MINISTERS have the power to overturn a court ruling and ensure that Portobello High School is built on a community park, a Lothians MSP said today.
Labour MSP Kezia Dugdale and the city council have both written to Education Secretary Mike Russell and Local Government Minister Derek Mackay, urging them to use Section 20 of the 2003 Local Government in Scotland Act to allow the development of the new school on Portobello Park.
It would be the first time the powers had been used.
The city council has also urged the Scottish Government to examine two other legal options – a private act of parliament and an executive bill of parliament – which could be used to ensure that the new Portobello High can be built on the park.
It is understood that council officers believe a private act of parliament is likely to be the quickest route, taking as little as six to nine months.
The Local Government Act introduced a power for local authorities to do anything which “advances the well-being” of their areas, or the residents of those areas.
Ms Dugdale said: “The overwhelming opinion of people in the consultation was that the school should be built in the park. I think we need the democratic process involved in the future of Portobello High.”
Ms Dugdale said pursuing Section 20 and a private act of parliament were currently the most plausible legal options.
Last month, Portobello Park Action Group (PPAG) went to the Court of Session and appealed successfully against an earlier ruling granting permission to build on Portobello Park.
The judgement ruled it would be unlawful because of the park’s protected common good status.
Sean Watters, chairman of Portobello For A New School (PFANS), said: “The act was intended to be quite radical, giving local authorities the power to do pretty much anything unless there was an explicit restriction or prohibition in existing law.
“There was also a provision allowing ministers to determine what was meant by advancing ‘wellbeing’ by means of an affirmative order. So, in theory, ministers could issue an order that advancing wellbeing covered circumstances such as Portobello High.
“However, the recent ruling effectively established a precedent that inalienable land can’t be appropriated, so that could well constitute a prohibition in existing law. It doesn’t strike me as straightforward.”
Meanwhile, Giselle Baillie, a parent with two children at Portobello High, said the powers could provide a route to “close the loophole that has halted the new high school”. She added: “We’ve asked the council and the Scottish Government to examine this option to build a new school on Portobello Park.”
PPAG spokeswoman Alison Connelly said: “The act has already been considered by the three judges in the Court of Session ruling, and they confirm that the act does not give the council the power to appropriate inalienable common good land.”
THE THREE OPTIONS AVAILABLE
• Private Act of Parliament: Can be introduced by an individual, company or a group of people seeking to obtain particular powers or benefits that are in addition to, or in conflict with, the general law. In 2003, the National Galleries of Scotland lobbied ministers to allow the development of the underground link on land at Princes Street Gardens.
•Executive Bill: A public Bill introduced into the parliament by a member of the Scottish Government. An example of an Executive Bill is the Climate Change (Scotland) Bill, which was introduced by MSP John Swinney in December 2008.
• Ministerial order under the Local Government in Scotland Act 2003: Ministers would have to consider whether the use of an order-making power was appropriate and whether it could fulfil its intended purpose. It would later be laid before parliament and, after consideration, members would be invited to approve it. Ministers have not previously used the order-making power under section 20 of the Act.