Enforcement following school-related inspections
Section 55 – Necessary improvements: referral to Scottish Ministers
127.This section and the two that follow make provision for the situation where a certain inspection (of a public school, a grant-aided school or an education authority) results in a finding that improvement is needed, it does not appear to the Chief Inspector that the necessary steps are being taken to react to that finding, and the Chief Inspector considers that the failure is a sufficiently serious one to justify the issuing of an enforcement direction.
128.The provisions simply restate and relocate the previous law as found in section 66B to 66D of the Education (Scotland) Act 1980 and sections 10A to 10C of the Standards in Scotland’s Schools etc. Act 2000, but with the Chief Inspector now taking on the role previously held by the Sovereign’s inspectors of schools.
129.Where the situation referred to in paragraph 127 above arises, section 55 imposes an obligation on the Chief Inspector to make a referral to the Scottish Ministers. A referral must be in writing, set out the failure concerned, and include recommendations as to the action that should be taken by the person with responsibility for the institution concerned. The Chief Inspector must notify that person that a referral to the Scottish Ministers has been made.
Section 56 – Preliminary notice of enforcement action
130.This section provides for the Scottish Ministers to respond to a referral made under section 55. If the Scottish Ministers consider that the person with responsibility for the institution concerned is failing or has failed to take satisfactory action to improve a matter and consider that an enforcement direction is justified, they may issue a preliminary notice. This serves to notify the relevant person that the use of an enforcement direction is being considered and requires that person to give the Scottish Ministers a written response either explaining why they think that they have not failed to take satisfactory action, or accepting that there is a failure and giving reasons (if any) as to why they consider that an enforcement direction should not be given despite the failure.
Section 57 – Enforcement direction
131.This section allows the Scottish Ministers to issue an enforcement direction following the service of a preliminary notice under section 56, if they have received a written response to the notice or the specified time period in the notice has expired. Such a direction may be issued where Ministers continue to consider that the person concerned is failing or has failed to take satisfactory action to address the matter and that, having regard to the seriousness of the failure, the use of an enforcement direction would be justified. The action that is then taken where this test is met may be the issuing of an enforcement direction, or it could be (instead or as well) the giving of recommendations.
132.An enforcement direction is a written direction requiring the taking of steps set out in the direction to address the failure. It can place conditions on the carrying out of functions by the person concerned. It will specify a time period for compliance (or in the case of more than one course of action, may specify more than one time period). It must be complied with.
133.An enforcement direction can be varied by the giving of a further direction (without the need for another preliminary notice) and can also be revoked. Before giving, varying or revoking such a direction, the Scottish Ministers must consult the Chief Inspector. Where any of those powers are exercised, the Scottish Ministers must lay before the Scottish Parliament a report on their exercise of that power.
