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Abronhill High FOI shows council's cage was rattled by campaign legal advice

Written by Scott Campbell.
Published at 19:27 GMT on Tuesday, June 25th, 2013.

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Abronhill High School. Image is copyright of Scott Campbell/ Cumbernauld Media.

A FREEDOM of information request by  the campaigners vying to stop Abronhill high school being rationalised with Cumbernauld high, in Kildrum, has shown that the Save Abronhill High School’s discovery that North Lanarkshire had tendered out the design of a new build school complex at the current Cumbernauld high school location had the education authority rattled.

On May 7th, 2013, Cumbernauld Media ran the story, in full, under the headline: ‘Save Abronhill high campaign takes legal advice on "back door" design tendering’; the campaigners were claiming that a council report, from 14th March 2013, five days before the Scottish government declared a call-in of the authority’s plans to close Abronhill high school, appeared to show that the authority was planning to tender out the design of a new school, at Cumbernauld high school, in reference – an action which the campaigners labelled as “back door planning”. 

The Save Abronhill High School campaign argued that, in relation to sections 15(6) and (8) of the Schools (Consultation) (Scotland) Act 2010, which says that the education authority may not implement their plans either partially or wholly before the Scottish ministers declare an intention about whether or not to call-in the authority’s proposals, North Lanarkshire Council may have broken the law. 

Following the publication of the document on the council’s minutes, agendas and reports system – known as MARS – the campaigners took up legal advice from Govan Law Centre’s Educational Unit, which appears to show that a good case existed for the campaign’s point of view, but that the 2010 Act hadn’t been rigidly tested in court. 

The report – which was sent to the Scottish government, by the Save Abronhill high school campaigners – reads: “A significant factor for evaluating the tender of the design & build schools framework is the quality of the design consultants and their approach to design and in order to evaluate these elements the council usually sets out a real project in the tender that the bidders can design. In this instance, the intention is to provide the proposed new replacement secondary school for Abronhilll/ Cumbernauld as a reference project to base the tender upon since these are the only schools where a new school is intended, which have been consulted upon. ”

Defending the authority’s position, however, the report adds: “Legal Services have reviewed the 2010 Act and the prohibitions in Section 15(6) and Section 16(3) which relate to the implementation (either wholly or partly) to the closure decisions. Their view is that using a proposed replacement school for Abronhill High/Cumbernauld High as a reference project for procurement purposes could not be construed as implementing the closure decisions.” 

Talking to Cumbernauld Media about the comments by the campaigners, a Scottish Government spokesperson said: “Scottish Ministers have called in North Lanarkshire Council’s proposal relating to the rationalisation of Abronhill and Cumbernauld High Schools into a single school for further investigation, under the Schools (Consultation) Scotland) Act 2010. This process is still ongoing and it would be inappropriate to comment further.”

Since then, however, an FoI request by the Save Abronhill High School Working Group has shown that the local authority e-mailed the Scottish Government to rebut the group’s accusations.  

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E-mailing the Scottish Government, a council official writes: “[name omitted] was on the telephone to me today with a query regarding our procurement strategy for a framework agreement for the next stage of Schools and Centres 21. For the avoidance of doubt I detail below our position on this matter.

“The council is absolutely clear that it has not acted illegally in this matter. The report [BLANKED] referred to was initially presented to the Schools and Centre 21 Member-Officer Working Group on 14th March 2013; a group which includes councillors from both Labour and SNP political parties. 

“[name omitted] was present at that meeting was gave explicit advice that using a proposed replacement school for Abronhill/ Cumbernauld High School as a reference project could not be constructed as implementing the closure decisions. All councillors within the Member-Officer Working Group endorsed the paper to proceed.”

The official then continues; blasting the Save Abronhill High School’s view that the local authority may have breached the law, adding: “It is clear that the Save the Abronhill High School Working Group has not fully understood the report and it is worth pointing out that the report makes it clear that the proposal to close both Cumbernauld and Abronhill High Schools cannot proceed at this time, as it subject to a call-in.

“However, this does not prevent it being used as notional design for a reference point allowing the council to evaluate tenders for the purpose of appointing contractors under a four year framework to deliver £100m of investment across the whole of North Lanarkshire, not only in Cumbernauld.

“The framework allows the council to progress projects and award contracts over a four year period subject to the usual approval procedures.

“The tender process will require a quality/price evaluation process to take place and any design work can be used for the purposes of appointing contractors to the framework. The council is not legally bound to progress with the design and build of this project as it is only being used as a reference project.”

A Scottish Government official responds to the e-mail in less than two hours; writing: “Thank you for your email & helpful clarification. 

“It is, of course, for North Lanarkshire Council to ensure it takes the steps necessary to comply with any legal obligations placed on it and I note the points you make and the legal advice you have taken in this matter.

“Beyond that, you will appreciate it is inappropriate for me to comment further at this time.”

The council’s decision to close Abronhill High School and rationalise it with Cumbernauld High School is still out for further investigation by the Scottish Government, who have yet to release their final ruling on the case, although there is no set time for them to issue a final ruling. 

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