Two primary schools in Wick in Caithness – Hillhead and Wick North, were joined in a single closure proposal paper from Highland Council. Both were to close, with both sets of pupils combining in a single new school to be built at Wick North.
Wick North needs a new school and is happy with the proposal. Hillhead is educationally, structurally and communally in good fettle and has a school roll at 81% capacity. It neither needs nor wants to close.
Yet the proposal paper carrying both closure proposals has made them incompatible siamese twins, bound together but pulling in different directions.
Hillhead has fought hard to stay alive. In its resourceful campaign it discovered that the key statutory instrument on which the closure of a schools rests – the Educational Benefits Statement, was not legally competent.
In law, ‘ the educational benefits should be at the heart of any proposal to make a significant change to schools’.
Highland Council had copied their Educational Benefits Statement wholesale from one prepared by another local authority, Angus, for a different school, Timmergreens, in a different place, Arbroath.
Of course it couldn’t fit and was full of errors of fact. Hillhead is not Timmergreens. The new school described, proposed for Timmergreens pupils to transfer to, was very different from the new school proposed for Wick. The facilities and costs were therefore out of kilter.
Nevertheless – and knowing better than anyone what it had done – Highland Council went on, at the end of the consultation period, to prepare its final consultation report and take, what was in these circumstances, an unlawful decision to close the schools.
Its consultation report, also unlawfully, made no reference to what was at once a signal omission – no competent Educational Benefits Statement existed; and a signal inaccuracy – the Educational Benefits Statement presented was inevitably inaccurate.
To establish Highland Council’s failure to fulfill its statutory obligations in this key matter, we need only first point to a few incontrovertible facts.
- The Educational Benefits Statement is ‘at the heart’ of a proposal to close a school and of the decision-taking process which, at the end of the statutory consultation period, leads to the closure or retention of a school.
- The governing legislation, the 2010 Schools (Consultation) (Scotland) Act, requires one school-specific Educational Benefits Statement to be prepared in respect of each individual school proposed for closure.
- Highland applied a single Educational Benefits Statement, already copied from elsewhere, to both of the schools in this proposal – and indeed, for good measure, to two other Wick schools it was proposing to close at the same time,
- The copied statement was clearly and formally entitled ‘Educational Benefits Statement’; and was presented as such in the proposal document without any qualification of any kind of its intended function in that proposal.
This ‘Educational Benefits Statement’ and the closure proposal it could not support, were in every way utterly outwith the law. This disqualifies, without equivocation, the decision that followed from this situation.
When the position was made public, to hilarity and disbelief, the Education Secretary called-in the decision to close the schools, on these principal grounds, referring to Section 17 2 (a) and (b) of the Schools Act:
- ‘(a) in a significant regard to comply with the requirements imposed on it by (or under) this Act so far as they are relevant in relation to the closure proposal, or’
- ‘(b) to take proper account of a material consideration relevant to its decision to implement the proposal’.
‘Calling-in’ a local authority decision to close a school is a statutory process by which Scottish Ministers ‘effectively remit to themselves the closure proposal/decision’ for investigation, review and determination.
It is our purpose in this article to show that what Scottish Ministers then did was itself ultra vires (beyond their powers under the 2010 Schools Act) and therefore illegal; that it was also unreasonable; and that it was demonstrably unfair.
These terms -’illegal’ (or ultra vires), ‘unreasonable’ and ‘unfair’ – are central to the core concerns of the process of Judicial Review, the only – and expensive – means of access to potential justice for schools that feel they can show that they have been subject to a mis-taken decision.
What the Scottish Government did next
The determination made by Scottish Ministers is this case was highly unusual and founded on an action for which we can find no statutory authority.
The role of the Scottish Ministers is to investigate, review and determine. What they did in this case was ultra vires. They made a creative intervention in the process.
They made no attempt – they could not – to accept as legally competent the Educational Benefits Statement presented unequivocally as such in the Highland proposal.
They found a passage of text elsewhere in the proposal – relating to an options appraisal exercise which, in considering ‘all viable alternatives to closure’, is a qualifier to progress a closure proposal to consultation. As such it is of lesser statutory significance than is the key Educational Benefits Statement.
Scottish Ministers then proceeded to bestow the statutory status of ‘Educational Benefits Statement’ upon this passage of the proposal – and to pronounce themselves ‘satisfied’ and ‘content’ that it fulfilled the statutory obligations of Highland’s closure proposal in regard to the Educational Benefits Statement.
In the letter conveying this unprecedented determination to Highland Council, Scottish Ministers clearly lead Highland Council by the hand to the passage of its proposal which Minister have chosen to promote to and accept in a status with statutory responsibilities it was not designed to carry. The options appraisal passage in question was not written as an Educational Benefits Statement. It had not been claimed by Highland to fulfill such a role. It was not presented as such in the proposal paper. It had not been considered in this capacity by any party involved during the consultation process which produced the closure decision.
The letter from Jonathan Moore, Head of the Schools Infrastructure Unit at the Scottish Government’s Education Department (which acts as the Education Secretary’s call-in team) to Hugh Fraser, Education Director at Highland, says (the emphases are ours):
‘Ministers are of the view that using wording from an educational benefits statement prepared for another local authority was unhelpful. However, they note this was prepared as a summary and following further investigation are satisfied that a detailed Educational Benefits Statement was written specifically for the schools in question. This is contained in the option appraisal report which is referred to in paragraoph (sic) 2.2 of the Proposal Paper which was available to the public throughout the consultation process. As a result, Ministers are content that the Council has fulfilled its statutory duties in this regard. However, in coming to this view, Ministers wish to remind the Council of the importance of ensuring clarity in all aspects of the educational benefits statement so that consultees understand fully the details of the proposal and the specific educational benefits expected to accrue from it.’
On this principal basis, Scottish Ministers consented to Highland’s closure of Hillhead and North Wick schools.
Judicial Review – the key issues
Judicial Review is the sole recourse in law for any party objecting to a decision reached on a school closure proposal.
Judicial Review is not an appeal court. It is more interested in the process of decision making than in evidence for or the result of the decision.
The grounds for Judicial Review have been described by Lord Diplock in a key case ( Council of Civil Service Unions v Minister for the Civil Service,  ) as ‘illegality’, ‘irrationality’ and ‘procedural impropriety’.
- ‘Illegaliity’ is often referred to as ‘acting ultra vires’, or beyond the powers conferred by the relevant statute. It is concerned with the correctness of the decision taking body’s understanding of the relevant law; and with the correctness of the decision consequently taken.
- ‘Irrationality’ is often referred to as ‘unreasonableness’, often a key issue at Judicial Review under what is known as the ‘Wednesbury’ precedent. It is interested in situations where it can be shown that ‘a decision was so outrageous in its defiance of logic that no sensible person applying their mind to the question to be decided could have arrived at that decision’.
- ‘Procedural impropriety’ is often referred to as ‘unfairness’, a breach of natural justice. It covers ‘situations where there has been a breach of procedural rules laid down by the relevant legislation or a breach of the common law rules of natural justice or there has been procedural unfairness’.
A seminal case affecting the process of Judicial Review was R v Secretary of State for Scotland, 1999, from which the following guidelines on Judicial Review emerge.
- ‘Judicial review involves a challenge to the legal validity of the decision. It does not allow the court of review to examine the evidence with a view to forming its own view about the substantial merits of the case.’ (R v Secretary of State for Scotland 1999)
- ‘ It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from the procedures which either by statute or at common law as matter of fairness it ought to have observed. ‘ (R v Secretary of State for Scotland 1999)
- ‘As regards the decision itself it may be found to be perverse or irrational, or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or of sufficient evidence to support it, or through account being taken of irrelevant matter, or through a failure for any reason to take account of a relevant matter, or through some misconstruction of the terms of the statutory provision which the decision- maker is required to apply. But while the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies it is perfectly clear that in a case of review, as distinct from ordinary appeal, the court may not set about forming its own preferred view of the evidence.’ (R v Secretary of State for Scotland 1999)
The Hillhead case for Judicial Review
We contend that Scottish Minsters’ compound act of replacing the unable material formally presentedl, without any qualification, as the Educational Benefits Statement in the Highland proposal paper with material from another section of that proposal paper, serving a different purpose and not written, not intended, not presented and not claimed to be an Educational Benefits Statement was ultra vires – or illegal.
We contend that Sottish Ministers consequent accepting as competent the statutorily significant status they had themselves retrospectively conferred upon this material was perverse and therefore unreasonable.
We contend – and this is incontrovertible – that the retrospective conferral of the statutorily authoritative status of Educational Benefits Statement upon material not intended or identified as such during the statutory consultation period, involved both an act and a failure to act which has had the effect of altering the rights of the parent council of Hillhead school; and deprives them of a benefit or advantage they have had and were entitled to continue to have (the service of their school to their children).
The act of Scottish Ministers which has altered the rights of Hillhead parent council is the ultra vires and retrospective conferral of the status of Educational Benefits Statement upon material not intended or presented as such during the statutory consultation period. The consultees had neither reason nor opportunity to address this material as an Educational Benefits Statement during the consultation period, as they would have needed to do. While the material in question was, as the Moore letter, above says, ‘ available to the public throughout the consultation process’, it was not available during that process in the role retrospectively conferred upon it.
In fact, had the retrospectively promoted options appraisal been, eccentrically, presented in consultation as an Educational Benefits Statement, the Hillhead consultees would have been able comfortably to deny its ability in that capacity. The options appraisal, for its reasonable purposes, scored both schools as one – a process not acceptable as the required Educational Benefits Statement specific to each school; a scoring demonstrably disadvantageous to Hillhead; and a scoring arrived at by a process to which, in a highly unusual and courageous act, head teachers from the area objected, on substantial grounds, in a signed letter to Highland’s Education Department.
The failure to act of Scottish Ministers which has had the effect of altering the rights of the parent council of Hillhead school – and which deprives them of the benefit and advantage they have had and were entitled to continue to have (the service of their school to their children), was the failure to refuse consent to Highland to close the school on the straightforward grounds the Act lays down. This is that the Educational Benefits Statement presented in Highland’s closure proposal was legally unable and that Highland Council was therefore in breach of its statutory obligations in this key respect.
We contend that the depriving of the Hillhead consultees of their rights and advantages in this respect and in this manner, was procedurally improper in Lord Diplock’s authoritative definition and has therefore been unfair to these consultees.
We contend that the retrospective conferral of the statutorily authoritative status of Educational Benefits Statement upon material drawn from the statutorily less significant options appraisal was an unreasonable act giving rise to an unreasonable decision.
We contend that it is unreasonable to refuse to accept as an Educational Benefits Statement what is formally presented as such in a local authority’s proposal paper.
We contend that it is unreasonable to interpret as ‘a summary’ (of what exactly?) a distinct proposal element formally presented as the Educational Benefits Statement that is required to feature strongly in any proposal – and that it is especially unreasonable to do so in the absence of any other element so titled in the proposal.
There are several other breaches and improprieties in the Scottish Minister’ determination in this case. For example, foremost amongst these are:
- Scottish Ministers failed to identify and investigate Highland Council’s failure, as described in 17 2 (b) of the Act: ‘to take proper account of a material consideration relevant to its decision to implement the proposal’. Highland did not attempt to consider the material consideration of the viable alternative of retaining Hillhead school and building a smaller new school for and at North Wick.
- We contend that Scottish Minsters acceptance that the retrospectively re-classified material ‘was written specifically for the schools’ (our emphasis) ignores the specific statutory obligation upon a local authority to prepare an individual Educational Benefits Statement for each school in a multiple closure proposal paper. As such, we contend that this acceptance of function was ultra vires, or illegal.
- We contend that Education Scotland was in breach of its own statutory obligations to examine the Educational Benefits Statement; and to draw attention to a significant inability in the Highland proposal in this respect – of which they had specifically been made aware. The Hillhead consultees had notified Education Scotland, in writing, of the legal inability of the Educational Benefits Statement presented. Education Scotland made no more than passing and misleading reference to this in their own report, saying merely: ‘In a written submission, one parent expressed serious concern that the council’s consultation proposal drew heavily on a proposal prepared by a council elsewhere in Scotland’. This misidentifies (why?) the unable Educational Benefits Statement as ‘a proposal’ and in doing so seriously misrepresents the statutory significance of the situation. Education Scotland are, by stature, required to focus in their report on the Education Benefits Statement. Their report is an authoritative element of the process leading to the eventual decision by the local authority. We further note that Education Scotland too had neither reason nor opportunity to address at the due time the options appraisal material in the guise of Educational Benefits Statement which Scottish Minsters chose retrospectively to confer upon it.
Overall, we contend that Scottish Ministers’ decision making power has, in this case, not been properly exercised for it’s lawful purpose of scrutiny and adjudication.
We contend that no one could reasonably come to the conclusion that a retrospective conferral of a new – and statutorily significant identity upon material the consultee had no opportunity to address in that guise, was legally competent or fair to the consultees.
We contend that Scottish Ministers’ failure to act in proper consideration of the material formally presented by Highland Council as the Educational Benefits Statement for the proposal denied the consultees their legitimate expectation that their school would be reprieved from closure.
We further contend that Scottish Ministers process of coming to their determination in this case was unfair, in line with Lord Diplock’s definition of fair minded conduct in decision taking. It is judged that:
‘Where a dispute requires to be resolved, the body responsible for deciding the matter is expected to act according to the rules of natural justice. Natural justice means acting fairly between the parties, allowing all sides to be heard, and taking a decision impartially. Acting fairly between the parties means allowing both sides the opportunity of presenting their case, and in certain circumstances also to allow an opportunity for cross-examination of witnesses so as to raise relevant issues and to test the evidence. This can mean that there is a right to be heard before a decision is taken.’
‘Generally though a right to be heard will depend on the importance of the matter to the individual, and the interest they have to protect. A person who is adversely affected by a decision will usually have a right to make representations, either before the decision is taken or after in order that there is an opportunity to modify the decision, or both.’
‘ In order to make this right meaningful they should be informed of the gist of the case they have to meet.’
‘The test is not whether an unjust result has been reached but whether there was an opportunity for injustice to be done.’
We therefore contend that the Hillhead consultees have met with signal unfairness at various stages of this consultation and decision taking process, both at the hands of Highland Council and at the hands of Scottish Ministers.
We contend that, in the light of all of the matters laid out above, there is a strong foundation in law for Hillhead parent council raising a case under Judicial Review against Scottish Minsters who, through the remittal to them upon call-in of the closure proposal and the decision, are ultimately and wholly responsible.
Hillhead parent council and Judicial Review – justice reserved for the wealthy
Having a powerful case for Judicial Review does not open the ability to exercise the right to justice.
Judicial Review is, for impoverished parent council’s in deprived areas, as is the case with Hillhead school, an expensive process beyond reasonable contemplation.
Our offer to the parent council to assist in a fund raising campaign was met by two additional and major problems for Hillhead parent council.
These problems are the direct result of Highland Council’s failure to give proper – or any – attention to the material consideration of retaining Hillhead while closing North Wick and building a smaller new school for Wick North alone. The new school proposed is, in any case, to be located at Wick North.
These problems are also the direct responsibility of Scottish Minsters’ failure to require Highland Council to investigate this option. It is ironic that, in its eccentric determination to elevate Highland’s options appraisal to the status of Educational Benefits Statement, Scottish Ministers failed to notice than all of the valid alternatives to closure had not been appraised.
Hillhead parent council feels that, by going to Judicial Review, it would be seen in Wick as obstructing the real need of Wick North for a new school.
It would therefore attract little local support in fund raising; and it fears the prospect of what we can only describe as ‘monstering’.
This is a painful example of the inflicting of undeserved compound jeopardy.
Not only have Highland Council and Scottish Ministers serially taken a closure decision we contend is not supported by the law; but, in failing to act as the 2010 Schools Act requires in the consideration of all viable alternatives to closure, they have effectively disabled Hillhead parent council from even attempting to raise the substantial funds they need to go to Judicial Review.
Hillhead is a good small school in a remote and culturally important Scotttish town. But school, town and area are not well off and are below the national radar in influence.
The consequent problem is ‘Who cares?’
In pragmatic politics, there is neither much cost nor much benefit in caring that real wrong may have been done to the children, parents and community of a primary school in Wick.
But justice and civility – showing regard for others – are the keystones of responsible democracy.
Is there an advocate out there who might offer to represent Hillhead school on the basis of the case outlined above – or better – and without charging fees and expenses?
That would restore a faith in humanity that Hillhead parent council now finds hard to summon.
NOTE: Tomorrow morning we will publish proposed solutions to the situation now obtaining with Hillhead School and with the precedent set by Scottish Ministers in their Wick determination for the use of the 2010 Schools Act .