Hansard

Thank you very much, convener, and thank you for inviting me before the committee to discuss these amendments. Unfortunately, given the amendments that I will be covering, I will have to speak for a reasonable length of time, but I hope that the committee will bear with me.Amendment 405 sets the scene for the substantive package of amendments on school closures that has been lodged in my name, by seeking to insert a new part into the bill and by making it clear that any references to “the 2010 act” in the part are to the Schools (Consultation) (Scotland) Act 2010.I think that we are all familiar with the issues here. School closures are emotive and disruptive events for the children, parents and communities who are affected by them, and it is clear that the 2010 act has not been operating satisfactorily either for those who are affected or for education authorities. The commission on the delivery of rural education, which was jointly established by the Government and the Convention of Scottish Local Authorities, was charged with examining the 2010 act. Its report made a number of recommendations for change, all of which bar one were accepted by the Government. The amendments that we are debating today will implement many of those recommendations. I add that some of the recommendations do not require legislation.The commission’s remit was to consider rural education; amendment 408 applies to rural schools only. However, the other amendments in my name apply to all schools and will improve and strengthen consultation in every community.Amendment 407 seeks to require an education authority to present information about the financial implications of a school closure proposal as part of its proposal paper for consultation. I think that we are all determined that educational benefit must continue to be the primary consideration in making the case for school closure proposals. However, requiring authorities to provide clear financial information to communities will ensure that there is a more informed debate about such proposals.Amendment 408 seeks to make a number of changes to the process for rural school closures under the 2010 act by clarifying how an education authority should assess whether a rural school should close, and it will ensure that the 2010 act operates as Parliament originally intended. When the Scottish Parliament unanimously passed the 2010 act, it intended that the three rural factors in section 12 would operate as a presumption against closure of rural schools. It was expected that they would require local authorities to show that they had carefully considered and weighed up the implications of proposed closures. However, following the judicial review that was brought by Comhairle nan Eilean Siar, it was clear that the provision in the act was not having the required impact. Clarity on the issue was recommended by the commission, was strongly supported in the Government’s consultation and is what I now wish to deliver through amendment 408.Amendment 408 seeks to set out the detailed careful consideration that an education authority is required to carry out before even proposing a rural school closure. Authorities will be subject to an additional requirement to identify any reasonable alternatives to closure, and to assess the likely educational benefits and effect on the rural community and on travel arrangements of any and each such alternative. The alternatives are to be set out in the consultation on the proposal and further alternatives may be proposed during the consultation. The authority is then to reassess the proposal and the alternatives following consultation and, if it chooses to proceed, to explain why, in the light of those assessments, it still considers that the closure proposal is the most appropriate response. I want to ensure that future consultations reach not just the letter but the spirit of what Parliament intended when it passed the 2010 act.When I gave evidence to the committee in December, I explained that we were still considering the best way of ensuring that the presumption against closure was as clear as possible. Having given the matter careful consideration, we think that from a legal perspective it is clearer and safer to set out exactly what we expect authorities to have assessed and considered in formulating a closure proposal for a rural school, and to set out exactly what they must assess and explain when consulting on a closure proposal. We think that amendment 408 will ensure that authorities will not be able to proceed with a closure proposal unless there is a clear educational benefit in doing so, and unless there is no more appropriate means of addressing whatever problem a rural school is experiencing. In other words, if this clear test is not met, a closure proposal cannot be implemented.We consider that revising, adding to and strengthening both the statutory assessment and consultation requirements that authorities are subject to is a better way of achieving the policy. We consider that to be clearer than simply referring to a presumption against closure in the 2010 act, which education authorities and the courts might, in any case, not find clear.The additional and strengthened statutory processes in proposed new sections 12A and 13 of the 2010 act, which will be inserted by amendment 408, should secure the careful and comprehensive consideration that education authorities have to give any proposal to close a rural school, given their particularly important status and the long-term consequences of closure on both families and rural communities. I believe that that is what those communities want and that it is what they deserve.Amendment 409 seeks to make a number of changes to the process for calling in and determining school closure proposals. It will require Her Majesty’s Inspectorate of Education to provide advice that is requested by Scottish ministers in deciding whether to call in a closure proposal. Formalisation of that mechanism in legislation will add transparency to the process and ensure that ministers have access to educational advice when making their call-in decision.10:00 Amendment 409 will require ministers, following call-in of a school closure proposal, to refer the proposal to a new public appointee—the convener of the school closure review panels. It also makes provision for the convener’s appointment. It will be the responsibility of the convener to appoint individuals who will be eligible to be members of a panel, and to constitute panels on a case-by-case basis to determine on particular closure proposals once they are called in.Establishing the school closure review panels to determine school closure proposals will improve transparency and remove allegations of political bias from the decision-making process. Although it has never been the case that ministers’ decisions have been biased or influenced by political considerations, it is a perception that is often hard to refute, so it is better that in the future those decisions will be taken away from the political spotlight and be made at arm’s length from ministers.Amendment 409 also provides for the panels to be able to draw on advice from HMIE, as well as information from the education authority and any other person, just as ministers may obtain expert advice from HM Inspectorate of Education at the call-in stage.The judgment in the case of Comhairle nan Eilean Siar v the Scottish ministers held that the 2010 act as written required ministers to consider the merits and the procedural aspects of an education authority’s decision to implement a closure proposal. The commission also recommended that ministers should consider the merits of the decision as well as its procedural aspects. We have accepted that recommendation.We have considered whether further clarification of the 2010 act is required. However, given that the judgment from the inner house of the Court of Session is clear that the wording in section 17(2) of the 2010 act requires such consideration, we have concluded that, although it was not the original policy intention behind the provision, no amendment to section 17(2) is required. We have used the same formulation in proposed new sections 17B and 17C to make it clear that a school closure review panel will also be required to consider the merits and procedural aspects of an education authority’s decision in determining whether to consent to or refuse a proposal once it has been called in. Had we chosen to amend the wording in the 2010 act, that might have been interpreted as meaning that the amended provision did not require a determination of merits and process. We therefore concluded that we should follow the wording in the 2010 act in relation to call-in.Amendment 409 also sets out the options that a school closure review panel will have for determining a school closure proposal. The commission recommended an additional option of remitting the proposal back to a local authority for the authority to take the decision afresh, so amendment 409 will add that option to the decisions that are available to the school closure review panel. That respects the primacy of local decision making in a case where a flaw in a closure proposal process, for example, can be easily remedied, and is especially important given that amendment 406, which has been lodged by Liz Smith, and to which I will speak in more detail later, would mean that refusing consent would lead to a five-year restriction on repeating the closure proposal.Finally, amendment 409 provides for a right of appeal against a panel decision to the sheriff court on a point of law only. That will achieve the right balance between providing a right of appeal and the need to ensure that decisions can be taken forward efficiently.I believe that the extensive changes to the call-in and determination process that are contained in amendment 409 will significantly improve the transparency of the overall process, so that it has the full confidence of communities and education authorities.I now turn, with relief, to the non-Government amendments.I welcome amendment 406, which has been lodged by Liz Smith, and which I believe will significantly benefit communities that have been affected by a school closure proposal and give them a degree of certainty over their school’s future. I agree that a five-year period sets the correct balance between providing assurance to a community and not unreasonably restricting an education authority’s ability to manage its school estate.Liz Smith’s amendment 406 recognises that there will be exceptions to the moratorium during the five-year period; I agree that it is necessary to have limited flexibility in that area. Significant changes in a school’s circumstances might include a school’s roll declining dramatically, or the fabric of the building requiring significant unplanned investment. The Government proposes to set out in the revised statutory guidance for the 2010 act further advice on the types of appropriate exception.I am glad that there is support across the political divide for amendment 406. That very much reflects the spirit in which the 2010 act came into being, and the unanimous support that Parliament gave in passing it. I believe that amendments 405 to 409 will benefit all those who are involved in and affected by school closures.Amendment 408A, in the name of Liz Smith, would amend amendment 408 to alter the basis on which an education authority could decide to implement a rural school closure proposal. Instead of the authority being “satisfied”, it would have to have “demonstrated” that closure was the best option.I am sympathetic to that proposal, and I understand and respect the intention behind the amendment. I accept that Liz Smith and others have concerns about whether “satisfied” is the most appropriate term to use—it may not be. However, I do not believe that changing the wording of amendment 408 to include “has demonstrated” will deliver the clarity and improvements in the assessment and consultation process that both Liz Smith and I wish to be implemented.I have concerns that the change that amendment 408A proposes would result in a lack of clarity. It is unclear to whom it would need to be demonstrated that closure would be the most appropriate response, and—crucially—such a requirement could inject into the process further uncertainty and delay for parents and young people. Furthermore, given how controversial closure proposals can be, it is unclear that an education authority would ever be able to satisfy that test fully. In addition, amendment 408, as drafted, maintains consistency with the rest of the 2010 act, which is desirable.As I have explained, amendment 408 will require an education authority to carry out a more rigorous assessment in formulating a rural school closure proposal, and to consult in a more thorough and transparent way. Its complying with those requirements should mean that the authority will, in practice, demonstrate that its decision is the most appropriate response based on the reasons for formulating the proposal. If it does not, and the decision is considered to be unreasonable, ministers may call in that decision for the panel to determine.However, as I have indicated many times throughout the bill process, I am prepared to listen, in advance of stage 3, to suggestions to improve the provisions that relate to rural school closure proposals. The additional safeguards for rural schools that were originally included in the 2010 act followed a sustained campaign from communities that was supported by a number of MSPs and championed by Murdo Fraser. The campaign was an example of MSPs from a number of different political parties working together to deliver a common objective, which I hope we can do again.I am happy to discuss with Liz Smith, and with others who have an interest in the issue, their concerns and the best way to deliver what we are all after: an improved assessment and consultation process. We need to step back and think through carefully the implications and consequences of any amendment, but we are clear, as legislators, that the proposal is what we want. If Liz Smith is prepared to undertake that process with those with whom she is involved, I am prepared to do so too, and to come back with an improved amendment at stage 3.Liam McArthur will be disappointed that I am not going to be quite as positive in my comments on his amendment 409A. The Scottish ministers may issue a call-in notice for a school closure proposal only where it appears to them that the education authority “may”—I use that word advisedly, because it is in the legislation—have failed either to comply with the factors that are set out in sections 17(2)(a) and (b) and therefore failed significantly to comply with the requirements that are imposed on it by or under the 2010 act, in so far as they are relevant to the closure proposal, or to take proper account of a material consideration that is relevant to its decision to implement the proposal.The crucial word in the 2010 act is “may”. At that stage in the process, ministers have not decided that a failure has occurred. Issues might have been raised in representations to ministers, or in reviewing the documentation that is associated with the proposal, which suggest that the education authority “may” have failed to comply with the 2010 act and that ministers should call in the proposal.However, in undertaking further investigation and evidence gathering following call-in, a school closure review panel could find that the authority has not failed in either of those respects and that the appropriate decision is to grant consent. That does not mean that the proposal should not have been called in. It is important that possible failures are investigated, and undertaking further investigation and making determinations on proposals that have been called in, in a manner that has the confidence of the affected community and the education authority, is the primary role of the school closure review panels.Amendment 409 will require a panel to give reasons for its decision, which may in practice make it clear whether the panel considers that a call-in was required or not. Furthermore, it requires the convener of the panels to provide an annual report to the Scottish Parliament on its decisions. It will therefore be apparent if there are many—or any—school closure proposals that are called in but given unconditional consent by the panels.Although I will listen to any cogent arguments that Liam McArthur makes, I do not think that amendment 409A is necessary; indeed, it may deflect a panel towards spending time looking backwards instead of considering the matters that are in front of it. Therefore—with some relief—I ask the committee to support amendments 405, 407, 408, 409 and 423 in my name, and amendment 406 in the name of Liz Smith. I do not support amendments 408A and 409A, although I am willing to work with Liz Smith to see whether we can find a way forward through amendments to improve the legislation.I move amendment 405.