Scottish Court of Session Decisions

Robert Thomas Norfor, C.A., Edinburgh, as secretary and treasurer of the Representative Church Council of the Episcopal Church in Scotland, and others, pursuers, brought an action against the Education Authority for the county of Aberdeen, defenders, for declarator (1) that St John's Episcopal School, New Pitsligo, was at the date of the passing of “the Education (Scotland) Act 1918 (8 and 9 Geo. V, cap. 48) on 21st November 1918 a voluntary school within the meaning of “the Education (Scotland) Act 1897” (60–61 Vict. cap. 62); (2) that the said school was transferred as and from 15th May 1919 to the defenders as the Education Authority for the county of Aberdeen, in terms of the said Education (Scotland) Act 1918, by the trustees for behoof of the congregation of St John's Church, New Pitsligo …; (3) that at the date of the said transference the said school was a primary school providing a full primary school course of instruction together with a further supplementary course; and (4) that the defenders as Education Authority foresaid and as such now vested in the property, control, and management of the said school in virtue of the said transference and of the provisions of the said Education (Scotland) Act 1918, are bound in terms of the said Act to hold, maintain, and manage the said school for the space of ten years at least, from and after the said 15th May 1919 as a primary public school providing a full primary and supplementary course of instruction, subject to the provisions of the said Education (Scotland) Act 1918, and to the defenders' curriculum for the time being applicable to courses of primary instruction in schools under their charge; “ ( Scotland) Act 1918.” [The words in italics were subsequently added by way of amendment]; and further, the defenders ought and should by decree foresaid be interdicted, prohibited, and discharged from holding, maintaining, and managing the said school at any time within the space of ten years from and after the said 15th May 1919 as a school for infants and junior pupils only, or otherwise than as a school providing a full primary course of instruction, subject to the provisions of the said Act according to the defenders' curriculum for the time being applicable to schools under their charge, and from transferring, within the said space of ten years, pupils attending the said school at any stage of their primary or supplementary course to the Public School, New Pitsligo, or to any other school under the charge of the defenders.

The pursuers pleaded, inter alia—“1. The said school having been transferred to the defenders in terms of the Education (Scotland) Act 1918, the defenders are bound to hold, maintain, and manage the same for the space of at least ten years from and after the date of the transference as a public school of the same character and status as at the date of the transference, and decree should accordingly be pronounced in terms of the declaratory conclusions of the summons.”

The defenders pleaded, inter alia—“3. The question raised by the pursuers being a question as to the due fulfilment or observance of a provision of sub-section (3) of section 18 of the Education (Scotland) Act 1918, the same falls to be decided finally by the Scottish Education Department, and the action is therefore incompetent and ought to be dismissed. 5. The arrangements made by the defenders for the management of St John's School not being in contravention of the provisions of the Education (Scotland) Act 1918, the action is without foundation and the defenders are entitled to be assoilzied from the conclusions of the summons.”

On 9th January 1923 the Lord Ordinary ( Constable) pronounced an interlocutor in which he sustained the third plea-in-law for the defenders and dismissed the action.

The Lord Ordinary's opinion will be found in the previous report.

The pursuers reclaimed, and on 13th July 1923 the Court ( diss, the Lord Justice-Clerk) recalled the interlocutor reclaimed against, repelled the third plea-in-law for the defenders, and remitted to the Lord Ordinary to proceed ( vide previous report ut supra).

The amendment to the summons shown in italics supra was allowed on 23rd October 1923.

On 9th November 1923 the Lord Ordinary pronounced an interlocutor in which he sustained the fifth plea-in-law for the defenders and assoilzied them from the conclusions of the summons.

Opinion.—“The circumstances of this case and the questions raised by the parties were fully narrated in the note to my interlocutor of 9th January 1923, to which I refer. That interlocutor having been recalled I must now determine the merits of the question at issue between the parties in so far as that question depends upon the construction of the statutory obligation imposed upon the defenders as transferees of St John's School. On the assumption that the construction was in favour of the pursuers it might still be necessary, according to the views expressed by their Lord-ships in the Second Division, to refer to the Education Department the further question whether the obligation had been reasonably fulfilled. In the fourth declaratory conclusion of the summons as originally framed the pursuers expressed the measure of the defenders' obligation in terms so definite that no further reference would probably be necessary. But in case the Court might take a more limited though favourable view of the pursuers' rights they added at my suggestion an alternative declarator expressed in more general terms. I have now to consider whether the provisions of section 18 (3) of the Education (Scotland) Act 1918 will warrant either of these conclusions.

It will be convenient in the first place to narrate the material provisions of section 18. Sub-section (1) provides that at any time after the first election of education authorities under the Act it shall be lawful for the vested owners and trustees of any voluntary school to transfer it by sale, lease, or otherwise to the education authority, who shall be bound to accept the transfer on such terms as to price, rent, or other considerations as may be agreed on, or as failing agreement may be determined by arbitration. Sub-section (3) provides that ‘Any school so transferred shall be held, maintained, and managed as a public school by the education authority, who shall be entitled to receive grants therefor as a public school, and shall have in respect thereto the sole power of regulating the curriculum and of appointing teachers.’ To this provision are adjected three express conditions, viz., ( a) that the existing staff of teachers shall be taken over, ( b) that the religious belief and character of all teachers appointed to the staff shall be approved by representatives of the Church or denominational body in whose interest the school has hitherto been conducted, and ( c) that facilities shall be provided for religious instruction in the school by a supervisor to be approved as aforesaid. Sub-section (9) provides that if at any time after the expiry of ten years from the transfer of a school the education authority are of opinion that the school is no longer required, or that the special conditions prescribed in sub-section (3) ought no longer to apply thereto, it shall be lawful for the authority with the approval of the Department ‘thereafter to discontinue the school, or as the case may be, to hold, maintain, and manage the same in all respects as a public school not subject to those conditions.’ A proviso is added that in either of these events the education authority shall make to the trustees by whom the school was transferred such compensation

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(if any) in respect of the school or other property so transferred as may be agreed, or as failing agreement may be determined by arbitration.

I was favoured with a very careful argument from both sides of the bar. Shortly stated, the pursuers contention is that the main provision of sub-section (3)—‘ Any school so transferred shall be held, maintained, and managed as a public school by the education authority’—refers to the transferred school as an educational institution, and implies that such institution must be preserved in its existing condition, or at anyrate that its essential features—its character and status as determined by the scope of the instruction provided—must be preserved, subject only to the qualification that it is open to the public. The defenders' contention is that their only obligation is to maintain in the transferred building apublic school within the meaning of the Education Acts, and to comply with the three special conditions expressly adjected to the main provision of the sub-section. The interest which each of the parties have to maintain their respective contentions is obvious. The value of the right to give religious instruction reserved to the transferors materially depends upon the type of school in which it is to be given. On the other hand the utility of the transferred school to the transferees may materially depend upon their right to alter the classes and scope of instruction therein so as to co-ordinate the system of education in the district. But neither of these considerations is, I apprehend, relevant to the construction of the statute.

The broad features of the scheme of transfer are sufficiently clear:—1. It is an out-and-out transfer of the property and management of the school with no reversionary rights in the transferors, though the final payment of the compensation to be made by the transferees may be postponed till the cessation of certain limited interests reserved to the transferors. 2. The school must be maintained (in some sense of the term) by the transferees for at least ten years, during which time the transferors are entitled to enforce certain conditions. 3. At the expiry of ten years if the Education Authority and the Department agree the school may either be altogether discontinued or may continue to be maintained free of the conditions in favour of the transferors.

Two points of verbal criticism of the language used in sub-section (3) were a good deal pressed in argument, but neither of them seems to afford very much help in the construction of the provision. One was whether the term ‘school’ is used in the limited sense of a physical structure or in the broader sense of an educational institution. On this question the context throws little light, because I think it is obvious that the term is sometimes used in the one sense and sometimes in the other. Thus in sub-section (1)—the transfer provision—the term is obviously used to mean the physical structure, whereas in sub-section (2) it is obviously used to mean the educational institution. The other point was the meaning of the word ‘maintain.’ It was argued for the pursuers that the primary meaning of the term is ‘to keep up,’ ‘to preserve in its existing condition’, and on the assumption that the term applied to an educational institution it is necessarily implied that the character of that institution must be preserved. If the sole statutory direction was to hold, maintain, and manage the transferred school I think the argument would be formidable. The objection to it is that it does not take into consideration the language of the sub-section as a whole. The full provision is that the school is to be maintained and managed as a public school, and that the Education Authority is to have the sole power of regulating the curriculum and of appointing teachers subject to three carefully expressed conditions to safeguard the interests of the existing teachers and the interests of the transferring body in religious education. The question is whether the additional words ‘as a public school’ do not necessarily define the measure of the transferees’ obligation. If they do, there can be no question as to the transferees’ power to alter the system of education. ‘Public school’ means ‘any school under the management of the school board,’ now the education authority—Education (Scotland) Act 1872, sec. 1. Now in my opinion the presumption is that the words ‘as a public school’ are inserted in sub-section (3) for the purpose of defining the transferees’ obligation; and I think the natural implication that the words are used for that purpose, and not merely for the purpose of imposing an additional obligation, is confirmed in the first place by the express power to regulate the curriculum and to appoint teachers conferred upon the transferees, and in the second place by the provisions expressly securing the transferors’ interests in religious education. Regulation of the curriculum may no doubt be used to describe variation in the scheme of work prescribed for children of a certain age or for those taking a certain course, and, as counsel for the pursuers pointed out, ‘curriculum’ is sometimes applied in the circulars and instructions of the Education Department to such a scheme of work. But prima facie I think that power to regulate the curriculum in a school includes power to regulate the scope as well as the details of instruction given therein. With regard to the provisos, I think the presumption is that these defined the measure of the transferors’ reserved rights. If it was intended that the transferors should possess the reserved right to insist upon the maintenance of the full system of secular education in force at the date of transfer, it is incomprehensible why this should have been omitted from the carefully expressed conditions in their favour and left to mere implication. The structure of sub-section (3) strongly supports the argument of the defenders that the main provision of the sub-section was truly in the public interest, and can only be founded on by the transferors to the effect of insisting that a public school shall be maintained in which their

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expressly reserved rights shall be operative.

I think that this view is strongly confirmed by the provisions of sub-section (9). The alternatives there presented to carrying on the school subject to the transferors' rights after the lapse of ten years are either ( a) to discontinue the school or ( b) ‘to hold, maintain, and manage the same in all respects as a public school not subject to those conditions.’ The words ‘hold, maintain, and manage as a public school’ are identical with those used in sub-section (3). If as used in sub-section (3) they impose an obligation to maintain the same system of education as prevailed at the date of transfer, they must impose the same obligation in sub-section (9). But this would be absurd, because in the latter case the school is to be maintained free of all conditions in favour of the transferors. And if the transferors' interest has ceased, why should the hands of the Education Authority be tied for all time in administering the school in the public interest? Counsel for the pursuers endeavoured to get over this difficulty by suggesting that if the Education Authority desired after the lapse of ten years with the approval of the Department to continue the school on a different basis, they might secure their object by first availing themselves of the special statutory power to discontinue the school, and then using their general powers under the Education Acts to start it again as a public school of a different kind. The suggestion ingeniously gets over the difficulty resulting from the pursuers' construction of sub-section 9, but it does not help to make that construction any more reasonable.

The provisions for the transfer of voluntary schools which were made in previous statutes, though they differ in some material respects from the present clause, are also worth considering. Section 38 of the Education Act of 1872 provides that it shall be lawful for the vested owners and trustees of any such school to transfer it to the School Board and for the School Board to accept the transference ‘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.’ The section concludes with a provision that 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 the Act by the School Board may be made a condition of the transfer. The effect of a transfer under this section was considered in School Board of Glasgow v. Kirk Session of Anderston (1910 S.C. 195). A Kirk Session in Glasgow as trustees of a voluntary school transferred it to the School Board in 1874 under a deed which reserved a limited right of user to the transferors. In 1907 the School Board having provided other accommodation for the children closed the school and resolved to use the buildings for a day industrial school and a school for defective children of the Roman Catholic faith. In a special case between the successors of the Kirk Session and the School Board it was held that the actings of the Board were within their powers, that a transferred school was in the same position as any other public school under the Act subject only to the transferors' reserved right of user. The obligation to maintain a school imposed by that section does not accordingly imply that the school is to be maintained in its existing condition.

The other prior transfer provision is section 29 of the Education Act of 1908. It provides that the governing body of any intermediate or secondary endowed school may, with a view to the maintenance of such school as an intermediate or secondary school, resolve to transfer the management thereof together with the buildings and endowments to the School Board, who ‘shall have power to receive the same, to manage the school as an intermediate or secondary school,' and to make up any deficiency in the school income. In this case the preservation of the character and status of the school was expressly provided for in the statute.

Counsel for the pursuers founded specially upon two decisions by the English Courts on the meaning of certain provisions in the English Education Act of 1902 (2 Edw. VII, cap. 42), viz., Attorney-General v. West Riding of Yorkshire County Council (1907 AC 29), and Wilford v. West Riding of Yorkshire County Council (1908, 1 K.B. 685). In the first of these cases the question was whether the Local Education Authority was bound to pay for denominational religious instruction given during school hours in a non-providea school. The scheme of the Education Act of 1902 was to entrust the management of schools, which had not been provided by the Local Education Authority, to a body of six managers, of whom four represented the trustees who had provided the school, and two were appointed by the Local Education Authority (sections 6 and 11), while the burden of maintenance, except the maintenance of the school-house, was imposed upon the Local Education Authority. The Local Education Authority were entitled to give directions as to secular education, but religious instruction was left in the hands of the managers (section 7 (1) ( a) ( b)). Section 7 (1) provided that ‘the Local Education Authority shall maintain and keep efficient all public elementary schools within their area.’ Construing these words the House of Lords held that the Local Education Authority are bound to pay what is reasonable for religious instruction because, in the words of the Lord Chancellor, ‘in order to maintain a school in which the law allows the managers to make religious instruction a part of the curriculum, the Local Education Authority must take the school as it is and bear the cost of the whole.’ The decision appears to me to have no bearing on the present case. The right of management entailing certain expenditure was conferred upon another body, and the Education Authority had to pay the cost of maintenance resulting from such management.

At first sight the other case of Wilford

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seems to come nearer the present. The Local Education Authority issued a direction under section 7 (1) ( a) of the Act to the managers of a non-provided school, which had hitherto afforded a full course of instruction in all standards from 1 to 7, that after a certain date no secular instruction was to be given in the school except to children in standards 1 to 3. The managers thereupon applied for an injunction to restrain the Education Authority from interfering with them in the exercise of their rights and duties as managers of the school, and Channel, J., granted a declaration that the directions were ultra vires being in breach of the defendants' obligation to maintain the school, and an injunction restraining the defendants from taking any steps to enforce it. Counsel for the defenders argued that the learned Judge was mistaken in saying (p. 697) that the matter before him was covered by the previous decision in the House of Lords. I do not propose to go into that question, because in any case I think, if I may respectfully say so, that the decision of Channel, J., was sound. The power claimed by the Education Authority to alter the character of the school by giving directions as to the secular instruction to be given therein were equally inconsistent with the power of management statutorily conferred on the plaintiffs, and with the obligation of maintenance statutorily imposed on the defendants themselves. But the circumstances and the statutory provisions were materially different from those involved in the present case. There was no transfer either of property or management, and the obligation of maintenance was unqualified. The essential feature of the present case is that the obligation of maintenance imposed on the Authority, to whom both property and management have been transferred, is qualified.

On a sound construction of section 18 of the Statute of 1918 I am unable, for the reasons above stated, to hold that it warrants the pursuers' case. I shall therefore sustain the fifth plea-in-law for the defenders, and grant decree of absolvitor.”

The pursuers reclaimed, and argued—The three conditions adjected to section 18, sub-section 3, of the Education (Scotland) Act 1918, fell to be observed during the interregnum of ten years. The defenders had been guilty of a breach of the second and third of these conditions. The pursuers were legally entitled to have the school carried on during that period as before the transfer thereof. The true meaning of the word “maintain” was the preservation or up-holding of the status quo. The defenders were bound by the Act to maintain the school as a public school and to take over the staff existing at the date of transfer. The word “school” meant not only the building but also the educational institution. The terms of the Act prohibited the defenders from altering the status and character of the school during the interregnum. By section 18 (3) of the Act it was provided that religious instruction was to be given in the particular school, whereas the defenders had transferred the upper classes of the original school to a school where no such instruction was given. It was reasonable that the pursuers should desire the trial of ten years to test the right of the school to continue and justify its existence in the new scheme of things. Only the course of study, which was experimental, could be changed. Otherwise the school ought to be continued in its existing condition— Wilford v. West Riding of Yorkshire County Council, 1908, 1 K.B. 685; Attorney—General v. West Riding of Yorkshire County Council, 1907 AC 29. Counsel also referred to Education (Scotland) Act 1872 (35 and 36 Vict. cap. 62), section 38; the Act of 1908 (8 Edw. VII, cap. 63), section 29; School Board of Glasgow v. Kirk Session of Anderston, 1910 S.C. 195, 47 S.L.R. 278.

Argued for the respondents—The term “maintain” was quite familiar in earlier Acts, e.g., in the Education Act of 1872, section 36. It applied only to the cost of upkeep of the present school, and did not prevent the education authority from transferring certain classes in its discretion to other schools. There was nothing in the Act to prevent this purely administrative act. The education authority was in a position to determine the kind of school. The cases cited were distinguishable. The transfer of the school having taken place, the education authority did not require to carry it on as it had been prior to the transfer— Board of Glasgow v. Kirk Session of Anderston ( cit.).

At advising—