Scottish Court of Session Decisions

The Education (Scotland) Act 1872 (35 and 36 Vict. cap. 62), section 65, enacts—“All orders, minutes, certificates, notices, requisitions, and documents of the Scotch Education Department, if purporting to be signed by a Secretary or Assistant Secretary of the said Department, or by any officer of the Department in Scotland performing the duties of a secretary or assistant secretary, shall, unless the contrary is proved, be deemed to have been so signed and to have been made by the Scotch Education Department.”

The Education (Scotland) Act 1908 (8 Edw. VII, cap. 63), section 21, enacts—“If at any time within six weeks after the adoption of a resolution for the dismissal of a teacher in terms of section 3 of the Public Schools (Scotland) Teachers Act 1882, a petition shall be presented to the Department by the said teacher praying for an inquiry into the reasons for the dismissal the Department shall make such inquiry as they see fit, and if as the result of such inquiry they are of opinion that the dismissal is not reasonably justifiable, they shall communicate such opinion to the school board with a view to reconsideration of the resolution, and in the event of the school board not departing from the resolution within six weeks thereafter may attach to the resolution the condition that the school board shall pay to the teacher such sum, not exceeding one year's salary, as the Department may determine; and any sum so determined may be recovered by the teacher as a debt from the school board; provided that nothing herein contained shall affect the power of a school board summarily to suspend any teacher from the performance of his duties.”

The School Board of the Parish of Dalziel, pursuers, brought an action against the Scotch Education Department, defenders, to have it declared that certain letters from the secretary and assistant secretary of the Department purporting to proceed upon resolutions or decisions of the Department did not so proceed, that there were no such resolutions or decisions, and that the said letters were null and void and of no force and effect, and in particular that a letter of 10th September 1912 was ineffectual to attach to a resolution of the School Board dismissing a teacher (Miss Marshall) a condition of payment of three months' salary; alternatively, that any decision purporting to attach any such condition to the resolution of dismissal was ultra vires of the Department.

The pursuers pleaded, inter alia—“The alleged decisions complained of not being the decisions of the defenders the pursuers are entitled to decree of declarator in terms of the first four declaratory conclusions of the summons, and to decree of reduction as concluded for. 3. Separation, the decisions foresaid being ultra vires of the defenders, the pursuers are entitled to decree of declarator and reduction in terms of the alternative conclusions of the summons.”

The following narrative is taken from the opinion of Lord Hunter—“On 18th March 1912 the School Board of the Parish of Dalziel dismissed from service Miss Marshall, an assistant teacher in the Knowetop Public School, Motherwell, the dismissal to take effect on 30th April 1912. The reason for this action on the part of the School Board was that Miss Marshall, shortly before had, in their opinion, on account of her having been admitted to the membership of the Roman Catholic Church, become unsuited to discharge the whole duties which her position as assistant teacher entailed, and which included the giving of religious instruction. Against this decision Miss Marshall appealed to the Scotch Education Department under section 21 of the Education (Scotland) Act 1908 (8 Edw. VII, c. 63). Following upon this appeal certain communications were sent by the Secretary and Assistant Secretary of the Department to the School Board. On 20th July 1912 the Secretary intimated that, as a result of inquiries made, the Department were of opinion that the dismissal of Miss Marshall was not reasonably justifiable, and that it was their intention, in the event of further action on their part being necessary, to attach to the resolution of dismissal the condition that the Board pay Miss Marshall a sum equivalent to three months' salary at the rate of remuneration due to her while in the service of the Board. In reply to this communication the Board intimated that they adhered to their resolution of 18th March 1912 dismissing Miss Marshall.

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On 10th September 1912 the Assistant Secretary of the Department wrote to the Board that the Department, in virtue of their powers under section 21 of the Education (Scotland) Act 1908 and otherwise ‘attach to the resolution dismissing Miss Marshall the condition that the School Board shall pay to her a sum equivalent to three months’ salary at the rate of remuneration due to her while in the service of the Board.’ The Dalziel School Board have now brought an action against the Scotch Education Department to have it found and declared that the communications from the Secretary and Assistant Secretary of the Department did not in fact emanate from the Department, and in particular that the letter of 10th September 1912 was and is ineffectual to attach the condition of payment of three months’ salary to the resolution of dismissal, and that all proceedings that have followed or may follow thereon are null and void and in no way binding upon the pursuers. Alternatively the pursuers maintain that any decision or resolution or finding or direction of the defenders to attach to the resolution of the pursuers dated 18th March 1912 dismissing Miss Marshall from her post as assistant teacher in their service the condition that the pursuers shall pay to Miss Marshall a sum equivalent to three months’ salary at the rate of remuneration due to her while in the service of the pursuers, was ultra vires of the defenders, and that any alleged decision or resolution or finding or direction of the defenders to the effect foresaid, and the letter dated 10th September 1912 from an official of the defenders to the clerk of the pursuers, purporting to intimate such alleged decision or resolution or finding or direction are null and void and not binding upon the pursuers.”

The pursuers, inter alia, averred—“(Cond. 9) Under the said section 21 of the Education (Scotland) Act 1908 the duty of ordering an inquiry in cases of appeal against dismissal, and of deciding thereupon, is a duty of a judicial character which falls to be discharged by the defenders, and the statute does not contemplate or authorise the delegation of any of the duties thereby imposed to the Secretary of the defenders, or to any committee or official thereof. The pursuers believe and aver that the petition of Miss Marshall against the decision of the pursuers and the matters arising thereunder were not deliberated upon or decided by the members of the Committee above set forth, and that the pretended decisions of the defenders, as communicated in the letters dated 15th May, 20th July, and 10th September 1912, were not in fact decisions of the defenders but were decisions of the Secretary or other official of the defenders.”

The defenders, inter alia, averred—“(Stat. 2) The duties of the Department are to administer education in Scotland under the Education (Scotland) Acts 1872 to 1908, and in accordance with the practice invariably followed since 1885 the business of the Department is conducted by the Secretary of the Department acting by and under the directions of the Vice-President. The letters mentioned in the condescendence were written by the directions and under the authority of the Vice-President, and the decisions taken in the case of Miss Marshall were taken by the Vice-President, and were intimated to the pursuers in accordance with the directions of the Vice-President.”

On 10th May 1913 the Lord Ordinary ( Hunter) assoilzied the defenders from the conclusions of the summons.

Opinion.—“[ After the narrative above quoted]—By section 65 of the Education (Scotland) Act 1872 (35 and 36 Vict. cap. 62) it is provided—‘… [ quotes, v. sup.] …’ On behalf of the Department it was contended that ‘unless the contrary is proved’ refers only to signing, and that once it is admitted that an order, &c., has been signed by the Secretary or Assistant Secretary it is to be deemed to have been made by the Scotch Education Department, and it is incompetent to prove the contrary. As a matter of construction of the clause I am unable to accept this view. It appears to me that a person challenging an order admittedly signed by the Secretary or Assistant Secretary may show that it was not approved of and not made by the Department. I think, however, it would be very difficult for a pursuer to succeed when the Department, as here, approve and adopt as their own the action of their Secretary. That question does not arise in this case. In answer to the pursuers' allegation that the communications complained of were not in fact decisions of the defenders, but were decisions of their Secretary or other official, the defenders have stated specifically that the letters mentioned in the condescendence were written by the directions and under the authority of the Vice-President, and the decisions taken in the case of Miss Marshall were taken by the Vice-President, and were intimated to the pursuers in accordance with the directions of the Vice-President. This statement, although it is not admitted by the pursuers, is not denied by them, and as it was made to me by the responsible representatives of a Government Department I accept it as a fact. The pursuers, however, maintained—and that is the matter which was principally argued to me—that the decision of the Vice-President was not the decision of the Department within the meaning of the Education Acts.

The Scotch Education Department was constituted under the Education (Scotland) Act 1872, which by section 1 provides—

Scotch Education Department’ shall mean the Lords of any committee ‘of the Privy Council appointed by Her Majesty on Education in Scotland.’ By the Secretary for Scotland Act 1885 (48 and 49 Vict. cap. 61) it was provided by section 6 that the Queen might appoint the Secretary for Scotland to be Vice-President of the Scotch Education Department. The members of the Committee of the Privy Council constituting the Scotch Education Department for the period referred to in this action were the Lord President of the Council, the Secretary for Scotland (Vice-President), the First Lord of the Treasury, the Lord Advocate,

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Lord Haldane, Lord Shaw, Lord Reay, and Lord Elgin. The said Committee was appointed by Order of His late Majesty in Council of date 2nd March 1909. The present Secretary for Scotland was appointed Vice-President by a similar order of date 29th February 1912.

The Education Act 1908, under the provisions of which Miss Marshall appealed to the Department against her dismissal by the pursuers, provides (section 34) that the Department means the Scotch Education Department. According to the pursuers' contention the consideration of an appeal by a dismissed teacher is in the nature of a judicial act, and can only be exercised by the Committee of the Privy Council itself, who by the Acts of 1872 and 1885 form the Education Department, and not by any individual member thereof. They contend that there is no statutory warrant for the Secretary for Scotland discharging a duty entrusted to the Department and not to the Vice-President. Although they admit that many acts of the Department must be done by officials or by some individual member of the Department, they say that the nature of the duty to be performed in the case of an appeal from a resolution of dismissal excludes delegation. For the Department it was pointed out that Parliament in entrusting certain duties to the Scotch Education Department has not specified in what form action is to be taken, and it was contended that in such circumstances a court of law has no power to interfere with the internal administration of a Government department. I think that this contention is sound. A Government department is frequently a party to an action. Contracts are enforced or damages for breach of contract are assessed against a department, and the Court will ordain a department to fulfil a duty imposed upon it by Act of Parliament, reduce what has been done in excess of statutory powers, or put right what has been done in a wrong way. No instance, however, was cited to me of the Court having set aside the action of a department on the ground that it had been taken by the responsible head of the department without consulting the other members of the department.

According to constitutional usage the decision of a responsible minister at the head of a Government department is equivalent to the decision of a department, and the responsibility of the department is to Parliament and not to the Court. Well-known writers on the constitutional history of the country have made statements to this effect in their works—see Hearn's Government of England, p. 179, &c.; Maitland on the Constitutional History of England, at pp. 412 and 413, as to the Board of Trade and Local Government Board; Anson on the Law and Custom of the Constitution, vol. ii, 194, &c.; Todd's Parliamentary Government in England (2nd ed.), vol. ii, 689. Illustrations of this practice are to be found in the everyday decisions of the different Government departments.

It is, however, said by the pursuers that the Scotch Education Department is of recent origin, that the action challenged is of a judicial character, and that a teacher appealing from the action of a school board is entitled to have the minds of those constituting the Department applied to the appeal. It is not easy perhaps to distinguish between what is a judicial act and what is an administrative act. The consideration of an appeal by a teacher from a resolution of a school board dismissing him is not more judicial in character than many of the duties which are every day discharged by the heads of Government departments. Apart from that, the fact of its being judicial in character does not necessitate its being discharged in a different way from an administrative act. As regards the statutory provisions dealing with the constitution of the Scotch Education Department, it has to be remembered that the English Education Department which existed in 1872 was similarly constituted. In 1839 a Committee of the Privy Council was appointed with authority to provide ‘for the general management and superintendence of education’ in England. In 1853 an Education Department was organised, and was placed under the supervision of the Lord President of the Privy Council, with a secretary, two assistant secretaries, and numerous clerks. In 1856 a Vice-President was appointed by order in Council, under authority of an Act of Parliament passed in that year. The ordinary members of the Education Committee had no administrative responsibility, which rested entirely with the Lord President and Vice-President conjointly. In 1865 a Select Committee was appointed by the House of Commons to inquire into the constitution of the Committee of Council on Education, and the system under which the business of the office is conducted, &c. A large number of witnesses, including several eminent statesmen who had held the office of Lord President or Vice-President of the Council on Education, were examined. At the debate I was referred in detail to some of the evidence given as contained in volume VI of the House of Commons Session-Papers for 1865. Lord Granville, who had about ten to twelve years’ experience of the working of the education of the country as administered by the Department, explained that as Lord President of the Council he never by any chance consulted the Committee of Council upon any question of administration. He considered that absolute responsibility rested with the President of the Department, and that if faults were committed, either by himself or by any of his subordinates in any grade in the office, he was the person responsible to Parliament to the greatest extent. His Lordship further explained that a very large proportion of the business was transacted by the Vice-President. Among the witnesses examined there was a difference of opinion as to the importance of the position of the Vice-President, but all were agreed that the Committee of the Privy Council, who along with the President and the Vice-President constituted the Department, were merely consulted in connection with matters of policy. At that time the Committee of the

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Council on Education were usually (with the exception of the Vice-President) members of the Cabinet. The Scotch Committee has always been differently composed, but the duties discharged have been similar and the method of discharging those duties the same. In his work on Parliamentary Government in England (2nd ed., p. 692), Mr Todd, after referring to the constitution of the Scotch Education Department of the Privy Council, says—‘The Lord President and (Secretary for Scotland) Vice-President of the Education Committee also act as principal members of the Scotch Education Department. It is not ordinarily considered to be necessary or in accordance with usage to assemble together the other members of the Scotch Board, but they are consulted on details with which they are specially conversant, and upon questions of general policy touching education in Scotland.’

To sustain the pursuers' contention would amount practically to a condemnation of the working of the Scotch Education Department since its institution in 1872, and also of the working of the English Education Department and other Government Departments. The pursuers did not say what procedure, whether by way of meeting or minute circulating among the members of the Department, ought to have been followed in order to afford evidence that the appeal by Miss Marshall had been considered by the members of the Department. I think that if it had been the intention of the Legislature that the distinguished members of the Privy Council who compose the Scotch Education Department should not merely act as a consultative body advising as to questions of educational policy in Scotland, but should apply their minds to questions of detail whether of an administrative or judicial character, some provision upon the matter of procedure would have been made. In the absence of such express provision I think that in construing section 21 of the Act of 1908 the appeal given to the Department must be interpreted under reference to existing constitutional practice and recognised convention. I hold that the decision of the Secretary for Scotland as Vice-President of the Department is the decision of the Department, and that this part of the pursuers' case fails.

The pursuers also maintain that the action of the Department was ultra vires, as Miss Marshall had entered into a contract of service with them under the following condition—‘One month's notice to be given by either party desirous of terminating the engagement.’ Their contention is that section 21 of the 1908 Act was only intended to cover cases where teachers have no express contract providing for the termination of their contract, and that the Department have no power to vary the express terms of a contract. I do not think that this argument is well founded. The right of appeal to the Department is given in all cases where a school board has passed a resolution for the dismissal of a teacher, and the right of the Department to attach to the resolution a condition entitling the teacher to a sum not exceeding a year's salary applies to all appeals. The presence of a clause as to notice to be given on either side in the actual contract entered into between a board and a teacher does not appear to me to be material. In the absence of any clause as to notice, the teacher, as has been decided in the case of Morrison, 1876, 3 R. 945, 13 S.L.R. 611, is entitled, like all other persons who hold their situations at the pleasure of their employers, to due notice of their dismissal, or such compensation as is reasonable in lieu thereof. The right given to the Department under the Act of 1908 appears to me to be independent of the terms express or implied in the contract, and in the interests of teachers to allow of a limited interference with freedom of contract. I propose to repel the pleas-in-law for the pursuers, and to assoilzie the defenders from the conclusions of the action.”

The pursuers reclaimed, and argued—The decisions here were not the decisions of the Scotch Education Department, but of the Secretary of the Department. The Department's powers were different, and the pursuers were not bound to accept the acts of one member of the Department as being the acts of the Department. That this distinction was recognised by the Legislature was clear from the statutes—the Education (Scotland) Act 1872 (35 and 36 Vict. cap. 62): Parochial and Burgh Schoolmasters (Scotland) Act 1861 (24 and 25 Vict. cap. 107), sec. 13; the Education (Scotland) Act 1908 (8 Edw. VII, cap. 63), sec. 21. In particular, the Secretary for Scotland Act 1885 (48 and 49 Vict. cap. 61), secs. 5, 6, and 7, showed the distinction, for it specifically transferred to the Secretary for Scotland various powers which on the defenders' argument he could have exercised as Vice-President of the Education Department. Assuming, then, that the Department was not the same as the Vice-President or the Secretary, the question arose whether the Department could delegate their powers. There was no authority for delegation in the statutes. In all other boards where the president or other member exercised the powers of the board there was express power of delegation in the Act constituting it—Local Government Board Act 1871 (34 and 35 Vict. cap. 70), secs. 3 and 4; the Local Government (Scotland) Act 1894 (57 and 58 Vict. cap. 58), secs. 4 and 5; Contagious Diseases Animals Act 1867 (30 and 31 Vict. cap. 125), sec. 4; Small Landholders (Scotland) Act 1911 (1 and 2 Geo. V, cap. 49), sec. 4; English Education Act 1899 (62 and 63 Vict. cap. 33), secs. 1 (2) 4 and 7 (4); Town Councils (Scotland) Act 1900 (63 and 64 Vict. cap. 49), sec. 71. The rules of common law were equally adverse to the powers of delegation here claimed— Thomson v. Dundee Police, December 8, 1887, 15 R. 164, 25 S.L.R. 137; Cook v. Ward, (1877) 2 C.P.D. 255; Freen v. Beveridge, June 28, 1832, 10 S. 727; M'Laren on Wills and Succession (3rd ed.), vol. ii, p. 904; Warwick's Law of Municipal Elections, p. 238; Rice v. Board of Education, [1910] 2 KB 165, and [1911] AC 179, per Lord Loreburn, p. 183; Lord Advocate v. School Board of Stow, February 19,

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1876, 3 R. 409, 13 S.L.R. 305; Duncan v. Crighton, March 10, 1892, 19 R. 594, 29 S.L.R. 448; Somerville v. Assembly Rooms, July 7, 1899, 1 F. 1091, 36 S.L.R. 866; Rex v. Local Government Board, [1914] 1 KB 160, per Vaughan Williams, L.J., at 173, and Hamilton, L.J., at 191; Bowles v. Bank of England, [1913] 1 Ch 57; Leach v. Money, 1765, 19 St. Tr. 1002; Enlick v. Carrington, 1765, 19 St Tr 1030. It was suggested that it was inexpedient that a Department composed of such prominent persons should have to meet over so unimportant a question, but the Crown was entitled to appoint men who had time to consider an appeal like this. The practice of the Department could not be held to alter the powers given by statute.

Argued for the defenders—The Scotch Education Department was a Committee of the Privy Council—Craik on the State in Relation to Education (1914 ed.) p. 178; Interpretation Act 1889 (52 and 53 Vict. cap. 63), sec. 12 (7). Accordingly the Department were simply bound by the conventions binding on the Privy Council, and if one member acted then that member was the Department. The signature of the Secretary made it the act of the Department within the meaning of section 65 of the Education Act 1872 ( cit.). Even if the pursuers' averments were relevant, they were displaced if the Court hold as true the defenders' averments in stat. 2. This the Court was bound to do without further proof— Poll v. Lord Advocate, November 5, 1897, 1 F. 823, 35 S.L.R. 637 (O.H.); Buron v. Denman, 1848, 2 Ex. (W., H., & G.) 167; Documentary Evidence Act 1868 (31 and 32 Vict. cap. 37), secs. 2 and 5. The practice here adopted was warranted by the statutes, and was the only natural and practicable way of conducting the business of the Department. In any event, there was nothing so illegal in the practice of the Department as to entitle the pursuers to go to the law Courts. The Department was only responsible to Parliament.

At advising—