School closures: fascinating Court of Session opinion on Scottish Ministers’ appeal against judgment in favour of Western Isles Council

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 [5] 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 [5] 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.

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6 Responses to School closures: fascinating Court of Session opinion on Scottish Ministers’ appeal against judgment in favour of Western Isles Council

  1. This is an extremely important and interesting decision, also commendably short. The Ministers were in the strange position of arguing that their powers were constrained whereas the Council argued they could look at the merits. But the Council failed in challenging the decision to call in. Effectively this means that the Ministers have more powers than they thought they had and the decisions will now need to be taken by them, after considering the issues rather than just the procedure.

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  2. This is the first report on this decision which has understood both the decision and its future implications. It has been incredibly frustrating to read the various press reports which have bought the entirely bogus press release issued by Western Isles Council.
    Cosla have been battling for an interim call in with only an examination of process. Their stated aim is to have no call in or appeal process of any kind. As the law Lords point out it is impossible to separate merits from process in any appeal system that is to have public confidence. As quoted in the Government’s case (and, bizarrely, against the argument they were trying to make)a call in on process alone would mean they could meet the tick box process of the Act but choose to ignore a huge body of evidence or opinion which was against their chosen option. During formulation of the Act this was commonly known as the “barking decision” scenario and it was absolutely clear to Parliament that this was covered under call in.

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    • Absolutely correct Sandy. I have only read the full opinion once and it certainly needs a couple more thorough readings however it is very encouraging that we have moved further away from, rather than closer to, a situation where simply having the correct headings in a closure proposal paper with a bit of fluffy text is sufficient in terms of evidencing compliance. It also (fingers crossed) kills any daft idea that we can simply score schools using a ridiculous formula driven approach and determine decisions based on an overall score.

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  3. Thank goodness for the appeal judges – they’ve surely rescued the call-in procedure from the same Kafkaesque logic that, in England, resulted in the Stafford catastrophe and the current NHS soul-searching.

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  4. From Jamie McGrigor MSP

    Commenting on the continuing row over school provision in the Western Isles, Highlands & Islands Conservative MSP Jamie McGrigor said:

    “ Yesterday’s judicial ruling from Lady Paton means fresh doubts have been cast over the clarity of the Scottish Government’s 2010 Schools Consultation Act which relates to the powers of ministers for call-in procedures. This is a very serious matter and I and my party’s Education Spokesman Liz Smith MSP are calling on the Scottish Government to agree to review this as a matter of urgency. I agree with the sentiments of Western Isles Council leader Angus Campbell when he says that clarity is needed on call-in procedures and this is especially urgent given pupils, schools and parents in Western Isles are waiting for answers on this.”

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