Walker v Strathclyde Regional Council
| Jurisdiction | Scotland |
| Judgment Date | 01 October 1985 |
| Date | 01 October 1985 |
| Docket Number | No. 1. |
| Court | Court of Session (Outer House) |
OUTER HOUSE.
Lord Davidson.
Administrative law—Judicial review—Competency—Education—Whether competent for parents to bring judicial review proceedings against education authority for failure to discharge duty under Education Act where remedy could be invoked by Secretary of State—Education (Scotland) Act 1980 (cap. 44), sec. 701—Court of Session Act 1868 (31 & 32 Vict., cap. 100), sec. 912—Rules of Court 1965, rule 260B.3
Education—Education authority's statutory duty to provide adequate and efficient schooling—Whether duty absolute—Education (Scotland) Act 1980 (cap. 44), sec. 1.1
Process—Judicial review—Competency—Education—Title to sue—Whether competent for parents to bring judicial review proceedings against education authority for failure to discharge duty under Education Act where remedy could be invoked by Secretary of State—Education (Scotland) Act 1980 (cap. 44), sec. 701—Court of Session Act 1868 (31 & 32 Vict., cap. 100), sec. 912—Rules of Court 1965, rule 260B.3
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Sec. 1 of the Education (Scotland) Act 1980 imposes a duty upon education authorities to "secure that there is made for their area adequate and efficient provision of school education and further education". Sec. 70 of that Act provides remedies available to the Secretary of State or Lord Advocate for
3failures to discharge any duty imposed upon authorities by the Act. The decision to set in train default proceedings could under that section only be made by the Secretary of State, although interested parties could bring the default to the Secretary of State's attention. Sec. 91 of the Court of Session Act 1868 provides for the application to the Court of Session by way of summary petition for an order seeking specific performance of a statutory duty. -
Due to industrial action by a teachers' union, schooling in Strathclyde was disrupted. Parents of children at schools in that area brought petitions under the judicial review procedure alleging breach of the duty imposed upon the local education authority and specific implement thereof. The petition was brought a few days before the beginning of the school session and, accordingly, the averments as regards recent developments in the teachers' dispute were sparse. The education authority argued at first hearing, inter alia, that the petition was incompetent in light of sec. 70 of the 1980 Act and, in any event, that it was premature. The petitioners argued, inter alia, that, in light of sec. 91 of the 1868 Act, the petition was competent and that the duty imposed upon the education authority was peremptory and unqualified and ought to be construed accordingly.
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Held, (1) (followingT. Docherty Ltd. v. Monifieth Town CouncilSC1970 S.C. 200) that, the petitioners could be deprived of the remedy conferred by sec. 91 of the 1868 Act only by statutory provision which expressly or by plainest implication had that effect; (2) (approving dicta of Sir Stanley Rees inMeade v. Haringey London B.C.WLR [1979] 1 W.L.R. 637 at p. 654E/G) that, the duty imposed upon the education authority in terms of sec. 1 of the 1980 Act was a qualified duty; and (3) that, the petition was not premature, although before a second hearing the parties should have an opportunity to update their
affidavit and other evidence; and cause continued to a second hearing. -
Opinion, that the petitioners were not bound to specify how the education authority should discharge their duty.
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Observed, that, once the petitioners had proved that the education authority's school provision had become inadequate and inefficient to a significant extent, it was for the education authority to satisfy the court, if they could, that they had not failed in their duty under sec. 1 of the 1980 Act.
William Stafford Walker and Mrs Rosalind Harriet Sneader or Markson presented a petition for judicial review under rule 260B of the Rules of Court 1965 seeking an order on Strathclyde Regional Council, as an education authority, compelling them to comply with their duty under sec. 1 of the Education (Scotland) Act 1980 in respect of the provision of adequate and efficient schooling for the petitioners' children.
The petition and answers were in, inter alia, the following terms:—"(STAT. 1) That the first petitioner resides as in the instance with his wife and two children, Fiona Margaret (aged 17) and Calum George (aged 14). Both children attend Mainholm Academy, Ayr, which is operated by the respondents as education authority. His home and said school are within the parliamentary constituency of the Rt. Hon. George Younger, M.P. The first petitioner is the school council representative of parents at said school. He is also a member of the Ayrshire Parents' Group. (Ans. 1) Admitted that the first petitioner resides at the address stated in the instance with his wife and his said two children. The ages of the said children are admitted. Admitted that both children attend Mainholm Academy, Ayr, which is operated by the respondents as education authority. Admitted that the first petitioner's home and the said school are within the parliamentary constituency of the Rt. Hon. George Younger, M.P. Admitted that the first
petitioner is a school council representative of parents at the said school, under explanation that he is one of the two such representatives. Quoad ultra not known and not admitted. (STAT. 2). That the second petitioner resides as in the instance with her husband and daughter Sandra Fiona Jacqueline (aged 15). She attends Woodfarm High School, Giffnock, which is operated by the respondents, as education authority. Her home and said school are within the parliamentary constituency of Allan Stewart, M.P., Scottish Minister for Education. (Ans. 2) Admitted. (STAT. 3). That in about January 1985 the Educational Institute of Scotland ("the E.I.S.") recommended to its members, who account for about 70 per cent of Scottish secondary school teachers, selective strike action in the constituencies of government ministers, including George Younger and Allan Stewart, M.Ps. (Ans. 3). Admitted. (STAT. 4). The selective strike action took place from the beginning of February until Easter 1985. For three days every week the E.I.S. teachers would go on strike at four or five schools in the various constituencies. At Mainholm Academy examination preparation was disrupted and all prelim exams cancelled. No first to third year pupils were admitted on strike days. Accordingly Calum Walker lost three days of education for each of the 10 strike weeks. Fiona was admitted to school on strike days but only received tuition in French. This ceased when her teacher became ill and no cover was provided. Sandra Markson lost 28 per cent of teaching time in the Easter term. The experience of these children is typical of the experience of thousands of children in secondary education in said two constituencies. (Ans. 4). Admitted that selective strike action took place for a period ending at Easter 1985, under explanation that the said action began in mid-January 1985. Admitted that for three days each week during the said period teachers who were members of the E.I.S. would go on strike at a number of schools in the various constituencies. Admitted that at Mainholm Academy examination preparation was disrupted. Admitted that certain prelim exams were cancelled. Explained and averred that prelim exams were planned to take place on a total of 15 days; that on six of those days the exams were cancelled; but that on the remaining five days the exams took place as planned. Admitted that no first to third year pupils were admitted on strike days. Admitted that Calum Walker lost a number of days of education, under explanation that the total number of days lost was 23, not 30. A schedule setting forth the days lost will be produced. Admitted that Fiona Walker was admitted to school on strike days. Admitted that she received tuition only in French on those days. Admitted that Fiona received no French tuition on certain strike days when her teacher was ill and no cover was provided. Explained and averred that Fiona's French teacher was absent through illness from midday on 14th January to 21st January and on 28th January 1985. On those days on which there was no strike action, namely on 14th, 18th, 21st and 28th January normal cover was provided. On the strike days, namely 15th, 16th and 17th January, work was set for the class by another teacher. Admitted that Sandra Markson lost a proportion of teaching time in the Easter term, under explanation that the overall proportion lost was about 18 per cent. A calculation of the proportion of time lost will be produced. Admitted that the experience of the said children is typical of that of many children in secondary education in the said two constituencies. Quoad ultra denied except insofar as coinciding herewith. (STAT. 5). From an early stage in the dispute the two petitioners as well as many other parents wrote to the respondents seeking action to provide adequate education for their children. Typical correspondence is produced. The petitioners contend that the respondents are not making adequate and efficient provision for school education for their children and they seek an order (bothinterim and final) ordaining the respondents to secure for their area adequate and efficient provision of school education, in terms of sec. 1 of the Education (Scotland) Act 1980. (Ans. 5). Admitted that from an early stage in the dispute a number of parents wrote to the respondents seeking action to provide adequate education for their children. The correspondence produced is referred to for its terms. Sec. 1 of the Education (Scotland) Act 1980 is referred to for its terms. Quoad ultra denied. Explained and averred that the respondents have no record of such correspondence from the petitioners. Explained further and averred that the respondents are not, and were not during the period of...To continue reading
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