Education and Skills Committee

Meeting date: Wednesday, February 22, 2017

Official Report 553KB pdf

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Subordinate Legislation

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Schools (Consultation) (Scotland) Act 2010 (Modification) Regulations 2017 [Draft]

The committee has two pieces of subordinate legislation to consider today. For the benefit of people watching, I explain that each instrument will be dealt with under two agenda items. Under the first item, the committee will take evidence and have the opportunity to ask questions of the minister and his officials, and under the second item, there will be a debate on a motion that seeks the committee’s recommendation of approval of the instrument.

We start with consideration of the draft Schools (Consultation) (Scotland) Act 2010 (Modification) Regulations 2017. I welcome Mark McDonald, the Minister for Childcare and Early Years. With him from the Scottish Government are Jeff Maguire, policy manager, and Lorraine Stirling, principal legal officer. I understand that the minister wishes to make an opening statement.

Thank you for the opportunity to address the committee in connection with a proposed further suspension of specific consultation requirements for local authorities under the Schools (Consultation) (Scotland) Act 2010.

As the committee knows, we are committed to nearly doubling the current early learning and childcare entitlement to 1,140 hours per year by 2020. That expansion will require a substantial increase in the workforce and infrastructure, and the draft Scottish budget for 2017-18 proposes allocating £61 million to support the first phase of that expansion. Additionally, the expansion will require new and innovative models of delivering ELC, which will involve a rethinking and reconfiguring of provision at the local level, which we are exploring through our blueprint consultation and the delivery model trials.

The 2010 act requires education authorities to comply with a number of statutory requirements before they proceed to implement a new proposal in relation to an education authority-managed school or early years centre. On average, that process takes six to nine months. Proposals to establish a new nursery school or nursery class in a school and to relocate existing nursery schools or nursery classes are classed as relevant proposals for the purposes of the 2010 act.

The Children and Young People (Scotland) Act 2014 introduced a requirement on education authorities to ensure that 600 hours of ELC per year is made available for eligible pre-school children. That came into effect on 1 August 2014. To allow authorities to comply with that requirement, the consultation requirements in the 2010 act were suspended until 31 March 2017 in relation to the establishment of all new nursery schools and classes.

We have listened to the clear message from local authorities and their representative bodies—the Association of Directors of Education in Scotland, the Convention of Scottish Local Authorities and the Scottish Local Government Partnership—that a further suspension of such consultation requirements is needed to enable the expansion to 1,140 hours by August 2020.

Lobbying from local government has centred around the timescales that are required for such a major expansion of ELC. Under the 1,140 hours programme plan, fully developed and robust local service delivery plans will not be completed until later this year, so construction under those plans will not be able to commence until the first half of 2018 at the earliest. Only from that point on could authorities begin to meet specific consultation requirements under the 2010 act on what they propose to build and/or relocate and where, which would delay the onset of construction by another six to nine months. That could create the risk that sufficient new infrastructure would not be completed in time for 2020, given the numbers of new infrastructure projects that are required and the lead-in times that are required for construction.

It is important to emphasise that all new ELC infrastructure projects will still be subject to national and local planning procedures and laws, which will ensure that there are still statutory requirements on local authorities to plan all new ELC infrastructure in a sensitive manner that takes account of local circumstances and community views. That requirement is covered by the Town and Country Planning (Scotland) Act 1997 and Scottish planning policy, which underpin local development plans. Further, local authorities are also subject to the requirement in section 1(2B) of the Education (Scotland) Act 1980 to consult parents of pre-school children every two years about how they should provide for such children.

The draft regulations that are in front of the committee have been drafted to modify schedule 1 to the 2010 act to implement the proposal that education authorities should not be required to comply with the specific consultation requirements in the 2010 act if they want to establish new nursery schools or new nursery classes in schools and/or relocate existing nursery schools and nursery classes in schools as part of their expansion planning for the 1,140 hours. The exemption will not apply to establishment or relocation proposals that relate to primary or secondary schools, or to proposed nursery school or nursery class closures, which will still have to comply with the 2010 act consultation requirements in full. The regulations therefore propose modifying schedule 1 to the 2010 act from 31 March 2017, when the current order expires.

Are there plans to reintroduce the duty to consult on the creation or relocation of nursery schools and classes at a later date?

Once the suspension is no longer required, the option will be available to us to seek a further modification at a later date. We have not taken a firm decision on that yet. However, there are a number of means by which consultation can take place on early learning facilities under the various acts that I listed in my opening statement.

Before I open up the session to questions from members, I have a further question. Why are the changes not time limited?

The changes are not time limited because we want to keep an open mind on what might be required further down the line, so that we do not face a situation like the 31 March 2017 expiration, when we would have to come back to the committee to seek a further suspension.

I have a number of points for clarification. Why would the Scottish Government have originally proposed to suspend the requirements until 31 March 2017 if it had not thought that that was achievable? Why did it not think that it was necessary to go beyond that? Why did the Government go for a suspension at that point, given that you are now getting rid of the provision altogether?

The decision was based on the policy approach to the 600-hour entitlement, which predated our decision to expand to 1,140 hours. The policy proposal that we are currently pursuing was not the one that we were pursuing when we proposed the initial modifications.

With respect, it might be argued that the Government was pursuing a policy without thinking through the possible consequences. The Government started by looking at hours and the end time, then worked backwards. It may be of some concern that the Government is now saying that, to fulfil the current proposal, it has to get rid of another consultation process.

If I can just clarify in relation to that—

Has the Government considered the option of simply saying that the form of consultation that is identified in the 2010 act does not enhance anything? You have suggested that there are other provisions that protect community and local interests. Why not get rid of the proposal to consult across the board?

The proposal that we are taking forward on early learning centres is very different from the approach that would be taken in relation to primary and secondary schools. This proposal is specifically informed by a policy approach that is being taken to the expansion of hours at early learning centres, whereas we are not taking forward such a proposal in relation to schools. Moreover, among the consultation opportunities that I highlighted, the two-yearly consultation with parents on early learning and childcare is of course specific to early learning and childcare.

Your first point was that we have not thought through what we are doing. The 31 March 2017 proposal related specifically to our expansion to 600 hours, which has taken place. All children in Scotland are now entitled to receive 600 hours, and the proposals on that have been enacted at local level.

What we are looking at today relates to our policy to expand provision to 1,140 hours, which we introduced post the election, following the success of our election campaign manifesto. It would not have been possible for us to make provision in 2014 for a policy that we did not put to people until the 2016 election.

Would it not be realistic to match your delivery commitments to the reality of your ability to deliver them? That is the point that I am trying to make. All that you seem to have established is that such consultation does not actually add anything—for example, it is not providing protection, because you can remove it. Why would you not take the same approach for primary and secondary schools?

We have no plans to do this for primary and secondary schools; moreover, it is not the case that the consultation does not add anything. We have listened to local authorities’ concerns about the truncated timescale on which they would be forced to operate were they to have to extend consultation requirements. We have taken the decision on that basis; it is not a matter of the consultation itself being devalued.

The constraint is defined by the timetable that the Government has established.

I will ask one last question about something that is quite common in Glasgow—you will forgive me if it is not common in other places. More often than not, nursery classes are being located in primary schools. I think that we would all encourage such a campus approach, with an additional support needs school, a nursery and a primary school all at one location but, if a local authority were to develop part of its provision on that kind of campus—I accept that councils should have that flexibility—what would happen with the consultation?

Jeff Maguire will respond to that question.

There are a number of areas where local authorities have to seek clarification from their legal teams. Sometimes, the position depends on the future management arrangements for a new centre, but we have drafted the modifications in a way that supports local authorities in thinking flexibly and imaginatively about how they configure or reconfigure their early learning and childcare estate as they move towards the 1,140 hours. If we are talking about just a relocation, with the management staying in place, that is exempt from consultation, but if closures are involved, consultation will have to be carried out. The decision depends on a number of factors, including the management arrangements for the centre.

What would be your advice to a local authority that wanted to expand its childcare provision by establishing a campus that included a primary school and nursery class? Would it have to consult?

As Jeff Maguire has highlighted, that is for local authorities to determine on the basis of the advice that they receive from their legal officers.

What would your advice be, given your decision that the regulations need to go through?

It is not for me to issue advice to individual local authorities about the approach that they take locally. In making the regulations, I am reacting to correspondence and conversations that we have had with local authorities about what they see as a requirement for them. If local authorities had come to us and said, “If you remove the suspension, it will create great difficulties for us,” we would have thought carefully about that. Instead, they have come to us and said, “We need you to continue the suspension beyond 31 March 2017 to enable us to undertake the changes that you wish to see.” We are just reacting to what local authorities have told us.

Does Tavish Scott want to come in?

Johann Lamont has covered the point that I wanted to raise.

I will pursue the relevant point that Johann Lamont has raised. Part of a consultation will inevitably look at parents’ concerns; after all, the transition between nursery and primary 1 and primary 2 is an essential issue for many parents.

Minister, you said that you thought that the suspension would be disapplied with regard to primary and secondary education, but I am not sure that it could be. What if a consultation were to provide quite a lot of evidence that nursery provision was having quite a lot of effect, either through the campus set-up that Johann Lamont described or simply through points being made about provision in a local authority area? Have you thought that through?

I am not quite following where you are going.

09:45  

A consultation will inevitably result in feedback from parents and possibly teachers about what is a very important issue in Scottish education: the seamless transition between the different stages. Because nursery provision has a direct impact on what happens in the first stages of primary school, that will almost certainly lead to issues about overall provision being raised in the consultation. I am not clear from your answers to Johann Lamont about whether all that has been thought through.

It has been thought through. To enable the expansion to 600 hours, we suspended the requirement in the 2014 act; as part of the expansion to 1,140 hours, we expect local authorities to consult parents across the local authority area as they look at their likely requirements. Indeed, we have already seen that happening with regard to what parents want. We are saying that, when detailed proposals emerge from local authorities, authorities should go through the normal planning process for any proposals that require construction or extensions to buildings, but we do not want every single detailed proposal to be potentially delayed by a further six to nine-month consultation period, as that would impact on local authority timetables.

You are absolutely confident that the proposal ties in with existing legislation.

Yes.

I understand the drive behind the proposal, but will it not permanently change parents’ right to consultation? Why would it be so detrimental to place a time limit on the suspension and come back to the committee for a further extension?

To be clear, the right to consultation has already been suspended, which means that it is not there at the moment.

That is not permanent.

You are right—the suspension is not permanent; it expires on 31 March. However, local authorities have told us that they require a further suspension. As I said in my opening remarks, other methods of consultation exist in relation to early learning centres, which will drive local authority planning. I expect local authorities to consult parents—indeed, I know that they have done so—but, to allow local authorities to take a more flexible approach, the regulations will remove a six to nine-month statutory requirement to consult.

If there were a time limit but you needed more time, why would it be such a problem to come back to the committee to seek a further extension?

Are you talking about what would happen if I said, “We will apply this only until 2020”?

Yes.

We weighed up the matter and, on balance, we thought that we might want to ensure—[Interruption.] I have just been told that we should have planned for an open-ended approach with regard to the 31 March 2017 cut-off, because we did not plan far enough ahead. We are therefore leaving it open to us to carry out further planning beyond 2020. However, I have said to the committee that, if I am of the opinion that we need to come back to modify the 2010 act to reinsert the requirements, we will do so.

We move on to item 4, which is the formal debate on motion S5M-03791, in the name of the minister. I remind everyone that officials are not permitted to contribute to formal debates.

Motion moved,

That the Education and Skills Committee recommends that the Schools (Consultation) (Scotland) Act 2010 (Modification) Regulations 2017 [draft] be approved.—[Mark McDonald]

Motion agreed to.

The committee must report to Parliament on the instrument. Are members content for me, as the convener, to sign off any such report?

Members indicated agreement.

I thank Mr Maguire and Ms Stirling for their attendance, and I suspend the meeting for a changeover of officials.

09:49 Meeting suspended.  

09:50 On resuming—  

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Continuing Care (Scotland) Amendment Order 2017 [Draft]

I welcome to the meeting alongside the minister Carolyn Younie, who is corporate parenting and formal care team leader in the Scottish Government, and Liz Blair, who is a senior principal legal officer in the Scottish Government. I understand that the minister again wishes to make an opening statement.

Thank you for the opportunity to introduce the draft order, which will amend article 2 of the Continuing Care (Scotland) Order 2015 and will have the effect that, from 1 April 2017, the higher age limit for eligible persons that is specified for the purposes of section 26A(2)(b) of the Children (Scotland) Act 1995 is increased from 18 to 19 years of age. That means that, from 1 April, an eligible person for the purposes of the duty on local authorities to provide continuing care under section 26A of the 1995 act will be a person who is at least 16 years of age and who has not yet reached the age of 19.

By virtue of article 3 of the 2015 order, the local authority’s duty to provide continuing care lasts from the date on which an eligible person ceases to be looked after until the date of their 21st birthday.

In summary, part 11 of the Children and Young People (Scotland) Act 2014, which is on continuing care, and the accompanying secondary legislation stress the importance of encouraging and enabling young people to remain in their care setting until they can demonstrate their readiness and willingness to move on to interdependent living. Interdependence more accurately reflects the day-to-day realities of an extended range of healthy interpersonal relationships, social support and networks. Continuing care undoubtedly normalises the experience of care-experienced young people who are in kinship, foster and residential care by allowing strong and positive relationships between young people and carers to be maintained and reducing the risk of multiple simultaneous disruptions occurring in their lives as they approach adulthood.

The draft order will make a procedural amendment to increase the higher age limit for eligible persons from 18 to 19 years of age, as part of an agreed annual roll-out strategy to increase the higher age range in step with the first eligible cohort of 16-year-olds, until the entitlement eventually covers all young people who cease to be looked after on or after their 16th birthday, so that they will remain in continuing care up to their 21st birthday.

The draft order will revoke the Continuing Care (Scotland) Amendment Order 2016.

As nobody has questions for the minister, we will move on to item 6, which is the formal debate on motion S5M-03892, in the name of the minister. Again, I remind everyone that officials are not permitted to contribute to the formal debate.

Motion moved,

That the Education and Skills Committee recommends that the Continuing Care (Scotland) Amendment Order 2017 [draft] be approved.—[Mark McDonald]

Motion agreed to.

As with the previous instrument, the committee must report to Parliament. Are members content for me, as the convener, to sign off a report?

Members indicated agreement.

I thank the minister, Mark McDonald, and his officials for their attendance and suspend the meeting to allow the witnesses to change over.

09:53 Meeting suspended.  

09:58 On resuming—