John Swinney ‘acting illegally’ on teacher numbers

John Swinney has threatened councils over teacher numbers. Picture: Getty

Deputy First Minister John Swinney has been accused of acting illegally by threatening to cut funding to councils unless they give a “clear commitment to protect teacher numbers”.

The Convention of Scottish Local Authorities (Cosla) said it now has legal advice suggesting it could take the Scottish Government to court on the grounds Mr Swinney’s actions are “coercing” councils to pursue central government policy. The legal advice suggests the government has breached a legal obligation to consult with local authorities.

Scotland’s councils have already been forced to sign up to the Nationalist government’s flagship policy of a council tax freeze during the SNP’s time in power – a measure critics say has starved authorities of cash to fund frontline services such as school staff.

However, Cosla believes SNP ministers have gone further with the latest restrictions, which mean councils will lose cash if they cut teaching staff numbers or increase the ratio of pupils to teachers in their area.

Ministers last night insisted the “conditions of the offer will not change” as the government and Cosla appeared to be locked in an increasingly bitter dispute over the funding deal.

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Rory Mair, chief executive of Cosla, said that any potential legal action over the issue was “down the road from our point of view” and called on Mr Swinney to “get back round the table with us and negotiate a deal”.

However, he refused to rule out the prospect of a legal challenge against ministers and suggested that such action would be likely to happen when the new school year begins in August. Any court challenge to the Scottish Government from local authorities would be the first move of its kind since the creation of the Holyrood parliament.

Mr Mair said: “We’ve now taken legal advice which suggests the government have a case to answer about the legality of their behaviour over the teacher number issue and the imposition of this deal.

“I don’t think our first port of call would be to go to legal action, our first port of call is to go to government and say these are the questions you’ve got to answer, we expect you to come back round the table and answer them.”

Local government is to receive some £10.85 billion next year, with about £5bn going on education, as part of Mr Swinney’s budget for 2015-16.

However, Cosla has said it was “outraged and appalled” when Mr Swinney said councils had less than two months to state a commitment to use £41 million to support teacher employment or face having their share “clawed back”, under the SNP government’s spending plans.

Mr Swinney, who is also finance minister, threatened councils with a “further clawback” of an additional £10m fund that will be made available next year on top of the £41m, if they continue to refuse to sign up to the deal on teacher numbers.

The minister said he had no alternative but to do this because Cosla had not been able to agree to the government’s “fair and generous offer”.

Mr Mair said the legal opinion received by Cosla suggested the government may have acted illegally by failing to properly consult with councils on the policy.

In a letter to council leaders in October, Mr Swinney said the government wanted teacher numbers to be maintained “in line with pupil numbers at a national level”.

Mr Mair claimed the government has changed this without consultation, so all 32 local authorities have to maintain both the number of teaching staff they employ and their pupil-to-teacher ratio

He insisted the government is required “by statute” to consult on how the budget process is carried out, but said the first authorities had heard about this change was at a meeting on 27 January.

Councils raised concerns about this days later, on 2 February, Mr Mair added.

Mr Mair said: “We believe the government haven’t behaved reasonably and on taking expert legal advice we believe there are four legal challenges the government have got to explain with regard to the way they have behaved.

“We think the whole approach the government has taken may be considered ultra vires in the sense that the parliament has set out the purposes for which the local government finance order is to be used.

“It is to be used to finance local government services. It is not used by the government to coerce local government into doing things we don’t want to do.

“We’re not saying government shouldn’t ever get its way, but the way it gets its way is to negotiate. What it isn’t allowed to do is to use the local government finance order for their getting their own way – the parliament has not given them that power.”

He argued: “Having told councils how the budget is going to be constructed you can’t just change that without consultation, and we had no consultation on this change. This deal in parliament was simply imposed.”

Cosla also said its research showed there is no link between how well youngsters perform in exams and the pupil-to-teacher ratio. Mr Mair said: “We’ve been saying for three years we do not believe teacher numbers is a good indicator to be used as a measure of performance in an education system.”

On 4 February, Mr Swinney “went to parliament and told parliament we weren’t going to reach an agreement and they were imposing a deal”, he said.

“Whatever consultation had gone on about the rest of the budget, no consultation went on about this. As far as we’re concerned that isn’t just rude, it’s also not a legal way to behave under the statutes that govern the way in which the government was allowed to operate the budget process.”

He went on to claim that the government has to “demonstrate reasonableness” throughout the budget process, but added: “Our view is that this new deal, in which each council has to maintain the number of teachers it had last year and maintain pupil-teacher ratios, is not a reasonable deal.”

However, a Scottish Government spokesman, speaking ahead of this week’s talks with Cosla, insisted Mr Swinney had acted legally.

A Scottish Government spokesman said: “A further meeting between the Scottish Government and Cosla is planned for next week, but ministers have made clear that the conditions of the offer will not change.

“Ministers have acted legally at every stage, and it is unclear which regulations Cosla believe sets out that Scottish ministers can or cannot act in this way.

“Ministers are obliged to consult before the annual Local Government Finance (Scotland) Order is laid before parliament, which they did in the local government finance circular last December.”