School And Nursery Milk Alliance Limited For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord Braid |
| Neutral Citation | [2022] CSOH 11 |
| Docket Number | P583/21 |
| Date | 28 January 2022 |
| Court | Court of Session |
| Published date | 28 January 2022 |
OUTER HOUSE, COURT OF SESSION
[2022] CSOH 11
P583/21
OPINION OF LORD BRAID
In th e Petition
SCHOOL AND NURSERY MILK ALLIANCE LIMITED
Petitioner
for
Judicial review of the funding rates set in the Milk and Healthy Snack Scheme (Scotland)
Regulations 2021 (as amended) and the guidance issued by the Scottish Ministers in relation
to the Scott ish Milk and Healthy Snack Scheme
Petitioner: MacGregor QC; Balfour + Manson LLP
Respondent: Crawford QC, McKinlay; Scottish Government
28 January 2022
Introduction
[1] For many years, pre-school children in Scotland have received a publicly funded
189 millilitre (1/3 of a pint) serving of milk on each day they attend nursery school or other
childcare settin g (settings). Before 1 August 2021, funding was provided under the Nursery
Milk Scheme, a UK scheme which reimbursed settings the actual costs of providing milk.
On that date, the respondent, Scottish Ministers, replaced the old scheme with a new
scheme – the Milk and Healthy Snack Scheme – by virtue of The Milk and Healthy Snack
2
Scheme (Scotland) Regulations 2021 (as amended, in particular, by The Milk and Healthy
Snack Scheme (Scotland) Amendment (No 2) Regulations 2021 (the Amendment
Regulations)) . The new scheme is wider than the old, in that it allows for the provision of
(i) a non-dairy alternative to children who cannot take milk for health, religious or eth ical
reasons; an d (ii) a healthy snack. However, settings’ costs are no longer reimbursed.
Instead, funding is provided by periodical payments made in advance by local auth orities,
based upon a local serving rate (LSR) set by the respondent for each local authority area. It
is the LSR which has proved to be controversial and which is the subject of this petition for
judicial review.
[2] The petitioner is a membership organisation representing the dairy, health and
education sectors in relation to the provision of milk and non-dairy alternatives. Its
members specialise in providing such products to young children. It objects to the funding
aspect of the new scheme. It asserts that the scheme has resulted in funding cuts for many
settings, which has in turn had a detrimental impact on the petition er’s members, by
reducing their ability to compete in the market, so reducing competition. The petitioner
challenges the rates at which the LSRs have been fixed, and the guidance about them. It
seeks various orders, including reduction of the decision to fix the LSRs, and of the relevant
parts of the Regulation s. It has four grounds of challenge: (1) failures in relation to the
consultation exercise which the respondent undertook; (2) failure to make proper inquiry
and/or to take relevant considerations into account; (3) failure to consult and/or to take
relevant considerations into account before amending the Regulations; and (4) irrationality
in the methodology and information used by the respondent in calculating the LSRs.
3
The hearing
General
[3] The substantive hearing called before me. In addition to detailed submissions by
senior coun sel for both parties, I was referred to various items of correspondence and other
documents lodged in process, including affidavits: two sworn by the petitioner’s chairman
Jonat han Thornes,; and one each by Christopher Hogg, managing director of Cool Milk, a
milk supplier or agent; Calu m McQueen of McQueen’s Dairies; and Donald Laird, of
Fairfield Dairies. The respondent did not dispute the factual accuracy of the affidavits,
which largely spoke to the effect of the new scheme and the impact it has had on milk
suppliers and some settings. The productions also included a number of emails written on
behalf of settings. The respondent, although not formally admitting that the contents were
accurate, did not challenge the provenance of these.
Mr Adlard’s report
[4] The petitioner also relied upon expert evidence, in the form of a report by
Jon Adlard, an economist, commenting on the methodology used in calculating the LSRs
and the effect on competition . Mr Adlard’s expertise was not in dispute, although the
respondent did take issue with the use which could be made of his report.
[5] The extent to which expert evidence might be used in a judicial review in English
proceedings was considered in R (Law Society) v Lord Chancellor [2019] 1 WLR 1649, from
paragraph 36. Senior counsel for the respondent submitted that Mr Adlard’s report did not
satisfy “the test” in that case. I do not agree that the case laid down a test of universal
application to Scottish judicial review proceedings. There are essentially two questions: is
evidence relevant at all; and, if so, may the court have regard to expert evidence? While the
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