School Education (Amendment) (Scotland) Bill
The second item on our agenda is stage 2 consideration of the School Education (Amendment) (Scotland) Bill. I will briefly advise members of the procedure for dealing with stage 2 of a bill. Members should check that they have copies of the bill, the marshalled list of amendments and the groupings of the amendments.
The amendments have been grouped to facilitate debate. There are only two admissible amendments, both of which have been arranged in groups on their own. The order in which the amendments are called and moved is dictated by the marshalled list. The amendments will be called in turn from the marshalled list and will be taken in that order. We cannot move backwards on the marshalled list. Once we have moved on, that is it.
There will be one debate on each amendment. I will call the proposer of the first amendment, who should speak to and move the amendment. I will then call other speakers, including the deputy minister. Following the debate, I will clarify whether the member who moved the amendment still wishes to press it to a decision; if not, he or she may seek the agreement of the committee to withdraw it. If it is not withdrawn, I will put the question on the amendment. If any member disagrees, we will proceed to a division by a show of hands. It is important that members keep their hands raised until the clerk has fully recorded the vote.
Only members of the Education, Culture and Sport Committee may vote. Other members of the Parliament may speak to or move amendments, but they are not able to vote. That said, no other members are present. If any member does not want to move their amendment, they should simply say "Not moved" when the amendment is called.
After we have debated the two amendments, the committee must decide whether to agree to each section as a whole and to the long title. Before I put the question on any section, I am happy to allow a short, general debate, which may be useful in allowing discussion of matters not raised in amendments and to clarify further points.
Section 1—Placing requests: children under school age
Amendment 2 is in a group of its own.
When we took evidence at stage 1, the Convention of Scottish Local Authorities expressed concern about whether the wording of section 1 fulfilled the general purposes of the bill, which we have all unanimously endorsed. At stage 1, COSLA agreed to produce a form of words for the committee's consideration.
In the stage 1 debate, I referred to the Executive's unfortunate tendency, when challenged on drafting issues, to pull down the shutters, retreat behind the ramparts and say, "Our drafting is always perfect." I regret that the Executive is not willing to consider amendment 2 on its merits, as the wording it suggests puts the matter more neatly and elegantly and boils the bill's purpose down to its essence.
Not only that, but a lengthy letter in Nicol Stephen's name includes an incredible proposal at the bottom of page 2 to add an amended paragraph, which is 15 and a half lines long, explaining the bill. I would have thought that, to avoid difficulties of interpretation, legislation should be brief, to the point and accurate in its wording. My point is rather made for me by the fact that, instead of accepting another way of drafting the section, which might more accurately fulfil the bill's purposes—not only in COSLA's view, but in the view of a number of other authorities—the Executive suggests a 15 and a half-line paragraph that attempts to get round that problem and another problem that we shall come to later and which is another issue for the Executive.
There should be a debate on the merits of simply getting the legislation right. We should remind ourselves that the bill exists because the previous legislation was wrong. I have to say—and this is no criticism of the individuals involved—that the legislation was drafted by the self-same people who now tell us that it is right. Experience is a wonderful teacher. It is possible that COSLA's wording, which has been supported by a range of authorities, is a better way of putting the matter. It would greatly please me—and, I hope, fair-minded committee members and the Parliament—if the Executive would for once accept that there is another, better, sharper and clearer way of doing things. The new First Minister reminded us in his acceptance speech last Thursday that all wisdom does not lie with the Executive or its civil service. Perhaps we could make some progress in that respect.
Although the matter may seem minor, it says a great deal about how the Parliament works. It would be nice to think that people from outside with real experience could take precedence over Executive civil servants and their die-in-the-ditch approach.
I move amendment 2.
I do not disagree with the drift of what Mike Russell says, but I am content if the legal advice is that the current phraseology is watertight. In that sense, it will not matter which amendment we accept as long as the objectives of the bill are kept.
I feel a wee bit more humble than Mike Russell, in that the Education, Culture and Sport Committee passed the bill and did notice any mistakes in it in the first place.
It strikes me that it would be possible to pass amendment 2 and then hear the case for amendment 1. Would it be possible to pass both? Mike Russell suggests leaving out lines 7 to 21 in section 1, page 1 of the bill. There is an amendment to line 19, which would no longer be there if his amendment is passed. Will you clarify the position, convener?
The amendments are on different issues and do not rely on each other. There will be a vote on each. They are grouped separately and the committee will vote on them separately.
I accept that the issues are separate.
We can accept both amendments.
In that case, amendment 2 is worth supporting. The bill amends an act that was found to be faulty. When we took evidence, Jack McConnell told us, in relation to amendment 2:
"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."—[Official Report, Education, Culture and Sport Committee, 23 October 2001; c 2678.]
At some stage, he decided that he was wrong. I think that it is better for the moment to take out an insurance policy, pass amendment 2 and settle the affair at stage 3, when we can be sure which approach is the best way to deal with the issue. For the sake of the Parliament's reputation, I do not think that we can risk going through this another time.
As no other member wishes to speak, I invite the deputy minister to respond.
Thank you. I agree with Mike Russell that it is important that we get the legislation right. We have lodged an amendment and the issue will be debated in the next group of amendments, as the convener pointed out. We have considered carefully the representations that were made at the consultation stage and have proposed appropriate changes. In this instance, we do not believe that a change is required or—this is a separate point—that amendment 2 would achieve the bill's objectives as stated in the bill and the explanatory notes and as supported by the committee.
Members will recall that the matter was discussed at the Education, Culture and Sport Committee's meeting on 23 October. Brian Monteith pointed out that Jack McConnell indicated that the bill was, in his opinion, correctly drafted and reassured the committee and local authorities that had expressed concerns.
We have considered in detail the points that have been made and are still confident that the bill correctly reflects our policy objectives. Our policy is to allow all parents to make placing requests for their children, if those children are eligible to start school at the August intake. Those placing requests can be made once the previous school commencement date has passed, but not before. The school commencement date is the August before the date on which the children would be entitled to start school. It is important to focus on that when considering Mike Russell's amendment.
As has been said, I wrote to the convener of the committee on 23 November with a statement of clarification, explaining the Scottish Executive's understanding of the concerns raised, the Executive's policy in relation to the bill and the effect of section 1 as it is currently drafted. We do not believe that section 1 requires to be amended, because it reflects the policy intention. However, we recognise that paragraph 4 of the explanatory notes to the bill would benefit from amendment to clarify the issue. That will be done so that the explanatory notes that are published with the act explain the situation better.
As Mike Russell has pointed out, my letter to Karen Gillon contains a proposed amended paragraph 4 for the explanatory notes, which is 16 lines long, by my calculation, not 15. The previous paragraph 4 of the explanatory notes, which is being replaced, was 14 lines long. Part of the difference could be allowed for by the fact that my new paragraph 4 is indented somewhat. As Mike Russell will be aware, that can make a difference to the line count.
Copies of my letter have been sent to COSLA and to the two local authorities concerned. I hope that the statement of clarification addresses adequately the concerns expressed during stage 1. It is important that we have debated the issue and that we have had the opportunity to consider it closely.
There is uncertainty about the effect of amendment 2. Even allowing for that uncertainty, the amendment would produce a different result from our policy intention. Mike Russell's amendment 2 refers to a child who will be five years old
"on or before the appropriate latest date".
It is not clear from the wording of the amendment which appropriate latest date is being referred to. The word "next" should be inserted, as it has been in section 1(1)(b) of the bill. That section of the bill shows the proposed amendment to section 28A of the Education (Scotland) Act 1980, to insert a new section (6)(b)(i), which refers to a child
"who, on the next school commencement date, will have attained the age of five years".
If the word "next" had been used in amendment 2, that would have got round the uncertainty. Without the word "next", the amendment would lead to confusion as to when a valid placing request could be made. The courts might interpret that as the next appropriate latest date, but even if they did, amendment 2 would still not implement the Executive's policy, because parents would be able to make a placing request only six months or so before their child was due to start school, or after February. The end of February is the previous appropriate latest date. Therefore, parents would have to make a placing request after the previous appropriate latest date for their child to start at the next appropriate date.
We are introducing the change because the present policy does not reflect what we wish the situation to be. Therefore, our intention is to revert to the previous situation which, in effect, means that a child can be three and a half years old at the start of the school term prior to the August in which the child would start school. In other words, as soon as the school term has begun, in relation to the previous year, the child's parents can put in a placing request. After the school term has begun, the year before the child is due to start school, the parents are entitled to put in a placing request. The effect of Mike Russell's amendment is that parents would have to wait until after the "appropriate latest date" had passed and so would have a much shorter period in which to submit the placing request to the local authority.
I am happy to provide further clarification if that is required. On that basis, I ask Mike Russell not to press amendment 2.
Judging by the response of the committee, I think that you have raised a few more questions.
The matter is even less clear following Nicol Stephen's explanation. I am wary of asking for further clarification. I am not totally convinced by Mike Russell's amendment either. I do not think that either option is suitable, and I wonder how the committee might be able to assess the situation before the bill reaches stage 3.
I suggest that Mike Russell's amendment deserves support. In debate before, when taking evidence and at stage 1, a number of people claimed to have the definitive view. I am minded to support amendment 2, which would at least give us further time to determine which position is appropriate. We can then make a decision at stage 3 without difficulty. I have no doubt that, even if Mike Russell's—or COSLA's—amendment is right, if the minister disagreed with it, the whip would see that the minister had his way. I do not think that there would be any difficulty with our supporting Mike Russell's amendment.
The minister suggested that, if the word "next" had been included in amendment 2 before the word "appropriate", that would have been an improvement. However, he went on to say that, although that would have been an improvement, the amendment still would not have been right. He gave a long explanation, which I am not going to try to repeat. Nevertheless, the amendment contains the word "before". Does not the word "before" satisfy the point that the minister was making? The amendment uses the phrase "on or before" in reference to the next appropriate latest date, whereas the minister seemed to be saying that the problem was that the amendment said on or after the appropriate date. Perhaps that is because we are talking about two appropriate dates.
As I recall, we did not deal with this issue during the passage of the Standards in Scotland's Schools etc Act 2000 because Peter Peacock said that the Executive could not find the appropriate words to suit the legal minds. I have sympathy with amendment 2. The committee would find it useful to be able to consider the issue and lodge an amendment, to which the minister can respond, either at stage 3 or in the near future. We have been here before and the wording was not right.
The issue has not been ignored. It was not ignored during the stages of the Standards in Scotland's Schools etc Act 2000. The problem was that the wording was not appropriate. I am worried that we will agree something now that will come back to us again. I do not know what members feel about an amendment at stage 3. I do not think that we have the appropriate wording in the bill or in amendment 2. We need to get that in place. The deputy minister's explanation was a bit woolly.
There are genuine concerns among members of all parties around the table. I am not convinced that people are happy yet with what we have.
I am not a lawyer, but the minister apparently is—although his statement was confusing. Without being partisan, the genuine feeling of everybody round the table is that we do not now know what the situation is. It seems to me that the best way to deal with that procedurally is to pass amendment 2 and tell the Executive to lodge an amendment at stage 3. The Executive can do that at stage 3, but the committee cannot, even if a member's amendment is rejected at stage 2.
If amendment 2 is passed today, I am happy for the Executive to come back with a watertight amendment at stage 3, with advice on how it will work. We could ask COSLA—and anybody else that we like—for its views on such an amendment. If the advice at stage 3 is that amendment 2 is wrong and needs a final draft, I am happy to vote for a further amendment at stage 3. However, the best way to get that to happen is to pass amendment 2 today. That would put the ball back in the Executive's court and we could ask it to come back with a convincing explanation.
The minister is right to say that the word "appropriate" does not mean "next". However the word "appropriate" does not mean just one time; it might mean different times. We could debate the semantics for ever, but if the best we can do is to make amendments to explanatory notes that have no legal force, we are going back down the road that we found ourselves on before.
I ask members to consider passing amendment 2. I make an absolute, on-the-record commitment that if, between now and stage 3, the Executive comes back with a clear explanation, I will be happy to vote for that along with other members of the committee. However, we will need an opportunity to debate the matter at stage 3. Given the procedure for the admissibility of amendments at stage 3, amendment 2 might not be taken again at stage 3 if it is defeated now. Therefore, the best way forward might be to pass amendment 2.
If we stand back from the matter, we realise that we all know and support what the Executive wants to do. This discussion, with its explanations, will be on the record and will be helpful. To be honest, Mike Russell's argument that we should pass amendment 2 is difficult to resist, because that would allow us to improve the bill by amendment at stage 3. Perhaps the minister will recognise that passing amendment 2 would not be obstructive, but would give us a bit more time.
I am extremely reluctant to accept an amendment that clearly does not achieve the policy intention of the bill or the clarity that the committee seeks. If amendment 2 were passed, there would be the confusion and the uncertainty that I have talked about. I think that what is sought from the Executive is greater reassurance. Mike Russell shakes his head. Perhaps I should pause so that he can clarify what he is looking for. I thought he was looking for greater reassurance that the bill achieves the policy objectives as we all understand them. We could all articulate those objectives, in fairly simple terms, and explain them to each other. We want to ensure that the policy objectives are achieved through legislation and detailed legal language.
I think that members seek what they have sought since the beginning: clarification in the bill, not in a policy memorandum or somewhere else. The problem is that the bill was drafted incorrectly at stage 1. We were probably as wrong as anybody else in not noticing that—none of us is a lawyer. However, a problem with the bill has been drawn to our attention. The problem is in the bill, not in the policy memorandum. We had representations at stage 1 that the bill needs to be clarified—that is what members want.
I understand that and I believe that I might be able to give some reassurance. Mike Russell's amendment 2 contains the words:
"or who will attain the age of five years on or before the appropriate latest date fixed under section 32(4)".
That appropriate latest date is a date in a 12-month period—currently, the end of February. If amendment 2 was included in the legislation, the parents of a child aged three and a half or over would be unable to submit a request between September and February inclusive, because that child would be four years old on the appropriate latest date. Under the previous arrangement, to which we want to return, they would be able to submit a request. I see that Mike Russell is shaking his head again, but unless we change the definition of the appropriate latest date in section 32(4), the consequence of agreement to amendment 2 would be as I suggested. I would therefore be reluctant to proceed by agreeing to amendment 2, which would result in greater uncertainty and a lack of clarity.
I remind the committee that we have not received the reactions of the Convention of Scottish Local Authorities and the local authorities to the explanatory letter. I undertake to obtain their reactions and, if they are still dissatisfied, to meet them to try to reach a shared view on the best way ahead and the best legal wording. If the committee wants to make its views known or send a representative to that meeting, that would be constructive and would help to achieve consensus on the wording that is required to achieve the policy objective that we all share.
If COSLA says that the explanation in the letter is unacceptable and agrees with the Executive on a different form of words, will you lodge that as an Executive amendment at stage 3?
I offer an undertaking to be willing to seek an agreement between the Executive and COSLA. We are prepared to consider different forms of words. I do not offer an undertaking to accept whatever wording COSLA comes up with because—as everyone would agree—there is considerable legal knowledge and drafting expertise within the Executive. However, the Executive wishes to share a view with COSLA. We offer an undertaking to attempt to find a joint and agreed position with COSLA and with the committee, if members wish to be involved.
Amendment 2 represents COSLA's thinking on the matter. It is, in effect, a COSLA amendment.
I welcome the minister's offer to speak to COSLA, because COSLA consists of the people who will implement the legislation and who therefore need to be happy with the amendments. The bill needs to be clear and unambiguous so that the matter does not come back to the committee next year. However, as Irene McGugan said, the amendment represents COSLA's view.
If my judgment is correct, committee members require reassurance. The City of Edinburgh Council, Glasgow City Council—which had its own views—and COSLA sought professional opinions about the bill. The Executive has its opinion about the result of the bill's enactment and those opinions conflict. The committee's difficulty is that we must resolve that.
We must be satisfied that what we pass to stage 3 does not leave us nervous that we might have to revisit the matter. If professionals have conflicting opinions, it is proper that they resolve them; it is good if they can do that. However, in the politics—not party politics—of achieving that, I am minded to support Mike Russell's amendment 2, so that due weight is given to the importance of consensus on the right approach.
I assure members that if they accept the undertakings that I am giving, I will personally convene such a meeting. I do not promise to be at every meeting, because there might be detailed legal work to do, but I would convene such a meeting with COSLA and try to ensure that agreement was reached.
COSLA has not had the opportunity to respond fully to the letter that I issued. It is fair to say that amendment 2 was drafted before COSLA saw the letter. COSLA has also not had the opportunity to hear the Executive's legal draftsmen's view of the wording. There is every prospect that if we had such a meeting and examined the detailed legal wording, a commonsense way ahead could be found. We are looking for a commonsense way ahead that not only achieves our policy objectives, but achieves them with as much clarity and simplicity as possible. That is my undertaking, but it is in the hands of the committee to decide how it wishes to proceed.
I welcome the minister's commitment to discuss matters with COSLA. Further discussion will be a step forward. However, we should put the matter in context. COSLA gave us evidence on 23 October. The stage 1 debate in the chamber took place on 15 November and concerns were expressed again on that day, when the Executive continued to defend its position. We received the amendment from COSLA last Thursday. We have COSLA's amendment 2 and the Executive's position is the status quo.
The minister agreed generously that the committee might be represented in discussions between the Executive and COSLA. If new wording emerges from such discussions, that is well and good, but we do not know whether it will. However, we know some indisputable facts: the bill exists to amend badly drafted legislation; the Executive has had to lodge an amendment to the bill; and the Executive has had to mend the bill's explanatory notes. All that strikes me as problematic and worrying in terms of getting the legislation right.
The question for the committee is simple: procedurally, how do we require the Executive to produce a form of words on which it and COSLA agree and that will be absolutely right for the circumstances? There is only one way in which we can do that, which is by agreeing to amendment 2. I dispute the minister's version of the meaning of amendment 2. Many members have had such discussions with ministers time and again and much of what is said by ministers is sophistry. However, the committee can agree to amendment 2, which would require the Executive to lodge a detailed amendment to remove it, as I am sure it would wish to do.
In those circumstances, if discussions had taken place with COSLA and it agreed with the new form of words, I would be the last person to support anything other than that we change it back. However, if we do not do that, it will not be possible procedurally for us to require the Executive to think again about the issue. We must require the Executive to think again. I am going to press amendment 2 to a vote because I will be happiest if we agree to it in the knowledge that an amendment will be lodged at stage 3. The Executive might be able to prove then what it has been unable to prove today.
Amendment 2 agreed to.
The minister will be aware of why amendment 2 was agreed to and of what is required at stage 3.
The minister will speak to amendment 1.
It is not, and never has been, our intention to restrict the rights of parents of children who have records of needs to make placing requests. That is reflected in section 43(4) of the Standards in Scotland's Schools etc Act 2000, which states explicitly that exclusion of nursery schools and classes from placing request legislation does not apply to children who have records of needs.
Following careful consideration of a point that was raised by Scottish Borders Council, we accept that an additional provision in the bill would clarify that the provisions of section 1(1) of the bill do not apply in relation to children who have records of needs. Amendment 1 is simple and straightforward. It constitutes additional provision that is required for clarification that we believe on reflection will be important in this area. I invite the committee to maintain its 100 per cent track record in supporting amendments this afternoon.
I move amendment 1.
Are there any comments from members?
Given previous discussions that we have had on the matter, it makes sense to support amendment 1, which I am happy to do.
Amendment 1 supplies the clarification that we were looking for.
Amendment 1 agreed to.
Section 1, as amended, agreed to.
Section 2—Provisions relating to the abolition of the post of assistant headteacher
I wish to raise an issue that was raised in the COSLA submission of 23 October—which was also discussed at stage 1—relating to section 2, whereby the requirement to advertise the post of assistant head teacher is abolished to facilitate the McCrone recommendations. There is an anomaly, because the post of principal teacher is in a difficult situation with regard to McCrone.
At the moment, assistant principal teachers and senior teachers, under the agreement that is being progressed, will be regraded in terms of chartered teacher status or principal teacher status. A number of teachers who are in post now will be regraded. At present, a post of principal teacher, if one became vacant tomorrow, would have to be advertised nationally. That could cause difficulties in implementing the McCrone recommendations, because of the pool of potential principal teachers who are being regraded and reassessed under the McCrone agreement.
Those points were raised during stage 1 and we believed that the minister would, at stage 2, be able to help with problems during the transitional period by suspending the need for national advertising, thus giving local authorities more flexibility. The Educational Institute of Scotland and COSLA support that, but I understand that it has not been possible to make such an adjustment to the bill. Does the minister acknowledge the problem and will he give his views on how we can deal with it so that we can implement the McCrone proposals?
That is outwith the scope of the bill.
I understand that.
Your points have been noted and are on the record; I am sure that the minister will take them on board. However, I do not want to indulge in a long debate on the issue because my legal advice is that the matter is outwith the scope of the bill. I have already ruled out an amendment on the issue, so it would be inappropriate for us to engage in further debate.
I accept that ruling, convener, but I hope that the minister was listening.
Your views are on the record; they are shared by other committee members, including me.
I am not sure to what extent we are supposed to refer to our legal advice; previously, I have been counselled not to refer to the details of legal advice.
I stick by my legal advice 100 per cent.
Our advice has been the same as the convener's: in a two section bill such as the School Education (Amendment) (Scotland) Bill, it would be inappropriate to introduce amendments. Suffice it to say that we have considered the issue and that we had hoped to do something. Because we have been unable to achieve any change in the bill we will discuss the issue with COSLA and the teachers' organisations through the Scottish Negotiating Committee for Teachers. I will raise the issue at the meeting about amendment 2, which I have undertaken to convene with COSLA. The problem will not be addressed in the bill, but we will consider how to make sensible progress outside primary legislation, if possible. We will keep the committee informed of developments.
That is helpful clarification.
Section 2 agreed to.
Section 3 agreed to.
Long title agreed to.
That ends stage 2 consideration of the School Education (Amendment) (Scotland) Bill.