7 A REFERRAL SYSTEM
Consultation questions:
Q10 Are you content with the present system of referral 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?
7.1 At present, after a council has made its final decision to close a school, change its site, or change its catchment area, there are specific circumstances where the decision has to be referred to Scottish Government Ministers for agreement.
7.2 Cases are automatically referred if they meet certain criteria; these were listed in the consultation document:
- 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.
PRESENT SYSTEM OF REFERRAL
7.3 Respondents were asked "Are you content with the present system of referrals of closure cases to Ministers?" and "If not, what changes would you wish to see made, and why?"
Consultation responses
7.4 As shown in chart 7.1, almost half (47%) of respondents said that they were not happy with the current system of referrals. Just over a quarter (28%) said that they were happy while 25% did not give a direct answer.
Chart 7.1 - Whether satisfied with the present system of referrals
7.5 Reasons for discontent with the current process came from 11% of respondents and included the following comment from an individual respondent: "In past experience it didn't seem to get much attention from Ministers, they simply rubber stamped the decision that the council had already made. So what was the point?" A local authority added "It is acknowledged that the current system appears to rely on what are fairly arbitrary grounds for deciding on which cases should and should not be referred to Ministers."
Comments from other strands of research
7.6 The current system of referral was not understood by workshop participants and once explained, seen as rather pointless because it is not an appeal mechanism and is largely focussed on process. Some felt that Ministers should be responsible for the decision at the end of the day, or should at least have the power to overrule it.
7.7 When the argument was put that the Government wishes to ensure that local decisions are taken locally, by the locally elected representatives, many understood this point of view and conceded that in an ideal world this is how things should work. However, given their lack of trust in their local councils and their scepticism about the effectiveness or genuineness of any consultation exercise, they did not want the council to have the power to make the final decision. A desire that there should be an appeal, rather than a referral system was widely expressed and discussed.
"Well that's just the Local Authorities make the decision, and they can do it. You know? OK - they'll have all this consultation and like but, no, it should go higher. It should go to the Ministers."
[Is that because you think the Ministers are the best people, or just because it's someone else has to do it?]
"Someone else has to look at all the information and all the consultation and, you know, just sort of have a final say about it. And that's why we spoke about having, you know, a committee with Ministers and educators, and, you know, other people on it."
(parent)
POSSIBLE CHANGES
Consultation responses
7.8 Responses to the consultation question on what changes respondents would like to see, and why, showed 9% of all consultation respondents making general comments on the need for a review of, or improvements to, the system.
7.9 Nine percent commented generally on the need for an appeal process, the majority of these comments coming from individuals; including one person who asked for "Some way in which communities have a way to appeal a bad decision"; although all groups apart from 'other' organisations made similar comments.
"The problem is that the present system could result in councils targeting schools that do not have to be referred for financial reasons, because they know that the schools that would be referred might be refused. This would result in a two-tier system. There should be an additional right of referral or some sort of appeal procedure if schools had evidence to suggest this was happening."
(parent council/ parent body)
7.10 More specific comments included that Ministers should not be involved at all. Although only 8% of all respondents gave this response; this figure rose to 46% amongst local authorities:
"Just as certain matters are devolved to the Scottish Government, the provision of education is devolved to local authorities. Consequently, authorities should have the freedom to decide the pattern of local provision without recourse to Ministers."
(local authority)
"If Ministers give clear and unequivocal statutory guidance then the only ministerial intervention in the process should be in the event of an authority failing to have regard to the guidance."
(local authority)
7.11 Looking at the possibility that appeals could go through a judicial procedure, 4% of respondents, mainly local authorities, felt that this should be the case. One education respondent said "The existing route, to judicial review if necessary, appears to be acceptable for many other purposes, despite its bureaucracy. [the respondent] is unsure why an exception should be made for school closures".
7.12 Other comments from consultation responses included a variety of other themes and these are summarised in the following paragraphs.
7.13 Six percent of all consultation respondents felt that all closures should be referred to Ministers and this included a parent council/ parent body who said "All closures should be referred to Ministers so as to give a much more balanced view of the local situation and need based on the evidence provided by the local community as well as that of the local authority". There were no comments from local authorities on this issue.
7.14 Again, 6% commented that there should be an independent review body, although no education respondents made this comment. An individual felt "There should be provision for an independent body to act as arbiter on school closures as required. This issue has not been given due weight in the consultation document."
7.15 There were suggestions, from 6% of respondents, that appeals should be made to a public ombudsman and one individual suggested "perhaps there should be established some kind of adjudication body which determines if a matter can be referred to Ministers. The value of such a body is that it is possibly less susceptible to political pressure than Ministers are".
7.16 Concerns over the timescales in relation to the decision-making process were raised by 6% of respondents, mainly local authorities.
7.17 Six percent of respondents suggested that transport or distance criteria should be taken into account; one parent council/ parent body felt more needed to be done on this issue and described their particular concern: "The current system of referral on grounds of distance should be abandoned in rural areas on grounds that distance is no describer of terrain and two miles of sea, cliff or mountain may be perilous".
7.18 Other comments on possible changes to the referral system, from smaller numbers of respondents, included:
- that it is the local authority's responsibility and should be managed locally (5% of respondents comprising mainly local authorities);
- that the public should have more of a voice in the appeal process (5% of respondents);
- the need for openness and transparency (5% of respondents).
Comments from other strands of research
7.19 Workshop participants discussed this issue at length and with feeling. Parent participants did not trust their local council and expressed a very strong desire that the legislation should include provision for an independent appeal system, not a referral system (i.e. one where individuals and communities can complain about a decision to some external body and have it reviewed, rather than one where cases are either automatically referred or not).
7.20 In the deliberative workshops, the entire focus of discussion on this topic was about the need for an appeal system. Similarly at the majority of the public meetings attendees wanted to see some form of appeal process and there was a feeling that the decision to refer should be based more on the level of disagreement with the decision (for example through a parent vote) rather than criteria linked to the case.
7.21 Many public meeting attendees wanted to see an independent panel deciding on any appeal. Some felt the appeal process should be de-politicised, although others disagreed. Suggestions for panel membership included: a parent and a local Councillor from outwith the affected area; someone with financial expertise; HMIE; and perhaps a lawyer or someone who had experience in arbitration. Many attendees felt that the panel should look at the process rather than the final decision.
7.22 Workshop participants also wanted the legislation to include a mechanism for independent adjudication. Recourse to the law if the legal process has not been properly followed was not perceived to be sufficient reassurance. It was generally viewed as likely to be far too expensive, probably very lengthy and difficult for a community group to have real access to.
"They should have some kind of Parliamentary committee set up where it should be a standard Parliamentary committee that should review these documents to. No matter what Council they're from, they should be reviewing them so that the same people are looking at these statements."
(parent)
"The Councils have got to be answerable to someone, and - if they weren't - then effectively they would do what they wanted, like they normally do just now. But if they put education in the hands of the local Councils and there was no input from the Government at all, I think it would be a lot ..they would be a lot worse off."
(parent)
7.23 Children too felt that, for a fair decision, there needs to be some higher/ independent authority involved.
"…but if we took it up there, maybe they'd be more fair because it's... instead of them being against us , it's like judging between the two ."
(child)
7.24 However, on balance, most workshop participants came to the view that the role of appeal/ adjudication is probably not best filled by Government Ministers and there was much discussion about who such an adjudicator should be.
7.25 Independence from the council was a key attribute as far as workshop participants were concerned and others included local knowledge, some educational expertise, perhaps economic understanding, knowledge of planned development in the area and so on. Some suggestions included a national pool of experts, from which a panel could be drawn, a specially established local group and HMIE.
"I would say a committee of experts, especially including people from the education side of the Government, and people from consultancy roles of which sort of everybody knows the Government use a lot of."
(parent)
"…people who are qualified…people who have proper education qualifications who have worked in the field."
(parent)
"The local Council have got to be accountable to someone, and hence if the same body's seeing the process from start to finish, they could see the objections that were put in by the people, and then they could question the Council's decision."
(parent)
7.26 At the public meetings, there was some support for a minimum time period after a final decision, within which a school's future could not be reconsidered.
7.27 At one public meeting, attendees wanted to see consideration given to safeguarding provision of Gaelic education in the same way as provision of denominational education.
FUTURE REFERRAL TO MINISTERS
7.28 The consultation document asked respondents "Do you agree with our proposal that in future only school closure cases should be referable to Ministers?"
Consultation responses
7.29 As shown in chart 8.1, half (50%) of respondents agreed with the proposal, 27% disagreed and 23% did not give a direct answer. Individuals were most likely (54%) to agree; fewer local authorities agreed (39%).
Chart 7.2 - Agreement with the proposal that only school closure cases should be referable to Ministers
7.30 An additional comment in relation to this question showed that some respondents wanted to see clarity on the issue of whether amalgamations are included as closures (6%). One individual pointed out "if two schools are to merge, then in reality one is closing, so it must be referred to the Minister. We can't have anything slipping through the net!!" and a parent council/ parent body said:
"The proposal to restrict referrals to school closures alone is alarming as it would seem obvious that councils will simply stop describing them as such. Where new building is taking place, closures are/ may be presented as mergers. Any change in legislation should be very clear in its description of closure, merger and any other terms employed in the movement of pupils from one building to another."
7.31 Four percent said that Ministers should not be involved in the school closure process; one local authority commented:
"In a time of partnership and agreement, it seems out of place to retain the ability for the Minister to overturn the decision of locally elected members. The necessity to refer to Scottish Ministers dates back to a time when much larger Regional Councils had responsibility for education. The unitary authority structure is much smaller, and given a number of developments in local government such as community planning and multi-member wards using Single transferable vote, this does seem to undermine the principle of empowering local authorities and communities."
7.32 Four percent of respondents also included comments that local matters are, and should be, the responsibility of local authorities. One organisation from the local authority group commented:
"If a council takes a decision to close a school for the best of reasons, and consults the community properly, then we would see no need for Ministers to become automatically involved as they currently do under certain circumstances. Local authorities understand their communities and are able to respond to their needs, and this should be recognised when reforming the present system of referrals. We therefore propose ending all referrals to Ministers or denominational bodies."
7.33 Four percent, however, commented that they thought Ministers should have some form of involvement, with comments similar to "There should be an opportunity to refer all concerns re rural schools to Ministers. Even if referrals have not been made in the past, the opportunity should still be there" (parent council/ parent body).
7.34 Changes to catchment areas were mentioned; 4% felt that these should be referable; 4% also commented on inconsistencies in referrals relating to catchment areas or site changes; one parent council/ parent body commented "parent councils and authorities may disagree over things such as catchment areas".
Comments from other strands of research
7.35 In the deliberative workshops, the focus of the discussion on this issue was again largely on the need for more independence and an appeals system, rather than which particular cases might be referred to Ministers. Referral for the purpose of checking that the procedure has been correctly followed was viewed as not going far enough.
"I think an appeal system would be better. Again where it was looked at independently, I don't feel a Minister, although they have the power to say whatever, I don't think they have the knowledge or understanding of the effects of the things that they are talking about and doing, I don't think they give a hoot."
(parent)
DENOMINATIONAL EDUCATION
7.36 The Scottish Government propose that, in future, only school closures should be referred to Ministers, and put forward their proposed requirements for referrals relating to denominational education:
- where closure would mean a reduction in the proportion of denominational places in an area;
- if the church or denominational body, after discussion with the local authority, still had concerns that there may be a significant deterioration in denominational education.
7.37 Ministers would only give consent "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."
7.38 The consultation asked "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?"
Consultation responses
7.39 Fifty-four percent of respondents agreed with the first part of this question; the proposal to place responsibility on authorities; only 2% said that they disagreed.
7.40 In relation to the second part of the question; the proposal to continue to allow referral to Ministers; 29% said that they agreed and 4% disagreed.
7.41 Almost a quarter (22%), however, did not comment on this question at all and 11% said 'don't know'.
7.42 The main comment to emerge in relation to the proposals for denominational schools came from 5% of respondents who said that all schools should be non-denominational; this comprised 14% of community councils/ groups, 8% of individuals and 2% of parent councils/ parent bodies.
"The remit of the state should be to provide a secular education, religious teachings can be taught elsewhere."
(community council)
Comments from other strands of research
7.43 In the deliberative workshops, there was not great feeling on the issue of denominational education. All understood and were happy with the proposals.
In summary:
Almost half (47%) of consultation respondents were not happy with the current system of referrals. Just over a quarter (28%) said that they were happy while 25% did not give a direct answer. Workshop participants saw the current process as pointless.
Half (50%) of the consultation respondents agreed that, in future, only school closures should be referable to Ministers; 27% disagreed and 23% did not provide a direct answer. Local authorities were more likely to say that Ministers should not be involved at all. Overall, views were polarised as to whether or not Ministers should have any involvement.
There was a wide range of diverse views, expressed across all strands of the consultation, on the issue of whether or not there should be some form of independent adjudication or appeal. Parents and parent bodies in particular were in support of such a suggestion.
Over half (54%) of respondents to the consultation agreed that there should be a responsibility for local authorities to satisfy themselves regarding the provision of denominational education; 2% disagreed. Over a quarter (29%) specifically agreed the proposal to allow referral to Ministers if the Church or denominational body had an objection; only 4% disagreed. A large number of consultation respondents did not address this subject or said that they did not know (33%). Workshop participants were also content with the proposals.