Chapter 9: Appeals
136. The Commission gave detailed consideration to the issues that have arisen in relation to Ministerial call-in and delayed its report in order to take account of the court case of Comhairle nan Eilean Siar v. Scottish Ministers, 19 which offered the first case law on the 2010 Act.
137. This case provided a significant ruling that the 2010 Act requires Ministers, when they have called in a closure proposal, to consider both the process applied by the local authority and also the merits of the case. The Scottish Government and local government more generally, though not Comhairle nan Eilean Siar in this case, had argued that the intention of the 2010 Act was for Ministers to have a narrow role providing a 'safety net' against non-compliance with the process required in the 2010 Act. However, the Court concluded that Ministers are "not mere checkers of procedural aspects leading to a decision; rather they are part of the decision making process itself". The Court goes on to provide that where Ministers consider that an authority has failed to take proper account of a "material consideration", then there must be some "appreciation and weighing up of various factors". It notes that Ministers have a balancing role in considering a case, such that even if it was concluded that there had been a procedural error but the case for closure was compelling, Ministers would be able to consent to the closure proposal.
138. The ruling goes on to note that if a flaw in the consultation procedure followed by the local authority, despite "widespread, genuine consultation" caused Ministers to require the local authority to go back to the start of the process and re-consult, that could be a waste of time and resources. Such an outcome could undermine the authority and local community and result in a loss of public confidence in the procedure. It concludes that having called a case in, the 2010 Act requires Ministers to consider not only whether the correct process has been followed but also the merits of a proposal in determining whether to give their consent or not to it.
139. The Commission commended the Court's findings in the case of Comhairle nan Eilean Siar v. Scottish Ministers. The Commission agreed that once a local authority's proposal to close a school had been called in by Scottish Ministers, the 2010 Act requires (and is right to require) Ministers to consider both the process that has been followed and the merits of the proposal that has been made. A balanced and appropriate decision, taking into account any flaws in the process, can only be made with an understanding of the merits of the proposal.
140. The Commission noted the Court's clear view of the primacy of the local authority in taking decisions about school closures and that they were "particularly well-placed to know and appreciate the local community's circumstances and needs". The Commission also noted the Court's comments on the shift in public policy represented by the 2010 Act, with only closure decisions being referable to Ministers. Nonetheless, given the importance of these decisions to the communities involved and the history of flawed proposals, the Commission felt that Ministers' ability to consent, including the ability to consent with conditions, or to refuse consent should continue.
141. The Commission would recommend that a further option should also be open to Ministers, to remit the closure proposal back to the local authority. In its view, particularly in cases in which Ministers' consideration of the merits of the case gave rise to doubts regarding the proposal, it would be very helpful to have an option of referral back to the local authority to give further consideration and bring forward a revised proposal, if it wished, which would be considered again. Although in theory it would be possible for a local authority to repeatedly make the same proposal without addressing the flaw or material consideration pointed out by Scottish Ministers, in practice it would be clear that the flaw must be addressed, failing which Ministers would be likely to refuse the proposal.
142. With this additional option, the Commission hopes that the cases where Ministers concluded that the local authority's proposal was so significantly flawed that no reasonable authority could arrive at that conclusion, and it was appropriate to refuse consent, would be increasingly rare.
143. The Commission considered that strong, clear guidance for local authorities to follow in complying with the 2010 Act should make it much less likely that flawed closure proposals would be made; and thereby make it easier for Ministers to identify flaws in the process that had a material impact on the decision.
144. The Commission also considered whether referring cases to Ministers was appropriate, and what possible alternative approaches might be. On balance, the Commission concluded that it was important that closure proposals were subject to referral elsewhere, and that the current system had advantages of no financial barrier for parents or communities, and of clear separation from local authorities. However, once a sufficient period had elapsed and the impact of the other changes proposed by the Commission have taken effect, consideration could be given to whether this meant that a different approach to reviewing decisions might be merited.
145. However, the Commission recommends that the Scottish Government introduce significantly more clarity and transparency around the Ministerial call-in and the determination process. It would be helpful if the process applied by the Scottish Government was clearly articulated, including how officials would seek further information regarding representations and how decisions would be communicated. The Commission would also recommend that decision letters issued by the Scottish Government provide detailed reasons, to let those directly involved in the case understand why a conclusion has been reached and to allow those in other areas to learn from these judgments.
146. The 2010 Act provides a three-week period, once representations have been received, for Ministers to decide to call-in a closure proposal and the Commission accepted concerns that in highly contested cases this short period resulted in cases being called in that would not have been if Ministers had longer to weigh the representations received. The Commission recommends that a short extension to this period ( i.e. two to three weeks) would be in everyone's interests if it prevented unnecessary call-ins.
147. On the other hand, the Commission also heard a strong view from local authorities and communities that Ministers should not have an unlimited period to make a decision on a proposal that they had called in. The Commission recommends that a time limit for this consideration is introduced and it is accompanied by improved arrangements for notifying those affected by the decision in a timely and sensitive manner.
148. Finally, the Commission noted the bitter disputes that can develop around school closures, between communities and those elected or paid to serve them. The Commission found the same experience in its visits to Finland and Ireland. While the measures recommended should go a long way to ensuring decisions are taken in the best way, it may also be worth local authorities using conflict resolution processes to build common ground with communities, reverse suspicion and identify acceptable outcomes.
Moorfoot Primary School (Midlothian)
Scottish Ministers' role under the 2010 Act, as set out in the judgment in the case of Comhairle nan Eilean Siar v. Scottish Ministers, requires consideration of both the process followed and the merits of a school closure proposal that has been called in. Ministers should have three options in relation to these proposals, to:
(a) Consent, including consent with conditions;
(b) Refuse consent; or
(c) Remit the proposal back to the local authority for reconsideration.
The referral mechanism for school closure decisions should continue to be to Scottish Ministers, as an accessible mechanism that communities value. Once a sufficient period of time has elapsed for the impact of the Commission's other recommendations to be assessed, a further review could be consider the effectiveness of alternative approaches.
The Scottish Government should provide more clarity and transparency around the Ministerial call-in process and decision including the provision of clear, detailed reasons in the letter of decision within a set timescale. There should also be a short increase in the time for Ministers to consider representations prior to a decision to call-in a school closure proposal.