At least there has now been some movement in the appeal by the Education Secretary [aka Scottish Ministers] against the Judicial Review opinion issued in June 2012 by Lord Brailsford in favour of Western Isles Council in its legal challenge to the Education Secretary’s rejection at call-in of the Council’s proposal to close primary education schools at Shelibost, Shawbost and Carloway.
The judges on this occasions were Lady Paton, who gave the opinion of the court, Lady Dorrian and Lord McGhie.
Western Isles Council had raised a Judicial Review challenging both the Education Secretary’s call-in notices and the decisions resulting from the call-ins.
Lord Brailsford’s opinion supported their argument. Scottish Ministers appealed and the opinion of the appeal judges was issued today.
It is a fascinating opinion and a powerfully authoritative one, which moves the interpretation of the 2010 Schools Consultation [Scotland] Act strongly away from what Scottish Ministers argued in their appeal and to a position which accords the Act substantial confidence in its reception by those most fundamentally affected by it – the rural parents and communities facing the closure of their schools.
Central to the Western Isles challenge and to Lord Brailsford opinion in their favour was Section 15  of the 2010 Schools Act. This reads: ‘A call-in notice has the effect of remitting the closure proposal to the Scottish Ministers.’
After considering the meaning of this paragraph, Lord Brailsford construed it thus: ‘… in my view, it is clear that the matter before the education authority, that is the issue of whether or not certain rural schools should be closed, has been transferred to the Scottish Ministers for that body’s determination.’
The opinion of the court, delivered today [6th February] by Lady Paton agreed with Lord Brailsford’s interpretation of this section of the 2010 Schools Act; and, in doing so, explicitly rejected the reading of it forcibly repeated in various elements of Scottish Ministers’ submissions in their appeal.
Ministers had argued that the Act allows them – obliges them – to deal only with and to adjudicate on matters of procedure they consider council’s to have failed properly to apply in the consultation and development of a proposal to close a school.
The opinion issued today found that unacceptable and effectively insisted on the primacy of the merits of the case and on Minister’s obligation to consider those merits once they had called in a council closure proposal for their determination.
This could not be a more grounded or a more valuable opinion in the correct interpretation of the framing of the Act.
It is also interesting that the court found itself able to come to this decision on the basis of its close analysis of the meaning of the Act’s provisions alone – and without the need to have recourse to the plethora of extraneous precedent it was offered by counsel for both parties.
The opinion also constructively reconciled what had appeared to be an endemic contradiction in the Act itself – between Section 15  and much of Sections 16 and 17.
Today’s opinion was clear on two key interpretative reconciliations:
- it identified what it is that Ministers call-in as a proposal and not a decision, pointing out that, where a call-in results in permission to a council to proceed, the council then converts its proposal into a decision.
- it pointed to Section 17 of the Schools Act, on Grounds for Call-In and which describes the conditions requiring a call-in decision from ministers. Here the opinion focused on Paragraph 17 [2c], obliging Ministers: ‘to take proper account of a material consideration relevant to its decision to implement the proposal.’ The judges unarguable view was that it is impossible to come to a conclusion on what is or is not a material consideration without engaging with the matter – the merits – as well as the procedure which has produced a proposal.
The opinion issued today did two things.
It allowed the Scottish Ministers appeal in respect of the validity of the three call-in papers it had issued.
It has not yet made any pronouncement on the decisions the Education Secretary made following these call-ins.
Instead it has acceded to the requests of counsel for both parties and is to ‘put the case out By Order to discuss inter alia further procedure.’
This will be worth following.
We recommend anyone with an interest in how the 2010 Schools Consultation [Scotland] Act shapes the conduct of councils and ministers in the potential closure of a school and, in this case, of a rural school, to take time out to read this opinion closely.
It requires meticulous concentration but it rewards that effort in the clarity it achieves and in the constructive precedents it sets.