Scottish Court of Session Decisions

The Education Authority of the City of Glasgow, as the governing body administering an educational trust known as the “Gilchrist Bequest,” presented, with the consent of the Scottish Education Department, a petition for alteration of the scheme of administration of the bequest, which had been framed under and in terms of the Educational Endowments (Scotland) Act 1882 (45 and 46 Vict. cap. 59), and approved by the Court on 21st December 1912.

The petitioners averred—“The provision of the said scheme as to the beneficial enjoyment of said bequest is as follows:—‘The governing body, after paying the expenses of management and the burdens and taxes affecting the endowment, shall apply the free income of the endowment in establishing bursaries to be called the Gilchrist bursaries and to be tenable at intermediate or secondary schools. These bursaries shall be awarded among pupils attending public or State-aided schools in the district which was formerly the district of the School Board of Maryhill, and whose parents or guardians are in such circumstances as to require aid for giving them higher education.’ During the period since the said scheme was approved the demand for the said bursaries from pupils qualified by residence has greatly diminished, so much so that already on two occasions, by reason of there being no qualified applicants, the School Board have added balances of income to the capital as provided in article 4 of said scheme, and the capital, which amounted in 1912 to £2050, now amounts to £2378, 11s. 2d. By reason of the provisions of section 4 of the Education (Scotland) Act 1918 the claims for the present bursaries are likely to become still less and the utility of the present scheme still further diminished. The said School Board of Glasgow on 6th May 1919 adopted the following resolution of one of its committees, viz.—‘Committee recommended that the new Education Authority make application to the Court in order that section 8 of the present scheme … be amended to read—The governing body, after paying the expenses of management and the burdens and taxes affecting the endowment, shall apply the free income of the endowment in establishing bursaries to be called the Gilchrist Bursaries, and to be tenable at any Scottish university or at the day classes of any central institution, as the term central institution is defined by the Education (Scotland) Act 1908. The bursaries shall be awarded by competitive examination among pupils attending public or Stateaided schools in the district which was formerly the district of the School Board of Maryhill, and whose parents or guardians are resident and have been resident for not less than five years in the district.’ The existing scheme provides—‘It shall be in the power of the Court of Session to alter the provisions of this scheme upon application made to them, with consent of the Scottish Education Department, by the governing body or any party interested, provided that such alteration shall not be contrary to anything contained in the Educational Endowments (Scotland) Act 1882.’ The petitioners have submitted the proposed alteration of the existing scheme to the Scottish Education Department, and the Department have consented to the present application being made.” They therefore craved the Court to alter the scheme in terms of the above resolution.

On 7th April 1921 Mr J. H. Millar, Advocate, to whom the Court remitted to consider the proposed alteration, reported, inter alia, as follows:—“The salient feature of the proposed alteration is not so much the extension of the class of institution at which the Gilchrist bursaries may be held, which appears to be unobjectionable, as the omission of what is generally called brevitatis causd the poverty test. The petitioners, in other words, desire to make a bursary a species of prize or reward of pure merit irrespective of the circumstances of the winner. Such a proposal at first sight seems to come into conflict with section 15 of the Educational Endowments (Scotland) Act 1882, which, inter alia, provides that ‘where the founder of any educational endowment has expressly provided for the education of children belonging to the poorer classes … or otherwise for their benefit, such endowment for such education or otherwise for their benefit shall continue so far as requisite to be applied for the benefit of such children.’ The difficulty thus raised, however, appears to be met by the circumstance that an implicit poverty test is contained in sub-sections (1) and (3) of section 4 of the Education (Scotland) Act 1918, which authorise an education authority to grant assistance to any child or young person in their area who is qualified for attendance at an intermediate or secondary school. It humbly appears to the reporter that this enactment supersedes the necessity of continuing the poverty test in the case of this endowment, and he would accordingly recommend your Lordships to sanction the proposed alteration of the scheme subject to the following adjustments:—The words ‘or otherwise’ should be inserted after the words ‘competitive examination,’ so that the petitioners may not be tied down to a single method of ascertaining merit. The residential qualification contained in the last words of the proposed alteration might be dispensed with, more especially as it appears neither in the bursary clause (section 11) of the original scheme, nor in section 8 of the scheme as altered by your Lordships. The founder's predilection for the district of the School Board of Maryhill seems to be sufficiently secured by restricting the award of bursaries to pupils attending public or Stateaided schools in that district.”

Argued for the petitioners—Under the present scheme the usefulness of the bequest

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had ceased, as the funds could only be applied for purposes which were now provided for out of the rates. This was contrary to the policy generally followed in administering such bequests— Kirk Session of Prestonpans v. School Board of Prestonpans, 1891, 19 R. 193, 29 S.L.R. 168; Governors of Anderson Trust, 1896, 23 R. 593, 33 S.L.R. 430. The proposed alteration would enable the funds to be applied to purposes for which no provision was made out of the rates.

The Court, without delivering opinions, modified the existing scheme so as to read as follows:—“The governing body, after paying the expenses of management and the burdens and taxes affecting the endowment, shall apply the free income of the endowment in establishing bursaries to be called the Gilchrist bursaries, and to be tenable at any secondary school or any Scottish university or at the day classes of any central institution as the term central institution is defined by the Education (Scotland) Act 1908. These bursaries shall be awarded by competitive examination or otherwise among pupils (1) attending public or state-aided schools in the district which was formerly the district of the School Board of Maryhill, (2) who or whose parents or guardians are resident and have been resident for not less than five years in the district, and (3) who or whose parents or guardians are in such circumstances as to require aid for giving them higher education.”