SNP minister urged to rule on 'legality' of council's bid to 'privatise' music instructor jobs

The Scottish Government is being urged to rule on the “legality” of a local authority’s plans to transfer its music instructors to an arm’s-length body.

Campaigners have written to Education Secretary Jenny Gilruth, calling on her to intervene in the row at East Ayrshire Council.

Concerns were raised earlier this year about a move to transfer the local authority’s instrumental music service to East Ayrshire Leisure Trust (EALT), which is an arm’s-length body created in 2013.

Music tuition has reached record levels in Scotland (Picture: Getty Images/iStockphoto)

The plan, which has now been approved by councillors after a meeting last week, impacts the service manager and 13.4 full-time equivalent jobs.

Scotland’s largest teaching union, the Educational Institute of Scotland (EIS), condemned the decision to “privatise” the service, saying it had been “forced through with little or no meaningful consultation”, and that it would “completely alter the employment status” of the instructors.

There is also a legal question over the decision, focussed on whether local authorities are obligated to provide music tuition under education laws.

A report by council officials said a review of the legality was carried out and it was found that, under the law, the local authority would be required to “retain the function” of the tuition service that relates to older pupils studying for a qualification.

However, they insisted that the arm’s-length trust can “deliver it on our behalf” by amending a service level agreement with the trust.

It is suggested that tuition of younger pupils is “non statutory”, although it would still require an updated service level agreement.

Education Secretary Jenny Gilruth. | Jeff J Mitchell/Getty Images

Alastair Orr, a brass instrumental teacher in Stirling and a long- time campaigner, described the distinction as an “intellectually incoherent position”, and that all music tuition in schools should be considered “education” under the law, regardless of the age or stage of the pupils.

Campaigners point to a legal opinion obtained from Aidan O’Neill QC in 2019 which highlighted how John Swinney had made clear in 2016, when he was education secretary, that “the Scottish Government considers music tuition in schools that takes place during the course of the school day to constitute school education”.

Mr Orr is among those who have contacted Ms Gilruth in the wake of the council’s decision.

In the letter, he said: “Instrumental and vocal lessons in primary and secondary schools in Scotland are all about education.”

He added: “I understand that Section 70 of the Education Act, Scotland, 1980, may require urgent examination by Scottish ministers, with regard to the legality of East Ayrshire Council's decision to outsource its music service.

“If the council has acted beyond its powers it places the instrumental and vocal teachers involved in the transfer to the trust in an extremely difficult position, as it would seem that there would be no protection under TUPE (transfer of undertakings, protection of employment) rules in these circumstances.

“It is important that prompt clarification is provided, as there are potentially serious ramifications for music tuition, both locally in East Ayrshire, and across Scotland.”

Last week, East Ayrshire Council leader Douglas Reid said: “In the current financial climate, it is important that we are receptive to new ways of service delivery, to help us preserve resources and assets better to enhance the overall leisure and wellbeing experience.”

He added: “Understandably, there has been some anxiety and concern from staff, trade unions and key stakeholders as to the outcomes of this review, but there has been meaningful consultation throughout the review process and their feedback has been invaluable in terms of helping the review group shape the recommendations we had to consider.”

A statement from the council said: “East Ayrshire Council can confirm that all employees will be subject to TUPE (Transfer of Undertakings (Protection of employment) legislation.

“Terms and conditions of all employees will automatically transfer from East Ayrshire Council to East Ayrshire Leisure on the date of transfer. EALT has the same terms and conditions, pay and grading and policies that are applicable to local government employees. In addition, some employees from the Instrumental Music service will transfer over on SNCT conditions.

“During the consultation process, there was a review carried out over the legal validity of transferring IMS to East Ayrshire Leisure.

“The East Ayrshire Instrumental Music Service is a specialist unit within the education service that is not managed through East Ayrshire Schools. The instructors are not employed as teaching staff, and none of the staff are in classes teaching music. The majority of the work undertaken is in relation to instrumental music tuition that is supplementary and complimentary, to the teaching of music, which is part of the core school curriculum.”

A Scottish Government spokesperson said: “The Scottish Government has transformed instrumental music tuition in Scotland’s schools by funding councils to eradicate unfair music tuition charges.

“This year, we are providing £12 million to local authorities to support the continued delivery of free instrumental music tuition in schools. It is for individual councils to make decisions around their own provision.”