Equal Opportunities Committee, 06 Jun 2000

Meeting date: Tuesday, June 6, 2000

Official Report 140KB pdf

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Standards in Scotland's Schools etc Bill

The second item is an update from Malcolm Chisholm on the Standards in Scotland's Schools etc Bill, which will be debated on Thursday.

The situation was complicated and it remains so. Two issues will be of interest to the committee. The first—which the committee has discussed—is promotion of equal opportunities and how that is written into the bill. The second issue, which has emerged in the media, is the requirement to mainstream children with special needs. We perhaps took our eye off that matter, but I think that everyone did, because we were told during the stage 1 debate—if not before—that the bill would include a presumption of mainstreaming.

The Executive introduced an amendment on special needs at stage 2, which we did not notice and which nobody else seems to have noticed until recently. Many of us are now being bombarded by groups that say that the Executive amendment is unsatisfactory. The Equity Group, which came to see the committee, proposed an alternative amendment and yesterday Nicola Sturgeon lodged an amendment that reflects substantially that group's proposal.

I am pleased that the Executive has lodged an amendment to section 5 of the bill that addresses many of our concerns. Members will remember our previous discussion. We wrote a letter asking the Executive to ensure that the education authority statement of improvement objectives would cover the encouragement of equal opportunities as well as meeting equal opportunity requirements. The Executive has lodged an amendment, which appears on page 28 of today's business bulletin.

Section 5(2) of the bill says:

"The statement so prepared and published shall be known as the authority's, ‘annual statement of education improvement objectives'."

The amendment says that the statement shall include an account

"of the ways in which they will, in providing school education, encourage equal opportunities and in particular the observance of the equal opportunity requirements".

That certainly meets the request in our letter.

There is an issue about whether those words, or a variant of them, should be repeated in section 6. Some people feel that it is all very well for education authorities to have those objectives, but that we must ensure also that schools implement them in school development plans.

The Commission for Racial Equality has argued strongly for the inclusion of similar wording in section 6. I lodged an amendment yesterday—which also appears on page 28 of this morning's business bulletin—that suggests that at the end of section 6(2) of the bill, at line 39, we include:

"The development plan"—

that is the school development plan—

"shall include an account of the ways in which the headteacher of the school will, in providing education, encourage equal opportunities and in particular the observance of the equal opportunity requirements."

I was persuaded by the CRE that it is all very well to have a general statement from the education authority, but that we should want to ensure that every school takes action to implement that principle.

The Executive is minded to oppose the amendment. I have some notes from Peter Peacock, who says:

"We have been clear throughout the Bill that we would not place real legal burdens on headteachers."

He goes on to say:

"The School Development Plan is an annual plan on how they will develop, not how they will apply existing policy and practice."

His final point is:

"The duty on the Authority we propose is in the clear context of providing school education and therefore relates to schools already."

I am not entirely convinced by that argument and I will want to discuss it. However, we should acknowledge that considerable progress has been made on section 5 of the bill. We could discuss that before moving on to the other issue, which is even more complicated. The Executive has lodged several amendments, and the convener of the Education, Culture and Sport Committee has lodged one, as has Nicola Sturgeon. We should, perhaps, discuss that separately.

That is a good idea.

I agree with Malcolm Chisholm and welcome the amendment to section 5. I was also persuaded by the CRE's letter about section 6. The amendment will strengthen the bill and I hope that the committee will back Malcolm.

I do not know whether Malcolm Chisholm knows the view of the teaching unions about the idea of focusing on the head teacher's responsibility. It could be argued that a local authority should take the responsibility to ensure that the schools in its area act in certain ways. I do not think that that would necessarily ensure that that happened, although developing a framework that allowed schools to operate autonomously might. I speak as someone who was a bit resistant to the idea of devolving power in relation to schools to local level. Section 5 deals with many of our anxieties.

Johann Lamont makes a good point. I am not sure that the wording is perfect. In many ways, it builds on the words in section 6(2), which say that the head teacher will have an obligation to consult pupils. I should declare an interest as a member of the Educational Institute of Scotland. I would be happy to consult that organisation on Johann's point.

The amendment would strengthen the bill. I am not sure how else we would ensure that every school took on board the importance of the promotion of equality of opportunity.

I ask Malcolm Chisholm to speak to the EIS and—because the duty of promotion of equality of opportunity will be on head teachers—the Headteachers Association of Scotland.

The issue relates to how a local authority can ensure that a school pursues certain policies. Section 6 puts in place a safety net to stop schools opting out. I presume, however, that if strong guidance came from a local authority that managed its schools efficiently, that safety mechanism would not be needed. The issue is not about a weakening of the commitment to equal opportunities, but relates to how that commitment is managed. It will be interesting to see whether that comes out in the debate. I am happy to take soundings from the EIS, of which I am still a member. It would be interesting to know whether that union is particularly resistant to the idea, although that itself would not necessarily change anyone's view.

The Executive said that it would not place legal burdens on head teachers because they are council employees and it would be expected that the duties that were placed on councils would apply to head teachers. As Johann Lamont said, there would be guidance on how head teachers monitored and reported on the carrying out of such duties. Unfortunately, we will be unable to see any guidelines or guidance before we decide.

I do not know whether we will agree as a committee to support the amendment. Malcolm Chisholm lodged it to give the committee the opportunity to discuss it and to give us a holding position. I do not think that we can support it, at least until we receive more information.

The general point has been made by the Executive that real burdens would not be placed on head teachers. However, section 6(2) imposes a burden on head teachers to consult pupils who attend their schools. Those are important process issues, but I shall be guided by the committee. It appears that there is no consensus on the matter, so perhaps we should have a debate on the amendment and see how it goes.

Only two committee members have spoken. I do not know what other members think.

I agree with you, convener. I do not think that it is necessary for the committee to make a decision on this, but Malcolm Chisholm has put forward a good argument that has a sound basis. As individuals, we can all take that on board when we take part in the debate. Johann Lamont has raised an equally valid point. We should find out the teachers' perspective, which will add to the debate. I do not think that there would be any harm in that.

After a discussion with me, Malcolm Chisholm lodged the amendment yesterday because of the timetable for the bill. That has enabled the committee to discuss the issue and, possibly, to come to agreement on it. However, the committee appears not to want to do that. Malcolm, do you want to withdraw your amendment?

That question should come when the amendment is put to the vote. If it were a committee amendment, it would be up to the committee to withdraw it. As it is my amendment, it is up to me to make the decision to withdraw it. However, if I withdraw it, someone else can move it.

I take on board what Johann Lamont says. I had not thought of that aspect. It would add something to the debate to have that discussion during the debate. We will have found out more about the position of the teaching unions by then. However, as the CRE feels so strongly about the matter, it is important that we explore the matter in the chamber. I hope, therefore, that Malcolm Chisholm will not withdraw his amendment.

Members can contact the EIS individually, but Johann Lamont has said that she will do so and that she will inform members of that organisation's position.

The next part of the discussion will centre on the problem that the Equity Group has with the bill.

Other members probably know as much about the matter as I do. Shona Robison might want to talk about it and Nicola Sturgeon has lodged an amendment on it.

The first piece of evidence is on section 12A(2). The controversy surrounds the exemptions from the presumption of mainstreaming. The exemptions would occur when mainstreaming

"(a) would not be suited to the ability or aptitude of the child;

(b) would be incompatible with the provision of efficient education for the children with whom the child would be educated; or

(c) would result in significant public expenditure being incurred which would not ordinarily be incurred."

When people realised its implications, there was quite a reaction to that subsection. We have received letters from the Equity Group, and other groups are also objecting.

Partly in response to that concern, the Executive lodged an amendment in yesterday's business bulletin, which, at the end of those three exemptions or possible reasons for not mainstreaming, adds:

"and it shall be presumed that those circumstances arise only exceptionally."

One of the people who lobbied me yesterday said that that amendment was not worth the paper it was written on, but I think that it represents quite a significant change. I do not agree that it is worthless.

In today's business bulletin, a substantial part of the Equity Group's suggested amendment has been lodged by Nicola Sturgeon. It says that there should be a presumption of mainstreaming, unless that

"(a) would be incompatible with the wishes of the child and the child's parents; or

(b) can be demonstrated by the education authority not to be in the best interests of the child."

The amendment also contains provision for independent arbitration if there is disagreement between parents and an education authority.

There is another proposed amendment from the convener of the Education, Culture and Sport Committee. It suggests that "significant" public expenditure should become "unreasonable" public expenditure. Those are the options.

What was the amendment from the Executive?

The Executive amendment from yesterday—and I suppose that this is the most significant change—was that

"it shall be presumed that those circumstances"—

that is, circumstances in which expenditure was incurred that would not ordinarily have been incurred—

"arise only exceptionally."

Last Thursday, a number of representatives from the Equity Group came to a meeting of the cross-party group on children, which I convened. We allowed them to come at short notice because there was such concern about the section and because we were considering other amendments that were lodged subsequently in the name of Scott Barrie and that were supported by me. All members of the cross-party group on children felt that the Equity Group's concerns were justified, so we agreed that Fiona McLeod would liaise with that group and produce an amendment. In her absence through sickness yesterday, the amendment has been lodged in Nicola Sturgeon's name. The cross-party group on children cannot lodge amendments, but it is important to say that it is behind Nicola's amendment.

As I recall, the original position was agreed without division in the Education, Culture and Sport Committee. Is that correct? That committee did not have a debate; members agreed a position, which has now been amended.

As far as I know, that position was unanimously agreed. To be honest, I think the matter rather slipped past members. Thereafter, the organisations and the parents started lobbying quite late and the Executive's wording also came to the committee very late.

I was speaking to Peter Peacock today and, although he could not give a 100 per cent guarantee, he said that the Executive was minded to accept Mary Mulligan's amendment, which would change "significant" expenditure to "unreasonable" expenditure. That would be a big improvement.

Having heard the representatives of the Equity Group as recently as Thursday, I suspect that neither that amendment nor the one from the Executive—to which Malcolm Chisholm referred—will be sufficient to allay the concerns of groups such as the Equity Group, which feels that the door is open for significant discrimination and that section 12A will not lead to an inclusive educational agenda.

I do not think that the committee can take a position on this, as members have not seen all the information. Members will have to find out as much as they can and then listen to the debate in the chamber.

I agree with the presumption of inclusion, but I have been approached by concerned parents in my constituency. Perhaps because they do not think that the systems will be in place that would include their child in a mainstream school, they are very concerned that they might not have the choice of sending their child to a special school that they think is appropriate for their child's needs.

Choice is an issue, and the balance should be shifted so that the child and the parents have more say. If an authority picks a school that it thinks is suitable for a child, but the parents—after having perhaps taken medical advice—think that another school is more suitable, the case can end up going to appeal or to court. That can be very stressful for parents who feel that they know what they want for their child. We have to bear that in mind, and we must ensure that parents know that the presumption of inclusion does not mean that they will be forced to send their child to a school that they do not consider suitable.

During the past month or so, it has become clear that some parents are worried about all children being sent to mainstream schools because, in some cases, that might not be appropriate. We have not heard evidence on that in the committee, but I have certainly had letters from concerned constituents.

The Equity Group and others have asked that the balance of responsibility be shifted towards the parents, rather than towards the local authority. At the moment, people think that the assessments that are carried out on children before they go to school are carried out to prevent them from going into mainstream schools. We need to get away from that. However, that is not to say that a child should be forced to go into mainstream education regardless of his or her circumstances.

All the amendments seek to get the balance right. However, I do not think that anybody—whatever their opinions on the issue—intends to force children into mainstream education if the child, his or her parents or the education authority thought that that would be suitable.

The committee has spent a fair amount of time discussing the matter. We took evidence from the Equity Group and I wonder whether we should try to reach consensus on the amendment that the Equity Group backs. The group has a strong case. Part of the reason for that is that the Executive's amendment—although welcome—has been lodged very late. The Executive has shifted its position very late, and—given that we have had so much time to discuss the issue—I can see why that is unacceptable to the Equity Group.

From what members have been saying, I sense that there might be consensus on support for the Equity Group's amendment.

Is the Equity Group backing Nicola Sturgeon's amendment?

Yes.

I did not sense consensus on Nicola Sturgeon's amendment, but I might be wrong.

We did not take evidence from groups that wanted the special school system to be maintained. There is no doubt that, underpinning a lot of the arguments of the Equity Group, was the belief that in the longer term it would be possible to fund more young people in mainstream schools because the special school system had been reduced. I do not know whether that would be possible.

To be fair to the Executive, although it has certainly shifted its position late in the debate, so too has the Education, Culture and Sport Committee. That committee had taken a view, and its amendments emerged only very late in the day. Those shifts in position have clearly happened in response to the anxieties of groups such as the Equity Group, and that has to be welcomed. In the debate, we will have to judge how far the position has changed and how far that will go towards addressing parents' anxieties.

I agree with Michael McMahon that we must find the right balance. Whatever we decide, the power must be shifted to the parents and to the young people themselves rather than to the local authority.

Before I decide how to vote tomorrow, I would like to speak to the Equity Group and to some of the people who have written letters about the most up-to-date position.

I had a phone call last night from a constituent who is involved with the Equity Group and Children in Scotland. They told me that there would be a demonstration between 5 pm and 8 pm tonight at the Mound entrance to the Parliament. They would like MSPs to go along.

We have spent a great deal of time talking to organisations such as the Equity Group. It concerns me that something so important seems to have escaped this committee and the Local Government Committee until quite late in the day. That is why amendments are being lodged now. Is there something that we could have done at an earlier stage to pick up on that?

To be fair to the committee, the position in relation to the Equity Group was reported in full to the Education, Culture and Sport Committee. I think Shona Robison would agree with Malcolm Chisholm and me that we did not get the warmest of receptions at that committee. However, it was articulated clearly that that committee would have to decide on the argument whether a young person was suitable for mainstreaming.

The Education, Culture and Sport Committee seems to have taken a view, which is, in a way, welcome. I presume, because of the strength of feeling among those who are most directly affected by the matter, that the Executive is shifting its position. That is also welcome. There has been a clear shift in the positions of the Education, Culture and Sport Committee and the Executive. That did not happen before, but not for want of being told. We were explicit about the matter. There was a lot of anxiety at that stage about management, finance and so on.

It is probably an indication of how much more aware of equal opportunities the subject committees should be. Although we can send representatives to other committees to make submissions, those committees should be taking evidence from equal opportunities organisations. They could pay more attention to the matter in the early stages of a bill's passage.

I do not know whether we can agree on a committee position today. I get the feeling that members would like to speak more to some of the organisations that are involved before they decide. Some of the points could come out in debate and people can decide tomorrow what they will do.

Is that agreed?

Members indicated agreement.