Comhairle Nan Eilean Siar v Scottish Ministers
| Jurisdiction | Scotland |
| Judgment Date | 31 May 2013 |
| Neutral Citation | [2013] CSIH 6,[2013] CSIH 45 |
| Docket Number | No 21,No 40 |
| Date | 31 May 2013 |
| Court | Court of Session (Inner House) |
Court of Session Inner House Extra Division
Lady Paton, Lady Dorrian, Lord McGhie
Administrative law - Judicial review - Education - School closures - Call in of closure proposals - Whether the Scottish Ministers were obliged to consider the merits of a closure proposal following a call-in - Schools (Consultation) (Scotland) Act 2010 (asp 2), secs 2, 12, 15-17; sch 1, para 1
Section 17(2) of the Schools (Consultation) (Scotland) Act 2010 (asp 2) ("the 2010 Act") provides that the Scottish Ministers may issue a call-in notice in respect of a closure proposal only if "it appears to the Scottish Ministers that the education authority may have failed- (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." Section 15(5) provides, "A call-in notice has the effect of remitting the closure proposal to the Scottish Ministers." Where a call-in notice has been issued, sec 16(2) provides that the Scottish Ministers may (a) refuse to consent to the proposal or (b) grant consent, either subject to conditions or unconditionally.
Comhairle nan Eilean Siar ("the council") proposed the closure of two primary schools in the Western Isles and the discontinuation of S1 and S2 education at a third school. They carried out a consultation in terms of the 2010 Act and issued closure proposals. The Scottish Ministers issued call-in notices on 14 December 2010. By letters dated 12 January 2011, the Scottish Ministers intimated that they refused to give consent to the closure proposals. The council raised petitions for judicial review. One of the contentions advanced in the petitions was that the Scottish Ministers could not rationally and lawfully refuse to consent to the proposal without addressing their minds to the substantive merits of the proposal. Following a first hearing, the Lord Ordinary concluded that in the event of the Scottish Ministers calling in a closure proposal, the terms of 2010 Act imposed on them the obligation to determine that matter on its merits. He granted declarator that the call-in notices were ultra viresseparatim vitiated by errors and reduced the call-in notices. The Scottish Ministers reclaimed.
At the reclaiming motion, the parties agreed to debate certain matters as preliminary issues. These were: (1) whether the Ministers' powers on call-in were restricted to a procedural check, or whether the Ministers had power to assess the merits of the closure proposal and to make the final decision; and (2) whether the call-in notices remained valid even if the Ministers had been under a misapprehension about the extent of their call-in powers.
It was argued for the Scottish Ministers that on a proper construction of the 2010 Act, the Ministers had power only to ensure that there had been no significant failures in the consultation process and then grant or refuse to grant consent. A call-in was only for process failures. They were entitled to check whether there had been a failure to take into account a relevant consideration or whether an irrelevant consideration had been wrongly taken into account, if there was an error of law or if the education authority had acted irrationally. However, they were not the decision-makers. In the event that the Ministers were wrong in their interpretation of the statute, the call-in notices nonetheless remained valid although the refusal of consent would fall to be reduced.
It was argued for the council that on a proper construction of the 2010 Act the Ministers were entitled to have regard to features of the case other than merely procedural ones. Section 15(5) was a key provision which explained the effect of a call-in notice. Section 16 did not limit the circumstances in which the Ministers could refuse or grant consent. The terms of that section, including the ability to consent despite a procedural failure and the power to impose conditions, suggested that the Ministers could look at matters beyond procedure. The call-in notices fell to be reduced on the basis that the Ministers had failed to properly exercise their discretion as they did not have a proper appreciation of what they were embarking on.
Held that: (1) the Lord Ordinary was correct to conclude that the Ministers, having called in the closure proposal, are obliged (and not merely entitled) to have regard to all the circumstances, including the procedural aspects and the merits (para 53) for the following reasons: (a) the call-in was at the stage of a closure proposal rather than a decision, making the Ministers part of the decision-making process itself rather than mere checkers of the procedural aspects leading to a decision (paras 47, 48); (b) sec 17(2) of the 2010 Act properly construed, required consideration of the merits of the closure proposal (para 49); (c) in considering whether to refuse to consent or to consent (conditionally or unconditionally) in terms of sec 16(2), the Ministers would have to assess to some extent the merits of the proposal (para 50); (d) the Ministers would be entitled to rely on all of the material assembled by the education authority in the course of their consultation procedure (para 51); and (e) there would be a loss of public confidence in the procedure if the Ministers were able to refuse to consent on the basis of an aspect of the consultation procedure with the result that the education authority would have to recommence the procedure from the beginning (para 52); (2) the call-in notices themselves remained valid as they fell within the exercise of the Ministers' call-in powers in sec 17 (para 55); and appeal allowed to the extent of recalling the Lord Ordinary's interlocutors of 6 June 2012 in so far as they granted declarator that the call-in notice were ultra viresseparatim vitiated by errors and reduced the call-in notices; cross-appeal refused in part and case put out by order to discuss further procedure.
Comhairle nan Eilean Siar (constituted as Western Isles Council) raised petitions for judicial review in respect of call-in notices issued by the Scottish Ministers and of decisions intimated by letter dated 12 January 2011. Following a first hearing, on 6 June 2012, the Lord Ordinary (Brailsford) granted declarator that the call-in notices were ultra viresseparatim vitiated by errors and reduced the call-in notices. The Scottish Ministers reclaimed.
Cases referred to:
Martin v Most sub nom Martin v HM Advocate; Miller v HM AdvocateUNK [2010] UKSC 10; 2010 SC (UKSC) 40; 2010 SLT 412; 2010 SCCR 401; 2010 SCL 476
Pepper (Inspector of Taxes) v HartELRWLRUNKUNKICRUNK [1993] AC 593; [1992] 3 WLR 1032; [1993] 1 All ER 42; [1992] STC 898; [1993] ICR 291; [1993] IRLR 33; [1993] RVR 127
R v MontilaUNKWLRUNKUNKUNK [2004] UKHL 50; [2004] 1 WLR 3141; [2005] 1 All ER 113; [2005] 1 Cr App R 26; [2005] Crim LR 479; 102 (3) LSG 30; (2004) 148 SJLB 1403
R v North and East Devon Health Authority, ex p CoughlanELRWLRUNKUNKUNK [2001] QB 213; [2000] 2 WLR 622; [2000] 3 All ER 850; 2 LGLR 1; [1999] BLGR 703; 2 CCL Rep 285; [1999] Lloyd's Rep Med 306; (2000) 51 BMLR 1
R v Secretary of State for the Environment, Transport and the Regions, ex p Spath Holme Ltd sub nom R (on the application of Spath Holme Ltd) v Secretary of State for the Environment, Transport and the RegionsELRWLRUNKUNK [2001] 2 AC 349; [2001] 2 WLR 15; [2001] 1 All ER 195; 33 HLR 31; [2001] 1 EGLR 129
R (on the application of Westminster City Council) v National Asylum Support ServiceUNKWLRUNKUNK [2002] UKHL 38; [2002] 1 WLR 2956; [2002] 4 All ER 654; [2002] HLR 58; [2003] BLGR 23; (2002) 5 CCL Rep 511
Roman Catholic Church (Scottish Hierarchy of the) v Highland Regional CouncilSC 1988 SC (HL) 1; 1987 SLT 708
Textbooks etc. referred to:
Scottish Ministers, Schools (Consultation) (Scotland) Bill: Policy Memorandum (SP Bill 23-EN) (Scottish Government, Edinburgh, 2009), paras 6, 22, 41 (Online: http://www.scottish.parliament.uk/S3_Bills/Schools%20(Consultation)%20(Scotland)%20Bill/b23s3-introd-pm.pdf (19 April 2013))
Scottish Government Learning Directorate, Schools (Consultation) (Scotland) Act 2010: Statutory Guidance (Scottish Government, Edinburgh, February 2010), pp 1, 9 (Online: http://www.scotland.gov.uk/Resource/Doc/91982/0097130.doc (19 April 2013))
The case called before an Extra Division, comprising Lady Paton, Lady Dorrian and Lord McGhie, for a hearing, on 6 and 7 November 2012.
At advising, on 6 February 2013, the opinion of the Court was delivered by Lady Paton-
Opinion of the Court-
[1] There is a proposal to close two primary schools in the Western Isles (Shelibost and Carloway), and to discontinue S1 and S2 education at a third school (Shawbost). The local education authority (Western Isles Council ('the council')) followed the consultation procedures set out in the Schools (Consultation) (Scotland) Act 2010 (asp 2) ('the 2010 Act'). They issued closure proposals. The Scottish Ministers then issued call-in notices dated 14 December 2010 in the following terms:
'In considering the consultation process undertaken by your Council, Ministers concluded that insufficient consideration had been given to alternatives, in particular the one suggested by the West Harris Trust. Ministers considered that when the Council was reviewing the consultation and how it had impacted on its assessment of the rural factors (set out in section 12(3) of the 2010 Act) it should have considered the option suggested by the West Harris Trust, together with a detailed analysis of its merits and disadvantages as an alternative when deciding the future of the school. The Scottish Ministers concluded that this issue demonstrated that the Council had not had the level...
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