Appendix one: Schools (Consultation) Act (Scotland) 2012 Summary for EA
Schools (Consultation)
(Scotland) Act 2010
Overview and summary
Contents
Introduction and overview
2
Summary of the Act
 Consultation Process
o Proposals requiring consultation
o Proposal paper
o Educational Benefits Statement
o Correction of the proposal paper
o Notice and consultation period
o Consultees
o Public meeting
o Involvement of Education Scotland
o Consultation report
o Additional time for consideration
 Rural Schools Closure
 Ministerial Call-in
4
4
4
4
5
5
5
6
6
6
7
7
7
8
Consultations Timeline
9
Annex 1
Scottish Government Urban/Rural Classification
Annex 2
Rural Schools by Local Authority
Links to:
The Schools (Consultation) (Scotland) Act
 http://www.scottish.parliament.uk/s3/bills/23-Schools/b23bs3-aspassed.pdf
Policy Memorandum
 http://www.scottish.parliament.uk/s3/bills/23-Schools/b23s3-introd-pm.pdf
Explanatory Notes, including financial memorandum
 http://www.scottish.parliament.uk/s3/bills/23-Schools/b23s3-introd-en.pdf
Education Scotland Intranet Homepage
 http://sa45eda/hmie/intranet/default.aspx
Statutory Guidance
 http://www.scotland.gov.uk/Topics/Education/Schools/Buildings/changestosch
oolestate/consultaionguidance
1
Schools (Consultation) (Scotland) Act 2010 – Summary for EAs
INTRODUCTION AND OVERVIEW
This guide summarises the key points set out in the Schools (Consultation)
(Scotland) Act which received Royal Assent on 6th January 2010 and came into
force on 5th April 2010. It also provides advice and guidance for HM Inspectors on
the issues that emerge from the Act. The Act’s provisions cover three main areas:
 the consultation procedures for school closures, and other proposals affecting
schools, which local authorities must follow
 a new local authority duty to take into account certain prescribed factors
before deciding to consult on a proposal to close a rural school, and
 the introduction of a system of referring certain local authority decisions to the
Scottish Ministers for consent with a power to call in decisions, but only in
decisions relating to closures.
The Scottish Government’s policy objective is to establish a rigorous, open and
transparent system for consulting on school closures, and other changes proposed
by education authorities. The intention is that all proposals will follow the same basic
sequence, the key phases of which will be:
 an education authority makes the decision to consult on a proposal
 the authority prepares a proposal paper, including an educational benefits
statement and other required information
 the authority publishes the proposal paper, advertises the fact and notifies
Education Scotland and mandatory consultees
 the authority meets certain consultation requirements, including holding a
public meeting
 the consultation ends, after a minimum of six weeks, including at least 30
school days
 within three weeks, although this can be extended by agreement between the
authority and Education Scotland, Education Scotland prepares and finalises
a report on the proposal and sends it to the authority
 the authority then prepare and publish a consultation report
 following publication of the consultation report, the authority must allow three
weeks to elapse before taking its final decision on the proposal.
If the proposal concerns a school closure, the local authority must notify Scottish
Ministers within the period of six working days after taking its final decision. Once
notified, Ministers will be involved in the following way:
 Ministers have a power to call in a closure decision, but only where it appears
to Ministers that the authority has failed in a significant regard to comply with
the Act’s requirements or, in coming to its decision, has failed to take proper
account of a material consideration relevant to the proposal. Ministers have
six weeks to decide whether or not to issue a call-in notice.
 During the first three weeks of this period, anyone will be able to make
representations to Ministers on whether the decision should be called-in.
 During this period, the education authority may not proceed further with the
proposed closure. Ministers may come to a decision sooner than six weeks
(but not before the three weeks for representations to be made to them has
elapsed).
 Where a proposal is called-in, Scottish Ministers may refuse consent for the
proposal or agree to the proposal fully or subject to conditions.
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Schools (Consultation) (Scotland) Act 2010 – Summary for EAs

The Act gives no statutory duty to Education Scotland in the call-in process.
However, Ministers may seek advice from Education Scotland with regard to
call-in decisions. The role of Education Scotland within the call-in process is
to provide such advice to Ministers as is appropriate on the basis that this
advice is given on a case-by-case basis. Education Scotland is not required
to produce another report.
This guide is organised in such a way that it provides an overview and summary of
the Act. It also provides a summary of the timeline for consultation and the various
activities that will take place during the period of consultation. Key issues, guidance
and advice for HM Inspectors that emerge from the legislation are also included.
The document also contains hyperlinks to the relevant legislation and accompanying
national advice.
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Schools (Consultation) (Scotland) Act 2010 – Summary for EAs
SUMMARY OF THE ACT
The Act’s overarching objective is to update and strengthen the consultation
practices and procedures that local authorities apply to all proposals for school
closures and other major changes to their schools.
To achieve this, the Act’s provisions are three-fold:
1. to establish a coherent and robust, workable, open and transparent
consultation process for all school closures and other proposals
affecting schools.
2. to ensure that a decision by a local authority to close a rural school is only
taken after the local authority has taken into account a number of other
considerations, explored all possible alternatives and assessed the likely
implications of the closure.
3. to replace the current system for referring certain local authority decisions for
Ministerial consent with a new system of ‘call-in’, for closure cases only.
1. CONSULTATION PROCESS
Proposals requiring consultation
The Act defines ten types of proposal that will trigger the new consultation process.
Proposals requiring consultation are those where an education authority proposes to:
 discontinue permanently a school (this includes special schools and nursery
schools) or a stage of education in a school (this includes years in a
secondary school or a special class in a mainstream school or where the
authority proposes to discontinue Gaelic medium provision)
 establish a new school or stage of education in a school
 relocate a school or nursery class
 vary the catchment area or modify the guidelines for placing requests for a
school
 vary the arrangements for the transfer of pupils1 from a primary school to a
secondary school
 change the school commencement date of a primary school
 vary arrangements for the constitution of a special class in a school other than
a special school
 discontinue arrangements for the provision of transport by the education
authority for pupils attending a denominational school
 change a denominational school into a non-denominational school
 discontinue a further education centre which is managed by the education
authority.
Proposal Paper
The authority must publish a proposal paper containing the following:
 details of the proposal
 proposed date for implementation
1
Throughout, the Act makes reference to pupils rather than children and young people. The use of pupils in this document
relates to its specific use within the legislation.
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Schools (Consultation) (Scotland) Act 2010 – Summary for EAs




the educational benefits statement
other appropriate supporting evidence or information
a summary of the consultation process, and
for rural school closure proposals, details of the authority’s assessment of the
three factors to which they have had special regard.
Educational Benefits Statement
Within the proposal paper, the authority must produce an educational benefits
statement. The educational benefits statement should set out the authority’s
assessment of the likely educational benefits that it believes will result from the
proposal. The authority should set out its assessment of the effects of the proposal
(if implemented) on: the pupils of any affected school(s),
 other users of the school(s),
 children who would be likely to become pupils at the school(s) within two
years of the publication of the proposal paper,
 other pupils in the authority area.
The statement should include an analysis of the following:
 any other likely effects of the proposal;
 how the authority intends to minimise or avoid any adverse effects that may
arise from the proposal; and
 benefits which the authority believes will result from implementation of the
proposal, and the authority’s reasons for coming to these beliefs.
Correction of the proposal paper
Where an inaccuracy or an omission in the proposal paper is alleged or discovered,
the authority must investigate and decide what, if any, action is required. This could
include:
 publishing a corrected proposal paper
 extending or restarting the consultation period
 issuing a notice to all consultees correcting the inaccuracy or providing the
omitted information, or
 take no action during the period of consultation, but indicate the course of
action it has taken in the final consultation report.
The authority must inform the person who made an allegation and what action it
took.
Notice and consultation period
The authority must give the relevant mandatory consultees notice of the proposal
which would include: a summary of the proposal, where to get a copy of the proposal paper and
how to make written representations
 the closing date of the consultation, which will be a minimum of 6 weeks to
include at least 30 days of term time
 if known at the time, the date, time and venue of the public meeting.
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Schools (Consultation) (Scotland) Act 2010 – Summary for EAs
Consultees
The Act requires that in respect of every proposal, an authority must consult:
 the pupils at any of the affected school(s), (in so far as the education authority
considers them to be of a suitable age and maturity)
 the Parent Council(s) of those affected school(s)
 the parents of pupils and children, including those expected by the education
authority to attend any affected school within two years of the date of
publication of the proposal paper
 all staff (teaching and other) at the school, including relevant unions.
For certain categories of proposal, authorities must consult other relevant people or
groups. These include persons authorised by the relevant church or denominational
body (where the school is a denominational school), community councils and
community planning partnerships (where there is a direct community interest in the
proposal), Bòrd na Gàidhlig (where the proposal affects Gaelic medium education).
The authority must also consult such other users of any affected school as the
authority considers relevant, but only in cases of closure, establishment and
relocation proposals. These may include adult users of the school’s educational
facilities, community users of the buildings or users of the sports facilities both indoor
and outdoor. Finally, the authority must also consult such other education authorities
as it considers relevant.
Public Meeting
The authority must hold and be present at a public meeting and give advance notice
of the date, time and venue of the meeting to relevant consultees and Education
Scotland. It is not a legal requirement for HM Inspectors to attend the public
meeting. However, when HM Inspectors attend, they do so solely as an observer
and should not be drawn into discussion or debate. The responsibility for conducting
the public meeting rests solely with the education authority.
Involvement of Education Scotland
The Act requires, in the case of every proposal requiring consultation, Education
Scotland to consider the educational aspects of an authority’s proposal. To enable
this, the authority must provide Education Scotland with:
 a copy of the proposal paper
 copies of the written representations, or if Education Scotland agree, a
summary of them
 a summary of oral representations made at the public meeting, and
 any other related documentation.
Upon receipt of the proposal paper and other relevant documentation, Education
Scotland must consider the educational aspects of the proposal.
Education Scotland has three weeks2 after the end of the consultation period to
submit a report to the authority. The three-week period may be extended by
agreement between the authority and Education Scotland. Education Scotland must
ensure that its report has regard to:
 the educational benefits statement
2
As the three-week period may be extended by agreement between the authority and Education Scotland, Education Scotland
and the authority will need to agree between them the timeline for the proposal including time allocated for the completion of
the report by HM Inspectors before the timeline for the consultation is approved through a council committee.
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Schools (Consultation) (Scotland) Act 2010 – Summary for EAs


the representations received by the education authority
any further written representations made directly to Education Scotland on
any educational aspect of the proposal which is considered relevant.
The Act reinforces powers of HM Inspectors to enter schools and make such
enquiries as are considered appropriate. The Act requires the authority to consider
the Education Scotland report and then prepare its consultation report. The
consultation report must include the Education Scotland report in full.
Consultation report
The authority must publish a consultation report after the end of the consultation
period and receipt of Education Scotland’s report. The consultation report must
contain:
 an explanation of how the authority has reviewed the proposal
 the Education Scotland report
 a summary of points raised during the consultation – both written and oral –
and the authority’s response to them
 the substance of any alleged inaccuracies and details of the authority’s
response and any action taken, and
 any omitted information.
For rural school closure proposals, the authority is required to explain how, in
reviewing the proposal, it has applied the three factors to which they have had
special regard – please see below.
Additional time for consideration
The authority cannot take a decision on a proposal until three weeks have elapsed
after publishing the consultation report.
2. RURAL SCHOOL CLOSURES
The Scottish Government’s policy intention is to ensure that a decision by a local
authority to close a rural school is only taken after a number of factors have been
taken into account. The Act establishes a presumption that no rural school will be
proposed for closure (nor even the consultation process commenced) unless and
until these factors have been fully taken into account. Authorities must do everything
they reasonably can to keep a rural school open before proposing closure. However,
“It is not the policy intention that no rural school should ever be closed. There will be
circumstances in which that is the right or only course of action”.3
Before proposing to close any rural school, the authority must take three factors into
account. These are: any viable alternatives to closure
 the likely effect on the local community with regard to sustainability and on the
community’s subsequent access to, or curtailed access to, the buildings,
grounds and facilities if the school were to close, and
 the likely effect of different travelling arrangements on the environment and on
pupils and other school users occasioned by the closure.
3
Schools (Consultation) (Scotland) Bill – Policy Memorandum; Rural Schools paragraph 14; page 5
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Schools (Consultation) (Scotland) Act 2010 – Summary for EAs
The authority will be required to set out how it has considered the three factors in its
proposal paper. The authority must reconsider the factors again in light of the
consultation responses, and publish its reassessment in the consultation report.
The Scottish Government classification contains three categories of rural school.
These all relate to settlements of fewer than 3,000 people.



Accessible Rural - Settlements of fewer than 3,000 people and within 30
minutes drive of a settlement of 10,000 or more.
Remote Rural - Settlements of fewer than 3,000 people and with a drive time
of between 30 and 60 minutes to a settlement of 10,000 or more.
Very Remote Rural - Settlements of fewer than 3,000 people and with a drive
time of over 60 minutes to a settlement of 10,000 or more.
3. MINISTERIAL CALL-IN
The Act replaces the current referral system with a Ministerial power to call in
decisions, but only in relation to school closure decisions and only where there have
been apparent failures in the consultation or decision making processes.
The authority must notify Scottish Ministers of a closure decision within six working
days of making the decision, starting with the day on which the decision is made,
and send a copy of the proposal paper. There will then be a three week period for
representations to be made to Ministers and a further three weeks for them to decide
whether or not to call in the decision.
The grounds for call-in are where it appears to Ministers that the authority has failed
in a significant regard to comply with the Act’s requirements or has failed to take
proper account of a material consideration relevant to the proposal in coming to its
decision. The Act gives no statutory duty to Education Scotland in the call-in
process. However, Ministers may seek advice from Education Scotland with regard
to call-in decisions. The role of Education Scotland within the call-in process is to
provide such advice to Ministers as is appropriate on the basis that this advice is
given on a case-by-case basis. Education Scotland is not required to produce
another report.
As a safeguard, denominational bodies retain the right to refer cases to Ministers as
set out in Sections 22C and 22D of the 1980 Education Act. The Schools
(Consultation) Act 2010 revokes Sections 22A and 22B, but leaves Sections 22C
and 22D untouched. Therefore, the Act continues to allow referrals to Ministers if the
church or denominational body has an objection. There are two circumstances when
such referrals are allowed. A religious body may refer to Ministers where:
 there is a potential impact on the proportion of denominational places as a
result of proposed changes, or
 following discussion with the authority, a religious body still has concerns that
there may be a significant deterioration in religious education.
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Schools (Consultation) (Scotland) Act 2010 – Summary for EAs
CONSULTATIONS TIMELINE
The Act requires a report from Education Scotland in the case of every proposal requiring
consultation.
The Act defines ten types of proposal that will trigger the new consultation process.
Proposals requiring consultation are those where an education authority proposes to:
 discontinue permanently a school (this includes special schools and nursery schools) or
a stage of education in a school (this includes years in a secondary school or a special
class in a mainstream school or where the authority proposes to discontinue Gaelic
medium provision)
 establish a new school or stage of education in a school
 relocate a school or nursery class
 vary the catchment area or modify the guidelines for placing requests for a school
 vary the arrangements for the transfer of pupils from a primary school to a secondary
school
 change the school commencement date of a primary school
 vary arrangements for the constitution of a special class in a school other than a special
school
 discontinue arrangements for the provision of transport by the education authority for
pupils attending a denominational school
 change a denominational school into a non-denominational school
 discontinue a further education centre which is managed by the education authority.
Links to:
The Schools (Consultation) (Scotland) Act
 http://www.scottish.parliament.uk/s3/bills/23-Schools/b23bs3-aspassed.pdf
Policy Memorandum
 http://www.scottish.parliament.uk/s3/bills/23-Schools/b23s3-introd-pm.pdf
Explanatory Notes, including financial memorandum
 http://www.scottish.parliament.uk/s3/bills/23-Schools/b23s3-introd-en.pdf
Statutory Guidance
 http://www.scotland.gov.uk/Topics/Education/Schools/Buildings/changestoschoolesta
te/consultaionguidance
The following table sets out a timeline for the various phases4 of the consultation process.
Phase One: An education authority consults on a proposal – within a minimum of six
weeks, including at least 30 school days
The authority has to:
 prepare a proposal paper, including an educational benefits statement and other
required information
 publish the proposal paper, advertise the fact and notify Education Scotland and
mandatory consultees
 give the relevant mandatory consultees notice of the proposal which would include:
 a summary of the proposal, where to get a copy of the proposal paper and how to
make written representations
 the closing date of the consultation, which will be a minimum of six weeks to include
at least 30 days of term time
 if known at the time, give advance notice of the date, time and venue of the public
meeting to relevant consultees and Education Scotland
 investigate and decide what, if any, action is required where an inaccuracy or an
omission in the proposal paper is alleged or discovered
 conclude the consultation, after a minimum of six weeks, including at least 30 school
days
 provide Education Scotland with a copy of the proposal paper, copies of the written
4
The Act does not specify phases. The term is used in this summary for ease of use and clarity.
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Schools (Consultation) (Scotland) Act 2010 – Summary for EAs
representations, a summary of oral representations made at the public meeting and any
other related documentation
Phase Two: Involvement of Education Scotland - within a maximum of three weeks
Education Scotland finalise its report
The three period will have been agreed between Education Scotland through the DI and
begin once Education Scotland receives the proposal paper and other relevant
documentation. HM Inspectors will consider the proposal, including:
 the educational benefits statement
 the representations received by the education authority
 any further written representations made directly to Education Scotland on any
educational aspect of the proposal which is considered relevant.
 undertaking consideration of the proposal as proportionate and appropriate to the
proposal.
 finalising the report within a maximum of three weeks, although this can be extended by
agreement between the authority and Education Scotland, and send it to the authority.
Phase Three: Consultation Report - within no specified timescale, the authority
prepares and publishes a consultation report
The authority publishes a consultation report. It must contain:
 an explanation of how it has reviewed the proposal
 the Education Scotland report
 a summary of points raised during the consultation – both written and oral – and the
authority’s response to them
 the substance of any alleged inaccuracies and details of the authority’s response and
any action taken, and
 any omitted information.
For rural school closure proposals, the authority is required to explain how, in reviewing the
proposal, it has applied the three factors to which they have had special regard.
Phase Four: Authority Decision - a minimum of three weeks after the publication of
the consultation report the authority publishes its final decision
The authority takes its final decision on the proposal and implements the decision.
However, where the authority makes a closure decision, it must notify Scottish Ministers
within six working days of making the decision, starting with the day on which the decision is
made, and send a copy of the proposal paper.
Phase Five: Ministerial Call-in, only where the authority makes a closure decision - a
maximum of six weeks
Ministers have the power to call in decisions, but only in relation to school closure decisions
and where it appears to Ministers that the authority has failed in a significant regard to
comply with the Act’s requirements or, in coming to its decision, has failed to take proper
account of a material consideration relevant to the proposal:
 From receipt of the notification of the decisions and the proposal paper, Ministers have
six weeks to decide whether or not to issue a call-in notice.
 During the first three weeks of this period, anyone is able to make representations to
Ministers on whether the decision should be called-in.
 During this period, the education authority may not proceed further with the proposed
closure. Ministers may come to a decision sooner than six weeks (but not before the
three weeks for representations to be made to them has elapsed).
 Where a proposal is called-in, Scottish Ministers may refuse consent for the proposal or
agree to the proposal fully or subject to conditions.
 The Act gives no statutory duty to Education Scotland in the call-in process. However,
Ministers may seek advice from Education Scotland with regard to call-in decisions. The
role of Education Scotland within the call-in process is to provide such advice to
Ministers as is appropriate on the basis that this advice is given on a case-by-case basis.
Education Scotland is not required to produce another report.
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Schools (Consultation) (Scotland) Act 2010 – Summary for EAs
ANNEX 1 - SCOTTISH GOVERNMENT URBAN/RURAL
CLASSIFICATION
Large Urban
Areas
Settlements of over 125,000 people.
Other Urban
Areas
Settlements of 10,000 to 125,000 people.
Accessible Small
Towns
Settlements of between 3,000 and 10,000 people and within 30
minutes drive of a settlement of 10,000 or more.
Remote Small
Towns
Settlements of between 3,000 and 10,000 people and with a
drive time of between 30 and 60 minutes to a settlement of
10,000 or more.
Very Remote
Small Towns
Settlements of between 3,000 and 10,000 people and with a
drive time of over 60 minutes to a settlement of 10,000 or more.
Accessible
Rural
Settlements of fewer than 3,000 people and within 30
minutes drive of a settlement of 10,000 or more.
Remote Rural
Settlements of fewer than 3,000 people and with a drive
time of between 30 and 60 minutes to a settlement of
10,000 or more.
Very Remote
Rural
Settlements of fewer than 3,000 people and with a drive
time of over 60 minutes to a settlement of 10,000 or more.
11
Schools (Consultation) (Scotland) Act 2010 – Summary for EAs
ANNEX 2 - RURAL SCHOOLS BY LOCAL AUTHORITY
Local authority
Aberdeen City
Aberdeenshire
Angus
Argyll & Bute
Clackmannanshire
Dumfries &
Galloway
Dundee City
East Ayrshire
East
Dunbartonshire
East Lothian
East Renfrewshire
Edinburgh, City of
Eilean Siar
Falkirk
Fife
Glasgow City
Highland
Inverclyde
Midlothian
Moray
North Ayrshire
North Lanarkshire
Orkney Islands
Perth & Kinross
Renfrewshire
Scottish Borders
Shetland Islands
South Ayrshire
South Lanarkshire
Stirling
West
Dunbartonshire
West Lothian
Scotland
Number of rural schools
(primary, secondary and
special schools)
1
123
33
78
3
80
Rural schools as a % of
all schools
1
22
6
2
35
12
19
5
2
47
14
47
0
159
2
13
31
15
19
24
56
6
45
38
21
36
29
1
45
16
2
96
22
27
0
73
5
33
57
23
12
86
64
9
59
93
38
24
55
2
14
990
17
36
Data supplied by Scottish Government (2009).
12
Schools (Consultation) (Scotland) Act 2010 – Summary for EAs
1
71
52
80
12
65