Official Report 347KB pdf
Agenda item 4 is consideration of the delegated powers in the Education (Scotland) Bill at stage 1.
Members will have seen the delegated powers memorandum and the briefing paper. The committee is invited to agree the questions that it wishes to raise with the Scottish Government on the powers. It is suggested that these questions be raised in written correspondence; the committee will have the opportunity to consider the responses at a future meeting before the draft report is considered.
Section 7 relates to initial assessments of the need for Gaelic-medium primary education—or GMPE—and applies when an education authority receives a parental request under section 5. When such a request is made, the authority is required to make an initial assessment of the need for GMPE, both within the area designated as the GMPE assessment area under section 6 and within the specified child’s year group. Section 7(5) provides that when, following an initial assessment, the authority is satisfied that the various conditions in section 7(6) are met, it must determine that there is a potential need for GMPE in the area.
Two conditions are set out in section 7(6)(a) and (b). Section 7(6)(a) provides that the child specified in the request and the children resident in that GMPE assessment area who are in the same year group as the specified child, and in respect of whose parents the authority holds information about demand as mentioned in section 5(3), must total five or more. Section 7(6)(b) provides that the demand for GMPE in respect of children in a different year group is at or is likely to increase to a level that the authority considers reasonable.
Section 7(7) provides that the Scottish ministers may by regulations amend section 7(6)(a) to substitute a different number for the number of children specified, and the power also enables ministers to provide that the number of children specified is to be read as a different number in the application of that subsection to such education authorities as may be specified in the regulations.
In essence, the power enables the Scottish ministers to change the threshold figure for determining whether there is demand for GMPE in a particular area that is sufficient to justify securing GMPE, or to apply different threshold figures for different education authorities. Although the power, which is subject to the negative procedure, does not alter the substance of the duty placed on education authorities to determine that there is a need for GMPE in a particular area when a certain threshold is reached, it is nonetheless significant to the practical operation of part 2 of the bill and its scope and application.
Does the committee agree to ask the Scottish Government for further justification of the choice of negative procedure for the exercise of this power, given its apparent significance and the fact that it permits the variation of the threshold figure beyond which an education authority must determine that there is a potential need for GMPE in a particular assessment area?
13:15
This is a very important issue because, as you have correctly stressed, the numbers could be significant. A level of four, five or six would not make a significant difference, but more significant changes could be made and I would certainly like to hear the explanation as to why such an approach has been taken to this fundamental matter.
Thank you.
Section 10 relates to full assessments of the need for GMPE. When, at the conclusion of the initial assessment process, an education authority determines that there is a potential need for GMPE in that assessment area, the authority must either carry out a full assessment or proceed directly to securing GMPE. When the authority concludes at the end of the initial assessment process that there is no potential need for GMPE in the area, it is not required to take any further action. However, it may still exercise its discretion and either undertake a full assessment or proceed directly to securing GMPE.
The full assessment procedure requires the education authority to consult the bodies specified in section 10(3), and it must then decide whether to secure the provision of GMPE in the particular assessment area. Section 10(7) sets out a list of matters to which the education authority must have regard in making its decision. In addition to the matters specified in the list in section 10(7), the authority must also have regard to any other matters that it considers to be relevant to the decision.
Section 10(8) provides that the Scottish ministers may, by regulations, modify sections 10(3) or 10(7), and they may also make such other modifications of section 10 as they consider
“necessary or expedient in consequence of any modification of”
section 10(3). That power is subject to the negative procedure and permits the modification of primary legislation.
Does the committee therefore agree to ask the Scottish Government why it is considered appropriate for the power in section 10(8)(b) to be subject to the negative procedure, given that it permits modifications to primary legislation, the nature of which is not specified beyond the requirement that ministers consider them to be
“necessary or expedient in consequence of any modification of”
section 10(3)?
Members indicated agreement.
Section 12 enables the making of regulations to extend the provisions of part 2, which relates to GMPE, to early learning and childcare. At present, part 2 applies only in respect of primary school education: a request made under section 5 requires the education authority to assess the need for Gaelic-medium education only in primary schools.
The power is subject to the negative procedure, except when it is exercised to make textual modifications to primary legislation. The power would permit a request made under section 5 to be treated by the education authority as a request to assess the need for Gaelic-medium education in its area in respect of the duty to provide early learning and childcare.
Section 12(4)(a) provides that regulations made to extend part 2 to early learning and childcare may modify part 2, the Education (Scotland) Act 1980 or any other enactment, while section 12(4)(b) provides that such regulations may provide for any provision of part 2, the 1980 act and any other enactment to apply with or without modifications. The power is generally to be subject to the negative procedure but, when it is exercised to make textual amendments to primary legislation, the affirmative procedure will apply.
The extension of part 2 to early learning and childcare would represent a significant departure in policy terms from the position under the bill at present, as the present assessment process applies only in respect of primary education. Does the committee therefore agree to ask the Scottish Government for further explanation as to why the power is not subject to the affirmative procedure in its entirety rather than to the negative procedure when regulations made in its exercise do not make textual amendments to primary legislation?
Members indicated agreement.
Thank you. Our next meeting will be on 12 May.
Meeting closed at 13:19.