A council is at the centre of a row over the legality of outsourcing education in Scotland - as it proposes to move responsibility for music tuition among other services to an external trust in a cost cutting measure.

The proposals in East Ayrshire have sparked concerns that it could set a precedent across the country in cash-strapped councils where other parts of children's schooling are hived off to external bodies.

One solicitor has said there is a legal argument to be made that such a move was unlawful and it needed to be "nipped in the bud".

One union says that the plans which also involve transferring youth work and sport to the East Ayrshire Leisure Trust would mean £1.8m in cuts.

READ MORE: Sound of silence: Fees blamed for creating a middle class culture in Scots music lessons

The move has come in the home area of classical composer Sir James MacMillan, who was conductor of the BBC Philharmonic for nine years from 2000.

Concerns have escalated as the leisure trust itself, which is funded by the council and has a budget of just over £5m, needed to make savings of £198,000 in 2022/23. In its tenth year it recorded a deficit of £742,312.

Local authorities receive funding from the Scottish Government to make free instrumental tuition available in schools.

It came after the SNP pledged to remove barriers to participation by abolishing fees for music and arts education in in its Scottish Parliament election manifesto.

However, unions say that that money does not cover the entire cost, meaning that local authorities must use their own budgets to supplement it.

Last year it was feared that Scotland’s free music tuition policy for school pupils was plunged into following budget decisions at several councils.

Campaigners said four local authorities are “wilfully ignoring” funding guidelines, and they fear it could undermine a scheme that has led to a recent surge in the uptake of instrumental lessons.

The SNP government scrapped charges for learning an instrument in 2021 by providing funding to councils to remove fees, which had been rising steadily to as high as £700 a year in parts of Scotland.

But the decision has contributed to a significant increase in the number of pupils taking part in lessons, with long waiting lists in place in many areas.

The Instrumental Music Services (IMS) survey for 2022/23 showed that only five local authorities could offer places in lessons for all pupils who were interested. For the other twenty-seven, waiting lists are in place, as the number of interested pupils outstrips their ability to provide lessons.

Some 61,715 pupils took part in lessons, which was 8.9 per cent of the school roll and the highest number since surveys were first carried out more than ten years ago.

Ralph Riddiough, a solicitor and amateur musician who fronted a grassroots campaign against local authorities charging fees for musical lessons in Scotland said: "Education needs to be delivered by education authorities and education authorities need to be properly funded by the Scottish Government.

"There are reasons why statutory obligations are imposed on education authorities (councils) to deliver education, and not on charities or community groups, and a very good reason why the Education Scotland Act 1980 prohibits councils from charging fees for 'school education'.

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"It would be an embarrassing failure of common sense (not to mention legislative interpretation) if we thought teaching children how to sing and play musical instruments to a standard necessary to gain entry to a conservatoire isn’t 'school education' - in fact it would be worse than embarrassing, it would be Philistinism.

"There is a legal argument waiting to be made that transferring an education service to a third party (not outsourcing or subcontracting but actually hiving it off) is unlawful. Hiving off a council swimming pool or a library into a leisure trust is one thing. Transferring teachers is a totally different ball game and it needs to nipped in the bud."

Simon Macfarlane, regional manager of the union Unison Scotland said of the East Ayrshire Council move: "There is a concern about this setting a precedent."

"The union believes more than 100 jobs could be lost by the overall plans to outsource a range of community services, plus music tuition.

"We are hoping that the councillors will pull back on this and not give it the green light," he said.

He had told councillors who are due to consider the plan today (18th) that they should not "green light the direction of travel" adding: "You are being asked to put jobs and services on a one-way street to externalisation. How can there be meaningful and genuine consultation if the destination is already set?"

The council action plan involves transferring music tuition to the trust by January, next year and a report considered by the local authority that if it does not transfer to the trust it was "at risk of immediate service reduction/savings".

The move is being made as the council feel instrumental music teaching is "in addition to curricular music" although it recognised that it is a "priority for the Scottish Government. It will mean around 14 staff and budgets will be transferred over to the trust.

It said that the only trust to offer instrumental music in Scotland to date was High Life Highland which took control from the local authority in 2018.

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The report says "As education budgets become more challenging and service demands increase, the opportunity to sustain extra-curricular cultural and outdoor activities currently delivered within education services through this different approach offers significant merit."

It goes on: "Instrumental Music in East Ayrshire has a strong foundation with a focus on the development of many young musicians through instrumental and vocal tuition, local ensembles and curriculum support to schools. The challenge therefore, through the leisure and cultural review process, is to sustain current services which in turn will protect employment and provide job security.

"The potential impact on the Instrumental Music Service staff group is recognised.

"In considering the proposals for instrumental music, it was noted that throughout the rest of the UK, instrumental music is generally offered through independent music trusts."

The council chief executive Eddie Fraser believes it will mark the opportunity of aligning the move to the creation of a regional concert hall within the refurbished Grand Hall in Kilmarnock providing a 'home for music' in East Ayrshire.

Alastair Orr, music teacher, campaigner and contributor to a Holyrood inquiry into problems of councils charging tuition fees said there was a lot of anger about the plan from teachers.

He said: "Outsourcing a service, especially one as fundamentally central to education as delivering instrumental and vocal tuition in Scotland's schools, undermines the standing of music in the curriculum. It also places staff, who are employed as educators, in the vulnerable position of relying on their income from a trust or charity, many of which are in an unstable financial situation".

Mr Macfarland further told the councillors: "We would ask you, instead of agreeing the papers, to ask officers to engage in the consultation they commit to without the outcome being predetermined. This would be an act of good faith and the correct response to the alarm and concern that these proposals have caused.

"A general election is only weeks away, it is possible the landscape for local government could change post that election. Whatever the outcome there will be new political imperatives. Why cast the die now? When instead the council could take the time to get this right and seek to take staff and their unions with you. Don’t fix the direction of travel now, commit to genuine consultation.

"One last point, the impact of the leisure and culture review has been so significant and our endeavours to get more information have been so time consuming there has been little capacity to scrutinise the other cross cutting reviews."

And East Ayrshire Council spokesman said: "The council can also confirm that trade unions have expressed concern regarding their level of involvement in scoping these proposals and the level of engagement that has taken place.

"If agreed, officers will spend time addressing these issues and will revert back to Elected Members in October for final decisions."