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16 February 2015, 07:17
Council chiefs angered by the Scottish Government "imposing'' a Budget deal for teacher numbers on them have claimed that ministers have a "case to answer legally''.
As the row over funding for teaching staff between Scotland's councils and the SNP administration continues, the local government body Cosla revealed it has consulted lawyers.
Chief executive Rory Mair said "We've now taken legal advice which suggests the Government have a case to answer about the legality of their behaviour over the teacher number issue and the imposition of this deal.''
Cosla is now demanding Deputy First Minister John Swinney "get back round the table with us and negotiate a deal''.
Mr Mair said any potential legal action over the issue was "down the road from our point of view''.
He stated: "I don't think our first port of call would be to go to legal action, our first port of call is to go to Government and say these are the questions you've got to answer, we expect you to come back round the table and answer them.''
Cosla was ''outraged and appalled'' when the Deputy First Minister announced in his Budget that councils would lose cash if they cut teaching staff or increased the ratio of pupils to teachers in their area.
Local government is to receive some £10.85 billion next year, with about #5 billion going on education.
But councils will only receive their share of £51 million of Scottish Government cash if they meet the conditions on teacher numbers.
Cosla argued its research showed there is no link between how well youngsters perform in exams and the pupil to teacher ratio.
Mr Mair said: "We've been saying for three years we do not believe teacher numbers is a good indicator to be used as a measure of performance in an education system.''
Mr Swinney has already told council chiefs he will "claw back'' cash from them if they fail to maintain teacher numbers in 2015-16, arguing he had no alternative but to do this because Cosla had not been able to agree to the Government's "fair and generous offer''.
But Mr Mair said: "We believe the Government haven't behaved reasonably and on taking expert legal advice we believe there are four legal challenges the Government have got to explain with regard to the way they have behaved.''
The Cosla chief executive stated: "We think the whole approach the Government has taken may be considered ultra vires in the sense that the Parliament has set out the purposes for which the the local government finance order is to be used.
"It is to be used to finance local government services, it is not used by the Government to coerce local government into doing things we don't want to do.
"We're not saying Government shouldn't ever get its way, but the way it gets its way is to negotiate. What it isn't allowed to do is to use the local government finance order for their getting their own way, the Parliament has not given them that power.''
In a letter to council leaders last October, Mr Swinney said the Government wanted teacher numbers to be maintained "in line with pupil numbers at a national level''.
Mr Mair claimed the Government has changed this without consultation, so all 32 local authorities have to maintain both the number of teaching staff they employ and their pupil to teacher ratio
He argued: "Having told councils how the budget is going to be constructed you can't just change that without consultation, and we had no consultation on this change. This deal in parliament was simply imposed.''
He insisted the Government is required "by statute'' to consult on how the budget process is carried out, but said the first authorities had heard about this change was at a meeting on January 27.
Councils raised concerns about this days later, on February 2, Mr Mair added.
On February 4, Mr Swinney "went to Parliament and told Parliament we weren't going to reach an agreement and they were imposing a deal'', he said.
"Whatever consultation had gone on about the rest of the budget, no consultation went on about this.
"As far as we're concerned that isn't just rude, it's also not a legal way to behave under the statutes that govern the way in which the Government was allowed to operate the budget process.''
He went on to claim that the Government has to "demonstrate reasonableness'' throughout the budget process, but added: ``Our view is that this new deal, in which each council has to maintain the number of teachers it has last year and maintain pupil teacher ratios, is not a reasonable deal. It's not an adequate measure.''
Mr Mair said: "We believe if you are going to predicate £51 million on that it is unreasonable.''
Mr Mair said part of the row with the Government was about funding, but added: "There's clearly a bit of this which is about principle. The truth is in this country the delivery of education is by law a local government service.''
While he said ministers should be able to "say what they want the education service to do'' he argued they were trying to "micro-manage'' councils
Mr Mair added: "If the Government are micro-managing services to this level, that is a worry for us.''
A Scottish Government spokesman said: "The Scottish Government is firmly committed to maintaining both teacher numbers and the pupil-teacher ratio. Having not only the highest quality but also the right number of teachers in our schools to support our pupils is a policy we would hope local authorities would support.
"Despite the Scottish Government providing a further £10 million of funding, bringing the total to £51 million, specifically to support teacher numbers, Cosla failed to reach agreement on the terms of a national agreement leaving us no alternative but to seek agreements with individual local authorities.
"Several councils have expressed a desire to meet with ministers to discuss the offer, which we very much welcome.
"Teacher number commitments have been a feature of the local government finance settlements since 2011/12 and the failure to deliver on this agreed commitment in 2014/15, despite additional funding specifically for that, was a material factor in informing the Government's revised approach to funding in 2015/16.
"A further meeting between the Scottish Government and Cosla is planned for next week, but ministers have made clear that the conditions of the offer will not change.
"Ministers have acted legally at every stage, and it is unclear which regulations Cosla believe sets out that Scottish Ministers can or cannot act in this way.
"Ministers are obliged to consult before the annual Local Government Finance (Scotland) Order is laid before Parliament, which they did in the Local Government Finance Circular last December.''
Meanwhile, union chiefs at the Educational Institute of Scotland (EIS) said maintaining teacher numbers across Scotland is "essential to ensure equality of opportunity'' for young people.
General Secretary Larry Flanagan said: "The fact that Cosla is continuing to resist a national agreement, including the offer of significant new money, is extremely disappointing.
"However, the signs are that an increasing number of local authorities are making individual commitments to maintain teacher numbers - essentially sidelining Cosla entirely - and thus protecting their own funding allocations from the Scottish Government.
"Cosla's statements today, where they are using their own highly selective research in an attempt to justify the unjustifiable, only demonstrate how far out of touch the organisation is from the reality of learning and teaching in our schools.''
Colin Mair, chief executive of the Improvement Service, responded to the EIS comments in relation to his research.
He said: "Our report examines solely the relationship between teacher pupil ratio at the local authority level because that is what the Scottish Government is regulating. We make it clear that this is not equivalent to class size which it appears the EIS want to talk about but is not what the government is regulating.''