SCTSPRINT3

OUTER HOUSE, COURT OF SESSION

[2012] CSOH 94

P788/11

P789/11

P790/11

P791/11

OPINION OF LORD BRAILSFORD

in the cause

COMHAIRLE NAN EILEAN SIAR

Petitioners;

against

THE SCOTTISH MINISTERS FOR JUDICIAL REVIEW OF A PURPORTED CALL IN NOTICE IN RELATION TO A PROPOSAL TO CLOSE CARLOWAY SCHOOL, SHELIBOST SCHOOL, LIONEL SCHOOL, SHAWBOST SCHOOL

Respondents:

­­­­­­­­­­­­­­­­­________________

Petitioners: Wolffe, Q.C.; Simpson & Marwick

Respondents: R. Crawford, Q.C., Ross; Scottish Government Legal Directorate

6 June 2012

[1] These are four petitions for judicial review. In each petition the petitioners are the local authority constituted as the Western Isles Islands Council in terms of the Local Government (Scotland) Act 1973, thereafter known as the Western Isles Council and having changed its name to its current format in terms of the Local Government (Gaelic Names) (Scotland) Act 1997. For convenience I will refer to the petitioners as "the council" throughout this opinion. The council is the education authority for its area. The Scottish Ministers are the respondents in each petition. The petitions each concern call-in notices and decisions taken by the Scottish Ministers in relation to four schools, Shelibost School, Carloway School, Lionel School and Shawbost School for which schools the council are the education authority.

[2] Shelibost School and Carloway School are primary schools. Lionel School and Shawbost School provide education for S1 and S2 pupils in addition to providing primary education. On 4 November 2010 the council determined to close the said primary schools at Shelibost and Carloway and to discontinue the provision of S1 and S2 education at Lionel and Shawbost Schools. In these petitions the council challenge the call-in notices dated 14 December 2011 and subsequent decisions intimated to the council by letters dated 12 January 2011 in terms of which the Scottish Ministers refused to give consent to the said proposals made by the council. The council seek (1) declarator that the Scottish Ministers erred in law in issuing the call-in notices; (2) erred in law in issuing the decision letters; (3) reduction of the call-in notices and (4) reduction of the decision letters.

[3] The statutory framework within which the current dispute has arisen is the Schools (Consultation) (Scotland) Act 2010 ("the 2010 Act"). In terms of statutory guidance issued under section 19 of the 2010 Act, the Act's

"... principal purpose is to update and strengthen the statutory consultation practices and procedures that local authorities apply to their handling of all proposals for school closures and other major changes to schools."

To that end the 2010 Act sets forth a framework and procedures which require to be adhered to when education authorities seek to implement school closures and changes of the sort proposed by the council in relation to the four schools with which these petitions are concerned.

[4] Section 1 of the 2010 Act provides that where in relation to any school an education authority has formulated a relevant proposal then before proceeding with the proposal, the education authority must comply with initial and subsequent requirements which are statutorily prescribed. The requirements are set forth in section 1(3) and (4) as follows:

"(3) The initial requirements are -

(a) to prepare an educational benefits statement in accordance with section 3,

(b) to prepare (and publish) a proposal paper in accordance with section 4,

(c) to give notice of the proposal to the relevant consultees (and invite representations) in accordance with section 6,

(d) to hold (and give notice of) a public meeting in accordance with section 7,

(e) to involve HMIE in accordance with section 8.

(4) The subsequent requirements are -

(a) to review the proposal in accordance with section 9(1),

(b) to prepare (and publish) a consultation report in accordance with sections 9 and 10."

The terms "relevant proposal" and "closure proposal" are in terms of section 2 of the 2010 Act specified in schedule 1. In terms of schedule 1, paragraph 1, a proposal to permanently discontinue a school (para 1(1)(a)) or to discontinue a stage of education in a school (para 1(1)(b)(ii)) constitutes a "relevant proposal". The proposals made by the council in respect of each of the four schools which form the subject matter of these petitions is accordingly a "relevant proposal" for the purposes of the 2010 Act, a matter about which the parties were in agreement.

[5] Sections 3-10 of the 2010 Act set forth details of the requirements of the educational benefits statement (section 3), the proposal paper (section 4), the consultation requirements (section 6), the public meeting (section 7), the involvement of Her Majesty's Inspectorate of Education ("HMIE") and the consultation report (sections 9 and 10) that are required to be undertaken by the education authority to comply with the process set forth in section 1 of the 2010 Act. Whilst the decision making process undertaken by the council in relation to the proposals relative to the four schools which form the subject matter of these petitions is the subject of dispute between the parties, I do not understand there to be any issue with the councils formal compliance with the procedure stipulated in sections 1-10 of the 2010 Act.

[6] Sections 12-14 of the 2010 Act deal with special provisions for rural schools. Section 14 defines "rural school". It is not in dispute that each of the four schools with which these petitions are concerned are rural schools. Section 12 is in the following terms:

"(1) Subsection (2) applies in relation to any closure proposal as respects a rural school.

(2) The education authority must have special regard to the factors mentioned in subsection (3).

(3) The factors are -

(a) any viable alternative to the closure proposal,

(b) the likely effect on the local community in consequence of the proposal (if implemented),

(c) the likely effect caused by any different travelling arrangements that may be required in consequence of the proposal (if implemented).

(4) For the purpose of subsection (3)(b), the effect on the community is to be assessed by reference (in particular) to -

(a) the sustainability of the community,

(b) the availability of the school's premises and its other facilities for use by the community

(5) For the purpose of subsection (3)(c) -

(a) the effect caused by such travelling arrangements includes (in particular) -

(i) that on the school's pupils and staff and any other users of the school's facilities,

(ii) any environmental impact,

(b) the travelling arrangements are those to and from the school of (and for) the school's pupils and staff and any other users of the school's facilities."

[7] Sections 15-17 of the 2010 Act provide for call-in by the Scottish Ministers. Section 15(1) provides:

"(1) Subsections (2) to (6) apply where, in relation to any school, an education authority has decided to implement a closure proposal."

In that event in terms of section 15(2) -

"(2) The education authority must -

(a) notify the Scottish Ministers of that decision within the period of 6 working days starting with the day on which the decision is made".

The Scottish Ministers are then, in terms of section 15(3) granted discretionary power to call-in as follows:

"(3) Before the expiry of 6 weeks starting with the day on which that decision is made, the Scottish Ministers may issue a call-in notice to the education authority."

Section 15(5) provides:

"(5) A call-in notice has the effect of remitting the closure proposal to the Scottish Ministers."

Section 16 provides, inter alia:

"(1) Subsections (2) and (3) apply where a call-in notice is issued as respects a closure proposal.

(2) The Scottish Ministers may -

(a) refuse to consent to the proposal, or

(b) grant their consent to the proposal -

(i) subject to conditions, or

(ii) unconditionally.

(3) The education authority may not proceed further with the proposal -

(a) unless the Scottish Ministers grant their consent to it under subsection (2)(b), and

(b) until the Scottish Ministers duly inform the authority of that consent (and any conditions to which it is subject)."


Section 17 provides, inter alia:

"(1) The Scottish Ministers may issue a call-in notice only if subsection (2) applies.

(2) This subsection applies where it appears to the Scottish Ministers that the education authority may have failed -

(a) in a significant regard to comply with the requirements imposed on it by (or under) this Act so far as they are relevant in relation to the closure proposal, or

(b) to take proper account of a material consideration relevant to its decision to implement the proposal."

[8] Against the foregoing statutory background, senior counsel for the petitioners submitted that the function of the Scottish Ministers was not restricted to checking that the statutory procedures set forth in the 2010 Act had been complied with. He submitted that the ministers having exercised their power to call-in, required to deal with the proposals as matters of substance. In support of this submission, he drew my attention to the provisions of section 15(5). Whilst accepting that that provision had to be construed in the context of the whole statute, he submitted that the language was consistent with, and favoured a construction which required the Scottish Ministers to actively consider the proposal which they were calling in. My attention was drawn to the use of the word "remitting". The normal meaning of that word, it was said, was to transfer a matter from one body to another, the natural implication of which was that the body to which a matter was being transferred would assume responsibility therefor. That construction was further said to be consistent with the well-known and understood concept of calling in within the planning framework. Whilst acknowledging that the statutory framework in planning within which call-in operated, provided by section 46 of the Town & Country Planning (Scotland) Act 1997, was different from that in the 2010 Act, it was, he said consistent with the concepts in the planning framework. My attention was further drawn to the language of section 16(2) of the 2010 Act. The language there was said to contain no limitation on the action which the Scottish Ministers might take in reaching a decision to refuse or consent to the proposals. That too was said to be consistent with an active role in the process for the Scottish Ministers. Lastly, so far as the statute itself was concerned, my attention was drawn to section 16(3). It was noticed that that provision prevented an education authority from proceeding further with a closure proposal unless the Scottish Ministers consented to that proposal. No provision was made for what should happen in the event of the Scottish Ministers declining to give their consent. There was no provision to remit the matter back to the education authority to consider anew. There was no indication that the education authority required to commence the whole process again. The absence of any provisions in relation to these matters was said to support the construction that the determination of the proposal, once called in, rested with the Scottish Ministers. Support for this construction was said to be further obtained from consideration of the provisions in the Education (Scotland) Act 1980 in relation to the requirement for consent for certain changes in relation to denominational schools. In that regard, reference was made to sections 22C and 22D of the said Act of 1980. In particular, my attention was drawn to the provisions of section 22C(3) of the said Act which was said to be at least an analogue of the provisions in sections 15-17 of the 2010 Act. Support for the proposition that the requirements in section 22C and 22D of the said Act of 1980 required active consideration of a closure proposal by the Scottish Ministers was said to be found in the speech of Lord Mackay of Clashfern in the House of Lords in Scottish Hierarchy of the Roman Catholic Church v Highland Regional Council 1987 SC (HL) 1 at page 26.

[9] Senior counsel submitted that if his construction of the statute were correct and the Scottish Ministers required to consider these proposals on their merits and, they having failed so to do, he would succeed in these petitions without need to consider whether or not the call-ins were intra vires.

[10] Senior counsel for the respondents accepted the proposition that if the correct statutory interpretation required the Scottish Ministers to consider the proposals then, it having been accepted by her that no such consideration was undertaken, all four petitions would succeed. She however submitted that the interpretation of the statute contended for by the council was erroneous.

[11] The Scottish Ministers' submission was that their role in relation to call-in was limited to the requirement that they ensured that an education authority in dealing with a proposal had complied with the statutory requirements. It was submitted that the education authority was the specialist body, with local knowledge who were as a matter of statute charged with the provision of education within the area for which they were responsible. The role of the Scottish Ministers was at a strategic level. As such they had no role to play in active consideration of the proposals. Their role was simply to ensure that the procedure or process stipulated in the 2010 Act was complied with. Whilst accepting that the scope of the Scottish Ministers' duties could only be determined by consideration of the terms of the 2010 Act, my attention was drawn to the fact that the approach taken by the Scottish Ministers was consistent with what was stated in the Statutory Guidance issued in relation to the Act. It was submitted that no assistance could be obtained by reference to the call-in procedure in the Town & Country Planning (Scotland) Act 1997. That Act provided express provision for consideration of matters called in by the Scottish Ministers. Similarly no assistance could be obtained from consideration of the provisions of sections 22C and 22D of the Education (Scotland) Act 1980. As with the Planning Act there was express provision in the Education Act, for consideration of closure proposals called-in by the Scottish Ministers, which was a different situation from that in the 2010 Act, where no such provisions existed.

[12] The second argument advanced by the council was described by senior counsel as a natural justice point based on lack of fair notice. My attention was drawn to passages in the Record in the Carloway case in particular passages in Answer 8 between pages 15D and 17B and to a passage in Answer 11 at page 23B. These passages contained averment amounting to a substantive argument directed against the decision-making process undertaken by the Council. The answers concentrated on the definition it was said the Council placed on the term "community". My attention was then drawn to the call-in notices and the submission was that the reason stated on the call-in notice was different from that stated in the averments to which I have referred. Put shortly, the call-in notice made no reference to the question of defining the term "community". It was therefore submitted that no fair notice of this point had been given by the Scottish Ministers to the council who had thereby been deprived of the opportunity to respond effectively to the notice. In the circumstances it was submitted the Scottish Ministers should not be permitted to rely upon any argument in relation to the definition of "community" in their defence to the present petition. Support for this approach was said to be found in R v Westminster City Council, ex parte Ermakov [1996] 2 All ER 302 in the following passage in the Opinion of Hutchison LJ at pps.315-316:

"(2) The court can and, in appropriate cases, should admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should, consistently with Steyn LJ's observations in Ex p. Graham, be very cautious about doing so. I have in mind cases where, for example an error has been made in transcription or expression, or a word or words inadvertently omitted, or where the language used may be in some way lacking in clarity. These examples are not intended to be exhaustive, but rather to reflect my view that the function of such evidence should generally be elucidation not fundamental alteration, confirmation and not contradiction. Certainly there seems to me to be no warrant for receiving and relying on as validating the decision evidence - as in this case - which indicates that the real reasons were wholly different from those stated reasons. It is not in my view permissible to say, merely because the applicant does not feel able to challenge the bona fides of the decision-makers explanation as to the real reasons, that the applicant is therefore not prejudiced and the evidence as to the real reasons can be relied upon. This is because, first, I do not accept that it is necessarily the case that in that situation he is not prejudiced; and, secondly, because, in this class of case, I do not consider that it is necessary for the applicant to show prejudice before he can obtain relief. ...

(3) I consider there are good policy reasons why this should be so. The case has emphasised that the purpose of reasons is to inform the parties why they have won or lost and to enable them to assess whether they have any ground for challenging an adverse decision. To permit wholesale amendment or reversal of the stated reasons is inimical to this purpose. Moreover, not only does it encourage a sloppy approach by the decision-maker, but it gives rise to potential practical difficulties. In the present case is it was not, but in many cases it might be, suggested that the alleged true reasons were in fact second thoughts designed to remedy an otherwise fatal error exposed by the judicial review proceedings. That would lead to applications to cross-examine and possibly for further discovery, both of which are, while permissible in judicial review proceedings, generally regarded as inappropriate. Pleadings would be made longer and more expensive."

[13] The third tranche of argument advanced by the council involved consideration of the call-in notices themselves. This line of argument was, of course presented on the basis that it was only necessary to consider the call-in notices if the first argument advanced on behalf of the council, that is the approach taken by the Scottish Ministers was fundamentally flawed did not succeed. Plainly if the council's first argument succeeded there was no need to consider the call-in notices.

[14] In relation to all four schools, the call-in notices were issued in terms of letters dated 14 December 2010. Each notice stated that the Ministers had "concluded that there are grounds on which to call in the closure decision, under section 17(2)(a) of the 2010 Act", that is it appeared to the Scottish Ministers that the education authority may have failed in a significant regard to comply with the requirements imposed upon it by the 2010 Act. In the case of Shelibost School the call-in notice specified an alleged failure under section 12(3)(a) of the 2010 Act by the council in failing to have special regard to any viable alternatives to the closure proposal. Further specification was given as follows:

"Ministers considered that when the council was reviewing the consultation and how it had impacted on its assessment of the rural factors ... it should have considered the option suggested by the West Harris Trust, together with the detailed analysis of its merits and disadvantages, as an alternative when deciding the future of the school. The Scottish Ministers concluded that this issue demonstrated that the council had not had the level of regard to viable alternatives as is required under section 12(3)(a) of the 2010 Act and that the council's consultation process was therefore flawed."

In relation to Carloway School the call-in notice alleged failure to comply with section 12(3)(b) of the 2010 Act, that is failure to have special regard to the likely effect on the local community in consequence of the proposal. Further specification was given as follows:

"... Ministers concluded that insufficient consideration has been given the likely effect on the local community of the school closing. Whilst Ministers recognised the council's efforts to support community development in the area by submitting a European Social Fund application, they also recognised that your assessment of the impact on the local community of the loss of the school was a clear point of contention. Ministers acknowledge that you consider a community to be defined by an area rather than by individual villages, but notwithstanding this definition still do not consider that sufficient consideration was given to the community use of the school, such as the Annual Agricultural Society show, and the impact that its potential loss would have on such activities."

In relation to Lionel School the call-in notice alleged failures in relation to sections 12(3)(a) and 12(3)(c) of the 2010 Act. In relation to section 12(3)(a), failure to have special regard to any viable alternative, further specification was given as follows:

"... Ministers concluded that insufficient consideration had been given to alternatives. In particular Ministers noted the view of Her Majesty's Inspectorate of Education that your council had not fully considered more radical options such as the possibility of Lionel School becoming a 'satellite' campus of the Nicholson Institute, sharing staff and resources. While Ministers recognise that you responded directly to this point in your consultation report, they considered that when the council was reviewing the consultation and how it had impacted on its assessment of the rural factors ... it should have considered alternative options, together with a detailed analysis of their merits and disadvantages, when deciding the future of the school."

In relation to the alleged failure under section 12(3)(c) of the Act, likely effect on travelling arrangements, further specification was given as follows:

"Given the distance to the receiving school, the Nicholson Institute, in this proposal the issue of travelling time for affected pupils, and indeed whether the proposal arrangements would even be congruent with your council's own travel policy, was clearly a point of contention. In considering the consultation process undertaken by your council, Ministers concluded that insufficient consideration had been given to the likely effect caused by different travel arrangements. Whilst Ministers understand the point offered in your consultation report that effective arrangements have been in place for years for transporting S3-S6 pupils, they consider that insufficient recognition was given to the point that the effect on younger pupils is likely to be more significant."

In relation to Shawbost School the call-in notice's alleged failures in relation to section 12(3)(a) and 12(3)(c) of the 2010 Act. The nature of the alleged failures and the specification given were in the same terms as those in the call-in notice relative to Lionel School which I have already quoted and need not be repeated.

[15] In relation to these call-in notices counsel first addressed a distinct point which arose in relation to the notices in respect of Lionel and Shawbost Schools where, as noted in the immediately preceding paragraph, two grounds for call-in were stated. The issue accordingly arose as to whether the validity of the notice depended on both grounds being established or, in the alternative, whether the individual grounds could be treated as severable and distinct and the notice remain effective if only one ground were upheld. In relation to that question, counsel drew my attention to Pirie v City of Aberdeen District Council 1993 SLT 1155 in particular to a passage in the opinion of Lord Cullen sitting in the Outer House at 1157A-D. On the basis of that authority, counsel submitted that the question of whether or not two separate grounds for call-in were severable depended upon the terms of the notice. If, properly construed, the ground set forth in cumulo represented the reason for call-in then the grounds were not severable and stand alone. Read properly, counsel submitted that was the construction to be placed upon these notices.

[16] The substantive argument advanced against the call-in notices was that properly and fairly construed the council had conducted an exercise in reaching their proposals in relation to the four schools which was consistent with and discharged the statutory duties incumbent upon them under the 2010 Act. It was accepted that the decision-maker, that is the council, in reaching its decision required to have special regard to the rural factors set forth in section 12(3) of the 2010 Act. It was however further submitted that in determining whether or not that duty had been discharged, regard had to be had to the whole process which had been undertaken in reaching the decisions reflected in each of the proposals. When this was done it would be seen that, as required by the 2010 Act, the council had prepared educational benefit statements and a proposal paper and had put those documents out for consultation. They had convened public meetings to discuss the proposals and had involved HMIE. They had prepared a report which was discussed by the appropriate committee, the education authority and by the whole council. Each stage of that process had regard to not only the contents of prepared reports but to any evidence or information brought to them. It was apparent that this had been done and could be clearly seen by reading the transcripts of the public meeting, the committee meeting and the meeting of the full council, all of which amply demonstrated that all relevant issues had been considered.

[17] In relation to the specific criticisms identified in the call-in letters and relied upon by counsel for the Scottish Ministers, it was submitted that, again on a fair reading of the papers, they were without foundation. In relation to Shelibost the criticism was that special regard had not been given to the proposal put forward by the West Harris Trust. The proposal had been that there should be a moratorium on closure of the school on the basis that the Trust, which had only recently become the owners of areas of ground in the area, intended to implement a regeneration process which would increase population in the area and therefore increase the school roll. It was submitted that there was no justification for the assertion in the call-up notice that this proposal had not been fully considered by the council. On the contrary, the matter had been fully discussed at the public meeting. My attention was drawn to the transcript of that meeting (No. 6/2 of process) and in particular to references to this proposal and its discussion at a significant number of pages therein. This transcript was one of the papers before both the relevant committee and the council in reaching their decisions and was therefore fully appreciated and considered by these bodies. In relation to the viability arguments in respect of Lionel and Shawbost schools these matters had on a fair reading of the documentation again been before the council and had been fully considered in reaching their decision. In relation to Carloway school, it was maintained that the argument advanced by counsel for the Ministers was different from that which appeared in the call-up notice. I have already narrated the substance of that argument in this Opinion.

[18] In response, counsel for the Scottish Ministers firstly pointed out that the statutory requirement upon the council was to have "special regard" to the rural factors (section 12 of the 2010 Act). The correct interpretation of this phrase, it was submitted was to create a presumption against closure of rural schools such as those with which these petitions are concerned. In the context of the statute under consideration, this presumption against closure was said to operate and meant that if any of the rural factors identified in section 12(3)(a)-(c) were present then closure could not take place. It was not accepted that the absence of any viable alternative allowed the council to proceed to closure. It followed that consideration of the rural factors was a necessary first step in the process of reaching a decision. If that was not done then it could not be said that the council had proper regard to the rural factors.

[19] The first issue for determination is the construction to be placed upon the call-in procedures set forth in sections 15-17 of the 2010 Act. In particular, the issue arises as to the role of the Scottish Ministers after they have exercised their statutory right to call in a closure proposal.

[20] Whilst it is plain that the provisions in relation to call-in require to be construed in the context of the whole Act there is, in my view, little to assist the construction of the relevant sections from the remainder of the Act. I accept, as was submitted by senior counsel for the respondents, that the intention of the Act was no doubt to leave the detail of issues such as school closure to local education authorities with the Scottish Ministers assuming a strategic role in developing and formulating policy. Whist that aim is fairly obviously discernable from the language of the Act, construction of the relevant sections still requires analysis of the language used. In that regard, the role of the Scottish Ministers falls to be determined by consideration of the provisions of section 15(5) and, thereafter, consideration of the import of the powers granted to the Scottish Ministers in determination of the case once called-in granted by section 16 of the 2010 Act. Section 15(5) provides that "a call-in notice has the effect of remitting the closure proposal to the Scottish Ministers". The effective or operative word in that subsection is "remitting". No further guidance is provided by section 15 as to the effect of the call-in notice. Section 16 grants the Scottish Ministers power to refuse to consent to the proposal or grant their consent to the proposal either subject to conditions or unconditionally (section 16(2)). The only other indication as to purpose is found in section 16(3) which precludes the education authority from proceeding further with a closure proposal unless and until the Scottish Ministers inform the authority of that consent. In other words, once call-in of a closure proposal is effected by the Scottish Ministers, the education authority can proceed no further until they are informed that the Scottish Ministers consent, or consent subject to conditions, to the proposal. There is no provision in the Act as to how the Scottish Ministers should proceed to deal with a closure proposal once it has been called-in.

[21] The absence of express statutory instruction as to how the Scottish Ministers should proceed plainly raises a point of construction of some difficulty. My attention was drawn to the call-in provisions in the Town and Country Planning (Scotland) Act 1997 and to call-in proposals in the Education (Scotland) Act 1980, sections 22C and 22D. I did not ultimately find these references of assistance. In both these Acts, express statutory guidance is given as to how the Scottish Ministers should proceed once a matter has been called-in. This is a clear distinction from the Act under consideration and that distinction precludes me drawing any effective comparison from the approaches taken to call-in in either of those statutes. That being so, the question of construction devolves to one entirely of the language of the 2010 Act. Approached in that way, I consider two things are instructive. First, the operative verb in relation to call-in is, in terms of section 15(5) "remit". The Oxford English Dictionary[1] gives a number of meanings for that word, the most apposite of which having regard to the context of the 2010 Act would appear to be "[T]he consignment or reference of a matter to some other person or authority for settlement...". If that is the correct construction to put upon the word as used in section 15(5) of the 2010 Act then, in my view, it is clear that the matter before the education authority, that is the issue of whether or not certain rural schools should be closed, has been transferred to the Scottish Ministers for that body's determination. In my view determination would require consideration of the matters at issue, and of the facts relative thereto. It follows that the language used in section 15(5) is more consistent with the Scottish Ministers requiring to consider the issues before them rather than simply satisfying themselves that the education authority (in these cases the council), have complied with the statutory procedures imposed upon them in considering proposals for school closure in sections 1-11 of the 2010 Act. The second matter which I consider significant in relation to construction of these provisions is the consideration that section 16 provides for no mechanism to return consideration of the closure proposal to the education authority. Section 16 expressly precludes an education authority from taking any further action in relation to a closure proposal unless, and until, the Scottish Ministers consent conditionally or unconditionally to the proposal. The absence of any other role for the education authority, save for implementation in the event of consent by the Scottish Ministers implies, in my view, that responsibility for the effective decision is being assumed by the Scottish Ministers in their act of call-in. The implication of this is, again in my opinion, that they require to consider and determine the issue.

[22] It follows from the foregoing that I consider that the statutory language imposes upon the Scottish Ministers the obligation if they exercise their right to call-in a closure proposal to determine that matter on its merits. It is matter of agreement between the parties to these petitions that the Scottish Ministers did not construe the statutory provisions in that way. It is further a matter of agreement between the parties that the Scottish Ministers have not considered the closure proposals in a manner consistent with the construction I now place upon the relevant provisions of the 2010 Act. As I understand it, both parties are in agreement that the effect of my construction of the relevant statutory provisions is that the call-in notices are defective and that the orders sought by the petitioners fall to be granted. That decision is sufficient for disposal of these petitions. I was however favoured by comprehensive argument on the other issues raised in these petitions by counsel and, whilst not strictly necessary, I should express views on these others issues in case they be of any assistance to parties.

[23] The second issue related to the terms of each call-in notice and, in particular, whether the petitioners had complied with the obligations imposed upon them in relation to exercise of their functions under sections 1-11 of the 2010 Act. As I understand the argument presented on behalf of the Scottish Ministers, it is not suggested that the formal requirements of sections 1-11 were not complied with. Rather, the argument on behalf of the Scottish Ministers was that in relation to certain matters (as detailed in the call-in notices relevant to each of the schools), the council failed to discharge the statutory duties incumbent upon them. In advancing these arguments senior counsel for the Scottish Ministers accepted that the correct approach to the council's consideration of the issues relevant to the closure proposals was not to subject their determinations to close analysis as one would analyse, for example, a conveyancing document. Rather, the correct approach was to look at the totality of what had been considered by the council, and thereafter determine whether they had failed to have proper regard to any of the issues which they were statutorily obliged to consider (Campbell v City of Edinburgh Council 1999 SLT 1009 per Lord Osborne at page 13). Having accepted that was the correct approach to consideration of the council's determination of the issues before them, senior counsel for the Scottish Ministers strayed perilously close to analysing the actings of the council in the very way she had eschewed. In my opinion, in respect of each of the four schools, a fair reading of the various papers produced by the council in order to comply with the statutory steps set forth in sections 1-11 of the 2010 Act leads to the conclusion that they have properly and fairly considered all matters relevant to the closure proposals. It follows that I am of the opinion that the call-in notices were not justified. It further follows that for this reason, in addition to that which I have already addressed, the petitioners are entitled to the remedies they seek in the petitions.

[24] The third matter relates to the petitions regarding Carloway and Shelibost schools. As already noted, in each of these two cases the call-in notices specified two grounds in which it was said that the council had failed to comply with the statutory duties incumbent upon them. The question arises as to whether the Scottish Ministers require to establish both those grounds in order for the call-in notice to be effective or, in the alternative, if one of the grounds is unsustainable the entire notice is defective. In relation to this issue I am satisfied that the law is as stated by Lord Cullen in Pirie v City of Aberdeen District Council 1993 SLT 1155. The notices in that case were of a different nature from those in the present case, however, the issue of whether or not two grounds stated within a notice were severable or not is addressed by Lord Cullen at page 1157 where he determines that the matter is one of language of the notice. Put shortly, if the grounds are plainly distinct and severable they can stand alone; if, in the alternative, the notice is devoid of meaning if the two grounds are not read cumulatively, then failure by one will render the whole notice ineffective. In the two cases before me it seems relatively easy to conclude that the grounds stated in the call-in notices are distinct. The notices are explicable and understandable if each ground is treated on its own. For these reasons I am able to conclude that the separate grounds stated in these notices are severable. Were this the only matter which had been advanced by the council I would not have been prepared to grant declarators as sought.

[25] The final issue is in relation to Carloway School, whether the grounds stated in the call-in notice differ from those advanced in the pleadings and subsequently contended for by the Scottish Ministers in the first hearing. I consider that at the very least the grounds stated in support of the call-in notice in the pleadings are considerably fuller than those in the call-in notice. The essential issue is whether they are of a completely different nature. I consider that counsel for the petitioners was correct to approach the matter as one of fair notice. The council are entitled in terms of the call-in notice to know why it is said their procedure has been defective. I do not consider that the call-in notice achieves that. Moreover, I consider that the differences between the call-in notice and the pleadings and argument advanced by the Scottish Ministers is sufficiently great to oblige me to reach the conclusion that they are different matters. I have accordingly formed the view that in relation to Carloway School, for this additional reason the call-in notice is defective.

[26] Having regard to all the foregoing, I will sustain the petitioners' first, second, third, fourth and fifth pleas in law and repel the respondents' first, second and third pleas in law in each of these four schools' cases.

[27] I shall reserve the questions of expenses.



[1] Footnote: Oxford English Dictionary; 2nd Edition 1989 (2004 reprint), Vol. XIII, page 592