Education, Culture and Sport Committee, 23 Oct 2001

Meeting date: Tuesday, October 23, 2001

Official Report 213KB pdf

---

School Education (Amendment) (Scotland) Bill: Stage 1

Having concluded our deliberations on the budget, we move to item 5.

Thank you, convener.

You are staying, minister.

May I swap teams?

Yes, you may.

We move to stage 1 consideration of the School Education (Amendment) (Scotland) Bill. We are considering the general principles of the bill. The Minister for Education, Europe and External Affairs is here with a team of relevant officials from the education department. I invite him to make some introductory remarks on the bill.

If we had not just been discussing the budget, I would have described the bill as technically complex. It seems fairly straightforward and simple compared to what we have just been considering.

This is a straightforward bill, which is designed to solve problems, rather than change the legislative framework within which the education service operates. The first provision is to correct an unintended error that arose as a result of the Standards in Scotland's Schools etc Act 2000, which removed the automatic right to a place on request for certain parents who would otherwise have been granted it. The second provision is to ensure that we can implement in full the agreement that we reached with the teaching profession and local authorities earlier this year. In both areas, the provisions should be straightforward. The principles behind them are, I hope, in line with what the committee would expect us to be achieving for education: solving problems where they occur as quickly as possible.

I should perhaps mention that the consultation period was slightly shorter than usual. There were three good reasons for that. First, for the bill to be effective for the next academic year, we need to get royal assent by February. Secondly, the agreement reached with the teaching profession and the local authorities was the subject of widespread consultation last year and the arrangements for assistant head teachers were part of that agreement. Thirdly, on placing requests, no one can find any evidence that anybody would have supported the change that was unintentionally made through the 2000 act, and consultation, although important, would not necessarily require 12 weeks to prove that.

It was also important to check with the Scottish School Board Association in advance that it was comfortable with the temporary suspension of its role in appointments, as part of the job sizing and the implementation of the agreement. We checked with the SSBA in advance of the consultation period that it is comfortable with the change and fully supports it. We carried out the necessary consultations in the service and then had a period of wider consultation.

I should perhaps highlight two issues that were raised during the consultation period. I wish to return to them at stage 2, although they do not affect the principles of the bill, which form the subject of today's discussion. One of those relates to the position of recorded pupils and placing requests for them. We do not believe that that requires any further legislation, but it may require a clear statement relating to the legislative provisions in place. The other concerns the position with principal teacher posts and their advertising at a national level, and the possible effects on that of the job sizing of assistant principal teachers and their assimilation into the new structure. I think that the Convention of Scottish Local Authorities may raise that point with you later this afternoon.

We intend to return to both those issues. We are aware of them and are giving further attention to them at the moment. We do not intend to obstruct their being effectively dealt with as part of the consideration of the bill.

I invite members to make comments or ask questions.

The policy memorandum details three alternative approaches. One is to leave things as they are, for which, clearly, there is little support, as you have explained, minister. The third approach is to amend the Education (Scotland) Act 1980, which the bill seeks to do. The second approach is to repeal a part of the 2000 act. The policy memorandum says that that

"approach is considered to be unhelpful, and would not reflect the Executive's intention."

Why does the Executive believe that that approach would be unhelpful?

We have chosen the legislative route that is before the committee today because it is the most straightforward, speedy solution to a problem that was never intended. It is relatively easy for us to make such provisions, as members can see if they look at the bill. A comparison between that approach and the option that would repeal the changes made to the 1980 act by section 44(2) of the 2000 act led us to believe that the third option in the policy memorandum was the quickest and easiest route to follow.

That leads me to my next question. It appeared to me that a repeal would allow the parents of children of all ages to make a request to return to the previous position. In their written responses to the consultation, the City of Edinburgh Council and Glasgow City Council both voiced their concern that the bill, in particular section 1, does not fulfil the Executive's intentions. Both councils seem concerned that, although the Executive's intention is to allow pupils of four and a half to go to the school of their parents' choice through placement request, that opens up a choice to parents of children of four years. Are you aware of that evidence? If so, do you intend to make any appropriate amendments to the bill?

If I may first clarify the previous point, the whole rationale behind section 44(2) of the 2000 act was to clarify a position that local authorities and parents had found to be unclear in the first place. If we were simply to repeal that section, rather than amend the 1980 act, as we propose, we would return to that unclear situation. Repeal of the section might sound like the easiest option, but it does not solve the problem, because it reverts to a situation that everybody seemed to be unhappy with at the time.

To answer the point that you have just made, Mr Monteith, we are aware of the representations that have been received on the matter and we have checked in some depth with draftsmen and solicitors on it. There is no support in the Executive at a professional level for the view that has been expressed. We believe that the provisions of the bill are technically correct and we will be informing both local authorities of our view in the hope of reassuring them on that point. We have no doubt that we can do so.

Some time before the bill was introduced, I raised with you the difficulties that had arisen for a placing committee in South Ayrshire Council. Obviously, the bill goes a long way to meeting those difficulties. However, South Ayrshire Council's submission to the committee claims that abolishing the post of assistant head teacher will have implications for that council. What consideration has your department given to the difficulties that councils will have? I presume that the council is referring to both financial and operational difficulties. Do you regard those as significant?

In all the discussions about the new agreement, which took place between the autumn of 2000 and the early part of 2001, a variety of different points of view on promoted posts within schools was taken into account. The agreement, which was reached with the strong support of the Association of Directors of Education in Scotland and COSLA, was quite clear that that post would be abolished so that local authorities would have more flexibility in their arrangements for promoted staff in schools and so that some of the existing restrictions could be removed. In due course, once authorities develop in their discussions and start to consider the structures that will exist in schools next year and beyond, they will see those opportunities. Already, some Scottish authorities are well down the road of devising imaginative new structures for schools that are better at focusing management on the tasks at hand than were some of the traditional structures that existed 30 years ago. That is a good thing.

There are obvious funding implications in the job-scoping exercise that is being undertaken. Whatever else it is, it will not be financially neutral. Given the fact that some of the rural local authorities are already saying that the agreement has given them difficulties, are local authorities adequately funded to cope with that? What consideration is your department giving to that issue?

Yes, I believe that local authorities are adequately funded to deal with the outcome of those discussions. Back in early 2001, we were clear that we would not sign off the agreement with the local authorities and the teachers unions until we had an understanding with the local authorities that that additional funding would be adequate. Both rural and urban authorities had representatives in those discussions and the whole of COSLA was involved in the sign-off of the deal and the financial arrangements that went with it. We are very confident that the provisions are adequate.

Do you not hold out any hope for rural authorities that say that they are having genuine difficulties because of the deal? Will you not make any gesture?

I hold out lots of hope for rural authorities. They will find that the potential that exists as a result of the new agreement is of real benefit. The new structures and the flexibility that is built into the system will be of benefit to small rural schools in particular. The authorities and the school management will be given the sort of flexibility for which they have been crying out for years, so that they can improve education services at a local level.

I welcome the bill. There was some discussion about placement requests for four-and-a-half-year-olds when we debated the Standards in Scotland's Schools etc Bill. I am sure that I am not the only MSP who has been working with parents who have had problems that will be resolved by the School Education (Amendment) (Scotland) Bill. I therefore think that the bill is timely. It is worth noting that the response from the consultation has been positive. I welcome the minister's statement, especially what he said about recorded pupils. Perhaps the bill will be an opportunity to give some guidance on that issue.

We do not believe that the bill will affect the statutory rights of parents of recorded pupils. We may need to make a statement that clarifies that position. We intend to consider that issue and report back to the committee at stage 2.

Fife Council's response to the consultation raised an issue in relation to the Christmas leavers, which was also raised with the previous minister on a number of occasions. Fife Council asked whether a change could be made to allow pupils who have completed four years of secondary schooling to leave school. The opportunity to amend that situation has not been taken in the bill, but will the Executive accept amendments or will it lodge its own amendment on that issue? Will the Executive bring that issue within the scope of the bill?

At times behaving like a troublesome back bencher, I tried to add all kinds of things into the bill but without luck. I was told that the bill must contain only its current provisions and that nothing else could be added. I suspect that Mr Monteith will be told the same thing. I am not unsympathetic to the point of view that Fife Council has expressed, but we will need to discuss it over the longer term. It would not be appropriate for it to be included within the bill.

I welcome the tone of the conversation, in which the minister has shown that he is willing to look for opportunities to tweak things. If the bill is not the proper place for it, that is good. I am still delighted to hear that he is considering the situation with regard to recorded pupils, which is an important and sensitive area in which guidance and help is needed.

If there are no further questions or comments, I thank the minister for his attendance. The committee shall adjourn for two minutes to allow witnesses to change over.

Five?

No. Two minutes.

Meeting adjourned.

On resuming—

We resume taking evidence on the general principles of the School Education (Amendment) (Scotland) Bill. I welcome Councillor Helen Law, Timothy Stone and David Sillars from the Convention of Scottish Local Authorities, whose written submission has been circulated to members.

We are grateful for the opportunity to give evidence on the bill. We are becoming accustomed to this new method of working. We have been along to a few committees and have generally found it to be helpful and constructive.

COSLA supports the general purpose of the bill, but we are concerned that the current drafting could result in its aims not being achieved. We would like to flag up our concerns.

Our submission has been circulated—rather than reading it out I thought that we would give the committee time to read it and then we would answer questions. We have tried to highlight our main points. The time scale was short, but we have carried out some consultation. We would be happy to return to the issues at stage 2, having carried out further consultation.

Do members have comments or questions?

Do I take it from your submission, which is interesting, that you believe that implementing the McCrone settlement as it is presently constituted will mean that any changes that are made to principal teacher posts in the job scoping exercise will require the posts to be advertised nationally? Is that likely to happen?

We hope that the posts would not have to be nationally advertised.

But do you believe that that is what will happen?

We are uncertain about what will happen.

As the legislation stands, there is a requirement for all principal teacher posts to be advertised nationally. It may be that the filling of posts as a result of McCrone does not meet the requirements of the legislation. It would be best if the matter were clarified. COSLA is flagging the issue up.

I would be surprised if others did not agree that if the posts were to be advertised nationally it would be contrary to what anybody expected to happen. If it was to happen, your point is correct. If no clarification can be given, the exclusion that applies to assistant and deputy head teacher posts for the job scoping exercise would have to apply to principal teacher posts for a specified period of time.

My questions are on section 1 of the bill. Glasgow City Council and the City of Edinburgh Council submitted replies to the consultation that raised the same concerns as you have raised about the ability to make placing requests for children that are, for the sake of argument, aged four years and one month. The paper states that COSLA is waiting for further responses from its other members. Has COSLA taken legal advice or will it determine its views according to what COSLA members have done? The City of Edinburgh Council has certainly taken legal opinion.

David Sillars is here to give legal advice. I ask him to comment on his involvement up until now.

The issue arises as a result of the drafting of proposed subsection 1. Having heard the minister, I am aware that there are differing professional views, but it appears to me that there is a substantial possibility that clarification, which is the desired result of the bill, may not be achieved. I have advised COSLA that there is the potential at least for confusion about whether the policy aspiration of limiting placing requests to children aged four and a half and above will be achieved.

The background to the bill is that it is meant to amend an act that was in effect badly drafted—or drafted with an unintentional mistake. Are you saying, in effect, that if the bill becomes an act, parents could challenge it in court and that, if that was successful, we would have to amend the legislation yet again?

I feel vulnerable professionally in standing in for the minister, so I will be a little bit cautious in my answer. I am not omniscient with regard to the legislation, but it does seem, on the face of it, that there is a point that is worth further exploration.

In the short time I was sitting at the back, I heard the minister say that there could be a statement of clarification on the issue. That statement might well suffice. At the moment, COSLA is concerned that the bill is not 100 per cent watertight and might involve councils in several actions that should be avoided.

The committee shares your concerns that the legislation should be watertight. We will point that out in our report.

If there were no statement of clarification, would COSLA be in a position, along with others, to suggest an amendment? Has Mr Sillars considered that?

Yes. Our submission suggests an amendment and I understand that the City of Edinburgh Council has suggested an amendment along similar lines.

That is something that we will want to consider at stage 2.

I thank the witnesses for their time. We would appreciate receiving feedback from other member councils in time for our stage 2 deliberations. If there is no statement of clarification, we will be back in touch with regard to potential amendments.

Meeting adjourned.

On resuming—