"What would you do if you were John Swinney?"
This question was posed at the latest meeting of the investigations team. Here is a summary of that discussion.
Would you allow an investigation to go ahead?
It is inconceivable that with allegations of such a serious nature, including possible negligence around the deaths of two young people, illegal and possibly criminal actions by the regulatory authorities, deception and blackmail, the immense harm done so many young people and their families, and the loss of 51 jobs, that an investigation can be refused.
It would look too much like a cover-up, would prolong the campaign by the support groups, and provide ammunition to those hostile the current government.
Too much damage is likely to be done. Organisational and personal reputations are likely to be severely damaged. An investigation taking place during an independence campaign is likely to cause substantial embarrassment to the government. A public enquiry would cost significant amounts of money. The outcomes might require radical reform of the regulatory authorities and Perth & Kinross Council. Key individuals in high ranking positions might lose their jobs and future careers.
Criminal proceedings could be recommended by an inquiry.
The outcome of the investigation is likely to lead to substantial compensation claims in addition to the cost of running the enquiry.
So how does John Swinney get out of this dilemma?
The only way to avoid an investigation is to make some sort of compromise offer to the staff and parents support groups. This means that they would have to form a negotiating committee with legal advice to enter into discussions with the various parties concerned (Care Inspectorate, Education Scotland, The Witherslack Group, Board of Governors, Scottish Government).
A compromise agreement could be reached whereby financial compensation is offered at a flat rate to the parents and staff affected by the closure, with special arrangements for school managers who were differentially impacted by the actions of the regulators, the governors, Witherslack and the council.
Financial liability would thus be shared across those organisations and agreement reached that the campaign would cease.
The organisations concerned would agree to conduct independent internal investigations into their own behaviour and make the changes necessary to ensure that this sort of thing never happens again.
A public statement would be made to repair the damaged reputations of the innocent staff caused by erroneous public statements made at the time of closure.
How would liability be shared?
It is difficult to apportion blame when the mistakes of some only occurred because of the mistakes of others. For example, the Board of Governors can be seen as both victim and perpetrator of what happened to the school. It is not known if they have any insurance cover for such a claim against them.
It appears to us, at least in terms of direct culpability that the actions of the Care Inspectorate were the prime cause of closure, but we also know that they were not working in isolation and were driven by PKC.
Witherslack did nothing wrong until they wrote to the Board on 5th November withdrawing from the takeover arrangement, and then produced an outrageous ‘safeguarding report’ to justify their actions. They had, at the time, stated that the child protection case was, “a tiny matter” (Richard Wilkins).
The Board just did what they were told without question and then showed their malevolence by trying to blame the school managers. The defamation claims are currently being processed.
How likely is it that such a compromise agreement could be reached?
This is difficult to answer as the question has never be posed or considered before. Political opponents of John Swinney may still exploit it to do damage to the independence campaign.
However, it is likely to be more cost-effective and less damaging option than either agreeing to, or refusing, an investigation.
The real difficulty may be in encouraging the various parties concerned to agree liability and the extent of any financial contribution they might be expected to make.
Also, some parents, children and staff may not support an agreement given that they have been so badly damaged by the whole affair.
What about the film documentary?
This is not connected with the campaign. Any negotiations with them would have to be separate.