Scottish Court of Session Decisions

[1] The pursuer, in the first two conclusions of his amended closed record, seeks interdict against the defender from conducting standard grade assessments of Scottish state educated school pupils and also against the defender from acting against the public interest by conducting the standard grade assessment of Scottish state educated secondary pupils. His third conclusion seeks payment to him by the defender of £195,000.

[2] The action came before the Court on procedure roll. The defender argued for dismissal of the action on the ground that it was irrelevant and further on the ground that the pursuer had no title or interest to sue. The pursuer's pleadings as a party litigant were not professionally framed and were subjected to understandable criticism in various respects but I am prepared to make allowance for several failures to focus the pleadings in the recognised form. So, for instance, I paid no attention to the complaint that various documents were not properly incorporated in the pleadings. I have also had regard to the pursuer's note of argument in which he, amongst other things, expands his case as pled to include an allegation of breach of his human rights as guaranteed by Article 9 of the Human Rights Act 1998.

[3] The pursuer's case, it seems to me, is encapsulated in his condescendence 4 which reads:

[4] The preceding articles of condescendence make averments that Scottish state educated secondary pupils must elect to study certain courses and must subject themselves to assessments, those assessments being imposed by the defender. Those averments do not stand well with the opening sentence of condescendence 3 which reads,

It is apparent from the pursuer's pleadings that he considers the method of assessment adopted by the defender is inadequate. He does not however make any averments about what is an adequate method of assessment and pleads no basis for his averments about a requirement being imposed upon pupils.

[5] The defender is a creature of statute. Its functions are those specified in the Education (Scotland) Act 1996, Section 2. In summary, the defender was given a general function to devise qualifications and determine the entitlement of individuals to SQA qualifications and to make arrangements for, or assist in, or carry out, the assessment of persons "undertaking education and training". The defender has been given power in relation to an SQA qualification to determine what it is that a person is required to do and the level of competence he is required to demonstrate in order to attain the qualification and also to determine the means of assessing whether or not he has done what is required or has demonstrated the level of competence required.

[6] By Section 7 it is provided that in the exercise of its functions in pursuance of this or any other enactment SQA shall -

"(a) endeavour to promote and advance education and training; and (b) have regard to the interests of persons using its services."

[7] The pursuer's argument was founded upon the proposition that Section 7 placed an absolute duty upon the defender by use of the word "shall". However it is my opinion when the content of that section is considered, it merely provides that it is mandatory for the defender to have regard to the interests of persons using its services. It does not specify what these interests are or how far the "regard" extends. By Section 4 of the said Act the defender is given power to make such arrangements as it considers appropriate to satisfy itself as to procedures used for assessing the standards of attainment by establishments and in particular of assessing persons with special educational needs in relation to the qualifications.

[8] The pursuer in his condescendence 3 purports to set out alleged defects in the system set up by the defender. These appear to consist in the effect of the variable age and environmental background of pupils. He makes no suggestions as to how specifically these matters are either incorrect or correctable as a matter of organisation. The criteria he would appear to envisage it seems to me would involve an individual assessment being devised for each child according to their birthday and background.

[9] The pursuer's averments in condescendence 4 were attacked by the defender on the basis that they failed to identify what absolute statutory duty was founded upon which affected the pursuer. The "users" in the provisions of Section 7(b) are the students in state education or those subject to assessment. There is, however, no duty to submit to the examination. The defenders' duty is only "to have regard to"; no specific duties or standards are set. The pursuer does not say that he is a user of the services provided by SQA.

[10] The defender also submitted that the pursuer has not placed himself within the area where statutory duties are owed to the public at large as the pursuer did in Wilson v Independent Broadcasting Authority 1979 S.C. 351 per Lord Ross, p.356-357. There is no duty to the public at large only to the users of the services imposed by Section 7. In no other way is the pursuer a party to any legal relationship which gives him any interest or title to sue, see Lord Dunedin, D & J Nicol v Trustees of the Harbours of Dundee 1915 SC HL 7 at page 12. On the pleadings the pursuer has neither sufficient material nor a concrete interest to qualify a title or interest to sue.

[11] The defender also argued the pursuer has no relevant averments to bring his action within the terms of Article 9 of the European Convention on Human Rights. That article provides that "everyone has the right to freedom of thought, conscience and religion".

[12] The pursuer asserted that compliance with the defender's standard grade assessment of pupils would require him to abandon the beliefs that he acquired in his training and to act against his conscience. That contention was inappropriate and irrelevant since the pursuer was able to do what he did, namely resign. Accordingly he was not in the event compelled to do anything against his conscience or religion. The proper interpretation of Article 9 appears clearly from Steadman v United Kingdom 23 E.H.R.R. CD 169 where a woman refused to work on Sundays and was dismissed in consequence. The Court held that the applicant in that case had failed to show that she was pressured to change religious views or prevented from manifesting a religion or belief. She was free to resign. In the present case the applicant resigned. He is unable to qualify under the provisions of the Human Rights Act 1998 or to justify a claim for damages, since there was no compulsion by the defender, other than the need, if he chose to teach a standard grade class, to conform to the rules set out by the SQA.

[13] I agree entirely with the defender's argument in relation to title, interest and the application of the Human Rights Act.

[14] As to the pursuer's case based upon the methods of devising and the utilisation of the assessment provisions made by the defender, there is, in my opinion, no substance in the case presented by the pursuer. He has not brought himself within the ambit of a user of the services. His criticism of methods adopted by the defender does not show that the defender was acting ultra vires even if the criticism had any substance. There are no relevant averments that the SQA was acting beyond its powers. The pursuer's case amounts to a view that they could have done better if they had made different provisions or requirements, but although no doubt they could have done so, the fact that they did not does not mean that they have failed to have regard to the interests of persons using their services. Since accordingly the action is bound to fail I sustain the defender's pleas-in-law and dismiss it.