I welcome Peter Peacock and Euan Robson and their officials, Colin Reeves and Rachel Edgar, in connection with our continuing evidence on the School Education (Ministerial Powers and Independent Schools) (Scotland) Bill. Before inviting Peter Peacock to make an opening statement, I remind everyone to switch off their mobiles and anything else that might make horrible noises during the course of the committee's proceedings.
I have an opening statement for the committee, which I will use to talk members through where we are coming from on this issue. I will then be happy to consider any questions that the committee wishes to put to me.
Thank you, that was useful. We are going to deal with the bill in two parts: ministerial powers first and independent schools second.
As I am sure you know, my political origins are in local government and I continue to be a staunch defender of local discretion and decision making. What is important is that we find the right balance between local discretion and decision making and, when it is necessary, our education responsibilities, which I share with local government. I am under a new statutory duty that did not exist prior to the existence of this Parliament, and which therefore did not apply to previous Administrations prior to devolution. The fact is that there is a shared responsibility, but within that I respect that there is a clear role for local government.
I might come back on the point about best value.
I want to continue the discussion about the existing powers under section 70 of the Education (Scotland) Act 1980.
It is difficult for the current Administration to track everything back through the past 20 years, but the powers have been used once recently, in a specific case at the back end of last year. It is important to understand that the section 70 powers in the 1980 act apply to failures in statutory duties, some of which are very specific. In the case that I mentioned, we had to use the powers in relation to special educational needs, because the local authority would not do what was required.
How would the situation in which the section 70 powers were used be dealt with in future?
Are you asking whether, if we acquire the new powers that we are seeking, the section 70 powers would still exist?
Yes.
The powers would still exist. They would be used if an inspector's report on a school or an authority had shown a deficiency, if the normal discussion of action plans to remedy that deficiency had taken place, but action had not been taken, either despite an action plan having been agreed or because one had not been agreed, and if HMIE had come to the view that action had to be taken to make improvements. HMIE would have to come to ministers and make a recommendation for us to intervene if it thought that that was necessary. We would then intervene by means of a preliminary notice and, if that was not adhered to, would go on to an enforcement direction. If the school or authority failed to comply with the direction, it would be in breach of a statutory obligation, and at that point, I would be able to use the section 70 powers, which give me almost unfettered discretion to do what I think is right. However, as you can see, there are many points in that process to rectify things that are going wrong.
On which local authority did you use the section 70 powers?
We used them on the City of Edinburgh Council.
We had evidence from COSLA this morning that the new intervention powers go against the principle of best value. What is your response to that?
I do not fully understand the point. Best-value considerations are an obligation on local authorities. Under the Local Government in Scotland Act 2003, they have duties to secure improvement in all their services and best value in relation to that improvement. Perhaps the point that COSLA is making is that, because there are powers under the best-value regime, the powers that we seek would not be required. However, an inspection by HMIE is not part of a best-value process per se; it sits beyond that process. That is why we are seeking the powers. If we felt that they were covered by other bits of statute, we would not seek them. We do not think, and I do not think that it is possible to suggest, that an HMIE inspection is a best-value process in the way that the best-value legislation describes the objectives that it seeks to achieve. Best-value legislation is essentially about improvement in efficiency and effectiveness over a range of services and applies a series of techniques and tests to that improvement. If local authorities fail to do those things, the best-value intervention powers kick in. The staged process that we have adopted for the powers that we seek in the bill replicates almost exactly, if not exactly, how intervention operates under the best-value powers, which were worked through with COSLA at the time that the Local Government in Scotland Bill went through the Parliament.
COSLA's point, as I understand it, is that there will be a parallel system: a best-value intervention process under the Local Government in Scotland Act 2003, plus the new powers that you are taking on board under the bill. Is there a risk that there would be a number of different, but overlapping regimes, which would put lots of pressures on schools and local authorities? Given your existing powers and the powers that are proposed in the bill, would you use best value intervention procedures in education at all?
In principle, I suppose that that might be possible, if we take the broader view of best value that I mentioned, which involves issues about how an organisation tests its efficiency and effectiveness and compares and contrasts its performance with other organisations. However, education presents much more difficult territory in which to find those kinds of best value questions than do other aspects of local government work, because education expenditure is so heavily prescribed in terms of staffing levels and teaching and so on. I could not rule out such an approach, however.
No doubt you know that we have heard evidence, on the one hand, that the bill would be merely technical and would supplement the provisions in the Standards in Scotland's Schools etc Act 2000 and—on the other hand—that it would undermine trust and the relationship between central and local government. If it is not possible to predict a situation in which the proposed powers might be used, as we heard from officials, is it worth going to all the trouble of passing unwanted legislation that might not be used?
The fact that a power might not be used does not necessarily mean that it has no value. The very fact that a power exists might well help to focus people's minds in circumstances in which their minds might not otherwise be focused. I cite the powers in section 70 of the Education (Scotland) Act 1980, which have existed for 20 years, but which were not used until last year, as far as I recall. I have powers in relation to social work—the other part of my brief—which are almost completely unprescribed: I can direct social work authorities to do a wide range of things. Other such powers exist in best-value legislation, which we mentioned, in other local government legislation, in relation to interventions in the health service and so on.
Why is it so important to progress this matter when there are so many other areas that the Executive could and should consider, some of which might require legislation? We heard evidence today that it might be worth delaying the matter for two or three years, while we see how the Standards in Scotland's Schools etc Act 2000 beds in.
Why should we not progress the matter now? Now is as good a time as any. We recognised that there was a gap in the powers comparatively recently. The bill is clearly and closely compatible with the Executive's commitment to drive up standards in education and to ensure that we let nothing stand in the way of that. In the final analysis, as I recall the First Minister made clear when he announced the legislative programme about this time last year, we want to ensure that no omission by a local authority or by the Executive should impede an individual child's education. Kids get only one chance at their school education; if something is going wrong we should have the power to ensure that it can be put right. That is why the powers are important and why it seems to me to be right to put them in place as quickly as possible.
But is not it the case that you want to be seen to be doing something rather than think about the impact of such provisions? This morning, we heard good evidence that, as a result of the on-going relationship involving local authorities, HMIE and schools, any problems should be rectified before they reach the stage at which the proposed powers would be used. After all, local authorities—not the Executive—would have to exercise the powers in question. In the end, the presence of the legislation will not necessarily have a different impact on children, which is the most important aspect and should form the basis of the test that we apply.
In the end, under the powers that we seek, the local authority would have to take action as required by ministers. We cannot knowingly leave such a gap in our armour. Your argument is rather like saying that I should not take out any home insurance because no houses in my street have burned down yet. Just because something has not yet happened does not mean that we should make no provision for the day when it does. That is partly how we regard the bill: it is not about appearances. We simply need to ensure that when something goes wrong we have the power to take action and make it right.
That sounds more like an insurance policy for ministers than one for pupils.
It is not.
Instead of getting into a debate on that, I want to ask a technical question. The Standards in Scotland's Schools etc Act 2000 increased local authorities' statutory responsibilities to ensure that children can fulfil their potential. You are concerned that you need to fill a gap where implementing HMIE's recommendations falls short of being a statutory duty. Has widening local authorities' statutory responsibilities through the Standards in Scotland's Schools etc Act 2000 reduced any opportunity for authorities not to fulfil certain statutory duties with regard to adverse HMIE reports?
I hope that I have followed your point correctly. In inspecting a school, HMIE and local authorities would be examining not only a potential failure to carry out a statutory duty, but a failure in practice that might not be part of a statutory duty but would be regarded as correct practice for a school. We think that it is right to attempt to put HMIE at the centre of things and to allow it to use its professional judgment, because that will mean that ministers would never be tempted to take too lightly any decision on intervention. Such a decision would have to be based on a professional judgment on whether something was right or wrong or whether it was statutorily required. The findings of HMIE reports on schools and local authorities show that HMIE measures achievement not just against statutory duties but against the best practice of the day, and that it is constantly attempting to improve practice. There is no statutory link in that respect.
During this morning's very interesting evidence-taking session with representatives from the ADES and COSLA, we asked them to describe what happens at the moment if a school does not act on HMIE's recommendations. At no point in their explanation did I feel that there was a case for the proposed legislation, because they made it clear that everything that was needed was already in place. Moreover, although the witness from the ADES was not opposed to the bill, she made the interesting point that we should focus instead on good practice and on areas such as self-evaluation, quality assurance, impacts and outcomes where practice could be improved.
Could you form a question, Rosemary?
Why is the Executive focusing on the bill instead of on the issues that have been raised by witnesses—not members of the committee—at our meeting today? Why are we moving towards the regime that is being suggested, when head teachers have told us that naming and shaming schools is rarely good for morale? We were told this morning that that is the situation that arises when you pinpoint a school that you think is failing in some way.
As I said earlier, the reason for introducing the power of intervention is that we are absolutely committed to driving up standards in Scottish education. We are not going to let any child be failed at any point because we do not have sufficient powers to intervene if that is necessary.
Driving up standards is the most important area—
Rosemary, can you ask questions rather than make statements? I am not trying to cut you off, but I would like us to be a little more focused.
We are putting more money into the initiatives that we have been talking about but we are not scrutinising them. You have told us that you will examine them. Could you give us some details of the way in which they will be scrutinised?
I am quite happy to write to you to say what our thinking is in relation to the national priorities action fund and, more generally, what evaluation work is done in relation to programmes of spending.
Okay.
I hope that you can help me square a circle that emerged in the evidence that we have heard. HMIE suggested that the new powers would be useful in terms of HMIE having an end-point to its current inspection process. I believe that you and Scottish Executive officials agree with that view. However, practitioners, such as the ADES, COSLA and HAS have indicated that there is no end point to the inspection process because there is an on-going process of improvement. Especially with the new regime of proportionate inspections that has come in, we have a continuous improvement programme in which the inspectorate works closely with schools and education authorities.
Let me deal with the last point first. We have no intention to centralise power. If we had wanted to centralise power, we would have done so by using the Standards in Scotland's Schools etc Act 2000. We made a clear decision that local authorities should have a clear role in administering education. Many decisions are far better taken at local authority level than at the centre—centralisation is not part of my agenda. My agenda is to ensure that if in the future a school or local authority fails to do what HMIE thinks is necessary to bring about improvement, ministers have the power to intervene to require that action. Let us be clear about that.
Where in the process will the trigger for ministerial intervention come and how will HMIE go about getting that? Will HMIE make a direct specific recommendation, such as "Minister, we are having trouble here and the only way round it is for you to intervene"? Alternatively, might direct intervention be presented as an option in a report that you have requested from HMIE on an on-going situation? Will a specific request from HMIE be required before you can intervene or will you have some discretion on that?
I will have no discretion to intervene where HMIE has not specifically recommended that I do so. HMIE must go through all the normal voluntary processes such as negotiation and discussion about what it wants to happen. If those processes failed—if nothing happened, that would be a trigger—HMIE would have to assess its options and decide whether the matter was of sufficient weight that ministerial intervention should be sought. Once HMIE had made such a judgment, it would come to me with a recommendation. I will be able to act only on the basis of HMIE's recommendation.
I want to explore further how the power will operate. Subsection (2) of proposed new section 66B that section 1 of the bill will insert into the 1980 act states that, following their report and in certain circumstances, Her Majesty's inspectors
I genuinely believe that we should leave that to the professional discretion of the inspectors. They are well established in Scotland, much more so than in many other countries in the world and they have a long track record in making professional judgments about good practice in education. Inevitably, over the years, those judgments vary and change because of changing practice. New methods are introduced and are applied; the situation is dynamic and to set down criteria in a bill would be difficult. We have to trust the professionals' judgment.
With respect, that is my point. Section 2 does not say "significantly improve"; it says "improve". There might be an issue as to whether something a bit more substantial should be a trigger, given that the inspectorate is required to make a submission to the minister.
I am happy to consider the specifics of that before we come back to the committee. These are weighty, not trivial, matters. If we can, we will help to clarify that while seeking not to compromise the professional judgments that inspectors are required to make. Remember that schools are extraordinarily complex organisations; there are many different attributes and managerial matters to be considered and addressed, such as competence in the school, use and application of the curriculum, and the flexibility and choices that pupils have. There is a range of issues about the buildings and how they operate, as well as about the facilities in the buildings. It would be difficult to be too specific about all this, but I make it clear that we are talking about either an accumulation of small items that becomes significant, or one or two significant items. If we can consider that emphasis, I am happy to do so without making any commitment.
That is quite helpful.
Yes.
Would that lead to a section 70 procedure?
Yes.
What does a procedure under section 70 of the Education (Scotland) Act 1980 allow you to do?
That procedure allows us to do almost anything, as I understand it. Of course, as you know, ministers always act reasonably, but I would be allowed to do anything that a minister might reasonably do in the circumstances. At that point, the power is very widely specified. We have introduced the bill in order to prescribe our powers and to make them proportionate to this part of the education picture. In the end, ministers' powers under section 70 are wide indeed.
In a sense, there is going to be a loop in the middle where there is a more detailed statutory direction that, in turn, comes back to the section 70 powers with which we began. Are we not already where we want to be in that we have the breach of statutory duty, the requirements to provide an adequate and efficient education and the duty to secure improvement that already exist under the Education (Scotland) Act 1980? Why add the middle loop?
There are two things to be said. First, the bill is very much related to the improvement process that inspectors are already involved in; there is simply a gap at the end of that process, as Adam Ingram said. Secondly, it is important to recognise that, under section 70 of the 1980 act—as I touched on earlier in response to Rhona Brankin—there are some narrow, specifically defined matters in relation to, for example, special educational needs and there is, ultimately, little difficulty in interpretation when that duty is neglected. It is much more difficult to establish when adequate and efficient education as a statutory obligation on the whole authority in all its activities is not being met.
Just to finalise on that, because it has been raised so many times before by witnesses, can you give the committee an example of the type of situation in which you might want to intervene—a concrete example of a situation in which the power may be used? The point has been made that people are not necessarily unsympathetic to the power, but want to know what are the circumstances in which it would come into play.
When powers are being laid down that potentially allow ministers to intervene in the quality assurance of schools, it is difficult to anticipate what the circumstances might be in the future. HMIE reports on local authorities and individual schools point out whole areas of work that require attention: for example, matters to do with management of the curriculum; planning of lessons by particular staff members in relation to individual groups of pupils; discipline policy and child protection policy in schools; and the relationship between a school and its parent body. Those things' being significantly deficient and not being altered would affect the quality of education in the school and are, potentially, the kind of areas that might provide triggers for the powers.
Would it be fair to characterise the new powers as not so much additional as a more finessed and targeted power within the existing section 70 framework?
As I say, the bill is designed to fill a gap that exists in the present process. The powers are seen as last-resort powers to ensure that we can make improvements when necessary. I do not mind how people describe it; what is important is that we have the power to act when necessary.
I have raised one or two points. Does any member want to come back to any of that?
I have one small question. The evidence that we have heard this morning and the evidence that we have taken in written submissions and otherwise—especially from the local government point of view—suggests that there is a centralising political agenda. You have a reassured us that that is not the case. However, what we heard this morning is slightly unsettling. We heard that you believe that large authorities are better than small authorities at managing schools. Margaret Doran of the ADES cited a recent article in which that was suggested. There is an implication that the powers in the bill will be used against small authorities rather than against large authorities. Coming from East Renfrewshire, I neither recognise that view nor agree with it. I would welcome reassurance that that is not the case.
You can be reassured that there is absolutely nothing in my thinking to suggest that the power would be used only in authorities that have a population below a certain threshold. The power is for any authority that fails to do what is necessary to bring about improvement.
I want to follow up the convener's question about the process and the relationship between section 70 orders and the proposed provisions. Are you saying that the Standards in Scotland's Schools etc Act 2000 has made it more difficult for the Executive to use powers of intervention than it was before the act was passed?
No, I am not saying that. The specific duty on a local authority to provide adequate and efficient education predates the Standards in Scotland's Schools etc Act 2000. As you know, that act also has as its centrepiece the fulfilment of the potential of the individual child, which brings its own challenges. However, the existing statutory provision before 2000 had the same features with regard to the application of section 70.
When the bill was first mooted, there was talk of hit squads for failing schools, but your officials said that that is not how the Executive wants to present it. I would be interested in your views on that. Who would deliver the improvement should you exercise the powers? Would it be posses from Victoria Quay, or would you rely on the same people who have done improvements in the past—the local authorities?
I am very clear. I have never used the term hit squads, which I do not think is helpful in this context. We are clear that, if we trigger our power, we seek to place a duty on an authority to take action to bring about improvement. It will be a requirement on the local authority rather than a question of our sending in people to take over. I have to tell you that, ultimately, under section 70, there are very wide-ranging powers to do anything that is necessary, but it is not in our minds to get to that point. The whole purpose of the power is to ensure that we do not have to exercise those powers. In fact, as I have said, the existence of the powers should help people to focus their minds to ensure that intervention is never required. It is not part of my purpose to take over the running of schools; sending people from Victoria Quay to run Scottish schools is not part of my agenda.
I noticed some agitation among your officials. There was no offence intended to our visitors from Victoria Quay.
By the same token, I take it that there is no intention to micromanage what happens in schools. The powers are quite detailed.
I have no desire to micromanage what is happening in Scottish schools. We have local authorities that are there to help schools to manage and local head teachers who are there to manage the detail of their schools. Currently HMIE makes detailed recommendations about improvements in schools and that will continue. We simply want to ensure that things happen at the end of the day that would not otherwise have happened.
The Scottish Council of Independent Schools feels that there is an omission in the bill, in that it does not specify that evidence of dissatisfaction is required in respect of a complaint or a serious concern. Do you have any comment to make about that?
Could I just ask for clarification? The proposition is that we have not specified what would be the trigger point for a notice of complaint or, indeed, for setting a condition.
The bill does not specify that there must be evidence of dissatisfaction in respect of either a complaint or a serious concern.
We are seeking to introduce powers that will modernise the landscape, which has become out of date and inappropriate, and to do so proportionately—we do not seek to intervene unnecessarily. For matters that relate to complaints about the operation of individual schools, we have a registrar of independent schools, who is sitting on my left. There is a strong element of judgment about the nature of complaints that are made. It is not in our mind to exercise unnecessarily the powers to serve a notice of complaint or to impose conditions. We are seeking to address real concerns that people might have. Any complaint or evidence of dissatisfaction that the registrar receives would have to be considered and a judgment made about whether to exercise the powers.
While the Scottish Council of Independent Schools supports the principle of the bill, it has suggested in a paper and in evidence a number of drafting improvements. Are you prepared to consider those suggestions sympathetically?
I am certainly prepared to consider them. We have had a good dialogue with SCIS in which we have been clear about what we seek to do. We have consulted SCIS throughout the process and, as you say, it is happy with the bill in principle. I am more than happy to consider any suggestions that SCIS has. However, you will appreciate that I cannot judge what I will say about the suggestions until I have seen them. I am happy to consider improvements that maintain the protection but provide reassurance.
As we heard this morning from SCIS, the policy memorandum says that future regulations will introduce a requirement that all teachers in independent schools be registered with the GTC. We have received written evidence from the Educational Institute of Scotland that we should consider incorporating an amendment to that effect in the bill. Is the measure desirable and, if so, why is it not in the bill now instead of being put off until later?
I understand where people are coming from on that issue. We did not think that it was necessary to put the measure in the bill because, voluntarily, the members of SCIS are well on their way towards GTC recognition of their teachers. That is the underlying reason—the fact that there is no particular reason to force the process to happen at a faster pace than it is happening at present. We recognise that independent schools are, by their nature, different from those in the state sector and that discretion is available in how they provide education, given that parental choice is a factor. Independent schools are making progress on GTC recognition. Rachel Edgar may have more to say on that.
I reiterate that SCIS has made a lot of progress on the matter. However, we have found that there are more issues in independent schools that are not SCIS members and that even some SCIS members have problems with specific posts, as Judith Sischy highlighted. I understand that schools have a particular difficulty in finding GTC qualified teachers in business studies and computer studies. Before ministers consider imposing the requirement, we want to ensure that it can realistically be met.
Another issue that was raised concerns the definition of the term "proper person" and why that is not being extended to apply to non-teaching and support staff who work in schools. Is that omission deliberate or will you come back to the issue?
We think that the point is covered. You will be aware of the provision for the register of people who are unsuitable to work with children. We think that that covers the point adequately, so a separate requirement is not needed in the bill. We will reflect on everything that has been given in evidence to the committee to see whether there are issues that we need to think through a bit more.
Another point that Judith Sischy made was that the care commission uses the term "fit person", whereas the bill uses the term "proper person". Is that one and the same thing and could the situation lead to confusion?
We are talking about different standards. The Regulation of Care (Scotland) Act 2001 gives powers to the care commission; it is important for the two pieces of legislation to fit together, but the standard for a "fit person" to work in a care establishment is different from the standard for a "proper person" to teach in a school. We recognise that the language is different, but we are talking about different requirements. For example, ministers have indicated that they might require a "proper person" to teach in a school to be registered with the GTC, but that would not be relevant in parts of a school for which the care commission has responsibility, such as pre-school or boarding facilities.
You have put your finger on the concern, which is whether there will be seamlessness, given that there will be two sets of standards. We seek reassurance on that.
Again, I am happy to consider that in the light of the evidence that has been given. We think that we have got it right; there has been dialogue with the care commission on the matter, but we are happy to have further dialogue to ensure that things are married together as tightly as possible.
The substance of the meaning is the same, but we do not want joint inspections to be confused by different wording.
I believe that some independent special schools come under the provisions in the bill on GTC registration. I would be concerned if children from local authority-funded state schools were transferred to schools in which teachers are not GTC registered.
I do not have to hand information on whether every teacher in every independent school that comes under the provisions is currently registered, but we can check that and come back to you. There is no difficulty with finding that out.
The care commission suggested that liaison and notification procedures between HMIE and the care commission could be put on a statutory basis. What are your views on that?
The relationship between the care commission and HMIE is well established and they work together on a range of joint inspections. I am not clear that there is a need for a statutory link, given that voluntary links between the two work adequately. There is a strong commitment by the Executive to ensure wherever we can that inspection regimes are as joined up as possible and reflect the multidisciplinary nature of modern inspections.
The bill gives ministers the power to
I completely understand the point. SCIS has expressed concerns that the power could be used to set conditions that are much wider than the powers in our minds. I understand those concerns, but that is not our intention; I hope that I can reassure SCIS that our intention is to ensure that the basics are right and that we have the ability, before a school opens, to set conditions to prevent part of a building that does not meet the fire regulations from being used, or whatever. It is important to have those powers and we genuinely do not wish to use them beyond that. I am happy to reflect on whether we can make that clearer, but we would have to do so in a way that does not compromise the registrar's ability to act quickly to set a condition when that is necessary for health and safety or welfare reasons, or indeed for educational reasons. With that proviso, I am happy to consider whether we can give reassurances.
We have a benign minister at the moment, but we might not have in future.
I am not at all sure how to take that.
I understand that you think that the bill's financial impact will be minimal. Are you aware that the Scottish Council of Independent Schools, while not concerned about the principle of the care commission's involvement in regulation and inspection, is concerned about the possibility of the bill introducing considerable additional costs? Will you look into that? SCIS obviously has a clear interest in avoiding the imposition of disproportionate extra costs.
I am happy to give SCIS the reassurance that it is not our intention to use the powers under the bill to drive up its costs, other than when that would be required for a specific action that is necessary for the safety, welfare and education of the children concerned. There is no general intention to use the powers in that way.
Do you think that part 2, on independent schools, would stand independently? Does it relate to part 1 at all, or could those two parts have been pursued as separate bills?
I think that those parts make up a neat package.
A neat package? Do you mean that it is convenient as opposed to being essential?
I know exactly what lies behind that question and I am not going to assist members to lodge some very difficult amendments. I am sure that Fiona Hyslop will come to her own judgment about lodging any amendments in that territory. The bill is a neat, complementary package, which helps to improve Scottish schools and helps to improve the ability to improve Scottish education.
I am loth to let the minister go after just an hour, which seems rather bad, but I thank him for his attendance. We are grateful for your input, minister.
I will tell COSLA that the committee thought that I was very benign.
Committee members are not finished. We have another bit to do, under item 3 of the agenda, which is to consider the emerging themes from the evidence that we have heard so as to guide the clerks on the committee's report.
I am not convinced of the need for part 1 of the bill. I can accept that there are possibly technical grounds, but I have not heard anything to convince me of a need for that part.
In answer to my own question, I think that we established the whole schema of the thing more clearly than before. The powers under section 70 of the 1980 act are a fairly blunt instrument. It is difficult to get the general statutory duties knocked down to something specific. We do not necessarily want to take over or close a school that has a little bit of an issue in one area; equally, we do not want to micromanage. In between, there is an area of middle-range things, which might not be substantial for the total performance of the school but are necessary for the improvement of the school's ability. We do not need to go down to the level of pencils for primary 1.
I thought that this afternoon's discussion of the responsibility under the 1980 act to be "adequate and efficient" helped to illustrate how blunt an instrument the existing provisions are and how there is no real end point to the HMIE process. The important thing is that HMIE will carry out the process as an agency; ministers will not interfere directly in the process. They would act only once the process has come to an end. The hope that that would not be required came over clearly. The fact that the provisions in section 70 have been used only once in the past 20 years gives us some reassurance.
It is also worth while considering the context. The minister was quite clear that it is not his desire or intention to interfere in local authorities' running of things. The bill is not intended to alter the balance between local and central authority. We should probably reflect that in the conclusions that we reach.
I do not think that there is any urgent need for the bill. There is a certain logic and convenience to the provisions of part 2, which could be implemented at some point. The minister explained the relationship with the 2000 act and the fact that he is providing a tool to make it easier to use the 1980 act, to which everyone keeps referring. However, it is not our job to be a sausage machine for Executive legislation. If we were to consider the bill in isolation and nothing else was happening in the world of education, I would agree that there is a technical logic to what it attempts to do. However, there is a political price to pay. The issue that COSLA has raised about the relationship between local and central Government must be addressed. We must consider whether driving up standards by introducing a threat, which, in effect, is what the power of last resort is, is better than leaving the system as it is and, as the witnesses from the Heateachers Association of Scotland said, allowing the system under the 2000 act and the new proportionate inspection regime to continue.
There are several themes to what Fiona Hyslop has just said. We have to remember that there is an electoral mandate and that the bill fits into the legislative programme that the Parliament agreed. Fiona Hyslop might have views on how far up the priority list the bill comes, on which I might agree with her, but leaving that political issue aside, we have to consider the purpose of the bill and whether the argument that COSLA has made that its feelings will be hurt to such an extent that it will damage its relationship with the Executive is valid. I do not think that it is. I do not accept its evidence that the bill will do that, although I accept that we have to be careful. There are fewer powers in the bill than there are in the existing framework anyway. However, members might have other views.
I will reserve my position on the bill, because at this stage I am not convinced that it is strictly necessary. COSLA was clear that it thinks that it is a waste of parliamentary time. It also challenged the view that there is a gap. I do not recall the minister giving examples of cases in which ministers have not been able to intervene when they wanted to. My understanding is that when the inspectorate reports to ministers, they can take the necessary action. I am not aware of any examples in the past 10 or 20 years in which that did not happen. I am not convinced that the bill is necessary, although I understand clearly the Executive's reasoning.
It is a test for the committee to decide how to handle this. It would be a mistake to pretend that it is possible to reach all-party agreement, because that is impossible. We should not spend inordinate amounts of time trying to reach agreement, because that is in nobody's interest, and we would end up wasting time that could be spent on areas in which we can reach cross-party agreement.
The central issue is the extent to which the bill is part of the solution to the problem. I do not think that it provides an end point because, as we identified, the process goes further.
We have to bear in mind the fact that the proportionate inspection regime has been in place only since January. That is one good reason for delaying consideration of the matter. There must be a chance to gather the information that Wendy Alexander is seeking. We must create space in which the new regime can operate.
There are two ways of doing what you are saying. One is to delay the bill and the other is to delay implementation of the bill.
The bill is important in filling the gap that is created by the fact that section 70 of the Education (Scotland) Act cannot be used by local authorities to implement HMIE decisions. The fact that there is no statutory duty to fulfil HMIE recommendations is important. The legislation might seem to be small but it is important. I do not have any problem with taking it forward.
A philosophical issue might be whether the minister should get involved at that level if the statutory duty is not fulfilled. The issue must be approached in a variety of ways.
There is a sensitivity about the relationship between central and local government; all of us in this devolved Parliament are well aware of that. We all have a duty to respect that sensitivity, which is heightened at the moment because of other bills that are being dealt with. However, I see no evidence to support the fears that have been expressed by ADES, COSLA and others. I do not accept for one second that the introduction of the bill is motivated by a desire to centralise powers, nor do I see evidence of that desire.
The point about educational improvement is central. We have received evidence that shows that the bill has the potential to hamper improvement. The Headteachers Association of Scotland made the point that any school that was referred to ministers under the powers of the bill would have been failed by HMIE—which is meant to resolve the issue, along with the local authority—and by the local authority.
That is an important point and we should reflect it in our report. The background to what we are doing is that a different regime is in place. I am not sure that I agree with the conclusion, but that is another matter. Do members feel that we have had enough of an exchange on the principles in relation to part 1? I think that there is some common ground; everyone accepts that the bill is not the most earth-shattering bill ever, in terms of the changes that it will make.
It is interesting to note that, although the section 70 powers have existed since 1980, they have been used only once. That said, what is important is that they have been used once. We did not get the detail of that instance, but it was in relation to special educational needs. Perhaps our report should reflect the fact that, although the powers will not be used often, it is important that they are in place. I do not know the details of the instance in which they were used, but I am sure that their use was warranted.
I accept the points that have been made about the importance of due process. We must be clear, however, that the need for due process should not lead to unreasonable delay. Certainly, in the current system—even under the new system—the timetable for intervention does not seem to have changed at all; a pupil might be in primary 4 before their school is inspected. If the school is seen as a failing school and is not inspected again for two years and then found still to be failing, the pupil would be through primary 6. Let us assume that we are talking about a school—secondary or primary—of 500 pupils. We could be talking about 5,000 children in Scotland who have spent their entire primary or secondary careers in a school that HMIE deemed, not once but twice, to be unsatisfactory. Even under the new system, there is no speed-up in the process and if HMIE had to come back to ministers the process would take a long time. We must be careful that we balance the need for process with the need to avoid building further delay into the system. Indeed, the opposite point could be made that, in the case of the small number of schools that are at issue, the need is for a mechanism to be put in place to ensure that there is no delay in intervention being made.
I do not disagree altogether, but Wendy Alexander overstates the point somewhat. For the minister to give a direction does not solve the problem; it still has to be solved on the ground. In that context, process is important. We have democratically elected local authorities, which—dare I say it—will be even more democratically elected if and when the Local Governance (Scotland) Bill is passed. They have a mandate from their electorate in this regard.
I would like to see a factual clarification of how long the process would take.
I have no difficulty with that.
Wendy Alexander overstates the case. We heard, from people who are very supportive of the bill, that a school that was anywhere near being affected by the powers in the bill would have had constant recommendations and contact from HMIE and support for the implementation of those recommendations. Even the supporters of the measures in the bill do not see children being abandoned for two years without any contact being made with the school.
We are dealing with a legislative environment in which the official process recognises that, in the circumstances in which schools do not operate properly, a significant number of children's education could continue to be affected for another two years after the first-round inspection. We need to be clear about the timescales for the improvement process that we have heard about today.
Time is important, but we might want to engage further on the inspection regime. Some good points were made in that respect in the evidence that we heard this morning.
What came over to me was the continuing engagement between HMIE and the schools—indeed the engagement now includes the authorities, which is a huge improvement. There is a need for an end point, otherwise the process could go on and on. Ministers have a duty to secure improvement in schools. The problem of the gap in the process remains: ministers cannot do anything about a situation in a school when HMIE tells them that a local authority is not fulfilling its responsibilities.
I think that we have got enough from our discussions. To an extent, there is a balance of views across the committee on some of the issues. I hope that the clerks can disentangle our views and come up with a good draft report. The process is important and we should not lose track of it in the overall manner in which we approach the subject. Do members have individual issues to include in our stage 1 report? We touched on triggers but, beyond that issue, I do not think that there is much by way of major detail that needs to be included.
The bill includes quite a few generalities. You made a point about the general nature of subsection (2) of proposed new section 66B that will be inserted into the Education (Scotland) Act 1980 by section 1 of the bill. You said that the new section could be about anything, albeit that it was a benign measure for the minister to use. You made another point about powers with regard to part 2.
There is also the minister's statement that the Executive's intention was not to enforce disproportionate resources on independent schools as a result of the reforms.
A number of points were made in the SCIS submission—about powers and about the care commission and the joint inspection regime—but I do not think that we need to rehash them. There was also an issue about GTC registration.
There is also the argument around the Local Government in Scotland Act 2003. Whether one agrees with the argument or not, its subtext is the perceived centralisation of powers. We should alert the Local Government and Transport Committee to the issue.
I do not accept that that is the position.
I think that, whatever your opinion—
The central issue is whether the bill increases powers in that way. We cannot entirely answer people's perceptions of the bill, but we can ask the question whether the bill will increase powers in a centralising way. I am not sure that that argument can be made all that strongly.
Some generalised statements have been made, but no detailed evidence has been given to support those assertions.
We might want to match the arguments with the assurance that we heard at the end of the minister's evidence about not micromanaging.
It is important that we do that.
Our report must reflect not only the oral evidence, but the written submissions that we received, in some of which there is specific evidence about the Local Government in Scotland Act 2003. The response from the minister today was interesting. He countered the argument that has been made on the parallel nature of the systems and inspections. We should cover what he said in our report.
We have to make a judgment on the evidence. Just because someone says that something is the case, that does not make it so. We have to judge whether the statement is factual and valid. I accept that perceptions can be important in some instances, but the central questions are what is the present situation and what does the bill do. That should be our starting point.
There is an issue of whether the bill cuts across the powers of the Local Government in Scotland Act 2003.
That is to do with the parallel regime business.
Yes. It is the question whether there is a relationship and, if so, whether it is parallel or different. The minister said that the 2003 act does not cover the inspection regime; he made a reasonable case in that regard. We should reflect in our report the number of submissions in which that issue was raised. I am not in a position to make a judgment on them.
But that is what we require. We have to judge the substance of the arguments. I thought that the minister answered the question. However, the issue may have loose or fuzzy edges. If it is thought to be a big issue, we will need to explore it. I think that we were told that the best-value regime relates to a process that is almost like an audit, rather than to the educational objectives of the bill. I might have got that wrong, but that is what I took from what the minister said.
We need to examine the relevant parts of the Local Government in Scotland Act 2003 to find the answer to the question.
It is impossible to know whether the bill will increase powers in practice. The COSLA submission says:
The HMIE reports are published and one can read HMIE's comments on whether certain aspects were fair or good. We receive the reports weekly or monthly from the inspectorate. That fact hardly ever gets publicity, but it could do. The powers have become a political issue merely because they have gone to ministerial level. It could be argued that if the issue has gone that far down the line, it ought to be the subject of public debate.
Could the clerks clarify something for us? The convener said that the first round of inspection reports is always published. However, I do not recall seeing one of the follow-up reports that are produced two years later.
I can say categorically that they are published. I have one on my desk that I received only this week.
On the new procedure, what degree of transparency will there be in the continuous intervention mode?
The point should be made that it is not necessarily the case that publicity on all of the process is a good thing.
Indeed.
We will get a draft report for consideration in due course, which I hope will reflect our discussion in the clerks' usual brilliant style. We will reach our final conclusions on the bill at a later stage.
Meeting closed at 15:35.
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