reliable operation of the Schools (Consultation) (Scotland) Act 2010.

It has also introduced and validated procedural gymnastics of a fully ruritanian order which cannot withstand legal challenge – but which, without that challenge, are now in place and repeatable.

Scottish Ministers’ solution

For the reasons outlined above, Scottish Ministers can see no way of reversing the decision they reached in the Wick determination.

They do, however, privately recognise, unavoidably so, that the situation is troubled. What do they think they can do about this?

Reading the runes, the preferred tactic seems to reverse logic. Put it like this: if you can’t, or won’t, remove the precedent from the Act, you could try removing the Act from the precedent.

The problem with trying to rewrite the Act to take it out of the reach of the distorting precedent is insuperable – the timescale.

It takes at least a year to get an idea for an Act on to the statute book – and if the 2010 Schools Act is an example of the framing skills of the Scottish Government’s drafting department, there is nothing to be gained from speed.

On the way, there is the position of the Commission for the Delivery of Rural Education to consider.

The first given duty of the Commission is to review the 2010 Schools Act. That job has now been made infinitely more difficult and arguably usurped because Scottish Ministers have now made a proper pig’s ear of the Act.

The thinking from within the Education Department looks like producing a ‘Here’s one I made earlier’ trick, with a readymade template prepared elsewhere and metaphorically slipped under the door of the Commission for it to finish and present as its own.

Every part of this manoeuvre requires skills, abilities and diplomatic capacities not yet in evidence in the Scottish Government’s Education Department.

Normally, a device of this order is one where we would simply advise that everyone put their feet up and settle down to enjoy the show.

However, the implications of this move dictate a response focused more on the responsible and less on the entertaining.

The Commission does not report until August 2012. Even if it gets a pre-baked specification for a new act left somewhere for it to find, the extended nature of what it now has to do with the Schools Act may take it beyond that reporting time.

After it has reported, its recommendations will be considered and pronounced upon – chief of them those relating to the Schools Act.

Unless the Wick determination has been successfully challenged, this will now require new legislation, a new Bill making its squabbling way through Holyrood with the same old backstairs manoeuvering going on between COSLA and the Scottish Government to influence the DNA of the coming Act. There will inevitably be delays for reworkings of various kinds.

At best, it will be December 2013 before a new Schools Act is on the statute book. (And there is no reason to hope for a more capable act than the present one because the same old parental tensions – above – remain active.)

What happens between now and December 2013?

Three or four local authorities have already intimated that they are to move on new – or repeated – school closure proposals and others are known to be planning to do the same.

As long ago as the summer of 2011, when he was proposing setting up the Rural Education Commission, the Education Secretary, unjustly and unwisely in our view, prejudged the 2010 Schools Act as unfit.

It is very much more unfit now, following its effective sabotaging by Scottish Ministers’ Wick determination.

It is unthinkable that a law in the current state of the Schools Act should be expected to govern another phase of school closure proposals while its successor is prepared.

Any attempt to enforce this would devalue the very concept of law.

A workable solution

It is in the interests of all concerned – not least the Scottish Government as a whole, with its stock riding on its governmental competence – that the 2010 Schools Act should be restored to the operational capability it failed to enjoy before the Wick determination.

It is not the best drafted Act but no worse than many others working without controversy. Its problem has been its implementation in practice which, as we have shown before, has been erratic beyond legal justification from the outset. The lack of security and consistency in Scottish Ministers’ determinations has already attracted two Judicial Reviews from confused and angry local authorities.

With more closure proposal programmes on the immediate horizon, this situation cannot wait for the Commission on the Delivery of Rural Education to exchange its remit to review the existing Act for one of delivering the specification of a completely new act.

The solution proposed is born of the imperative to see the Wick determination quickly and successfully challenged – and as judiciously as possible in the interests of damage limitation. This would see the 2010 Schools Act and the Rural Education Commission restored to their previous status.

The single and sure key to this solution is Hillhead Primary School in Wick, who have a sound case to go to Judicial Review that they cannot hope to raise the funds to support.

If Hillhead parent council – guardians of a small school in a deprived area of a very remote town – can be funded to petition for Judicial Review and to take that process to its conclusion, they will win. Their case, as we have previously shown (linked below), could not be stronger.

If Hillhead win, the Wick determination is then immediately disabled and the dangerous set of legal and procedural precedents set for the 2010 Schools Act removed.

Since, as we understand it, a Judicial Review opinion applies only to the case of the petitioner or pursuant, the outcome of Hillhead’s case would not, per se, retrospectively affect Highland Council’s ability to close the other three schools similarly affected by the Wick determination.

While the manner of the closing of these schools would remain counter to the statute, the fact that they need and wish to close would render this a judicious outcome.

Pulteneytown and Wick South schools could be closed with the planned new accommodation for their pupils built at what would become a joint campus at the new Wick Academy.

Highland Council would need to build a smaller new school than planned, at and for Wick North alone, leaving Hillhead to carry on as, on the evidence, it is manifestly able to do. This is an option Highland failed to consider in the early stages of the closure proposal, as the Act required it to do.

The Rural Education Commission is then also free to carry on as anticipated with its own status restored in its review of the current Act – which, in our view, is reviewable.

Who would take responsibility and pay for this solution?

Since it is in the Scottish Government’s interests to resolve this situation quickly, cleanly and effectively, it is up to the government to decide on the appropriate internal agency to enable Hillhead School, with the best possible representation, to see a successful case through Judicial Review.

There are two principal viable candidates:

the Lord Advocate;
the Justice Secretary.

The Lord Advocate is the obvious constructive agent in this – the senior law officer, more powerful and independent of government than any other, charged with responsibilities for the legislative competence of Scottish Government legislation and ‘the Scottish Law Officer acting in the public interest’.

There are two issues of public interest here:

the current legal ability of an Act that will be required to serve until at least December 2012;
the inability of those without the necessary financial resources to access the process of seeking justice even when they have an objectively powerful case to present.

The Lord Advocate also advises government ministers where: ‘there is a particular legal difficulty that may raise political aspects of policy’ .

This is, of course, the case here, where, following the Wick determination, as we have earlier shown elsewhere (linked below), the 2010 Schools Act has been left unable to deliver its political claim of carrying ‘a statutory presumption against the closure of rural schools’.

Moreover, the award of the superior statutory status of Educational Benefits Statement to the Caledonian Economics model for options appraisals has had the effect of setting government policy for what is definable as educational benefits – something the Act and its Statutory Guidance had seen as undesirable.

The Justice Secretary is, through the Justice Department, effectively responsible for the on-the-ground operation of Scottish Government legislation, including ‘publicly funded legal assistance (legal aid)’ - through the Scottish Legal Aid Board.

Either of the officers above have the ability successfully to take responsibility for the legal consequences to the 2010 Schools Act of the Wick determination and financially to support Hillhead school through a successful Judicial Review.

There is a third candidate for helpful intervention. The Commission on the Delivery of Rural Education might bring a Judicial Review against Scottish Ministers in the Education Department, focused on the legal ability of the Wick determination.

Their reason for doing so would be to clarify the consequent state of an Act they are themselves charged with reviewing.

There are two problems with this option:

the Commission is unlikely to have a budget for such action;
were it to raise such a case, the outcome would leave all four schools in Wick retained in operation until a further and legally able closure proposal, statutory consultation and decision taking from Highland Council had been brought to a conclusion.

The obvious contender to take redemptive action on this matter is the Lord Advocate.

Background

The series of articles we have researched and published on this matter, include this one and: