Scottish Sheriff Court Decisions

SHERIFFDOM OF GRAMPIAN HIGHLANDS AND ISLANDS

[2016] SC POR 12

B27/15

JUDGMENT OF SHERIFF J TIERNEY

In the case of

THE HIGHLAND COUNCIL

Pursuer and Appellant;

Against

THE SCHOOL CLOSURE REVIEW PANEL

Defenders and Respondent:

Act:  J Scott, QC;

Alt:   Blair, Advocate

Portree, 17 February 2016

The Sheriff having resumed consideration of the cause sustains the Defender’s first plea in law, dismisses the appeal and confirms the decision of the Defender. Appoints parties to be heard on all questions of expenses on a date to be fixed by the Sheriff Clerk.

NOTE

Introduction and Preliminaries

[1]        The Highland Council (hereinafter “the Council”) is the education authority for its area which includes the Isle of Skye. In March 2015 it decided to close four primary schools in North West Skye, namely the schools at Edinbane, Knockbreck, Struan and the existing school at Dunvegan (“the 4 schools”) and to replace them with a single purpose built new school at Dunvegan. The closure of schools in Scotland is subject to the statutory controls contained in the Schools (Consultation)(Scotland) Act, 2010 (hereinafter “the 2010 Act”) as amended by Part 15 of the Children and Young People (Scotland) Act 2014 (“the 2014 Act”).

[2]        In 2013 the Council embarked on a Sustainable Schools’ Estate Review (“SSER”) and instructed a consultant company to prepare a report. On 12^th May 2014 the report was received. It recommended that consideration be given to the building of a new school in NW Skye which, although the formal recommendations of the report did not explicitly state this, would effectively replace the 4 schools. On 21^st May 2014 the Council’s Education, Children and Adult Services Committee (“the Committee”) agreed to undertake a statutory consultation on a proposal to build a new community school in Dunvegan to replace the 4 schools.  A closure proposal to that effect was made under section 2 of the 2010 Act. This was followed by statutory consultation procedures including a public meeting, and on 8^th December 2014 the Council’s Director of Care and Learning (“the Director”) made a recommendation to proceed in terms of the proposal. On 13^th January 2015 the Council received a proposal from Edinbane Community Company (“ECC”) to take over the ownership of the Edinbane school and grounds and to be responsible for its maintenance and ultimate refurbishment, with the Council continuing to provide educational services. The Director’s recommendation was agreed by the Committee at a meeting on 14^th January 2015, with an additional proposal of dual zoning, and a recommendation to that effect was made by the Committee to the full Council, which was agreed at a meeting of the Council on 12^th March 2015. The ECC proposal was rejected at the meeting of 14^th January.

[3]        On 13^th March 2015 the Council intimated its proposals to the Scottish Ministers as required by the 2010 Act. On 1^st May 2015 the Scottish Ministers called in the proposal and referred it to the Convenor of the School Closure Review Panels, (“the Convenor”) who constituted a panel (“the Panel”) to consider the closure proposal. School Closure Review Panels were created by the 2014 Act for the specific purpose of reviewing proposals by education authorities to close schools. No such proposal, if called in by the Scottish Ministers, can be implemented by the education authority unless and until (subject to a time limit) it has been confirmed by a review panel. The decision of a review panel may be appealed to the sheriff on a point of law only, and the sheriff’s decision is final.

[4]        The closure proposal in this case is the first to be referred to and decided by a review panel, and the decision of the Panel in this case is the first to be appealed to the sheriff.

[5]        At the hearing of the appeal before me the Council was represented by senior counsel, Mrs Janys Scott QC, and the Panel was represented by counsel, Mr Scott Blair, Advocate.

[6]        At an early procedural hearing of the case the Parent Councils of the 4 schools had been allowed to lodge submissions, and two of them, Edinbane and Knockbreck, did so. Each of them indicated that their submissions would be the extent of their involvement in the appeal, and that they would not appear or be represented at the hearing of the appeal, as they, understandably, did not wish to undertake the financial risks of litigation. Counsel were agreed that I should read their submissions and take them into account to the extent I considered appropriate.

[7]        Having read the submissions, I consider that they deal mainly but not exclusively with matters of fact, and disputed facts at that, relating to the process followed by the Council prior to the decision of the Panel. Although these submissions are clearly supportive of the Panel’s decision they do not raise points of law arising out of it and are therefore not matters I can take into account.

[8]        That does not mean that the points raised by the two Parent Councils are unimportant, just that they are not matters for this appeal. In my view the appropriate stage for representations to be made in respect of a closure proposal is during the period after the decision to implement the proposal is taken. During this period any person may, in terms of section 15(4) of the 2010 Act, make relevant representations to the Scottish Ministers. Matters of law as well as fact can be raised in these representations.  The Ministers must, in terms of the Act, take these representations into account for the purposes of deciding whether to issue a call-in notice in respect of the proposal if they are relevant. The representations in this case would have been available to the Review Panel, who have a limited jurisdiction to enquire into the facts that a sheriff does not have. Both Edinbane and Knockbreck Parent Councils made powerful submissions to Ministers in this period.

[9]        At the outset of the hearing of the appeal, and although section 4(3) of the 2010 Act permits more than one proposal to be included in a proposal paper, I raised with counsel the fact that although the Council proposed to close four rural schools serving four separate and distinct communities, and build one new one to replace them, there was only one process, and the issues relating to the four closures the Council proposed were being dealt with collectively. I indicated that this was of concern to me as it could be that different considerations were relevant to different schools, and that it may turn out that I considered that the appeal should be allowed in respect of one or more of the schools but refused in respect of the remainder. Counsel were agreed that the matter should be dealt with as a package, and the hearing of the appeal proceeded on that basis.  This is the basis on which the matter had been dealt with from the pre-consultation stage through the consultation, the formal proposal to and decision by the Council, the calling in by the Scottish Ministers, and the procedures before the Panel.

[10]      The Education (Scotland) Act 1980 (“the 1980 Act”) by section 1(1) imposes a duty on every education authority to ensure that adequate and efficient provision of school education is made for its area.

[11]      The Standards in Scotland’s Schools etc. Act 2000 (“the 2000 Act”)

[12]      The Local Government in Scotland Act 2003 by section 1 requires a local authority in all its areas of operation to secure best value by continuous improvement in the provision of its functions while maintaining an appropriate balance between

[13]      The 2010 Act as amended by the 2014 Act sets out a number of requirements with which an education authority must comply when it proposes one of a range of actions including closing a school or opening a new school. The 2014 Act amendments were brought into force in stages over a number of months. The majority, including most of the significant “rural schools” amendments, came into force on 1^st August 2014 and did not apply to proposed closures where the proposal paper was published by the education authority before that date (SSI 2014/165 art 5). Most of the August 2014 amendments therefore do not apply to the proposals in relation to the schools at Edinbane, Knockbreck, Struan and Dunvegan, the proposal paper for which had been published on 23rd May 2014. The amendments relating to the creation, duties and powers of School Closure Review Panels, and appeals from their decisions, came into force on 30^th March 2014 and do apply to the closure proposal which is the subject matter of this appeal.

[14]      Section 1(3) of the 2010 Act sets out a number of initial requirements which an education authority must comply with if the authority has formulated a relevant proposal in respect of any school. These are

[15]      Section 1(4) sets out subsequent requirements which must be complied with namely

[16]      Sections 3 to 11 make detailed provisions in respect of each of the requirements.

[17]      Section 12 (which is of crucial importance in this case) makes provision for factors which are to apply when there is a proposal to close a rural school as defined by the Act. Subsection (2) provides that in such a case “the education authority must have special regard to the factors mentioned in subsection (3).” Subsection (3) lists the factors, which are hereinafter referred to as the “rural factors” as

[18]      Subsection 4 provides that the effect on the community is to be measured by reference (in particular) to

[19]      Sections 13(2) and (3)(a) require respectively that the proposal paper and then the consultation report must, in addition to other statutory requirements as to their contents, explain how the education authority complied with section 12 when formulating and reviewing the proposal. Section 13(3)(b) requires that the consultation report must also explain any change of attitude the education authority has had which is attributable to its compliance with section 12. [Note. This original section 13 does not apply to cases where the proposal paper was published on or after 1^st August 2014.]

[20]      Section 17 makes provision for the Scottish Ministers to call in a closure proposal where it appears to them that the education authority may have failed

[21]      Sections 17A (1) and (2) provide that where a call-in notice is issued as respects a school closure proposal the Scottish Ministers must refer the proposal to the Convenor who must constitute a panel to review the proposal.

[22]      Section 17A (6) and Schedule 2A (1) and (2) provide for the establishment of the office of Convenor, of the panels themselves and for the appointment of members to serve on the panels. Regulations made under the Act provide that only persons considered to have knowledge or experience relevant to their respective functions under the Act are eligible for appointment as Convenor or panel member.

[23]      Section 17B (1)provides that the panel must consider both

[24]      Section 17C (1) provides:- “Following a review of a closure proposal … the School Closure Review Panel may -

[25]      Section 17C (2) requires the panel to give reasons for its decision.

[26]      Section 17C (4) provides- “The Panel may refuse to consent to the proposal under subsection (1)(a) or (b) above only if the Panel finds either or both of the following-

[27]      Section 17D (1) and (2) provide that either an education authority or a relevant consultee may appeal the panel’s decision to the sheriff on a point of law only.

[28]      Subsection (3) provides that in the appeal the sheriff may either confirm the decision or quash the decision and refer the matter back to the panel.

[29]      Subsection (4) provides that the sheriff’s determination of the appeal is final.

[30]      Section 19 provides that in exercising their functions under the Act both the education authority and the panel must have regard to any guidance issued by the Scottish Ministers.

[31]      Detailed guidance was issued by the Scottish Ministers in February 2010. On page 1 in the paragraph headed “To whom this guidance is addressed” it states that the guidance “is intended to help ensure that full, fair and rigorous consultations are undertaken”. In the next paragraph it states “It is important that [those with an interest in school closures] are reassured that the consultation and decision making process and procedures are fairly, fully and rigorously carried out by the local authority.”

[32]      On page 2 in the paragraph headed “The Educational Benefits Statement” it states that the authority must “include its reasons for reaching the views which it sets out regarding the educational benefits”, and that “reasons should be supported by evidence to assist consultees in their understanding of the envisaged educational benefits.”

[33]      On pages 4 to 5 of the guidance under the heading “The Proposal Paper” it is stated that “the proposal paper itself is where the authority can and should set out all the other contextual and relevant evidence and information around and in support of the proposal.”

[34]      At pages 8 and 9 the Guidance Note, under the heading “Special Provision for Rural Schools – Sections 12-14 of the Act”, deals with the rural factors set out in section 12.

[35]      In respect of the first, any viable alternative to the closure proposal, it states “The intention here is to ensure that when an option to close is proposed, the decision to consult on that option is a last resort, only proposed when all other viable options have been considered.”

[36]      The second rural factor, the likely effect of the school’s closure, is addressed with reference to the local community’s viability, the possibility of use by the community of the school’s buildings, facilities and grounds.

[37]      The third rural factor, the likely consequences of the closure on travel and transport arrangements, is addressed with reference to health and wellbeing, environmental impact, and the potential for bad weather impacting on travel.

[38]      In the final paragraph of this section of the Guidance Note reference is made to the requirements of section 13 of the Act for the education authority explicitly to set out, in both the proposal paper and again in the consultation report, how it gave special regard to the three rural factors.

[39]      In 2012 the Council embarked on a SSER. As part of that review they engaged a private firm of consultants, Caledonian Economics Limited (“CalEc”) to carry out a review of the school estate in the Portree High School Associated Schools Group (ASG). This is the group of primary schools feeding Portree High School. The 4 schools are part of that group. CalEc’s brief was to “identify any potential reconfiguration ideas that had the potential to confer educational benefit compared to the status quo.” On 11^th December 2013 CalEc produced a briefing paper which suggested among other things that consideration be given to building a new North West Skye Primary School in Dunvegan to replace the existing Dunvegan and Knockbreck Primary Schools and all or part of the catchments for Edinbane and Struan Primary Schools. (referred to at Pursuer’s First Inventory of Productions (hereinafter “PFIP”) p 63. The footnote to the proposal said “communities will be involved in deciding the zoning.”)

[40]      On 12^th May 2014 CalEc produced a final report to the Council, (PFIP pp 58 to 130) which is a detailed examination of various aspects of the issues considered by them including, in the order they appear in the report, The Initial Idea, Details of the Existing Schools, Roll Forecasts for the 4 schools, a Summary of reports by HM Inspectorate of Schools,  School Transport, the effects on the local economy, options considered, a more detailed examination of the preferred “New School Option”, A Qualitative assessment workshop and the results thereof, an analysis of an online survey, Conclusions, and Recommendations. This report is looked at in detail below (paras 54 to 77 hereof).

[41]      The Conclusions included (PFIP p 122) that “the existing schools in North West Skye are performing well and their strengths are recognised by the communities they serve”; that “the current school buildings ….. are generally below the “Good” standard specified in national guidance”; that “….. it was thought that a new school comprising the pupils from the existing catchment areas would have a single Gaelic medium class and either two or three English medium classes dependant on placing requests uptake of Gaelic and other factors”; and that, summarising, a number of potential positive and negative impacts had been identified.

[42]      The Recommendations (PFIP p 123) were that

[43]      On 21^st May 2014 the Committee agreed that “a statutory consultation be undertaken on the proposal to build a new community school at Dunvegan, Isle of Skye, replacing the current Dunvegan, Struan, Knockbreck and Edinbane Primary Schools,” and on 23^rd May 2014 the Committee published its formal proposal paper to that effect (PFIP pp 47 to 56). The proposal paper stated at para 1.2 that “it is informed by an extensive engagement process and option appraisal methodology.” The CalEc Report is stated to be the option appraisal report and is appended to the proposal. The Council set out (PFIP p 47) what it proposed to do, subject to consultation, namely to discontinue the provision of education at the 4 schools, to establish a new amalgamated community primary school for North West Skye on a new site at Dunvegan, and to combine the four catchment areas of the 4 schools to serve the new school.

[44]      Parts 2, 3, 4 and 5 of the proposal paper summarised the current details of each of the 4 schools proposed for closure, including the physical extent and condition of the school buildings, the school rolls and projected rolls (including pre-school numbers at Dunvegan and Knockbreck, those classes being mothballed at Edinbane and Struan), ratings for suitability and condition of the school, staffing and transport.

[45]      Part 6 (pages 52 to 53) gave some information about the proposed new school, which was clearly intended to be a state of the art facility.

[46]      Part 7 (pages 53 to 54) set out the Educational benefits, and listed at 7.2 a number of “indicators” it had borne in mind, including the need for category B facilities, transport issues, and a three teachers test.  At 7.4 it listed the benefits which, at 7.4, it said would arise from a new school either from moving closer to the ideal of 3 classes (which it said had been identified in other studies) or from the opportunity to have a purpose designed and built building ideally suited for delivery of a modern education.

[47]      Part 8 dealt with the effects on school transport.

[48]      Part 9 dealt with effects on Staff and School management.

[49]      Part 10 dealt with effects on the local community. 10.2 recognises there would be a certain loss of use of school facilities; 10.3 identified the possibility of a loss of focus and identity in the communities; 10.5 stated that if the merger proceeded the buildings would be offered to other Council services first, then the Council would consider bids from the communities.

[50]      Part 11 dealt with financial aspects.

[51]      Part 12 dealt with the examination of alternatives by reference to the Options Appraisal in the CalEc Report which is considered in detail later.

[52]      Part 13 contains the recommendation to merge all 4 schools into the new build school at Dunvegan.

[53]      The CalEc Report was scrutinised closely by the Panel, and was clearly central to the Council’s decision to close the four schools. Although this appeal is limited to questions of law in this case these questions are inextricably linked to the facts on which the Council’s proposal to close the four Schools proceeded. It is therefore necessary to set out in some detail the matters contained in the final CalEc report which formed the basis of both the consultation process and the final proposal made to ministers.

[54]      The CalEc Report extends to 66 pages with some 360 pages of appendices which contain much of the documentation referred to in the body of the Report. It is a substantial piece of work. In the following paragraphs I summarise the report so far as seems to me relevant for the purposes of the appeal. In addition to the four schools which are the subject of this appeal it was concerned peripherally with Carbost and Macdiarmid primary schools.

[55]      Part 1 of the report is introductory and sets out the context of the report, namely the SSER, some of the ideas considered, and the need for subsequent consultation. It recognises that the report itself may form part of the supporting evidence used in a subsequent statutory consultation. It draws attention to the importance of the educational benefits statement, but not to the rural factors.

Buildings

[56]      Part 2 deals with the rating of both the condition and suitability of each of the school premises. Ratings go from A-Good through B-Satisfactory and C-Poor to D-Bad. The four schools were rated (condition first) as follows:-Dunvegan C:B, Edinbane C:C, Knockbreck B:C and Struan C:B. The report stated that the Council should target investment to ensure that as many pupils as possible were educated in buildings that were good or satisfactory.

[57]      Part 3 deals with the school roll forecasts for each school. The school rolls for each school as at September 2013 were Dunvegan 51, Edinbane 6, Knockbreck 4 and Struan 6. The forecast for the years up to 2027/28 were that Dunvegan would decline to about 30 by 2018/19 and remain stable thereafter, that Edinbane would steadily increase to 14, that Knockbreck would increase steadily to 11, and that Struan would increase to about 10 in 2020/21 and stabilise thereafter.

[58]      Not all pupils living in a school catchment area attend that school. As at September 2013 of 49 pupils living in the Dunvegan area 48 attended Dunvegan and 1 Struan. Of 15 living in the Edinbane area 6 attended Edinbane, 7 attended Portree and 1 each attended Dunvegan and Macdiarmid. Of the 8 pupils in the Knockbreck area 3 attended Knockbreck, 1 attended Portree and 4 attended Dunvegan. All the pupils in the Struan area attended Struan.

[59]      In the years from 2003 there have been 24 placing requests from the four areas to go to other schools, 11 from Dunvegan, 8 from Edinbane, 3 from Knockbreck and 2 from Struan. 16 different reasons were given.

[60]      Part 4 deals with HM Inspectorate reports. Each of the schools had been inspected once between 2007 and 2011. From the synopsis provided by CalEc it would appear that each of the four schools was doing reasonably well with areas for improvement in each.

[61]      Part 5 deals with School transport. The Education authority is required by law to arrange transport for pupils to and from school so that they do not have to walk more than 2 miles each way if under 8, or 3 miles each way if over 8. At Dunvegan Primary 37 out of 51 pupils (73%) use school transport. The figures for Edinbane are 1 out of 6 (17%), for Knockbreck 3 out of 4 (75%), and for Struan 2 out of 6 (33%). In total in the group of 4 schools 43 out of 67 pupils (64%) currently use school transport. The Portree All Schools Group Primaries figure is 51%. The all Highland Primaries figure is 17%. It is noted in the report that pupils from smaller schools are regularly transported to other schools in their area to benefit from activities not available in their own school. No details are given. That intra-day transport would not be necessary if the proposed new school was built. The report states that if the Council decides to conduct a statutory consultation a comprehensive analysis of the numbers entitled to free school transport would be undertaken, but from the data available it appeared that the building of the proposed new school would increase such numbers by about 10.

[62]      Part 6 deals with the local economy. It provides some detailed demographic information including age groups, housing tenure types and occupancy rates, economic activity and employment.

Options appraisal and Shortlist

[63]      Part 7 deals with the options considered. There are 16 options or ideas set out ranging from leaving the schools as they are (Idea A) to replacing each school with a new one (Idea B), to building a new school at Dunvegan, closing Knockbreck and merging with Dunvegan, and closing Edinbane and Struan and merging all or parts of the catchment areas with Dunvegan and the remainder of the catchments with either and respectively Macdiarmid and Carbost (Idea M). In the middle are 10 other options involving the merger of pairs of the 4 schools, or the merger of one or more of the 4 schools with Carbost or Macdiarmid, and building a new school at Skeabost.

[64]      In the words of the Report:- “Before committing time, energy and resources to exploring those in detail an initial filtering process was carried out to identify those options which appeared to be most reasonable and viable and which showed the greatest potential to deliver educational benefit and to enhance the overall quality and standard of the school estate. To do this two tests were applied to each of the ideas explained above.” The first test was “Would the implementation of the idea increase the likelihood of more pupils being taught in a school with at least 3 classes?” This was said to be based on a belief “that significant educational benefits are believed to accrue when a school reaches this level.” The second test was “Would the implementation of this idea increase the number of pupils in buildings with condition and suitability ratings of at least B-B?”

[65]      The effect of the short listing tests as applied to Ideas A to M was to exclude Ideas A to L and to leave Idea M as the sole survivor. The conclusion at the end of para 7.3 (the shortlisting exercise) was “From the above analysis it is clear that idea M is the most reasonable and viable option and the one therefore which merits being explored further.” No other option appears to have been explored further. Idea M only passed the 3 class test if the Gaelic medium class was included. It also however increased the possibility of there being three classes in the English medium.

[66]      Part 8 deals with the new Dunvegan school proposal. As I understand it Gaelic and English Media pupils are by and large taught in separate classes.

[67]      Parts 9 and 10 deal with a Qualitative Assessment Workshop conducted by CalEc in February 2014. Its purpose was “to obtain a professional view on the educational advantages that might be delivered by a new build school in line with idea M compared to the existing configuration [idea A]”. The participants were 5 of the thirteen Primary School Head Teachers in the Portree High School ASG. The five were not identified but were said in Para 9.2, last sub para, to represent “a very significant body of professional wisdom and knowledge with experience of working in many schools of a range of sizes across Skye, the Highlands and overseas.” [No further details of the knowledge and experience of the five head teachers were given, nor whether there were any possible conflicts of interest.]

[68]      The five attendees were provided in advance with preparation papers including draft lists of factors for each of three proposed groups namely “In the Classroom”, “Beyond the Classroom” and “Beyond the School” (Appendix 2 to the Report). These factors are said to have been identified by other Head Teachers during similar studies elsewhere in the Highlands and in other parts of Scotland (PFTP p 133). The attendees were asked to rate the effect on the proposed new school of the various factors in each group, compared with the status quo. The ratings were:- significantly better, slightly better, neither better nor worse, slightly worse and significantly worse.  In that order of rating the 11 ”In the Classroom” factors were rated 5:2:3:0:1, the 10 ”Beyond the Classroom” factors were rated 4:2:3:0:1, and the 7 ”Beyond the School” factors were rated 0:1:3:3:0. Of the 28 factors looked at the combined total reading was 9:5:9:3:2. The Report states that the 5 Heads gave equal consideration to each individual factor and to each group of factors, and treated them as being of equal importance (para 10.5, PFIP p98). It also states, on the same page, that “It is important to recognise that a school’s primary function is to provide pupils with the best possible educational experience. The Council’s obligations in terms of the Standards in Scotland’s Schools Act 2000, the central role of the Educational Benefits Statement [in terms of] the 2010 Act and the emphasis on the “whole child” embedded in the national model “Getting It Right for Every Child” and Curriculum for Excellence suggest it would be natural to look first to the “In the Classroom” and “Beyond the Classroom” factors to provide an indication as to which of the ideas should be the preferred option.”

[69]      The conclusions of this part of the Report are set out in paras 10.6 (positive aspects of a new build) and 10.7 (negative aspects of a new merged school), the overall conclusion being that the proposed new school could be expected to deliver a wide range of very valuable long term educational benefits to pupils on a stable and sustainable basis, and therefore this should be the preferred option.

[70]      The benefits are said (para 10.6) to derive either from the numbers at the new school coming close to the ideal of three classes identified in “other studies” [the other studies are not identified], or from the opportunity to design a building ideally suited for the delivery of a modern education.

[71]      Twelve positive impacts are identified including improving pupils’ chances of reaching their full potential through flexible teaching approaches, the benefits of working in groups, the presence of sufficient staff, access to specialist services, providing better access to sport and recreational activities, including music and the arts, improving social skills, forging friendships, developing self-esteem, all the benefits of a new building designed to deliver education in a good environment, the integration of community services in the school, and the opportunity to explore developing other community services at the school.

[72]      It is recognised that there are advantages in the status quo and negative aspect arising from the proposal (para 10.7) including Head Teacher management time, school travelling and transport, the potential for loss of focus and identity in the affected communities, and the possibility of less interaction between the school and the individual communities, particularly in the case of Struan.

[73]      Section 11 of the Report deals with an online survey carried out to provide a snapshot of the public response to the ideas contained in the report. While outlining some benefits of such a survey the report sets out a number of reasons why such a survey must be designed and its results interpreted with care. 149 responses were submitted, of which 97 were complete. When asked with which of the Portree schools they were most closely associated (more than one school could be ticked), 53 said Dunvegan (of which 20 were in the Gaelic class) 24 Edinbane, 33 Knockbreck and 20 Struan. Of the 97 who answered the question as to the area they lived in, 75 live in one of the catchment areas for the four schools (Dunvegan 20, Edinbane 17, Knockbreck 24 and Struan 14.) There were questions covering a range of topics relating to the perceived strengths and weaknesses in existing schools and the importance of these matters in a new school.

[74]      There was a question each as to the acceptability of two Ideas. [Note these were different Ideas from those referred to in paras 63 and 65 above.] Idea A was the status quo, with the schools being maintained to their existing standards, and Idea B was the merger of the four schools into a new school at Dunvegan.  On the question of acceptability of Idea A, 46% of all respondents said this was acceptable, 28% said it may be acceptable but they had concerns, 21% said it was unacceptable and 4% did not know. The comparable percentages for Idea B were 41:13:43:3.

[75]      Dunvegan residents voted 15:50:35:0 for Idea A, and 80:10:10:0 for Idea B. Edinbane residents voted 76:18:0:6 for Idea A, and 6:6:88:0 for Idea B. Knockbreck residents voted 62:0:38:0 for A and 38:8:54:0 for Idea B. Struan residents voted 50:29:21:0 for Idea A and 36:21:43:0 for Idea B. Clearly the residents in Dunvegan supported the new school, the residents in Edinbane had a marked support for their own school and a marked rejection of the new school, while Knockbreck and Struan showed a preference for their own schools but a greater willingness to accept the new schools.

[76]      Para 12 sets out the conclusions and recommendations of the whole study. It is recognised that the schools are performing well and are valued by their communities, but the buildings are generally below ‘good’, and two thirds of the four schools pupils use school transport. The combined rolls of the schools are likely to remain at 60-70 for the next decade, and the proposed new school would have a single Gaelic Medium class and either two or three English Medium classes. There are a number of potential educational benefits from the larger numbers of pupils and staff at the new school but a number of negative impacts including the use of transport and a possible loss of identity and interaction between the existing schools and their communities. It is recognised that there is a wide range of views for and against the idea of a new school. It is thought that due to the size of some of the schools, staff are restricted in the deployment of teaching techniques. It is a fact that some of the pupils currently have to be transported during the school day to other locations to participate in activities which the existing school cannot deliver due to its size.

[77]      The principal recommendation was that the Council take the idea of the new school serving North West Skye forward and carry out statutory consultation. There are ancillary recommendations relating to the identification of a site and initial outline design work for the new school, the need for a financial analysis, and an analysis to understand the needs for school transport and the viability of safe walking and cycling routes.

[78]      This was held in Dunvegan on 16^th June 2014, was attended by about 50 persons and had a panel consisting of 1 councillor who chaired the meeting, 4 representatives of the Council Executive and 2 representatives from CalEc. The meeting started with the Council’s Area Education Manager Norma Young and Frank Newall of CalEc speaking to the proposal paper. There followed what reads as a lively Question and Answer session with questions raised and observations made by attendees on the educational benefits of a larger new school, the 3 class test, the size of classes and projected school rolls, travel times to the new school, Beyond the School factors affecting the communities, the quality of the existing schools and financial matters. There were many parents and others who were clearly unhappy about the proposal. The validity of the 3 class test was challenged (at p157) with a request for “some proper educational, scientific or statistical research that back this claim up.” The meeting was told by Frank Newall that there was no “clinical data” and that the tests were based on the opinions of many head teachers CalEc had spoken to. There was reference by the questioner to OFSTED research and data showing that “schools with 1-50 pupils are performing significantly better than those with 51 to 100”. This was described as “a very large data set from inspectors with no axe to grind”. There is no indication in the CalEc Report or in the Consultation Report that this matter was looked into further by or on behalf of the Council.

[79]      In addition, as part of the consultation the Council invited and received a number of written submissions from interested parties, including parents, pupils, Parent Councils, and members of the affected communities. These submissions covered a wide range of relevant issues including the role of CalEc, the 3 class test, the perceived educational benefits, Beyond the Classroom and Beyond the School issues, travelling, environmental matters, nursery classes, social aspects and financial aspects. Although most were opposed to the new school proposal some were in favour of it. Several expressed concern about the information provided and the CalEc and Council responses to questions raised at the public meeting. Some of the responses were in detailed and considered letters, some in response to questionnaires issued by the Council.

[80]      In September 2014 Education Scotland (formerly HM Inspectors of Education) prepared a report on the proposal and the statutory Consultation. At the end of para 3.1 they state that the enhanced physical learning environment of the new school will be of significant educational benefit to the children affected. In para 3.2 having reviewed the parents’ response to the issues of numbers of classes and teachers, they state that the Council needs to set out clearly and specifically how implementation of the proposal will improve learning and outcomes further for children. In para 3.3 they call for further work by the Council to address financial issues. In para 3.4 they note the feeling of almost all parents and community representatives from Edinbane, Knockbreck and Struan and a few from Dunvegan that the proposal did not take sufficient account of the impact of the proposal on the economic viability of their communities, and that many parents from the three moving schools would choose to send their children to Portree. They state concerns about the Council roll projections for the new school and the impact on the viability of the proposal. In para 3.6 they review the continuing concerns expressed by stakeholders about the 3 class test/options appraisal; about the impact on communities; and about travel aspects. They state that “in its final consultation report the Council will need to consider these factors in more detail.” In the summary at para 4 they state that a large number of parents are not convinced that the proposal will result in educational benefits for their children, and that the Council needs to be more clear and specific in its proposals and needs to ensure that the final consultation report considers and takes reasonable account of the views and concerns of parents, pupils and the wider community.

[81]      On 8th December 2014 the Director issued a Review document and consultation report which reviewed the original proposal in the light of the consultation. In Part 5 of the Review he grouped the issues he felt had been raised in the consultation and set out his response to these issues. He identified and responded to 27 separate issues or groups of issues raised by the public. The issues and responses are set out at pages 24 to 36 of the PFIP.  At Response 16 the Director states that one of the indicators the Council had adopted for the SSER was that “Teachers should be members of a professional learning community comprising at least three members located in the same facility. This is therefore a matter of Council policy.” (PFIP p 32).  In addition, co-location of teachers in the one school was clearly an advantage, and would allow teachers to employ a range of approaches to meet the needs of all pupils including special needs. There is no specific reference to the basis for the 3 class test, or to the claimed superiority of performance of schools of 1-50 pupils.

[82]      At part 6 (pages 36 to 41 PFIP) the Director set out his responses to issues raised by Education Scotland, being those set out in para 81 above. It deals in considerable detail with para 3.2 issues, namely the educational benefits, and provides financial info in response to para 3.3.

[83]      So far as the financial information is concerned this is contained in Appendix 7 to the proposal at PFIP pages 473 to 476. Page 474 sets out the capital costs of (1) bringing all 4 schools up to A-A standard and (2) constructing the new school.  The comparison shows that the total capital cost of option (1) is £10,129,131 and the comparable cost for option (2) is £14,460,575. Both the construction costs and the capital life cycle costs are higher for option 2.  Against this the gross revenue costs of the 4 schools is shown at page 473 as being £650,996 per year for option 1, against £438,494 for option 2, a saving for option 2 of £212,472 per year. (My note shows that Mrs Scott had a revised figure of £225,000).

[84]      [I note that no similar information is given for bringing the existing schools up to B-B (acceptable) standard, although that standard was used as the second filter in the options appraisal, nor is any reason given for this omission.]  

[85]      The report provides a response to the question of Roll projections by means of a set of tables using different assumptions at Appendix 8 of the review (pages 478/9 of PFIP).

[86]      The Review concluded in para 12.1 that the Council has given special regard to the rural schools’ factors set out in section 12 of the 2010 Act. It does not state how it did so, nor if or how its attitude had changed as a result of the consultation.

[87]      In para 12.4 the Director concluded that the best and most sustainable educational provision for the area currently served by the 4 schools would be through a new merged school in Dunvegan.

[88]      In para 13.1 he therefore recommended to the Council that the proposal to close the 4 existing schools, to establish a new amalgamated school for North West Skye in Dunvegan and to combine the existing 4 catchments to form the catchment of the new amalgamated school be approved.

[89]      The written submission of Struan Community Council (pages 485-7PFIP) in the Consultation exercise had been omitted from the review. The submission (a) sought information relating to placing requests for a period of 5 years, and (b) proposed Carbost Primary School as a better option for Struan to merge with if the closure went ahead. After publication of the Review and recommendation the Community Council drew this omission to the attention of the Council. The Council issued an addendum to the review report (a) declining to disclose placement details on the grounds that given the small populations of the 4 communities and the small number of requests disclosure could easily have led to individual pupils being identified, and (b) stating that the Carbost alternative had been considered in the Option appraisal section of the CalEc Report.

[90]      On 13^th January 2015 the Council received a proposal from Edinbane Community Company (“ECC”) to take over the ownership of the Edinbane school and grounds and to be responsible for its maintenance and ultimate refurbishment, with the Council continuing to provide educational services.

[91]      On 14^th January 2015 the Committee, on the recommendation of the Director, rejected the ECC proposal and decided recommend to the Council to discontinue education provision at the 4 schools; to establish a new amalgamated community primary school for North West Skye on a new site in Dunvegan; to combine the existing school catchments for the 4 schools to form the catchment for the new school; and to initiate a new consultation to consider dual zoning for any family wishing to attend Carbost or Macdiarmid Primary Schools (page 18 PFIP). This was a new proposal which had not formed part of the process to that date.

[92]      On 12^th March 2015 at a meeting of the Council in Inverness the Council, following discussion, agreed to discontinue education provision at the 4 schools; to establish a new amalgamated community primary school for North West Skye on a new site in Dunvegan; to combine the existing school catchments for the 4 schools to form the catchment for the new school; and to initiate a new consultation to consider dual zoning for any family wishing to attend Carbost or Macdiarmid Primary Schools (page 18 PFIP).

[93]      On 13^th March the Council, in accordance with the statutory requirements, formally advised the Scottish Ministers of the closure and new build decision, forwarded them a copy of the Review and Consultation Report with the original proposal paper and the documentation, and published a notice on its web site informing interested parties of its decision, that it had notified Scottish Ministers and of the process for making representations to Ministers (page 17 PFIP).

[94]      Following publication of the Council’s decision the Scottish Ministers received numerous representations which are contained in pages 21 to 53A of the Pursuer’s Second Inventory of Productions (PSIP). Representations were made by two local MSPs, by Waternish Community Council and Skeabost and District Community Council, by Edinbane Community Company, by parent Councils and by individuals.  Common themes are the failure to consider the wishes of the local communities on catchment areas, with an obvious potential impact on the roll of the new school, and a failure to have special regard for the effect of the proposal on the affected communities. The great majority of the recommendations expressed dissatisfaction with the proposal and with the consultation procedure.

[95]      In addition, ministers sought information from Education Scotland as to the Council’s response to their Report of September 2014, and in particular to what extent the additional information the Council had provided was sufficiently specific to the schools concerned, and to what extent Education Scotland considered that the proposal would improve learning and teaching outcomes further for children. Education Scotland replied that they considered that the Council had taken reasonable steps to address their earlier concerns.

[96]      On 15^th April the Scottish Ministers (at pages 59 to 61 PSIP) asked the Council for a response on some key issues which might not be contained in the Consultation report. These included (a) information regarding the nursery classes at the three schools, where this issue was dealt with in the proposal document or consultation report, and where in these documents there was reference to community impact, travel arrangements and alternatives to closure where these were distinct from the school closures; (b) information relating to travel times; (c) information on consultation on catchment areas relating to dual zoning; (d) in respect of school roll projections further explanation of Appendix 8 to the report and most likely scenarios, separate roll projections for Gaelic and English Medium classes, and an explanation of the Council’s views on the fact that some of the roll projections do not appear to meet the 3 class test, and that given the existence of separate medium classes were likely to include a wide range of stages, possibly P1 to P7 some projections; and (e) information on Edinbane Community Company’s proposal to take over ownership of the school, including refurbishment of it, with the Council continuing to provide education services.

[97]      The Council provided a detailed response (pages 62 to 66 PSIP).

[98]      On 1^st May 2015 the Scottish Ministers issued a notice calling in the Council’s proposal. On the same date they referred the proposal to the Convenor in order that he constitute a Review Panel to review the proposal and reach a decision in terms of sections 17B and 17C of the 2010 Act. The Convenor duly convened a panel on 7^th May 2015 and on the same day the Council was notified of this.

[99]      On 12^th June 2015 The Chair of the Committee and the Director wrote a joint letter to the Convenor in respect of the grounds for call-in (PSIP pp 96-99). They submitted

[100]    On 29^th June 2015, having reviewed all the documents and having looked at the totality of what had been considered by the Council, the Panel decided that the Council had not fulfilled its obligations under the 2010 Act, and refused to consent to the Council’s proposal, in accordance with section 17C (1)(a) of the 2010 Act. (Decision para 1)

[101]    At paras 7 & 8 the Panel identified the fact that not all of the amendments made to the 2010 Act by the 2014 Act were in force at the time when the Council’s original proposal paper was published on 23^rd May 2014. It proceeded on the basis of the provisions of the 2010 Act as amended by the few provisions of the 2014 Act which were in force on that day. It noted that the Council was not obliged in this case to comply with the new rural schools provisions which came into force on 1^st August 2014.

[102]    At para 9 the Panel stated that it had due regard to the Statutory Guidance on the 2010 Act.

[103]    It identified (para 10) its task as being to review the Council’s decision in order to determine whether the Council had complied with the requirements imposed on it by or under the 2010 Act, so far as relevant in relation to the closure proposals, in terms of section 17B (1)(a) and (b) of the 2010 Act.

[104]    The Panel appears to have had regard to section 12 throughout its deliberations. Section 12(2) provides that the education authority must have “special regard” to the factors mentioned in subsection (3), the rural factors. The Panel stated its view “that section 12(2) of the 2010 Act uses the word “special” for a particular purpose……  if the word “special” is to have its ordinary meaning it must mean that the education authority in question must have more than a fleeting consideration of …..” It cited the OED, that “special” means “better, greater or otherwise different from what is usual” (Decision para 28).

[105]    The Panel considered 3 separate aspects of the closure proposal, namely Roll Projections, Catchment Areas and Viable Alternatives to Closure (paras 13 to 39), and Nursery Closures (paras 40 to 48). It applied the Section 12 tests in respect of each of these matters. Its considerations relating to travelling times (paras 49 and 50) were not part of the appeal.

[106]    At para 51 the Panel formally concluded in respect of the matter as a whole that the Council “has failed in a significant regard to comply with the requirements imposed on it by or under the 2010 Act so far as they are relevant to the proposal” and accordingly refused its consent to the proposal in terms of section 17C (1)(a) of the 2010 Act.

[107]    That omnibus conclusion proceeded upon determinations by the Panel of a number of specific instances where it found the Council to be in breach of its obligations under the 2010 Act.

d.   The Panel held that the Council had not conducted an explicitly recognisable consultation, with regard to nursery closure, and in particular had not had special regard to the rural factors set out in section 12(3) of the Act. The closure of the 3 nursery classes was not given the necessary prominence in both the Proposal Paper and in the Consultation Report. The requirement to have “special regard” was mandatory, and the use of the word “special” suggested that the regard must be serious and considered (para 47). The Panel held that the Council had failed in a significant regard to comply with the requirements imposed on it by or under the 2010 Act, specifically the requirements in section 12(2) and (3) relating to rural school closures.  It found the failure to be a significant one which went to the core of whether or not there had been a genuine consultation with the public. The Panel had regard to the decision in Comhairle na Eilean Siar v The Scottish Ministers [2013] CSIH 6 (hereafter “Eilean Siar No. 1”) and the reference at para 54 of the judgment to the importance of ensuring that “the rigorous consultation procedure set out in the 2010 Act is not elided in any way yet pays due respect to the primacy of the local education authority’s role”. While acknowledging that primacy, the Panel considered that the rigorous consultation procedure demanded by the 2010 Act had been elided. [A second decision in the case at [2013] CSIH 45 is hereafter referred to as “Eilean Siar No. 2”]

[108]    For completeness I should say that the Panel finally considered the issue of travelling times for pupils. It considered that the issues relating to travel could be dealt with by conditions, but having regard to its other decisions in the case decided that it was not necessary to set out conditions at this stage.

[110]    The Council stated (Condescendence 2) that the issue in the case was whether they were able to close 4 primary schools, and said that by statute they could not leave the schools as they are, and that no viable alternative to closure had been identified. They pointed out that if the appeal was refused the Council would not be able to start new proposals to close the schools till 2019. In Cond 3 they said that this was the first case for a Panel, and that they had made errors of law including misinterpreting the legislation and taking into account impermissible factors. The Panel had founded on section 17C (1)(a) of the Act with reference to the rural factors of (a) any viable alternative to closure, (b) the likely effects on the local community and (c) the likely effect on travelling arrangements, and in so doing had erred in its interpretation of the Act. In respect of (a) they said (Cond 4) that the Panel referred to the Options C to M in the CalEc Report which Options did not refer to alternatives to Closure but options to be considered in the event of closure. In Cond 5 they said the Panel had erred in its approach to the three class test in a new school in the event of closure of the old, pointing out that the panel had no remit to refuse consent to the establishment of a new school. They further said the Council had been entitled to convene the meeting of the 5 local head teachers and to take their views into account in making their proposals. In Cond 6 they submitted that the Panel had erred in holding that the Council was in breach of section 12(3)(b) and (c) of the Act by recognising the importance of its legal obligations under other legislation, and the importance of the educational benefits statement and government educational policies. The Council was entitled to weigh the factors and the Panel was not entitled to substitute its own views on weight (referring to Eilean Siar No. 2) and had been wrong in law to find fault with the weighing process. The Panel had further erred in law (Cond 7) by taking into account representations made after the closure of the statutory consultation process about school catchment areas (which the Panel had in any event misunderstood). The Panel had erred in law (Cond 8) in holding that the Council had failed to conduct an “explicitly recognisable consultation with regard to Nursery closures”; there were no separate nursery schools affected by the proposals. In Cond 9 they submitted that to “have special regard” to the rural factors did not imply that a Council cannot take a step which may have an adverse effect on the local community or on travelling arrangements and referred to Harvey v Strathclyde Regional Council 1989 SLT (HL) 612. “Special regard” required to be construed in accordance with the Inner House decision in Eilean Siar No. 2. In Cond 10 they said that the Panel had erred in law in applying a test of a “rigorous” consultation procedure rather than whether the pursuer had failed in a “significant regard” to comply with the requirements of the Act. It was of critical importance that the test of significance was applied. The Panel had erred in applying a severe test that was not authorised by statute and which impedes the Council from carrying out its statutory duties.  None of the reasons given by the Panel could be sustained.  The matter should not be sent back to the Panel for reconsideration as it was implicit in section 2A of the 2010 Act that the Panel should make only one decision. 

[111]    Summary of the Panel’s written pleadings.

[112]    The Panel stated (Answer 2) that the only issue in the case was whether their decision that the Council had breached its duties under the 2010 Act was a lawful decision. The appeal was on a point of law only and that issues such as the closure of the schools, the state of the schools, the roll of the schools, the Council’s views as to whether it could comply with other legislation, or when the Council could make a further closure proposal were not relevant considerations for the Court. In Ans 3 they said that the issue as to this being the first decision of the Panel was wholly irrelevant. The Panel was an expert panel appointed in terms of the relevant Regulations, and as such its decision should be respected.  The Panel had been entitled to find that the Council had failed to have special regard to the rural factors in respect of viable alternatives, the likely effect on the local community and the likely effect on travel arrangements. In Ans 4 the Panel denied that it had erred in law in holding that the Options were options following closure not alternatives to closure. It said that it had properly understood the material before it and it was evident that the Council had identified options to closure. It referred to the CalEc Report to support this proposition and said the Report was a material consideration in the Council’s approach. In Ans 5 the Panel denied that it had erred in law in respect of the 3 class test or the position of the 5 head teachers, and maintained that it had properly understood the material before it and the remit that had been given to it, and had been entitled to reach the decision it had. In Ans 6 it maintained that it had been entitled to hold that the Council had been in breach of section 12(3)(b). The Panel had properly understood the material before it, and had been entitled to reach the decision it had. It had not substituted its own views on weight, its decision was consistent with that in Eilean Siar No. 2.  In Ans 7 it pointed out that Council had had regard to representations made after the consultation period by including the fourth proposal. The Panel had properly understood the material before it, and its decision had turned on the failure of the Council to have special regard to any viable alternative to the closure proposal. In Ans 8 the Panel denied it erred in law in respect of the nursery issue, rather it had properly understood the material before it, and had been entitled to reach the decision it had for the reasons it had given against the background of that material. In Ans 9 the Panel denied it erred in law in respect of its approach to the issue of having special regard, rather it had properly understood the material before it, and had been entitled to reach the decision it had for the reasons it had given against the background of that material. Its decision was consistent with that in Eilean Siar No. 2. In Ans 10 it stated that it had properly understood the material before it, and had been entitled to reach the decision it had for the reasons it had given against the background of that material, its decision was consistent with that in Eilean Siar No. 2. It considered, for the reasons it gave in its decision, that the Council had failed in a significant regard to comply with mandatory requirements in the 2010 Act. It referred to the statutory Guidance to which it was obliged to have regard. The Guidance Note states (para 6) its intention “to help ensure that full fair and rigorous consultations are undertaken.” The decision as to whether or not the Council’s decision should be confirmed lies with the Panel, not with the Sheriff, who cannot exercise his own judgment on the merits. A reference back is of no consequence if the Panel is not entitled to reconsider; any error of law on the part of the Panel is immaterial; if the Panel has erred, the Panel decision being predicated on distinct and severable strands, an error on one strand should not allow the appeal to succeed if there remains a sufficient basis for upholding the decision; if there was an error in law sufficient to vitiate the decision the decision should be quashed and the matter remitted to the Panel for reconsideration on the basis of the relevant material.

[113]    In conclusion the Panel submitted that, it not having erred in law the appeal should be dismissed but, if it had so erred, the decision should be quashed and the matter referred to it for reconsideration.

[114]    Summary of the submissions made on behalf of the Council at the hearing. Mrs Scott made the following submissions on behalf of the Council 

c.   She referred to Edwards v Bairstow [1956] AC 14 per Lord Radcliffe and Clyde on Judicial Review at pp 586-9 as to what constitutes an error in law namely a misunderstanding of statutory language; or if the determination under appeal was one which no person, acting judicially and properly instructed on the relevant law, could, on the facts found, have come to; or a finding unsupported by the evidence.

d.   On the status of the Panel as an expert panel she drew attention to the fact that the Panel does not decide facts, she characterised the Panel as “far from expert, this being its first decision”, that the education authority was the body whose decision should carry respect as it was the primary and responsible decision maker. In any event the Panel had misstated the test for setting aside the decision of an expert tribunal on a point of law. She referred to AH (Sudan) v Home secretary [2007] UKHL 49, Baroness Hale at para [30] – “the decisions of expert tribunals should be respected unless it was quite clear that they had misdirected themselves in law.”   Appellate Courts should not rush to find misdirections simply because they might have reached a different conclusion.” She referred to BBC v Sugar (No. 2) [2010] EWCA Civ 715, Neuberger MR at paras 25 and 26, and AA (Uganda) v Secretary of State [2008] EWCA Civ 579 in which both Brixton LJ and Carnwarth LJ applied Lady Hale’s guidance but considered it gave the court a margin for performing its supervisory role.

e.   Mrs Scott referred briefly to the submissions of the intervenors, her position being that they did not give rise to points of law within section 17D i.e. points of law relating to the decision of the Panel. 

f.    She then dealt with the issue of the question posed by section 12(3)(a), submitting that the question is “do we have to close this school, is there a viable alternative to closure?” and that this was different from “what would we do if we did close this school ….” The first question she said was one to which the watchdog functions of the Panel applied. The second was a matter for the education authority subject to consultation. This was supported by the terms of the 2010 Act. Establishing a new school, or relocating a school and varying a catchment area do not involve the Panel, unless associated with a closure proposal. Section 12(3)(a) requires special regard to whether there is a viable alternative to closing affected school(s). The Panel (decision paras 19-28) has misconstrued the section, and has looked for alternatives available if the schools were closed, as opposed to whether there is any viable alternative to closing the schools. Looking to section 7 of the CalEc Report in the light of the foregoing it can be seen that only Options A and B were alternatives to closure. The difficulties with Options A and B were obvious. Option A delivered no improvement and was contrary to the Council’s statutory duties. The expenditure involved in Option B could not be justified against other options which would deliver significant additional benefit at lower cost. “Special regard did not require a lot of words particularly in a case as obvious as this”. The Council had given special regard to any viable alternative to the closure proposal. The issue as to which of options C to M was the best was not an issue for the Panel in terms of section 12(3)(a).

g.   She submitted that the Panel had erred in respect of section 12(3)(b) and (c) read with section 12(2). She referred to Eilean Siar No. 2 at para 49. Provided the education authority had paid special regard to the rural factors the weighing exercise was “very much a matter for them”. The existence of the special factors did not preclude closure. It was for the Council to weigh all the factors, giving special regard to the rural factors. It had said it had done so at para 4 of the consultation report.  In paras 29 to 32 of its decision the Panel had sought to impose its view of the weighing of the factors; in doing so they had exceeded their authority. It was apparent from these paragraphs that the CalEc Report had taken into account various community and travel factors, and that it was recognised that the new school would be slightly worse on three factors. This indicated detailed consideration of the community and travel factors. It was similar to Eilean Siar No. 2. The Panel’s criticism was that in the weighing exercise priority was given to “In the Classroom” and “Beyond the Classroom” factors over “Beyond the School.” This was not a matter for them and they exceeded their powers.

h.   Mrs Scott next submitted that if the Panel’s decision was based on irrelevant considerations in that it had taken into account matters raised after the consultation period had expired, this would vitiate the decision. She referred to the scheme of the 2010 Act and the establishment of a consultation period. Representations made during that period must be taken into account by the authority in the consultation. At the end of the period consultation is brought to a close.  The Council was not required to have regard to representations made out of time. The Panel cannot criticise the Council by reference to matters which do not form part of the process. She referred in particular to the panel’s decision at paras 19 [the Council’s 4^th proposal] and 33 to 39 [the issues of dual zoning and the ECC proposal]. In any event she said that parents at the 3 schools can, and in the cases of Knockbreck and Edinbane do, make placing requests for other schools, and that there was no plan to change catchment areas, which would require a separate consultation. She said the closure proposals were not affected save in respect of whether the exercise of parental choice might affect the rolls at the new school at Dunvegan. The Council will have to provide places in accordance with the closures and new school arrangements on which they had been consulted; taking account of possible placing requests would make a consultation unworkable – see Regan v Dundee City Council 1997 SLT 139 at 143G; and in any event the Panel said, para35, that this had not been crucial to its decision. She pointed out that the ECC proposal post-dated the consultation period and had not been available to the Council for consideration. While the Council could have considered it outwith the process, (a) it was not open to the Panel to put it forward as a reason for refusing consent, (b) the Panel says it was obvious that the new proposal could never deliver exactly the same educational benefits, so the Council could not consistent with its other statutory duties have accepted the proposal and (c) even if the proposal had been timeous, it could not give rise to a “failure in a significant regard” in terms of section 17(4)(a). She submitted that the possible use of community land and buildings mentioned by the Panel was also irrelevant as it post-dated the consultation process. In addition, any such use was contingent on closure, not an alternative to it.  

i.    She submitted that in refusing consent on the grounds that “real consultation on the nursery closures had not taken place” (para 45) the Panel had erred in law in at least 2 regards. First this was a proposal in terms of para 1(1)(a) of Schedule 1 to the act, i.e. for closure of the 4 entire schools, not a proposal affecting purely a nursery class or a stage in education under para 1(1)(b). The defender was not obliged by law to enter into distinct consultations in respect of every class in a school. The interpretation of the Panel was also irrational and therefore unlawful. The proposal had made it clear that the intention was to discontinue education provision at each of the 4 existing schools, and the provision for pre-school children at the new school was discussed at para 6.8 of the proposal paper, and nursery staffing at para 9.5. Further the Parents of pre-school children were consulted (Consultation Report p 4), and it was clear and understood by everyone that the whole building in each case was to be abandoned. There was nothing in response to consultation which indicated any consultee thought that primary school education was being closed, but pre-school education would remain at any of the schools. The nursery classes at Struan and Edinbane had been mothballed. The original educational benefits statement stated this. In respect of Edinbane it stated that “the mothballing of the pre-school class will continue till the new school comes into operation”. Mrs Scott submitted that the “rural factors” had been considered in respect of the school as a whole. Secondly Mrs Scott submitted that the Council did not need to provide transport for pre-school children, but they had considered it. Again, provided the Council had “special regard” to this factor, which they had done, the balancing act was for them, not the Panel. The Panel had exceeded its remit in para 45. With reference to para 48 of the Panel’s decision, Mrs Scott said it was difficult to understand why it could be said that the consultation procedure had been “elided”. The process was specified in detail in the 2010 Act, and there was no criticism of the way the exercise had been conducted. Finally only a significant failure could result in rejection of the proposal see Eilean Siar No. 2 at para 43.

j.    Although recognising that the error in the Panel’s approach to travelling times [paras 49 and 50 of the decision] might be immaterial as it did not lead to refusal of the closure proposal, Mrs Scott submitted that it was for the Council to consider the likely effects of different travelling arrangements; all the Panel had to do was check that they had. It had exceeded its role by seeking to carry out the balancing exercise.

k.   Finally Mrs Scott submitted that the Panel was only entitled to refuse consent to the Council’s proposal if it found that the Council had failed in a significant regard to comply with the requirements of the 2010 Act, while recognising the primacy of the education authority’s role – Eilean Siar No. 2 para 44. The Panel had erred in law in applying a test based on “rigorous consultation procedure” which had been referred to obiter in Eilean Siar No. 1 without taking account that the reference was obiter, or of the primacy of the authority’s role or of the subsequent decision of the Inner House in Eilean Siar No. 2 which elucidated both aspects of the point. A test of rigorous consultation procedure had no application insofar as it related to following statutory procedure. There was no complaint about the procedure as such, but even if there was the Court of Session had held that not every failure was significant. The correct approach for the Panel in terms of Eilean Siar No. 2 was not to subject the Council’s determinations to close analysis, but rather to look at the totality of what had been considered. This implied a more flexible analysis than the Panel had employed and reinforced her submission that the wrong test had been applied.

l.    Mrs Scott accepted that if I allowed the appeal then I was required by the Act to quash the decision and refer the matter back to the Panel. She submitted however that the referral back should not be for consideration. The Panel had already examined the matter exhaustively; it was implicit in section 2A of the Act that the Panel make only one decision and to permit the Panel to make repeated decisions would be contrary to the requirements of good administration.

[115]    Summary of the submissions made on behalf of the Panel at the hearing.  Mr Blair made the following submissions on behalf of the Panel.

a.   Mr Blair asked me to dismiss the appeal and confirm the Panel’s decision. He said that the Panel had correctly identified the law that it had to apply in reaching its decision and had been careful to identify those provisions of the 2014 Act which were not applicable to this case. The issue for the Panel had been whether the Council had failed in a significant regard to comply with the requirements imposed on it by or under the 2010 Act, so far as relevant, or had failed to account of a material consideration. He stated the issue for the Court to determine was whether in reaching the view it did the Panel had erred in law. He characterised the Panel as a specialist decision maker drawn from people with relevant experience and training. Its role had been to exercise a specialist judgment in determining whether on the facts there had been a relevant failure on the part of the local authority. It was a matter of judgment with which the Court should not interfere provided the judgment falls within what can be regarded as reasonable. He referred to Pulhofer v Hillingdon LBC [1986] AC 484. The judgment must respect the primary role of the Council, but that does not mean that the Panel is barred from forming a view on the very matters which Parliament has charged it to form a view on.

b.   On the question of error of law Mr Blair referred to Lord Radcliffe’s speech in Edwards v Bairstow. It was only where there is no evidence to support the conclusion reached or an unreasonable conclusion has been reached that the Court can intervene on appeal on the grounds of error of law.

c.   He referred to Eilean Siar No. 2 and the judgment of Lady Smith, (with which both Lords Menzies and Brodie had agreed), at paras [48] and [49] that the relevant context and mischief in the case of the 2010 Act was clear from the legislation itself. “The purpose of the Act is to provide for a clear transparent and genuine consultation process to take place whenever school closures are under consideration in circumstances where primacy of the local education authority’s role is recognised and the Ministers [now the Panel’s] role is one of safeguarder in relation to that core objective of securing genuine consultation” (Lady Smith para [48]).

d.   Lady Smith continued at para [49] “the question is whether, on the facts of the particular case the education authority can fairly be described as having had special regard to the rural factors. ……. to put it another way can whatever the education authority did in the course of the consultation process fairly be described as them having paid special regard to the rural factors. If it can, the weighing exercise by the authority when taking account of all the relevant factors, including the rural factors, is very much a matter for them in the exercise of their discretion.”

e.   The Panel should be able determine whether the process had fallen short of what is required. It was for the Panel to consider how any failure by the Council impacted on the conduct of the consultation, and to determine accordingly whether the failure was in a significant regard.

f.    Mr Blair next dealt with sections 12 and 13 of the Act. Section 12 sets out the rural factors and the obligation of the education authority. It gives an additional layer of protection to a rural school. Section 13 imposes an obligation on the authority to explain how it complied with section 12. This assists in a view being formed as to whether there has been a failure in a significant regard. He referred at length to the statutory guidance as giving a useful overview of the consultation process and the role of sections 12 and 13 within that process.

g.   He referred to the statutory guidance asserting the importance of having “special regard” to any “viable alternative” to closure, the purpose being “to ensure that when an option to close is proposed, the decision to consult on that option is a last resort, only proposed after all other viable alternatives have been considered.”

h.   He said that the CalEc Report (para 7.3) listed a number of options in addition to the preferred option (M) and the status quo but there was no real exploration of them. The Guidance envisages a robust process and anticipates it will be evidenced. The Panel were entitled to consider the extent to which there had been adequate exploration of whether there were viable alternatives. He referred to Ashdown v Telegraph Group Ltd [2001] Ch 685. At para 34 the Vice Chancellor referred to the obligation of a court, contained in section 12(1) of the Human Rights Act 1998, to have “particular regard” to the importance of a Convention Right and considered that this did not require those matters to be given greater weight than others but did require them to be considered specifically and separately from other relevant considerations. Mr Blair submitted that “special regard” could not require anything less. He referred to “due regard,” as meaning having “a conscious approach and state of mind” (Brown v Secretary of State [2008] EWHC 3158 per Scott Baker LJ at para 91) saying again that “special regard” cannot be less than this. The test was one of substance not box ticking, (R (Domb) v Hammersmith and Fulham B.C. [2009 EWCA Civ 942 para 52). At para 62 of Domb Rix LJ said “I am far from saying however that in another case it might not be necessary for a local authority to be able to demonstrate as a matter of its duty to have due regard to the need to propose disability equality that it had considered in substance and with the necessary vigour whether it could by any means avoid a decision which was plainly going to have a negative impact on the users of existing services”. He said that the Council, before eliminating an option, must be shown to have carried out the process adequately. It was for the Panel to judge whether in the facts and circumstances of this case, the Council had formed its view on the viability of alternatives upon sufficient material to demonstrate that it had reached its view in a way which shows it has properly directed itself on this important duty. It was for the panel to ascertain whether the Council had had special regard to the rural factors before going to consultation. He submitted that due regard to a duty must be an “essential preliminary” to any important policy decision, not a “rearguard action following a concluded decision” (R (Bapio Action Ltd) v SSHD 2007 EWHC Civ 1139 para 3). Special regard could not involve less than this. Consideration of the duty [of due consideration] must be “an integral part of the formation of a proposed policy, not justification for its adoption. (R (Kaur and others) v Ealing LBC [2008] EWHC 2062 Admin Moses LJ para 24.) Again special regard could not involve less. If a risk of adverse impact is identified, consideration should be given to measures to avoid that impact before fixing on a particular solution, see Kaur at para 44.  It was for the panel to consider whether “due regard“ had been paid,  not whether there had been no regard at all, or whether the decision was just “Wednesbury unreasonable” [i.e. so unreasonable that no reasonable person acting reasonably could have made it.]                     

i.    Mr Blair submitted that while the weighing exercise was for the Council it was for the Panel to determine whether it had reached the stage of proper weighing having regard to the procedural duties incumbent on it. That was a question of fact and circumstances. The function of this court was to decide whether the Panel had erred in law in so doing. The notion of a viable alternative plainly embraces a substantive assessment of viability before an alternative can be considered not viable. It was not a matter of box ticking.

j.    In considering the issue of alternatives to closure Mr Blair noted that the Council stated at para 1.5 of the Consultation report that it had given special regard to the rural factors. It set out the content of section 12 in a formulaic manner so that it was not obvious that it had actually applied its mind to the factors. Para 12.1 of the Consultation Report also referred to special regard to the rural factors but did not expand on this. He referred to the CalEc Report which was the central basis for limiting the options going to consultation and was core to the educational benefits statement. The CalEc Report was focussed on the SSER. The Panel had not misinterpreted section 12(3)(a) of the 2010 Act as argued by the Council. The Educational Benefits Statement considered at para 12.1 that the alternatives at p 28 of the CalEc Report were “alternatives to proposed mergers”.  Options G and H might be viable alternatives to closing Edinbane and therefore merit special regard but were ruled out by CalEc on the 3 class test. The CalEc methodology was approved by the Committee for consultation and its methodology was never challenged thereafter. It was entirely reasonable for the Panel to determine whether the CalEc Report showed special regard to viable alternatives.   The report was the central basis for the approach taken by the Council to their obligation to have special regard. In Para 1.2 of their proposal paper the Council stated that “the proposal was informed by an extensive engagement paper and option appraisal methodology”, and “A key aspect of the options appraisal was a qualitative comparison of the options under consideration carried out in a workshop ….”. The Panel considered that there was very little analysis and no balancing exercise. It considered that the options shortlist was not a real analysis. There were 13 options yet the 2 tests applied in the filtering process meant that 12 were filtered out and only one examined in detail. Section 8 does this. There is nothing similar for the 12 other options. The Panel considered that only one option was examined in any detail. This was contrary to the statutory Guidance. The Panel was concerned that there was no evidence to support the screening factors. The 3 class test was arbitrary and designed to make it a foregone conclusion that none of the 3 small schools would survive. The Panel accepted that a test might be a proper means of filtering options but the test itself must be shown to have substance and the application of it must carry necessary vigour. The Council’s argument that options C to K were not alternatives within the meaning of section 12(3)(a) was contradicted by its letter of 12^th June 2015 to the Convenor of the Panels. The Council refer to the options list being considered, and state each of the alternatives would be considered viable in one sense or another. The Council sought to sever the building of the new school from the closures which proceeded primarily on the 3 class test. Para 7.3 of the CalEc report makes it clear this test was the crucial factor in the conclusion that option M, the Dunvegan new school, was the most reasonable and viable option. He submitted that the Council’s position was incoherent.

k.   He submitted that the Call-In Notice identified the 3 class test as a concern and the Panel was entitled to consider it. The Panel considered that the input from only 5 of 13 head teachers was a problem. The test was given undue prominence and it limited consideration of other options as viable alternatives. This frustrated proper consideration of the viable alternative factor. While the status quo could never be an alternative to the 3 class option, that missed the point of whether there were viable alternatives to the status quo.  The Panel had been correct to identify a failure to ask the correct question. So far as the 5 heads workshop is concerned the Panel had found a downgrading of the significance of the rural factors. He submitted that the whole concept of the new school was always considered in the context of it replacing the existing 4 schools.

l.    So far as other community factors (section 12(3)(b)) are concerned I think Mr Blair’s submission boils down to this. The Panel’s concern was that para 10.5 of the CalEc Report made it clear that the thinking at the 5 Heads’ workshop was that it would be natural to look first to the “In the Classroom” and “Beyond the Classroom” factors to provide an indication as to which idea should be the preferred option. The Panel’s concern was that the “Beyond the School” factors had been taken out of consideration by CalEc. The “Beyond the School” factors pointed to the new school being worse in respect of community identity, interaction with the community and travel factors, but beyond listing those matters no real consideration was given to them. CalEc stated the 28 factors and 3 groups of factors were given equal consideration and treated as being of equal importance. In fact, by looking first at the 2 Classroom factors to provide an indication of the preferred option, the “Beyond the School” factors, and thus the rural factors, were given less regard which is the exact opposite of the requirements of section 12(2). Para 10.4 of the CalEc report states that should the merger proceed the school building would be offered first to other services within the Council, in accordance with Council policy. After that the Council would consider bids from the communities. This was not having a special regard. The Panel had not decided the merits. It considered that the Council had failed in a significant way to consider the merits against the requirement for special regard.

m.  In respect of the ECC proposal Mr Blair submitted that the Panel’s view that there had been a lack of detailed consideration by the Council to see whether the proposal could offer a viable alternative was a rational view. The issue was whether there was a viable alternative to closing Edinbane school, not whether the proposal was a viable alternative to the Council’s whole scheme for NW Skye. The Panel’s finding that there had been a lack of special regard to the sustainability of the community and the availability of school premises for use by the community was also one that was open to them on the evidence.

n.   So far as the late matters were concerned he submitted that the Panel’s views on these matters were not determinative of the issue of special regard to viable alternatives to closure. It could not be irrelevant to have regard to material which was relevant. So far as the new proposal relating to dual zoning was concerned he submitted that the point the Panel was making in para 34 was that the decision to close the 4 schools had been made before the Council even knew to which school parents from Edinbane, Knockbreck and Struan would send their children. The matter went to both whether there had been genuine consultation and to the viability of the new school.

o.   If the court found errors on the part of the Panel in some of the issues that did not mean that the decision was not sustainable. If any single strand was capable of reasonably providing a basis for the view that there had been a significant failure on the part of the Council, the decision should stand.  

p.   Mr Blair addressed the issue of nursery closures. There was little reference to this in the CalEc Report and that had concerned the Panel. The Panel were entitled to be critical of the Council position that the proposal was to close the schools, and that in terms of the 2010 Act nursery provision was included in that.  This was sophistry, he said. The Statutory Guidance expected that the impacts on different groups to be considered, and specifically referred to discontinuance of nursery education as an example. If the impact on the nursery class was part of the consultation process, then the adequacy of the consultation was a matter for the Panel to consider. He referred to the mothballing of Edinbane nursery and the Scottish Ministers’ evident disquiet about the length of time this was continuing without a separate consultation.

q.   In response to the Council’s submission that the Panel had applied the wrong test by referring to “rigorous consultation” rather than whether any alleged failure was “in a significant regard”. Mr Blair submitted it was plain that the Panel addressed the issue of significance. They had found failings which they said “strike at the heart of the whole consultation process” or “go to the core of whether there has been genuine consultation with the public”, or which were “of such significance that they cannot be resolved by imposing conditions or remitting the proposal … for a fresh decision”. The correct test was applied and addressed.

r.    So far as disposal was concerned, he submitted that if the appeal was successful the court should quash the decision and remit the matter to the Panel. That was the limit of the power given to the Court by section 17D of the 2010 Act. It was not for the Court to determine the merits of the matter for itself.

Decision and Reasons

[116]    In my opinion the appeal should be dismissed and the decision of the Panel should be confirmed.

[117]    The decision of the Panel has been appealed to this court under section 17D (1) of the 2010 Act. Section 17D (2) provides that such an appeal can be made only on a point of law. The law as to what can constitute an error in law is authoritatively set out in the House of Lords case of Edwards v Bairstow [1956] AC 14. A misunderstanding or misinterpretation of statutory language is such an error, as is a determination which, on the facts established, no person acting judicially and properly instructed on the relevant law could have come to. The consideration of irrelevant material can be an error in law, and a finding that cannot be supported by the evidence is also an error in law. 

[118]    I would phrase the principal question for this court as “Did the Panel err in law in finding that the Council had failed in a significant regard to have special regard to the rural factors?”

[119]    The starting point in the consideration must be the terms of the 2010 Act and the intention of Parliament. It is clear reading the Act as a whole that the intention of the Act was to make comprehensive provisions as to the procedures to be followed in the event of the education authority wishing to take one of a raft of measures in respect of schools. Most important of these is the proposed closure of a school. Only a decision to close a school can give rise to the Scottish Ministers exercising the call-in powers contained originally in sections 15 to 17 then, in addition and in force for this case, the new provisions of sections 17A to 17D of the Act relating to review by a School Closure Review Panel. It is clear that Parliament saw particular potentially adverse consequences if a decision was taken to close a rural school, and it made additional provisions as to the obligations of the education authority in a case where a rural school closure proposal is made.  These additional provisions are contained in section 12 of the original Act and are set out more fully at paras 17 and 18 above. In brief Section 12 introduces 3 rural factors to which the education authority must give “special regard” namely (a) any viable alternative to the closure proposal, (b) the likely effect of the implementation of the proposal on the local community, and (c) the likely effect of any change in travelling arrangements if the proposal was implemented.

[120]    Section 17B 1(a) of the Act (so far as relevant to this case) requires a review panel to consider “whether the education authority failed in a significant regard to comply with the requirements imposed on it by or under this Act so far as they are relevant to the proposal”. Section 17C (4)(a) provides that the review panel may refuse to consent to the proposal only if the education authority has so failed to comply. The Act requires the review panel to consider the question of failure in relation to all the requirements imposed on education authorities by the Act; in this case the Panel were concerned mainly with the obligation to have special regard to the section 12 rural factors. It found that the Council had failed in a “significant regard” to comply with the requirement imposed on it by the Act to have “special regard” to the rural factors.

[121]    It is necessary to interpret the two crucial terms, neither of which is defined in the Act. I was referred to a number of cases on the meaning of words such as “due regard” and “particular regard” but I think the meaning of each of the two crucial terms used in the 2010 Act is quite clear when looked at in the context of the Act itself and what it sought to achieve. I consider that Mr Blair was correct in saying that “special regard” cannot mean anything less than what these other phrases have been held to mean. I would say that for regard to be “special” it must go further than the norm. The cases, and in particular Brown v Secretary of State, R (Domb) v Hammersmith and Fulham LBC, and Meany v Harlow make it clear that the “regard”, however it is qualified, must be a “conscious approach and state of mind” an “essential preliminary to a decision” or an “integral part of a decision”, not “a rear guard action or retrospective justification for it”. It involves a “conscious directing of the mind to the obligations”; “vigour” or “rigour” coupled with an open mind.  In my opinion these authorities support Mr Blair’s submission that the time for looking at the question of compliance with the section 12 obligations is the time when consideration is said to have been given to them. This is of particular importance when considering the Options list (section 7 of the CalEc Report) and the issue of the “Beyond the School” factors at the 5 Heads’ Workshop (sections 9 and 10 of the Report.)

[122]    The context of the Act is that it sets out a scheme for involving interested parties through detailed and, for the education authority, mandatory consultation procedures in important proposals relating to schools; that school closures are seen as the most important of those proposals; and that the importance of rural school closures is emphasised by the additional rural factors requirement. In my opinion in that context the meaning of each of the two terms is clear from the ordinary meaning of the language used

[123]    In the course of her submissions Mrs Scott repeatedly criticised the Panel for involving itself in factual issues which she said were, in terms of Eilean Siar No. 2, beyond its jurisdiction.  I do not consider that Lady Smith’s opinion supports that criticism on the facts which pertained in this case. At paras [48] and [49] she said that the relevant context and mischief in the case of the 2010 Act was clear from the legislation itself. “The purpose of the Act is to provide for a clear transparent and genuine consultation process to take place whenever school closures are under consideration in circumstances where the primacy of the local education authority’s role is recognised and the Ministers’ [now the Panel’s] role is one of safeguarder in relation to that core objective of securing genuine consultation.” (para [48])

[124]    Lady Smith continued at para [49] “Where the authority’s compliance with section 12 is challenged, the question is whether, on the facts of the particular case the education authority can fairly be described as having had special regard to the rural factors. ……. to put it another way can whatever the education authority did in the course of the consultation process fairly be described as them having paid special regard to the rural factors. If it can, then, as was very properly recognised on behalf of the Ministers, the weighing exercise by the authority when taking account of all the relevant factors, including the rural factors, is very much a matter for them in the exercise of their discretion.”

[125]    In my opinion Lady Smith made it clear that the Panel is not just entitled to investigate, weigh and assess the evidence and the facts of the particular case relating to the rural factors in order to determine the limited question of whether there has been compliance with the “special regard” requirement, but is obliged to do so. They have to assess “whatever the education authority did in the course of the consultation process” in order to determine whether they had paid special regard to the rural factors. That seems to me to be consistent with the decision of a differently constituted Extra Division in Eilean Siar No. 1, at paras [45] to [53] in the last of which they state “We agree with the Lord Ordinary’s conclusion that the Ministers having called in the closure proposal, are obliged (and not merely entitled) to have regard to all the circumstances, including both the procedural aspects and the merits…”. Without doing that, and accepting that the Panel’s statutory role in deciding the matter is slightly different from the Ministers’ former role, I do not see how the Panel can discharge its statutory function in a rural school’s closure case. If it is found that the education authority has failed to have such a special regard, then the Panel must consider whether that failure has been significant.  That must also involve weighing the evidence. If either of these questions has been answered in the education authority’s favour in the sense that either it is found that the authority did not on any view fail to have special regard to the rural factors (in which case the second question does not arise), or that they did so fail but not in a significant regard, the Panel’s role comes to an end. It must not interfere with the authority’s entitlement to weigh all the relevant factors, including the rural factors, in coming to a decision to implement the closure proposal or not. Similar considerations apply to the issue of the primacy of the Council’s role as education authority and the importance of its duties under the 1980 Act and the other statutes referred to, and the policies it may have in place. It is for the Council to weigh up all of those factors and duties in coming to its final determination on the closure proposal. But before it can do so it must be able to demonstrate that it has complied with the requirements imposed on it by the Act, and particularly in this case the rural factors, and that a “clear transparent and genuine consultation has taken place.” (Lady Smith at para [48]) Whether they have done that or not is for the Panel to decide in its role as safeguarder.

[126]    Mrs Scott also criticised the Panel for applying a test based on “rigorous consultation procedure” rather than the test of “failure in a significant regard”. The quotation comes from the last sentence of para 48 of the Panel’s decision, being the last paragraph of that section of the decision headed “Nursery Closures”. First of all, I hold later in this decision that the Panel erred in law in requiring the Council to conduct “an explicitly recognisable consultation” in respect of nursery closures and I have not taken its findings in that section of its decision into account in reaching my decision on the case as a whole.  Secondly in the same paragraph of its decision the Panel specifically stated in the opening line that it “considers that Highland Council has failed in a significant regard to comply” with its duties under the Act. It continues in para 48 that the failure is “a significant one which goes to the core of whether or not there has been a genuine consultation with the public”. “Genuine consultation” is the objective Lady Smith identified at para [48] of Eilean Siar No. 2. Only then did the Panel say that it “had had regard to para [54] of Eilean Siar No. 1 and the reference in that decision to the importance of ensuring that the “rigorous consultation procedure set out in the 2010 Act is not elided in any way, yet pays regard to the primacy of Highland Council’s role as the local education authority” which procedure the Panel then found had indeed been elided. As I read para [54] the Extra Division in Eilean Siar No. 1 was applying a descriptive adjective to the consultation procedure contained in sections 1 to 13 of the Act, in the context of the restriction of the Ministers’ power to call in closure proposals, and the further restriction of that right to cases where there has been a failure in the consultation or decision process. I consider that is an apt description of the procedures, and probably one that any education authority which has had to comply with the requirements of the 2010 Act would agree with.  I consider that the Panel was entitled to have regard to a comment of the Inner House of the Court of Session on the very topic it was itself considering. Before reaching that point in para 48 it had already found in para 31 that there had been a failure by the Council in a “significant regard” in respect of the requirements imposed on it by the Act relating to community and travel issues. At para 32 the Panel, summarising its position on the whole of the section of its decision concerning Roll Projections, Catchment Areas and Viable Alternatives to Closure, had referred to failures that are “significant and strike at the heart of the whole consultation process …… [and] of such significance that they cannot be resolved through the imposition of conditions or remitting the proposal to Highland Council”. Thirdly in para [48] of her judgment Lady Smith referred to the purpose of the Act being to secure “a clear transparent and genuine consultation process” while recognising the primacy of the Council. The earlier decision in the case referred to that same primacy in the context of “rigorous consultation”. The Panel at para 48 of its decision also specifically acknowledged that primacy. The Guidance Note issued in 2010, to which the Panel was obliged to have regard (section 19 of the 2010 Act) states in the Introduction that its purpose is “to help ensure that full fair and rigorous consultations are undertaken” (see para 31 above).  I do not think there is very much difference between the two descriptions of the required consultation, particularly given the reference to “rigour” and “vigour” in Brown and Domb which I referred to in para 121 above. Finally, throughout its decision the Panel has frequently referred to “special regard” and “failure in a significant regard.” It knew the statutory tests it had to apply. In my opinion it can be seen from the terms of its decision that it applied them correctly throughout. I consider that the criticism that the Panel applied the wrong test is not justified.

[127]    It is unfortunate that it appears that the Panel did not have their attention drawn to the decision in Eilean Siar No. 2, which was binding on them, as to the proper understanding of the respective roles of the Council and the Scottish Ministers (who at that time had the duty to decide call-in issues). It would have derived a lot of assistance from this case and in particular the opinion of Lady Smith, at paras [42] to [45] and [48] and [49]. What is of real importance however is not whether the Panel was aware of Lady Smith’s judgment, but whether what it did complied with it. In particular, did it restrict itself to asking two questions namely (1) had there been failure on the part of the Council (a) in respect of the requirements of sections 1 to 11 and 13 of the Act, and (b) in respect of the rural requirements of section 12, in particular, did the Panel have special regard to them, and (2) If there had been such failure, did that failure amount to a significant failure. In my opinion what the Panel did complied with the requirements of Lady Smith’s judgment at para [49].

[128]    Mrs Scott submitted that the Panel had erred in law in taking into account material which was received by it after the consultation period had closed. In particular, she referred to the ECC proposal to acquire and take over responsibility for the school buildings and to the issue of dual zoning of catchment areas to include the options for parents of children at the four schools to send their children to Carbost or Macdiarmid Primary schools. She said “The defender cannot in the exercise of its statutory role criticise the [Council] by reference to representations or discussion which do not form part of the process.” Section 15(4) of the 2010 Act provides “In considering whether to issue a call-in notice, the Scottish Ministers are to take account of any relevant representations made to them (by any person) within the first 3 weeks [from the date of the education authority’s decision to implement a closure proposal.]” I take the word “relevant” to mean relevant to the closure proposal or the decision to call-in or both. The words “any relevant representations made to them (by any person)” must mean that there is no restriction on who can make a representation. People who have participated in the consultation and who might therefore otherwise be considered to have had their say are not excluded from making further representations. The only restriction on what the Ministers are to take into account is that the representations must be relevant.

[129]    Mrs Scott said that there was no plan to change catchment areas, and that such a plan would require a separate consultation under the 2010 Act. Whatever the Council’s current position may be, it seems to me to be beyond doubt that at its meeting on 12^th March 2015 the full Council agreed (i) to discontinue education provision at the 4 schools; (ii) to establish a new amalgamated community Primary school for North West Skye at Dunvegan; (iii) to combine the existing catchment areas of the 4 schools to form the catchment of the new school and (iv) “to initiate a new consultation to consider dual zoning for any family who may wish to consider attending Carbost or Macdiarmid Primary Schools” (my emphasis). This was a matter which had not formed part of the original closure proposal or of the consultation process including the Review of Proposal and Consultation Report of 14^th December 2014. The Review made three formal recommendations which were in the same terms as the first three paragraphs of the Council’s decision.  The new fourth paragraph was an integral part of the decision of the Council and had obvious potential consequences for, for example, the roll of the new school. It first appeared on the scene, as far as I can see, at the Committee meeting on 14^th January. At this stage the Council was still considering the matter as a proposal, and it remained subject to the section 12 requirement. In my opinion this new paragraph was a matter which was potentially relevant to the issues of viable alternatives to closure, and in particular Items C, D, E, J, and K of the Options Shortlist in section 7 of the CalEc report; to the viability of the new school; to the effect on travel arrangements; and to the effect on the community. It was a matter which in my opinion the Panel was fully entitled to consider. I do not accept that an education authority could, whether intentionally or not, circumvent the consultation process by withholding part of a proposal till after the consultation process had finished and then invoke that fact to deny affected consultees the right to express a view, and deny the Panel the right to consider the issue. 

[130]    Edinbane Parent Council submitted its detailed representations to the Scottish Ministers on 31^st March 2015, within the 3 week period. These representations included the ECC proposal which had been submitted to the Council on 12^th January 2015; the Parent Council’s response to the introduction of para (iv) of the Council decision, and its view of what it clearly perceived to be a seriously inadequate consultation procedure, particularly in so far as it related to the rural factors referred to in section 12(3)(a) and (b) of the 2010 Act, namely the likely effect on the local community and the travelling factors. In addition, the Parent Council complained that, contrary to the clear terms of section 15(6) of the Act prohibiting the authority from proceeding further with the proposal before the expiry of the call-in period, Council education officials had, during the first 3 weeks of the period, held meetings with parents from the 3 schools to take forward the para (iv) dual zoning consultation.

[131]    The ECC proposal had in fact been considered to a limited extent and rejected by the Committee on 14^th January 2015, the day after it had been received. 

[132]    Given the terms of section 15(4) of the Act I consider it would be strange if the Panel could not also take the representations into account for the purposes of considering the proposal once such a notice has been issued and the matter had been referred to it. This is particularly so given that (a) the statutory grounds for the Ministers issuing a call-in notice in respect of a closure proposal and for the Panel, after call-in, refusing to consent to the proposal are so similar, and (b) the Panel has since its creation replaced the Ministers in deciding whether the education authority has failed in a significant regard to comply with the requirements under the Act once the proposal has been called in.   I consider that the intention of Parliament was that the representations made in the 3 week period can and should be taken into account by the Panel.

[133]    I should add that I consider that the section 12(2) requirement for the education authority to have special regard to the rural factors is not confined solely to the consultation period. In terms of section 12(1) it applies “in relation to any closure proposal”. The closure proposal, as is clear from sections 1(2) and (5) of the Act, remains alive until the education authority decides to implement it in whole or in part, or does so implement it. That decision to implement the proposal was taken on 12^th March 2015. Until, at the earliest, that decision was taken I consider that the Council, in its ongoing consideration of the proposal whether in Committee or through its officials, required to have special regard to the rural factors. That would include its consideration of the ECC proposal and of the possible need for dual zoning with Carbost and Macdiarmid primary schools.

[134]    I accordingly consider that the panel did not err in law in taking into account representations made in the statutory 3 week period after the date of the Council’s decision to implement the closing order.

[135]    Mrs Scott submitted that the Panel erred in law in its treatment of the Options set out in section 7 of the CalEc report. She said, “The question posed by section 12(3)(a) of the 2010 Act is, “do we have to close this school, is there a viable alternative to closure?” This is a different question from “what would we do if we did close this school, what alternative ways are open to us to provide for the pupils?” She submitted that by focussing on the second question the panel looked at the consequences of the closure rather than the alternatives to it and erred in law in their application of the statute.

[136]    In other words, as was central to Mrs Scott’s submission on viable alternatives to closure, neither the “rural factor” of viable alternative to closure proposals nor the provisions permitting the calling-in of closure proposals and the reference of the matter to the Panel, had any relevant part to play as regards the proposal to build the new school at Dunvegan. Those factors should not have been factors in the calling-in notice, and should not have been considered by the Panel.

[137]    I consider that this approach is too narrow. It is unrealistic when one considers what the practicalities of the situation are; it does not properly address the obligation imposed on the Council by sections 12(2) and 12(3)(a) of the 2010 Act; and it fails to take into account the proper combined effect of paras 1(1)(a), (4)(a), (5)(a) and (6) and paras 2(a) and 4 of Schedule 1 to the Act.

[138]    So far as the practicalities are concerned the Council currently provides education for pupils at the 4 schools, and it must by law continue to do that. It is not in reality an option for it to decide to close the school and then consider what to do with the pupils. The alternative provision of education is an essential part of the closure proposal.

[139]    I consider that this approach which is largely based on common sense, or the realities of the situation, is consistent with the terms of the Act. Sections 12(2) and (3)(a) require the education authority to have special regard to “any viable alternative to the closure proposal” (my emphasis), not just to the closure of a school. In terms of section 2(1)(b) a closure proposal is “a proposal specified in paragraph 1 of Schedule 1 of the Act”. Para 1(1)(a) refers to a proposal to permanently discontinue a school. That is the bare bones of a closure proposal. Section 4 of the Act requires the education authority to prepare a proposal paper which sets out the details of the proposal. The heading to the Council’s proposal paper, which was published on 23^rd May 2014, set out the closure proposal headed as follows (PFIP p 47):- “The proposal is for a new community school to be built in Dunvegan, Isle of Skye, replacing the current Dunvegan Primary School, Struan Primary School, Knockbreck Primary School and Edinbane Primary school.”  

[140]    In the text of the proposal paper (PFIP p 47) the Council set out the details of that closure proposal, what it proposed to do, subject to consultation. The provision of education would be discontinued at the existing 4 schools, a new school would be established at a new site at Dunvegan, and the four existing catchment areas would be combined to serve the new school. Each of the three proposals in my opinion combine to form the “package” to which Mrs Scott referred at the outset of the hearing (para 9 above). They together constituted the “closure proposal” and on a proper construction of the Act the Council had to have special regard to that proposal as a whole, including the proposal for a new school.

[141]    In addition, Section 2(1)(a) of the Act provides that a “relevant proposal” is any proposal specified in paras 1 to 10 of the schedule. Para 2 specifies “a proposal to establish a new school” as a relevant proposal. Para 4(a) specifies “a proposal to vary any admission arrangements for a school including (a) a proposal to establish, terminate or otherwise alter the catchment area of a school” as a relevant proposal. It can be seen that while every closure proposal is a relevant proposal, not every relevant proposal is a closure proposal. The distinction though obvious is important. Sections 1 to 11 set out the consultation regime which applies to every relevant proposal, including closure proposals, whether of rural or other schools. Sections 12 and 13 (now sections 11A to 13) set out provisions which apply only to closure proposals as respects a rural school (as defined by section 14). The call-in provisions in sections 15 to 17D apply only to a decision by an education authority to implement a closure proposal in relation to any school.

[142]    Mrs Scott submitted that the proposal to establish the new school at Dunvegan was clearly a proposal which fell under para 2 of Schedule 1 of the Act. That was precisely what para 2 said.  It was not a closure proposal in terms of para 1 of the Schedule. It was therefore not a matter which could properly have been called in by the Ministers and was not a matter which should have been adjudicated upon by the Panel. Not being a closure proposal, it was not a proposal to which the section 12 rural factors applied. In adjudicating upon it the Panel had seriously exceeded its jurisdiction and seriously erred in law.

[143]    In my opinion that submission, while on the face of it correct as far as para 2 of Schedule 1 goes, does not take into account the provisions of para 1(6) of the Schedule. This provides that “if a proposal (a) by virtue of sub paragraph (4) falls within this paragraph [i.e. para 1] and (b) also falls within another paragraph of this schedule except paragraph 10, the proposal is to be regarded as falling within this paragraph only”. In terms of Schedule 1 para 1 sub para (4) of the Act “a proposal to make arrangements of the sort mentioned in sub-paragraph (5) (however described) is to be regarded as a proposal to discontinue … (a) the school….”. Schedule 1 para 1(5) provides:- “the arrangements are such arrangements in respect of the school ….. as would, if they were implemented, result or be likely to result in the permanent discontinuation of the school.” In my opinion the proposals to build a new school (to which para 2 of Schedule 1 applies) and to combine the four catchments of the existing schools to provide a single catchment to serve the new school (to which para 4(a) of Schedule 1 applies) separately and taken together constitute an arrangement of the sort mentioned in para 1(5). All the pupils who live in one of the existing catchment areas would find themselves no longer in that area but in the new combined catchment area for the new school at Dunvegan. The new school would be there for them to go to. This would apply to each of the 4 schools. There would no longer be a separate catchment area for each of the 4 schools. This would result or would be likely to result in the closure of each of the existing schools. The building of the new school with its newly created catchment area would result or be likely to result in the closure of each of the 4 schools. That is precisely what the intention of the proposal is. Thus viewed, the proposals under para 2 of Schedule 1 to build the new school; and under para 4 to combine the catchment areas of the 4 schools, and attribute the new combined catchment area to the new school are proposals to which Schedule 1 paras 1(4) and (5) apply, and as consequence of para 1(6) of the schedule are proposals which falls to be regarded as falling only within para 1. Effectively for the purposes of Section 2(1)(b) each becomes a closure proposal in respect of each of the 4 rural schools. Viable alternatives to that part of the closure proposal relating to the building of the new school and the creation of the combined catchment area therefore require to be the subject of special regard. The issues cannot be as neatly separated as Mrs Scott sought to do.

[144]    In addition on this issue is the point made by Mr Blair arising from the terms of the Council’s letter to the Convenor dated 12th June 2015:- “The fourth paragraph of the call-in letter suggests that the Council did not consider viable alternatives to closure. In this context the Council would like to draw the panel’s attention to section 7 of the options appraisal report where a wide range of alternatives was considered and evaluated on the basis of clearly defined criteria. Each of the identified alternatives would be considered viable in one sense or another. As explained, these were properly evaluated and the one delivering the greatest educational benefit was the one that was proposed.” Mr Blair submitted that the Council had specifically invoked the options appraisal report as its response to the paragraph in the call-in letter suggesting that the Council had not considered viable alternatives to closure. It could hardly complain that the Panel then considered these matters. I think he is correct in that submission.

[145]    In all the circumstances I consider that the Panel did not err in law in looking at all the alternatives in section 7 of the CalEc Report. These were in law alternatives to the “closure proposal”. The panel was not only entitled but obliged to consider them for the purposes of section 12(2) and (3) as being alternatives to the closure proposal.

[146]    There appears to be no indication in the CalEc Report that CalEc had special regard to the requirements of section 12(3)(a) in particular or section 12 in general in considering this issue or indeed throughout their report. This seems to me to be of particular significance in respect of section 7 and also sections 9 and 10 of the Report. The statement in section 7.2 of the Report to the effect that “the filtering process was designed to reduce the commitment of time energy and resources” is in my opinion the antithesis of paying special regard.

[147]    So far as the filtering process for the options list is concerned, the Panel sets out its views at paras 21 and 23 to 28. These are:-

[148]    I consider, having regard to the relevant parts of the documentation which I have summarised at some length at paras 39 - 99 above that the Panel was fully entitled on the documentation and correspondence it reviewed to have those concerns and to come to the decisions which it came to.

[149]    Although it did not specifically pose to itself Lady Smith’s question at para [49] namely “can whatever the education authority did in the course of the consultation process fairly be described as them having paid special regard to the rural factors?” in respect of this aspect, it can be seen from paras 21 to 28 of the Panel’s decision that they considered the issues that lay behind that question in so far as it related to the “viable alternative” factor, and that their answer if they had asked themselves the question would have been in the negative. I appreciate that Lady Smith’s question ultimately requires to be asked at the end of the complete process, but I consider it is also of use in checking the extent of an education authority’s compliance with the statutory requirement to have special regard to all the rural factors.

[150]    I have set out above my reasons for considering that the Panel did not wrongly assume to itself the job of weighing the evidence. It is the function of an education authority to consider and weigh all the evidence available to it in coming to a decision whether to propose a school closure. That will certainly include weighing the rural factors along with all the other factors relevant to the proposal including its duties under other statutes. In my opinion, having regard to the terms of section 12 as a whole and Lady Smith’s decision in Eilean Siar No. 2 at paras [48] and [49], it is the clear function of the Panel, and indeed its obligation, to consider and weigh all the evidence relevant to the question of the Council’s compliance with section 12 in order to decide the matter which is exclusively within its jurisdiction, namely whether the Council failed to give special regard to the rural factors, and if they did, whether they did so in a significant regard. To have the Council’s view of the evidence determine whether it had complied with its section 12 duties would be to have it judging its own cause.

[151]    If CalEc in preparing its report did not give special regard to the options short list (and there was perhaps no reason for them to do so, given that they were engaged in a SSER and not a closure proposal), the question arises as to whether and if so when and how the Council had that regard. I do not see anything in the documents that supports the contention that the Council, separately from CalEc, applied any form of regard to these matters at the time they were being considered by CalEC, or in May 2014 when the Council was drafting the proposal paper, or when preparing its consultation report, or when making its decision and final proposal in March 2015, or at any intervening point within the period from the start of the SSER and the march 2015 decision.  It was at these times that the Council had to have special regard to the rural factors (Brown v Secretary of State, Meaney v Harlow DC, R (Domb) v Hammersmith and Fulham LBC referred to above). In addition there is the dictum of Lord Justice Moses in R (Kaur and Others) v Ealing LBC (at para 24), which was also referred to by Mr Blair, namely that consideration of the duty must be an “integral part of the formulation of a proposed policy, not a justification of its adoption”. This was a case under the Race Relations Act of 1976 involving an obligation to have “due regard” to the need to eliminate racial discrimination and to promote equality of opportunity. I consider it has application in this case to a school closure proposal, and furthermore, as in Kaur, that the obligation to have “special regard” is a continuing one.  If the Council did in some way have such a regard it was their duty in terms of section 13 of the 2010 Act not just to say they had done so, but to set out in their initial proposal paper and again in their consultation report how they had done so. They did not do this. All of this in my opinion supports the view of the Panel that the Council did not comply with its duty to have special regard to the rural factors relating to viable alternatives to the closure proposal.

[152]    Mrs Scott was critical of the Panel for taking into account two matters which she submitted were irrelevant because they arose after the statutory consultation period had closed. The two matters were the new proposal for consultation on dual zoning for Carbost and Macdiarmid Primary Schools and the ECC proposal. For the reasons set out above at paras 128 - 134 I reject that criticism and the submission that consideration by the Panel of those two matters vitiated its decision. 

[153]    So far as the substance of those two matters is concerned, the Panel had clear concerns (paras 19 and 33 to 35) about the way in which the new proposal for dual zoning had been handled by the Council, and found it regrettable that the Council had agreed to discontinue education provision at the 4 schools before the full impact of this proposal was known.  It did this by way of an observation and not of a separate finding of any failure on the part of the Council, and it stated that the observation was not crucial to its determination relating to the issue of the viable alternatives to the closure proposal. I take it from this that the Panel gave the issue proper consideration, but that while it was a factor in their consideration of the whole issue of viable alternatives it did not affect the outcome. In my opinion the Panel was entitled to take that approach, and it was consistent with the weighing exercise it had to carry out. 

[154]    In paras 36 to 38 the Panel dealt with the second issue which came late in the day, namely the ECC proposal of 12th January 2015 to take over ownership of (or to lease) Edinbane Primary School building and grounds, and thereafter to take responsibility for their repair, maintenance and ultimate refurbishment, with the Council continuing to provide an education service (PSIP p 3). The Council had said that the proposal was considered by the Committee on 14^th January 2015, when the Director had made it clear that the new proposal did not deliver the educational benefits outlined in the Council’s proposal.  That is the only indication I see that the Council had any regard to the ECC proposal at all. The Panel noted that the ECC proposal could never deliver exactly the same educational benefits as the brand new school; that was to state the obvious. It seemed to the Panel that the ECC alternative was not considered in any detail by the Council in order to establish whether it would be a viable alternative to the closure proposal so far as it related to Edinbane Primary school and nursery class (paras 36 and 37). While the Panel does not make any separate finding in respect of section 12(3)(a) compliance, it is clear that this was a factor it took into account in reaching its overall conclusion. In my opinion the Panel was entitled to take the late submission relating to the ECC proposal into account in so far as it related to viable alternatives, and was entitled on the evidence to conclude that the alternative “was not considered in any detail by the Council”. There is no evidence to suggest that it was. I deal with the local community aspects of the ECC proposal in paras 162 ad 163 below

[155]    I do not consider that the Panel erred in law in finding on these matters that the Council had failed to have special regard to one of those factors in respect of the closure proposal as a whole, namely any viable alternative to the closure proposal, and that the Council was therefore in breach of section 12(2) of the 2010 Act (paras 28, 32 and 39).

[156]    At para 29 of its decision the Panel addresses the 28 factors and 3 groups which were considered at the Workshop. It notes that while section 10.5 of the CalEc Report says that the workshop “gave the 28 factors and 3 groups of factors equal consideration and treated them as being of equal importance”, it also says in the summary to section 10.5 that “it would be natural to look first at the “In the Classroom” and “Beyond the Classroom” factors to provide an indication as to which should be the preferred option”.  It notes that this is followed in the next section of the report (10.6) with the statement that “the primary conclusion of the workshop is that the suggested new school could reasonably be expected to deliver a wide range of very valuable long term educational benefits to pupils on a stable and sustainable basis, and this should be considered the preferred option.”

[157]    In para 30 the Panel states its decision that the “Beyond the School” factors were not really considered at all, and in fact were dismissed without explanation. It noted the three factors which the workshop had itself identified (section 10, Figure 10.3) as being factors where the new school would be slightly worse than the existing school arrangements, namely community identity, interaction with the community, and travel distance, time, risk and impact on the community.

[158]    In para 31 the Panel noted that the rural factors mentioned in section 12(3)(b) and (c), namely the effect on the local community and the effect of different travel arrangements, were the very factors found by the workshop as having a negative effect in the local community if the new school were to go ahead. It comes to the decision that the “Beyond the School” factors “were in effect disregarded in determining which of the ideas should be the preferred option.” It finds that the Council did not have special regard to the rural factors and, as that is a mandatory duty of the Council, that its failure to comply with the requirements is a failure in a significant regard.

[159]    The statement in para 10.5 of the CalEc Report (even if borne out) that the workshop “gave the 28 factors and 3 groups of factors equal consideration and treated them as being of equal importance” in my opinion negates the giving of special regard to the rural factors. “Equal consideration” is less than “special regard”. In addition, I see no significant evidence in the CalEc Report to suggest that having identified the “Beyond the School” factors the workshop gave them anything like the same consideration they gave to the “In the Classroom” and “Beyond the Classroom” factors. The last paragraph of section 10.6 (PFIP p 100) seems to indicate that consideration of those matters is for the Council at a later date.   The evidence of the CalEc Report seems to me much more consistent with the Panel’s decision that the “Beyond the School” factors were not really considered appropriately and in fact were dismissed without explanation” (decision para 30), and “were in effect disregarded” in determining the preferred option (para 31).

[160]    I consider that the facts as set out in the documentation pertaining to the workshop (sections 9 and 10 of the CalEc Report), and in particular the apparent failure on the part of the workshop or CalEc to have any special regard to the rural factors other than to recognise their existence (section 10.4 and Figure 10.3), and the absence of any evidence to show that the Council had independently had any such special regard, amply justify the Panel’s findings and its decision at paras 31, 32 and 39.

[161]    I do not consider that the Panel erred in law in finding that the Council had failed to have special regard to two of the rural factors namely any likely effect on the local community and the likely effect caused by different travel arrangements, and that the Council was therefore in breach of section 12(2) of the 2010 Act (para 31). Given the Panel’s finding that the failure in this aspect was virtually total, and the fact that the requirement was mandatory, I do not consider that the Panel erred in law in finding that these failures constituted a failure in a significant regard.

[162]    So far as the ECC proposal is concerned, the Panel remarked at para 38 that it appeared to it that the Council was under an obligation in terms of sections 12(2), (3) and (4) of the Act to have special regard to both the sustainability of the community and the availability of the school premises and its other facilities for use by the community, and that it did not seem to the Panel that the Council had had special regard to these matters prior to coming to its decision. It considered this to be a breach of the Council’s obligations in terms of section 12.

[163]    I consider that the Panel was fully entitled to take this view. The ECC proposal letter makes specific reference to the sustainability of the community in connection with its plans relating to the development of affordable housing in Edinbane in respect of which it was working with Highland Small Communities Housing Trust. It pointed out that the school was an integral part of the community’s development plans.  It suggested that other community initiatives such as a baby and toddler group might be accommodated within the school building. It asked for an early meeting with the Council. It was signed by 42 people and 4 local bodies namely the Edinbane Community Company, Edinbane Parent Council, Skeabost and District Community Council and Edinbane Village Hall Committee. The author of the letter realised that the proposal was unprecedented, but it also appears to me that it was clearly a serious proposal.  There is no suggestion anywhere in the papers that this aspect of the ECC proposal was considered at all by the Council, (though it would appear to have given brief consideration to the educational aspects of the proposal at the Education etc. Committee meeting on 14th January 2015). The finding at the end of para 38 of the Panel’s decision would appear to refer to the matters addressed in that paragraph only, namely sustainability of the community and the use of the school premises by the community. In my opinion the Panel’s finding in para 38 that the Council was in breach of its obligations under section 12(2), (3) and (4) so far as the community aspects of the ECC proposal were concerned was clearly one which was open to it on the evidence. The Panel therefore did not err in law in that regard.

[164]    I consider that the Panel was entitled on the documentation and correspondence it reviewed to have those concerns and to come to the decisions which it came to. Again although it did not specifically pose to itself Lady Smith’s question at para [49] namely “can whatever the education authority did in the course of the consultation process fairly be described as them having paid special regard to the rural factors”, it can be seen from paras 29 to 31 of the Panel’s decision that they considered all the issues that lie behind that question in so far as it related to the community and travel factors, and that their answer if they had asked themselves the question would have been in the negative. My comments above at para 125 as to the Panel’s obligation to weigh evidence for the purpose of assessing the extent if any of the Council’s compliance with the “special regard” and “significant regard” questions apply here too.

[165]    At para 32 of its decision the Panel finds that “these failures”, which I consider means both the “viable alternatives” failure (para 28) and the “Community effect and travel” failures (para 31), are significant and “strike at the heart of the whole consultation process.” I do not think that finding is challengeable on the facts. It could not be said, applying the decision in Edwards v Bairstow (per Lord Radcliffe at p 36), that “no person acting judicially and properly instructed as to the relevant law” could have come to the decision which the Panel came to. Nor in my opinion is its view that the failures were of such significance that they could not be resolved by imposing conditions or by remitting the matter back to the Council for a fresh decision. That is in my opinion a question of disposal which is very much a matter for the Panel’s discretion and I see no error in law in how it has reached that decision.

[166]    In para 39, for all the reasons outlined by it in paras 19 to 38, the Panel found that “Highland Council has failed in a significant regard to comply with the requirements imposed on it by or under the 2010 Act so far as they are relevant to the proposal. It does appear to the Panel that consultation in the fullest sense has not taken place, yet a final decision has been made. The issues raised above are all significant issues for the purposes of making a decision to implement a closure proposal in terms of the 2010 Act.”

[167]    I consider that the Panel was fully entitled to make that finding on the basis of the documentation on which it proceeded. Throughout paras 19-38 it has clearly focussed on the requirements of the Act and has made decisions which it was entitled to make, based on all the documentation, as to whether the Council had complied with its obligations under the Act or not. It has made a decision in paras 32 and 39 that there are significant failures. In all of that it has in my opinion restricted itself to the matters properly within its own jurisdiction and has not at any stage trespassed upon the final decision making responsibilities of the Council. It has complied with the requirements of Lady Smith’s judgment in Eilean Siar No. 2 at para[49] and those of the Extra Division in Eilean Siar No. 1 at para[54].

[168]    So far as nursery education is concerned the Panel summarised its position at para 47, saying it was “of the view that Highland Council has not conducted an explicitly recognisable consultation with regard to nursery closures.” It referred to a lack of the mandatory special regard to the rural factors, and it considered that “the closure of the three nursery classes was not given the necessary prominence in the proposal paper and the consultation report.”   At para 40 it noted that the proposal paper, the consultation report and Highland Council’s decision of 12^th March did not make specific reference to the closure of the nursery schools at Edinbane, Knockbreck and Struan Primary schools, and that the Council, in a response to the Scottish Government on the issue of where in the proposal paper and consultation report there was such reference, the Council had indicated that the proposals were “to discontinue educational provision” at the 4 schools and that “in line with the 2010 Act nursery classes are part of education provision and are included within the definition of such”. The Panel said that there “appeared to be something of a lack of transparency” on the part of the Council in this, and that members of the public should not have to study the 2010 Act to find out that a proposal to discontinue education provision at the schools would necessarily include any relevant nursery classes. In relation to mothballing the Panel referred to the Council making it clear in the proposal paper that if the paper is agreed the mothballing of the preschool class at Edinbane would continue until the new school comes into operation. They referred to earlier correspondence between the Council and Ministers where Ministers had made it clear that they expected the Council to take a decision either to reopen the Edinbane nursery class or to consult on a closure proposal for its closure without delay.

[169]    I do not consider that the Council was required “to conduct an explicitly recognisable consultation in respect of nursery closures” in furtherance of the closure proposal. I take “an explicitly recognisable consultation” to mean a distinct or specific consultation. The nursery classes at Edinbane, Knockbreck and Struan, whether mothballed or not, were each a part of their respective schools and occupied part of the school premises. The relevant closure proposal in this context was one under Schedule 1 para 1(1)(a) of the Act, namely to discontinue a school. Para 1(1)(b)(i) of Schedule 1 in my opinion applies to a proposal for the discontinuance of the nursery classes in a school when the school itself will remain open. It has no operation in this case. It does not in my opinion have any application in a case where the proposal is to close a school which has a nursery class. I agree with Mrs Scott that anyone having an interest in the nursery class at one of the three schools other than Dunvegan would have known exactly what the proposal (if approved) meant for that class. It would close along with the rest of the school, and the pupils would be eligible to attend the nursery class at the new school at Dunvegan. He or she would not have needed to study the Act. The contributions of consultees at the public meeting and the correspondence from affected parents or prospective parents confirm that. While the Scottish Ministers may have been concerned at the ongoing mothballing of the Edinbane nursery class, and clearly wanted separate consultation in respect of the closure of that nursery (failing its reopening) pending the outcome of the closure proposal for the 4 schools, that was not a matter for the Panel. Nor, notwithstanding its inclusion in the calling-in notice, was it a matter for the Panel to consider in relation to the closure proposal they did have to consider. In his submissions Mr Blair referred to page 2 of the Guidance Note where, under the heading “Effect on different school users”, it is said “It will often be important for an authority to distinguish between different groups – for example those with additional support needs – and how a proposal may benefit/impact on them differently. An affected school would include a school proposed for closure either in its entirety or in part (where for instance a stage of education or where all nursery provision was proposed to be discontinued).”   In the case of a proposal to close an entire school, that may require an authority to look separately at the affected groups and then to consider the whole issue of closure, balancing the benefits and adverse impacts for the various groups, before coming to a conclusion on the whole. It appears to me from paras 40 to 47 of the Panel’s decision that it went further than that in its consideration of nursery classes at the three schools.  It seems to me that the Panel was looking for the Council to provide the type of consultation referred to by Ministers in their correspondence with the Council on the subject of the continued mothballing of the nursery class at Edinbane, namely a Schedule 1(1)(b)(i) proposal to discontinue the nursery classes on their own. That was not the closure proposal that the Panel had to deal with.

[170]    That is not to say that matters, including rural matters, relating to the nursery classes should or could not have formed part of the consultation process. In the second sentence of para 47 the Panel stated:- “In particular the Council has not had special regard to the factors (the rural factors) set out in section 12(3) of the 2010 Act”. That might be a relevant matter for the Panel to take into account in the context of and while considering the closure proposal as a whole.

[171]    I accordingly hold that the Panel erred in law (a) in requiring an explicitly recognisable consultation on nursery closures alone, and (b) in considering irrelevant matter (namely the correspondence re mothballing), and that their finding in para 47 cannot stand.

[172]    In respect of the specific issue of travelling times which is dealt with at paras 49 and 50 of the Panel’s decision, this was not a matter which was part of the appeal and accordingly there is nothing for me to consider.

[173]    In para 51 the Panel makes its formal disposal of the whole matter before it in the following terms:-  “For the reasons indicated above the Panel has concluded that Highland Council has not fulfilled its obligations under the 2010 Act. In particular, the Panel has concluded that it has failed in a significant regard to comply with the requirements imposed on it by (or under) the 2010 Act so far as they are relevant in relation to the proposal. Accordingly, the School Closure Review Panel refuses consent in accordance with section 17 (C)(1)(a) of the 2010 Act.” It is that disposal which is the subject of the present appeal.

[174]    The question posed by Lady Smith in Eilean Siar No. 2 at [49], namely “can whatever the education authority did in the course of the consultation process fairly be described as them having paid special regard to the rural factors” is one which needs to be answered in the context of the case as a whole.

[175]    It is clear from the Panel’s disposal that part of the reason for it was its findings in respect of nursery closures, which I have found constituted an error in law. That error does not however in my opinion vitiate the disposal provided that the reasons which are left are sufficient to justify it. The correct approach is to look at the remaining breaches of the Act which the Panel has found to be established, and which I have held it was entitled so to find, and consider whether these breaches by themselves justify the decision.

[176]    The first breach, identified by the Panel at para 28, is in respect of the failure by the Council to have special regard to any viable alternative to the closure proposal. In coming to this conclusion the Panel took into account the fact that the impact of the new dual zoning proposal to include Carbost and MacDiarmid schools was not known, the application of the two shortlisting tests, the lack of an objective basis for the three class test, the conduct of the workshop, the stated intention to avoid the commitment of time energy and money, the failure to consider options on the shortlist which were stated to provide educational benefits, and the failure to consider the ECC proposal in any detail (Decision paras 19 – 28, and 33 -37).

[177]    The second breach, identified at para 31 of the decision, is the failure to have special regard to the impact of the proposal on the community. In coming to this conclusion the Panel took into account the “Beyond the School” factors; the statement in section 10 of the CalEc report that the 28 factors and 3 groups of factors had been treated equally, but that the “In the Classroom” and “Beyond the Classroom” factors had been looked at first to provide the preferred option; their decision that the “Beyond the School” factors were not considered appropriately and were dismissed with no explanation; the fact that the workshop had identified section 12(3)(b) and (c) factors which would have an adverse impact on the communities if the closure proposal went ahead but disregarded those factors in determining the preferred option; the fact that the effect of the dual zoning proposal on the local communities was not known; and the fact that the effect on the community of the ECC proposal had not been considered (Decision paras 29 – 31, 33 and 34, and 38). 

[178]    The Panel clearly felt strongly that the failures they identified in respect of Nursery closures were real and significant and went to the very heart of genuine consultation (Decision paras 47 and 48). I have held that while the whole idea of an “explicitly recognisable consultation” is wrong in law, the factors taken into account by the Panel in dealing with that issue as a standalone requirement might well be relevant in dealing with nursery issues as a constituent part of the consultation process for the closure proposal. They, or some of them, would be factors to be selected and weighed along with all the others in determining the two questions the Panel had to deal with. That selection and weighing has not been done by the Panel and it is not for me to try to do it. Accordingly I will exclude paras 40 to 48 from consideration in their entirety. I am confident that that will not prejudice the Appellant Council in any way.

[179]    The Panel says at para 32 “these failures are significant and strike at the heart of the whole consultation process” to such an extent that they could not be dealt with by the imposition of conditions or remitting the case back for a fresh decision. It says at para 39 that the failures are significant and that consultation in the fullest sense has not taken place. I have already held (paras 166 and 167 above) that the Panel was entitled to make these findings. They clearly demonstrate that had the Panel only considered these matters and excluded the nursery issue it would have made the same decision.

[180]    Applying Lady Smith’s test at this final stage, and asking the question put at para [49], namely:- “Where the authority’s compliance with section 12 is challenged, the question is whether, on the facts of the particular case the education authority can fairly be described as having had special regard to the rural factors ……. to put it another way can whatever the education authority did in the course of the consultation process fairly be described as them having paid special regard to the rural factors” the Panel’s answer, whichever way the question is put, would be clearly and firmly in the negative.

[181]    For all the reasons I have given I consider that on the evidence it considered, having regard to the provisions of the 2010 Act, and applying Lady Smith’s test to the whole matter, except for the evidence and findings relating to the nursery classes, the Panel has not erred in law, and its final disposal as set out in para 51 cannot be faulted.

[182]    In all the circumstances the appeal fails and I have pronounced the interlocutor which is on page 1 hereof.

[183]    I indicated at the hearing of the Appeal that I might hear parties on the issue of expenses by conference call. On reconsideration I feel that in a case of this kind which is of such importance not just to the parties but to the affected communities, in which there has been considerable public interest, and having regard to the subject matter it would not be appropriate to do that. In the absence of agreement within 3 weeks of the date hereof the Sheriff Clerk will fix a hearing on expenses.