Scottish Court of Session Decisions

On 23 June 1998 the respondents agreed that statutory consultations should be undertaken on the possible combining of Lews Castle School and the Nicholson Institute, Stornoway, with effect from the start of the school session in August 1999. This was described before me, no doubt loosely and in non-technical terms, as the combining of an educational institution with a vocational one. It is apparent from the documents placed before me that, as frequently is the case with the proposed combining of schools, feelings run high in the communities in which they are located. The respondents, in light of their decision, were bound to consult prescribed persons in terms of section 22A of the Education (Scotland) Act 1980. Regulations 3 and 4 and Schedule 1 of the Education (Publication and Consultation Etc) (Scotland) Regulations 1981 (as amended) provide that for such a proposal four classes of persons require to the consulted. Amongst these classes is "the school board responsible for any school affected by the proposal." The petitioner is the parent of a child who is currently at a local primary school but is due to attend the Nicholson Institute on or before August 2000 for her secondary education. He was consulted by the respondents as a parent of a child who would be expected to be in attendance at the school to be discontinued within two years from the date of the proposal.

The respondents carried out the consultation process between about 23 June 1998 and 21 September 1998. On 29 September 1998 the respondents' Education Committee decided by a majority to recommend that the two schools should be combined. At the respondents' meeting on 20 October 1998, the Minute of the Education Committee dated 29 September 1998 was noted or approved, depending upon whether the functions of the Committee were delegated or referred. It is the respondents' decision of 20 October 1998 which is brought under judicial review in this petition. If there was in existence in the period between 23 June 1998 and 21 September 1998 a school board for the Nicholson Institute, the question is whether it was consulted as part of the consultation process. I was informed by counsel for the petitioner that the respondents had considered that the school board for the Nicholson Institute which had met on 28 May 1998, had thereafter become dis-established. This view is apparent from Answer 3 in the respondents' Answers where there is a reference to the possibility of re-establishing the board. However, it was conceded before me by counsel for the respondents that the school board in the relevant period was in existence. It was also accepted that the board as such had not been consulted. That, of course, is consistent with the respondents' erroneous view that the board was then dis-established.

There were at least two members of the board at the material time. A quorum for the board at that time then was three. The two members were Alastair Dunlop and Rodney Mackenzie, and they were both staff members. Mr Mackenzie is assistant rector at the Nicholson Institute. He responded to the respondents' consultation document as an individual. Mr Dunlop did not respond to the consultation exercise although he received the document as a member of staff and also as a parent. Mr Thomson, who appeared for the respondents, argued that there had been substantial compliance with the statutory provisions by the fact that these two members of the board had, as individuals, been consulted. I will turn to deal with this submission later in my Opinion.

Much time was taken up at the hearing before me over the question whether the school board was quorate at the relevant time when the consultation process was being conducted. In considering that question I have to go back to 24 April 1996 and the minute of that date which is described as the "Minute of Inaugural Meeting of the Nicholson Institute School Board." In terms of that minute it was agreed that the board, being entitled to co-opt three individuals, should co-opt two named persons and also a senior pupil of the school nominated by the Rector, Mr D J Macdonald. As I read the various affidavits, a senior pupil of the school was "on the Board" and attended its meetings in the years 1996/7 and 1997/8. The pupil identified in the latter year is Mairi Morrison Finlayson, now a medical student at Aberdeen University. The chairman of the school board until 28 May, Mr Andrew Mackenzie, says in his affidavit that in May 1998 the school board was "composed of 6 parent members, 2 staff members, 2 co-opted members and a representative of the senior pupils", namely Miss Finlayson. He also says that there was a pupil representative "on the school board". The clerk to the Committee, Ms Lorna McAulay, in her affidavit to the respondents, says that Mairi Finlayson was "a pupil representative on the school board who attended our meetings but I cannot member any formal co-option with her." A pro-forma school board membership produced by the respondents at the hearing discloses a "pupil member" amongst the membership.

In terms of section 2 of the School Boards (Scotland) Act 1988 (as amended by the Education (Scotland) Act 1996 Schedule 4 paragraph 2) there are only three categories of school board members - parent members, staff members and co-opted members. There is no defined category of membership for a pupil representative. Any such pupil member "on the board" had to fall within the category of a co-opted member. Mr Thomson for the respondents submitted that the pupil representative might have attended in terms of section 6(11) of the 1988 Act, namely as someone invited to attend any of the board meetings whose presence the board considered to be desireable for the purpose of giving advice to the board regarding or representing persons interested in the matters under discussion. No-one suggests that it was on that basis that the pupil representative attended the meetings and, frankly, this struck me as something of a submission of despair. It is obvious to me that the intention of the board was to co-opt the pupil representative. If there is no record of that in any extant minutes - most of the minutes appear to have been lost - that does not affect the quorum on the board. Section 6(6) of the 1988 Act (as amended) provides as follows:

If there was a defect in co-option of the pupil member, that does not invalidate any proceedings of the board on the ground that it was not quourate.

Even on the basis of the respondents' affidavit evidence and the inaugural minute of the board, I would have been prepared to hold that "the pupil representative" was a co-opted member of the board. But the matter is put beyond doubt by the affidavits of Mairi Finlayson, Mr Macdonald (the Rector) and Mr Mackenzie (the Assistant Rector). According to Mr Mackenzie, between 9 July 1998 (when he says that the consultation process formally started) and 22 September 1998, there were five members of the school board, including himself - two staff members, two co-opted members (one of whom was Mairi Finlayson) and one parent member. He is able to assert that Mr Afrin and Mr Macrae had not resigned office by giving notice in writing to the clerk to the board or the education authority in terms of section 3 of the School Boards (Scotland) Act 1988, as amended. The Rector, in a second supplementary affidavit, confirms that for the school year 1997/98 Mairi Finlayson was identified and invited by the Assistant Rector to be a co-opted member of the board and that he was present at meetings of the school board which she attended. Finally, Mairi Finlayson herself depones in her affidavit that she was co-opted by the school board in September 1997. Mr Thomson invited me to raise a cynical eyebrow at the whole terms of paragraph 2 of her affidavit: but, even if I were inclined to do so, the thrust of what she says about her membership of the board is consistent with information and statements from other sources. It is clear to me from all these sources that at the material time the school board was not only in existence but was also quorate. Further, Mairi Finlayson was never consulted as a member of the board. She could not be consulted in any other capacity. Mr Thomson accepted that if at that time Mairi Finlayson was a member of the board, he was "in difficulties". He was somewhat reluctant to reveal what these difficulties were, but I have to infer from his concession that the respondents would fail because it could not be said that they had consulted the school board which was in existence at the time and quorate.

For the avoidance of doubt I should say that in my opinion the statutory duty to consult the relevant school board means just that. It means the board itself, not the individual members of it. To consult members of it in other capacities, such as parent or staff members, is not to consult the board. And so, in my opinion, there was no compliance by the respondents with their statutory duty by consulting Mr Dunlop as a parent and teacher and Mr Mackenzie as a teacher. In this case the respondents failed to consult the school board because they believed wrongly that it was dis-established. As Lord Macfadyen said in Regan v City of Dundee Council 1997 SLT 139 at p. 143:

If a board is consulted, it would be expected to convene and, after discussion amongst its members, to present its collective response. The views of individual members cannot be substituted for that.

A further argument was presented by Mr Wright who appeared for the petitioner that, in light of the resignations from the board in May 1998, some of which were not formally carried through as I have already mentioned, the respondents had a statutory duty to hold by-elections between 1 September 1998 and 30 September 1998 in terms of section 2A(5)(b) and (10) of the School Boards (Scotland) Act 1988 as amended. So, the respondents could have provided a quorum for the board within the relevant period. In fact, they failed altogether to hold by-elections within the regular election period. Mr Wright assured me that he was not saying that the respondents withheld by-elections in order to avoid consulting the board. This seems to me to be correct. It is obvious that the respondents did not fulfil their statutory duty with regard to by-elections because they misapprehended that the school board was dis-established. Nothing in my view therefore turns on this subsidiary argument.

The second ground of attack advanced by the petitioner is to be found at the foot of page 3 of the petition and also in Article 5. Regulation 41 of the respondents' Financial Regulations provides:

The report by Mr Galbraith, the Director of Education and of Leisure Services, dated 29 September 1998 said simply in paragraph 1.1:

He also went on to say in paragraph 6.1 under the heading of "Finance":

On first reading one would not think that the Director of Education's report conformed to the wording of the regulation. But the affidavits of Mr Galbraith and Mr Bennie, the Director of Finance, make it clear that what was used in the report was an approved formula which is well understood within the respondents' administrative corridors of power and meant that the proposal was within the budgetary provision for that year. On the present information available I am not prepared to uphold this ground. In any event, I have serious reservation about the petitioner's interest to advance this ground, and without legal argument on the subject, I would not have been prepared to uphold this ground. The fact is that I received no such legal argument at all.

I hold that the respondents failed in their statutory obligation to consult the school board for the Nicholson Institute in the relevant period. For that reason alone the decision of the respondents' on 20 October 1998 to combine the two schools was flawed, is unlawful and falls to be reduced. I will therefore uphold the petitioner's first plea-in-law to the extent of granting decree of reduction of the decision. I am not concerned with any interim remedies. I should add that I have reached this decision without hesitation and being conscious that the new school session begins on 16 August 1999. It is however unfortunate that the hearing of the Petition and Answers came before the Court so late in the day and in fact on the last day of the Court term.