Comhairle Nan Eilean Siar (original Constituted As The Western Isles Council And Having Changed Its Name In Terms Of The Local Government (scotland) A V. The Scottish Ministers For Judiicial Review Of Callin Notices And Decision Letters
| Jurisdiction | Scotland |
| Judge | Lady Smith,Lord Brodie,Lord Menzies |
| Neutral Citation | [2013] CSIH 45 |
| Docket Number | P788/11 |
| Date | 31 May 2013 |
| Court | Court of Session |
| Published date | 31 May 2013 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Menzies Lady Smith Lord Brodie | [2013] CSIH 45 P788/11 and P791/11 OPINION OF LORD MENZIES in the Petition of COMHAIRLE NAN EILEAN SIAR (originally constituted as the Western Isles Council and having changed its name in terms of the Local Government (Scotland) Act 1973 s 23 and the Local Government (Gaelic Names) (Scotland) Act 1997 s 1) Petitioners and Respondents; against THE SCOTTISH MINISTERS Respondents and Reclaimers: for Judicial Review of (1) call-in notices dated 14 December 2010 relating to Shawbost and Carloway Schools; and (2) decision letters dated 12 January 2011 refusing consent to closure proposals _______________ |
For Respondents and Reclaimers: Crawford, QC; Ross; Scottish Government Legal Directorate
For Petitioners and Respondents: Wolffe, QC; Paterson; Simpson & Marwick
31 May 2013
[1] I have had the advantage of reading in draft the opinions of Lady Smith and Lord Brodie. I agree with everything they say, and for the reasons given by Lady Smith I agree with the disposal of this matter which she proposes.
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Menzies Lady Smith Lord Brodie | [2013] CSIH 45 P788/11 and P791/11 OPINION OF LADY SMITH in the Petition of COMHAIRLE NAN EILEAN SIAR (originally constituted as the Western Isles Council and having changed its name in terms of the Local Government (Scotland) Act 1973 s 23 and the Local Government (Gaelic Names) (Scotland) Act 1997 s 1) Petitioners and Respondents; against THE SCOTTISH MINISTERS Respondents and Reclaimers: for Judicial Review of (1) call-in notices dated 14 December 2010 relating to Shawbost and Carloway Schools; and (2) decision letters dated 12 January 2011 refusing consent to closure proposals _______________ |
For Respondents and Reclaimers: Crawford, QC; Ross; Scottish Government Legal Directorate
For Petitioners and Respondents: Wolffe, QC; Paterson; Simpson & Marwick
31 May 2013
Introduction
[2] Comhairle Nan Eilean Siar ("the Council"), which is the education authority for the Isle of Lewis, has proposed (a) to close Carloway Primary School and (b) to discontinue education at S1 and S2 level at Shawbost School. Children presently educated at Carloway Primary School would be transferred to Shawbost Primary School, about 4 miles away. Shawbost also currently provides education at S1 and S2 level but not beyond. Children who currently opt to attend Shawbost at S1/S2 level would transfer to the Nicolson Institute in Stornoway, about 20 miles away. Not all would welcome these changes.
[3] This is the second reclaiming motion in the litigation to which those proposals have given rise. As in the case of the first reclaiming motion, it is at the instance of Scottish Ministers, who are the respondents in petitions for judicial review which include a challenge to the notices referred to below.
Background
[4] The Council issued proposal documents in relation to each school in May 2010. They were lengthy documents and they set out the relevant proposal in each case. They also included explanations of the consultation process, the perceived need for a school estate review, the Council's educational objectives, the relevant demographic trends, the relevant school rolls, the Council's approach/ policies in relation to travel arrangements, the Council's specific considerations in relation to the rural factors, statements of pupil costs, likely effects on staffing arrangements and an educational benefits statement. The latter was, in the case of both proposals, to the effect that there would be significant educational benefit for pupils if the proposals were to be implemented. The Council's assessment, at that stage, was that there were no viable alternatives, that there would be no significant effect on the local community and that since the existing transport structure would be used, there would be minimal negative environmental impact.
[5] Public meetings took place on 9 and 14 June 2010. They were recorded and the recordings were transcribed. Various written representations were received by the Council both before and after the public meetings.
[6] A concern was raised regarding the Carloway Community Hall, a building next door to Carloway School. Would its continued viability be threatened if the school closed, given that it currently earned income from letting it to the school for various activities? Passing reference was made by one person at the public meeting to the letting of the community hall for the purpose of the annual Carloway Agricultural Show, a let which arose because the show was based at the school premises. The Parent Council's written representations asserted that closure of the school would lead to the loss of the community hall and made the same point about the loss to the hall of the Agricultural Show business. There appears to have been a concern that, without the hall and without the school, the show might not be able to continue.
[7] The Council responded to the concerns regarding the use of the community hall and potential effect on its income in its consultation report in relation to the Carloway proposal. The report stated that they had looked at the frequency of lets to the school of the community hall, the rents involved and the frequency of other bookings. It stated that they had concluded that loss of the school would not have a material impact on the viability of the hall. They added that the hall did not form part of the school closure consultation, that it would remain open and that they would work with the community and other partners to maximize the use of the hall. The report explained that they had, in addition, prepared a European Social Fund Application to support community appointments in all areas where schools might be closing.
[8] Regarding the Shawbost proposal, concerns were raised about the increased travel time and its potential effects on children's family life and health and on their ability to participate in extra-curricular activities. By letter dated 7 June 2010, the local MSP, Alasdair Allan, said that parents had asked him what consideration was being given, if any, to the option of Shawbost continuing on the basis that it provided S1 education only.
[9] Her Majesty's Inspectorate of Education ("HMIe") considered the proposals and reported to the Council in respect of each of them. In relation to Shawbost, in their report (dated August 2010), they referred to parents' concerns about the increased travel time and its potential effects. They also observed that the Council had not fully considered "...more radical options such as the possibility of Shawbost School becoming a "satellite" campus of The Nicolson Institute, sharing staff and resources". In September 2010, the Council's Director of Education and Children's Services prepared a report on the consultation process. His report was considered by the Education and Children's Services Committee of the Council on 2 November 2010 which, in turn, reported to the Council at a meeting on 4 November 2010. The proposals were approved by the Council at that meeting.
[10] The Council dealt with the subject of alternative options in its consultation report in relation to the Shawbost proposal. Regarding the "more radical option" referred to by HMIe, they explained that they did not consider it to be viable because timetabling arrangements would not enable a secondary school timetable to be sustained at Shawbost by itinerant staff. It would be inefficient, very expensive and involve the loss of much class contact time. They did not rule out the use of e-learning - for circumstances where it was not possible to bring pupils physically into school - but that could not be used as a primary mechanism for delivering comprehensive secondary education. Otherwise, the only alternative options were (a) the status quo, (b) extending the provision of education at Shawbost to S1-3, and (c) extending the provision at Shawbost to S1-6. The first was rejected as not providing educationally beneficial class groupings to enrich pupils' learning experiences. The second would not only have failed to provide educationally beneficial class groupings to enrich the learning experience but the Council did not have within its means the budget to develop, staff and resource such a provision. That same conclusion was arrived in relation to the third option. These three options were stated by the Council as the only possible alternatives. Elsewhere in the consultation material, the Council explain why they consider that their proposals would produce an enhanced learning environment for the children who are currently educated at Carloway Primary School and S1-2 of Shawbost School.
[11] The Council also responded, in its consultation report relating to Shawbost, to concerns expressed about the effect of increased travel time. They explained how they had checked the likely increase in time against their travel to school policy, they dealt with concerns about its effect on after school activities by reference to how the school would accommodate it and what would be done to try and improve the availability of and participation in such activities in the community, they explained their response to concerns about the potential impact on pupils' health, wellbeing and family life and how, through a number of measures, they would seek to address it, including by carrying out works to improve the routes so as to reduce travel time. Their response included reference to research carried out on the effects on children of travel to school and acknowledged the significance of recommendations made regarding steps that could be taken to mitigate its negative aspects; that research also, however, highlighted that there were positive aspects of travel to school time.
[12] Scottish Ministers issued call - in notices in respect of the proposals. The notices were said to be in...
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