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Pick a number up to 18, then add, up to 33

Following a number of weeks of confusion over primary-school class sizes, we finally have our answer. The maximum size for P1 classes in Scottish schools is . 33. Sound familiar? Yes, we are back to square one.

The class-size maxima were agreed as part of teachers' conditions of service more than 30 years ago. These set down a maximum of 33 pupils for primary-school classes, with composite classes being limited to 25.

In recent years, however, political parties of various hues have been elected on manifesto promises to reduce class sizes. Thus, the Education (Lower Primary Class Sizes) (Scotland) Regulations 1999 set a limit of 30 for P1-3 classes by 2001.

In April 2007, the Scottish Executive issued guidance to local authorities asking them to limit P1 classes, only, to a maximum of 25.

One election later and the new Scottish Government's "concordat" with local authorities set a target (without a fixed deadline) to reduce class sizes in the first three years (P1-3) to a maximum of 18.

If education authorities were simply left to their own devices as far as intake to primary schools was concerned, this might have been achievable. However, since the early 1980s, parents have had the right to make a placing request to the school of their choice. The duty on the education authority is to grant the placing request, unless a statutory ground for refusal exists.

The problem is that there is no ground for refusal which relates directly to a capped class size. To refuse a placing request which would result in a P1 class of 26 (or 19) requires the authority to prove it would be necessary to employ an additional teacher.

An exception to the maximum class sizes includes a child placed in a school "at any time during the first school year . outside a normal placing round by virtue of a decision of an appeal committee . or of the sheriff". Such a child is an "excepted pupil": that is, he or she is in the class but not counted towards the maximum class-size limit.

The logical result of this is that the education authority can refuse a placing request, but any appeal for a P1 child must be successful - all the way up to the previous class-size limit of 33. The Court of Session on September 12 has confirmed that this is the correct legal interpretation of those regulations (and the guidance).

The problem is relatively easy to rectify. It seems clear that fresh legislation will be required to enforce a reduction in class sizes in the face of parental placing requests. However, there are regulation-making powers already in place; an Act of the Scottish Parliament is not required.

My own preference would be to give authorities the power to set (and enforce) class-size limits within a specified range. This would allow them to target resources where they were most needed, allowing classes of up to 33 where the pupils will perform well in that environment, but leaving them the freedom to restrict class sizes to much smaller numbers if needed. The Scottish Government could still set targets for average class sizes, safe in the knowledge that it had provided authorities with the ability to achieve those targets.

Iain Nisbet is head of education law at Govan Law Centre.

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