The Section 70 Process
There are two processes which can be followed under section 70. The first relates to where Scottish Ministers have initiated an investigation without having received a complaint. The second relates to where a complaint has been received from any interested party. This document deals with the latter. In the former, the same overall timescales applies.
In the Regulation, there are 2 timeframes specified. The 15 working days of the Complaint Establishment Period and the 105 working days overall timescale. These 105 working days relate to the actions to be taken, if required, under the bullet points 1, 2 and 3 below. The 105 days is the maximum timescale for these actions. Where these are completed earlier, the complaint will conclude ahead of the maximum timescale.
In practice, the section 70 process is broken down into 4 functions:
1. A Complaint Establishment Period, comprising a maximum of 15 working days
2. An Investigative Period
3. A Decision Making Period
4. A Discharge of Duty Period which will be determined by a Ministerial Order
Complaint Establishment Period (Maximum of 15 working days)
The Complaint Establishment Period will be used as an opportunity for the Scottish Ministers to establish if, as is outlined in the regulations (see Regulation 2 (2)), the complaint to Ministers is appropriate to be considered under section 70. It will also be an opportunity to determine if alternative dispute resolution mechanisms have been considered before using section 70.
It may be used to consider whether it would be appropriate to fast track the complaint to an investigation by HMIE. It is expected this would happen rarely and only in circumstances where the evidence provided by an interested party indicates that there is an immediate need for a fast tracked investigation. Further information about the role of HMIE is provided later in the guidance.
Most significantly, the complaint establishment period will be used to ensure that Scottish Government officials, and the complainer, are clear about the reasons for the complaint. This approach will ensure that the details of the complaint are focused when provided to the complainee. It is anticipated that this will ensure that evidence is sought from the complainee on the specific reasons for the alleged failure of duty or duties.
During the Investigative Period, Scottish Government officials will firstly confirm with both parties the 'complaint establishment date'. This is the date that Scottish Ministers have determined that the complaint to Ministers is appropriate to be considered under section 70. Following this decision, Scottish Ministers have a maximum period of 105 working days from the date the complaint was received to determine whether to make an order under section 70(1) of the Education (Scotland) Act 1980.
Scottish Government officials will request written evidence from the parties involved (complainer and complainee) with a view to establishing if a failure of duty has occurred. Depending on the evidence provided, the Scottish Government may need to contact the parties more than once. This period may also be used to allow the Scottish Ministers to request HMIE carry out their own investigation into the alleged failure of duty or duties and make recommendations to the Scottish Ministers following their findings.
Decision Making Period
The Decision Making Period will be used to allow the Scottish Ministers to consider and reach a conclusion in relation to the evidence provided by both parties and, where appropriate, recommendations from HMIE. Within this period Scottish Ministers will advise both parties of the outcome of the process.
If it is considered that a failure of duty has occurred, and an order is required, the complainee will receive the order from Scottish Ministers during this period.
Discharge of Duty Period (To be determined by an Order)
Where a failure to discharge a duty or duties has occurred and an order has been made by the Scottish Ministers under section 70, the complainee will be required, by a date specified in the section 70 order, to discharge the duty or duties. During the Discharge of Duty Period, the Scottish Ministers will contact the complainee to establish if the duty or duties has now been discharged. In the situation where the duty or duties have not been discharged, arrangements may be taken to ensure the duty is discharged by the Scottish Ministers. Further, the Lord Advocate may apply to the Court of Session to order that the complainee fulfill their statutory duty (an order of specific performance).