Scottish Government

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Dear Chief Executive

PLACING REQUESTS AND EDUCATION APPEAL COMMITTEES -

ELECTRONIC COMMUNICATIONS

1. This letter provides guidance to education authorities on recent (June) changes to the law concerning electronic communications in relation to placing requests and Education Appeal Committees.

BACKGROUND

2. The Scottish Executive is committed to enabling local authorities to use electronic communications as one way of carrying out transactions. Electronic communications include e-mails, faxes, and websites. [1] We believe that such communications can bring benefits in terms of quicker and more efficient services, and increase the range of communication methods available to the public and authorities. It is not our intention that electronic communications should replace current methods for transactions and communications, but rather that an additional means or mechanism should be allowed, alongside 'traditional' methods. However, where it is possible we would encourage authorities to offer this quick and efficient alternative, to those who wish to use it, to maximise flexibility and accessibility for all.

3. As part of meeting the Executive's commitment concerning electronic communications, we asked the Scottish Parliament to approve the Electronic Communications (Scotland) Order 2006. The Order was approved, and came into force on 23 June 2006. The Order amends several pieces of legislation to enable the use of electronic communication, including the Education (Scotland) Act 1980 (the "1980 Act").

CHANGES TO LEGISLATION

4. The Electronic Communications (Scotland) Order 2006 inserted a new section into the 1980 Act, section 28L, set out in full in the Annex. The effect of this change is that:

(a) placing requests;

(b) decisions and notifications made or issued by an education authority or by an Education Appeal Committee; and

(c) representations made to an Education Appeal Committee (EAC) in relation to a placing request;

may be made or issued by means of electronic communications. The provisions referred to in section 28L are provisions using words and expressions such as "written" or "in writing", i.e. where there is an implication that only traditional means of communication would be appropriate.

5. The changes mean that:

(a) where an authority has passed a resolution to allow placing requests to be made electronically, and has made that resolution publicly available, it must allow placing requests to be submitted electronically. Where an authority has not passed such a resolution, it can choose whether or not to allow placing requests to be made to it electronically. We are aware that some authorities may wish to use a mixture of electronic and postal means to deal with placing requests, e.g. for collecting supporting documents such as baptismal certificates, and because not all parents will wish to use electronic means. The changes to the 1980 Act allow authorities to do this if they wish.

(b) Authorities can choose whether or not they wish to use electronic means in relation to notifications made or issued by them in relation to a placing request, or made or issued by an EAC.

(c) Authorities must allow appellants (such as parents) to submit representations, which may include evidence, to an EAC electronically.

AUTHENTICATION

6. It is of course important that authorities put in place appropriate authentication procedures, in order to ensure that an individual (for example, making a placing request) is who they claim to be. Proper authentication arrangements help to avoid potential abuse, protect citizens' personal information, and give authorities the reassurance that the information being conveyed to them electronically can be relied upon. We would expect authorities, when communicating electronically with individuals, to take the same level of care as they would with non-electronic correspondence in ensuring that communications arrive safely and with the right person.

7. It is our view that the appropriate level of authentication and registration measures in this area would generally mean that the person involved would authenticate him or herself by the presentation of a credential such as a username. The right to this credential would then be confirmed by additional non-public information, such as a password.

8. Whilst ultimately it is for each local authority to ensure that they put in place suitable authentication procedures, in order to avoid duplication of effort we would encourage authorities to look at the initiatives currently being developed in this area, such as the Customer First programme. This Executive led programme is being delivered by the Improvement Service (a partnership between the Scottish Executive, the Convention of Scottish Local Authorities, and the Society of Local Authority Chief Executives) on behalf of, and in partnership with, all 32 local authorities.

9. The Customer First programme is currently developing authentication arrangements for the creation of a citizen account that will facilitate a whole range of local authority services. In addition to authentication the programme is looking at a secure network for transactions, and is actively considering the potential of Glow (the new name for the Scottish Schools Digital Network) i.e. to make better use of its capacity.

10. The outcome of this work on behalf of local authorities will be an important factor in determining service specific authentication. Authorities should therefore ensure that they seek advice from their Customer First contact; a list of such contacts is available on-line at www.scotland.gov.uk/Topics/Government/Open-scotland/ModernisingGovernmentFund/MGF3NomCouncilContacts. General guidance on standard authentication levels is available at www.cabinetoffice.gov.uk/csia/documents/pdf/RegAndAuthentn0209v3.pdf.

LEGAL NOTE

11. Summary reference is made in this guidance to relevant primary and secondary legislation, although it cannot be taken as an authoritative interpretation of any statutory provisions. Interested parties should refer to the legislation directly for full details. Interpretation is a matter for authorities and their advisers, and of course ultimately for the courts.

ENQUIRIES

12. Enquiries relating to placing requests, Education Appeal Committees, and this change to the law should be addressed to Ben Haynes in the Schools Division of the Scottish Executive Education Department, on 0131 244 4924 or at placing.requests@scotland.gsi.gov.uk.

13. Enquiries relating to Scottish Executive policy on authentication should be addressed to the Julie Kane, in the Scottish Executive's E-Government and Take Up Team at julie.kane@scotland.gsi.gov.uk or on 0131 244 7443. Enquiries relating to the Customer First programme should be addressed to Fiona Dick, Customer First communications manager at dickf@stirling.gov.uk or on 01786 443250.

14. Electronic copies of this guidance are available on the Scottish Executive website at www.scotland.gov.uk. Hard copies of this guidance are also available by contacting the Schools Division of the Scottish Executive on 0131 244 4485.

COLIN M REEVES

Scottish Executive Education Department

September 2006

ANNEX

NEW SECTION, SECTION 28L, OF THE EDUCATION (SCOTLAND) ACT 1980

Below is the text inserted into the 1980 Act by Article 4 of the Electronic Communications (Scotland) Order 2006.

"28L. Use of electronic communications

(1) This section applies for the purposes of doing anything in writing under-

(a) section 28A(1) or (4) ;

(b) section 28E(3) or (5);

(c) section 28H(3); or

(d) regulations made under section 28A(5), 28D(3) or 28H(5),

of this Act.

(2) Subject to subsection (3) below, any request, information, notification or other thing which must be in writing may be done by means of a document-

(i) transmitted by electronic means;

(ii) received in legible form; and

(iii) capable of being used for subsequent reference.

(3) An education authority shall be bound to accept receipt of a request made under section 28A(1) of this Act by way of electronic communication only if that authority-

(a) has passed a resolution to accept receipt of requests so transmitted; and

(b) has, under section 28B(1)(a) of this Act, published or otherwise made that resolution available."

[1]The exact definition of "electronic communication" is in section 15 of the Electronic Communications Act 2000. This states that:

' "electronic communication" means a communication transmitted (whether from one person to another, from one device to another or from a person to a device or vice versa)-

(a) by means of a telecommunication system (within the 1984 c. 12. meaning of the Telecommunications Act 1984); or

(b) by other means but while in an electronic form;'