Jonathan moore determinations – past, present and future
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Jonathan moore determinations – past, present and future Presentation Transcript

  • 1. “Determinations – Past, Present & Future” Jonathan Moore School Infrastructure Unit
  • 2. The Problem • Differing interpretations of 2010 Act have led to too many cases being called in • • • • 85 closure proposals under 2010 Act 36 (42%) called in 27 consented (21 with conditions, 6 unconditionally) 9 refused – including 4 in WIIC subject to Judicial Review
  • 3. What is the aim? • To reduce significantly the number of cases that require to be called in. • An outcome shared by Scottish Government & Local Government • Achieved by working together to improve the quality of proposals coming forward.
  • 4. Drivers for Change • Experience in applying the 2010 Act • Rural Commission • WIIC v Scottish Ministers Judicial Review & Appeal
  • 5. WIIC v Scottish Ministers Judicial Review • Court concluded that: – Circumstances when Ministers can call in a closure proposal are very limited; and – Having called in, Ministers then to consider the merits of the proposal
  • 6. “Calling in” • In their application of s17(2) of the 2010 Act, Ministers will consider: – Whether or not there has been a failure in a significant regard by education authority to comply with the 2010 Act; – Whether the education authority may have failed to take proper account of a material consideration • Call in letters will set out what Ministers see as a failure & why they consider it to be in a significant regard
  • 7. “Determinations” • Ministers will look at the totality of what is proposed and determine: – Whether there is a failure in a significant regard to comply with the requirements of 2010 Act so far as they are relevant to the closure proposal in terms of s17(2)(a) of 2010 Act ; – Whether there is a failure to take proper account of a material consideration relevant to the closure proposal in terms of s17(2)(b) of the 2010 Act; and – Whether the decision to implement a closure proposal is one that a reasonable education authority could have reached
  • 8. “Decisions” • Where Minsters conclude no failure and decision a reasonable one – consent will be granted (with or without conditions); • Where Ministers conclude failure - consent may or may not be granted (with or without conditions if granted); • Where Ministers conclude failure serious & cannot be remedied by conditions or if decision to close unreasonable - consent will be refused; and • Determination letters will set out Ministers’ reasoning behind their decision.
  • 9. Does that achieve aim? • Court has clarified how Ministers to apply the 2010 Act • Good start - but on its own does not fix the problem nor does it address Rural Commission or other issues raised • Need to make some amendments to 2010 Act