70.Subsection (1) of section 33 establishes the office of His Majesty’s Chief Inspector of Education in Scotland and provides for its Gaelic name. The Gaelic name, ‘Àrd-Neach-sgrùdaidh an Rìgh airson Foghlam ann an Alba’, has equal legal status.
71.Subsection (2) introduces schedule 2 which makes detailed provision for the status and terms of appointment of the Chief Inspector, as well as various matters of an administrative nature relating to the office of Chief Inspector. See paragraphs 200 to 209 of these Notes for commentary on that schedule.
72.Section 34 requires the Chief Inspector to appoint a deputy from among the Inspectors who are appointed under section 35. This appointment is subject to the approval of the Scottish Ministers.
73.There is further provision made in relation to deputising for the Chief Inspector at paragraphs 6 and 7 of schedule 2 (see paragraphs 207 and 208 of these Notes).
74.Section 35 provides for the appointment by the King of His Majesty’s Inspectors of Education in Scotland. Inspectors will be appointed by His Majesty by Order in Council on the recommendation of the Scottish Ministers.
75.Under subsection (2), the Scottish Ministers are to determine the number of Inspectors to be appointed by His Majesty. Subsection (3) provides that the Inspectors hold and vacate office at His Majesty’s pleasure, and otherwise operate in accordance with terms and conditions determined by the Scottish Ministers. Under subsection (4), a defect in the appointment process for an Inspector does not call into question the validity of anything done by that person.
76.Subsection (5) provides for inspectors appointed under the Education (Scotland) Act 1980 (see sections 66 and 135 of that Act) to be treated as if appointed under this section, so that existing inspectors will automatically become Inspectors under the provisions of this Act.
77.Subsection (1) allows the Chief Inspector to appoint suitable persons to assist in the carrying out of inspections.
78.The remuneration, allowances and other terms and conditions applicable to such persons are to be determined by the Chief Inspector, with the approval of the Scottish Ministers.
79.Section 37(1) sets out the purposes which the Chief Inspector is, so far as relevant, to carry out their functions with a view to achieving. The qualifier “so far as relevant” recognises that there may be times where the Chief Inspector is, for example, performing a purely administrative task where it is difficult to draw a direct line between the task and achieving the purposes of inspection.
80.The purposes of inspection encompass recognising effective practice that has been adopted by relevant educational establishments, promoting improvements that could be made in the quality of education in Scotland, and providing assurance to the public that the quality of education provided in relevant educational establishments is being assessed.
81.Subsection (2) allows the Scottish Ministers by regulations (subject to the affirmative procedure – see section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010) to modify this section so as to add, remove or vary a purpose of inspection. However, under subsection (3) this is subject to the requirement to first consult the Chief Inspector, the Advisory Council established under section 44, and such other persons as Ministers consider appropriate.
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.
87.This section sets out the meaning of “relevant educational establishment” which will, other than excepted establishments (also defined in this section), be subject to inspection at the discretion of the Chief Inspector under section 38 (subject to any minimum frequency of inspection set by Ministers under section 38(4)). Excepted establishments are subject to inspection under section 38 too, but only at the request of the Scottish Ministers.
88.The Scottish Ministers may modify this section to amend either or both of these definitions by regulations under subsection (6), after consultation with the Chief Inspector, the Advisory Council and any others the Scottish Ministers consider it appropriate to consult. Any such regulations would be subject to the affirmative procedure.
89.The definition of “
90.Subsection (3) provides higher education institutions are only subject to inspection in relation to the teacher training they provide and not in relation to their operations more generally. In addition, residential accommodation is only to be inspected in regard to the adequate safeguarding and promotion of welfare (because the accommodation will not be where the education is provided). Finally, education authorities are only to be inspected in regard to the provision of school education (because local authorities have many other functions which are not relevant to these inspections).
91.As noted above, the section also sets out the meaning of “excepted establishments” – those which the Scottish Ministers may order inspection of, but which are not to be inspected at the Chief Inspector’s instance. In brief, these are places where fundable further education is provided by a post-16 education body or where teacher training is provided. The former is already subject to review and assessment by the Scottish Funding Council (see section 13 of the Further and Higher Education (Scotland) Act 2005), and higher education institutions are similarly subject to separate quality assurance processes. As such, it is considered that there would be a risk of double inspection if the Chief Inspector took on this role.
92.This section allows the Chief Inspector to provide inspections or advice in relation to the provision of education by private arrangement. For example, an establishment providing both further and higher education might want to ask the Chief Inspector to inspect the higher education elements which do not fall under section 38. Alternatively, an establishment might want/need to enter into an arrangement with the Chief Inspector in order to contract for the provision of recognised ‘educational oversight’ for the purposes of UK Visas and Immigration sponsor status for some of its students. The Chief Inspector may recover the expenses of carrying out the inspections or providing the advice.
93.Section 41 requires the Chief Inspector to give the Scottish Ministers advice when they request it, and allows the Chief Inspector to give such other advice as the Chief Inspector thinks fit, on any matter to relating to the Chief Inspector’s functions.
94.This section requires the Chief Inspector to work in collaboration with others, in every case in which it appears to the Chief Inspector appropriate to do so, on any matter relating to the Chief Inspector’s functions.
95.Section 43 places several duties on the Chief Inspector, when exercising the functions of the Chief Inspector.
96.The Chief Inspector is required to set and uphold high standards in education governance and accountability (paragraph (a) of subsection (1)).
97.The Chief Inspector is further required to have regard to a number of things, including the National Improvement Framework (defined in subsection (2)) and the statutory roles and responsibilities of persons or bodies the Chief Inspector works with. There is also a safeguarding duty, as the Chief Inspector is required to have regard to the need for relevant educational establishments to have adequate arrangements in place to safeguard and promote the welfare of children and young people. In addition, the Chief Inspector must have regard to the needs and interests of persons who are receiving or will receive education at a relevant educational establishment (as defined in section 39), including those with educational support needs (as defined in section 63) and those who are receiving, or wish to receive, British Sign Language learner education, British Sign Language medium education, Gaelic learner education, Gaelic medium education, or the teaching of British Sign Language or the Gaelic language in further education. Finally, the Chief Inspector is to have regard to the experience of those providing teaching or training in relevant educational establishments, and also the experience of those providing support to individuals with educational support needs at relevant educational establishments.
98.This section requires the Chief Inspector to establish and maintain an Advisory Council, the function of which will be to advise the Chief Inspector in relation to the exercise of the Chief Inspector’s functions (either on its own initiative or at the request of the Chief Inspector).
99.The Chief Inspector is to appoint members having regard to the need to ensure that the Advisory Council is representative of the interests of persons likely to be affected by the Chief Inspector’s functions. Those likely to be so affected include the groups named in subsection (2): those receiving education at relevant educational establishments; parents and carers of such persons; persons providing teaching or training at such places; and the Chief Inspector’s staff.
100.Under subsection (4), the Chief Inspector must have regard to any advice provided by the Advisory Council, and, in any cases where the Chief Inspector decides not to follow that advice, provide the Advisory Council with an explanation of the action (if any) to be taken and the reasons for that.
101.The Chief Inspector is required to, as soon as reasonably practicable after this section comes into force, publish an inspection plan and lay it before the Scottish Parliament.
102.The inspection plan must set out details of inspections to be carried out during the period to which the plan applies (other than in relation to excepted establishments, where inspections happen only upon request by the Scottish Ministers). The detail which must be covered by the plan includes—
the period to which the plan relates (which must comply with any rule set by virtue of subsection (8) of this section),
information about the frequency with which the Chief Inspector intends to instigate inspections (which must be within the parameters set by virtue of section 38(4)),
the approximate number of institutions to be inspected as a result,
information about how and when advance notice will be provided of an inspection in cases where advance notice is being given,
information about the different models of inspection (which might include, for example, abbreviated and full inspections, and scheduled and unscheduled),
information about the standards against which all establishments (including any excepted establishments) are to be assessed,
information about how inspections will evaluate the extent to which relevant educational establishments are taking action to secure better or further effect of the rights of children,
information about the extent to which outdoor education will be evaluated and how it will be evaluated in the cases where it is evaluated (including the standards it will be measured against),
information about the processes for making recommendations to establishments and for establishments to respond to such recommendations.
103.The plan may also include such other material as the Chief Inspector considers appropriate.
104.The Chief Inspector must consult in accordance with subsection (4) in preparing the plan.
105.The Chief Inspector must keep the plan under review and may publish and lay before the Parliament a new inspection plan at any time. The rules about what an inspection plan must contain will apply automatically to any new inspection plan, as will the requirements as to consultation.
106.Before publishing an inspection plan (whether the first inspection plan under subsection (1)(a) or a new inspection plan under subsection (3)(c)), the Chief Inspector is required to lay a draft of the plan before the Scottish Parliament for a period of 40 days (not including any time in which Parliament is dissolved or in recess for more than 4 days). The Chief Inspector must have regard to any representations made about the plan during that 40 day period, any resolution relating to the draft plan passed by Parliament, and any report relating to the draft plan published by a committee of the Parliament.
107.Subsection (8) also allows the Scottish Ministers to make regulations (subject to the affirmative procedure) specifying how frequently the inspection plan must be reviewed, subject to consulting as required by subsection (9).
108.Subsection (1) requires the Chief Inspector to prepare and publish a report on the findings of each inspection carried out in pursuance of section 38(2). When preparing the report, the Chief Inspector is required by subsection (2) to have regard to any representations made by persons representing the interests of registered teachers or college teaching staff providing teaching or training in the establishment which is the subject of the inspection report.
109.Subsections (3) and (4) make provision about the sharing of advance copies of inspection reports. This rule applies where an inspection is carried out in respect of a single educational establishment or what the Chief Inspector considers to be connected establishments (for example, a boys’ school and a girls’ school which operate as a pair). The rule would therefore not apply to, for example, a thematic inspection report on maths which was produced under section 38(2)(b)(iii) and which sampled 30 different institutions. Where the rule applies, the Chief Inspector must share an advance copy of the inspection report with the institution unless the Chief Inspector considers that there are exceptional circumstances which justify not sharing the advance copy. Section 47(2)(b) makes related provision requiring reporting on the number of times this exception is relied upon.
110.Under subsection (5), where the report is one that relates to an inspection which the Chief Inspector was required to carry out under a Ministerial request, a copy of the report must be passed to the Scottish Ministers. The Chief Inspector is empowered under subsection (6) to lay a copy of any report on an inspection before the Scottish Parliament but is not required to do so (given the expected volume and the fact that they are published anyway).
111.It is for the Chief Inspector to determine the form and content of any report (subsection (7)). Among other things, this flexibility as to content will allow the Chief Inspector to take account of other existing obligations (such as data protection) and good practice when considering the level of detail that it is appropriate to include in each case, balancing the public interest in the outcomes of inspections with privacy considerations.
112.Subsection (8) requires the managers of a relevant educational establishment to have regard to the most recent report published in respect of their establishment. They would be free to have regard also to relevant aspects of older reports, or of reports published in respect of other establishments, but the obligation is only in respect of the current report about their own establishment. The term “managers” is defined in subsection (9).
113.Section 47 requires the Chief Inspector to prepare an annual report on the Chief Inspector’s activities during the financial year. This must include a summary of any advice provided by the Advisory Council and the Chief Inspector’s response (for example, actions in response), as well as information about the number of times during the year that the exception in section 46(4) has been relied upon in order to not provide an advance copy of a report to an establishment (see paragraph 109 of these Notes). It may also include any other content determined by the Chief Inspector.
114.The report must be published and sent to the Scottish Ministers, as soon as practicable after the end of each financial year. At the same time as the report is sent to the Scottish Ministers, a copy of the report must be laid before the Scottish Parliament.
115.This section requires the Chief Inspector to prepare and publish a report assessing the performance of the Scottish education system, as far as it relates to the Chief Inspector’s functions. A copy of this report must also be sent to the Scottish Ministers, and laid before the Scottish Parliament at the same time. This report must include an overview of the findings set out in inspection reports published under section 46(1) during the reporting period insofar as they relate to the performance of the Scottish education system. The form of the report is to be decided by the Chief Inspector, and it may form part of another document: for example, it could be included as part of the annual report to be prepared under section 47.
116.There is an obligation on the managers of a relevant educational establishment to have regard to the most recent report under this section when exercising their functions. They would be free to have regard also to relevant aspects of older reports under this section, but the obligation exists only in respect of the current report. The term “managers” is defined in subsection (5).
117.The report must be prepared annually, as soon as reasonably practicable after the end of each reporting period (being the period between the date this section comes into force and the following 31 July, and each subsequent period of 1 year beginning on 1 August). Subsection (7) allows the Scottish Ministers to make regulations (subject to the affirmative procedure) to modify the reporting period, subject to consulting with the Chief Inspector, the Advisory Council, and such other persons as the Scottish Ministers consider appropriate.
118.This section allows the Chief Inspector to prepare and publish a report about any other matter relating to the Chief Inspector’s functions as the Chief Inspector considers appropriate. A copy of any such report must be sent to the Scottish Ministers and laid before the Scottish Parliament at the same time as being sent to Ministers.
119.This section provides for statements made in a report published by the Chief Inspector to have absolute privilege (meaning they cannot form the basis of an action of defamation by any person referred to in those statements).
120.What is meant by a “statement” is “words, pictures, visual images, gestures or any other method of signifying meaning”. This definition is set out in section 36(b) of the Defamation and Malicious Publication (Scotland) Act 2021.
121.This section provides that the Chief Inspector has the power to do anything necessary, expedient or conducive to the performance of the Chief Inspector’s functions. This will in practical terms be subject to any constraints found elsewhere in legislation (for example, the Chief Inspector is required under section 34 to obtain Ministerial approval to the appointment of an Inspector as the Deputy Chief Inspector).
122.This section provides a person tasked with carrying out an inspection (whether the Chief Inspector, another Inspector, or a person asked to assist with an inspection) with the authority to enter any relevant educational establishment (as defined in section 39) in order to be able to fulfil that function.
123.This power must be exercised at a reasonable hour and only allows entry to a dwelling-house with the permission of the Scottish Ministers (this could be relevant to, for example, an inspection of residential accommodation where a student is living in a placement arranged to secure their attendance at a school). This power does not authorise entry by force.
124.A person exercising this power of entry must produce evidence of their identity and authority if asked to do so. They may also take onto the premises such other persons as they require in order to carry out the inspection.
125.This section requires the managers of a relevant educational establishment (as defined in section 39) which is being inspected to provide assistance and co-operation to the persons carrying out the inspection, in particular making available any relevant documents and taking all reasonable steps to secure access to places where education is provided by arrangement with the establishment to those in attendance at the establishment. For example, where a school uses private property owned by someone else for its pupils’ sporting activities, this might include entering into suitable contractual arrangements which allow for the provision of access for inspections, and making the necessary practical arrangements.
126.Section 54 provides that failing to comply with the duty to provide assistance in section 53 without reasonable excuse is an offence. Intentionally obstructing an Inspector or other person carrying out an inspection under this Part is also an offence. The penalty for these offences is a fine not exceeding level 4 on the standard scale (£2,500 as at the date of production of these Notes).
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.
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.
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.
134.This section applies when the Chief Inspector is publishing a document under this Part of the Act. It requires the Chief Inspector to have regard to the importance of communicating in an inclusive way that best meets the needs of children and young people, persons with educational support needs (as defined in section 63), users of British Sign Language, users of Gaelic, users of Scots, and other people affected by the Chief Inspector’s functions. For example, this section would require the Chief Inspector to consider publishing the inspection plan under section 45 in an accessible format and translating it into Gaelic.