Standards in Scotland's Schools etc Bill
We move to item 3, which is the report from the Equal Opportunities Committee on the Standards in Scotland's Schools etc Bill. We have Johann Lamont's paper in front of us, which gives an outline of what the committee is proposing.
Johann, do you want to add anything?
I will speak briefly, and then Shona Robison and Malcolm Chisholm may wish to add something. It is significant that the debate on equality in education is not considered by some to be of as high a priority as the item that went before, although that does not come as any great surprise to people involved in equality issues. It was interesting to see the room emptying as the debate on equality started.
We welcome this opportunity to speak to the Education, Culture and Sport Committee. Obviously, the role of the Equal Opportunities Committee in the legislative process in the Parliament has not yet been fully clarified. However, we felt it was important that we should be given the opportunity to have an input in the education bill. As you will see in the report, we took evidence from a number of bodies.
Our clear message is to re-emphasise the importance of mainstreaming in education or anything else. We have a clear role in terms of equality proofing. However, we feel that all legislation should be equality proofed within departments before it is brought forward. That system may not yet be working as effectively as it might. Malcolm Chisholm will expand on those points.
In debating the technical language of education—indicators and so on—we sometimes lose sight of the potential of education to deliver equality. We took evidence from groups representing young people with special needs and from groups representing black and ethnic minority parents, who felt that they were often excluded. The powerful message was the importance of delivering social inclusion within education as well as through education. I hope that this committee will take that on board.
We also make a plea that this committee grapple with the complexities of inequalities in schools and in education generally. There can be a temptation to look for quick solutions. One example of that is seen in attempts to explain the relative attainments of boys and girls. There seems to be a desire not only to explain why girls fail in terms of their being to blame for their own failure, but to explain why boys fail in terms of women being to blame for that as well, because there are too many women teachers. The evidence that we took from the Equal Opportunities Commission and the Educational Institute of Scotland addressed those points, and I hope that you will too.
We want to get across the fact that most of the evidence that we heard was critical of failures to address equality issues directly in the legislation. We realise that it is early days for mainstreaming, but we should report those criticisms.
I recommend that members read the submissions that we received from the Equal Opportunities Commission and the Commission for Racial Equality. Referring to the consultation on the education bill, the Equal Opportunities Commission said that:
"It is . . . disappointing that there is no evidence in the current consultation that the Commission's key recommendations on equality have been considered, and indeed there is no explicit reference to equality, other than in Schedules 2 and 3 covering minor amendments to the Sex Discrimination Act."
In its response to the consultation, the Commission for Racial Equality raised a point about the Scotland Act 1998 that is relevant to this debate:
"The Scotland Act 1998, under Schedule 5 places an obligation on the Scottish Parliament to promote equal opportunities. We anticipated that the purpose of this clause would be to enable both the Scottish Parliament and the Executive to further their commitment in this regard and translate the stated commitment to equal opportunities and mainstreaming into practice in a devolved matter using the opportunity provided by new legislation. It is regrettable that the Bill makes no explicit statement to this effect, or indeed reflects the provision contained in Schedule 5 of the Scotland Act."
The kinds of concerns that were being raised by the Commission for Racial Equality, the Equal Opportunities Commission and others were very similar, and that is why it was easy to draw up general recommendations that addressed the concerns of all those bodies. I was responsible for the structure of the report, and it may not be ideal. However, a key recommendation at the beginning of the report is that the bill should place
"a duty on Ministers and local authorities to promote equality of opportunity for all in education."
A new section that embodied that might be considered at the committee stage of the bill. I think that some of you have seen a draft proposal from the Commission for Racial Equality. It has consulted the Equal Opportunities Commission—again, all those bodies are working together. Some of our recommendations would not need to be embodied in legislation—some would be a matter for guidelines—but legislation should address that key recommendation directly.
I would like to highlight a couple of pieces of evidence that the committee heard.
One powerful piece of evidence was from the Equity Group, which is a body that represents the rights of parents of children with special needs. The bill establishes the right of the child to receive education, but there is no explicit obligation to mainstream equal opportunities in the delivery of that right.
In our report, we recommend that the bill should establish
"the right of every child to be educated in a local mainstream school and receive individual support when and where necessary"
and that it should place
"a duty on Ministers and local authorities to promote equality of opportunity for all in education"
and that it should make
"specific reference to equality in its statement on the purpose of education."
One reason why that is particularly needed is that there has been no increase in the number of children with special needs in regular or mainstream schools in Scotland in 13 years.
The Commission for Racial Equality made a powerful presentation to the committee. As Malcolm Chisholm said, the draft bill makes no reference to matters of racial equality. It would be useful if such a reference were included in the bill. The new ministerial duty in the draft bill to secure improvement must refer to schedule 5 of the Scotland Act 1998 to ensure that equal opportunity requirements are met by public authorities.
The report is helpful and complements the work that we have done at stage 1 of the bill.
The report says that every child should have the right to be educated in a local mainstream school. The bill as published moved on from the draft bill by creating a presumption that that would be the case. Does the bill go far enough?
We have had a debate about that. The conclusion that we came to was that, to maximise the benefit to parents, there should be a right rather than a presumption. A presumption seemed to have qualifications attached. There are practical difficulties involved, but if the right were asserted, it would then be up to local authorities to manage that right in consultation with parents. The use of the term "right" would give parents the maximum amount of influence.
Part of our job is to comment on the policy memorandum that accompanies the bill, as well as the bill itself. There is a section that talks about the effect of the bill on equal opportunities, human rights and so on. Is it fair to assume that you think that the policy memorandum is deficient in that area?
Yes.
I suspect that people consider equality proofing issues after the event to see that nothing is contrary to equal opportunities considerations. We are saying that the whole business has to be more proactive. I imagine that we will eventually have an equality unit, but the policy memorandum takes a minimal approach.
I want to ask about the matter that Nicola Sturgeon talked about. In regard to mainstreaming, I do not think that the worries are about resources so much as about whether mainstreaming would be appropriate for all children. Did you take evidence about that? Is the right to mainstream education enforceable by the parents on the child's behalf, or does the local authority have a say? Did you explore what would happen if a child is so disruptive that the local authority does not think that it is in the best interests of the child or the other children in the class that the child remains in mainstream education?
It is an issue of choice. Some parents might choose not to have their child in mainstream education for whatever reason.
We explored some of the practical difficulties as well. There would have to be regular contact between parents and the local authorities as to how the child was doing. If it was felt that it was not of benefit to the child to remain in mainstream education—or special education, if that were the case—discussions would have to take place and there would have to be a format for them.
We wanted to challenge the presumption that is sometimes made. It is easy to say that we should find a solution to the problems that a child might be having in mainstream education; it is more difficult to challenge the assumption that a child with a special need cannot be sustained in mainstream education. We need to shift the balance of the debate and generate a level of trust and openness between parents and the local authorities.
The Equity Group emphasised that it wanted the youngsters with whom it is concerned to be in mainstream education. It said that that move would be resourced partly by the fact that the special sector would diminish. However, some parents opt for an alternative placement for their child. Those delivering the education service must, therefore, recognise that a balance must be struck.
We want to put the burden of proof the other way around: it must be absolutely established that the mainstream placement is inappropriate. Parents should not have to prove that their child might be able to be sustained there if resources could be found.
If a child has a right to a mainstream place—which is how it should be and what I thought the phrase, "presumption in favour of" ensured—does that mean that the parents could keep the child in mainstream education despite the fact that that might not be in the child's best interests? I can think of lots of examples when that might happen. Who enforces the right: the local authority or the parents?
One concern that we have is that, unless the child is properly resourced—and that might mean their having someone with them at all times—the child might fail in mainstream education. We should consider whether the child could thrive in mainstream education, given adequate resources.
However, there might come a point when it becomes clear that the best interests of the child are not being served. There would then have to be on-going discussions among parents, teachers and the authorities about how the child was progressing. Inevitably, there would be problems, but if we can change the culture to an assumption that the child should remain in mainstream education, everyone will do everything that they can to keep the child in mainstream education.
I agree with your thinking but I am not sure about the conclusions that you draw. It is a question of how the legislation would be framed.
The question is not always about resources—sometimes it is about disruptive behaviour—but the question of resources is vital. All legislation that has resource implications must be examined carefully. Have you taken any evidence about the costs that might be involved, particularly in relation to things like individual support in the classroom?
It would be worth examining current provision, because the same model is not used throughout Scotland. Special educational needs are often met within mainstream schools; that is how provision has developed historically. Running an entirely parallel system may not be an efficient use of resources, and the implication that huge costs would be involved is perhaps too straightforward. If there are resources within a school to support the youngsters, that may also benefit the whole school. We did not take evidence on that, but perhaps we could pursue the point.
The Equity Group gave evidence but, as Johann Lamont pointed out, it said that resources could be transferred as special education diminishes. In some cases, children are being bused 50 miles each way daily, so there would be a long-term saving on transportation costs but, in the short to medium term, we could not rely on resources being freed up immediately.
Inevitably, there would be resource implications, but we should remember the cost implications later in life. There has been no change in the mainstreaming figures for the past 13 years, and 95 per cent of adults with disabilities are unemployed. There is clear evidence that disabled children thrive much better educationally in mainstream education than they do in special schools.
The Equal Opportunities Committee recommends first that the bill
"Establishes the right of every child to be educated in a local mainstream school".
To take up a point that Ken Macintosh was developing, the evidence that you mentioned, including the Equity Group evidence, was about children with special educational needs. However, there are also disruptive children, whom local authorities seek finally to place in other schools. If we are saying that "every child", even a disruptive child, has the right that you recommend, "local" may not be an option, particularly in rural areas. I know of many instances where children who have been excluded from schools have to be taxied to other schools, sometimes more than 20 miles away.
Does your recommendation apply in particular to children with special educational needs? Or did you consciously not define that in your recommendation, because you really mean "every child"? Your evidence focused on one set of children, but your recommendation is very general and would cover all children. I want to identify what you are really after.
If you take a mainstreaming approach, it is perfectly reasonable to assume that every child, regardless of their needs—whether those needs are special educational or other needs that have created difficulties for them in the education system—should be embraced within the legislation. While some young people's disruptive behaviour can be attributed to special educational needs—that is a complex matter—some of our young people's experience in our communities can explain very well why they have difficulty in settling in schools.
We did not take particular evidence on this point, but there is a view that if you can sustain a child within their local school in their local area, you are more likely to be able to sustain them in school, and that, in fact, the disruptive effect of exclusion makes it less likely that they will settle elsewhere. As someone who comes from that background, I would welcome committees exploring that issue, particularly in relation to what people sometimes refer to glibly as disruptive behaviour, as if that were something very different from special educational needs. It is reasonable for the parents of young people with what might be defined as special educational needs to know that their rights are embraced along with those of all youngsters.
So you would not consider amending your recommendation to read "the right of every child of special educational needs", but would leave it open, as it is now?
I would leave it open. Educational needs can be different in different circumstances. Those who might be defined as having special educational needs form the one group who currently have obvious alternative provision.
I also wanted to clarify what evidence you have on the impact of incorporating your recommendations. When pressed earlier on costs, your answer seemed to be maybe. In response to my earlier questions, you appeared to have no particular evidence.
I would sign up, as many of us would, to much of what is in your report, but some of the evidence, such as the statement that there has been no increase in mainstreaming in the last 13 years, conflicts with my own, albeit anecdotal, experience. I do not think that I am alone in that. Is there any conclusive evidence, or are you presenting your report as a wish list, the impact of which we cannot evaluate?
It may be useful if we pass the Equity Group's written evidence to the Education, Culture and Sport Committee. It included many statistics, and showed that there had been no significant shift into mainstream education for 13 years. It also showed how much better those children who go into the mainstream fare educationally. The information is all there. We could arrange for it to be passed on.
I believe that that information has been circulated to members, but in case they have lost it, we will circulate it again. Two more members want to speak, then I will wind up this item as we are running very late.
If you remember, I attended the Equity Group conference on behalf of the committee, so I could supply reference material on many of Brian Monteith's questions if it is wanted.
Okay.
My Liberal credentials draw me in one direction, but my knowledge of practical things in schools makes me worry about making a binding commitment that may cause a great deal of difficulty over resourcing, the accessibility of existing buildings and so on.
The resource implications cannot be easily ignored. Big, practical difficulties are involved. My heart tells me that we should be as strong as possible in our wish to promote the rights of every child, but I would like to leave some flexibility for practical considerations. Saying that makes me feel guilty, but we cannot ignore the implications and the potential for hassle and conflict among authorities, parents and children. Obviously, my desire is to be on the side of the child—
Was that a comment rather than a question?
It was indeed. Do you agree—
We will have to leave it at that. I will ask Johann Lamont to wind up on behalf of the representatives from the Equal Opportunities Committee.
Ian Jenkins's comment reflects the challenge that mainstreaming and equal opportunities present to everybody in terms of delivering services. If it was our own child who was battling with a local authority, we might feel that the hassle was worth while.
We discussed that challenge in the Equal Opportunities Committee, but we were keen that the right for every child should be put at the heart of the bill and that we could consider later how that might have to be pulled back. If we do it the other way round, families throughout Scotland will have to make the case for their youngsters over and over again, because the presumption goes the other way. The focus would then be on the young person being the problem, whereas we should be focusing on how the service can meet the needs of all our young people.
I thank the three members of the Equal Opportunities Committee for attending.
On a point of order. We said many months ago that we should be given updates on current business on our agenda. In the light of all that has happened on Hampden over the past four days, I am disappointed that that matter has not been on today's agenda. I would like to know whether we can discuss the matter and bring ourselves up to date today.
The omission of Hampden from the agenda for this meeting was unintentional. I appreciate that you should have had the opportunity to raise the matter. Ten minutes ago, I was handed a letter from the minister, which I intend to circulate to members. It brings us up to date and reiterates the minister's commitment to attend this committee as soon as there is something more concrete to report. I hope that that will satisfy you.
As I have not seen the letter, I have to say that that does not satisfy me, and that it should not satisfy this committee. Given the shifts, claims and counter-claims that there have been over the past four days, it is surely time that this committee began an investigation. Four months ago, we were offered a report when the matter was done and dusted. I hope that that is no longer acceptable to this committee.
I am not satisfied with the fact that Hampden cannot be brought up properly as an item of business. I attempted to contact you, convener, and left messages with the clerk, but by the time I had a short discussion with you yesterday, it was too late.
This has been an on-going saga, in which there have clearly been developments. The matter was mentioned at our previous meeting. Therefore, I ask that as an item on the agenda for our next meeting, there should be not just an update, but a discussion on whether we should institute a committee of inquiry into the background to the funding and to the rescue package, whether or not that package is rejected. All the evidence is that it will be rejected by that time. We may be in a far deeper hole after announcements by the administrators.
I associate myself with what Fiona McLeod has said. Rather than labour the point, I suggest that the letter be circulated and be placed on the agenda as a substantive item. It may be that by next week we will know more about what is happening and will be able to have a more meaningful discussion.
We are all aware that the situation seems to be changing daily, if not more often. I assure you that Hampden will be on the agenda for next week. The item will not just be an update, but an opportunity to discuss how the committee should progress.
Meeting continued in private until 12:34.