School Education (Ministerial Powers and Independent Schools) (Scotland) Act 2004

Part 1 — Power of Scottish Ministers to require action by schools and education authorities

Power of Scottish Ministers to require action by managers of certain schools

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After section 66A of the Education (Scotland) Act 1980 (c. 44) (in this Act referred to as the “1980 Act”) insert—

(66B) (1) This section applies where, after an inspection under subsection (1) or (1AA) of section 66 of this Act of— (a) a public school; or (b) a grant-aided school, Her Majesty’s Inspectors identify that a relevant person requires to take action to secure improvement in a matter relating to the school or the school education provided in it. (2) If it appears to Her Majesty’s Inspectors that— (a) having been given sufficient opportunity to secure improvement in a matter identified under subsection (1) above, the relevant person is failing or has failed to take satisfactory action to do so; and (b) having regard to the seriousness of that failure, an enforcement direction is justified, they shall make a reference to the Scottish Ministers. (3) A reference under subsection (2) above shall— (a) be in writing; (b) specify the failure mentioned in subsection (2)(a) above; and (c) include recommendations as to the action which, in the opinion of Her Majesty’s Inspectors, the relevant person requires to take to remedy or prevent the recurrence of that failure. (4) Where Her Majesty’s Inspectors make a reference under subsection (2) above, they shall inform the relevant person of the making of that reference. (5) In this section and in sections 66C and 66D of this Act, “relevant person” means— (a) in relation to a public school, the education authority; and (b) in relation to a grant-aided school, the managers of the school. (66C) (1) Where, on a reference under section 66B(2) of this Act, it appears to the Scottish Ministers that— (a) the relevant person is failing or has failed to take satisfactory action to secure improvement in the matter mentioned in section 66B(2)(a) of this Act; and (b) an enforcement direction is justified, they may serve a preliminary notice on the relevant person. (2) A preliminary notice is a notice which— (a) informs the relevant person of the apparent failure mentioned in subsection (1)(a) above; and (b) requires the relevant person to submit to the Scottish Ministers, within such time as is specified in the notice, a written response which— (i) states that the person has not so failed and gives reasons supporting that statement; or (ii) states that the person has so failed but gives reasons why an enforcement direction should not be given to that person. (66D) (1) Where, following service under section 66C(1) of this Act of a preliminary notice and the expiry of the time specified in it, it still appears to the Scottish Ministers that— (a) the relevant person is failing or has failed to take satisfactory action to secure improvement in the matter mentioned in section 66B(2)(a) of this Act; and (b) having regard to the seriousness of that failure, action under this section is justified, they may give the relevant person an enforcement direction. (2) An enforcement direction is a direction in writing by the Scottish Ministers requiring the relevant person to whom it is given to take, within such time as is specified in the direction, such action as is so specified, being action calculated to remedy or prevent the recurrence of the failure mentioned in subsection (1)(a) above. (3) Where two or more courses of action are specified in an enforcement direction, the Scottish Ministers may specify for each a different time within which it is to be taken. (4) An enforcement direction may place such conditions as the Scottish Ministers may specify in it upon the carrying out of such functions of the relevant person in relation to the school and the school education provided in it as are so specified. (5) The Scottish Ministers may vary an enforcement direction by giving a further such direction. (6) A further such direction need not proceed upon a further preliminary notice under section 66C(1) of this Act. (7) An enforcement direction may be revoked by the Scottish Ministers. (8) Before giving, varying or revoking an enforcement direction, the Scottish Ministers shall consult Her Majesty’s Inspectors. (9) A relevant person to whom an enforcement direction is given shall comply with it. (10) The Scottish Ministers may, instead of or as well as giving an enforcement direction, make such recommendations to the relevant person as they think appropriate. (11) If the Scottish Ministers exercise their power to give, vary or revoke an enforcement direction they shall— (a) prepare a report on their exercise of that power; and (b) lay that report before the Scottish Parliament.

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Power of Scottish Ministers to require action by education authorities

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After section 10 of the Standards in Scotland’s Schools etc. Act 2000 (asp 6) (in this Act referred to as the “2000 Act”) insert—

(10A) (1) This section applies where, after an inspection under section 9 of this Act, Her Majesty’s Inspectors identify that an education authority require to take action to secure improvement in the way the authority exercise a function in relation to the provision of school education. (2) If it appears to Her Majesty’s Inspectors that— (a) having been given sufficient opportunity to secure improvement in the way they exercise a function identified under subsection (1) above, the education authority are failing or have failed to take satisfactory action to do so; and (b) having regard to the seriousness of that failure, an enforcement direction is justified, they shall make a reference to the Scottish Ministers. (3) A reference under subsection (2) above shall— (a) be in writing; (b) specify the failure mentioned in subsection (2)(a) above; and (c) include recommendations as to the action which, in the opinion of Her Majesty’s Inspectors, the education authority require to take to remedy or prevent the recurrence of that failure. (4) Where Her Majesty’s Inspectors make a reference under subsection (2) above, they shall inform the education authority of the making of that reference. (10B) (1) Where, on a reference under section 10A(2) of this Act, it appears to the Scottish Ministers that— (a) the education authority are failing or have failed to take satisfactory action to secure improvement in the way they exercise the function mentioned in section 10A(2)(a) of this Act; and (b) an enforcement direction is justified, they may serve a preliminary notice on the authority. (2) A preliminary notice is a notice which— (a) informs the education authority of the apparent failure mentioned in subsection (1)(a) above; and (b) requires the authority to submit to the Scottish Ministers, within such time as is specified in the notice, a written response which— (i) states that the authority have not so failed and gives reasons supporting that statement; or (ii) states that the authority have so failed but gives reasons why an enforcement direction should not be given to them. (10C) (1) Where, following service under section 10B(1) of this Act of a preliminary notice and the expiry of the time specified in it, it still appears to the Scottish Ministers that— (a) the education authority are failing or have failed to take satisfactory action to secure improvement in the way they exercise the function mentioned in section 10A(2)(a) of this Act; and (b) having regard to the seriousness of that failure, action under this section is justified, they may give the authority an enforcement direction. (2) An enforcement direction is a direction in writing by the Scottish Ministers requiring the education authority to which it is given to take, within such time as is specified in the direction, such action as is so specified, being action calculated to remedy or prevent the recurrence of the failure mentioned in subsection (1)(a) above. (3) Where two or more courses of action are specified in an enforcement direction, the Scottish Ministers may specify for each a different time within which it is to be taken. (4) An enforcement direction may place such conditions as the Scottish Ministers may specify in it upon the exercise of such functions of the education authority in relation to the provision of school education as are so specified. (5) The Scottish Ministers may vary an enforcement direction by giving a further such direction. (6) A further such direction need not proceed upon a further preliminary notice under section 10B(1) of this Act. (7) An enforcement direction may be revoked by the Scottish Ministers. (8) Before giving, varying or revoking an enforcement direction, the Scottish Ministers shall consult Her Majesty’s Inspectors. (9) An education authority to which an enforcement direction is given shall comply with it. (10) The Scottish Ministers may, instead of or as well as giving an enforcement direction, make such recommendations to the education authority as they think appropriate. (11) If the Scottish Ministers exercise their power to give, vary or revoke an enforcement direction they shall— (a) prepare a report on their exercise of that power; and (b) lay that report before the Scottish Parliament.

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Part 2 — Independent schools

Meaning of “independent school”

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In section 135(1) of the 1980 Act (interpretation), in the definition of “independent school”, the words “five or more” are repealed.

Registration of independent schools

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• (1) For section 98(2) of the 1980 Act (offences in relation to conducting or being a proprietor of a school which is not registered or provisionally registered) substitute—

(2) The Registrar shall record in the register— (a) in relation to every application under section 98A(1) of this Act for registration of an independent school, such information as the Scottish Ministers may direct; (b) in relation to any conditions imposed by virtue of this Part of this Act on the carrying on of a registered school, such information (including information relating to any variation and revocation of such conditions) as the Scottish Ministers may direct; (c) every order of an Independent Schools Tribunal or the Scottish Ministers imposing any disqualification under this Part of this Act; and (d) in relation to every registered school, such information relating to particulars prescribed under paragraph (a) of subsection (3) below— (i) furnished by virtue of that paragraph; and (ii) notified by virtue of paragraph (b) of that subsection, to the Registrar as the Scottish Ministers may direct. (2A) Where an order removing any disqualification under this Part of this Act is made by— (a) the Scottish Ministers; or (b) the sheriff principal, the Registrar shall remove the order imposing that disqualification from the register.

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• (2) For section 98A of the 1980 Act substitute—

(98A) (1) Any person proposing to carry on an independent school shall apply to the Scottish Ministers for registration of that school. (2) An application for registration shall— (a) be in such form; and (b) include such information, as the Scottish Ministers may, by regulations, prescribe. (3) The Scottish Ministers may, subject to subsection (4) below, grant an application for registration if they are satisfied that— (a) efficient and suitable instruction will be provided at the school, having regard to the ages and sex of the pupils who shall be attending the school; (b) the welfare of such pupils will be adequately safeguarded and promoted; (c) subject to subsection (5)(a) below— (i) the proprietor of the school is a proper person to be the proprietor of an independent school; and (ii) every proposed teacher in the school is a proper person to be a teacher in any school; (d) subject to subsection (5)(b) below, the proposed school premises are suitable for use as a school; and (e) subject to subsection (5)(c) below, the accommodation to be provided at the school premises is adequate and suitable, having regard to the number, ages and sex of the pupils who shall be attending the school. (4) The Scottish Ministers may, on granting an application for registration, impose such conditions on the carrying on of the registered school as they think fit. (5) The Scottish Ministers shall not be satisfied that— (a) the proprietor of an independent school is a proper person to be the proprietor of such a school or, as the case may be, that a proposed teacher in such a school is a proper person to be a teacher in any school if that proprietor or, as the case may be, proposed teacher— (i) is, by virtue of this Part of this Act, disqualified from being such a proprietor or, as the case may be, such a teacher; (ii) is disqualified from working with children; or (iii) is a prescribed person; (b) proposed school premises are suitable for use as a school if any part of such premises is, by virtue of this Part of this Act, disqualified from being so used; and (c) accommodation to be provided at school premises is adequate and suitable if any such accommodation is, by virtue of this Part of this Act, disqualified from being used as such or from being used as such for pupils of— (i) such number; or (ii) such age or sex, for which it is proposed it be used. (6) In this Part of this Act— - “disqualified from working with children” shall be construed in accordance with section 17 of the Protection of Children (Scotland) Act 2003 (asp 5); - “prescribed person” means— 1. in relation to a proprietor of an independent school, a person falling within such class of persons as the Scottish Ministers may, by regulations, prescribe; and 2. in relation to a teacher or proposed teacher in such a school, a person falling within such class of persons as may be so prescribed; and - “proposed teacher” means a person that the proprietor of an independent school proposes will, on the registration of that school, be a teacher in it. (98B) (1) This section applies where the Scottish Ministers refuse an application for registration on the ground that they are not satisfied that— (a) the proposed school premises are suitable for use as a school; (b) accommodation to be provided at the proposed school premises is adequate and suitable, having regard to the number, ages and sex of the pupils who shall be attending the school; (c) the proprietor of the independent school is a proper person to be the proprietor of such a school; or (d) a proposed teacher in the school is a proper person to be a teacher in any school. (2) Where the Scottish Ministers refuse an application for registration on the ground mentioned in subsection (1)(a) above they may make an order disqualifying the proposed school premises or any part of them from being used as a school. (3) Where the Scottish Ministers refuse an application for registration on the ground mentioned in subsection (1)(b) above they may make an order disqualifying the accommodation from being used as such or from being used as such for pupils— (a) exceeding such number; or (b) of such age or sex, as they may specify. (4) Where the Scottish Ministers refuse an application for registration on the ground mentioned in subsection (1)(c) above they may make an order disqualifying the proprietor from being the proprietor of an independent school. (5) Where the Scottish Ministers refuse an application for registration on the ground mentioned in subsection (1)(d) above they may make an order disqualifying the proposed teacher from being a teacher in any school. (98C) (1) The Scottish Ministers shall give notice to the persons mentioned in subsection (2) below of their decision on an application for registration of an independent school. (2) The persons referred to in subsection (1) above are— (a) the proprietor; (b) where the application for registration is refused on the ground that the Scottish Ministers are not satisfied that a proposed teacher in the school is a proper person to be a teacher in any school, that proposed teacher; (c) the Registrar; and (d) any other person or body the Scottish Ministers think fit. (3) Where, under section 98A(3) of this Act, the Scottish Ministers grant an application for registration of an independent school, they shall direct the Registrar to register that school. (4) Where an order is made under section 98B(2), (3) or (4) of this Act, the Scottish Ministers shall, as soon as reasonably practicable after making the order, give notice to— (a) the proprietor; (b) the Registrar; and (c) any other person or body the Scottish Ministers think fit, of the order. (5) Where an order is made under section 98B(5) of this Act, the Scottish Ministers shall, as soon as reasonably practicable after making the order, give notice to— (a) the proposed teacher to whom the order relates; (b) the Registrar; and (c) any other person or body the Scottish Ministers think fit, of the order. (6) The proprietor of an independent school may, before the expiry of the period of 28 days beginning with the day on which that proprietor is given notice under subsection (1) above, appeal to the sheriff principal— (a) where the application for registration of the school is, under subsection (3) of section 98A of this Act, refused, against that refusal; or (b) where such application is, under that subsection, granted and conditions are, under subsection (4) of that section, imposed on the carrying on of the school, against the imposition of any such condition. (7) Where an order is made under section 98B(2), (3) or (4) of this Act, the proprietor may, before the expiry of the period of 28 days beginning with the day on which that proprietor is given notice under subsection (4)(a) above, appeal to the sheriff principal against the order. (8) Where an order is made under section 98B(5) of this Act, the proposed teacher may, before the expiry of the period of 28 days beginning with the day on which that proposed teacher is given notice under subsection (5)(a) above, appeal to the sheriff principal against the order. (98D) (1) Where the Scottish Ministers are satisfied that a registered school is no longer being carried on as such, they may make an order directing the Registrar to remove the school from the register. (2) Where an order is made under subsection (1) above, the Scottish Ministers shall, as soon as reasonably practicable after so doing, give notice to— (a) the proprietor; (b) the Registrar; and (c) any other person or body the Scottish Ministers think fit, of the order. (3) The Registrar may, on the application of the proprietor of a registered school, remove that school from the register. (4) Where, under subsection (3) above, the Registrar removes a school from the register, the Registrar shall give notice to— (a) the proprietor; and (b) any other person or body the Registrar thinks fit, of that fact.

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Regulation of registered schools

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• (1) After section 98D of the 1980 Act (as inserted by section 4(2) of this Act) insert—