Scottish Court of Session Decisions

The Education (Scotland) Act 1872 (35 and 36 Vict. cap. 62) enacts—Section 36—“… A school board may with the sanction of the Board of Education discontinue or change the site of any school under their management, and may sell and dispose of any land and buildings connected with any school so discontinued, or the site of which is so changed.…”

Section 38—“With respect to schools now existing … in any parish or burgh erected or acquired and maintained, or partly maintained, with funds derived from contributions or donations … for the purpose of promoting education, be it enacted that it shall be lawful for the person or persons vested with the title to any such school, with the consent of the person or persons having the administration of the trusts upon which the same is held, to transfer such school, together with the site thereof, and any land or teacher's house held and used in connection therewith, to the school board of the parish or burgh in which it is situated, to the end and effect that such school shall thereafter be under the management of such board as a public school in the same manner as any public school under this Act; and it shall be lawful for the school board with the sanction of the Board of Education, to accept of such transference, and on the same being made and accepted, the said school, with the site and any land and teacher's house included in the transference, shall be vested in the school board, and the school shall thereafter be deemed to be a public school under this Act; and shall be maintained and managed by the school board, and be subject to all the provisions of this Act accordingly; and the existing teachers … may be continued as such teachers by the school board, and their continuance in office may be made a condition of the transference.… And the use of the school-house at such times and for such purposes as shall not interfere with the use thereof, under the provisions of this Act by the school board may also be made a condition of the transference thereof to the school board.”

Section 47 allows school boards to receive and administer bequests “according to the wishes and intentions of the donors.”

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Section 68 enacts—“Every public school, and every school subject to inspection and in receipt of any public money as hereinbefore provided, shall be open to children of all denominations, and any child may be withdrawn by his parents from any instruction in religious subjects and from any religious observance in any such school; and no child shall in any such school be placed at any disadvantage with respect to the secular instruction given therein by reason of the denomination to which such child or his parents belong, or by reason of his being withdrawn from any instruction in religious subjects. The time or times during which any religious observance is practiced or instruction in religious subjects is given at any meeting of the school for elementary instruction shall be either at the beginning or at the end, or at the beginning and at the end of such meeting, and shall be specified in a table approved by the Scotch Education Department.”

The Children's Act 1908 (8 Edw. VII, cap. 67) enacts—section 132, sub-section 24—“Subject to the provisions hereinafter contained, nothing in this Act shall be construed to repeal, alter, prejudice, or affect any of the provisions of the Glasgow Juvenile Delinquency Prevention and Repression Acts 1878 and 1896 (hereinafter referred to as the Glasgow Acts), and the commissioners and the directors acting under the Glasgow Acts shall continue to have the full rights, privileges, and powers at present competent to them.”

The School Board of the Burgh of Glasgow ( first parties), and the Reverend James Robertson and others, who were the ministers and members of the kirk-sessions of the quoad sacra parishes of Anderston and St Mark's, Glasgow, and who were also ratepayers within the area for which the first parties were the School Board, as such ministers and members and also as individuals ( second parties), presented a Special Case for the opinion and judgment of the Court of Session.

The Case stated—“By a disposition dated 18th June 1836 William Kippen of Busby, for the causes therein mentioned … disponed … to and in favour of the then minister and members of the kirk-sessions of the churches and parishes of Anderston and St Mark's, in the burgh of Anderston, and their successors in office respectively, as trustees for the Anderston Parochial Schools, four steadings of ground in Catherine Street, Anderston, Glasgow.… On this disposition the said trustees were infeft.… The disposition declared that the trust thereby created was for the purpose of constituting, supporting, and continuing in all time thereafter parochial schools for the parishes of Anderston and St Mark's and the rest of the burgh of Anderston (and also if found attainable for the neighbourhood thereof, but the children in the said two parishes and burgh having at all times a preference over those in the neighbourhood in the event of competition for admission thereto), which schools, under the denomination of the Anderston Parochial Schools, were to be managed and administered in terms of the rules and regulations to be adopted for the same, and subscribed by the said trustees in the sederunt book of the directors of the said schools.… The said burgh of Anderston was in 1846 incorporated in and has since that time formed part of the burgh of Glasgow.

By contract of ground-annual dated 29th October and 4th November 1840 the trustees of Anderston School, with consent of the directors of the school, sold and conveyed to Robert Marshall, cabinetmaker and joiner in Glasgow, an unbuilt-on portion of the ground belonging to the trustees … under burden of payment to them of a yearly ground-rent or ground-annual of £8, 12s. Said ground-annual was thereafter, along with the income of a sum of £100, consisting of (1) a grant in 1858 of £50 from the trustees of the Ferguson Bequest Fund, and (2) £50 raised by subscription in fulfilment of a condition attached to the grant by the Ferguson Trustees, applied by the trustees of the said school as an investment for behoof of the school.

Until its transference to the School Board in 1874, as hereinafter mentioned, the school was carried on in terms of and in accordance with the provisions of the trust-deed, and the religious instruction given in the school was in accordance with the formula and doctrines of the Church of Scotland.

At a meeting of the directors of the school, held at Glasgow on 8th May 1874, duly summoned for the purpose of authorising the transference of the school to the School Board of the burgh of Glasgow, when there attended a majority of more than two-thirds of the then directors, being the ‘persons having the administration of the trusts’ on which the said school was held, it was unanimously agreed to transfer the said school to the School Board of the burgh of Glasgow, in terms of section 38 of the Education (Scotland) Act 1872, under the condition that the existing teachers be continued by the School Board, and also that there be reserved to the kirk-sessions of Anderston and St Mark's churches the right to the use of the school-house at all times (free of rent) when not required as a school under the Act. It was also resolved that the ground-annual of £8, 12s. belonging to the school be transferred to the School Board under section 47 of the Education (Scotland) Act 1872. The meeting requested the surviving trustees vested with the title to the school and ground-annual to carry this transaction into effect by executing the necessary deed of conveyance. The minute of said meeting …. was delivered to the School Board, and the trustees, by conveyance dated 10th September, &c., and recorded in the General Register of Sasines 9th November 1874, (1) in virtue and in terms of the Education (Scotland) Act 1872, disponed to the School Board of the burgh of Glasgow in trust for the purposes of the said Act, and with all the powers and under the conditions, provisions, and declarations contained in the said Act, the ground and buildings of the

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said school, but always with and under the burdens, conditions, provisions, and others, with the exception of the regulations of the trust for the said school specified and contained in the said instrument of sasine, but providing and declaring as a condition of the said transference that the existing teachers of the said school should be continued as such teachers by the said School Board in terms of the said Education (Scotland) Act 1872, and that the kirk-sessions of the said parishes of Anderston and St Mark's should be entitled to the use of the school-house at such times and for such purposes as should not interfere with the use thereof under the provisions of the Education (Scotland) Act 1872 by the said School Board; and (2) in virtue of the Education (Scotland) Act 1872, disponed to and in favour of the School Board, in trust for the purposes of the said Act and for behoof of the Anderston Parochial Schools, and that with all the powers, conditions, provisions, and declarations contained in the said Act, the said ground-annual of £8, 12s. There was also assigned to the School Board in November 1874 a mortgage by the Glasgow Water Commissioners for the sum of £100, being the £100 above mentioned, and said sum was thereafter invested in name of the School Board in Glasgow Corporation stock.

From the date of said transference the School Board took over the staff of teachers and conducted the school as an ordinary public elementary school until 28th June 1907, when it was closed with the sanction of the Scotch Education Department in terms of section 36 of the Education (Scotland) Act 1872. During that period said ground-annual and the income of said £100 were not specially applied to the increased efficiency of said school, but were merely credited to the account thereof, and the education provided by the School Board therein was precisely the same as that provided in the other public elementary schools under the management of the School Board. For some time prior to the closing of the said school H.M. Inspectors had in their annual reports reported that the said school had become unsuitable for use as an ordinary public school, and urged the School Board to close it as soon as possible. At the date of the transference the said school afforded accommodation for 530 pupils. Immediately after the transfer the School Board made additions to the school at a cost of £3906, 6s. 1d., thereby making the accommodation adequate for 886 pupils. At the date of said school being closed the attendance had been reduced to 389. The School Board in the meantime had otherwise provided sufficient additional school accommodation for the increasing population in the neighbourhood by the erection within the district of Anderston of six ordinary public schools, giving accommodation for altogether 8956 pupils.

Anderston School having thus been closed as unsuitable as well as unnecessary as an ordinary elementary day school, the School Board proposed to adapt the building to the purposes of (first) a day industrial school, and (second) a public elementary school for physically or mentally defective children, both intended specially for Roman Catholic children, and in both of which schools the religious instruction should be exclusively according to the Roman Catholic faith, and the teachers in which should all be of that faith. At a meeting of the School Board held on 15th April 1907 a resolution in the following terms was duly proposed and seconded—‘That it is deemed expedient that the Board establish in the Anderston (and Gorbals) districts of the city special schools for physically defective children, and also day industrial schools for such children as are not under the present arrangements accommodated in said schools.’ While the resolution does not in terms specify the class of children under consideration, the children referred to in the resolution are exclusively Roman Catholic children, and it is a part of the scheme embraced in said resolution that the religious instruction to be given in said special schools shall be exclusively in accordance with the Roman Catholic faith, and that the teachers in said school shall be of that faith. The following amendment was also duly proposed and seconded — ‘That the Board do not proceed further with the proposal to establish special and day industrial schools in which the religious instruction given shall be exclusively in accordance with the Roman Catholic faith unless and until the sanction of the electorate be first obtained.’ On a vote being taken the resolution was carried by nine votes against six. Reasons of dissent and answers thereto were thereafter submitted on behalf of the minority and majority respectively of the Board. Further, the Board received protests against said pro posal from the ministers of the parishes-of Anderston and St Mark's, from the kirk-session of St Mark's, from the Presbytery of Glasgow, and from the Glasgow Landlords Association, Limited.

The Education Acts and the code of the Scotch Education Department contain no regulations for the religious instruction of children in public schools except what is known as the ‘Conscience Clause’ of The Education (Scotland) Act 1872,’ viz., section 68, and no regulations for the examination in religious knowledge of teachers qualifying for a certificate of competency, or inquiry as to the religion of teachers, and no such examination or inquiry is in fact made by the Department. In accordance with a resolution passed at a meeting of the School Board held on 8th December 1873, which is in the following terms — ‘Whereas it has been the custom in the public schools in Scotland to give instruction in religion to children whose parents do not object to the instruction so given, and whereas the Education (Scotland) Act declares it to be expedient that the managers of public schools should be at liberty to continue the same custom, and whereas in the judgment of this Board the said custom ought to be continued, they direct the teachers to give, subject to the “Conscience

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Clause,” instruction in religion from the Bible and Shorter Catechism, except in the case of any school where it may appear that such instruction may be contrary to the wishes of the parents of the great body of the children in attendance’—the School Board have all along directed religious instruction from the Bible and Shorter Catechism to be given in the schools under their charge, and the Syllabus of Religious Instruction has been in use in the Board schools in Glasgow for twenty years. Religious instruction in accordance therewith is at the present time given in all schools under the charge of the School Board except to the Roman Catholic children in the ‘Truant’ School referred to in the next paragraph but two, who receive religious instruction according to the Roman Catholic faith, and except in two special schools in Govan Street, ( a) a day industrial school, and ( b) a school for physically and mentally defective children, and in a special school in Elliot Street also for physically and mentally defective children, all intended specially for Roman Catholic children. The religious instruction provided in the special schools in Govan Street and Elliot Street is exclusively in accordance with the Roman Catholic faith, and the teachers therein are also all of that faith. The special schools in Govan Street and Elliot Street were established by the School Board in 1908 after the questions herein submitted had been raised, and the second parties do not admit the legality of their institution on the basis described. The Syllabus of Religious Instruction above mentioned is not acceptable to Roman Catholics.

In practice the School Board are in use, when dealing with applications for the post of a teacher in an ordinary public school, to send to applicants the said scheme of religious instruction and ask them whether they are prepared to teach the same. The same application form …. is issued to all applicants for appointment as certificated teachers under the Board, and in the case of appointments in the said schools in which the religious instruction is exclusively according to the Roman Catholic faith the reference to the Board's Syllabus of Religious Instruction in Question (18) is deleted, and applicants are asked whether they are prepared to give religious instruction in accordance with the doctrines of the Roman Catholic Church.

The religious instruction in the Glasgow Board Schools is given at the beginning of each school day from 9·15 to 10 o'clock when the school roll is called, and thereafter the school instruction is wholly secular. While Roman Catholic children who might attend the ordinary public schools under the management of the School Board would be entitled to the protection of the ‘Conscience Clause,’ and would only require to attend from the calling of the roll, very few Roman Catholic children attend the public schools in which religious instruction is given in accordance with the scheme of the Board above referred to, and nearly the whole of the 23,000 Roman Catholic children estimated to be within the School Board area receive their education at Roman Catholic voluntary schools which earn a parliamentary grant under section 67 of The Education (Scotland) Act 1872.

The School Board of Glasgow, by virtue of the powers conferred upon them by The Education (Scotland) Act 1872, section 41, has established, and has for two years maintained, an industrial school certified in accordance with the provisions of The Industrial Schools Act 1866, in which Protestant religious instruction is provided for Protestant boys, and Roman Catholic religious instruction for Roman Catholic boys. Only truants are committed to this school.

The parties are at issue as to which Acts, or Orders made relative thereto, regulate the powers of the first parties with respect to day industrial schools. The second parties maintain that the first parties' powers are contained only in the Glasgow Juvenile Delinquency Prevention and Repression Act 1878, as amended by the Glasgow Juvenile Delinquency Prevention and Repression Amendment Act 1896, and in an Order by the Secretary of State dated 9th August 1881, issued in pursuance of powers conferred on him by section 30 of said Act of 1878, and not also in the Day Industrial Schools (Scotland) Act 1893 and the Children Act 1908. The first parties maintain, on the other hand, that their powers are contained in the Day Industrial Schools (Scotland) Act 1893 and the Children Act 1908, as well as in the said Acts of 1878 and 1896 and said relative Order. By said Act of 1878 two statutory bodies are created—(1) the Commissioners, whose duty it is to levy assessments for the purposes of the Act and to distribute the same as thereby directed, and (2) the Directors, whose duty it is, inter alia, to carry the Act into execution as regards Protestant industrial schools only. The Commissioners are, inter alia, directed by section 38 of the Act of 1878, as amended by said Act of 1896, section 5—(1) to make payment to the directors of such sums as are required and expended by them for the purpose of the Act, (2) to make contributions of 78s. per capita per annum for the support of certain classes of inmates remitted to certain specified Roman Catholic reformatory and industrial schools or any schools that may be substituted therefor. After satisfying the objects above specified the Commissioners may make payment to the managers of the Roman Catholic reformatory schools and the Roman Catholic industrial schools of such sums as the Commissioners may consider necessary or expedient to enable the managers to extend their operations or more effectively carry on the same. By the said Order of the Secretary of State there was conferred, subject to the conditions therein mentioned, upon the School Board of Glasgow power ( a) to contribute sums of money towards the establishment, extension, enlargement, and rebuilding of

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a day industrial school, or towards the support of the inmates of such a school, and ( b) to establish, build, and maintain day industrial schools. The Act further provides that a day industrial school so established, built, and maintained by the School Board of Glasgow is to be subject to the jurisdiction of the Secretary of State and not of the Education Department. The Day Industrial Schools (Scotland) Act 1893 and the Children Act 1908 conferred upon school boards in Scotland powers of establishing and maintaining certified day industrial schools, but as before stated the parties are at issue as to whether the first parties are excluded from the provisions of said Acts of 1893 and 1908 in respect of the provisions in section 132, sub-section 24, of the latter Act. Several day industrial schools have been established by said directors under the Act of 1878 for Protestant children. No day industrial school specially intended for Roman Catholic children has been established in Glasgow except said day industrial school in Govan Street, established by the School Board of Glasgow in August 1908.

In consequence of the proposal of the School Board to convert said Anderston School into ( a) a day industrial school, and ( b) a school for defective children, both intended specially for Roman Catholic children, and in both of which religious instruction according to the Roman Catholic faith only shall be given, and all the teachers in which it is intended shall be of the Roman Catholic faith, the questions hereinafter set forth have arisen between the parties, and the opinion of the Court is respectfully requested thereon.

The parties of the first part maintain that the School Board of Glasgow having had the said school transferred to them in accordance with the education statutes, are entitled to use it and the funds similarly transferred to them as freely as any other buildings or funds acquired and owned by them for the general purposes of the Education Acts, and that they are therefore entitled to use the said school buildings in the way and for the purposes proposed by them without any restrictions except those imposed by said Acts, and the right of use for meetings reserved to the said kirk-sessions. They further maintain that their powers with regard to day industrial schools are contained not only in the Glasgow Juvenile Delinquency Prevention and Repression Act 1878, as amended by the Glasgow Juvenile Delinquency Prevention and Repression Amendment Act 1896 and relative Order, but also in the Day Industrial Schools (Scotland) Act 1893 and the Children Act 1908. They further maintain that the provisions of section 68 of the Education (Scotland) Act 1872, which applies equally to public and voluntary State-aided schools, regulate the conditions of religious instruction to be given in the portion of the said school intended for defective children. The parties of the second part maintain that the School Board are not entitled to establish and use the said school as a day industrial school either wholly or partly or to establish or carry on an ordinary public school or a day industrial school or a public elementary school for defective children, specially intended for Roman Catholic children, and where the religious instruction should be exclusively according to the Roman Catholic faith, all the teachers being to be of that faith, and that in regard to the said Anderston School which was transferred to the School Board along with an endowment under section 38 and section 47 of the Education (Scotland) Act 1872, the School Board are not entitled to adapt and use it as for a day industrial school either wholly or partly, and further, that they are not entitled to adapt and use it partly as a day industrial school and partly as a public elementary school for defective children specially intended for children of the Roman Catholic faith, the religious instruction being to be exclusively according to the Roman Catholic faith, and the teachers in which shall all be of the Roman Catholic faith as proposed by them, and that the School Board are not entitled to use said school otherwise than as a public school under the Education (Scotland) Act 1872. They further maintain that it is the duty of the School Board in the circumstances which have arisen to sell said school, and to invest the proceeds of such sale and apply the income of such investment and also said ground-annual and the income of the said £100, for the benefit of a public school or schools in the Anderston district, and in that event to make suitable provision or compensation to the second parties for the said right reserved to them in said disposition to the School Board. They further maintain that the School Board is precluded from exercising the powers conferred in the Day Industrial Schools (Scotland) Act 1893 and the Children Act 1908 by section 132, sub-section 24, of the latter Act.”

The questions of law for the opinion of the Court were—“(1) Is the School Board of the burgh of Glasgow entitled to adapt and use the said school for a day industrial school either wholly or partly? (2) Is the School Board of the burgh of Glasgow entitled to adapt and use said school partly as a day industrial school and partly as a public elementary school for defective children, both specially intended for Roman Catholic children, and in which the religious instruction shall be exclusively according to the Roman Catholic faith, and the teachers therein all of that faith? (3) If the answer to question (2) be in the affirmative, is it the duty of the School Board to apply the said ground-annual and the income of the said £100 for the special benefit of an ordinary public school or schools in the Anderston district, or to treat it as part of the general school fund? (4) If the answer to question (2) be in the negative, is the School Board entitled to sell the said school and ground-annual, and if so, is it their duty to invest the proceeds of the same and apply the income thereof, along with the income of the said £100, for the special benefit of an ordinary public school or schools in the Anderston district,

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or to treat it as part of the general school fund? (5) In the event of the School Board of the burgh of Glasgow being found entitled to sell and selling the said school, would the School Board be bound or entitled to compensate said kirk-sessions or either of them in respect of their being deprived of the right of use of the school for meetings under said powers reserved to them respectively in said conveyance?”

The arguments of parties appear sufficiently from their contentions stated in the case. Reference was made to the following cases— M'Culloch and Others v. Kirk-Session of Dairy, July 20, 1876, 3 R. 1182, 13 S.L.R. 717, and Sutherland and Others (Gateside School Managers) v. School Board of Beith, February 3, 1903, 5 F. 424, 40 S.L.R. 345.

At advising—