Schools (Consultation) (Scotland) Act 2010: guidance

Amendments to 2010 Act

The Coronavirus (Recovery and Reform) (Scotland) Act 2022 inserted a new section 11ZA into the 2010 Act that provides that an education authority may make an application to the Scottish Ministers for a direction to do one or more of the following:

• to meet the duty to hold a public meeting on the relevant proposal by holding the meeting using wholly remote facilities (including by video conferencing software or by telephone) instead of holding an in-person public meeting
• to disregard the duty to publish proposal papers and consultation reports on proposed changes to education provision in paper form and instead, as an alternative publish the papers online only
• to disregard the duty to make available such documents for public inspection in a manner they consider appropriate and instead, as an alternative, offer to post out copies to those who require them (if feasible in any particular situation)

Ministers may only give such a direction if they are satisfied that it is a necessary and proportionate action for, or in connection with, the protection of public health. Therefore, it is envisaged that the kind of situation where an application is made would be during a public health emergency.

Ministers may vary or revoke directions. A direction may relate to more than one proposal, and may be subject to such conditions as may be set out in the direction. Ministers must publish any direction given under this section.

When the provisions apply

Where an education authority is of the view that holding a public meeting or providing access to consultation documents by wholly virtual means is necessary to avoid endangering the health of participants (as above, this is envisaged to apply during a public health emergency), they may apply to Scottish Ministers for an exemption from these requirements.

Unless a direction under section 11ZA(1) has been given by the Scottish Ministers, all public meetings must provide for attendance in-person. This does not preclude public meetings including the option of participating by way of remote video/telephone conferencing facilities, in addition to in-person attendance, and we recognise the advantages that these elements can have for some participants in terms of accessibility.

Similarly, unless a direction under section 11ZA(1) has been given by the Scottish Ministers, the education authority must continue to publish consultation documents in a printed form and make such documents available for inspection as required under the 2010 Act.

Reason for changes

The above changes to the 2010 Act are intended to provide education authorities with greater certainty about the requirements upon them during a public health emergency in relation to public meetings and provision of paper copies of consultation related materials.

Process for applying for a direction

If an education authority believes that local circumstances mean that a direction is necessary, they may contact the Scottish Government Learning Directorate using schoolclosure@gov.scot to submit an application for a ministerial direction. We will confirm receipt of the application. Please note that a direction may be sought in respect of one or more relevant proposals rather than a specific period of time.

Applications should include the following information:

• details of the relevant proposal(s) that is the subject of the consultation, and consultation(s) timings
• explanation of the need for a direction (i.e. why holding a public meeting wholly virtually/not making hard copies available is necessary to protect public health, and why other measures to mitigate the risk, for example, offering several public meetings with fewer people in attendance, using a larger venue to allow distancing, or a “hybrid” approach is not appropriate
• actions the authority would take to maximise participation in any public meeting held wholly virtually
• evidence of actions to ensure those at risk of digital exclusion can engage with the consultation, for example, older members of the community and younger pupils attending schools affected by the proposals
• evidence that the education authority has considered alternatives, e.g. lengthening/postponing the consultation period
• so far as is possible in the prevailing circumstances, evidence of discussions with pupils and parents affected by the proposal(s) (e.g. via parent or pupil councils) to explain how the consultation will take place and how their views will be reflected

The application will then be considered by the Scottish Ministers. Scottish Government officials will seek appropriate public health advice to assess the authority's view that the severity of the threat to public health warrants approving request for an exemption, i.e. that an exemption will be “necessary and proportionate” to protect public health.

The Scottish Government will aim to respond to such requests within 15 working days of confirmed receipt of an application. Ministers will respond giving reasons for their decision. Where an education authority is dissatisfied with a decision they can make a new application at any time.

Ministers may revoke a direction if there a change in circumstances or evidence.

Conducting a wholly virtual public meeting

In taking forward such a meeting it is important to take into account the following:

• aim to ensure, as far as possible, that such meetings are similar in structure and content to an in-person meeting
• ensure that participants can fully take part in the meeting, i.e. that they can be heard and hear others participating
• consider how to maximise participation and reach those that might be digitally excluded