Scottish Court of Session Decisions

This petition for judicial review seeks reduction of a decision of the first respondents' Education Services Committee dated 14 November 2000 determining the closure of Abercorn Primary School to which decision consent of Scottish Ministers was given on 11 May 2001. The petitioner is a parent of children presently at the school.

On or about 5 September 2000 the first respondents produced a consultation paper regarding the proposed closure of Abercorn Primary School (6/1 of process). A detailed response to that paper dated 20 October 2000 was submitted to the first respondents by the Abercorn Primary School Board (6/5 of process). The consultation period was extended from 16 October 2000 until 21 October 2000. During the consultation process a number of public meetings took place attended by officials of the first respondents. The first respondents prepared a report in relation to the outcome of consultation which was presented to the Council on 14 November 2000 the date of the decision (6/6 of process). The consent letter from the Scottish Ministers dated 11 May 2000 is 6/7 of process.

The statutory requirements in relation to consultation with regard the school closure are to be found in section 22A of the Education (Scotland) Act 1980 which was inserted into that Act by the Education (Scotland) Act 1981. The section is in the following terms:

Regulations pursuant to that statute were published, namely the Education (Publication of Consultation Etc.) (Scotland) Regulations 1981. Suffice it to say that within the terms of those Regulations a "prescribed decision" includes the closure of a school and "prescribed persons" include parents and thus the petitioner.

I take this matter no further since although at one stage it apparently was being suggested that the first respondents had not followed the statutory procedures, no such suggestion is now made and I therefore proceed to approach the matter on the basis that the first respondents have complied with their statutory duty in terms of consultation procedures. One other factual matter is that on the actual day of the meeting when the decision was taken the respondents produced a response by way of a feasibility study to certain proposals inter alia that had been made by the School Board in their paper 6/5 of process. This is relevant because one of the complaints made by the petitioner is that insufficient time was given to the School Board to respond to this reaction.

The petitioners' averments are repetitive and at times rambling, if not confused but in submission counsel for the petitioner made three essential complaints, firstly that the consultation process was a sham and in any event unfair, therefore not complying with the general principles of natural justice; secondly that the decision to close the school was irrational, such as has been defined in Associated Provincial Picture Houses Ltd v Wednesbury Corporation 1948 1KB 223 and many subsequent cases, and thirdly, that the decision to close violated the petitioner's rights in terms of Article 2, Protocol 1 of the European Convention on Human Rights now thus incorporated to the law of Scotland by the Human Rights Act 1998.

With regard to this last point I need take that matter no further since both in relation to the signing of the Convention by the United Kingdom and in terms of the Human Rights Act there are certain derogations which permit decisions based upon efficient instruction and training, and avoidance of unreasonable expenditure. I am entirely satisfied given the way this case has been presented to me, that the decision of the Council taken in this case falls within those derogations and I did not require to hear counsel for the respondents on that matter. In reply counsel for the petitioner accepted that position and no issue therefore now arises in this respect.

I therefore concentrate on the two other grounds of complaint said to render the decision reducible.

Counsel for the petitioner submitted that in general terms an administrative decision of this nature was amenable to the principles of natural justice under reference to the long established case of Board of Education v Rice 1911 AC 179. As regards the substance of what was required by way on consultation he referred to R. v Bent Council ex parte Gunning 1986 84 LGR 168 where a formulation proposed by counsel in the case was accepted by the judge in the following terms:

The substance of the complaint was there had been no meaningful consultation, that the Committee's mind had been made up from the start. There was a complaint of lack of information and finally, as I have indicated, a complaint relating to the response of the first respondent to the proposals to redevelop the site inter alia submitted in 6/5. Since it was only produced at the relevant meeting on 14 November, no adequate time to reply has been given to the School Board.

Counsel for both respondents emphasised as I already indicated that the statutory procedures had been complied with and indeed the minimum statutory time for consultation had been extended beyond the limit of 32 days. The minutes of the public meeting showed there had been intense discussion and the response in document 6/6 properly addressed the issues that were being raised.

This latter point bears also on the question of irrationality, but that at this stage I deal only on the issue of consultation.

Taking each of the components of the Gunning formula, in my opinion there is no question in this case of any evidence of a closed mind as regards the potential decision maker when the proposals were at the formative stage, i.e. when the consultation paper was produced. Clearly it was directed towards closure rather than redevelopment but that was reasonable as a proposal since the whole theme running through the documentation is that the first respondents did not consider that maintaining the status quo in the existing building was a viable option. Secondly I consider that the consultation paper gave very clear reasons for the proposals being put forward. Since the statutory time for consideration was exceeded, it cannot be said that the time awarded was generally inadequate given the terms of document 6/6 of process and indeed the discussion at the relevant meeting. The petitioner's case comes closer to the question of fairness on the issue of reaction time to the feasibility study, but given the nature of the discussion at the meeting I do not consider that that in itself is a sufficient reason to render the whole consultation process unfair. Counsel also made a complaint initially that various councillors came and went during the meeting and were therefore not always present but I take nothing from this point. He also initially complained that the Council did not seem to have followed the so-called COSLA procedures which are quoted in paragraph 10 of the Petition. However this point effectively was departed from.

In these circumstances it is my opinion that the petitioners have failed to demonstrate by either relevant averment or submission that any aspect of consultation process should be categorised as unfair when set against the Gunning formula. This attack therefore on the decision in my opinion fails.

The general question of irrationality or otherwise of administrative decisions has been considered in numerous cases, but a useful summary of them is found in relation to this type of administrative decision in Bonnes v West Lothian District Council 1997 S.L.T. 398. Suffice it to say for present purposes that to categorise such a decision as generally irrational it must be bordering on the absurd and certainly perverse and one which no reasonable decision-maker applying his mind to relevant material could have achieved. This is a very high test. Essentially counsel for petitioner sought to justify his position in this respect under reference to the enumerated factors which are listed in paragraph 5 of the petition which, he maintained, both generally and in particular the Council had failed to take into account or to apply adequate weight to them in each respect. The response of Counsel for the first respondent was to embark an elaborate exercise in relation to each of the enumerated points to establish that they were addressed in 6/5 and replied to or discussed by the first respondents in 6/6. In no respect accordingly it was submitted could it be said that the factors that were asserted as relevant had not been taken into account or at least considered. She had, however, a much more fundamental position, namely that in the absence of any precise or specific averments as to what effect the alleged failure to take into account any of the relevant factors might have been, the impact that they would otherwise have had upon the decision if they had been taken into account was accordingly nowhere addressed. The necessity so to aver such a position to make a relevant case in the context was, she said, to be found within the confines of the Bonnes' case.

I have done my own exercise of comparing 6/5 and 6/6 in relation to each of the enumerated items so far as they are identifiable and, as was counsel for the second respondent, I am satisfied that the check exercise reveals that each subject was covered in both documents. I do not intend to set out the exercise in this Opinion, because in my view the submission made by counsel for the respondents on the general question of relevancy and specification is sound. I consider that where it is alleged that matters were left out of account that should have been taken into account, persons asserting that position must make some attempt to suggest what material bearing it would have had upon the decision on the hypothesis that the factors had been taken into account, particularly with regard to an administrative decision not, in statutory terms, requiring reasons. The absence of any attempt to do so in this case leaves me with the view that this is nothing more than a list of general complaints, not properly related to the facts disclosed in the documents, and in any event far too unspecific for any question of enquiry to be considered. The total lack of averment as to material effect in the final recourse renders this whole aspect of the case irrelevant. In my opinion therefore this attack also fails.

Finally by way of postscript, counsel for petitioner at one point submitted that the decision maker, namely the first respondent had given no reasons for the decision, and that in itself rendered it invalid. He referred me to an article by Professor Munro in 1995 SLT News, at page 5 which discussed generally and with particular reference to a number of cases as the circumstances where an administrative decision maker might have been required to give reasons for the decision.

I consider this point to be wholly without merit, having regard to the detailed consideration that was given to the whole matter in 6/6 by the first respondents which clearly enunciates the reasons for the decision. Furthermore the vote of the Council was based upon the proposals and statements in that document. Thus whether required or not clear reasons have been given by the Council to justify the decision.

In these circumstances and for the foregoing reasons, to give effect to the matters still live for decision before me, I will sustain the first respondent's first and second pleas in law and dismiss the petition. This is sufficient to cover the position of the second respondent.