13th November 2018
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Boden insists schools decision is lawful

The council’s top official has hit back against claims that the authority” flouted the law” to avoid legislation aimed at protecting communities from repeated school closures.

SIC chief executive Mark Boden has insisted the SIC acted within the law when it last month postponed talks which could have led to the closure of secondary departments in Mid Yell and Whalsay.

The council came under parliamentary glare after the chairman of the Scottish Rural Schools Network, Sandy Longmuir, complained to education secretary Angela Constance about the SIC decision.

SIC chief executive Mark Boden.

SIC chief executive Mark Boden.

But Mr Boden insists no-one from within the isles has approached the authority to complain.

“If somebody thinks the council has erred in law they can drop me a line. Nobody has. But they need to tell me why, and how – and they haven’t.

“It’s interesting that the people discussing this are not Shetlanders – if a resident of Shetland, a parent, parent council, want to drop us a line and talk to us about why they think we erred, please do. We don’t think we did.”

He said the “real issue”, however, was about education, rather than a “dry, legal argument”.

“The councillors made a decision the other week, in full possession of all the facts, both from the educational attainment angle, but also from the angle of what the parents and parent councils and residents of Shetland thought. They decided that the case had not been made for a substantial change to the secondary education system in Shetland, yet.

“They didn’t need a law to make them. They decided not to go forward and to wait for at least two and a half years to the construction of the Anderson High School to see how things look then.”

The issue first came to light when Mr Longmuir heavily criticised the SIC for its decision not to publish consultation reports on Mid Yell and Whalsay, thus allowing it to examine revised proposals in 2017 rather than imposing a five year moratorium.

His case was taken up by Conservative education spokeswoman, Liz Smith MSP, who tabled a parliamentary question asking whether the council had behaved properly.

Now, a written response has been released from Minister for Learning Alasdair Allan MSP, which indicates the authority is carrying out a review to ensure it has complied with statutory requirements.

“We fully expect local authorities to comply with the Schools (Consultation) (Scotland) Act 2010 (as amended by the Children and Young People (Scotland) Act 2014), including the requirements regarding publishing a consultation report and observing a five year restriction on further consultation,” Dr Allan stated.

“I understand that Shetland Islands Council is reviewing its position to ensure that it complies with all the requirements imposed on it by the legislation.”

Mr Longmuir said the written response put the authority under pressure.

“They can find no words, no language, to be able to support Shetland Islands Council in the actions that they’ve taken.

“It’s quite clear that Shetland Islands Council is under some quite severe pressure in order to comply with the legislation as it’s written.”

He added he was “worried” that Shetland Islands Council had not publicly admitted it was carrying out a review of its decision.

“The fact that Shetland Council haven’t done that is worrying me. I was led to believe that they were going to back down gracefully.”

However, Mr Boden insisted: “Essentially, what the MSP is saying – and they are right – is that the interpretation of law is for the individuals involved, in this case the council. It’s not a job for the government.”

After Mr Longmuir’s letter to the education secretary was released to the press, a number of MSPs called on the SIC to make public the legal advice it had received in order to help lay the matter to rest.

But Mr Boden said he did not feel that would help bring a solution to the problem.

“I have to say that I think a dry, legal argument about the technicalities of a clause in an act somewhere is a digression.”

About Ryan Taylor

Ryan Taylor has worked as a reporter since 1995, and has been at The Shetland Times since 2007, covering a wide variety of news topics. Before then he reported for other newspapers in the Highlands, where he was raised, and in Fife, where he began his career with DC Thomson. He also has experience in broadcast journalism with Grampian Television. He has lived in Shetland since 2002, where he harbours an unhealthy interest in old cars and motorbikes.

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8 comments

  1. John Tulloch

    From the above article:

    “But Mr Boden said…….

    “I have to say that I think a dry, legal argument about the technicalities of a clause in an act somewhere is a digression.”

    And I have to “put it to you, Mr Boden”, that it isn’t a digression in this particular discussion, which is about the “rule of law”, is it not?

    Or has Stuart Hill finally convinced SIC that Scottish Law has no force in Shetland?

    Reply
  2. Stuart Hannay

    So sorry to hear, Mr.Boden, that you weren’t aware of what is happening. My letter’s in the post.

    Reply
  3. Duncan Simpson

    “the interpretation of law is for the individuals involved, in this case the council. It’s not a job for the government.”

    How convenient. So the law only applies however the Council interprets it? Can we all live under this principle?

    I suggest people get writing to Mr Boden since he seems to think we are all happy with this cynical piece of underhand scheming.

    Reply
  4. Sandy Longmuir

    “Dry legal argument about the technicalities of a clause in an act”. There is only one party here trying to exploit legal technicalities, dry or otherwise. To everyone involved in the journey to legislation it was exceptionally clear what the identified problem was and how the Act intended to rectify this. It is often necessary to consult on the future of a school but the damage such a process can do is well understood. People’s jobs are uncertain, future community interaction and projects are put on hold and is some cases families are not even certain they will be able to keep their 11 year olds at home through the week. Parliament decided that the process needs to be decisive and that, after the period of uncertainty that a consultation causes, there should be a respite of at least 5 years before the community can go through another such process. Quite simple really and you would think the intent and mechanics would be very clear to anyone with the slightest modicum of intelligence.
    We did not count on the unscrupulous trying to undermine the legitimate aims of the Act with the driest of legal technicalities you can imagine. They know what the Act intended but the comments issued by SIC make it quite clear that they consider themselves either above the law or too clever for the law. Strange when it is obvious to everyone else that they are neither.

    Reply
  5. Johan Adamson

    So grateful that there is some one willing to take them to task for the fact that ‘ they consider themselves either above the law or too clever for the law’. It is the same with the windmills, they think they can just ride rough shod over the lot o wis.

    Reply
  6. Christopher Ritch

    “And, of course, as we are following the statutory process everyone’s views are welcome, and everyone’s views are being taken into account. In terms of the process there is nothing to be concerned about.”

    Mark Boden, April 2014

    Reply
  7. Christopher Ritch

    “We fully expect local authorities to comply with the Schools (Consultation) (Scotland) Act 2010 (as amended by the Children and Young People (Scotland) Act 2014), including the requirements regarding publishing a consultation report and observing a five year restriction on further consultation.
    I understand that Shetland Islands Council is reviewing its position to ensure that it complies with all the requirements imposed on it by the legislation.”

    Alasdair Allan Minister for Learning, Science and Scotland’s Languages 06 March 2015

    Reply
  8. Christopher Ritch

    Last April Mark Boden assured us there was nothing to be concerned about.

    Now, the Minister for learning advises the SIC is “reviewing” its position, but Mark Boden still says there is nothing to be concerned about. Just a few pesky politicians asking questions. (Not even Shetlanders) The Minister for learning appears to suggest there IS a requirement to publish a consultation report. The SIC legal bods disagree. If the SIC are correct, what is the point of the Act?

    Reply

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