Agenda item 2 is further consideration of the financial memorandum on the School Education (Ministerial Powers and Independent Schools) (Scotland) Bill. With us from the Executive are Rachel Edgar, the bill team leader, Isla Jack, a bill team member, and Donna Bell, the education and finance team leader. Do you wish to make an opening statement?
No. We are happy just to answer questions.
I invite questions from members.
I will step willingly into the breach. I believe that in the bill's financial memorandum and explanatory notes, there is a statement that the Convention of Scottish Local Authorities—or at least the local authorities that expressed their views—does not agree that the powers that the bill would confer are necessary. Do you want to comment on that?
COSLA and a majority of local authorities expressed that view in response to the consultation. Your question on that might be better directed to the minister.
Can you share the line of argument with us?
The bill seeks to fill an identified gap in the legislation. There is a duty on ministers to secure improvement in all Scottish schools and a gap has been identified whereby there is no specific power available to ministers to ensure that an education authority—or grant-aided school—acts on recommendations that Her Majesty's Inspectorate of Education makes in relation either to the authority or to schools.
Perhaps the question is for the lead committee or ministers to answer, but our job is to consider the bill's financial implications. If a body such as COSLA says, as it has done, that a major part of the bill is unnecessary, it is legitimate for us to consider whether, if that view is correct, we are wasting the total cost of the bill, no matter how small, not to mention parliamentary time. If you could give us a little more of a glimmering of ministers' line of argument, that would be helpful, because that was not explained in the documents that I read and I thought that it was a serious point to raise. However, I would understand if you feel that it is a policy matter on which you cannot comment.
Perhaps I can offer clarity about what the Minister for Education and Young People has said on the point. He has made it clear that he believes that although the powers available to ministers will be used rarely, it is necessary to have them in case they are needed.
The witnesses might have read the Official Report of our questioning of Her Majesty's Inspectorate of Education, in which I raised a point about the standards of education authorities rather than individual schools. Although ministers' using the powers to require action might be a rare occurrence, it is likely to be an extremely serious occurrence and local authorities might seek to go down a legal path to defend either their record or their practices. Has that possibility, which might be a burden on the public purse, been considered?
Yes. We considered carefully the responses that we received to the consultation. A number of authorities raised a concern that taking the action that would be required of them might have financial implications. However, in the vast majority of cases, authorities implement HMIE recommendations without access to additional resources. A considerable amount of money is made available to authorities to provide education in their area. We took the view that that existing funding would be adequate for authorities to do what they were asked.
There are examples elsewhere in the UK, in both education and health, whereby if there is a consistent failing, hit squads are sent in or other emergency measures are taken—there have certainly been examples of that in the health service in Scotland. Such measures might not be a direct consequence of the bill, but it might be for the minister to decide to take them. From my reading of the bill, it seems that the measures that could be taken include sending hit squads or management into education authorities or schools. That might happen if there was consistent failing and it would represent a considerable cost.
It might be worth clarifying that, in contrast with the English situation, in Scotland the action rests with the authority. There is no question of the running of schools or authorities being taken over by ministers; the power will allow ministers to require the authority to take specific action.
Is there anything in the directions that ministers would give that would preclude their having the power to instruct authorities to carry out work or to support the management of the authority, which could involve placing officers at the centre of an education authority with a direct role or seconding other staff to the authority? I could not see anything in the bill that would prevent that from being part of the ministerial direction.
At present, authorities sometimes draw in mentors or secondees from other areas to help them implement recommendations of HMIE reports.
It seems odd that you think that if the extent of a problem was such that an authority received a ministerial direction, it would be unlikely that the Executive would send in staff to support it. I believe that it would be extremely likely. If there had been consistent failings in an education authority, I would be surprised if the minister said, "You've given me no feeling at all that you're going to be able to improve, but here's a further direction, which we may well review in a few months' time." The minister would say, "Your management process has to change. Either we will put in new managers or we will have close reporting with the centre." Such action could have considerable cost, but it is not mentioned in the financial memorandum.
I want to be clear about this. The policy intention is that the local authority would be required to take the action; the minister would not be placing somebody within the authority.
Indeed, but nothing in the bill would prevent that from happening and it would be likely to happen, given existing practice and given the severity of a situation that would cause the minister to implement a direction. However, there is no consideration of it as an option. Given some of the submissions that you have received and given that we are discussing the financial implications, it would have been appropriate for you to consider it. There would be major implications if such action were taken.
In reaching a conclusion about not including implementation costs in the financial memorandum, we also considered timescales. Given the timescale of HMIE reports, we did not consider that an authority would be required to take action quickly or to shift resources rapidly from another area. HMIE generally conducts a follow-through inspection one or two years after the initial report and recommendations. In that time, the authority would be able to plan its budgets accordingly in order to meet the recommendations.
That is interesting, because it is slightly at odds with the response that I received from the inspectorate. I gave the example that in the Borders case there was a lot more regular active contact with the inspectorate, rather than just the normal cycle of contact. The HMIE witness told me that given the new regime that is in place—there is a much more regular quality contract—there would not be the same period between reviews. Therefore, the likelihood is that if action was going to be taken in a serious situation—I said at the beginning that the powers would be used extremely rarely, when there had been maladministration or severe mismanagement—the timescale would be a lot more dramatic. I do not think that the minister would issue a direction and then say, "I'll come back in two years."
I referred to the formal follow-through because the powers would be triggered after it had taken place. I agree absolutely that the model of proportionate follow-through inspections means that HMIE has much more regular contact with authorities, as do officials from the Executive. We would expect to have regular meetings with the authority in the period between publication of the initial report and the follow-through inspection. Nonetheless, HMIE has to leave a reasonable period of time for the authority to take action before it formally inspects again. That is the timescale to which I referred.
Thank you.
On the issue that Jeremy Purvis was pursuing, could it not be argued that authorities are funded by the Executive to undertake certain functions and that, if they fail to do so, there is no reason why the Executive should give them more money to enable them to do the things for which they are being paid anyway? That might be part of the argument for why the costs of the action are not included in the financial memorandum; authorities are expected to fulfil the functions anyway. We have stressed that the Executive does not expect to use the powers often. How have you assessed the costs of ministers' taking action? On what basis have you calculated those costs? How often would that action be taken—once a year, twice a year or once in every five years?
In the response to the consultation, several authorities and respondents raised issues about administrative costs, so we thought that it might be useful if we did our best to try to calculate those costs. We calculated them on a per-use basis, because it was difficult to speculate about how often the power might be used in a particular year. To satisfy ourselves that there would be no need for extra resources as a result of a knock-on effect on the HMIE budget, we assumed that the power would be used at most once per year in a school and once per year in an authority.
Thank you.