Section 38 – The inspection function
82.Section 38 provides that the Chief Inspector is to secure the inspection of relevant educational establishments, as defined in section 39, subject to the detailed provision made in this section.
83.Under subsection (2)(a) of section 38, inspections of relevant educational establishments – other than excepted establishments – are to be carried out at the intervals the Chief Inspector considers appropriate, within the parameters set under subsection (4). The terms “relevant educational establishment” and “excepted establishment” are both defined in section 39 (see paragraphs 87 to 91 of these Notes). The Scottish Ministers may, under subsection (4), make regulations specifying the minimum frequency with which these inspections must be carried out, though such regulations may only be made after consultation under subsections (5) and (6). Any such regulations would be subject to the affirmative procedure (see section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010). Excepted establishments are to be inspected only on a request from Ministers (see subsection (2)(c)).
84.Under subsection (2)(b), the Scottish Ministers may also require the Chief Inspector to inspect a particular educational establishment (including an excepted establishment), a type of educational establishment (for example, grant-aided schools), or a sample of a type of educational establishment. The last of these would allow the Chief Inspector to require inspection of a sample of educational establishments, for example to assess how a specific issue is being addressed by them or how well a particular aspect of the curriculum is being delivered.
85.Subsection (3) provides that an inspection is secured by the Chief Inspector directing an Inspector or a person appointed to assist with inspections under section 36 to carry out the inspection, by the Chief Inspector carrying out the inspection personally, or by any combination of the foregoing people carrying out the inspection.
86.Subsection (7) links to subsection (4) (discussed above in paragraph 83). It requires the Scottish Ministers, within 12 months of the section coming fully into force, to put draft regulations before the Parliament for approval which would set the minimum frequency of inspection of schools (as defined in subsection (8)). If the draft regulations are approved, Ministers would be required to make them.
