Facing the Music: Why the fight is on again to save instrument tuition in schools

John Swinney once professed himself to be a big fan of children being taught to play musical instruments in Scottish schools. Back in 2019, when he was education secretary in Nicola Sturgeon’s government, the now first minister waxed lyrical about the “hugely positive effect” the arts have on young people’s lives, stressing that instrumental music tuition is “an important element of that”.

His comments came after confusion about whether music lessons are core to education had prompted a stand-off over who should pay for them: central government, local authorities or parents. Provision had become patchy, with the majority of councils classing it as non-core and charging fees while a minority lumped it in with education and provided it free of charge.

Parents, music teachers and trade unions protested about the inequalities that gave rise to, uniting under the banner ‘Change the Tune’. In the end, after the SNP made a 2021 manifesto commitment to “raise the status of instrumental and vocal tuition as a key element of education”, the government capitulated, giving councils the £12m a year they needed to fund their services. Swinney’s position was vindicated, and the problem was solved. Until now.

In the face of huge opposition from campaigners, East Ayrshire Council has unanimously decided that, other than when pupils are preparing for SQA exams, music lessons do not form part of a child’s education and so can be hived off from its education department. How music lessons can be classed as education from S2 onwards but not before is a conundrum in and of itself, but in any case, the authority’s entire music service is to be transferred to East Ayrshire Leisure Trust (EALT), meaning lessons will be funded by coffee-shop sales and gym memberships, and the educational status of instrumental tuition has again been put under threat.

One local parent is seeking to block the move. Donna McCallum, whose sons Andrew and Josh learn trumpet and clarinet in Kilmarnock schools, is so concerned by its implications that she has filed a Section 70 complaint with Scottish ministers. Given the government’s position that music is a key part of education, she believes East Ayrshire is failing in its obligations under the 1980 Education Scotland Act and she wants education secretary Jenny Gilruth to intervene.
“I feel that taking the music service away from the education system is undermining it,” McCallum says.

“It’s as if the council sees music tuition as an extra-curricular activity when it’s always been a part of, and is important to, children learning. This feels like a betrayal – it feels like the council is going back on the government’s decision on music lessons. It feels like instrumental tuition gets pushed to the side and when the council is looking at cuts it gets targeted. They don’t seem to realise how important it is.”

From East Ayrshire Council’s point of view, putting its music service into a corporate entity that also houses attractions such as Dean Castle and the Burns House Museum is a smart move that will ensure free lessons can continue regardless of budgetary constraints. Noting that the authority is moving into an “incredibly challenging financial period”, council leader Douglas Reid says the beauty of the new set-up is that EALT will be able to generate funds via “food and beverage opportunities, alongside events, skills and training, and residential holidays”. “East Ayrshire Leisure is in a better position to sustain, enhance and grow the services that are included within this review, as they have a greater ability to develop a more agile, entrepreneurial culture and have access to a wider range of funding sources,” he says.

Regardless of how well-meaning the move is, campaigners believe the council has got it wrong, precisely because of that “key element of education” manifesto pledge from the SNP. The problem is that, despite what the government has said, the status of instrumental music tuition has always been opaque. In 2019, when all but six local authorities had started charging for lessons and the number of children taking them had plummeted, solicitor Ralph Riddiough – an amateur musician whose three sons were learning instruments in South Ayrshire schools – sought to clarify the position by filing his own Section 70 complaint. He believed the argument being put forward that councils could charge for tuition because it is discretionary rather than statutory was wrong. A legal opinion provided by respected senior counsel Aidan O’Neill KC, paid for via a £15,000 CrowdJustice appeal, agreed. 

Yet while the government looked into Riddiough’s complaint, it ultimately dismissed it on the eve of the first coronavirus lockdown. Amid the disruption that ensued Riddiough did not object and the following year the funding announcement came. That, according to a government spokesperson, has “transformed instrumental music tuition in Scotland’s schools”. But for Riddiough, East Ayrshire’s decision shows that things are far from settled. Like McCallum, he has asked Gilruth to intervene.

“I’ve written to the cabinet secretary saying that this is a problem – that I think East Ayrshire has got this wrong and if she wants to fix this, we’ve saved her £15,000 because we have a legal opinion that says it is wrong,” Riddiough says. “The opinion says that the law around what constitutes education and what doesn’t is difficult. The Education Act is a consolidating act and in the process of pulling things together some things were lost in translation and a bit unclear. It’s a bit of a mess, but Aidan O’Neill says there is a way through.”

O’Neill’s way through, which was written in 2019 and relates to councils’ earlier decision to charge fees, was to bring judicial review proceedings on the basis that, if music lessons form part of school education, they must be provided free of charge. The situation now is a little different, but the underlying argument is the same: if music lessons form part of a child’s education, they must be provided by education authorities and not by money-making leisure trusts. Bringing a judicial review to prove the point would be a last resort, Riddiough says, not least because it would require considerable sums of money to be raised in a vanishingly short space of time. But, given the stakes are so high – given it would bring clarity, finally, to the educational status of instrumental tuition – it is a course of action campaigners are pondering.

“My view is that it’s a bit ridiculous if that’s what it takes,” Riddiough says. “Really what we need is a political solution. We need the Scottish Government to say they will fund this until they can fix it because within five years of them saying it was fixed it is all falling apart. I’d like to think the decision East Ayrshire Council has made will spur Scottish ministers into again finding a solution.”

The government says it has received Riddiough’s letter and a response “will be provided”, while McCallum’s complaint “will be considered in line with the relevant guidance”. But, in responding to a parliamentary question from South Scotland MSP Brian Whittle, Gilruth’s higher and further education minister Graeme Dey indicated that the government will be reluctant to get involved. Asked by Whittle whether the move by East Ayrshire sets “a dangerous precedent”, Dey said it is “for individual councils to make decisions around their own provision, albeit within a context where music education is a core part of the curriculum”. In any case, he said, East Ayrshire Council has promised that its solution means fees for parents are unlikely to be reintroduced.  

For Riddiough, such a stance ignores the fact that money-making enterprises come with no guarantee that money will be made, meaning there will always be the possibility that fees will be introduced or services will be cut in future. It also ignores the small matter of East Ayrshire’s decision once again redrawing the boundaries within which education is defined. As if that isn’t bad enough, having been head of legal at South Ayrshire Council between 2014 and 2018, Riddiough believes it is “inevitable” that other local authorities, faced with their own funding pressures, will follow East Ayrshire’s lead.  

“That’s what local authorities do – they look at what other councils are doing to save money and then they try that too,” he says. “It’s ridiculous that councils are funded year to year. You get to December and the block grant is announced by ministers but it’s the end of January before local authorities know what they are getting, then they have to have balanced budgets by the end of March. It’s no wonder that half-baked ideas are getting through.”

As long ago as 2016 Swinney told parliament that “the Scottish Government considers music tuition in schools that take place during the course of the school day to constitute school education”. 

Now, having made money available for that tuition to be funded, the government says it is “education authorities’ responsibility to ensure that [their] provision of school education is in line with relevant legislation”. But, as long as that legislation remains opaque, it appears that councils will be given free rein to decide what they think school education is. It may seem like a local issue, but with the definition of education at stake the East Ayrshire situation is about far more than a council trying to pay for kids’ tuba lessons by selling spin classes and cream teas.