16
The Local Governance of Education
Don Ledingham
Despite a range of local government reorganisations since 1926, a constant feature of
educational provision has been the role of the Local Authority (in whatever guise) in the
governance and operational responsibility for schooling within its boundaries. The
place of the ‘Education Authority’ to set policy, allocate budgets and scrutinise
performance has been sacrosanct. Locally elected members and senior officers have
held sway over education with a constancy which few other aspects of public service
delivery can match. Yet over the last few years we have begun to see forces at work
which have the potential to undermine and destabilise the status quo with critical
consequences - unless radical steps are taken to redesign the ‘taken for granted’ modus
operandi. In recognition of this state of flux this chapter will attempt to describe the
current obligations facing Education Authorities; then consider the forces for change
which are challenging this status quo; and finally describe some of the emerging models
in this new world and explore how these might evolve in practice.
Current obligations for education authorities
An interesting fact to be drawn from the Standards in Scotland's Schools, etc., Act 2000
is that there is no difference between the Local Authority and the Education Authority,
i.e. they are one and the same thing. This feature is worthy of note given some of the
alternatives to be considered later in this chapter. The Act sets out the following key
obligations for Education Authorities:
Duty of education authority in providing school education
Where school education is provided to a child or young person it shall be the duty of the
authority to secure that the education is directed to the development of the personality,
talents and mental and physical abilities of the child or young person to their fullest
potential.
Education authority's annual statement of improvement objectives
The education authority, after consulting such bodies as appear to the authority to be
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representative of teachers and parents within their area and of persons, other than
teachers, prepare and publish a statement setting objectives.
Raising Standards
An education authority shall endeavour to secure improvement in the quality of school
education that is provided in the schools managed by them; and officers shall exercise
their functions in relation to such provision with a view to raising standards of
education.
School development plans
For the purpose of securing improvement in the quality of education an education
authority will ensure that there is a school development plan prepared by the school.
Review of school performance
An education authority is required to publish, as respects quality of education provided,
measures and standards of performance for the schools managed by that authority. In
addition the education authority shall review the quality of education which the school
provides; and if, having regard to the measures and standards of performance relevant
to the school, it concludes in any such review that the school is not performing
satisfactorily, it shall take such steps as appear to them to be requisite to remedy the
matter.
Delegation schemes
An education authority must devise a scheme for delegating to the headteacher of a
school that share of the authority's budget for a financial year which is available for
allocation to individual schools. The expectation is that education authorities will
devolve as much of their budget as possible to schools.
The education authority may also delegate other management functions in relation to
the school as is deemed appropriate.
Requirement that education be provided in mainstream schools
There is an assumption that all children will have right to be educated in mainstream
schools unless their needs are so extreme as to make that impossible to deliver.
Additional Support for Learning
Each education authority must make adequate and efficient provision for the needs of
each such child or young person, and must have in place arrangements for ensuring that
the additional support being provided remains adequate to meet those needs (ASL Act
2004).
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Here are some of the other major responsibilities for Education Authorities set out in
the 2000 Act:

School Boards

Home Education

Pre-school education

Home to school transport

Education of children unable to attend school

Rights of appeal against exclusion

Placing requests/appeals

Grants; clothing, etc.
As can be seen from the above, the range of obligations facing an education authority is
wide-ranging. However, it is possible to tease these responsibilities out into three broad
areas: (i) the provision of education; (ii) managing school performance; and (iii)
additional support for learning.
Current Governance Model
In order to deliver the above obligations most Councils delegate the responsibilities to
an education committee who oversee, budget, policy, and scrutiny matters relating to
education. The Committee is composed of elected members and 3 church
representatives and is chaired by an Education Convener, who will be a member of the
ruling political administration. The Education Committee will consider reports
prepared on its behalf by officers of the Council and will approve or reject
recommendations as they deem appropriate. The key element to be borne in mind in
the current structure is that schools and officers are accountable to locally elected
members. It is important to emphasise this element given some of the alternative
models which might potentially come in to replace the current system.
Each Education Authority will have identified a range of political objectives relating to
education and these will vary according to local administrations and their manifesto
pledges. These objectives will have a significant influence upon the reports coming
forward to the education committee but beyond those reports it could be argued that
80-90% of the daily business in schools runs without reference to local political
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mandate.
This reflects the realities that, in addition to the broad political objectives, schools and
education authorities are obliged to conform to national legislative and curricular
guidance on educational and support for learning provision and also adhere to the
nationally and locally negotiated agreements with teachers’ unions. Finally the
expectations of Her Majesty’s Inspectorate of Education – now in its new guise of
Education Scotland – which are set out in evaluation guidance in the form of ‘How Good
is Our School?’, has a very significant effect on the limited degree of variation one sees
between one authority and another. The consequence of these combined influences is
that there exists a high degree of uniformity in the nature of educational provision
throughout Scotland. Before exploring alternatives to the current governance model it
might be best to describe the forces at work that are so undermining the current
system.
The economic and social context
At the core of the pressures for change is the global recession that can be traced back to the
financial crash of 2008. For the first time in living memory public service budgets in general,
and education budgets in particular, are experiencing reductions in real terms. So much so
that it is predicted that Local Authority budgets will not return to previous levels until 2027.
For officers and elected members who have become used to annual budget growth this has
been a dramatic change in circumstances, where they have become conditioned to driving
policy and improvement agendas through allocating budgets and resources. Rather than
making decisions where ‘new money’ is to be spent, the locus is now upon where existing
resources can be withdrawn or reduced. The language of ‘efficiency’ and ‘best value’ has
come to permeate local government and new mind-sets have had to be adopted. Nevertheless,
the expectations of the general public and the workforce probably continue to exceed the
capacity of the system - and certainly lag behind any acceptance that change must happen. It
is within this very challenging environment that elected members and officers must
lead their working lives - trying to meet the expectations of their constituents and
employees while managing ever-reducing budgets. The reality of the current situation
is that we are only beginning to enter this new world and it is for that reason that some
of the system changes which will be necessary are at a nascent stage at the time of
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writing.
The recession brings with it other social consequences that impact upon educational
delivery and will make additional demands upon the system. Record levels of youth
unemployment for the 16 - 24 age range present a real challenge to schools who have
long taken it for granted that their work is done simply by providing the young person
with the necessary passports via qualifications to make their way in the world. Added to
that uncomfortable truth is the impact upon the economically disadvantaged as UK
politicians seek to tackle what is perceived to be a dependency culture. Welfare reform
resulting in changes to housing benefits, child allowances and a raft of other measures
will reduce the available income in non-working households. There exist strong
correlations to prove that such circumstances directly result in increases in drug and
alcohol abuse, incidents of child neglect and abuse, and domestic violence, all of which
lead to negative educational outcomes for children brought up in such environments.
This factor was a key feature of the OECD Report on the Quality and Equity of Scottish
Education (2007) which highlighted the fact that the outcomes for economically
disadvantaged children were worse in Scotland than most other countries in the world
when compared with their more advantaged peers in the same country. The challenge
facing schools and local authorities will be to enable such children to overcome the
impact of poverty and show resilience to match the outcomes of their peers, as is the
case in some other countries. The consequences of social inequality in Scotland are
likely to lead to increased demands upon social services with larger numbers of
children being taken into the care of the council and increased demands upon behaviour
and learning support in schools. It is against this backdrop that local authorities will
have to examine their role and make decisions which will shape school education over
the next twenty years.
Aside from the financial and social challenges there is another factor which has the
potential to influence the local governance of education. Decisions to establish national
Police and Fire Services demonstrate an appetite from the Scottish Parliament to
centralise services at a national level. Arguments about improved efficiency and
capacity could just as easily be made in relation to education with a national service
linked though some form of local accountability, as will be the case in the new Police
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and Fire Services – although operational control will lie at the national level.
It could be argued that the failure of local authorities to establish any really significant
shared service models of service delivery could compel the Government to decide that
more radical action requires to be taken if the efficiencies of partnership working are to
be derived – as is claimed to be the case in the National Police and Fire reforms.
Paradoxically, running parallel to the dilemma of local or national control is a growing
trend towards community or neighbourhood delivery of services. The Scottish
Government have championed Community Planning aligned to the achievement of
national outcomes in a Single Outcome Agreement with community planning partners,
who include, local authorities, police, health, voluntary sector, and other key agencies
who are involved in enabling better outcomes such as those for children and young
people. As the community planning agenda becomes more embedded there is a
growing realisation that a “one size fits all” approach does not meet the needs of very
diverse communities within a single geographical council area. Such an insight is
leading to the establishment of locality or neighbourhood plans, where responsibility
and budgets are devolved to those who live and work in that area. Such a direction of
travel presents challenges to both elected members and officers who have tended to see
policy development and operational management to be uniform across their area of
responsibility, whereas the future will require a much more “hands-off” and enabling
approach rather than any “command and control” model of practice.
Local authorities could therefore see themselves to be facing two opposing forces, with
the potential of them being cast adrift in the middle ground between national and
community focused agendas. It is against this uncertain and challenging backdrop that
some possible scenarios for the governance of education in Scotland will now be
mapped out.
Alternative Governance Models
National Governance of education
This scenario depends upon a national decision to remove the responsibility for
education from local authority control. In much the same way as has occurred with the
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national police and fire service reform overall strategy, policy development and some
forms of operational delivery would be drawn into the centre and managed nationally
on behalf of the Scottish Government. The senior accountable officer would be
answerable to the Cabinet Secretary with responsibility for education and have
oversight of educational delivery at local level – possibly aligned with health board
areas or some other geographic split which did not match current council boundaries.
Inevitably these areas would have managers who would be overseen by the senior
accountable officer for delivering national policy. The bottom line here is that a large
number of directors, heads of service, and service managers would no longer be
required as their role to support local educational delivery would be declared
redundant.
A key challenge facing the national service would be to identify the budget contribution
of each local authority and this could either be removed at source by reducing pro-rata
the grant awarded to individual local authorities by the Scottish Government, or by
requiring authorities to directly fund the service – as is currently the case with police
and fire. However, this will not be as easy as it might appear as the way in which
services to schools such as catering, janitorial services, music instruction, repairs and
maintenance, etc, are provided are not uniform across Scotland. Deciding therefore,
what is within the scope of the budget and outside the scope will be fraught with all
sorts of problems. Inevitably, this would lead to disputes between local authorities and
the Scottish Government about the level of funding and local variations over the current
budget allocation. Nevertheless, this is a route that other countries such as New Zealand
have managed to tread in the past and formulae can be created and applied to overcome
such disparities over a reasonable transition period.
Common policies on diverse topics such as bullying, reading programmes, staffing
formulae, school design, class arrangements, pupil support structures, and devolved
school budgets could be set at a national level and implemented within every school in
Scotland. This contrasts with current practice where all of the above are currently
within the remit of the local authority. In a similar fashion arrangements for supporting
children with additional needs for learning could be standardised across the country at
a time when the potential for differences in funding could lead to quite significant
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disparities of support. It is interesting to note at the time of writing that this disparity
of funding is providing a real challenge to emerging national Fire Service provision – as
would undoubtedly prove with a national education provision.
If such drawing of power into the centre were to come to fruition the whole notion of
local accountability - a strength of the current system – would be at risk. Taking a line
of sight from the current direction of travel in the emerging national police and fire
services, it is likely that accountability will lie with a national Board and some form of
local scrutiny through councils – but the councils will not have any locus in operational
matters. One could imagine a scenario where the local area education manager – who is
managed by the national body is called to deliver a report on education within a council
area – but with no reference to local political priorities as would be the case at present.
Shared Service Governance Models
If we accept that the ‘nationalisation’ of education exists at one end of the continuum
from current governance models what might be the models which reduce management
expenditure but maintain local accountability and influence over policy and budget? At
the heart of these alternatives is the notion that Councils would have to work together
to establish a delivery model which oversees their political imperatives but at a
substantially lower cost than is currently the case.
There are three governance
arrangements which could be adopted to achieve this model of delivery:

Joint Committee;

Lead Authority (a form of public-public partnership): Appointing one or other
of the partner authorities to lead on the delivery of the service;

A Joint Board or other Third Party Employing Organisation (e.g. Company
Limited by Guarantee): Establishing a new organisation to be wholly owned
and controlled by the Councils, either as a not-for-profit or for-profit
organisation.
Joint Committee Model
The Joint Committee is a joint body set up, by agreement, to discharge some agreed
functions on behalf of two or more authorities. Functions cannot be delegated to a Joint
Committee in cases where representatives from outwith the participating local
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authorities are given voting rights. Joint Committees are not corporate bodies, which
means they do not have their own legal identity, they cannot enforce contracts, and they
cannot employ staff. They can however operate as a new shared entity, which would be
hosted by one or other authority but provide service to both. The service would deliver
the policies set by the Joint Committee. Elected Members who sit on Joint Committees
must act in the best interests of the Joint Committee, but in practice this can sometimes
be difficult to achieve and representatives need to be ready to declare potential conflicts
of interest as required.
Joint Committees are probably the most common form of formalised joint working
between local authorities, attesting to the growing strength of authorities seeking to
work in partnership by agreeing a mechanism for making joint progress on some
shared priorities.
However, anecdotal evidence would suggest that in practice
individual partners’ self-interests can sometimes dominate Joint Committee decisionmaking (more likely to occur when one partner is clearly more powerful than the other)
and implementation of joint decisions across both of the participating organisations can
sometimes be problematic.
In practice, it is sometimes the case that the Joint
Committee does not have the necessary clout to ensure that joint decisions are
implemented with equal vigour by both partners.
Joint Committees can become vulnerable to unpicking in times of financial pressure.
Were Joint Committee arrangements an assured means for progressing joint working,
we should see many more examples of shared services in Scotland than we do at
present. The fact that we do not (as yet) indicates that perhaps something more
substantial is needed than Joint Committee governance if we are successfully to derive
step change benefits, including savings, from sharing education services.
Lead Authority Model
The Lead Authority and Joint Committee approaches are relatively closely related in
that both are ‘internal’ governance solutions which do not require changing the staffing
arrangements of the participating authorities. The Lead Authority option is simpler
however in that it does not require a new decision-making forum to be established.
This option depends on a formal transfer of Authority A’s budget (and staffing) for a
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service into Authority B which then assumes responsibility for delivery of that service
across a wider geography. If the circumstances are right, this can be a good way to
make progress on a shared service agenda.
Specific challenges can arise under this choice of governance where the delivery
priorities or methods or culture of Authority A do not match those of Authority B.
Unless all aspects of shared delivery are captured and formalised in fine detail in the
working arrangements agreed, evidence from the UK would suggest that the Lead
Authority arrangement may not be able to respond flexibly enough or quickly enough to
both authorities’ emerging priorities. In practice, a sense of winners and losers may
sometimes emerge in relation to which of the two partners has greater strategic control
and ownership of the duty being discharged (as distinct from agreed delegation of
operational delivery).
A particular risk may also arise when too much political and official time and effort is
spent deciding, formalising and delivering only the shared delivery priorities across
both authorities in each service area, leaving vulnerable the client authority’s capacity
to prioritise and deliver services which are not explicitly captured by the Lead
Authority agreement.
The Lead Authority model usefully allows for a start to be made between two
authorities who may, in the future, wish to move in a gradual way towards greater
sharing. However, there are concerns about how the Lead Authority model could
secure local democratic accountability equally well in both authorities or how it could,
in practice, promote greater innovation, efficiency and effectiveness in operational
delivery.
Third Party Organisations – An Outline
Setting up third party entities for delivery of an activity or function is common across
both the public and private sectors. There are two principal forms of third part
governance available (discounting from the start any notion of privatisation from
consideration). These are:

Joint Board – established through application to Scottish Ministers;
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
Social Organisation – established through forming a not-for-profit social
enterprise organisation, such as a Company Limited by Guarantee (CLG) or a
Community Interest Company (CiC).
Both types would involve setting up a corporate body, which would establish a
commercial organisation which could:
1. employ staff (as many or few as desired);
2. enter into contracts with other organisations, if wished;
3. require to be audited;
4. grow its own distinctive organisational culture and identity; and,
5. deliver shared operational support services.
A Joint Board is set up through application to Scottish Ministers in an Order-making
process involving the Scottish Parliament, whereas the other two types can be set up
directly by the Councils themselves in a process which is wholly controlled by the
Councils. A Joint Board may be restricted in regard to who can sit on the Board. The
membership of a Joint Board must consist of Elected Members from the constituent
Councils, along with church representatives, although Joint Boards do of course avail
themselves of advice to the Board as required. The other two types would allow the
Councils, if wished, to expand the core membership to include additional advisory
and/or voting representation from, for example, parents, trades unions or from the
local business community.
The Commercial Organisation types (Limited Liability Partnership and Company
Limited by Share Capital) are profit-driven, whereas the other two are not. The Social
Organisation types (CLG and CiC) can however be set up to generate surplus for annual
re-investment, and in that sense would share some of the operational behaviours found
in a Commercial Organisation (e.g. incentivising staff and management performance
around lean delivery of essential functions and processes). Some forms of Social
Organisation (the CLG forms, but not the CiC) can gain charitable status whereas the
other two types cannot.
Advantages and Disadvantages of the Third Party Organisation Types
(i) Joint Board
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The major advantage of the Joint Board is the high positive public recognition of the role
of a Board in regulating aspects of public life. It has worked successfully in a number of
vital and prominent areas, including Health and Policing. (However, it is also fair to add
that that success is recognised from within the traditional ‘business as usual’ mould –
and it is precisely business as usual which is coming under pressure in every aspect of
public service delivery in the current financial climate).
A disadvantage is that it requires Councils to cede an element of control to Scottish
Ministers in agreeing the content of a potential Order, and to the Scottish Parliament in
enacting the Order through a prescribed legislative process. The latter process requires
that if a change of any content is requested by the authorities during the course of the
application, then the entire legislative amendment process begins again from scratch.
Joint Boards must consist solely of Elected Members of the constituent Councils, which
of course provides for highly assured local democratic accountability. (There is a
specific
additional
statutory
requirement
for
Education
that
three
church
representatives sit on Councils’ Education Committees or other equivalent decisionmaking fora.) Elected Members can and do strengthen their own hand by drawing onto
the Board some additional expertise and perspectives in an advisory capacity.
If
Councils wished to pursue a Joint Board for shared education and children’s services,
they may wish to consider the composition of both voting and advisory board
membership so as to provide the Board as a whole with stronger overall scrutiny and
challenge of the operational body, or to draw in new voices from the community in a
way which is highly consistent with Councils’ values for strong and effective localism.
(ii) A Third Party Social Organisation
The typical underlying argument for choosing a third party organisation is that the
service area in question is sufficiently distinctive, large or important that it requires a
more structured, professional and/or productive organisational status than is possible
as a Directorate within the authority. In general, setting up a third party entity is the
most appropriate choice when

the service is already performing well but new external or internal factors have
arisen which put a premium on revising the underlying delivery model; and/or
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
the service cannot improve to the extent required or innovate sufficiently within
its current decision-making and performance management environment; and/or

the service is sufficiently specialised and/or large to require a separate entity
(e.g. police); and/or

there is clear recognition amongst those who are accountable for the service that
they can exercise that accountability more decisively when there is a formal split
between themselves as the owner and those who are responsible for delivery
(the operational body).
Outline benefits to be realised from Third Party Organisations
The net benefit for the owning organisation(s) should be to create a 3rd entity that is
both more clearly defined than an in-house Directorate (e.g., as a consequence of the
detailed specification work needed for entering into a contract-type arrangement) and
is easier to manage and control.
At its best, this arrangement promises the Councils strategic control of - and clear
accountability for - outputs and outcomes, releasing the 3rd party organisation to get on
with the operational delivery. The arrangement potentially empowers the Councils
with well-defined sanctions should they need to take corrective action against the
operational body, and it gives them both the evidence and the tools they need to hold
the operational body strongly to task. From the other side of the relationship, at its best
the arrangement provides the new organisation with the imperative to secure
significantly better performance and operational improvement than would be possible
under the status quo, by using the opportunity of sharing to innovate.
While
improvement is of course a prerequisite for all manner of arrangements in delivering
public services, the 3rd party arrangement provides that the Managing Director would
be held responsible to the shared service board for delivering required outputs and
outcomes, within a contract-style financial reporting regime.
Of course, the phrase ‘at its best’ is deliberate since the success of the arrangement
depends on how well it is implemented. The arrangement needs to be closely designed
around realising the benefits sought of it, and needs to be monitored and evaluated
against its successes (or failures) in so doing over an agreed period of time. To realise
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the benefits, the operational criteria which drive the new organisation’s business plans
need to derive logically from the benefits sought when setting up the new entity, and
need to be testable over time against agreed key performance indicators.
Outline risks of Third Party Organisations
Third party organisations carry key generic risks for Councils. The most prominent of
these are

third party organisations are driven by contract, or contract-like agreements.
However, contractual terms can be hard to vary en route (unless some deliberate
wriggle room is built into the contract), or can only be altered in certain formally
prescribed ways. In the case of Joint Boards especially, the latter requirement
could emerge as a disadvantage;

third party organisations need sufficient and smart scrutiny arrangements by the
authorities who remain accountable for the services provided. It is essential that
the Councils retain sufficient capacity to effectively challenge as well as support
the new body. Opposing roles of commissioner and supplier must be well
matched in expertise and authority if the relationship is to begin, and remain,
healthy and vigorous in its ambition to deliver step-change improvement. There
is a risk that the transfer of staff into a 3rd organisation may denude the
authorities of the skills needed to ensure the contract relationship does not
become one-sided.
Next Steps
It will be interesting to reflect upon this chapter ten years hence. As with any attempt to
look into the future the likelihood is that the fevered imaginings of the writer rarely
come to fruition and the actual outcome is a much more graduated and finessed version
of current events than has been set out in this chapter. Nevertheless, the general
consensus is that change is on the horizon and that it will see more devolution of power
to schools and headteachers; a change to funding mechanisms to schools and the
associated role for local authorities; and an associated change to the role of local
authorities in setting policy.
No-one reckons that there will be wholesale changes along the lines that were
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experienced in 1995 when the most recent local government reorganisation took place
primarily due to the fact that any externally driven change requires the government to
pick up the tab for the change process. This is where a comparison between what has
happened in England over the last 25 years or so can prove useful. It is unlikely that
Scotland will follow the English model in terms of the final outcome, e.g. Academies,
Trust schools, etc, but rather it might follow the change strategy. It seems that one of
the main means adopted in England has actually depended more upon repealing
legislation, as opposed to the starting point being the creation of new legislation. That’s
not to say that new legislation won’t be necessary but that the starting point could be to
consider which pillars of the existing system could be pulled away, which in themselves
might lead to radical change. This is certainly what happened in England in the 1988
Education Reform Act, which saw a range of powers for Local Authorities being
removed and either passed down to schools and their governors, or passed upwards to
the government. Over the next 23 years those twin directions of travel have been
inexorable. This is most recently evidenced in the (England and Wales) 2011 Education
Act, which further repealed the duties of local authorities.
In that period the
government have not had to legislate for change in the organisational structure in local
authorities, but rather by changing the responsibilities of local authorities the
government created an environment where the local authorities had to adapt
themselves to their changing role.
So what might be the duties currently undertaken by Scottish local authorities which, if
removed, might lead to the most significant change?
Three of the four duties outlined in the Standards in Scotland’s Schools etc. Act (2000),
which, if removed, might result in dramatic change to the education system in Scotland.
The first duty is the role of the local authority in relation to school improvement. If this
were removed it would be a fundamental shift in practice and would transform at a
stroke the role of the local authority. The second associated duty which could be
removed might be in relation to school development planning, which would remove the
obligation of the school to take account of the local authority’s statement of educational
objectives. Thirdly, the last duty which could be removed might be in relation to the
delegation of budgets to schools. This presupposes that the delegation scheme is
devised by the authority. However, if this were removed it could be replaced by a
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national scheme of delegation which is simply overseen by the authority.
All of these suggestions must be read in the knowledge that no substantive alteration to
the governance role of local authorities in education has taken place in the last 86 years,
i.e. this is a system which has successfully resisted change. Nevertheless, the forces
acting against the status quo means that we are on the threshold of what might be
considered to be a key tipping point in Scottish education - and one from which there
will be no return.
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