Part V of the Education (Scotland) Act 1980 (“the 1980 Act”) deals with Independent Schools. Section 98A (Application for registration of independent school) requires that any person proposing to carry on an independent school shall apply to the Scottish Ministers for registration of that school. Section 98A(3) provides certain requirements which the Scottish Ministers must satisfy themselves of if they wish to grant the registration of a school. These include that every proposed teacher in the school is a proper person to be a teacher in any school (section 98A(3)(c)(ii)).

Section 98A(5) provides that the Scottish Ministers shall not be satisfied that a proposed teacher in such a school is a proper person to be a teacher in any school if that proposed teacher is disqualified under Part V of the 1980 Act from being a teacher; is barred from regulated work with children or is a prescribed person. These Regulations prescribe what is a “prescribed person” for the purposes of section 98A(5).

Regulation 2 of these Regulations prescribes a class of persons for the purposes of Part V (Independent Schools) of the 1980 Act, under section 98A(6) of that Act as any person who is not a registered teacher. A registered teacher is defined as a teacher whose particulars are recorded in the register maintained by the General Teaching Council for Scotland.

The effect of these Regulations is that from 1st October 2017 only a teacher who is registered with the General Teaching Council for Scotland can be a teacher in an independent school. If an independent school were to employ a teacher who is not a registered teacher after the coming into force of these regulations, the Scottish Ministers could serve a notice of complaint under section 99 (Complaints) of the 1980 Act as the registered school would be objectionable upon the ground - set out in section 99(1A)(h)(iii) of the 1980 Act - that a teacher in the school is a prescribed person.

Regulation 3 of these Regulations makes transitory provision for existing teachers at existing independent schools. The requirement to register with the General Teaching Council for Scotland for an existing teacher at an existing independent schools will take effect on 1st October 2020.

Regulation 4 of these Regulations makes transitory provision where an application has been made to register a school as an independent school before 1st October 2017 and the application is granted on or after 1st October 2017 and before 1st April 2018. Where such an application includes the full name and date of birth of a person as a teacher or proposed teacher in the school, the requirement to register with the General Teaching Council for Scotland for that teacher or proposed teacher will take effect 3 years from the date of registration of that school.