Process and Decision Making
An authority intending to consult under the Schools (Consultation) (Scotland) Act 2010 must follow the steps which are set out in the attached timeline. If the Scottish Ministers issue a call-in notice, then the School Closure Review Panels become involved and the following process will proceed – see section 17 of the Schools (Consultation) (Scotland) Act 2010:
1. Ministerial call in
The Scottish Ministers may only issue a call-in notice if there is evidence to suggest that the education authority “may have failed” to comply with the requirements of the Act or failed significantly to take account of a relevant material consideration. Once the Scottish Ministers have issued a call in notice (written to the authority to notify it of the decision), Ministers will refer the case to the Convener of the School Closure Review Panels.
2. Establishing a Panel
Once Ministers have referred the case to the Convener, the Convener has seven days to appoint a Panel, consisting of three Panel Members. The Convener also appoints one of the three as Chair of the Panel. In selecting members to serve on a Panel, the Convener will have regard to the register of members’ interests.
3. Review by the Panel
The Panel reviews the school closure decision by considering whether the authority has (i) failed significantly to comply with the requirements of the Act; and (ii) whether the authority has failed to take proper account of a material consideration relevant to the decision. In carrying out this review, the Panel may request further information from the local authority, and advice from Education Scotland (HMIE) or “any other person as it may reasonable require for the relevant purposes”.
To be clear, the Panel will not be re-taking the authority’s decision or considering any aspects of the closure apart from the two considerations set out above above. It is the local authority’s right to make a school closure decision, the Panel’s role is to ensure the decision has been taken in line with the law.
4. Panel’s Decision
The Panel must determine the case and notify the local authority of its decision within 8 weeks, beginning on the day that the Panel is constituted. The Panel will either refuse consent (block the closure) or refuse consent and remit the proposal back to the education authority for a fresh decision (block the closure and ask that the authority goes back to a certain point in the process to re-do part of it, before retaking the decision) or grant consent (allow the closure), either with conditions or without.
If conditions are attached to the Panel’s consent, it is the local authority’s responsibility to ensure the terms of the conditions are met and, in this regard, the authority is accountable to the Scottish Ministers, who will monitor compliance. If you have any enquiries about the local authority’s compliance with a condition set by the School Closure Review Panels, direct it to the Scottish Ministers via the Scottish Government’s Schools Infrastructure Unit, [email protected]
If it is not possible for the Panel to reach a decision before the end of 8 weeks, the Panel may, before the end of the 8 week period, issue a notice to the local authority to state that it will not take a decision within 8 weeks, giving a reason for that, and indicating a likely date for a decision. The Panel must make a decision before the end of 16 weeks, beginning with the day that the Panel was constituted.
Once the Panel has notified the local authority of its decision, it must notify the Scottish Ministers of the decision, and publish notice of the decision. Panel decision letters are published on this website and can be found here.
An appeal may be made by the education authority or a relevant consultee in relation to the closure proposal (see section 17D of the 2010 Act). However, an appeal may only be made on a point of law and it must be made by way of summary application.
The summary application procedure does not follow the typical court procedure. It is often quicker and a hearing is not always necessary. The appeal must be lodged within the period of 14 days beginning with the day on which the Panel publishes notice of the decision. The final determination of the appeal lies with the sheriff, who can either confirm or quash the decision. In case of the latter, the matter will be referred back to the Panel.