Response to Consultation
“Empowering Teachers, Parents and Communities to Achieve Excellence and Equity in Education” – A Governance Review

Introduction

1. My purpose in responding is to highlight certain legal issues which arise. It is hoped that these comments may be of assistance to those considering these matters.

2. Education law in Scotland already affords education authorities and Scottish Ministers a degree of flexibility in terms of governance arrangements. For example, section 24 of the Education (Scotland) Act 1980 allows for education authorities to make payments to independent schools or to other bodies providing education or education services, allowing authorities to procure educational services from third party providers in the voluntary sector. The section contains a mechanism for allowing authority representation on the boards or other governing bodies of such schools. Similarly, section 73 allows the Scottish Ministers to make payment of grants to schools (and other educational establishments) for the provision of education or education services. Section 74 allows such payments to be made subject to conditions. This is how Jordanhill School is funded, for example. Seven grant-aided special schools are also funded in this way, although this system is currently under review, following the Doran Review.

3. Scottish Government have a commitment to “empower schools and decentralise management and support through school clusters and the creation of new educational regions.” The creation of new educational regions will assist in delivering decentralisation if the bodies are taking on existing Scottish Ministers functions. If the proposal, however, is that educational regions take on local government functions, then that would be a process of centralisation, not decentralisation.

4. The consultation document contains “a presumption that decisions about individual children’s learning and school life should be taken at a school level”. However, section 28 of the 1980 Act sets out the general principle that children are to be educated “in accordance with the wishes of their parents” (subject to important caveats as to suitable instruction and public expenditure). The presumption in law is that decisions about individual children’s learning should be taken by their parents – and not by the school. In any event, a legal presumption of this sort – if that is what is being suggested – would require a significant structural alteration. At present, local authority schools do not have a separate legal identity – they exist only as part of the authority. This would probably need to change if this presumption were to be given legal force. There would also need to be clarity as to what is meant by “at school level” – does this mean by the Head Teacher acting alone? Or by a board or governors? Or something else?

5. The consultation document’s list of organisations involved in the governance of education does not take into account the UK context. There are pieces of UK legislation which significantly affect Scottish education, and which need to be considered. The best example would be the Equality Act 2010 – which is of particular relevance to disabled pupils and those with other protected characteristics. At present the education authority is the “responsible body” in terms of equality law for all public schools. Any proposed change to this positon would require an amendment to this Westminster legislation. That same list does not mention independent special schools or grant-aided special schools, which educate a number of children and young persons with additional support needs for whose school education the authority remain responsible. The impact of any changes to governance arrangements on pupils educated in these contexts will need to be carefully considered.

6. The emphasis on accountability in the OECD summary re: effective governance and successful reform is welcome. The current picture of legal accountability for education duties is disparate and inconsistent, with accessible remedies available in some aspects and none at all in others. The pending establishment of an education chamber within the Scottish Tribunals is an opportunity to have a single route of accountability available for children, parents and young people in relation to their education.

Empowering teachers, practitioners, parents, schools and communities

7. At p9, the document states “We want to see more decisions about school life being driven by schools themselves.” As I mention above, this should not be allowed to override the existing legislative general principle that children are to be educated in accordance with the wishes of the parents.

8. As the document goes on to say, devolved school management already exists and can be used to ensure that some management and funding decisions are already taken at that level.

9. The document goes on to propose that legal responsibilities for delivering education and raising standards should be extended to schools (and teachers / head teachers?). To do so would require each school to have its own separate legal identity. The most likely form would be that the school would be constituted and have a managing or governing board of some sort. Parent Councils as currently legislated for, would not be able to fulfil this role (still less, Parent Forums) although legislative changes could be made to allow this. There would also be required legislation governing the relationship between these more autonomous schools and the education authority, the proposed educational regions and the Scottish Ministers. This is no small task and would involve a fundamental rewrite of much of Scots education law. The form of the governing bodies would require careful thought as well. Currently education authorities are subject to democratic oversight and control through local government elections. Even if new boards of governors are to be made by election, the reality is that many schools struggle to get sufficient volunteers for a full Parent Council, let alone to make elections worthwhile. It may be more difficult to attract volunteers in the event that legal accountability is a feature of such bodies.

10. There can also be real benefits to having decisions taken on a strategic basis at education authority level, and unintended consequences which may arise from devolving powers to schools. It has been measures taken by education authorities which have been responsible for the reduction in the numbers of exclusions, rather than (on the whole) schools acting individually. Duties like the duty to provide alternative education where a pupil has been permanently excluded from a school would require to remain at authority level as well. To give another example, the duty to plan for improvements to school accessibility by way of an Accessibility Strategy is one which lies with the education authority. There is one plan for all the authority’s schools. The guidance allows for authorities to specialise, to have one school which is particularly accessible for pupils with a particular disability, which allows for a more efficient use of resources. If each school was to be responsible for these duties directly, then this concentration of supports and resources would not be possible.

11. The empowerment of children and young people within schools is not only beneficial, it is also an obligation in terms of the UN Convention on the Rights of the Child. Some local government education committees already include pupil representation, and a statutory requirement to pupil membership/representation (alongside parental membership) of schools’ governing bodies (whatever form they take) would be a real step forward in this area.

12. Devolving decision making to “teachers, schools and communities” sounds like a proposal for new boards of governors with staff and parent or community membership or input. If that is the case, then the devolution is actually to the board or other similar body – and the devolution to parents etc. only then works so long as the board is representative of the wider parent body / staff group / community. Support would be needed to encourage and facilitate involvement, and to ensure that boards or similar bodies are both representative and diverse.

Strengthening ‘the middle’ – how teachers, practitioners, schools and other local and regional partners work together to deliver education

13. Collaboration within education is undoubtedly a good idea, but the idea of mutual or collective responsibility for improvement and results is more problematic. Certainly, it should not be attempted to put this on a legal footing. A legal accountability across clusters and networks would be impractical, to say the least. Whether it is put on a legal footing or not, the danger is that in sharing accountability, there is no one body who is themselves accountable. From a desire to make everyone accountable, you can end up with nobody being accountable. Many parents of children with additional support needs are already familiar with being directed from education authority to school and back again in search of support, answers etc.

14. For children with additional support needs in particular, the key collaborations are often not just with other schools, but with colleagues in social work, associated health professionals and CAMHS teams. Co-locating relevant professionals, akin to the New Community Schools pilot from the early 2000’s, would allow for the co-ordination and availability of specialist support for children who most need it.

15. It is not clear from the document what the purpose or role of educational regions would be. There are numerous examples of education authorities working together to share best practice etc. Even if it were thought to require a renewed emphasis, the setting up of educational regions as an additional layer in the system is not obviously the best answer. As stated above, if the educational regions are to take on Scottish Government functions, then this could be seen as decentralisation of a sort. If they are to take over education authority functions, then the reverse would be true. There is also the possibility of future funding disputes, which particularly affect children with additional support needs – is the cost of additional support going to come from a school budget? Or an authority budget? Or the regional budget?

A clear national framework and building professional capacity in education

16. On p 13 it states “National government is responsible for setting clear priorities for Scottish education”. This has been the case since National Priorities for Education were introduced in 2001. Latterly Scottish Government stopped monitoring the priorities and the measures attached to them. The National Priorities have been replaced and updated as part of the National Improvement Framework. It is disappointing to see additional support needs falling off this list of priorities at this stage.

Fair funding – learner-centred funding

17. The nature of the funding formula is of great importance if the aim of equity is to be achieved. In the event that funding and responsibility is devolved to a school level, then careful management will be required in order that we do not end up with a situation where there is a financial incentive to reject or exclude pupils with additional support needs whose education is the most expensive to provide.

18. One obvious way of countering this would be to ensure that funding was indeed truly learner-centred by a) reflecting the cost of making provision for the child’s individual needs and b) following the child. Done on an individual basis, this would require a much more detailed and widespread system of statutory education planning than is in place at the moment. This does introduce more complexity into the system, however. A system of pupil premiums as operated in England & Wales, might be a more broad brush method of achieving similar goals.

Accountability

19. As mentioned above, the current picture of legal accountability for education duties is disparate and inconsistent, with accessible remedies available in some aspects and none at all in others. The pending establishment of an education chamber within the Scottish Tribunals is an opportunity to have a single route of accountability available for children, parents and young people in relation to their education.

Respondent Information
Iain Nisbet
Education Law Consultant