Judges condemn Holyrood’s school closures policy

Lady Paton said contruction of the 2010 Schools Act would result in loss of public confidence. Picture: Ian Ruthterford
Lady Paton said contruction of the 2010 Schools Act would result in loss of public confidence. Picture: Ian Ruthterford
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THE role of the Scottish Government in dealing with school closures has been thrown into doubt after appeal judges condemned part of the current policy as a “waste of time, effort and resources”.

• Lady Paton said Holyrood’s construction of 2010 Schools Act would result in loss of public confidence in system

• Approach dismissed as a ‘waste of time, effort and resources’

Ministers had argued at the Court of Session in Edinburgh that their role in relation to plans by a local authority to shut a school was restricted to ensuring a proper consultation had taken place. If the process had been flawed, they said, the council had to start again and make a fresh decision.

But judges ruled that, under Scottish parliament legislation, once ministers had “called in” a proposal because of a failure in the consulation, they had to determine whether the closure ought to go ahead.

Comhairle nan Eilean Siar (Western Isles Council) wants to close two primaries, Shelibost on Harris and Carloway on Lewis, and to end first and second-year secondary education at a third school, Shawbost on Lewis.

In December 2011, ministers issued call-in notices and refused to agree to the proposals. The council sought a judicial review, and Lord Brailsford ruled in June last year that the notices were defective and the council was entitled to have those and the decisions refusing consent set aside.

Ministers appealed to the three judges, arguing the 2010 Schools (Consultation) (Scotland) Act restricted their powers to checking whether the education authority had complied properly with the statutory consultation procedures. They added any failure could result in ministers withholding their consent, in which case the closure could not take place. However, they were not empowered to consider and adjudicate upon the merits of any closure.

Yesterday, the judges said that, contrary to Lord Brailsford’s opinion, the call-in notices were valid and of full effect. But in an embarrassing criticism for ministers, Lady Paton said their construction of the 2010 Act would result in loss of public confidence in the system.

“It would be a most unfortunate procedure which consisted of widespread, genuine consultation over some time, only to be met by a letter refusing consent on a stateable criticism of some aspect of the consultation procedure – the ultimate outcome being a complete dismissal of the whole consultation procedure to date, with nowhere for the council to turn but back to the beginning of a whole new consultation procedure,” added Lady Paton, sitting with Lady Dorrian and Lord McGhie.

“In our opinion, such an approach would be widely regarded as a waste of time, effort and resources, and would be seen as leaving the council and the local community undermined and facing the unattractive prospect of having to begin all over again.”

Under the judgment, ministers will make the final decision on the fate of the three schools in the Western Isles.Councillor Angus Campbell, leader of the Comhairle, said: “This clearly shows the legislation is flawed on this issue and it is imperative this is sorted. The legislation needs to be clear for local authorities and government.”