The consultation on the new Education (Scotland) Bill closed on 31st January 2018. The Scottish Government’s aim was for the consultation paper to set out how the proposed “changes will improve educational outcomes for young people, how they will work in practice, and what legislative changes are needed to enable them to happen.” In short, they invited views on whether the changes would deliver empowered schools and a teacher-led system.

The mechanism for achieving this goal can be found in the raft of powers to be devolved to headteachers in the ‘Headteachers’ Charter’. Currently exercised primarily by the education authority these powers relate to the curriculum, staffing and budgets. The changes also propose the beefing up of parental involvement and engagement; pupil participation and new bodies called Regional Improvement Collaboratives.

While the scope and ambition of the proposals are to be commended, in my response to the consultation paper, I flag genuine concerns as to the division of power, duties and accountability. Empowering schools is one thing, but power without a transfer of legal responsibility creates a vacuum of accountability into which bad decisions could escape unchallenged. Throw Regional Improvement Collaboratives into this opaque accountability mix, and these issues become seriously problematic.

For this and other comments on the effect of the Bill as currently drafted, please see my full consultation response below.

Empowering Schools

The consultation document says that local authorities will retain their “overarching duties” in relation to the provision of education. The fifth paragraph of p7 specifically references the following duties:

• The duty to ensure the provision of adequate and efficient education in their area (s.1(1) Education (Scotland) Act 1980), having regard to the age, aptitude and
  ability of the pupils (s.1(5) of the 1980 Act)
• The duty to ensure that school education is directed to the development of the personality, talents and mental and physical abilities to their fullest potential.
  (s2(1) of Standards in Scotland’s Schools etc. Act 2000)
• The duty to have regard to the views of children and young people in decisions which significantly affect them (s2(2) of the 2000 Act)

There are, in fact, many more duties which apply to education authorities – as I understand it, the legal duties (and legal responsibility) will remain with the
education authority in almost all regards.

The consultation document notes that “In practice, when it comes to actual provision of school education, headteachers and the teachers in their schools carry out
these roles on behalf of the local authority which employs them.” This is true of every legal duty imposed on a local authority and is not a good reason in itself to
consider a transfer of powers and responsibilities.

In fact, as the consultation reads, what is being suggested is that the power to make decisions should be transferred to Headteachers, without also transferring
legal duties, responsibility or accountability as well. There are obvious problems with this separation of power and accountability. For the parent who has a
complaint (or a legal case) in relation to the actions of a headteacher, to whom do they address that complaint. To the headteacher in the first place, perhaps.

Thereafter where? Is there any point in making a complaint about a headteacher to the education authority, if they are not able to direct the headteacher in
relation to that matter? What if the headteacher claims to be following the policy or guidance of the Regional Improvement Collaborative, which is headed by the
Chief Executive of another local authority altogether? Where does accountability lie for the legal responsibilities being devolved?

If power is genuinely to be transferred to individual headteachers, then meaningful (and legal) accountability for the exercise of those powers must also transfer.

Pg 9 mentions a “model of shared accountability” – the danger of this approach is that it can be difficult then to find meaningful redress where problems arise. Unless the Scottish Government actually intend to make each of these three (headteachers, local authorities and regional improvement collaboratives) jointly and severally liable for each others’ acts and omissions, it is difficult to see how this serves to do anything other than obscure where legal responsibility lies.

Headteachers’ Charter

The requirement for schools to work together will be difficult to achieve without first constituting schools as a legal entity with responsibilities all of its own. Has consideration been given to the potential impact of the duty to work collaboratively with other partners on the CSP? Where the collaboration involves a school from another local authority, that may be regarded as an “appropriate agency in terms of s.23 of the 2004 Act. Are the Regional Improvement Collaboratives to be regarded as an “appropriate agency”?

The local authority’s annual statement of improvement objectives, linked with both the school improvement plans and the national priorities. They required to include matters covered by the Equality Act 2010. The local authority will remain the responsible body in law – accountable for Equality matters in relation to each of the schools it manages. Removing that body’s requirement to plan to improve equality as part of an annual planning process is problematic.

Annual statement of improvement objectives also have a requirement re: Gaelic language – where does this responsibility lie now?

Having individual schools create school improvement plans which are consistent with annual improvement objectives set by a larger central body (the education authority) is one thing. Having an even larger central body (a Regional Improvement Collaborative) create a single improvement plan which takes into account and somehow brings together potentially hundreds of different school improvement plans each based on individual local factors seems to me a much more difficult proposition.

Pg 11 states that “local authorities must be able to allocate resource to support the provision of additional support for learning.”. This seems to attempt to draw a
separation between the provision of mainstream education and “additional support”. This is a matter of concern. For one thing, the provision of additional support
is most often done within mainstream schools and carried out by existing school staff (class or subject teachers, support staff etc) using existing school resources. It is both artificial and retrograde to try and separate out “resource to support the provision of additional support for learning” from other resource allocation. To do so is to suggest that additional support is an added extra rather than a core requirement – something to be expected of every school and every teacher – it also undermines the idea of inclusion for pupils with additional support needs.

There are potential difficulties with allowing headteachers to recruit staff, while the education authority remain responsible as employer for performance, discipline or grievance. What happens if the grievance is that the member of staff was not selected for a promotion? Or that they are not adequately supported in their work due to a lack of recruitment to key roles? How does the local authority respond to such a complaint in relation to decisions in which they have had no input?

Pg 13 states that “Local authorities will continue to be responsible for ensuring provision of specialist services and for managing provision of support for learners’ additional needs.” Again, this is a matter of concern. It is unrealistic and a backwards step to try and differentiate “provision of support for learners’ additional needs” in this way.

Additional support is not an added extra rather it is a core requirement – something to be expected of every school and every teacher. It also undermines the idea of inclusion for pupils with additional support needs.

Parental and Community Engagement

Legal duties for working collaboratively with parent councils, and the definition of parental involvement and engagement are said to include a prominent place for
learning in the home and family learning. Is the intention to impose a duty (or expectation) that parents have a duty to engage in family learning in the home? To
do so in a particular way or to a particular standard? For schools to have a role in monitoring or supporting such learning? Such duties will need to be carefully
drafted to avoid creating unrealistic expectations.

Further, one important aspect of parental engagement is the ability to exercise a democratic control on the education authority through local elections. If the
responsibility for children’s education is being dispersed to schools and Regional Improvement Collaboratives, that means that there is little remaining over which
parents (and others) will have the ability to influence by voting.

Pupil Participation

The consultation document notes an intention for general duties on Head Teachers to promote and support pupil participation. However, there is no legal duty to consult with pupils or to hear and take account of their views in relation to these same “specific aspects”. Given that pupils have a right to be consulted on prescribed changes in terms of the Schools (Consultation) (Scotland) Act 2010, and can exercise their own rights in terms of recent amendments to the Education (Additional Support for Learning) (Scotland) Act 2004, my view is that the time has now come to formalise the role of the pupil council, especially for secondary age pupils. Statutory guidance to pupil councils should also be issued and support given to ensure that pupils councils are a genuine means of pupil expression and not just a tick box exercise with parameters set by school staff.

Regional Improvement Collaboratives

Care must be taken in embedding these requirements in legislation that the duties of the local authorities do not become diluted and masked. The collaborative areas are so large that it may be difficult to adopt strategic priorities for improvement that are not very general indeed. The next step down is school improvement planning. Given that so many other relevant plans will remain at local authority level (children services planning, public sector equality duty, accessibility strategies) it may be a mistake to remove the requirement for improvement planning from local authorities – and certainly difficult to retain a sense of local democratic accountability.

Education Workforce Council for Scotlan

It will also be important that as a registration and regulatory body, clear and impartial complaints processes are available and accessible for parents, pupils and others who may have cause to raise concerns about misconduct or competence.

The Education Workforce Council for Scotland is an opportunity to make sure that all those working with children in schools and other educational contexts are properly qualified and trained. There is a danger that specifying “additional support staff” or “ASL support workers” as a separate category gives the impression that responsibility for additional support lies only there. While such workers should certainly be covered, it would be important in terms of professional standards that this responsibility is specified front and centre for all those within the education workforce (of whatever type).

Iain Nisbet, Education Law Consultant