School Education (Ministerial Powers and Independent Schools) (Scotland) Bill: Stage 3
The next item of business is stage 3 of the School Education (Ministerial Powers and Independent Schools) (Scotland) Bill. For the first part of the stage 3 proceedings, members should have: the bill, as amended at stage 2; the marshalled list, which contains all the amendments that have been selected for debate; and the groupings. I will allow a voting period of two minutes for the first division on an amendment. Thereafter, I will allow a voting period of one minute for the first division after a debate on a group, and all other divisions will be 30 seconds.
Group 1 is on information to be included in references to ministers. Amendment 7, in the name of Euan Robson, is grouped with amendments 8, 9 and 10.
Amendments 7 to 10 are purely technical. They clarify that a failure that Her Majesty's Inspectorate of Education specifies in a reference to ministers under new section 66B(3) of the Education (Scotland) Act 1980 or new section 10A(3) of the Standards in Scotland's Schools etc Act 2000, as inserted by the bill, is the same failure as that identified under new section 66B(2) or new section 10A(2) respectively. The amendments also ensure that the word "failure" is used consistently in the singular throughout the bill. The use of the singular encompasses the plural meaning, and the amendments remove any uncertainty that might otherwise arise.
I move amendment 7.
Amendment 7 agreed to.
Amendment 8 moved—[Euan Robson]—and agreed to.
The second group of amendments is on variation of enforcement directions. Amendment 1, in the name of Lord James Douglas-Hamilton, is grouped with amendments 2 to 6.
The principal amendment is amendment 1, which I will move on behalf of the Educational Institute of Scotland. If the principal amendment succeeds, I will move all five of the consequential amendments; if it does not succeed, the other amendments will not be moved.
The principal amendment would delete the sentences,
"The Scottish Ministers may vary an enforcement direction by giving a further such direction",
and
"A further such direction need not proceed upon a further preliminary notice under section 66C(1) of this Act."
Amendment 4 is similar and amendments 2, 3 5 and 6 are consequential.
The amendments would ensure that ministers could take only those actions that are recommended by Her Majesty's Inspectorate of Education. Ronnie Smith, the general secretary of the EIS has stated:
"Our concern is that the initial trigger for a ministerial intervention (enforcement direction) has to be a reference from HM Inspectors—that is to say that Ministers cannot intervene for any other reason than HMIE advising them that there has been a failure to act by the school or Education Authority."
He went on to say:
"The intervention cannot be politically motivated but must stem from the independent professional assessment of HMIE, which is at arm's length from the Executive."
Under the bill, ministers, having responded to an HMIE reference by issuing an enforcement direction, may then vary the direction without a reference from the inspectorate. That opens the door to the possibility of a ministerial direction that is not based on an inspectorate assessment or on objectivity. As it stands, the requirement to consult the inspectorate is not sufficiently robust. The power to vary an enforcement direction should be deleted so that any further ministerial direction that varies the original direction should also require to be preceded by an explicit reference from the inspectorate.
To paraphrase Dunning's resolution in the House of Commons, the power of ministers has increased, is increasing and ought to be diminished. Ministers should not be afforded unlimited powers to ride roughshod over the school inspection system. Our amendments on behalf of the EIS seek to uphold the authority and independence of the inspectorate and my purpose is to test the opinion of the Parliament.
I move amendment 1.
I support this group of amendments. Lord James Douglas-Hamilton correctly highlights the almost unlimited powers that ministers are assuming to interfere in the management of schools. If members still doubt that that is the case, I refer them to page 1 of the bill, lines 18 to 20, which state clearly that any matter relating to a school that HMIE flags up can be used to stimulate a ministerial intervention. I suggest that that scattergun approach belies the rhetoric of ministers to date that their sole focus is on promoting quality in education as laid out in the Standards in Scotland Schools etc Act 2000.
Lord James Douglas-Hamilton's amendments, which seek to restrict ministers to intervening only in matters that HMIE brings to their attention, are wholly appropriate and should be supported, even though they cannot correct the fundamental flaws in the bill.
I support the amendments.
I oppose Lord James Douglas-Hamilton's amendments on the basis that they are unnecessary. To some extent I understand Ronnie Smith's concerns, but they are already addressed in the way in which the bill has been drawn up, because ministers can give an enforcement direction only on HMIE's recommendation. The only reason why ministers would wish to vary such an order in the interim would be because the local authority or school had already carried out some of the action, and ministers might want to relax the terms of the enforcement direction. Lord James Douglas-Hamilton's amendments would remove their ability to do so.
There has been a lot of paranoia around the bill, which has been completely unnecessary and of which this group of amendments is one example. I cannot imagine why a minister would wish to sit in his office imposing additional constraints or recommendations on an authority or school willy-nilly. If a minister were doing that, it would suggest to me that he or she did not have enough to occupy them.
The bill is written in such a way as to provide that ministers can take action only if the inspectors have directed the authority but the authority has not taken action. We need to make it clear that the concerns have been addressed and that there is no need to reduce the ability of ministers to vary the conditions if an authority has already met them.
What Elaine Murray said encapsulates the main issue and the points she made were good. I find it incredible to see the spectacle of the Conservative party, which largely emasculated local government under its regime, reinventing itself in the new guise of protector of local authorities.
We have to consider the context in which the powers will be exercised. The provision relates to the variation of directions that have already been given, so we will already be in the serious position of something being amiss in the arrangements that has stimulated a report by Her Majesty's inspectorate in the first place. As Lord James Douglas-Hamilton said, there is a requirement for Scottish ministers to consult HMIE before varying a direction, and ministers will also have to prepare a report on their exercise of the power and lay that report before the Scottish Parliament.
This is a fairly modest issue in the overall scheme of things, and a double lock is already in place. I do not think that there is any need to restrict the flexibility in the arrangements—which will be needed—as Lord James's amendments suggest doing. Therefore, I invite members to oppose the amendments.
From the outset of our consultations on the bill, it has been made clear that we seek the power to vary directions that Lord James Douglas-Hamilton seeks to remove. It is perhaps a first for Ronnie Smith to be quoted by Lord James, but there we are. At no stage hitherto has anyone brought to our attention the fact that the variation power could be problematic, and we do not think that it is.
There are two main reasons why the Executive does not support Lord James's amendments. First, the power to vary a direction has benefits for all the parties that are involved. The benefits are not just for ministers, but for the education authority, the managers of the grant-aided schools and, importantly, the children who are being educated in the schools or authorities that have had an enforcement direction served on them. Secondly, we believe that there are sufficient safeguards in place to prevent ministers from acting unreasonably when varying a direction.
The power to vary a direction will allow for ministers to take account of changes in circumstances during the period of compliance—a point that Robert Brown made. For example, if a direction had been served on an authority and it had been asked to comply by, say, 12 December, without the power to vary the direction, the authority or manager would have to comply by that date, regardless of any further evidence coming to light. Let us imagine that the authority then approached ministers in November to give them an update on progress and to inform them that the majority of the actions had been taken but that, due to unforeseen circumstances—say, staffing issues—the final action, although under way, could not be completed until January. With a power to vary directions, ministers could consider the evidence that the authority had put forward and might consider it appropriate and reasonable to vary the direction to make January the date for compliance. If the deadline was varied, the direction could be complied with and it would be clear that improvement was being secured for the education of young people in the authority's area. If ministers did not have the power to vary the direction, the authority would not be able to comply fully by the established date—12 December—and would, as a result, breach its statutory duty, with the consequences flowing therefrom.
With the power to vary directions, ministers will be able to retain the option of a proportionate response at all times throughout the process. The power provides the flexibility in the process that will be required to deal with changing circumstances in a proportionate manner. We would not want to lose that; it is an important power for us to have.
As I said, we also believe that there are sufficient safeguards to prevent ministers from acting unreasonably when varying a direction. First, it is a principle of administrative law that all public bodies—including ministers—must act reasonably in making decisions. Any aggrieved authority or manager of a grant-aided school could challenge a decision on the ground that a minister had acted unreasonably in varying a direction if that were the case, which could lead to judicial review. Secondly, and more specifically, any enforcement direction will be fundamentally constrained by new section 66D(2) or new section 10C(2), in that it must always relate to action that is calculated to remedy or prevent the recurrence of the failure that was originally identified by HMIE. Any variation of the direction can be made only within those constraints. A variation that was intended to require a school to take action in relation to other matters would be ultra vires. A direction must always relate back to the failure that was originally identified: it must always be within the boundaries that have been drawn by HMIE.
Thirdly, there are additional safeguards in this part of the bill. Under new section 66D(8) and new section 10C(8), ministers will not be able to vary a direction without first consulting HMIE. HMIE is the independent assessor of education in Scotland and it is right that its opinion should be sought before giving, revoking or varying a direction. Fourthly, under new sections 66D(11) and 10C(11), ministers will have to report to Parliament on any use of the powers under that part of the bill, so if Scottish ministers consider that varying a direction is appropriate, they will be aware that their decision will be brought before the Parliament.
We expect that the power to vary a direction will be used infrequently, but any circumstances in which it is used will be truly individual. As I said, it is important that ministers have the flexibility to respond to changing circumstances. The power to vary conditions will allow that. Without it, we risk placing an authority in breach of its statutory duty unnecessarily, or delaying the delivery of improvement in the education of children.
We believe that the power to vary alongside—and I underline this—relevant safeguards is a fair and proportionate provision. I hope that I have been able to dispel some of the misunderstanding about the provision and, given my assurances, I ask Lord James to withdraw his amendment.
I regret that I am not persuaded by what the minister has said. I make it quite clear that the position of the EIS is not that there should never be any variation; it is that if a further ministerial direction varies the original direction, that should be preceded by an explicit reference from the inspectorate. The minister is trying to take away that function from the inspectorate and concentrate the power in his hands.
I appreciate the argument that the minister would act reasonably, and I have no doubt that he might. However, there might come a time when we have a minister who is not as reasonable as the current minister is. We have seen this morning that ministers come and go with great frequency. The minister cannot give a commitment that binds all future ministers, because he cannot say who his successors might or might not be. I doubt if even the First Minister could say that at this moment in time.
I am not persuaded by the minister and I will press my amendment.
The question is, that amendment 1 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (Aberdeen North) (SNP)
Aitken, Bill (Glasgow) (Con)
Baird, Shiona (North East Scotland) (Green)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Byrne, Ms Rosemary (South of Scotland) (SSP)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Ewing, Mrs Margaret (Moray) (SNP)
Gibson, Rob (Highlands and Islands) (SNP)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Ingram, Mr Adam (South of Scotland) (SNP)
Johnstone, Alex (North East Scotland) (Con)
MacAskill, Mr Kenny (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
McFee, Mr Bruce (West of Scotland) (SNP)
Milne, Mrs Nanette (North East Scotland) (Con)
Monteith, Mr Brian (Mid Scotland and Fife) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Sheridan, Tommy (Glasgow) (SSP)
Swinburne, John (Central Scotland) (SSCUP)
Swinney, Mr John (North Tayside) (SNP)
Tosh, Murray (West of Scotland) (Con)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Against
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Richard (North East Scotland) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Canavan, Dennis (Falkirk West) (Ind)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Glen, Marlyn (North East Scotland) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Scott, Tavish (Shetland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 35, Against 59, Abstentions 0.
Amendment 1 disagreed to.
Amendments 2 and 3 not moved.
Section 2—Power of Scottish Ministers to require action by education authorities
Amendments 9 and 10 moved—[Euan Robson]—and agreed to.
Amendments 4, 5 and 6 not moved.