Peter Laverie Against The Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord Clark |
| Neutral Citation | [2017] CSOH 45 |
| Court | Court of Session |
| Docket Number | P11/16 |
| Published date | 17 March 2017 |
| Date | 17 March 2017 |
| Year | 2017 |
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 45
P11/16
OPINION OF LORD CLARK
In the cause
PETER LAVERIE
Petitioner
against
THE SCOTTISH MINISTERS
Respondents
Petitioner: Lindsay QC, Stuart; Maclay Murray & Spens LLP
Respondents: Mure QC, Ross QC; Scottish Government Legal Directorate
17 March 2017
Introduction
[1] On 8 October 2015, the petitioner was removed from his position as a member of the Board of Management (“the Board”) of Glasgow Clyde College. As a result of certain statutory provisions, the consequence of removal was that the petitioner became disqualified for life from being a member of a number of other boards of management in the further and higher education sector.
[2] The petitioner challenges the lawfulness of the subordinate legislation which effected the removal: The Glasgow Clyde College (Removal and Appointment of Board Members) (Scotland) Order 2015 (SSI 2015/348) (“the Order”). He also challenges the lawfulness of the statutory provisions which provide for disqualification following upon removal (“the disqualification provisions”). These are set forth in paragraph 5A(c) of Schedule 2 to the Further and Higher Education (Scotland) Act 1992 (“the 1992 Act”), paragraph 4(2)(c) of Schedule 1 to the Further and Higher Education (Scotland) Act 2005 (“the 2005 Act”), and paragraph 6(1)(c) of Schedule 2B to the same Act.
[3] The petitioner seeks a number of orders in respect of the legislation, along with further remedies. However, the parties were agreed that the appropriate course was to have the case put out by order, to deal with any outstanding matters in light of the decisions reached in this Opinion.
Background
[4] The Order was laid before the Scottish Parliament on 8 October 2015 and came into force at 9.15 am on that day. It was signed by Angela Constance MSP, a member of the Scottish Government and the Cabinet Secretary for Education and Lifelong Learning ("the Cabinet Secretary"). The Order removed the petitioner and all other existing members of the Board, with the exception of one recently appointed board member, and appointed seven new members to the Board. The Order was made by the Scottish Ministers in exercise of the powers conferred upon them by section 24(2) of the 1992 Act.
[5] By virtue of the disqualification provisions, as a consequence of his removal from the Board by the Order, the petitioner is disqualified from appointment as a member of: (i) a board of management constituted under Part 1 of the 1992 Act; (ii) the Scottish Funding Council; and (iii) any regional board constituted under the 2005 Act. The disqualification is lifelong. There is no right of appeal against disqualification and no provisions allowing the disqualification to be reviewed, modified or lifted at a later date.
[6] The petitioner is a senior lecturer and teaching fellow, lecturing in social care courses at the College. In addition, he is a member and official of the Educational Institute of Scotland ("EIS"), which is the largest teaching union in Scotland. He was elected by the teaching staff of the College to be a board member under and in terms of paragraph 3A(2)(c) of Schedule 2 to the 1992 Act. He was re-elected by the teaching staff on 8 September 2015.
[7] On 12 February 2015 the petitioner attended a meeting of the Board. At this meeting, the petitioner and the other members of the Board were informed by the Chair, Mr George Chalmers, of his decision to suspend the Principal of the College. Mr Chalmers informed the Board that he had obtained specialist employment law advice from a firm of solicitors, before reaching that decision. According to the petitioner, at the meeting the Chair also advised the Board that he was unable to provide any further information relating to why he had decided to suspend the Principal, in case this prejudiced any disciplinary proceedings which might follow from her suspension. Again according to the petitioner, in declining to provide any information relating to the reasons for suspending the Principal, the Chair further stated that he was following the specialist legal advice he had received. The decision to suspend the Principal was made by the Chair alone exercising the powers conferred upon him by paragraph 5.1.8 of Part II of the College's Constitution. The petitioner, and indeed the Board, played no part in the decision.
[8] In an email dated 18 February 2015, sent to the Chair, members of the Board, and others, the Principal stated that she intended to seek advice from the College’s legal advisers about certain governance issues. On 19 February 2015, the Principal was suspended.
[9] The Scottish Funding Council became aware of the suspension of the Principal. The Council instructed solicitors to investigate the circumstances of the suspension. The solicitors carried out investigations and prepared a report dated June 2015 ("the Report'). The petitioner received a letter dated 3 July 2015 from the Scottish Ministers’ Director of Advanced Learning and Science, with a redacted copy of the Report enclosed. The letter advised the petitioner that the Council had provided the Scottish Ministers with the Report under section 7C(7) of the 2005 Act and that the Report reviewed aspects of the governance and management of the College by the Board,
[10] The Report concluded that the Board had mismanaged the affairs of the College and recommended that the Scottish Ministers exercise their powers under section 24 of the 1992 Act to remove the Chair of the Board. The Report made no specific criticisms of the conduct of the petitioner as an individual and made no recommendations relating to him. The letter from the Director of Advanced Learning and Science of 3 July 2015 stated that she would welcome the petitioner's comments on the Report, including its findings and recommendations.
[11] From 10 August 2015, the petitioner was absent from his employment on account of ill‑health.
[12] By letter dated 9 September 2015, addressed to Mr Gordon Reid, one of the members of the Board, the Cabinet Secretary requested the Board's comments on the matters set out in the Annex to the letter, together with any proposals for Board action. The Annex set out the Cabinet Secretary’s concerns in relation to perceived failings by the Board in governance and management. The petitioner and all other members of the Board (excluding the suspended Principal) each received letters dated 9 September 2015 in the same terms as that addressed to Gordon Reid. The letter stated that the Report did not inform the Scottish Ministers’ consideration of matters.
[13] On 14 September 2015, the Cabinet Secretary met with the Chair and two members of the Board. At the meeting, the Chair of the Board stated that he was telling "the side of the story of 10 out of the 12 board members", including, it was understood by the respondents, the petitioner. It was not suggested to the court on behalf of the petitioner that this understanding was incorrect.
[14] The Cabinet Secretary copied to the petitioner and other members of the Board a letter dated 14 September 2015 which set out her understanding of what had been discussed at the meeting and invited further comments from the members of the Board by no later than 18 September 2015.
[15] By letter dated 18 September 2015, Brodies LLP made submissions on behalf of the Board, including the petitioner, to the Cabinet Secretary. This letter responded to the criticisms which had been made of the Board and set out the action which was being taken by the Board to address any perceived difficulties and shortcomings.
[16] In terms of section 24(3) of the 1992 Act, the Scottish Ministers required to consult with the Scottish Funding Council before making an order under section 24(2)(a) of that Act. By letter dated 5 October 2015, the Scottish Ministers’ Director of Advanced Learning and Science informed the Scottish Funding Council of the Scottish Government’s proposed action in relation to the Board, enclosing the draft Order, Policy Note and Statement of Reasons. On 7 October 2015, the Chair of the Council replied stating that the concerns raised were serious and the proposed action was justified.
[17] The Order was made in exercise of the powers conferred upon the Scottish Ministers by section 24 of the 1992 Act (as inserted by section 7 of the 2013 Act), which provides as follows:
"24 Mismanagement by boards.
(1) This section applies where—
(a) it appears to the Scottish Ministers that the board of management of any college of further education—
(i) have committed or are committing a serious breach of any term or condition of a grant made to them under section 12 or 12B of the Further and Higher Education (Scotland) Act 2005 (‘the 2005 Act’);
(ii) have committed or are committing repeated breaches of such terms or conditions;
(iii) have failed, or are failing, to provide or secure the provision of education of such standard as the Scottish Ministers consider appropriate;
(iv) have failed, or are failing, to discharge any of their duties properly; or
(v) have mismanaged, or are mismanaging, their financial or other affairs;…
(2) Where this section applies, the Scottish Ministers may by order—
(a) remove any or all of the members of the board (other than the principal of the college); and
(b) where a removed member was appointed under paragraph 3(2)(a) or (f) or 3A(2)(a) or (f) of Schedule 2, appoint another person in place of the removed member."
[18] The Scottish Ministers made the Order in exercise of the power under section 24(2)(a), relying upon section 24(1)(a)(ii) and (v), as it appeared to them that the Board of Management of the College had committed repeated breaches of terms and conditions of a grant made to them under section 12 of the 2005 Act and had mismanaged the affairs of the Board.
[19] The Order was accompanied by a Statement of Reasons from the Scottish Ministers. The Statement of Reasons identified...
To continue reading
Request your trial