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“Determinations – Past, Present &
Future”

Jonathan Moore
School Infrastructure Unit
The Problem
• Differing interpretations of 2010 Act have led to
too many cases being called in
•
•
•
•

85 closure proposa...
What is the aim?
• To reduce significantly the number of cases that
require to be called in.
• An outcome shared by Scotti...
Drivers for Change

• Experience in applying the 2010 Act
• Rural Commission
• WIIC v Scottish Ministers Judicial Review &...
WIIC v Scottish Ministers Judicial Review
• Court concluded that:
– Circumstances when Ministers can call in a closure
pro...
“Calling in”
• In their application of s17(2) of the 2010
Act, Ministers will consider:
– Whether or not there has been a ...
“Determinations”
• Ministers will look at the totality of what is
proposed and determine:
– Whether there is a failure in ...
“Decisions”
• Where Minsters conclude no failure and
decision a reasonable one – consent will be
granted (with or without ...
Does that achieve aim?
• Court has clarified how Ministers to apply the
2010 Act
• Good start - but on its own does not fi...
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Jonathan moore determinations – past, present and future

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Jonathan moore determinations – past, present and future

  1. 1. “Determinations – Past, Present & Future” Jonathan Moore School Infrastructure Unit
  2. 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. 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. 4. Drivers for Change • Experience in applying the 2010 Act • Rural Commission • WIIC v Scottish Ministers Judicial Review & Appeal
  5. 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. 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. 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. 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. 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

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