| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
Lady Paton Lady Dorrian Lord McGhie | [2012] CSIH 6 P788/11, P789/11 and P791/11 OPINION OF THE COURT delivered by LADY PATON in the cause of COMHAIRLE NAN EILEAN SIAR (constituted as the Western Islands Council) Petitioners and Respondents; against THE SCOTTISH MINISTERS Respondents and Reclaimers: for Judicial Review of (1) call-in notices dated 14 December 2010 relating to Shelibost, Shawbost and Carloway Schools; and (2) decision letters dated 12 January 2011 refusing consent to closure proposals _______________ |
Petitioners and respondents: Wolffe QC, Paterson; Simpson & Marwick
Respondents and reclaimers: Crawford QC, M Ross; The Scottish Government Legal Directorate
6 February 2013
Proposed school closures in the Western Isles
[1] There is a proposal to close two primary schools in the Western Isles (Shelibost and Carloway), and to discontinue S1 and S2 education at a third school (Shawbost). The local education authority (the Western Isles Council - "the Council") followed the consultation procedures set out in the Schools (Consultation) (Scotland) Act 2010. They issued closure proposals. The Scottish Ministers then issued call-in notices dated 14 December 2010 in the following terms:
Shelibost
"In considering the consultation process undertaken by your Council, Ministers concluded that insufficient consideration had been given to alternatives, in particular the one suggested by the West Harris Trust. Ministers considered that when the Council was reviewing the consultation and how it had impacted on its assessment of the rural factors (set out in section 12(3) of the 2010 Act) it should have considered the option suggested by the West Harris Trust, together with a 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."
Shawbost
"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 considered that insufficient recognition was given to the point that the effect on the younger pupils is likely to be more significant. Ministers also noted Her Majesty's Inspectorate of Education's advice ... to assess the impact on the pupil's health and wellbeing. Although this point is directly responded to within your consultation report, Ministers consider that the Council had not had the level of regard to the likely effects caused by different travelling arrangements as is required under section 12(3)(c) of the 2010 Act and that the Council's consultation process was therefore flawed ..."
Carloway
"In considering the consultation process undertaken by your Council, Ministers concluded that insufficient consideration had been given to the likely effect on the local community of the school closing. Whilst Ministers recognise the Council's efforts to support community development in the area by submitting a European Social Fund application, they also recognise 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. The Scottish Ministers consider that the Council had not had the level of regard to the likely effect on the local community in consequence of the closure as is required under section 12(3)(b) of the 2010 Act and that the Council's consultation process was therefore flawed."
[2] In each case, the Ministers intimated to the Council by letter dated 12 January 2011 that they refused to give their consent to the closure proposal. Each letter was in the following terms:
" ... the Scottish Ministers have determined that Comhairle nan Eilean Siar's consultation was flawed for the reasons set out in my letter of 14 December 2010. They therefore refuse to give their consent to the Council's proposals to close this school."
Petitions for judicial review
[3] The Council then raised petitions for judicial review of the call-in notices and of the decisions intimated by letter dated 12 January 2011. One of the contentions advanced by the Council (statements of fact 16, 14, and 13 in the Shelibost, Shawbost, and Carloway petitions respectively), was as follows:
" ... in taking the decision, the Scottish Ministers erred in law. A call-in notice has the effect of remitting the closure proposal to the Scottish Ministers. Reference is made to section 15(5) of the 2010 Act. The Scottish Ministers could not rationally and lawfully refuse to consent to the proposal without addressing their minds to the substantive merits of the proposal ...
[4] Each petition lists particular matters which the Ministers should have addressed. For example, in the Shelibost petition the matters listed are whether there were realistic prospects of materially increasing the school roll; whether or not keeping Shelibost School open was a viable alternative, having regard not only to the prospects for increasing the school roll but also to the financial viability of keeping the school open; and in any event esto keeping the school open was a viable alternative (which was denied) the educational and other merits of the proposal.
The hearing before the Lord Ordinary
[6] A First Hearing in each case took place before Lord Brailsford.
[7] One of the Ministers' contentions was that the 2010 Act restricted their powers to checking whether the education authority had properly complied with the statutory consultation procedures. Any failure in compliance could result in the Ministers' withholding their consent, in which case the closure could not take place. But the Ministers maintained that they were not empowered to consider and adjudicate upon the merits of any closure.
[8] The Council disagreed. They submitted that, on a proper construction of the legislation, the Ministers had full powers to assess not only the procedural aspects of the consultation process, but also the merits of the closure proposal.
[9] Both parties agreed that the question turned on the proper construction of the 2010 Act.
[10] In an opinion dated 6 June 2012, Lord Brailsford held that the Scottish Ministers should have addressed their minds to the substantive merits of the proposals. In particular, he stated at page 51:
"[21] ... 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 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 a 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 ..."
[11] The Ministers reclaimed.
The preliminary issues debated at the reclaiming motion
[12] At the reclaiming motion, parties agreed to debate the following matters as preliminary issues:
"(i) the issues identified in grounds of appeal 2 and 3; and
(ii) the issue identified in
a. cross ground of appeal 2 (Carloway 788/11)
b. cross ground of appeal 3 (Shelibost 789/11)
c. cross ground of appeal 4 (Shawbost 791/11)
being the issues addressed in the petitioners' and respondents' note of argument at paragraphs 7 to 18."
Read short, those issues were:
- whether the Ministers' powers on call-in were restricted to a procedural check, or whether the Ministers had power to assess the merits of the closure proposal and to make the final decision
- whether the call-in notices remained valid even if the Ministers had been under a misapprehension about the extent of their call-in powers.
The legislation
[13] A "closure proposal" is defined in section 2 and Schedule 1 paragraph 1 as:
"(1) A proposal to permanently -
(a) discontinue a school, or
(b) discontinue -
(i) all the nursery classes in a school, or
(ii) a stage of education in a school (apart from a nursery class)."
[14] In preparing a closure proposal, sections 3 et seq of the 2010 Act provide inter alia for an educational benefits statement, consultation, a public meeting, the involvement of HMIE (Her Majesty's Inspectorate of Education), a consultation report, time for further consideration, and the special regard to be had to the closure of a rural school.
[15] The Act further provides as follows:
"12 Factors for rural closure proposals
(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).
(1) 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.
(2) 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 ...
15 Call-in of closure proposals
(1) Subsections (2) to (6) apply where, in relation to any school, an education authority has decided to implement a closure proposal.
(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,
(b) along with that notification, give them a copy of -
(i) the proposal paper,
(ii) the consultation report.
(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.
(4) 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 of that 6 week period.
(5) A call-in notice has the effect of remitting the closure proposal to the Scottish Ministers.
(6) The education authority may not proceed further with the proposal before the expiry of the 6 week period within which a call-in notice may be issued as respects the proposal.
(7) But the restriction in subsection (6) ceases to apply if (before the end of that period) the Scottish Ministers inform the education authority that they do not intend to issue a call-in notice as respects the proposal.
(8) In subsection (6), the reference to proceeding further with the proposal is to implementing it (wholly or partly).
16 Determination of case
(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).
(4) In subsection (3), the reference to proceedings further with the proposal is to implementing it (wholly or partly).
17 Grounds for call-in etc
(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.
(3) The education authority must provide the Scottish Ministers with such information in connection with a closure proposal as they may reasonably require of it for the purposes of their consideration of -
(a) whether to issue a call-in notice, or
(b) the matter of consent (including conditions) under section 16(2).
(4) In this Act, a 'call-in notice' is one issuable by the Scottish Ministers under section 15(3) ..."
The background to the legislation
[16] Senior counsel for the Ministers referred to the background to the legislation and to external sources as guidance to the proper construction of the 2010 Act. In particular reference was made to the following.
The Education (Scotland) Act 1980
The Education (Scotland) Act 1980 section 1(1) provides that it is the duty of every education authority - not the Ministers - to secure adequate and efficient provision of school education for their area.
The policy memorandum attached to the Bill (the contents being the responsibility of the Scottish Government, not the Scottish Parliament)
Counsel drew attention to the policy memorandum and in particular to paragraphs 6 and 41, which were in the following terms:
"6. There is considerable misunderstanding and confusion about Scottish Ministers' role in the current process. It is often mistakenly believed that the referral system is an optional 'appeal' to Ministers, whereas in actual fact cases are referred automatically according to the criteria. Ministers do not 're-take' the local authority's decision but focus their attention on whether the authority has complied with the statutory requirements and the guidance Ministers have issued on how they want to see consultations conducted. The policy objective here is to replace the referral system with a Ministerial power to call in decisions, but only in relation to school closures where there have apparently been failures in the consultation or decision making processes ...
41. Ministers, having considered the policy and other implications of all these options concluded that a 'middle way' needed to be found that avoided the significant disadvantages of either of the two polarised positions set out above. They decided that a power enabling them to call in decisions, but only in respect of closure cases and only where there have apparently been failures in the consultation or decision making processes, would provide the reassurance of a safeguard to parents and communities while allowing authorities the final decision on any closure assuming they had fully complied with the new consultation requirements of the Bill. Such a system of call-in would provide a measure of safeguard against such failures in respect of the highest profile decisions - those relating to closure - yet would draw back from involvement in local authority decisions and responsibilities unless authorities are not sufficiently careful to avoid the procedural failures that the Bill establishes as the grounds for calling in a case."
The education, lifelong learning and culture committee
[17] At a meeting of the above committee on Wednesday 6 May 2009, the following statements were made:
Lynn Henni (Scottish Government Schools Directorate): [Col 2285] ... The Government came to power with a clear commitment to create a legislative presumption against closure of rural schools and to tighten the process for all school closures ... In the consultation paper 'Safeguarding our rural schools and improving school consultation procedures - proposals for changes to legislation', we proposed that a decision to close a rural school should be made only as a last resort, in order to reflect the special vulnerability of rural communities and schools ...
Colin Reeves: [Col 2302] Ministers have made it very clear that even under the current arrangements they cannot retake a council's decision. After all, they can never know all the details that the council has been privy to in reaching its conclusion. At the moment, when referrals are made for ministers' consent in the various categories, ministers principally look at the procedures that have been followed in reaching the final decision. The definition of the call-in categories focuses on the consultation procedures, as set out in the bill, and the decision-making processes. Indeed, as the bill makes clear, ministers will issue a call-in if there is a failure to comply with the requirements under the legislation in significant measure, or a failure
'to take proper account of a material consideration relevant to its decision'.
As a result, the bill still focuses on process.
That said, I suppose that a failure
'to take proper account of a material consideration'
might cover a situation in which the council's consultation report fails to refer to or ignores a large body of opinion in the consultation responses. The council needs to explain in its final consultation report how the various elements in the consultation responses have been considered and its conclusions reached ...
Parliament on 2 September 2009
Fiona Hyslop: [Col 19106] ...The bill restricts call-in to closure decisions and only when there appear to be serious flaws in the consultation or decision-making processes. The intention is to enable local decisions to be made by those who are locally accountable and locally elected while providing a balanced and consistent check on the most contentious decisions, which are - as we all know - closures.
Parliament on 19 November 2009
Fiona Hyslop: [Col 21409] ... The safeguard of the ministerial call-in should give people confidence that if a council does not fully engage in an open and genuine consultation on a school closure proposal, ministers can call in the decision. If there have been serious flaws in the process, or important information has not been taken into account, ministers will be able to refuse consent for closure of the school.
I turn to what was described at stage 2 as the genesis of the bill - the desire to protect rural schools ...
[Col 21444] The bill will mark an end to the current, rather arbitrary, grounds for the involvement of ministers, such as occupancy and distance. That approach will be replaced with a safeguard for the most contentious decisions, school closures. In those cases, ministers will be able to call in decisions where they perceive serious flaws in the consultation or in the decision-making process. I emphasise the word 'process' - it is not about second-guessing the decision that is made by the council; it is about ensuring that the process, as set out by law, has been carried through. That is why we could not rely on guidance alone and why we wanted to introduce legislation in this regard ...
Schools (Consultation) (Scotland) Act 2010: Statutory Guidance
Purpose of the Act
... The Act also introduces a presumption against the closure of rural schools by ensuring that a decision to consult on a rural school closure proposal is not made until the local authority has had regard to all viable alternatives and assessed the likely implications of closure. The Act also replaces the previous system for referring certain local authority decisions for Scottish Ministers' consent with a new system of call-in, but in school closure cases only ... [page 27 of the Appendix lodged on 20 July 2012]
Possible 'Call-In' of closure decisions by Ministers - sections 15-17 of the Act
... Ministers have up to six weeks from the date of the decision to decide whether or not to call in a closure decision. If they do decide to call it in, they effectively remit the authority's decision to themselves i.e. Ministers will then decide whether or not to allow the closure to go ahead and if so, if there should be any conditions attached to their consent ...
... This Ministerial power is intended as a safeguard, in closure cases, to help ensure that the consultation and decision-making processes and procedures are fairly, fully, openly and transparently carried out ... [page 35 of the Appendix lodged on 20 July 2012].
Submissions for the Scottish Ministers
The Ministers' powers after call-in
[18] Senior counsel for the Ministers referred to certain accepted canons of statutory construction. She submitted that external sources could be consulted to cast light on the meaning of legislation (Martin v Most 2010 SC (UKSC) 40, Lord Hope at paragraph [25], Lord Kerr at paragraphs [162] to [168]; R (Westminster City Council) v National Asylum Support Service [2002] 1 WLR 2956, Lord Steyn at pages 2958E to 2959F; R v Montila [2004] 1 WLR 3141, Lord Hope at paragraphs 8, 33 to 36). Furthermore, if there were any ambiguity, a ministerial statement could be taken into account (Pepper v Hart [1993] AC 593, Lord Browne-Wilkinson at page 634). Counsel accordingly referred to the external sources set out in paragraph [16] above.
[19] On a proper construction of the 2010 Act, the Ministers had power only to ensure that there had been no significant failures in the consultation process, and then to grant or to refuse their consent. The Ministers were not an appellate body. They could not decide whether the closure decision was correct. Nor could they require the Council to take the decision again, or to review their consideration of the facts. Section 12 imposed added requirements for rural schools such as Shelibost, Shawbost and Carloway. In order to demonstrate appropriate compliance with the statutory consultation procedures, the Council had to explain how they had "had regard to" the rural factors before reaching the closure proposal (cf Lord Woolf at paragraph 108 of R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213).
[20] Section 15(5) was no more and no less than a signpost to the next stage in a stepped procedure. Section 15 led to section 16. Section 15(5) did not send the whole process to the Ministers for their decision.
[21] Section 16 empowered the Ministers to refuse to consent to the proposal, or alternatively to grant their consent unconditionally or subject to conditions. If consent was refused, the whole process was at an end. Any attempt to close the school would require the Council to go back to the beginning and go through the whole statutory consultation procedure again. If, on the other hand, consent was granted, the Council's decision could be implemented.
[22] Section 17 permitted the Ministers to call in a closure proposal, but only for "process failures" i.e. (a) a procedural failure on the part of the Council, or (b) a failure to take proper account of a material consideration relevant to the decision (for example, education benefits, or travel time). The Ministers were entitled to check whether there had been a failure to take into account a relevant consideration (such as rural factors), or whether an irrelevant consideration had been wrongly taken into account, or whether the Council had made an error of law, or had acted irrationally (for example, by breaching natural justice). If there appeared to be such a failure, the Ministers could call in the proposal, and either refuse consent, or seek clarification from the Council, or grant consent subject to conditions.
[23] Section 17(3) permitted the Ministers certain limited information-gathering. That indicated that they were not the decision-makers. The absence of consultation suggested that they were not being entrusted with the merits of the decision.
[24] Thus the language of the 2010 Act was clear. But external sources were also helpful (Lord Steyn at pages 2957 to 2959 of R (Westminster City Council) v National Asylum Support Service cit sup). Those external sources - with the exception of one passage - were inconsistent with the Ministers having any power to re-take a decision made by the local authority. Even if those sources were thought not to support the Ministers, they certainly did not support the Council.
[25] As for the dictionary definition of "remit" relied upon by the Lord Ordinary, that did not assist. It was the Council's closure decision which was being remitted. The remit was for the purpose of deciding whether the final stage of implementation of a decision already taken could take place.
[26] No assistance could be found in the Town and Country Planning (Scotland) Act 1997. That Act placed the Ministers in the shoes of the planning authority (section 46), and empowered them to decide the planning application. No such provision was contained in the 2010 Act. Public confidence in the procedure would be diminished if the Ministers had to repeat all the consultation requirements.
The validity of the current call-in notices
[27] Finally, even if the Ministers were wrong in their approach, the call-in notices remained valid. In terms of section 17(2), there were two bases on which call-in could occur. At the stage of call-in, the Ministers had no power to look at the merits, but only at procedural matters. If it appeared that there had been a procedural flaw, the case was called in. If at that stage (when the proposal was through "the call-in gate") the Ministers were entitled to look at the merits - which was not accepted - then they could do so. But the question of call-in was governed solely by the procedural aspects. Thus even if the Council were to be successful in their primary argument, the court should reduce only the refusals of consent. The call-in notices would stand. Cross-grounds of appeal 2, 3, and 4 should be refused.
[28] Once the court had made its determination on the preliminary issues, the case should be put out By Order for discussion as to further procedure.
Submissions for the Council
The Ministers' powers after call-in
[29] Senior counsel submitted that the Ministers were wrong in law. On a proper construction of the 2010 Act, they were entitled to have regard to features of the case other than merely procedural ones. While the Ministers could not intervene by calling in the closure proposal unless there appeared to have been a process failure, it did not follow that, once a proposal was called in, the Ministers should be compelled to exclude from their consideration anything other than a process failure.
[30] It was accepted that the call in power in section 15(3) was restricted by section 17. Only if one of the two "process" conditions was satisfied, could a proposal be called in. The decision to call in was discretionary, and even if a process condition was fulfilled, the Ministers could exercise their discretion not to call the proposal in. If that was correct, then these two conditions were not exhaustive of the matters to which the Ministers could have regard.
[31] Section 15(5) was not merely a signpost to section 16. Section 15(5) was a key provision, which explained the effect of the call-in notice.
[32] Section 16 contained no limitation on the circumstances in which the Ministers could refuse or grant consent. The ability to decide to consent despite a procedural flaw suggested that the Ministers could look at matters beyond the procedure. The power to impose conditions also suggested that the Ministers could look at the merits: otherwise their discretion would be inappropriately fettered. The Ministers had to look at the whole matter (including the procedural flaw) and decide whether they were prepared to grant their consent to the proposal. Each case would depend on its circumstances. The Ministers might conclude that the procedural flaw was so great that the consultation procedure had to begin again. Alternatively they might conclude that there had been a failure to have regard to a material consideration, in which case they might address that issue by imposing a condition.
[33] This approach did not throw policy to the winds: on the contrary, the power contended for on the part of the Ministers would engender confidence on all sides.
[34] The external sources did not give clear guidance. It was accepted that statements issued by the government might disclose objective facts and might be relied upon for that purpose, but normally only where there was ambiguity. Lord Steyn's dicta in R (Westminster City Council) v National Asylum Support Services cit sup had to be read subject to the caveat in paragraph 6. Another useful authority was R v Secretary of State for the Environment, Transport and the Regions, ex parte Spath Holme Ltd [2001] 2 AC 349, Lord Bingham at pages 381, 391 to 392; Lord Hope at pages 404D-F, 407E to 408A; Lord Nicholls of Birkenhead at pages 396 to 399.
[35] If the external sources failed to provide clear, unequivocal guidance, the court could simply put these sources to one side (particularly as there were contentious issues about the use or otherwise of such materials). It was not disputed that the policy of the 2010 Act was to introduce a more rigorous consultation procedure; to make particular provision for rural schools; and to change the circumstances in which the Ministers could intervene (from a former automatic referral to a more limited call in). But that policy did not answer the question what the Ministers were entitled to do once a proposal had been called in. So one was driven back to the words and the structure of the Act.
[36] While the Lord Ordinary had concluded that the Ministers had an obligation to decide the merits, the Council's view was more nuanced: the Ministers were "entitled" to decide the merits. That interpretation was supported by the natural and ordinary meaning of the words in section 15(5). The breadth of the Ministers' discretion, and their freedom (to have regard to matters of substance as well as procedure) pointed to that conclusion. However the Ministers did not have to start from the beginning and make findings in fact in relation to the relevant circumstances. The Ministers could rely on both the Council's proposal and the material which had been available to the Council.
[37] Counsel drew attention to (i) sections 22C and 22D in the Education (Scotland) Act 1980 relating to denominational schools; (ii) Scottish Hierarchy of the Roman Catholic Church v Highland Regional Council, 1987 SC (HL) 1, Lord President Emslie in the Inner House at page 17; Lord Mackay of Clashfern in the House of Lords at pages 25 to 26; and (iii) the relevant statutory Guidance, illustrating that where the consent of the Secretary of State to a proposal had been required, the Secretary of State was entitled to take into account all the representations and all the facts and circumstances. The mischief which the 2010 Act had sought to address was not what the Ministers could do after call-in, but rather the "gateway" provision. Thus to provide a safeguard in the form of a call-in power was entirely neutral so far as concerned the question of the nature of the Ministers' powers once call-in had occurred. The key policy was to limit the Ministers' involvement to cases where there might have been a failure in process: but that was still neutral to the question of the Ministers' powers thereafter.
The validity of the current call-in notices
[38] Senior counsel submitted that if the Council were right on the law, the call-in notices fell to be reduced. As the power to call in was discretionary (section 17(2) and 15(3)), it was necessary for the Ministers to have a proper appreciation of what they were embarking on. It was necessary for the proper exercise of their discretion that they should have regard to the whole circumstances, and not just to procedural matters. That had not occurred in the present case, and accordingly the current call-in notices fell to be reduced.
Conclusion
[39] Accordingly the court was invited to (i) refuse Grounds of Appeal 2 and 3 in each petition; (ii) sustain cross-grounds of appeal 2 (Carloway 788/11), 3 (Shelibost 789/11) and 4 (Shawbost 791/11); and (iii) put each case out By Order once the court's decision was available.
Reply for the Ministers
[40] Senior counsel for the Ministers made several points in reply. First, Lord Nicholls at page 398F-H of R v Secretary of State for the Environment, Transport and the Regions, ex parte Spath Holme Ltd, cit sup (in a passage not hitherto referred to) took a more generous approach to the use of Parliamentary materials. They could be referred to in order to define the scope of a power.
[41] The Policy Memorandum, paragraphs 22 and 41, was consistent with the calling-in of a proposal apprehended to be have a procedural flaw (Stage 1), and the subsequent ascertainment whether or not there had indeed been such a flaw (Stage 2).
[42] The wording of sections 22C and 22D of the Education (Scotland) Act 1980 was very different from the wording with which the court was concerned in this case. In the 2010 Act, there was no obligation on the Ministers to be "satisfied" on any factual matters. Accordingly sections 22C and D were of little assistance.
[43] Nor could much guidance be found in Scottish Hierarchy of the Roman Catholic Church cit sup. As with planning legislation, there was express provision in the Education (Scotland) Act 1980 for consideration of closure proposals called in by the Scottish Ministers. That was different from the 2010 Act, where no such provisions existed. The issue under debate in Scottish Hierarchy had been whether the Secretary of State was dealing with a section 22C case or a section 22D case, and whether he had acted ultra vires.
[44] The argument now presented by the Council was a more nuanced argument than the argument presented before the Lord Ordinary. It was maintained that the Ministers were "entitled" (not obliged) to look at the merits. The Council seemed to say that the Ministers could, if they chose, deal with the merits: but that they were not obliged to. In what circumstances would the Ministers go wrong if they avoided consideration of the merits. Such an approach would give rise to difficulties.
[45] Finally, if section 15(5) was such a key provision, and if section 15(5) remitted the proposal to the Ministers for settlement of the proposal, what content could be given to section 16. On the Council's construction, section 16 became redundant. Section 16(2) used the language of consent, i.e. agreeing to the proposal, not deciding something, or settling a matter. Thus on the Council's construction (unlike the Ministers' construction) section 16(2) was deprived of content.
Discussion
The Ministers' powers after call-in
[46] In paragraph [22] of his opinion, the Lord Ordinary concludes:
"[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 ..."
[47] We agree with the Lord Ordinary's conclusion, for the following reasons.
[48] First, what was remitted to the Ministers in terms of the statute was a "closure proposal", not a closure decision. The specific use of the words "closure proposals", "the closure proposal" and "the proposal" in sections 15(5)-(8), 16(1)-(4), 17(1)-(4), and 12, makes it clear in our opinion that what was called in by the Ministers, and what was "remitted" to them, was a proposal, not a decision. A "closure proposal" is defined in section 2(1) and Schedule 1 paragraph 1 of the 2010 Act (see paragraph [13] above). The word "proposal" is defined in the Oxford English Dictionary as "a putting forward of something for acceptance"; the verb "propose" is defined as "to put forward for acceptance".
[49] Thus in our opinion, the language chosen by Parliament is significant. If not called in, a "proposal" is converted to a workable decision (i.e. a decision that can be proceeded with) by the passage of six weeks and the specific statutory provision: section 15(6) and (7). But if the proposal is called in, all action on the part of the Council must be suspended (despite their earlier decision to implement the proposal in terms of section 15(1) and (3)). The proposal can only become a workable decision (i.e. a decision that can be proceeded with) as and when the Ministers choose to make it so: section 16(2)-(4). Thus in our opinion the Ministers are not, in terms of the statute, mere checkers of procedural aspects leading to a decision; rather they are part of the decision-making process itself.
[50] Secondly, we consider that section 17(2), properly construed, requires consideration of the merits of the closure proposal. In order properly to assess whether a "material consideration" has been left out of account, there must in our view be some appreciation and weighing up of various factors including arguments for and against closure, representations made, rural factors (if relevant - including viable alternatives, effects on the community and travel arrangements), statistics, costs, educational benefits, community needs, and other such matters. In our view it would not be possible for the Ministers to conclude that a "material consideration" had been left out of account in any particular case without carrying out such an exercise - amounting, to a large extent, to an assessment of the merits of the closure proposal.
[51] Thirdly, section 16(2), in our view, also draws the Ministers into the merits. The Ministers are given unlimited power to add conditions to the closure proposal. Certain conditions could change the whole nature of the proposal. It would be unrealistic, in our view, not to recognise that such an approach entails becoming involved in the merits. Moreover the Ministers' decision in terms of section 16 is discretionary. A procedural error leading to the calling-in of the closure proposal may have occurred, but once called in, the educational benefits of the proposal might be outstandingly clear. In such circumstances we consider that the Ministers would be entitled, in their discretion, to decide to ignore the minor procedural flaw, and give their consent to the proposal. In our opinion, in carrying out that balancing exercise, the Ministers would be involved to some extent in an assessment of the merits of the proposal.
[52] Fourthly, it is our opinion that there would be no "absence of consultation" (see paragraph [23] above) on the part of the Ministers were they to consider the closure proposal on its merits. The Ministers are entitled to have all the material assembled by the Council in the course of their consultation procedure leading to the closure proposal (which contains inter alia the educational benefits statement, a summary of representations, HMIE's report, and the education authority's responses: section 4(1) and section 10(2) of the 2010 Act.) Section 15(2) entitles them to have the proposal paper and the consultation report. Section 15(4) entitles them to have regard to letters sent in during the period for representations. Finally - and importantly - section 17(3) entitles them to request the Council to provide them with reports, estimates, tables, statistics, graphs, correspondence and any other materials collected by the Council during the consultation procedure, provided that these comprise "such information in connection with [the] closure proposed as [the Ministers] may reasonably require [of the Council] for the purposes of their consideration of ... the matter of consent (including conditions) under section 16(2)".
[53] Fifthly, we consider that it is the construction contended for by the Ministers (not the Council) which would result in loss of public confidence in the procedure. In our opinion, it would be a most unfortunate procedure which consisted of widespread, genuine consultation over some time, involving the local authority's and the local community's effort, commitment, and resources, only to be met by a letter refusing consent on a stateable (i.e. not easily challengeable on judicial review) criticism of some aspect of the consultation procedure - even if the matter criticised was remediable - the ultimate outcome being a complete dismissal of the whole consultation procedure to date, with nowhere for the Council to turn but back to the beginning of a whole new consultation procedure. In our opinion such an approach would be widely regarded as a waste of time, effort and resources, and would be seen as leaving the Council and the local community undermined and facing the unattractive prospect of having to begin all over again.
[54] It will be seen, therefore, that we agree with the Lord Ordinary's interpretation of section 15(5), including his construction of the phrase "remitting the closure proposal to the Scottish Ministers". 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, and may then issue a determination on the closure proposal which, in terms of section 16, must be either a refusal to consent, or a consent which is either unconditional or subject to conditions.
[55] We have reached this view as a result of what we consider to be a proper construction of the 2010 Act. However we wish to add that even if regard were to be had to sources external to the Act itself, (for example, the external sources quoted in paragraph [167] above), we would have reached the same view. Whether or not it is appropriate to have such regard to external sources is not something which we find it necessary to decide in this particular case, as we have already determined the issue of the Ministers' powers post-call-in on a construction of the language and structure of the 2010 Act alone. For completeness however, we add that it seems to us that those external sources point to a shift in policy favouring the primacy of the education local authority (an authority which is particularly well-placed to know and appreciate the local community's circumstances and needs). The policy-shift has resulted in a restriction in the type of case which may be called in: only "closure" proposals may be called in, whereas formerly a wider category of educational proposals or decisions could be referred for ministerial consent. The second notable feature of the policy-shift is that only cases in which there appears to have been a failure in the consultation or decision-making process can be called in. This provides a "safeguard" to ensure that the rigorous consultation procedure is not elided in any way, yet pays due respect to the primacy of the local education authority's role.
The existing call-in notices
[56] If the Ministers were entitled to call in the closure proposals on what appeared to them to be a failure in the consultation or decision-making process, that was, in our opinion, a valid exercise of their call-in powers in terms of section 17 of the 2010 Act. We are not persuaded that, simply because the Ministers may have had a misconception about the extent of their powers following upon call-in, the call-in notices themselves are struck at. In the case of each school, stateable criticisms of the consultation and decision-making process were made by the Ministers (see paragraph [1] above). At that stage, such criticisms did not require to be established as fact (section 17(2) of the 2010 Act). Accordingly, contrary to the Lord Ordinary's conclusion on this issue, it is our opinion that the existing call-in notices remain valid and of full effect.
Decision
[57] For the reasons given in this opinion, we intend to allow Grounds of Appeal 2 and 3 in each petition but only to the extent of recalling the Lord Ordinary's interlocutors of 6 June 2012 insofar as they first, grant declarator that the call-in notices are ultra vires separatim vitiated by errors; and secondly reduce the call-in notices; quoad ultra Grounds of Appeal 2 and 3 will be refused. Further we intend to refuse Cross-Grounds of Appeal 2 (Carloway petition 788/11), 3 (Shelibost petition 789/11) and 4 (Shawbost petition 791/11). However before issuing any interlocutor, we shall, at counsel's request, put the case out By Order to discuss inter alia further procedure.