Item 2 is further consideration of the School Education (Ministerial Powers and Independent Schools) (Scotland) Bill. We will hear more evidence from witnesses, whom we are pleased to welcome. Our first panel consists of Anna Fowlie and Councillor the Rev Ewan Aitken from the Convention of Scottish Local Authorities; and Margaret Doran from the Association of Directors of Education in Scotland, who are all old friends in this context. I invite Ewan Aitken to say something to start off with.
We find ourselves in a strange position with regard to the School Education (Ministerial Powers and Independent Schools) (Scotland) Bill. Over the past few years, we have been able to develop a positive relationship in the sense that we are able to influence and reflect on policy and policy proposals. The relationship between policy makers and service deliverers has been strengthened greatly; I argue that that has been one of the real benefits of the creation of the Scottish Parliament.
Does Anna Fowlie want to add anything?
No. I am happy with that.
The Association of Directors of Education in Scotland welcomed the Standards in Scotland's Schools etc Act 2000, primarily because it defines education clearly as a right for all Scotland's children, but also because of the clarity that it provides on the role of each stakeholder to promote improvement and raise standards. As a consequence, we regard the proposal to give ministers powers to intervene in certain circumstances as unexceptional; to some extent, it is unfinished business from the 2000 act. If we accept—as we must—that the minister, Parliament, local authorities, directors of education, head teachers and school boards all have duties to promote improvement, we need to be clear about what action they should take if that improvement is not forthcoming.
You raised a number of important wider issues, such as the process being less important than the substance of what we are doing. I want to be clear about your position on the bill. I think that you said at the beginning that your association supports the bill, but a good deal of what you said after that seemed to be critical of the circumstances in which the powers in the bill might be exercised. Does the ADES support the ministerial powers of intervention in the bill?
I said at the beginning that we support the Standards in Scotland's Schools etc Act 2000. The bill is about completing that act and in that sense, it is logical and makes sense. Our organisation is committed to improvement; I would even suggest that we are an improvement agency, given our active engagement and partnership working with HMIE, the Education Management Information Exchange and the Virtual College on staff development for senior officers. We are therefore committed to ensuring that the system works.
I follow that up with a question for Ewan Aitken. The Executive has a role in relation to standards and monitoring in a number of different areas. Given that the proposed powers would be exercised in exceptional cases and only after reports from HMIE—that is an intrinsic part of the arrangement—will you clarify why local authorities regard the bill as a threat to their democratic mandate? The interrelation between authorities and HMIE is quite an important issue.
We cannot envisage how the relationship between an authority and HMIE, in particular, could break down so completely that the proposed additional powers would need to be used. As Margaret Doran clearly pointed out, a series of positive relationships already exists in the process. HMIE does not sit in a distant place from which it runs in, has a look and then runs out again. Conversations take place constantly between those who provide education and those who are responsible for quality assurance and inspection. That relationship would have to break down completely for the power to be used. We cannot envisage that, which is why we wonder whether there is another agenda behind the proposals. We would realise that the relationship was breaking down long before we reached a situation in which special powers needed to be used for a particular school.
Perhaps the argument is that if the relationship has not broken down, the power would not be used, but if an HMIE report—and all the things that go with it—in effect certify that the relationship has broken down, there would be no problem with the power.
Our time and effort should be put into ensuring that the relationship does not break down, rather than into providing powers that we hope would never have to be used. If there are structural pressures on the relationship—I do not think that that is the case and I echo what Margaret Doran said about the positive relationship between authorities and HMIE—and the relationship is breaking down, we should concentrate on that, as opposed to on having in the back cupboard a power that we could pull out.
COSLA's written submission says quite bluntly:
As I said, I do not see a gap. We have created a system of checks and balances that uses HMIE's inspections of schools and education authorities—that should ensure that any problems are followed up long before we need central action. We need to work on the series of relationships, rather than create a power in the background that says, "If you get it wrong, we'll come right on in."
ADES has said that there is a gap in the legislation. What is it? Moreover, why does it need to be filled if the bill's other objectors have said that the Education (Scotland) Act 1980 already covers the situation?
I can see the technical reasons for the legislation. I regard it as the logical end of an argument: what would one do if a school did not meet HMIE's recommendations? However, I have spent all this time describing all the cautions around the bill in order to show that it does not acknowledge the fact that so much good practice goes on in Scotland. It appears to focus only on failure instead of acknowledging and celebrating success, which is perhaps unfortunate. In that regard, I am not just talking about the amount of parliamentary time that is being committed to discussing intervention and the publicity that is associated with that.
Although it can be argued that the proposed legislation is technically logical, it is still not clear whether it is worth spending parliamentary time and effort discussing it and putting at risk the positive relationships among local authorities, HMIE and the Executive. Is COSLA's central objection more to do with the fact that the bill might do more to damage that relationship than it would to resolve certain problems?
The bill's introduction implies a lack of trust. We believe that we have a trusting and positive relationship that has made real progress so we wonder why we need the bill. It might be the logical conclusion of a theoretical argument; however, in the real world, although there are constantly many new things to do and although improvements always have to be made, any approach should be based on positive relationships. In that regard, the prospect of the legislation is hanging in the background and could undermine current relationships. As I said, our position needs to be seen in the context of COSLA's concerns about the wider political picture in relation to the proposed transport authority and single correctional agency and other similar proposals.
We have not yet heard any examples of cases in which such legislation might have been used; indeed, I understand that none of the Executive officials could give us any. However, they argue that the bill is needed now to address any future situation and to act as an end-point in the inspection process. What would act as an end-point if the bill were not passed?
As I said, I can see the technical need for the legislation. However, it is everyone's duty to secure improvement; if a school or education authority does not respond to HMIE recommendations, someone somewhere is already responsible for intervention. If we followed the argument to its logical end, the legislation might well be required at some point. That said, given the quality of the current inspection process and the fact that quality assurance processes in authorities and schools are improving, I imagine that it will not be needed.
The 1980 act already contains powers that should not be inadequate in addressing the extreme situation that Margaret Doran highlighted. However, the possibility of such a situation happening is so remote, that we should perhaps focus on preventive measures that would ensure that it did not happen in the first place.
In its written evidence, COSLA says that the provisions in the 1980 act are more severe than those in the bill. Given the choice, would you rather retain the provisions in the earlier act or have this new piece of legislation?
We have a better understanding of the provisions in the 1980 act because they already form part of our relationship with HMIE and the Executive.
It is COSLA's view that the Local Government in Scotland Act 2003 provides for a best-value regime that has the powers to address all the issues that we have talked about today, quite outwith education legislation. The 2003 act is supposed to cover the whole of local government, providing the power to scrutinise decisions, to examine failures and to ensure continuous improvement. It is all already there.
For the avoidance of doubt, could you explain the process under the 2003 act? Does the act cover failures by the education authority? If so, what would happen in those circumstances?
As the consultation paper says, the bill proposes a parallel process that mirrors the existing process. That is why we are asking why we need another process. If an authority is failing in any of its services, the Executive can ask why; it can also examine the situation. The authority will get another chance, and a scrutiny element is involved. I do not know all the technical details, but it is a two-stage process. The authority will be open to scrutiny and must justify its failure to deliver a service and show how it will deliver that service to the standard required.
COSLA's response to the consultation states:
Because I have yet to work out a scenario in which the Executive thinks that the powers might be used, it is difficult to understand the triggers that people would be looking for before the Executive would say, "Right. It's all over. We're coming in." We are concerned that the triggers would not be clear and that we would not see them. Nobody has said, "If A, B, C, D and E don't happen, we will use these powers." We are concerned that the powers would be used before all the criteria were met—or, indeed, not met. It is difficult for me to envisage a scenario in which the powers would be used. We are concerned that they would be used before all the other things had happened, which would undermine our ability to deliver as we have been asked to deliver.
You can understand our difficulty. If you say that you cannot envisage a scenario in which the powers might be used, it is hard to understand your concerns.
As I said, our concerns must be seen in the wider political context of why the powers are being held at the centre. We understand the nature of the relationships and how we monitor and continually reassess what is going on in terms of quality assurance. We understand the role of HMIE; we also understand that we are under the HMIE inspection regime and that a series of things can happen. However, it is difficult to see why the powers are being held back. It feels as if we will, at some point, have to send in the cavalry, but if that is triggered in some way—if there has been a failure to notice the breakdown in relationship that triggers such a response in the first place—there could be a sense of failure all round. We need different responses to the breakdown of relationships, as opposed to wheeling in that response to a specific school.
The powers already exist, you say, under the 1980 act, and there was no evidence of your being concerned about them.
We live with the fact that those powers exist, but we do not understand why additional powers are needed. That suggests that there is still a sense in which local government cannot be trusted to do the job that it has set out to do.
I would like to move on a bit and get to your current position on the existing legislation. Can you take us through the process that you have put in place under the existing legislation to deal with a school that is not complying with HMIE recommendations? I ask COSLA to answer first, from the perspective of the local authorities, and Margaret Doran to answer second, as a director of education.
Our job would be to work with directors to deliver.
For quality services to be provided to children—that is what it is all about—there needs to be a compelling story in a school or an authority. It is all about the culture of the school, which is difficult to measure. There will be a commitment from everybody in the school, in the community and throughout the authority to be loyal to that compelling story. That is the ethos and the starting point for an effective organisation, whether it is a business, a local authority education service or a school. That creates the climate for mutual trust and respect, and when there is mutual trust and respect, support and challenge can be blended in a way that means that people do not see them as a threat. That is a quite helpful way in which to look at what we are doing in authorities, which is very process focused. We need to be clear about the role of the authority and what is being done nationally.
It was a helpful answer. We are aware that there is a lot in place and I find it difficult to envisage a local authority stepping out of line and not providing the level of support that you indicated. I also have difficulty finding anything that would convince me that section 2, which deals with ministerial intervention in local authorities, is required. As a former teacher, I know of the thorough scrutiny that goes into inspections and the will within authorities to put right anything that is found not to be right. I cannot envisage a time—
Do you have a question, Rosemary?
Yes. I want to pick up a bit more on the areas that Margaret Doran covered in her introductory statement. I thought that there was a note of concern in your statement, Margaret, about aspects in schools that are not as thoroughly inspected as other aspects. I am referring to the separate funding bases that go into schools for priorities that are not part of core work, if you like. I felt that you were implying that more scrutiny is needed for such areas to ensure that the funding and spending are properly managed.
It is not a question of having more scrutiny. I just believe that there should be scrutiny and clarity about roles and responsibilities in relation to the five national priorities for education. We arrived at those five broad aims to reduce the work load and pressure on people from initiatives and to get us to a point at which there is clarity about the purpose of Scottish education. Under those broad aims, there is a growing list of priorities, initiatives and funding sources. For example, £0.25 million might come into our authority in November and we would then quickly have to produce a plan for it. Within a few months we might receive another request: "Here is another £14,000. Could you give me a plan for it, please?" Therefore, there are issues around trust, devolved decision making and being outcome focused.
I wonder, convener, whether it would be possible for Margaret Doran to put something in writing about the issues that we have just discussed. I think that that would be of interest to the committee.
Are there particular issues there? She has given a lot of information.
I am talking about her latter comments about the priorities in education.
Can you put something in writing about that, Margaret?
Yes.
I have a question for Ewan Aitken. He has implied part of the answer, but for the sake of clarity and to be absolutely certain I will just ask the question. We have heard from Scottish Office officials, who suggested to us that it would ultimately be for the local authority to implement specific actions to ensure improvement after an enforcement direction has been issued. Would that alleviate some of your concerns about a potential threat to local democracy and local decision making?
I am sure that you heard from Scottish Executive officials, rather than Scottish Office officials.
I was referring to Scottish Executive officials—I hope that I used that expression, because I certainly meant to.
As I said, I think of the bill in the context of a number of questions about the relationship between national and local government, and I am concerned about that. As I said right at the beginning, the relationship that has been built up over recent years between the Scottish Executive and local authorities has been very positive. I have been to the Parliament three or four times as part of the process of having a direct influence on the direction of policy. It is not our job to set policy—that is the Executive's job—but we are partners in that work, and it has felt like a partnership. All the points that are outlined in our evidence would be undermined if that relationship was lost, and that relationship is what we are striving to keep. The relationship needs to be positive, although we do not need to agree—absolutely not—and that is why I say that the good things that have happened would be undermined.
So you would prefer not to have the bill, because it could affect trust that exists between local government and the Executive.
Yes, that is right.
You have made your point forcefully. I will pick up on what you said last. The relationship between local government, the Scottish Executive and the Scottish Parliament is positive. It is not one-way traffic, and devolution has not centralised power in Edinburgh—at least, I do not feel that it has. Local government has, for example, the power of general competence, three-year budget reviews and outcome agreements, which are all positive.
If the minister feels that he needs an additional way of intervening, I would like him to do that differently; I would also like to talk to him about doing it differently. Ultimately, it feels like he is still holding back the final card. That is not a helpful approach, because it concentrates on failure and the failure of relationships, and we need means of communication that deal with those failures before we get to the stage of ministerial intervention.
I commented earlier on size and effectiveness. An article in The Times Educational Supplement Scotland two weeks ago alleged that the minister had suggested that small authorities could learn a lot from larger authorities. I have illustrated that that allegation was not sourced in fact, given the evidence to date. There are concerns throughout the education community that the message that size matters and that we are going to organise education authorities in such a way that smaller authorities will learn from larger authorities is not at all helpful. We need to be clear about that. I thought that the way in which we move things forward in Scotland is through consensus and developing things together from an idea and working them through, not by reading about them in the education press—the article was the first that ADES heard of that particular issue.
I have a point about triggers, which Ewan Aitken touched on. Margaret Doran talked about the process. If there is still an issue following an HMIE inspection, the inspectors can trigger the powers in the bill. That triggering of the process by HMIE was deliberately put into the partnership agreement. I say that as I was one of the Liberal Democrat negotiators at the time.
If you are saying to me that, if the bill is passed, what do we do to ensure that it does not undermine—
I am saying something different. The committee might be minded to examine suitable amendments to the bill in light of evidence that has been received. If it is so minded, what sort of triggers would you like to restrict HMIE to? Can you pin down things more clearly? You may want to think about that and come back to us, as it is important. We must focus on the process, the triggers and what the end result might be, against the background of what the Executive clearly wants to do.
Clarity would be helpful. We would appreciate being given the chance to say to the Executive, "If it is going to happen, this is the way it should happen." That would be helpful and would be a good thing to do, if we are going to have to live with it.
Is the detailed expertise in the hands of ADES?
Absolutely.
You might have further observations to make, either today or later, on how to focus in more. Whether or not legislation is required, what are the triggers that move us beyond HMIE, as opposed to the minor things that people spoke about earlier in their evidence?
I would like to go back to ADES to get views on that and come back with them.
That would be helpful. Thank you. That was a useful session. We are pleased that you attended this morning.
It is the other way around. I am the president.
In that case, my briefing is wrong. I apologise. Who is going to kick off?
First of all I will give a brief background. HAS is delighted to be here. Our relationship with the Scottish Executive is better than it has ever been, with briefings and consultation on all kinds of issues. Since we removed ourselves from the neutral position in relation to teachers, the engagement has been better than ever. We are absolutely with the Executive on the five national priorities and on closing the gap between rich and poor—we are as one on all the inclusion issues. Of course, we disagree on job size and toolkit but we will not go there today.
That was helpful. I asked the previous panel about the trigger under the bill to start the move from the inspection process to HMIE reporting to the minister. Would there be any advantage in focusing a bit more on what might or might not be reportable to the minister at that point?
The proportionate model is a new regime—it began in January—and therefore, by definition, the first follow-up inspection will not happen for another year. However, as I have described, schools that are likely candidates for intervention, if there are any, will have had the new proportionate input, which is much greater. That is a good use of HMIE. Rather than spreading its input evenly, it will concentrate its efforts where they are most needed. During the period of the follow-up action plan, which would be triggered only after a failure to meet the action plan of a first inspection, the HMIE inspectors and the local authority would be heavily engaged with the school. As I understand it, the trigger point would be if there was an unprecedented failure of the combined efforts of the school, the local authority and the HMIE inspectors through the follow-up action plan.
To summarise, are you telling the committee that the view of your organisation is that the power is not necessary?
It would be wrong of me to say that the power is not necessary, but I cannot envisage it being used. The new system has not yet been fully tried and tested. The bill might have been more understandable three years ago, when it might have been argued that there were instances in which the inspection follow-up model had not worked—although I do not believe that there were. However, we now have a new regime with a much greater input of effort to schools that have the most areas for action. I am worried about the signal. If a school really struggles—which will partly be the school's fault but also the fault of the local authority and HMIE—the naming and shaming culture could well be devastating for youngsters in that school.
The argument has been made that, with the improvement regime, we are dealing not with a level playing field, but with something that we want to get better over time. In that context, the challenges on local authorities and schools are greater. Does that give a different context to the need for the final full stop in the toolkit that is available to ministers?
Ideally, I would hold the proposal in abeyance and review the situation in two or three years. That is not procrastination. I would want to wait until there was evidence that the new proportionate model with proportionate input had delivered. I confidently predict that it will deliver—three years from now, you can bring me back and hang me if you have found schools in which it has not worked.
You have probably answered the greater part of the question that I wanted to ask. However, for the sake of clarity, I will run through it quickly. We received evidence from Scottish Executive officials that the power of ministerial intervention is necessary to make certain that ministers can completely fulfil their duty to secure improvements under the Standards in Scotland's Schools etc Act 2000. If you had to say point blank whether you think the power necessary, on which side of the argument would you come down?
Ministers are entitled to be able to ensure that improvements are carried out and that the money is spent properly. The situation is too important for there not to be rigour. What happens to the money that goes to local authorities for their quality assurance? What is the function of the HMIE inspectors? Not only would invoking the power mean that the school was named and shamed, but it would be an indictment of the local authority and HMIE. I am sorry to be so blunt.
Do you consider the power to be necessary or not? Would you leave the matter to the discretion of the Executive?
The use of the power would be a matter for the discretion of the Executive. Although I cannot envisage circumstances in which it would be necessary to use the power—unless the new inspection model failed—I think that it would be useful for the Executive to have the power in reserve.
Several times, you have talked about schools being named and shamed. That is not at all the drift of the evidence that we have received from officials. Do you think that the proposals could work out in that way?
I assiduously read what the Scottish media write about education. Even at the moment, if there is something negative about a school, the media will unfairly pillory that school—I will not name schools, but we all know of examples of that. The intention might not be to name and shame a school, but we can be certain that the press would name and shame the first school in relation to which the power is used.
A lot of the concerns that have been raised about the bill have focused on the relationship between the Executive and local government. How will the bill affect the relationship between head teachers and their local authorities, which is developing in Scotland along a certain line? Not all head teachers get on with their local authorities and we must take into account the balance of power in that situation with regard to making decisions in the interests of the children. When the Executive intervenes in a situation, that intervention is often followed by a direct injection of resources. Do you think that schools might seek Executive intervention as a means of bypassing their local authority and perhaps pursuing an agenda that is different from that of the local authority?
That is an interesting and complex question. HAS has no wish to minimise the position of local authorities. Of course, the situation is different in England. We are committed to our approach because we believe that education is not a stand-alone element but is tied in with all the other elements in the community in an holistic way. If the Executive had the power to intervene, I do not think that the relationship between schools and local authorities would change. Quality assurance has layers like an onion. Schools carry out quality assurance work, as do the local authority and HMIE.
Is there anything in the bill that might change the relationship between head teachers and HMIE? If schools knew that a big stick might come down on them, would their relationship of trust with HMIE be altered?
HMIE will be pleased to hear me say that our relationship is excellent. It is not a cosy relationship. HMIE is rigorous—it uses the critical-friend model and it challenges robustly where that is necessary. If HMIE triggered the use of the power, as the bill provides for, it would also trigger severe condemnation of itself because, as I said, it would have been involved in the process that led up to that point. If the power was held in reserve to be used in extreme circumstances, I do not envisage that that would affect the normal relationship between head teachers and HMIE, which is robust and good for Scottish education.
I want to pick up on your comments in the context of HMIE's observations on the bill during the committee's evidence-taking session last week. HMIE said that it envisaged the use of the power as the "end point" of the inspection process. However, you have said today and we have heard from others that inspection is an on-going process of continuous improvement that involves work all the way down the line and has no end point, because it is not possible to achieve perfection. HMIE would be extremely unlikely to call a halt and say that it could make no further progress. Might not the trigger come from the politicians?
During the 18-month follow-up period after an inspection, interim reports are produced—a midway report is certainly produced in the Falkirk Council area, which is my area. I imagine that if the interim report did not show significant progress—in other words, if the local authority officials and local HMIE inspectors were not delivering improvements—the authority would rightly be all over everybody like a rash.
In our questions to you and to previous witnesses, we have tried to find a scenario in which the proposed power might need to be used, but nobody has come up with one. People have compared the experience in England and Wales with the situation in Scotland, although that is different. We have seen the headlines about indiscipline in schools in England and Wales and about the hit squads that go in to sort everything out, but Scotland has never been in that situation because our system has always been rigorous and local authorities and HMIE have always worked well together. Can you envisage a situation in which the power might need to be used?
HAS works with English colleagues, but we do not use the phrase "failing schools", which is used in England. There have always been what we call action plans. I will not name individual schools, but in one school the initial inspection report caused such concern that £300,000 of action plan money was put into the school. In England, that school would have been labelled a failing school. There have been examples of action plans during the past years, but there has not been a single instance in which there was no appropriate write-up for the inspectorate during the 18-month follow-up period. To give you an honest answer, I cannot envisage a situation in which the proposed power would be needed.
Are you saying that a mechanism is already in place to put more funding into a school if HMIE and the local authority consider that that would improve the situation?
I could name schools in which that has happened.
That is helpful.
An earlier witness suggested that there might be some political intent behind the bill. Do you accept that the bill's intention is to improve the lives of children and to ensure that the ultimate accountability lies with the minister?
This is not a political answer. I heard Mrs Doran say that the bill deals with "unfinished business". That may be. We are open minded about the bill, as I said. We will watch what happens and we are sceptical, but I have not said that we are hostile towards the bill—if the bill is passed, so be it. However, you must understand our puzzlement. There are so many other exciting challenges for schools that we wonder why it is necessary to introduce a power that will exist just in case.
May I challenge you a little on that? You suggest that the quality system is great and that it represents the best of all possible worlds. That is all terribly cosy, but there are differences in attainment between local authorities and between schools and significant criticism is made about whether Scottish education is quite what it was in days gone by. Against that background, is there not a case for saying that the minister should have the final power if HMIE raises issues that need to be addressed and they are not dealt with fully by the local authority or the school?
One could argue for the existence of such a final, almost irrelevant power, but I would rather take on board the comments that were made last week on parenting and social issues. The reason why Glasgow schools do more poorly is not that they have poorer leaders—I know those folks and they work their socks off. Schools are part of integrated learning communities; they should be seen in the context of a range of other issues, including health and social issues, on which we are doing joined-up work. I hope that I did not convey any complacency about where we are and where we want to go. The final power is marginal, if not irrelevant. Driving forward other measures, such as the new community schools, will be much more beneficial to the youngsters.
You said that there is a good regime and the committee heard HMIE express the same view, but are there things that need to be done at an earlier stage to sharpen up the improvement agenda? That might include the way in which inspections take place, the way in which issues are taken up and the things that the school should identify. Is more activity needed in that area to achieve the on-going challenge and improvement that everyone wants?
We will be interested to see how the new regime does. It is interesting that Scotland is going for a generational cycle of inspections that will cover every child during their seven years in primary school and six years in secondary school. In England, David Miliband and David Bell are introducing a regime in which there will be shorter inspections every three years. Those mid-term inspections will be held at short notice and they will have a light touch. There is a danger in such a regime; no matter what people say, inspections are traumatic and it is possible to monitor schools so much that things do not happen.
My final question is on the part of the bill about independent schools. A number of technical points have been raised by the Scottish Council of Independent Schools, from which we will hear shortly, but does your organisation have any views on that part? Should the committee focus on any particular points in relation to regulation?
I will pass that question to my colleague. You will be pleased to get a rest from my voice.
A large number of senior managers of independent schools benefit from involvement in HAS; we enjoy participating in Scottish education in the widest sense and working towards similar aims under the 2000 act. In that context, HAS applauds the principles of the part of the bill on independent schools. We appreciate that there is a need to update the regulation system and to ensure that it is applied consistently, with action when necessary.
Have you read the written evidence that we received from the Scottish Council of Independent Schools?
Yes. I know that Judith Sischy will speak later, so I will not steal her thunder. She will more than capably deal with that issue.
Finally, I want to ask further about the regulatory power, which SCIS thought was quite wide. The SCIS submission observes:
Yes. We have seen the submission and we agree with SCIS on that issue. It would be helpful if the bill gave some clarification or definition of what evidence would be required for those conditions. That might allay some fears about the width of the powers.
I have a more general question. As the Education Committee of the Scottish Parliament, we are here to serve the people and pupils of Scotland, so I was interested to hear you say that we should put the bill on hold. In order to take evidence on the bill, we have had to put on hold our inquiry into child protection. We should be spending our time on other exciting issues, such as the national priorities in education that you mentioned, rather than on the bill. If our committee decided to put the bill on hold and return to the national priorities in education and our inquiry into child protection, what kind of signal would that send to the education professionals and the education establishment?
It would be an incredibly positive signal. It would be seen that you were listening and working jointly. The bill would still be there, but people could see whether we can deliver the improvement agenda without it. I repeat that, if you go ahead with the bill, we will co-operate and be open minded, but I have answered you honestly.
Can I just get you to state whether you recognise that the bill is needed to finish unfinished business, in that it will ensure that ultimate accountability for ensuring that every child in Scotland has proper, adequate, efficient and excellent education lies—quite correctly—with the minister?
Legally and technically, that may well be the case, but I am not a lawyer. Educationally, I hope that the bill will be irrelevant. If it is irrelevant, that will be a sign of success, because it will mean that the system is working well.
This has been a useful session. If you want to come back to us on anything, feel free to write to us. Thank you.
Thank you for your courtesy.
I have had a request for a comfort break before we move on to the third panel, so let us break for five minutes.
Meeting suspended.
On resuming—
I welcome Judith Sischy, who is the director of the Scottish Council of Independent Schools. I believe that she would like to say something to kick us off.
The points that we wish to make are, we hope, clear in our submission. In principle, the bill has not upset us greatly. We feel that it provides an opportunity to tidy up and update the law in this area. The regulations that govern independent schools are pretty ancient and are full of antique language. They could do with tidying up and modernising.
Your written evidence has been very helpful. The first point that I have to raise relates to paragraph 6, on pages 2 to 3 of your submission, on notices of complaint. It states:
As I understand the bill, if HMIE or any other statutory body is very unhappy about a school, it can take action in different stages. It can take urgent action, or it can disqualify part of a school. For instance, if a residential part of a school were considered to be unsafe, the body might choose to disqualify that part of the school while allowing the rest of the school to continue. The school might well need resources and time to make good its deficiencies. It is important for schools to be allowed to do that.
The other point that I wanted to make was on paragraph 7 of your submission, on regulation. You observe that the bill gives ministers some quite wide-ranging powers, including the power to
I think that that power is too wide. I am not a legal draftsman, but I am sure that there are ways in which it could be narrowed down in subsequent regulations and guidance to set out when and under what circumstances it would be used. I was quite surprised—as were all our colleagues—when the section containing that power was published. For someone who is running an establishment and is subject to close and rigorous scrutiny by HMIE and all the other bodies, it is alarming to think that ministers can suddenly have the power to impose any conditions that they think fit. That seems quite wrong.
You make the point that the notice of complaint procedure has not been used very often and that, therefore, your experience of this area is limited. Would there be any advantage in linking the imposition of conditions to some sort of recommendation by HMIE or in putting it into a process-type arrangement, as has been done with mainstream schools?
Yes. The power is probably intended to be used to effect improvement. If it were set in that context, one would understand it more. It needs to be set in that context, as it would be frightening to think that the power was there with no parameters.
Can you expand on your concerns about what is going to happen with the care commission? HMIE and the care commission have said that they intend to work closely in establishing procedures for inspection. Can you elaborate further on your concerns about the changes involving the care commission?
I was interested to read the evidence that was submitted by the care commission, which reflects some of what we say.
So, you would urge HMIE and the care commission to continue to collaborate to ensure that any changeover is seamless.
That is correct. We are all working together, and it is early days. However, if HMIE and the care commission do not work together and if the changeover is not seamless—to use the care commission's word—there is a danger that a gap will occur in understanding what the standards are. It is very important that the schools know exactly where they are and which set of standards they are following. We hope that the standards will be consistent and not changed very much. You can see the dangers of changing from one system to another.
It is an area that we can ask the minister about this afternoon.
If there are issues on which you think that an amendment to the bill at stage 2 would be worth considering, we will be anxious to have your views as the bill progresses after our stage 1 report.
We would like to give our views. I was not sure how relevant that issue was to the bill but, as it was mentioned, we picked it up in our submission.
It might or might not be relevant, but we would be interested in your views.
In your submission you say:
This started quite a while ago—I think that it was in 1999. In 2000 or 2001, SCIS and the GTC set up a partnership arrangement to encourage all existing teachers in the independent sector to be registered—which most of them are or were—and, more important, for independent schools not to take new teachers unless they were GTC registered.
I do not understand why we have to wait for future regulations.
That is not my decision.
No. I was simply wondering whether, from your point of view, there would be an issue with having the provision in this bill instead of in another piece of legislation.
No. There would be no issue except for the fact that, as we said in our submission, there should always be room for exceptions. We think that there should always be room for the excellent teacher who, for some reason or another, cannot be registered. The reason might relate to where their degree or their training comes from or to what their previous experience was. As the committee knows, the GTC is now looking at more flexible approaches to registration. I suspect that the delay is to do with that. Everything will come together at the same time.
Perhaps that is something about which we could usefully contact the GTC.
Ian Huntley was a non-teaching member of staff. I have asked the Scottish Executive why non-teaching staff are not included. There may be a legalistic reason. In a sense, it seems strange that it is SCIS and not the Scottish Executive that is raising the point. I do not understand the reason for the omission, if indeed, there is a reason.
Obviously, the later sections of the bill most definitely affect independent schools and in many ways those sections have been the least contentious. We heard from officials that it was convenient to put those provisions in this bill in order to catch up on old legislation and so forth. Could the sections of the bill that affect independent schools stand alone from part 1 of the bill or does that part of the bill have a direct impact on independent schools?
I think that it does not have a direct impact. However, it is an interesting question. Independent schools work under much the same ethos as local authority schools do with regard to HMIE inspections, proportionate follow-through, striving for improvement and capacity to improve. Although the bill does not directly affect us, we are working in the same context as the context for part 1—if that makes sense.
Yes. Thank you.
May I return to the point about the "proper person" and make a point that is connected to the previous question. The care commission, for instance, wants any member of our staff to be a "fit person"—I think that that was the expression that it used—or a person fit for the job. We hope that a "proper person" is the same as a "fit person", but we foresee two sets of standards and everybody being confused. In the end, we are talking about one set of children and one set of staff. We would be totally at sea if "fit person" does not mean the same as "proper person". It is important that it all fits together.
Presumably it would be difficult to tie up inspection regimes if two different legislative provisions were in place.
Yes, it is a good illustration.
Do you represent some of the special schools?
Yes. We represent most of the independent sector. A number of special and specialist schools are included in our membership.
Does that include Donaldson's school for the deaf?
Yes, and the Royal Blind School.
What about the school for autism?
That is not one of our member schools. Membership of SCIS is voluntary. The Royal Blind School and Donaldson's school for the deaf are members.
Are there any particular considerations of relevance for schools for children with learning difficulties?
Those schools have not come forward with particular concerns. A number of our member schools cater for children with learning disabilities or emotional and behavioural problems. They have all been consulted and had the opportunity to shout, but they have not done so.
Is it possible to give us a list of the special schools that you represent?
Yes.
Thank you. Do you have a view on the proposed changes to the appeals procedures?
Not really. We have not considered them in great detail. At the moment it seems that ministers have to give schools six months before they can act. We would have to examine the changes in more detail before we took a view.
It is more a question of the abolition of the tribunal which, as I understand it, has not had much of an active existence.
The tribunal is one of those things that exist in statute but not in reality.
You have suggested a large number of improvements to the bill. Do you feel able to let us have a copy of draft amendments in due course?
We are not in the business of legislative drafting, but we have made it clear that there are omissions in the bill and that the definitions should be tighter to avoid future misunderstandings. We can certainly tell you about that in more detail.
Have you had feedback from the minister on the points that you have raised in your paper?
Not yet. We have discussed them all with the Scottish Executive, so it is well aware of them. I hope that it is sympathetic, but I have not had a response yet.
I appreciate that you are not legislators and that you do not have the legal resources to draft amendments, but you are the experts on what will be the operation of the regulations in the independent sector. Therefore, we are keen to have any further input from you as we progress to more detailed consideration of the bill at stage 2—assuming that the bill gets to that stage—on the policy issues that you would like to see reflected. You have identified a number of such issues; others might arise as we progress.
I will certainly go back to our legal advisers and ask for more definitive responses.
I want to clarify something on the back of what Lord James Douglas-Hamilton asked. Are Rudolph Steiner schools members of SCIS?
The ones in Edinburgh, Glasgow and Aberdeen are.
Are there criteria for joining SCIS relating to the numbers on the school roll?
No. One of our criteria is that all the schools have to be fully registered with the Scottish Executive Education Department. We issue guidelines to schools on standards, values and quality. We do not have specific rules about how many children should be on a school roll.
Do you foresee particular problems for schools with small numbers, such as those with only three or four pupils?
No. Our concern would be the ratio of staff to pupils. We want to ensure that however many pupils are in the school, they are all looked after properly in terms of staffing. I always think that it is a bit odd that four pupils can constitute a school, but schools should be covered whether they have four or 400 pupils.
You make a point about the potential administrative burden and duplication of information to be provided. Is there anything specific in the bill that concerns you in that regard? It strikes me that that is more of a policy issue, which you mention in the summary of your submission. Are you getting responses from the Executive on that? It is a commonsense issue, but would anything in the bill cause particular difficulties?
I think that there is a section that gives ministers powers to ask the schools for any information that ministers think fit. That approach has always been implemented sensibly and ministers have always asked for information that they would obviously require. However, during the consultation process, the Executive visited three or four schools to ask specifically about the information that they were required to provide. There seem to be countless bodies that ask schools for the same information, but always in slightly different formats, and that became quite an issue during our consultation process. If the number of teachers is asked about, things are never straightforward—questions can relate to part-time, full-time, primary and secondary teachers and each form is slightly different. That is becoming a major administrative issue for schools. We cannot see why there cannot in theory be a central database of information for schools. The same would apply to local authorities. For example, the care commission could share information with HMIE instead of going to every school—as it is about to—and asking them to supply all the information again. That is how the issue arose.
So you are concerned not necessarily about the bill itself but about its implications.
Yes.
Thank you. Your evidence has been useful. As I said, we would obviously welcome any further input that you want to make as the bill progresses. I think that Lord James Douglas-Hamilton asked for information.
Yes—on the special schools. Am I right in thinking that many special schools are funded in the main by the state but that SCIS still represents them?
Yes. Some special schools have mixed pupil populations in that some parents are fee paying, some fees are paid by the local authorities and some pupils are wholly funded by the local authorities. I think that around a dozen such schools are members of SCIS.
It would be helpful to have a picture of that for the sake of clarity and completeness.
Certainly.
Thank you.
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