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Cite as: [2004] ScotCS 12, 2004 SCLR 106
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Glasgow City Council, Re Petition for Judicial Review [2004] ScotCS 12 (15 January 2004)
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OUTER HOUSE, COURT OF SESSION |
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OPINION OF LORD MENZIES in the petition of GLASGOW CITY COUNCIL for JUDICIAL REVIEW OF AN INTERLOCUTOR DATED 4 JULY 2003 OF A SHERIFF OF THE SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW UNDER SECTION 28H OF THE EDUCATION (SCOTLAND) ACT 1980 ________________ |
Petitioners: Bovey, Q.C.: Edward Bain, Solicitor, Edinburgh City Council
Respondent: O'Carroll; Mowat Hall Dick
15 January 2004
INTRODUCTION
[1] In this petition for judicial review the petitioners seek reduction of an interlocutor dated 4 July 2003 pronounced by a sheriff sitting at Glasgow. The petitioners are an Education Authority in terms of the Education (Scotland) Act 1980 (as amended) ("the Act"). In fulfilment of their functions under the Act, they own and manage Ashcraig Secondary School, 100 Avenue Road, Glasgow. This is a school which caters for children with physical impairment and/or chronic or acute health conditions. Such children include those with cerebral palsy, and heart transplants, blind pupils and wheelchair users. They also include those who suffer from mental handicap or learning disability. The welfare of every pupil in the school, especially their physical safety and educational wellbeing, is of the utmost importance due to the fact that the pupils are exceptionally vulnerable and fragile. Aidan Fox-Flynn is a pupil at that school. He was born on 3 July 1986 and is severely disabled. He has a record of needs which states inter alia that he must have an adult in attendance at all times to ensure his own safety and that of other pupils as he is inclined to run off suddenly and to hit out at children and staff. The respondent is his mother.[2] On 31 January 2002 the child, who was aged 15 years and six months, arrived at the school in a taxi accompanied by his escort, a Mrs Maureen Harmer. As the child was getting out of the taxi, part of the handle or handrest that he was holding gave way. He was frightened by this sudden loss of support. It appears that he became angry and kicked and punched the taxi door and grabbed and held onto Mrs Harmer's face, injuring her. The child then ran to another taxi and began kicking it. Mrs Enid Campbell, who was escorting a blind pupil to the school witnessed this incident and intervened to calm the child down and take him to the Deputy Head Teacher. Mrs Harmer required hospital treatment for her facial injuries.
[3] As a result of this incident the petitioners decided to exclude the child from school for 14 days. They intimated their decision in this regard to the respondent by letter dated 31 January 2002. I shall return to the terms of this letter and its attachments later. The respondent exercised her right to refer this decision to an Appeal Committee set up under section 28D of the Act. The Appeal Committee wrote to the respondent by letter dated 14 May 2002 intimating that the appeal against the decision to exclude the child had been unsuccessful, and confirming the petitioners' decision to exclude him. The respondent then exercised her right in terms of section 28H(6) of the Act to appeal against the decision of the Appeal Committee to the sheriff. After sundry procedure, by interlocutor dated 4 July 2003, the sheriff annulled the decision of the petitioners made on 31 January 2002 to exclude the child. It is this interlocutor which the petitioners seek to reduce in the present proceedings for judicial review.
THE RELEVANT STATUTORY FRAMEWORK
[4] The relevant statutory provisions, secondary legislation and rules of court to which reference was made in submissions are as follows:
Regulations 4 and 4A of the Schools General (Scotland) Regulations 1975 (as amended)
"4. In discharging their functions under the Education (Scotland) Act 1980, an education authority shall not exclude a pupil from a school under their management to which he has been admitted, except where -
(a) they are of the opinion that the parent of the pupil refuses or fails to comply, or to allow the pupil to comply, with the rules, regulations or disciplinary requirements of the school; or
(b) they consider that in all the circumstances to allow the pupil to continue his attendance at the school would be likely to be seriously detrimental to order and discipline in the school or the educational well-being of the pupils there.
4A(1) Where in relation to any pupil in attendance at any school under the management of an education authority a decision is taken to exclude that pupil from the school the education authority shall ensure that on the day upon which the decision is taken, intimation of
(a) the decision; and
(b) a date (being a date within the period of seven days immediately following the date of the decision) and time when and place where the head teacher of the school, other teacher at the school or official of the education authority shall be available to discuss with the parent the decision to exclude the pupil
shall be made orally or in writing to the parent of the pupil....
(2) Where in relation to such a pupil, such a decision is taken, the education authority may at any time within the period of eight days aftermentioned or thereafter and as respects such a pupil as is specified in paragraph (3) for the purposes of this paragraph, the education authority shall, within the period of eight days immediately following the day upon which the decision is taken, ensure that intimation in writing is made to the parent of the pupil, where the pupil is a child, or to the pupil himself, where he is a young person, of -
(a) the reasons for the decisions to exclude;
(b) the conditions, if any, with which the pupil and his parent or either the pupil or his parent are required to comply or to undertake to comply as conditions precedent to the pupil being readmitted to the school;
(c) the right to refer the decision under section 28H of the Education (Scotland) Act 1980 to an Appeal Committee set up and maintained under section 28D of that Act;
(d) the address to which such a reference should be made; and
(e) any other information which the education authority consider appropriate;
and such intimation may be sent by post or be handed to the parent or where the pupil is a young person, to the pupil by the head teacher or other teacher of the school from which the pupil was excluded or an official of the education authority.
(3) The following pupils being pupils mentioned in regulation 4A(1) are hereby specified for the purposes of paragraph (2) namely -
(a) a pupil who has not been readmitted to the school from which he was excluded within seven days of the date of the decision so to exclude him;
(b) a pupil whose parent has not indicated orally to the head teacher of the school or in writing after receiving intimation in accordance with paragraph (1) within seven says of that date, that he does not wish to refer the matter to an appeal committee in accordance with section 28H of the Education (Scotland) Act 1980 or otherwise to pursue the matter further...".
The relevant provisions of the Education (Scotland) Act 1980 (as inserted by the Education (Scotland) Act 1981) are as follows
"28H-(1) Where an education authority decide to exclude a pupil from a school under their management which he attends the parent of the pupil or, where the pupil is a young person, the pupil may refer the decision to an appeal committee set up under section 28D of this Act.
(2) An appeal committee may, on a reference under this section, confirm or annul the decision of the education authority excluding the pupil and, in confirming a decision of the authority to exclude a pupil until certain conditions stipulated by them are complied with, the committee may modify the conditions.
(3) the decision of an appeal committee on a reference under this section and the reasons for it shall be notified by the committee in writing to the parent or, as the case may be, the pupil making the reference and to the education authority.
(6) The decision of an appeal committee confirming an education authority's decision to exclude a pupil or modifying conditions under sub-section (2) above may be appealed against by the parent of the pupil or, where the pupil is a young person, the pupil to the sheriff having jurisdiction where the school from which the pupil has been excluded is situated, and subsections (2), (3), (4), (8) and (9) of section 28F of this Act shall apply to an appeal under this subsection.
(7) The sheriff may, on an appeal under subsection (6) above, confirm or annul the decision of the education authority excluding the pupil and, in confirming a decision excluding the pupil until certain conditions stipulated by them are complied with, he may modify the conditions."
The relevant subsections of section 28F are as follows:
"(2) The education authority may, but the appeal committee shall not, be a party to an appeal under this section.
(3) An appeal under this section -
(a) shall be made by way of summary application...
(9) The judgment of the sheriff on an appeal under this section shall be final."
The relevant sections of the Sheriff Courts (Scotland) Act 1907 provide as follows:
"27. Appeal to Sheriff - subject to the provisions of this Act an appeal to the sheriff shall be competent against all final judgments of the sheriff substitute.
50. Summary Applications - in summary applications (where a hearing is necessary) the sheriff shall appoint the application to be heard at a diet to be fixed by him, and at that or any subsequent diet (without record of evidence unless the sheriff shall order a record) shall summarily dispose of the matter and give his judgment in writing...: provided also that nothing contained in this Act shall affect any right of appeal provided by any Act of Parliament under which a summary application is brought."
Rule 58.3 of the Rules of the Court of Session provides as follows:
"(1) Subject to paragraph (2), an application to the supervisory jurisdiction of the Court ....shall be made by petition for judicial review.
(2) An application may not be made under paragraph (1) if that application is made, or could be made, by appeal or review under or by virtue of any enactment".
THE COMPETENCY OF JUDICIAL REVIEW IN THESE CIRCUMSTANCES
(a) Submissions by counsel for the respondent regarding competency.
[5] Before considering parties' submissions on the substantive issues raised by this petition, it is appropriate that I should consider their submissions as to the competency of these proceedings. Counsel for the respondent made two submissions to the effect that the present petition for judicial review was incompetent. First, he submitted that the petitioners had a right of appeal to the sheriff principal against the sheriff's decision of 4 July 2003, which they had not exercised. Their failure to exercise this right of appeal excluded an application to the supervisory jurisdiction of this Court, both under the general principles of our law, and by reason of the provisions of Rule of Court 58.3(2). There were no exceptional circumstances in the present case, and the Court should therefore refuse to exercise its supervisory jurisdiction. Second, he submitted that if proceedings in the Court of Session are available to the petitioners in this regard, it was not open to them to utilise the procedures for judicial review under Chapter 58 of the Rules of Court; rather, they were obliged to use the procedures for an ordinary action of reduction under Chapter 53, or a petition for suspension under chapter 60.[6] With regard to the first of these submissions, counsel for the respondent pointed out that although section 28F(9) of the Act provides that the judgment of the sheriff on an appeal shall be final, there was no express exclusion of an appeal to the Sheriff Principal. Sections 27 and 50 of the Sheriff Courts (Scotland) Act 1907 provided that there was a right of appeal to the Sheriff Principal against a final judgment of the sheriff in summary applications. He submitted that the finality provision in section 28F(9) of the Act only applied to decisions on the merits of the summary application, and did not apply where there was "an avoidance of judgment", or to a situation in which the sheriff did not address the merits of the application - for example, where there was an objection to competency, or where the sheriff had clearly fallen into procedural error. In support of this submission counsel referred me to four decisions by three Sheriffs Principal. In Chief Constable of Strathclyde v Hamilton and District Bookmakers Club 1977 SLT (Sh Ct) 78 the Court was concerned with an application for the renewal of certificates of registration in respect of clubs under the Licensing (Scotland) Act 1959. Section 182(2) of that Act provides that: "The decision of the sheriff in dealing with an application for ... the renewal of such a certificate ... shall be final." The Sheriff Principal held that where the interlocutor appealed against was procedural in character and the issues raised concerned the regularity of the procedure before the sheriff and the competency of his actings, appeal to the Sheriff Principal was competent.
[7] In Ladbrokes The Bookmakers v Hamilton District Council 1977 SLT (Sh Ct) 86 the same Sheriff Principal appears to have taken the same view with regard to somewhat different circumstances. This was an application for renewal of a betting office licence, which was refused by the licensing court. The applicants appealed to the sheriff and the appeal was put out for a hearing on preliminary pleas. At the hearing, only the applicants were represented, and the sheriff allowed the appeal. The respondents appealed to the Sheriff Principal, who held that the appeal to him was competent. In the course of his opinion he made the following observations:
"The learned sheriff's disposal of the appeal has an appearance of finality but the appearance is deceptive. He has not dealt either with the preliminary pleas or with the merits of the appeal but disposed of it in a manner which did not require him to exercise the jurisdiction conferred upon him by statute. For this reason, his decision does not fall to be treated as a final disposal on the merits (which would be final) but - to use the words of Lord Benholme in Leitch v Scottish Legal Burial Society (1870) 9 M 540 rather as an 'avoidance of judgment'."
[9] Counsel for the respondent also referred me to two older Court of Session authorities which appeared to form the basis for the above decisions. Leitch v The Scottish Legal Burial Society (1870) 9 M 40 was concerned with a provision that the decision of a sheriff "shall be binding and conclusive on all parties, without appeal". The Inner House held that although this excluded a review by the Court of Session of a judgment on the merits by the Sheriff Principal, it did not exclude review by the Sheriff Principal of a judgment by the sheriff substitute dismissing the action as incompetent. Lord Benholme observed that
"Finality, in the Act of Parliament, is attached to decision of the dispute. I ask, has there been any decision of the matter in dispute by the sheriff substitute? I think clearly not. One of his interlocutors was an avoidance of judgment; the other was merely a preparation for it."
"When the matter was brought before the sheriff, he proceeded to deal with the matter as if it had come before himself at first, and put aside the sheriff substitute's interlocutor altogether as being nugatory, and so unsatisfactory that it could not possibly stand. I think the sheriff was entitled to take that course in this case. If the sheriff substitute had entered thoroughly into the matter and given a proper decision upon it, the sheriff would not have been entitled to deal with the matter at all, but the result at which the sheriff substitute arrived was so unsatisfactory, and the procedure so irregular, that I think the sheriff took the right course."
[12] Turning to his second challenge to the competency of these proceedings, counsel for the respondent submitted that if proceedings for reduction of the sheriff's interlocutor were competent in the Court of Session, the petitioners should not have utilised the procedures for judicial review under Chapter 58 of the Rules of Court, but rather the procedures for ordinary actions of reduction under Chapter 53, or for petitions for suspension under Chapter 60. In support of this he referred me to Bell v Fiddes 1996 SLT 51, Saunders, Petitioner, 1999 SC 564, and to paragraphs 53.2.1 and 60.6.1 of the Annotated Rules of the Court of Session.
[13] In Bell v Fiddes, individuals against whom decree had passed in an undefended action in the Sheriff Court sought reduction of the decree by means of a petition for judicial review. It does not appear that the subject matter of the action involved the sort of dispute identified by the First Division in West v Secretary of State for Scotland 1992 SC 385. Lord Marnoch held that in these circumstances the application for reduction was not an application to the supervisory jurisdiction of the Court, and so application by way of petition for judicial review was incompetent. He observed that,
"for the purposes of Chapter 58, the reference to the "supervisory jurisdiction of the court" must be construed as excluding procedures for which specific provision is made elsewhere in the rules and as being, in effect, confined to the type of jurisdiction described and delineated by the First Division in West v Secretary of State for Scotland. Indeed, standing the very clear guidance given by the First Division on this matter, I do not consider that it would have been open to me to decide otherwise."
"I am in no doubt that counsel for the respondents is well-founded in his submission. The substance of the petition is the reduction of a Sheriff Court decree. Separate provision for that is made in Rule of Court 53.2 which has its own specific procedure by way of intimation to the inferior court. It matters not, as it seems to me, that the case might also fall within West principles, which both counsel, as it happens, thought this case did. Rule of Court 58.3(2) makes it abundantly clear that an application for judicial review in terms of that Chapter may not be made if the application could be made by appeal or review under another specific Rule of Court".
"The following characteristics of Rule of Court 260B may therefore be noted at this stage. First, since it was introduced by Act of Sederunt without any further enabling power having been conferred on the court by general legislation, it was a procedural amendment only which did not and could not alter in any respect the substantive law. Thus neither the nature or scope of the supervisory jurisdiction nor the grounds on which it may be exercised were affected by the introduction of this new rule. Second, it requires that all applications to the supervisory jurisdiction must be made only by means of the new procedure. The former procedure by way of summons or petition is no longer to be available in such cases. This makes it all the more important to observe that no change in the substantive law was being effected. To treat the procedure as available only in some cases appropriate for the supervisory jurisdictions and not others would risk leaving those other cases without a remedy, because no other procedure is available. Crucial to a proper understanding of the new procedure, therefore, is the generality of its application, since it applies to all cases where an application is being made to the supervisory jurisdiction of the Court."
(b) Submissions by counsel for the petitioners regarding competency.
[17] Counsel for the petitioners responded to the first of the above submissions as follows. The existence of a right of appeal to the Sheriff Principal is not of such certainty as to satisfy the requirements of Rule of Court 58.3(2), and the common law rule that underlies this Rule of Court. In order for judicial review under Chapter 58 to be excluded, the alternative remedy must be clearly available and effective in principle. In support of this proposition he relied on Shanks & McEwan Contractors Limited v Mifflin Construction Limited 1993 SLT 1124. In the present case he submitted that at best the competency of an appeal to the Sheriff Principal was doubtful, and it certainly could not be asserted to be clearly available and effective. The fact that the appeal to the sheriff in terms of section 28H(6) of the Act is to be made by way of summary application does not of itself mean that section 27 of the 1907 Act applies - even in the absence of a finality clause the Court has held that certain summary applications to the sheriff are not capable of appeal. In support of this he referred me to East Kilbride District Council v King 1996 SLT 30, and observed that in the present case, as in that case, the proceeding in itself is an appeal to the sheriff from a deliverance outside the sheriff courts, and therefore is not of the nature of a case arising in the sheriff court. Lord Clyde's categorisation of the sheriff's jurisdiction in that case is indistinguishable from the issues of jurisdiction in the present case. Counsel referred me to five cases or appeals to a sheriff under section 28H(6) of the Act which are reported together at 1999 Fam LR 119, which together served to show the wide disparity of approaches by sheriffs to the exercise of their powers under section 28H(6) of the Act. Counsel submitted that the approaches in Kelly and Mackie were to be preferred to those in Inderhaug, McDonald and Crawford. The disparity of approach indicated the lack of certainty as to the appropriate remedies when considering an appeal under section 28H(6) of the Act.[18] Counsel referred me to Glasgow City Council v H. 2003 SLT (Sh Ct) 61, a decision of Sheriff Principal Bowen on an appeal from a sheriff who refused an application for an exclusion order under section 76 of the Children (Scotland) Act 1995. There was no finality clause in the 1995 Act; nonetheless, the Sheriff Principal held that he had no jurisdiction to deal with an appeal against a sheriff's disposal of such an application. He accepted that the Court of Session might exercise its supervisory jurisdiction to review decisions of inferior courts and tribunals in such a situation, but he did not regard the Sheriff Principal as having jurisdiction to consider general grounds of appeal. Counsel for the petitioners submitted that the considerations in the present case are similar to those in that case. He also referred me to Cambridge Street Properties Ltd v City of Glasgow District Licensing Board 1995 SLT 913. That case was concerned with an appeal to a sheriff by summary application in respect of a decision of a local licensing board. The sheriff refused to allow a proposed adjustment and refused leave to appeal. The applicants appealed to the Sheriff Principal who refused the appeal as incompetent. They then appealed to the Court of Session, where they conceded that the sheriff had a discretion to refuse to allow the adjustments, and that no conventional appeal was competent in terms of section 27 of the 1907 Act. They argued, however, that the sheriff's decision was incompetent, being one which no reasonable sheriff could have reached, and that the Sheriff Principal was entitled to entertain an appeal against a sheriff's decision which had been incompetent. The Inner House recognised that there is authority supporting the view that the Sheriff Principal has responsibility at common law for the proper regulation of the conduct of judicial business within his sheriffdom, and that he is entitled to recall incompetent interlocutors pronounced by the sheriff. However, they did not consider that it was necessary in that case to decide whether the Sheriff Principal does in fact have that power, because in that case there was no question of the sheriff having no power or right to pronounce the interlocutor which he did pronounce. Counsel submitted that the present case was on all fours with that case in respect that there was no question of the sheriff in the present case not having power or right to pronounce the interlocutor which she did pronounce. Any power in the Sheriff Principal to recall incompetent interlocutors could not avail the respondent in this case, (a) because the interlocutor was not incompetent and (b) because such a power was a common law power and not "under any enactment". In any event, it was not of such certainty and efficacy as to preclude the supervisory jurisdiction of this court. Counsel also referred me to Shiels v City of Edinburgh Council 1999 Fam LR 92, in which the Sheriff Principal was considering an appeal in respect of a placing request in terms of section 28A of the Act. He was prepared to hear the appeal standing a concession made on behalf of the Council, but expressed (at paragraph 92-09) concerns that section 28F(9) of the Act appeared to preclude such an appeal, and observed that he was "certainly not to be taken as accepting that section 28F(9) does not mean what it appears to say".
[19] Counsel pointed out that this Court has considered the competency of judicial review of a sheriff's determination under section 28A and 28F of the Act on previous occasions and has held that judicial review was competent. In Dundee City Council, Petitioners, 1999 Fam LR 13, Lord Cameron of Lochbroom considered as the first issue whether the petitioners could competently apply to this Court in the exercise of its supervisory jurisdiction to reduce the sheriff's determination, and reached the conclusion that there was no doubt that this Court is entitled to interfere. In Aberdeen City Council v Wokoma 2002 SLT 878 Lord Drummond Young also considered the competency of judicial review and was quite satisfied for the reasons set out in City of Dundee Council, Petitioners, that the present procedure was competent.
[20] With regard to the respondent's second submission on competency, counsel for the petitioners observed that Bell v Fiddes was not an application to the supervisory jurisdiction as defined in West, and that an application for reduction by way of petition for judicial review in such circumstances was incompetent. The decision went no further than stating that the procedures for judicial review under Chapter 58 are confined to the type of jurisdiction described and delineated in West. Counsel submitted that the decision in Saunders was wrong in law. If correct, it would mean that no challenge to the decision of an inferior court or tribunal could be made by means of judicial review, even though the case fell within the West principles. This would mean that every one of the numerous petitions for judicial review of immigration appeal tribunals (to take but one example) had been incompetent, and that each should have been raised by ordinary action under Chapter 53 of the Rules of Court, or by petition for suspension under Chapter 60. This was not what was intended when the new procedure was introduced. The reference to an "enactment" in Rule of Court 58.2 did not include other Rules of Court; all that was intended was an approximate restatement of the common law rule that a petitioner who seeks judicial review must first exhaust his statutory remedies. The intention of Rule of Court 58.3(1) was to provide a single, simple method for the exercise of this Court's supervisory jurisdiction, and it cannot have been intended to give to the word "enactment" in Rule 58.3(2) the extended meaning given by section 23(2) of the Interpretation Act 1978. The decision in Saunders was, counsel contended, ill-founded and also inconsistent with the views expressed in Clyde & Edwards on Judicial Review at paragraph 25.11.
[21] Counsel for the petitioners went on to advance two supplementary arguments on competency in the event that I was not persuaded by his primary submissions as noted above. First, he maintained that if I was of the opinion that the present application could have been made otherwise by virtue of any enactment (that is to say, either section 27 of the 1907 Act, or by the procedures under Chapters 53 or 60 of the Rules of Court) then the Court should relieve the petitioner from the consequences of their failure to comply with a provision of the Rules of Court by reason of the general dispensing power contained in Rule of Court 2.1. The petitioners brought the present application for judicial review in the belief that it was competent, for the reasons given above. If that belief was wrong, it should be regarded as a mistake or other excusable cause. The petitioners had relied on the advice of counsel, who had in mind the cases of Dundee City Council and Wokoma (supra). It would be difficult now for the petitioners to appeal to the Sheriff Principal (even if this was competent), and it would be undesirable for the Court to take too technical a stand in this case, in which considerable time and cost had been expended, all at public expense. The terms of Rule 2.1 were wholly unqualified, and the only question was whether there had been a failure to comply with a provision of the rules. In this regard he referred me to McDonald v Kwok 1999 SLT 593 and to Colley v Celtic Pacific Ship Management (Overseas) Limited 2001 SLT 320.
[22] Counsel's second alternative proposition in the event that I was against him on his primary submissions, was that the Court does not regard failure to use an unsuitable procedure as fatal to judicial review proceedings. In support of this proposition he referred me to the decision of the Second Division in Ingle v Ingle's Trustee 1999 SLT 650. In that case the Court observed (at page 654L):
"In West, Lord Hope set out criteria for ascertaining the questions which the Court could competently consider in an application for judicial review. However, we do not take him as attempting to restrict the application of the Court's equitable discretion in each individual case. Certainly the authorities have laid down guidelines for the exercise of the Court's equitable discretion in cases where the subject matter of the petition could competently be considered. Thus in general the Court will not exercise its supervisory common law power where the remedies sought could be achieved by following through the normal statutory appeal structure. Some of the authorities refer to this as a competency question. Another view is that the rule is merely a guideline governing the discretionary exercise of the supereminent jurisdiction. This latter view would certainly accord with the fact that the practice of not exercising the power to intervene where the appeal structure has not been used can be relaxed in exceptional circumstances. What constitutes 'exceptional circumstances' has never been strictly defined and, given the equitable essence of the judicial review process, this is perfectly appropriate. We certainly do not exclude the possibility that in a particular case the Court may consider it necessary in the interests of justice to intervene even when the appeal process has not been effectively used."
Counsel also referred me to Clyde & Edwards on Judicial Review at paragraphs 12.12 to 12.18. He observed that the respondents, in making their submission regarding the effect of section 27 of the 1907 Act, urge a restrictive interpretation to the finality clause in the Act, the result of which would be that the supervisory jurisdiction of this Court is excluded not by express words but by implication. He suggested that this could not be correct.
(c) Decision regarding competency
[23] I do not regard either of the submissions for the respondent as to the competency of these judicial review proceedings as being well-founded. With regard to the first point, I am not persuaded that there is a clear statutory mechanism for appeal of the sheriff's decision to the Sheriff Principal by reason of sections 27 and 50 of the Sheriff Courts (Scotland) Act 1907. I share the doubts expressed by the Sheriff Principal in Shiels v City of Edinburgh Council. The decision of the sheriff has, at the very least, the appearance of finality; standing the wording of section 28F(9) of the Act, it does not appear to me that there is a statutory mechanism for appealing such an interlocutor to the Sheriff Principal. If the sheriff's decision can be categorised as "an avoidance of judgment" or otherwise not as a final decision on the merits, it may be that, on the line of authorities relied on by the respondent, an appeal might competently have been made to the Sheriff Principal. I express no view on this matter, because it appears to me that even if such an appeal were competent, it is not so obviously or clearly available and effective as to deny the petitioners the right to apply to the supervisory jurisdiction of this court. What is clear from each of the decisions relied on by the respondent in this regard is that the Scottish Courts have sought to avoid an unduly technical approach to this matter, and have provided a remedy for procedural irregularity where this has occurred. Moreover, as the Second Division observed in Ingle v Ingle's Trustee, an application to this Court's supervisory jurisdiction involves the exercise of the Court's equitable discretion in each individual case. Of course if a petitioner has an obvious and clearly available effective alternative remedy (whether laid down by statute or established by the practice of our law), the Court will normally (and in the absence of exceptional circumstances) decline to exercise its supervisory jurisdiction. However, a respondent cannot escape this jurisdiction by pointing to some arcane or rarely used means of appeal of doubtful efficacy. The Court will not weigh in too fine a balance the question of whether an alternative remedy exists. In the present case, I do not consider that the petitioners acted unreasonably or can be fairly criticised for deciding to proceed by means of judicial review, particularly where the subject matter of the petition has been the subject of conflicting interpretations and is one of some importance. I agree with the views expressed in Dundee City Council, Petitioners and Wokoma that an application to the supervisory jurisdiction of this Court in these circumstances is competent.[24] With regard to the second point, parties are agreed that this case falls within the categories of cases identified in West v Secretary of State for Scotland as being suitable for judicial review. It is therefore in a different category from the case of Bell v Fiddes. Standing the passage quoted above from the Opinion of the Court in West, not only could the petitioners have made this application under Chapter 58 of the Rules of Court, it is clear that this is the only means by which they could properly have sought a remedy. Insofar as the case of Saunders, Petitioner may be thought to provide support for the view that applications for reduction of a decision of an inferior court or tribunal must be made by means of the procedure under Chapter 53 of the Rules of Court, even if the application falls within the West categorisation, I respectfully disagree with that view. Since the introduction of the mechanisms for applying for judicial review, this Court has granted reduction of such decisions on many occasions in the course of judicial review proceedings. The purpose of Chapter 58 of the Rules of Court is to provide a single, simple and relatively swift method for the exercise of this Court's supervisory jurisdiction. To give the words "any enactment" in Rule of Court 58.3(2), the extended meaning suggested in Saunders, Petitioner would be to substantially defeat this purpose. I do not consider that these words include other provisions of the Rules of Court.
[25] If I am wrong in my decision regarding either of the above points, it is appropriate that I should address the alternative submissions made on behalf of the petitioners. With regard to the submission based on the general dispensing power contained in Rule of Court 2.1, had I reached a different view with regard to the respondent's second submission, namely that the proceedings should have been raised under Chapter 53 or Chapter 60 of the Rules of Court rather than Chapter 58, I should have had little difficulty in allowing the petitioners' motion in terms of Rule 2.1. The raising of proceedings under Chapter 58 would in my view clearly have amounted to a mistake or other excusable cause in these circumstances. With rather more hesitation I should also have been prepared to grant the petitioner relief in terms of this Rule of Court if I had found in favour of the respondent on the first point. Again, it seems to me that the petitioners' decision to apply to the supervisory jurisdiction of this Court rather than to pursue the mechanism of an appeal to the Sheriff Principal, which could hardly be described as clearly available and was of at least doubtful competency, can properly be categorised as a mistake or other excusable cause. No obvious prejudice has been caused to the respondent as a result of proceeding by way of judicial review rather than by an alternative route, if such route existed. I respectfully agree with Lord Macfadyen's observation in McDonald v Kwok "that the trend of recent authorities has been towards the view that it is always competent to invoke the dispensing power". This is a case which I would have considered suitable for the exercise of my discretion in favour of the petitioners, had it been necessary for me to do so.
[26] However, I should not have been prepared to accede to the petitioners' second proposition to the effect that exceptional circumstances existed which would justify the court in exercising the power to intervene even where the appeal structure has not been used. This submission was made under reference to Ingle v Ingle's Trustee, and in particular the passage quoted above (at page 654L to 655C). The court in that case went on to observe that "if a petitioner in a judicial review wants the court to grant relief from a failure to utilise the appeal procedures provided by statute, then any 'exceptional circumstances' must be adequately pleaded." There were no pleadings in the present petition to justify an argument for "exceptional circumstances" and no notice was given to the respondent that such an argument would be advanced. Without expressing any view as to whether exceptional circumstances might or might not exist in the present case, in the absence of such pleadings I should not have been prepared to uphold this alternative submission.
THE SUBSTANCE OF THE PETITION
(a) Factual Background
[27] The decision to exclude the child was made on 31 January 2002, and intimated to the respondent by letter from the head teacher of the school on the same date. This letter was in the following terms:
"Dear Mrs Fox-Flynn
Intimation of Exclusion
Your child Aidan Fox-Flynn has been excluded from this school for a period of 14 days.
The decision is taken in the context of the Education (Scotland) Act 1980.
The reasons for the exclusion are that the school considers:
that in all the circumstances to allow the pupil to continue his attendance at the school would be likely to be seriously detrimental to order and discipline in the school or the educational well-being of the pupils here.
The details of which are:
Aidan struck his taxi escort. See attached statements.
I would be grateful therefore if you would arrange to meet Ms McGeever, Head Teacher and Ms M Biggins, Assistant Head Teacher to discuss the situation and the undernoted conditions on which Aidan may return to school.
The details of which will be discussed at the meeting. I have requested the attendance of a Senior Education Officer at that meeting. The date of the meeting will be notified to you as soon as possible.
You have the right to appeal against the decision to exclude, guidance on which is attached to this letter.
You may bring a friend with you to the meeting if you would find it helpful.
Yours sincerely
Maureen McGeever
Head Teacher".
The "attached statements" referred to in the above letter were three in number. Each gave a brief description of the incident in which the child was involved, and two of them referred briefly to the action taken immediately after this incident. Following the respondent's reference to the Appeal Committee, the Appeal Committee's letter dated 14 May 2002 addressed to the respondent's solicitor contained a summary of the submissions made on behalf of the respondent and a much briefer summary of the petitioners' submissions. The letter contained no detailed justification or reasons for the Appeal Committee's decision to reject the appeal. All that was stated after the summary of submissions was as follows:
"The Appeal Committee having considered all information presented to it, rejected the appeal and confirmed that the Education Authority had acted in accordance with the Schools General (Scotland) Regulations 1975 as amended, in deciding that in all the circumstances to allow Aidan Fox-Flynn to continue his attendance at the school would be likely to be seriously detrimental to order and discipline in the school or the educational well-being of the pupils there."
"In my view, the decision of the education authority is not one which conforms with the strict regulatory obligation to provide reasons for the decision to exclude. In respect that the decision to exclude disconforms to Regulation 4A(2)(a) it cannot, in my view, be properly confirmed. Accordingly, it has to be annulled. Section 28H(7) of the 1980 Act does not permit me to do anything other than confirm or annul the decision of the education authority. In particular, it does not permit me to overlook the education authority's failure to give reasons for its decision and to hear an appeal against the decision de novo. Having reached the conclusion that the decision of the education authority must be annulled for want of reasons for it, this determines the application. For the sake of completeness, had the education authority given reasons for its decision, I would have taken the view that such reasons could properly have been examined by me in the exercise of my appellate function to see whether the decision was justified in all the circumstances of the case."
(b) Submissions for the Petitioners
[29] Mr Bovey began by pointing to the tension between subsections (6) and (7) of section 28H of the Act. Subsection (6) provides that it is the decision of an appeal committee confirming an education authority's decision to exclude a pupil which may be appealed against (although section 28F(2) which applies to such an appeal to the sheriff provides expressly that the appeal committee shall not be a party to such an appeal). By contrast, in terms of subsection (7) the sheriff may confirm or annul the decision of the education authority. Counsel went on to submit that the sheriff on such an appeal was obliged to consider the education authority's decision on its merits. Although Statement 18 of the petition contains the averment that "the sheriff's function on an appeal under section 28H is to consider the merits of the decision de novo and to determine whether, on the evidence presented, the decision should be confirmed or annulled". Mr Bovey withdrew somewhat from this position in argument. He suggested that the correct way for a sheriff to approach an appeal under section 28H was to consider the education authority's decision on its merits, without substituting his or her own views for that of the education authority. He categorised this role as being somewhere between consideration of the merits de novo, and consideration only of whether the petitioners had been unreasonable in the Wednesbury sense. The sheriff must look at all the evidence before him or her and decide not whether the education authority's decision was unreasonable in the Wednesbury sense, but rather whether its decision was justified. He submitted that the correct legal approach for a sheriff to adopt was that adopted by Sheriff A L Stewart, QC, in Wallace v City of Dundee Council 2000 SLT (Sh Ct) 60, in which (at page 63H) the sheriff stated that,
"It is not a case of the sheriff being required to refuse the appeal merely because he is satisfied that the education authority (as represented by the head teacher) was entitled in the exercise of its discretion to reach the conclusion which it did. Rather, before he can refuse the appeal and confirm the order, he must be satisfied that the decision of the education authority was, in all the circumstances of the case, justified. In other words, in deciding an appeal under section 28H(6) the sheriff is acting in a judicial rather than an administrative capacity. He is not concerned only with what has been described as Wednesbury unreasonableness... On the other hand the sheriff is not entitled to substitute his own view of the matter for that of the education authority."
[31] In any event, Mr Bovey submitted that the reasons contained in the letter dated 31 January 2002 and its attachments were adequate. Indeed, the sheriff appears to accept this at page 3E of her note, where she states: "On my reading of regulation 4, the purported reasons are in fact and in law a ground for exclusion". Mr Bovey submitted that what the sheriff was complaining of was the petitioners' failure to provide reasons for reasons; these, he submitted, were not required.
[32] He went on to submit that the three statements attached to the letter gave a coherent explanation of the incident, and set out a relatively serious assault on a member of staff, with a substantial loss of control. This was enough to give details to the respondent and to inform her as to whether she should appeal to the Appeal Committee. It was clear from the decision letter of the Appeal Committee that these reasons enabled all the issues to be adequately canvassed, and opened the door to a full consideration of the merits of the decision. The hearing before the Appeal Committee was obviously, from the terms of this letter, a substantive hearing considering the merits of the decision. The sheriff was wrong to exclude the statements attached to the letter of 31 January 2002, and taking the letter with the statements together, the authority had adequately conveyed to the respondent why the pupil had been excluded.
(c) Submissions for the Respondent
[33] Mr O'Carroll submitted that even if the petition was properly and competently before me, it ought to be refused on its merits. Regulation 4A(2)(a) of the Schools General (Scotland) Regulations 1975 (as amended) required the Education Authority in the present circumstances to ensure, within the period of eight days immediately following the day upon which the decision was taken, that intimation in writing was made to the respondent of inter alia the reasons for the decision to exclude. The statutory framework accordingly required reasons. The sheriff found that no adequate reasons were given, that this amounted to a material failure in procedure, and that she was therefore unable to consider the merits of the decision. Counsel submitted that the correct test for the adequacy of reasons is to be found in Clyde & Edwards on Judicial Review at paragraph 17.24, and that what are stated to be reasons for the exclusion in the letter of 31 January 2002 are not in fact reasons, but merely a rehearsal of one of the statutory grounds for exclusion. The details are to be found in the three statements attached. The power to exclude in terms of Regulation 4(b) of the 1975 Regulations (as amended) was not a power concerned with discipline of children - it was not a disciplinary sanction equivalent to detention or "lines", nor was it for punishment, but rather it was a management tool concerned with order and discipline in the school or the educational well-being of the pupils there. In order to give an adequate reason for the decision, the petitioners required to explain how the actings of the child were likely to be seriously detrimental to order and discipline in the school or the educational well-being of the pupils there. This was not self-evident, but required explanation. This was so particularly in the present circumstances, where the child was severely disabled and had a record of needs. The focus of the decision must be a consideration of the effect of the continued attendance of the child at the school, and an explanation to the respondent as to how such continued attendance would be likely to be seriously detrimental to order and discipline in the school. This is particularly important where the child was a child with special needs at a special school.[34] Under reference to Wallace v City of Dundee Council, counsel submitted that the sheriff should not look at the matter de novo. An example of a reason which might justify a decision to exclude could be found at Finding in Fact 28 in that case. In the absence of a statement of reasons by the petitioners or the Appeal Committee, and in the absence of any offer to prove what were the reasons for the decision to exclude, the sheriff was not able properly to go on to consider her task, which was to review the decision. The Closed Record in the proceedings before the sheriff still gave inadequate material to enable the petitioners to prove to the sheriff that there were relevant reasons to justify the decision to exclude. The sheriff was not obliged to make a decision on the merits on all such cases. All that the sheriff could do was to annul or confirm the decision. On the authority of Wallace, she must decide whether the decision is justified, if she can; there may be circumstances (for example, an application lodged outwith the 28 day time limit without good reason, or a failure to comply with Article 6 of the European Convention on Human Rights) in which the sheriff would be entitled to dispose of the application without looking at its merits.
(d) Decision on the Merits
[35] I have reached the view that the submissions for the petitioners are well-founded, and that the learned sheriff was wrong in law not to consider the merits of the petitioners' decision to exclude the child. I reach this view with considerable sympathy for the sheriff, because the correct approach in such circumstances is not as clear from the statutory provisions as it might be. It is surprising to find that an appeal to the sheriff lies against the decision of an appeal committee and not against the decision of the education authority itself, when the appeal committee is not entitled to be a party to the proceedings before the sheriff, and when the sheriff's decision requires to be directed towards the original decision of the education authority and not towards the decision of the appeal committee. It may be because of these somewhat tortuous statutory requirements that such a disparity has arisen as to the treatment of such appeals by different sheriffs.[36] In considering the importance or otherwise of the education authority's reasons in the procedure before the sheriff, it is important to pay close regard to the chronological sequence of events set out in Regulation 4A of the 1975 Regulations and section 28H of the Act. First, intimation of the decision and of a date for a possible discussion must be made to the parent of the pupil on the day upon which the decision is taken. Reasons do not require to be intimated at that time. It is that decision which gives rise to the parent's right of appeal to the appeal committee and subsequently to the sheriff. Circumstances are envisaged in the Regulations (in Regulation 4A(3)) whereby no reasons need to be given by the education authority - for example, where the pupil has been readmitted to the school within seven days of the date of the decision, or where the parent indicates that he does not wish to refer the matter to an appeal committee. The first of these circumstances might result in the parent appealing to the appeal committee, and thereafter to the sheriff, without the education authority ever having provided reasons for the decision.
[37] The next step is (where necessary) for the education authority to intimate to the parent (or to the pupil himself where he is a young person) the reasons for the decision to exclude. This may be done within the period of eight days immediately following the day upon which the decision is taken. As I have already indicated, it is not the receipt of intimation of these reasons that gives rise to a right of appeal, but the decision itself. Even if an education authority fails to give reasons within the eight day period, the parent (or, as the case may be, the pupil) still has a right of appeal to the appeal committee and thereafter to the sheriff. There is no compulsitor stated to encourage an education authority to provide reasons, nor is any sanction provided for failure to do so.
[38] The next stage is the appeal before the appeal committee. The appeal committee is required to notify its decision and the reasons for it to the parent, but the parent still has a right of appeal to the sheriff even if no reasons are notified. Indeed, the parent has a right of appeal to the sheriff even if the appeal committee holds no hearing and fails to notify any decision or reasons, because a failure by the appeal committee to take these steps timeously is deemed to be a decision.
[39] Looking at the above timescale, it appears to me that the reasons for the education authority's decision play a less important part in the procedures than reasons do in the procedural framework of many statutory tribunals. It is important, in my view, that it is the decision of the education authority which triggers the right to invoke the appeals mechanism, and that there are circumstances in which the education authority is not obliged to give reasons. This is consistent with the fact that, although the right to appeal to the sheriff only arises after a decision (or a deemed decision) of the appeal committee, the focus of the sheriff's attention in determining the appeal is not the appeal committee proceedings but the decision itself. These considerations persuade me that counsel for the petitioners' first submission is correct. A sheriff cannot properly annul a decision of an education authority at the stage of a debate, without allowing the education authority to place material before the sheriff to show that the decision was justified. Such material might be in the form of parole evidence from the head teacher or other members of staff (as occurred in Wallace v City of Dundee Council), but might conceivably take other forms. It would of course be open to the parent to test such material, and to place contrary material before the sheriff. The sheriff in this case did not proceed to consider any such material, but annulled the decision without this. In doing so I consider that she erred in law. The reason that she did so was, as she states, "in respect that the decision to exclude disconforms to Regulation 4A(2)(a) it cannot, in my view, be properly confirmed". The decision itself did not require to contain reasons. It cannot be said that the decision itself was disconform to the Regulation. Even in the absence of any reasons at all, I consider that the sheriff was obliged to consider such material as parties wished to place before her with a view to deciding whether or not the decision was justified.
[40] The point was made by counsel for the respondent that no adequate reasons were advanced by the petitioners even in the Closed Record containing their pleadings before the sheriff. Whether the petitioners' pleadings contain adequate reasons or not, it seems to me that this argument overlooks the essentially flexible nature of the summary applications procedure, and the fact that the sheriff's attention is directed towards the decision and not to any subsequent reasons for it. The approach taken by the sheriff in Wallace v City of Dundee Council appears to me to be both pragmatic and in accordance with the intention of the legislation.
[41] Furthermore, and in any event, I am not persuaded that the reasons given for this decision were as inadequate as the respondent suggests. It might have been helpful if the petitioners had explained why the continued attendance of the pupil at the school would be likely to be seriously detrimental to order and discipline in the school or the educational wellbeing of the pupils there. I accept the point made by counsel for the respondent that a decision to exclude is not a disciplinary sanction but rather a management tool. However, to require the education authority to do this is tantamount to requiring them to provide reasons for their reasons. I do not consider that they are obliged to provide these. As the sheriff stated at page 3 of her Note, "on my reading of Regulation 4, the purported reasons are in fact and in law a ground for exclusion". It is not clear to me why the petitioners must give reasons beyond this. Taking the letter of 31 January 2002, together with the attached statements, I consider that the respondent was given fair notice of the petitioners' reasons for their decision. It does not appear from the summary of the respondent's submissions to the appeal committee in that committee's letter dated 14 May 2002 that the respondent was in any way inhibited by lack of reasons from developing full arguments against the decision. The decision to exclude was an administrative decision by a head teacher, which required to be intimated to the parent on the same day as it was made. Neither that decision, nor any reasons which might have been provided within the following eight day period, should be seen in the same light as reasons for a judicial or quasi judicial decision.
[42] In all the circumstances I shall grant reduction of the sheriff's interlocutor pronounced on 4 July 2003 and remit the matter to the sheriff to proceed as accords.