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section 4: proposals for handling all school closures and consultations

43. This consultation paper and the proposals contained in it address only the formal stages of the consideration and consultation process, in other words once a Council has taken a decision to propose a school closure. This stage of the process is often described as the "statutory consultation phase" and is addressed in detail in this section of the paper. It is recognised though that many authorities, in considering possible long term strategies in relation to the provision of any of the public services for which they are responsible, including education, may in various ways seek to sound out public opinion on possible future options or directions or policies. It is very important that authorities are not constrained from carrying out such informal soundings and consultations as they see fit. The important proviso is that when informal consultations bear on possible future changes to the school estate, including possible school closures, the Council makes absolutely clear to the public that these are indeed just informal soundings, to be distinguished from, and not confused with, the statutory consultation processes which must be gone through once a Council decides to propose a school closure.

Formal, statutory consultations

44. As well as a commitment to introducing a legislative presumption against the closure of rural schools, the Government has also made clear its intention to tighten the regulations relating to the closure of all schools, urban and rural. Section 1 of this consultation paper set out some of the principles which underpin the Government's consideration of these issues and which have guided the thinking behind the suite of proposals offered in this paper for comment. Section 3 of the paper included a proposal that would place a new obligation on authorities considering a rural school closure to consider certain matters which are of special relevance to schools in a rural context. That obligation would be in addition to the measures set out in this section, which it is proposed should apply to all school closures.

45. The framework for the conduct of consultations on all school closure proposals is set out in the Education (Publication and Consultation Etc.) (Scotland) Regulations 1981. They have been amended several times, most recently in 2007 to reflect the creation of Parent Councils. The regulations set out in some detail for instance who has to be consulted, where representations should be sent and/or the details of a public meeting at which authority representatives will be present, and so on.

46. Today's expectations of what a robust, thorough, fair and open consultation process should look like, exceed those of 25 years' ago. The Government's additional guidance on the handling of school closures that was reissued in October 2007 focuses on the importance of consultations, on the need for a fuller process than the minimum required to comply with the regulations. The guidance also suggests that authorities should be prepared to articulate and explain the grounds for proposing any school's closure, including setting out the wider and longer term considerations which an authority has to take into account. It emphasises the need for Councils to listen to what is being said by people and in local communities, and ultimately to account to its citizens for its decisions.

47. The Government acknowledges that the additional guidance, originally issued in 2004, has brought about some improvement in the way consultations are conducted, but remains concerned that the current regulations, together with the guidance, still do not guarantee consistently good practice. While in many cases authorities go well beyond the requirements set out in the regulations and issue consultation papers setting out the clear and accurate information, background, explanation and analysis of the salient facts and factors necessary to inform consultees, it is still important that standards are brought up to those of the best. There is also evident dissatisfaction among many who respond to consultations about the fact that there may be no subsequent explanation of whether and how the points they have raised have been considered by the Council in reaching its final decision on whether or not to close the school.

48. All of this suggests that the regulations are in need of updating to reflect today's more open and participative approach to public consultation processes. Proposals to improve the regulations governing the way all school closure proposals are consulted on are set out in this section of the paper. Before turning to the detail of that, there is though a more fundamental issue and principle, which needs to be addressed.

An "educational benefit statement"

49. Education authorities have a whole series of duties which they must fulfil in providing education. Two of the most fundamental are the endeavour to secure improvement in the quality of school education provided and to raise the standards of such education. ⁹

50. These statutory duties, placing such emphasis on continuous improvement, suggest to the Government that when it comes to considering the possibility of closing any school or making other changes which require consultation, it is important that it should be clear to parents and other consultees what overall educational benefit the local authority believes will result from its proposal.

51. We therefore propose that authorities should be required to publish an educational benefit statement. This would set out clearly the educational benefit the local authority believe will result from its proposal. This statement would cover the impact on pupils at, and other users of, the school proposed for closure, and/or for any other pupils directly affected, or pupils elsewhere.

52. We do not propose to set out prescriptively in legislation how the statement should be framed beyond that it should articulate what the benefits would be and for whom, and how any disruption or disbenefits would be minimised or countered. It would be for the authority to decide how to set out the statement, which could well look different in a rural case than an urban one. For instance, increased travelling may well be significantly offset by much improved school facilities or curriculum opportunities. In an urban case the proposals may be to transfer pupils to an equally good alternative school, but where the overall benefits accrue from using resources more effectively (better matching supply of school places to demand), to the benefit of a far wider set of pupils than are directly affected.

53. In the statement it would of course be appropriate for an authority to set out its views as to the educational disadvantages of the status quo - that may have to do with the situation and circumstances of the school, even the extent of the community's and parents' support for it. An authority would also set against the current situation the envisaged educational benefit of the proposed changes, including factoring in any intentions for investment in the receiving school, if the closure proposal were to go ahead. The educational benefit statement should set out the benefits for each of the options consulted on.

Proposals to update and improve the consultation regulations

54. In framing these proposals the Government has been mindful of the need to address the wide range of different circumstances which must be catered for if a consultation process is to be established that will be appropriate for the various circumstances of all schools - be they rural or urban, denominational or non-denominational, primary, secondary or special. The principles set out in Section 1 of the paper and in the introductory paragraphs of this section are also relevant to the proposals that follow.

55. The following proposals are set out in roughly 'chronological' order as they would transpire during a consultation process.

# A consultation paper shall be published, containing certain specified information

56. The current regulations do not require authorities to publish a consultation paper although it is now normal practice to do so. At the moment all that is required is notification to parents of a proposal, which must include a statement outlining the proposal or the part that (in the authority's opinion) affects that parent.

57. We propose therefore to require authorities to publish a consultation paper, in which certain specified information should be set out. This would include:

• the educational benefit statement;
• the context (e.g. statutory, strategic, policy etc) of the decision to consult on the proposal, or proposals if various options are being offered for comment;
• data (facts, assumptions, analysis etc) supporting the proposal(s);
• outline details of the proposal(s) and any options being consulted on, with an indication of where full details may be accessed;
• setting out all the factors, educational, environmental and other, which the Council considers relevant to the proposal(s);
• and also, for all rural closure proposals, how the authority has 'had regard' to the 4 specified matters.

58. The paper would require to be published and available in languages and formats so as be accessible to all elements of the parent body at the school(s) affected and to ensure that everyone's voice can be heard.

59. Concerns have been expressed that there is currently no mechanism for addressing possible inaccuracies within consultation papers. We understand these concerns. However we want to ensure that any method for addressing them does not also create unnecessary delays in the consultation process. We therefore propose that where someone believes that there is a factual inaccuracy in a consultation paper they would report that to the authority. The authority would be required to consider the alleged inaccuracy and decide what action may be required in light of it. For example, acceptance that there has been a significant, material inaccuracy might lead an authority to conclude that in the interests of open and fair consultations, the consultation paper should be re-issued and the consultation restarted. Other, less serious inaccuracies, might lead an authority to issue a correction to the information in the consultation paper and either maintain, or extend the current consultation period. Or the authority may disagree with the allegation made and defend the consultation paper, albeit in these circumstances it may still be appropriate to issue further information or explanation to clear up any misunderstandings. Whatever the authority's response to the alleged inaccuracy they would be required to set out in the Consultation Report what had been alleged, their response, how they had dealt with it and the action taken.

60. We believe that such a mechanism would provide authorities with a means of addressing inaccuracies in consultation papers, and consultees with a way of registering information they believe to be factually wrong. Crucially it would allow an authority to take action proportionate to any inaccuracy identified.

# An extension of the list of those who must be consulted

61. The present Regulations specify that certain categories of person must be consulted, including:

• the parents of every pupil at the school(s) affected
• the parents of every child (whose existence is known) who would be expected to attend the school within 2 years of the proposed date of closure
• the Parent Council of the school(s) affected
• in the case of a denominational school any person authorised for these purposes by the relevant church or denominational body.

62. The Government is of the view that the list of those who must be consulted should be expanded to cover all of those who may have a direct interest in the proposal, where they can be identified, as follows:

• pupils at the school(s) affected. There is an increasing and appropriate focus on the rights of the child or young person to be consulted on matters which directly affect them. The views of pupils may not coincide with those of their parents or indeed those of the local community, and their reasoning may focus on different issues;
• teachers and staff working at the school(s) affected, and their trades unions. It is generally the case that employees are consulted when significant changes to their conditions of work are proposed;
• where a school's current roll includes pupils from outwith the authority area their parents will already be included in the list of consultees. We propose though a new requirement to seek information from the authorities in whose area such cross-border pupils reside (and an obligation on those authorities to provide such information as they hold) towards identifying parents of pupils who might be expected to attend the school within the next two years. This will be particularly important in the case of special schools and Gaelic medium units, which often draw pupils from a wide area;
• Community Planning Partnerships and Community Councils, where they exist, better to draw out the community interests;
• Bòrd na Gàidhlig, where the proposal concerns Gaelic-medium provision.

63. Additionally, many consultees will be interested in the independent view of Her Majesty's Inspectorate of Education ( HMIE) on the educational aspects of the Council's proposals, and the options consulted on. The Government recognises both the strength of such interest, and the value of an independent HMIE perspective. Although there is an existing power ¹⁰ whereby a Parent Council may seek HMIE's views on a "matter of concern to the parent forum" the Government proposes that when consultations are being conducted, HMIE should be a mandatory consultee, with an obligation placed on them to respond and set out their views, of course only on matters within their competence i.e. the educational aspects of what is proposed. However, rather than requiring the Council to seek HMIE's views in advance, only on its educational benefit statement (for publication in the consultation paper), it would be of greater advantage if HMIE also had the opportunity of taking account of issues and concerns emerging during the consultation process, before responding with their views. We therefore propose that HMIE, exceptionally, should be allowed to respond shortly after the consultation period has ended. This would mean they would be aware of, and could take into account, issues and concerns which emerge during the consultation process, before setting out their views. The authority would be required to publish HMIE's response in full in the Consultation Report.

# Updating the Regulations governing the publicising of the consultations

64. The current Regulations do not require authorities to advertise a school closure proposal in a local newspaper circulating in the area affected. We would propose that this should be made a requirement, and in recognition both of the placing request system and the wider areas from which special schools draw their pupils, that the requirement should extend to newspapers covering all of the area from which the current school roll is drawn.

65. Additionally we propose to reflect the now widespread use of the internet by requiring the Council to publicise the consultation and make the consultation paper available on its website if it has one.

# Updating the Regulations governing the way consultees may respond to the consultation

66. At present the Regulations specify only that the authority may hold at least one public meeting (after a certain period has elapsed and outwith normal working hours and in a place convenient for parents to attend) and/or specify that written representations may be made to a given address. We propose that in future it should be a requirement that the Council hold a public meeting in addition to making appropriate arrangements for written representations.

67. We also propose to require an authority, when publicising how consultees may respond to the consultation, to set out details of how responses may be made electronically i.e. by e-mail.

# An extension of the consultation period

68. The current requirement is for a minimum 28 day consultation period. While many authorities run their consultations over longer periods, we want to ensure a consistent, longer consultation period, which allows sufficient time for consultees to digest what is proposed, think matters through and respond. Government consultations, which are conducted nationally, generally have a minimum 3 month response period.

69. We propose that the minimum period for consultations must include at least 6 weeks of term time. These weeks would not need to be consecutive - for example a consultation that ran for 4 weeks up to the Easter holidays would then need to continue to run for 2 weeks of term time after the break, in order to meet this requirement.

# A new requirement that the authority publish a 'Consultation Report'

70. At present authorities are under no obligation to issue a response to the consultations, or respond to specific points raised by consultees. Many do the latter, but normally framed within a paper presented to the Council in order to inform its final decision. Government consultations are now automatically followed by publication of a Consultation Report, summarising the points raised and the reaction or response to them.

71. We consider this to be good practice and propose to introduce new requirements on authorities, to reply to those who respond to a consultation and, after the consultation period is over to prepare a Report including:

• information on the number of, and different types of consultees;
• the HMIE 'response' in full;
• a summary of the views expressed by other respondents and of the authority's consideration of and responses to them;
• where that has involved exploring or investigating matters or suggestions, details of those activities;
• response to any alleged inaccuracies in the consultation paper.

72. The Council would be required to publish the Consultation Report not less than 28 days prior to it taking its final decision, and would be required to inform all those who responded to the consultations how they could access the Report or obtain a copy. The Report would serve to inform consultees as to what has emerged from the full consultation process, and how points raised had been considered and explored. The purpose behind the 28 day period would be to enable consultees to make representations to elected members before the final decision is taken.

Consultations on other types of proposal (such as changes of site or catchment area)

73. The Education (Scotland) Act 1980 only obliges Ministers to set out in regulations the way in which consultations shall be conducted on proposals specifically to close schools or change their site. But it also allows them to specify other sorts of proposal relating to educational changes which may also be covered by the same consultation regulations. The 1981 regulations currently include a list of 23 types of proposal for change which must be consulted upon in the prescribed manner, a good number of which may now be obsolete or may never have been used. The Government intends to work with authorities to identify those types of proposal which can be deleted from the list. For all the remaining types - including proposals relating to changes of catchment area - the Government sees every reason to extend also to them, the more robust and rigorous consultation process set out above, though subject to any appropriate adjustment of detail in recognition of the specific type of proposal.

Statutory guidance

74. The current primary legislation and regulations governing the handling of school closure proposals are complemented by a series of advisory circulars usually dating from the time when each new set of amendments to the regulations was made, and more general guidance on how Ministers expect authorities to handle school closure proposals. This more detailed additional guidance was first issued in 2004 and re-issued in 2007. The status of these is no more than that of advice and guidance, and authorities do not have to have regard to them.

75. The Government therefore proposes to take a power which would allow Ministers to issue 'statutory guidance' in relation to the new primary legislation and regulations which are proposed in this consultation paper. This would then have the status of guidance to which recipients, i.e. authorities would be obliged to have regard. The ability to issue statutory guidance would enable Ministers to address matters the detail of which would not appropriately be addressed in primary or secondary legislation. For example this could include an illustrative checklist of factors which may be relevant to various types of proposal which may be consulted upon (along the lines of those for instance which are currently set out in the guidance referred to above).

Consultation Questions

Q5. Do you support requiring local authorities to publish a statement setting out the educational benefit of the school closure proposal?

Q6. Do you agree that it should be left to the authority as to how it sets out an educational benefit statement?

Q7. Do you agree that HMIE's views should be sought in all cases?

Q8. Do you support the proposed changes to the way consultations should be conducted? These are:

• introducing a requirement that a consultation paper should be published containing certain information;
• establishing a mechanism for addressing allegations of factual inaccuracies in a consultation paper;
• extending the list of people who must be consulted;
• updating the way consultations are publicised;
• updating how people can respond to a consultation;
• extending the minimum consultation period to 6 weeks of term time; and
• introducing a requirement that the authority publish a Consultation Report, 28 days before the final decision is taken.

Q9. Do you agree that Ministers should take a power to issue 'statutory guidance' to which authorities would have to have regard?

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