School closures: FOI release

Information requested

"1. What powers do the Scottish Government have to close down Schools anytime they want?

2. When did the Scottish Government require these powers to close down schools at any time?

3. When the Schools closed down this year because of the Corona Virus, who made the decision to close them down? full list of people involved please.

4. Can I have the minutes from the meetings held on closing down the schools?

5. Can any Local Council refuse to close down their local schools if they choose to do so or has the SG got the only say in the matter?"

You further clarified on 28 August 2020 that your request referred to "powers the Scottish Government have to close down Schools anytime they want. This would include Coronavirus/war/decease of any kind". You also clarified that, with regards to point 2, you "would like to know when the Scottish Government obtained these powers and when these powers were used".

Response

1. "What powers do the Scottish Government have to close down Schools anytime they want?"
Scottish Ministers do not have general powers to order or direct schools to close, as it is education authorities which have the statutory responsibility to provide education in Scotland. However, the UK Coronavirus Act 2020 gave Scottish Ministers powers to make two types of direction – the educational closure direction (section 37 and part 2 of schedule 16) and the educational continuity direction (section 38 and part 2 of schedule 17).

These powers allow Scottish Ministers to: 

1. direct closure of a specific school(s) or other educational establishment(s) where it is necessary and proportionate.
2. dis-apply or relax elements of education law so that local authorities and proprietors can focus on dealing with the outbreak.
3. direct educational establishments to take on additional functions relating to educational continuity, e.g. providing childcare or transport services.
4. direct the reopening of educational establishments or that pupils/students can be taught in other establishments.

2. "When did the Scottish Government require these powers to close down schools at any time?"
Section 37 and part 2 of schedule 16 and Section 30 and part 2 of schedule 17 of the Coronavirus Act 2020 came into force on 25 March 2020.
Having had regard to the advice of the Chief Medical Officer for Scotland, Scottish Ministers concluded that it is was necessary and proportionate to give a total of five educational continuity directions since 21 May. These directions provided important clarity on the expectations and legal position of education authorities as the current public health emergency evolved.
These directions and supportive guidance are publicly available on the Scottish Government website at https://www.gov.scot/publications/coronavirus-act-2020-educational-continuity-direction/

3. "When the Schools closed down this year because of the Corona Virus, who made the decision to close them down? full list of people involved please."
Ultimately, the decision to close their schools in March 2020 was made by the education authority in each local authority area, and the Scottish Government does not hold details of the decision making process each authority undertook. These local decisions followed the advice which Scottish Ministers issued, in response to the escalating Covid-19 outbreak and following consultation with the Chief Medical Officer and Scientific Advisory Group on Emergencies (SAGE), and engagement with COSLA, Education Scotland, ADES, SOLACE and the teaching unions, that all schools should close with effect from 17:00 on Friday, 20 March 2020.

4. "Can I have the minutes from the meetings held on closing down the schools?"
Please find attached link to the minutes from the Scientific Advisory Group for Emergencies meeting on 18th March 2020 where school closures were discussed (see paragraphs 20-25):
www.gov.uk/government/publications/sage-minutes-coronavirus-covid-19-response-18-march-2020.

Key Scottish Government discussions regarding school closures took place at Scottish Government Resilience Room (SGoRR) meetings. However, SGoRR meeting documents are exempt under section 29(1)(b) (Ministerial communications), section 30(a) (collective responsibility) and section 30(b)(i) (free and frank advice). It is also the case exemptions under sections 29(1)(a) (policy development) and section 30(b)(ii) (free and frank exchange of views) apply to much of the information related to SGoRR. Detail on this exemption is provided below.

5. "Can any Local Council refuse to close down their local schools if they choose to do so or has the SG got the only say in the matter?"
It is the Scottish Government view that education authorities hold the relevant functions to close or open their schools. However, where Scottish Ministers have given a direction under the Coronavirus Act 2020 to an education authority which requires closure (as was the case with the Educational Continuity Directions in force from 21 May to 10 August), the education authority must comply with that direction.

It is also the view of the Scottish Government that local authorities must also close a school if directed to do so by a health board competent person under the Schools General (Scotland) Regulations 1975.

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because exemptions under section(s) 29(1)(b) (Ministerial communications), section 30(a) (collective responsibility) and section 30(b)(i) (free and frank advice). It is also the case exemptions under sections 29(1)(a) (policy development) and section 30(b)(ii) (free and frank exchange of views) of FOISA applies to that information. The reasons why these exemptions apply are explained below.

By their nature, discussions at meetings of SGoRR inform the decisions taken collectively by Ministers in relation to the formulation and development of Scottish Government policy. Section 29(1)(a) applies to information contained in SGoRR papers and/or minutes which relate to the formulation or development of Scottish Government policies.

FOISA was never intended to undermine the convention of collective responsibility, and the section 29(1)(b) and 30 (a) exemptions were included to recognise its importance. Collective responsibility requires a private space, which ensures that Ministers can express their views frankly in internal discussion of an issue whilst maintaining a united front once decisions have been reached.
The SGoRR agendas form an essential practical tool to inform and assist collective discussion in the private space which ministers need to reach agreed positions. Agenda papers, just as much as the substantive papers that they list, are invariably drafted on the basis of the working assumption that they will not be disclosed until a significant amount of time has elapsed.

The exemptions at section 30(a) (Collective Responsibility) and 29(1)(b) (Ministerial Communications) recognise the need to protect the convention of collective responsibility and allow Ministers some private space for discussion.

Exemptions under Sections 30(b)(i) and 30(b)(ii) which relate respectively to free and frank provision of advice and free and frank exchange of views, apply to the information requested. 30(b)(i) recognises the need for officials to have a private space within which to provide free and frank advice to Ministers. 30(b)(ii) recognises the need for Ministers and officials to have a private space within which to discuss and explore options before the Scottish Government reaches a settled public view.

Disclosing the content of the free and frank advice or the content of the free and frank discussions will substantially inhibit the provision of such advice or discussion in the future particularly where the discussions and advice relate to an ongoing and sensitive matter with controversial aspects. 

These exemptions are subject to the 'public interest test'. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is some public interest in release as part of open, transparent and accountable government, and to inform public debate. However, this is outweighed in that there is a greater interest in allowing Ministers and officials a private space within which to explore and refine the Governments position that is sound and likely to be effective. This private space is essential to allow all options to be properly considered, so that good decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials, which in turn will undermine the quality of the decisions making process, which would not be in the public interest. 

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