Education authorities will have a right to appeal against ministerial intervention to force improvements in schools and in their own operations under a consultation paper and draft Bill published yesterday (Thursday).
The Scottish Executive proposes that, if HM inspectorate of education judges its recommendations for improvements to authorities or schools have not been carried out, it will be under a duty to refer the matter to ministers.
Ministers will then serve a preliminary notice on the authority which will give it time to respond in writing within a specified time.
An Executive statement said: "If, after considering the response and consulting HMIE, ministers believe the authority has not taken the recommended steps, they will have the power to issue an enforcement direction and the authority will be under a duty to comply."
Directors of education, local authorities and unions believe the Executive is taking a sledgehammer to crack a nut. Even Douglas Osler, former head of the inspectorate, has expressed grave doubts. Indeed, in a foreword to the consultation paper, Peter Peacock, Education Minister, acknowledges that "schools and authorities respond positively to recommendations for improvement made by HMIE".
Mr Peacock's concern is that there is no legal requirement compelling them to do so. He made clear his determination to press on and repeated his undertaking given to The TES Scotland in his first ministerial interview in May that intervention should be seen as a reserve power to be used only as a last resort.
"There remain gaps in the system and it is prudent to bridge them now before a child's education is put at risk," he said.
Mr Peacock also insisted that there was no intention to send in "hit squads" or to take over the running of schools. "It is about having final powers to require education authorities to drive up standards," he said.
"It is hoped this new power will be used rarely, but it will be too late in the future to discover that we need it and do not have it."
The consultation paper, Ensuring Improvement in our Schools, rebuts criticism that ministers already have sufficient powers under section 70 of the Education (Scotland) Act 1980. It says these can only be used where there is a breach of a statutory duty, not where there is inaction following an individual HMIE report.
The legislative changes will apply to Scotland's seven grant-aided special needs schools and to Jordanhill School in Glasgow, which is also directly funded by the Executive.
In a surprise move, the Bill will give ministers extra powers over independent schools. "We will need much more information on how a school is to be run before agreeing to registration," Mr Peacock said. "Tougher powers to act quickly when serious concerns are raised about an independent school will also be introduced."
The definition of an independent school will be changed so that it is not limited to schools with five or more pupils.