| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
Lord Menzies Lady Smith Lord Brodie | [2013] CSIH 45 P788/11 and P791/11 OPINION OF LORD MENZIES in the Petition of COMHAIRLE NAN EILEAN SIAR (originally constituted as the Western Isles Council and having changed its name in terms of the Local Government (Scotland) Act 1973 s 23 and the Local Government (Gaelic Names) (Scotland) Act 1997 s 1) Petitioners and Respondents; against THE SCOTTISH MINISTERS Respondents and Reclaimers: for Judicial Review of (1) call-in notices dated 14 December 2010 relating to Shawbost and Carloway Schools; and (2) decision letters dated 12 January 2011 refusing consent to closure proposals _______________ |
For Respondents and Reclaimers: Crawford, QC; Ross; Scottish Government Legal Directorate
For Petitioners and Respondents: Wolffe, QC; Paterson; Simpson & Marwick
31 May 2013
[1] I have had the advantage of reading in draft the opinions of Lady Smith and Lord Brodie. I agree with everything they say, and for the reasons given by Lady Smith I agree with the disposal of this matter which she proposes.
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
Lord Menzies Lady Smith Lord Brodie | [2013] CSIH 45 P788/11 and P791/11 OPINION OF LADY SMITH in the Petition of COMHAIRLE NAN EILEAN SIAR (originally constituted as the Western Isles Council and having changed its name in terms of the Local Government (Scotland) Act 1973 s 23 and the Local Government (Gaelic Names) (Scotland) Act 1997 s 1) Petitioners and Respondents; against THE SCOTTISH MINISTERS Respondents and Reclaimers: for Judicial Review of (1) call-in notices dated 14 December 2010 relating to Shawbost and Carloway Schools; and (2) decision letters dated 12 January 2011 refusing consent to closure proposals _______________ |
For Respondents and Reclaimers: Crawford, QC; Ross; Scottish Government Legal Directorate
For Petitioners and Respondents: Wolffe, QC; Paterson; Simpson & Marwick
31 May 2013
Introduction
[2] Comhairle Nan Eilean Siar ("the Council"), which is the education authority for the Isle of Lewis, has proposed (a) to close Carloway Primary School and (b) to discontinue education at S1 and S2 level at Shawbost School. Children presently educated at Carloway Primary School would be transferred to Shawbost Primary School, about 4 miles away. Shawbost also currently provides education at S1 and S2 level but not beyond. Children who currently opt to attend Shawbost at S1/S2 level would transfer to the Nicolson Institute in Stornoway, about 20 miles away. Not all would welcome these changes.
[3] This is the second reclaiming motion in the litigation to which those proposals have given rise. As in the case of the first reclaiming motion, it is at the instance of Scottish Ministers, who are the respondents in petitions for judicial review which include a challenge to the notices referred to below.
Background
[4] The Council issued proposal documents in relation to each school in May 2010. They were lengthy documents and they set out the relevant proposal in each case. They also included explanations of the consultation process, the perceived need for a school estate review, the Council's educational objectives, the relevant demographic trends, the relevant school rolls, the Council's approach/ policies in relation to travel arrangements, the Council's specific considerations in relation to the rural factors, statements of pupil costs, likely effects on staffing arrangements and an educational benefits statement. The latter was, in the case of both proposals, to the effect that there would be significant educational benefit for pupils if the proposals were to be implemented. The Council's assessment, at that stage, was that there were no viable alternatives, that there would be no significant effect on the local community and that since the existing transport structure would be used, there would be minimal negative environmental impact.
[5] Public meetings took place on 9 and 14 June 2010. They were recorded and the recordings were transcribed. Various written representations were received by the Council both before and after the public meetings.
[6] A concern was raised regarding the Carloway Community Hall, a building next door to Carloway School. Would its continued viability be threatened if the school closed, given that it currently earned income from letting it to the school for various activities? Passing reference was made by one person at the public meeting to the letting of the community hall for the purpose of the annual Carloway Agricultural Show, a let which arose because the show was based at the school premises. The Parent Council's written representations asserted that closure of the school would lead to the loss of the community hall and made the same point about the loss to the hall of the Agricultural Show business. There appears to have been a concern that, without the hall and without the school, the show might not be able to continue.
[7] The Council responded to the concerns regarding the use of the community hall and potential effect on its income in its consultation report in relation to the Carloway proposal. The report stated that they had looked at the frequency of lets to the school of the community hall, the rents involved and the frequency of other bookings. It stated that they had concluded that loss of the school would not have a material impact on the viability of the hall. They added that the hall did not form part of the school closure consultation, that it would remain open and that they would work with the community and other partners to maximize the use of the hall. The report explained that they had, in addition, prepared a European Social Fund Application to support community appointments in all areas where schools might be closing.
[8] Regarding the Shawbost proposal, concerns were raised about the increased travel time and its potential effects on children's family life and health and on their ability to participate in extra-curricular activities. By letter dated 7 June 2010, the local MSP, Alasdair Allan, said that parents had asked him what consideration was being given, if any, to the option of Shawbost continuing on the basis that it provided S1 education only.
[9] Her Majesty's Inspectorate of Education ("HMIe") considered the proposals and reported to the Council in respect of each of them. In relation to Shawbost, in their report (dated August 2010), they referred to parents' concerns about the increased travel time and its potential effects. They also observed that the Council had not fully considered "...more radical options such as the possibility of Shawbost School becoming a "satellite" campus of The Nicolson Institute, sharing staff and resources". In September 2010, the Council's Director of Education and Children's Services prepared a report on the consultation process. His report was considered by the Education and Children's Services Committee of the Council on 2 November 2010 which, in turn, reported to the Council at a meeting on 4 November 2010. The proposals were approved by the Council at that meeting.
[10] The Council dealt with the subject of alternative options in its consultation report in relation to the Shawbost proposal. Regarding the "more radical option" referred to by HMIe, they explained that they did not consider it to be viable because timetabling arrangements would not enable a secondary school timetable to be sustained at Shawbost by itinerant staff. It would be inefficient, very expensive and involve the loss of much class contact time. They did not rule out the use of e-learning - for circumstances where it was not possible to bring pupils physically into school - but that could not be used as a primary mechanism for delivering comprehensive secondary education. Otherwise, the only alternative options were (a) the status quo, (b) extending the provision of education at Shawbost to S1-3, and (c) extending the provision at Shawbost to S1-6. The first was rejected as not providing educationally beneficial class groupings to enrich pupils' learning experiences. The second would not only have failed to provide educationally beneficial class groupings to enrich the learning experience but the Council did not have within its means the budget to develop, staff and resource such a provision. That same conclusion was arrived in relation to the third option. These three options were stated by the Council as the only possible alternatives. Elsewhere in the consultation material, the Council explain why they consider that their proposals would produce an enhanced learning environment for the children who are currently educated at Carloway Primary School and S1-2 of Shawbost School.
[11] The Council also responded, in its consultation report relating to Shawbost, to concerns expressed about the effect of increased travel time. They explained how they had checked the likely increase in time against their travel to school policy, they dealt with concerns about its effect on after school activities by reference to how the school would accommodate it and what would be done to try and improve the availability of and participation in such activities in the community, they explained their response to concerns about the potential impact on pupils' health, wellbeing and family life and how, through a number of measures, they would seek to address it, including by carrying out works to improve the routes so as to reduce travel time. Their response included reference to research carried out on the effects on children of travel to school and acknowledged the significance of recommendations made regarding steps that could be taken to mitigate its negative aspects; that research also, however, highlighted that there were positive aspects of travel to school time.
[12] Scottish Ministers issued call - in notices in respect of the proposals. The notices were said to be in implement of their powers under section 17(2)(a) of the Schools (Consultation) Scotland Act 2010 ("the 2010 Act"), were dated 14 December 2010 and were in the following terms:
Carloway
"In considering the consultation process undertaken by your Council, Ministers concluded that insufficient consideration had been given to the likely effect on the 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(1)(3)(b) of the 2010 Act and that the Council's consultation process was therefore flawed. For this reason the Scottish Ministers are calling in the proposal under section 17(2)(a) of the 2010 Act......."
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 was 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. For this reason the Scottish Ministers are calling in the proposal under section 17(2)(a) of the 2010 Act.
The second issue relates to section 12(3) of the 2010 Act which obliges local authorities to have special regard to viable alternatives to the closure proposal, both before moving to consultation and during the consultation process, when proposing closure of a rural school. In considering the consultation process undertaken by your Council, Ministers concluded that insufficient consideration had been given to alternatives. In particular Ministers noted the views 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 Nicolson Institute, sharing staff and resources. Whilst 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 the assessment of the rural factors (set out in Section 12(3) of the 2010 Act) it should have considered alternative options, together with a detailed analysis of their merits and disadvantages when deciding the future of the school. The Scottish Ministers concluded 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. For this reason the Scottish Ministers are calling in the proposal under section 17(2)(a) of the 2010 Act......".
In respect of each school, the Council was advised, by letter from the Ministers dated 12 January 2011, that they refused to consent to the two closure proposals, stating:
"...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."
Previous Reclaiming Motion
[13] The issue before the court in the previous reclaiming motion was whether or not the call-in notices had the effect of remitting the closure proposals to the Ministers so that they could not lawfully refuse their consent without having addressed their minds to the substantive merits of the proposals.
[14] The Ministers contended that, having called in the proposals, they were only obliged to carry out a procedural check so as to ensure that there had been no significant failures in the consultation procedure provided for by statute.
[15] The court held that the Ministers, having called in the closure proposals, were obliged to have regard to all the circumstances including their substantive merits before issuing their determinations (see: [2012] CSIH 6 paras 46 - 54 ). The Lord Ordinary had, accordingly, been right to set aside the decision letters.
[16] Thus, whilst the power of decision making regarding educational provision in a particular area, including difficult and sensitive decisions such as whether or not to close a school rests, primarily, with the local authority, if the Ministers call in a school closure proposal, the local authority is disabled from exercising that power. It cannot participate any further in the decision making process. The decision whether or not to close the school in question will, thereafter, be a ministerial one.
[17] The court in the previous reclaiming motion also, however, held that the Ministers' misapprehension as to the nature and extent of their duties and powers on calling in the closure proposals did not, of itself, vitiate the call - in notices (see : [2012] CSIH 6 para 56), contrary to what had been held by the Lord Ordinary. That was not a determination that the call - in notices were valid. The Council had also challenged the call - in notices on other grounds which were not argued or determined in the earlier reclaiming motion.
Outstanding Issues
[18] The issues that remain for determination are:
(a) Whether or not the Ministers addressed the relevant statutory test when issuing the call - in notices? and
(b) Whether or not the Ministers had a proper basis in fact for concluding that grounds for call - in existed?
The Schools (Consultation) Act 2010
[19] 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)."
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, a consultation report, time for further consideration, and for special regard to be had to the closure of a rural school.
The following provisions are of particular relevance to the issues before this court:
"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).
(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 ...
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).
............................
............................
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).......................
(3...................
(4) In this Act, a 'call-in notice' is one issuable by the Scottish Ministers under section 15(3) ..."
We will refer to the factors set out in sec 12(3) as 'the rural factors'.
Lord Ordinary's Opinion
[20] The Lord Ordinary's observations regarding the issues argued before us were as follows:
"[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."
He having, however, determined the petition and set aside the call - in notices on other grounds, those observations were, we accept, obiter.
Submissions for Scottish Ministers
[21] Two aspects of the Ministers' position should be noted at the outset. First, Miss Crawford QC, senior counsel for the Ministers, accepted that if they did not have a proper factual basis for their decisions to call in the closure proposals then the notices fell to be set aside. Secondly, whilst it was for the Council to fulfil the duty imposed by section 12 of the 2010 Act she accepted that, provided they had done so, if any of the rural factors were found to exist then the balancing of those factors against other factors relevant to the closure proposals was a matter for them; it was not open to the Ministers to interfere with that balancing exercise.
[22] The Ministers' position was that the 2010 Act was concerned to ensure that there was a rigorous, open, transparent and fair consultation process. Such a process ought to accord with the principles discussed by Lord Woolf MR (as he then was) in R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213 at para 108. The local education authority had the primary role in formulating closure proposals and deciding whether or not to implement them. Provided they followed the procedures laid down by the 2010 Act, the Ministers could not interfere. The Ministers' role, under the legislation, was to act as a safeguarder to see that the statutory procedure was not elided.
[23] Turning to the terms of sections 12 and 17 of the 2010 Act, they ought not to be construed so as to frustrate the relevant parliamentary intention. The words should be given their ordinary meaning, they should be construed in their proper context (including the context of the statute as a whole), they should be construed according to the legislative background and purpose as disclosed by external materials (including parliamentary debates, policy memoranda, explanatory notes and ministerial statements), recognising that the latter could only be referred to for the identification of objective context and the mischief at which the legislation was aimed.
[24] Miss Crawford referred to: the Schools (Consultation) (Scotland) Bill Policy Memorandum which had accompanied the Bill when it was presented on 2 March 2009, passages from the consideration of the Bill by the Education, Lifelong Learning and Culture Committee, and passages from the stage 1 and stage 3 debates on the Bill, the latter including a ministerial statement. She submitted that that material showed that the 2010 Act sought to address scepticism about consultation processes in relation to school closures and the protection of rural schools. They were demonstrative of parliamentary intention to provide (i) a strengthened consultation process; (ii) a presumption against rural school closures; (iii) for decisions about school closures to be taken locally; and (iv) for the role of Ministers to be that they would ensure there were no flaws in procedure.
[25] Regarding sec 12, Miss Crawford submitted that the duty to have special regard to the rural factors meant that if there were viable alternatives or likely adverse effects on the local community or likely adverse effects of altered travelling arrangements then they would operate as a presumption against closure although, at one point, she accepted that it was not necessary to use the word "presumption". The rural factors were not just considerations. They required to be placed in the forefront. Some extra weight had to be afforded to them although - possibly in recognition of the Ministers' acceptance that it was not for them to interfere in the balancing exercise - that may only be a very little weight. In support of her submissions regarding sec 12, she relied on: R (ex parte Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 per Lord Justice Aikens at para 90, and R (ex parte Garner) v Elmbridge & Others [2011] EWCA Civ 891.
[26] Turning to the three rural factors (a) regarding viable alternatives, senior counsel submitted that the statute required the education authority to consider whether or not there were such alternatives; if a viable alternative existed then a presumption against closure arose. If the authority determined that there were none then they required to set out that conclusion and the reasons why it was reached, as per Coughlan. It was not for the Ministers to state whether or not they considered there to be a viable alternative; (b) regarding effects on the local community, it was for the local authority to assess such effects, considering what changes were likely to occur, the significance of any change and giving reasons for their conclusions. If an adverse likely effect on the local community was identified that would militate against closure; and (c) regarding travel, it was for the local authority to identify what changes in travel arrangements would occur and what would be the effects of such changes. Again, if adverse likely effects were identified, that would militate against closure. It was important to see to it that the decision maker was correctly directed as to the applicable law.
[27] Miss Crawford repeated that it was, however, recognised that the role of the Ministers was to focus on the process and determine whether or not there had been procedural failures. If it appeared to them that the education authority might have failed to comply with any of the statutory requirements - including any of the section 12 requirements - they could call in the proposal. They did not require to give reasons. If they did give reasons, they did not have to achieve any particular standard so far as intelligibility or adequacy was concerned, albeit that if their reasons disclosed that the Ministers decision was flawed in some respect, then that could be founded on and the decision could be set aside : Gallacher v Stirling Council 2001 SLT 94 per Lord Macfadyen at para 36.
[28] Regarding the terms of the call - in notices, Miss Crawford submitted that it was clear that the position of the Ministers was that the Council might have failed to comply with the requirements of sec 12. The reference to section 17(2)(a) demonstrated that. They were not saying that there had in fact been a failure to comply. To suggest otherwise would be to adopt an overly critical, analytical and textual approach to their letters. The same was to be said of any criticism that the Ministers had not expressly stated that they considered that there may have been a failure "in a significant regard".
[29] Turning to the notice issued in the case of Carloway School, the Ministers' reasons were as stated within it, namely that whilst acknowledging that the Council considered a community to be defined by area rather than by individual villages, they did not "...consider that sufficient consideration had been given to the community use of the school, such as the Annual Agricultural show, and the impact that its potential loss would have on such activities." The Council ought first to have identified the local community concerned - which, in the Ministers' submission, was Carloway, not any wider area. The Council had not done that. Then, the Council ought to have identified the likely effects on that community. Then they ought to have quantified that assessment. There had, however, been an inadequate consideration by the Council of the likely effects on the community of Carloway. It was not enough to rely on generalities such as the Outer Hebrides Migration Study of 2008. There had been a lack of consideration of the effects on the local community if they had to go to Shawbost to access facilities formerly available at Carloway. Reference was made to the Council's proposal document, to the transcript of the public meeting which was held on 9 June 2010, to the response of the Carloway Parent Council Consultation Report, to aspects of the written representations, to the statutory report from HMIe, to the Council's consultation report and to the minutes of the Council meeting on 4 November 2010.
[30] Regarding Shawbost, Miss Crawford referred to parents having raised concerns not only about the extension of travel time but of its potential "knock- on" effects. The Council had misunderstood the full extent of those concerns; it was not just a matter of increased travel time. The Council had not, she submitted, responded to the concerns expressed. They had not produced a satisfactory solution.
Turning to the matter of viable options, whilst she accepted that the Council's Consultation Report provided a response regarding three options (maintaining the status quo, extending provision at Shawbost to S1 -S3, and extending provision at Shawbost to S1-S6), the Council had not considered whether continuation of S1 provision alone at Shawbost was a viable option (see: Alasdair Allan MSP's letter of 7 June 2010, referred to at paragraphs 7 and 9 above) . There had been no proper analysis of the alternatives. They had not explained why they rejected the options that existed.
[31] Although the option of "S1 only", referred to in Mr Allan's letter, was not specified in the Minister's call-in letter, they were, she submitted, now entitled to rely on it because a general indication of concern regarding viable options had been raised in the letter and so it would not amount to fundamental alteration of their reasons. That was sufficient: R v Westminster Council, ex parte Ermakov [1996] 2 All ER 302 per Lord Justice Hutchison at p. 13.
[32] In all these circumstances, the Ministers were, she submitted, entitled to conclude that the Council might have failed, in a significant regard, to comply with the requirements of the 2010 Act and were entitled to issue the call - in notices.
Submissions for the Council
[33] Senior counsel for the Council, Mr Wolffe QC, invited us to refuse the reclaiming motion. By way of preliminary, he said that the decision to approve the closure proposals had been made by the Council after careful consideration by the relevant committee following the consultation process. The Council had been correctly directed as to its legal duties as was plain from the minutes of its meeting on 4 November 2010. At all stages in the process, those involved had been correctly directed regarding those duties, including the requirements of section 12 of the 2010 Act. The Ministers properly accepted that, provided that the Council had directed itself properly in law, any question as to the weight to be given to different facts was, ultimately, a matter for it, not them.
[34] Turning to his first submission for the Council, the Ministers had failed to address the statutory test. They had failed to ask themselves whether any failure that they had identified (or considered might have occurred) was "in a significant regard" (see: section 17(2)(a)). That was an important part of the statutory provision; the primary power in relation to school closure lay with the local authority and so it was only in the case of failure in a significant regard that it could be taken away from them. Not every failure will justify call - in; it would depend on the particular facts and circumstances. The call - in letters failed to demonstrate that the Ministers had addressed that issue at all. The terms of each letter showed that the Ministers had proceeded on the view that they were entitled to call in the proposal if they identified any flaw in the consultation process. That was an error of law.
[35] Secondly, Mr Wolffe submitted that when applying sec 12, the task for the court was to ascertain and give effect to the true meaning of what Parliament had said in the light of the purpose intended: Quintavalle v Secretary of State for Health [2003] 2 AC 68 per Lord Bingham of Cornhill at para 8. Ordinarily, the statutory provisions fell to be interpreted by reference to their ordinary and natural meaning as read in the relevant context: Tortolano v Ogilvie Construction Ltd [2013] CSIH 10 at para 43. As to context, that included the statute taken as a whole and whatever was identified as the mischief at which it was aimed.
[36] Whilst it was permissible to look at parliamentary material, that could only be so as to assist in ascertaining objective context and mischief. It was neither legitimate nor useful to refer to statements made in Parliament when construing a statutory provision where, as here, the legislation was not ambiguous and did not lead to any absurdity. Caution was required: R v Environment Secretary (ex parte Spath Holme Ltd) [2001] 2 AC 349 per Lord Nicholls at p.397. Insofar as the Ministers relied on external material as demonstrating, in this case, that section 12 should be construed as creating a presumption against closure of rural schools, that was a gloss that did not assist. This was not a case where Parliament had legislated for a presumptively desirable state of affairs, such as in the planning legislation referred to in Garner & Ors v Elmbridge Borough Council & Ors [2011] EWCA Civ 891 where the statutory requirement was to have special regard to the desirability of preserving certain buildings. Here, the policy intention was clear from the words of the statute without recourse to other materials and was that, in the case of rural schools, decisions on closure should not be taken without particular attention being paid to the three rural factors - the ultimate weighting of which was a matter for the judgment of the local authority. The policy aim was not, for example, that special regard should be had to the desirability of keeping rural schools open.
[37] Thirdly, when it came to the proposal to close Carloway Primary School, the Ministers seemed to make three points: that the Council had addressed sustainability as a generality rather than with reference to Carloway itself, that the local community was Carloway, not a wider area, and that there had been a failure to have regard to the community use of the school. The first was not borne out on any reading of the consultation material. The second was not referred to in the call - in letter - which took no issue with the Council's approach to the definition of local community. Further, the point was misconceived as it was wrong to think of Carloway as a single village; it was a district or group of a number of dispersed townships and, in responding to consultees, the Council had not sought to tie down their considerations to a particular geographical area. The latter was the only issue raised in the reasons given in the call - in letter and it was not now open to the Ministers to go beyond those reasons: Ermakov at p. 315-6.
[38] Regarding that matter, Mr Wolffe submitted that it was clear that the Ministers had failed to appreciate that the concern raised regarding loss of the school was not that the school's buildings would be lost to community use but that the loss of the school might have a knock on effect so far as the continuing viability of the community hall was concerned; that matter had been fully considered and responded to, as was clear from the consultation material.
[39] Regarding Shawbost, Mr Wolffe accepted that the two reasons stated in the call - in letter were separate, not cumulative. The Ministers had not, however, considered whether the option referred to by them was a viable alternative - which, in terms of the statute, they required to do - and the Council had considered other options, as was clear from the consultation material. It was not now open to the Ministers to seek to rely on the question raised by Mr Allan MSP as to whether S1 only education could be continued at Shawbost. The Council's considerations of other options did, in any event, demonstrate that one would have to be very sceptical about any suggestion that S1 only provision at Shawbost would be viable.
[40] Mr Wolffe also pointed to passages in the consultation material which, in his submission, demonstrated that consideration had been given to what HMIe referred to as the "more radical option" of Shawbost becoming a "satellite" campus of the Nicolson Institute.
[41] Turning to transport and travel, Mr Wolffe referred to various parts of the consultation material which, he said, demonstrated that the Council had plainly had special regard to the likely effect caused by different travelling arrangements. In particular, they had considered the likely effects on the pupils and had done so in a way that did not restrict their considerations to increased travel time; they had also carefully considered the implications for the health and wellbeing of the children and taken action to address them. The Council had also been able to draw on their knowledge and experience of the impact on S3 - S6 students on travelling to the Nicolson Institute. Whilst it was accepted that the Council had not considered specifically whether the impact on S1 - S2 pupils might be different, what were they expected to do? They were not aware of there being any evidence that there would be a different impact. Surely they were not to be expected to commission research into that specific matter?
Discussion and Decision
Section 17(2)(a)
[42] In Scotland, every education authority has a duty to secure that there is, in its area, an adequate and efficient provision of free school education (Education (Scotland) Act 1980 ss.1(1) and 3). The relevant education authority is, usually, the local authority. Decisions as to where within their area and in what buildings that educational provision is to be delivered are, primarily, for the education authority. That is, such decisions are made locally for the local population by those who have been locally elected. From time to time, the authority has to address the issue of whether or not a particular school should be closed. Any decision to close a school is bound to be fraught with difficulty not least of which is because it may be much loved and valued by families whose children are past, current or potential pupils and because of various apprehensions about the proposed changes. The decision to close is bound to cause upset and anxiety. It is plainly best that, wherever possible, these matters are determined locally.
[43] The circumstances in which central government may step in and deprive the local authority of its power to decide to close a school are, accordingly, very limited. It is only if the Ministers consider that the education authority "may have failed to comply with a requirement of the 2010 Act" in "a significant regard" or that they may have failed to take proper account of a material consideration that the power arises: section 17(2)(a) and (b). It is not every case of actual or possible failure that can act as a trigger. It seems, for instance, inconceivable that the failure by an education authority to notify a relevant consultee, in advance, of the holding of a public meeting (see: sec 7(2) of the 2010 Act) will matter if that consultee did in fact attend; on no view could that be classed as a failure in a significant regard (nor a material factor).
[44] That being so, I accept that the Ministers require not only to ask themselves whether or not there has been procedural failure but whether any failure that they consider may have occurred - or that they consider has actually occurred - amounts to a failure in a significant regard. It is of critical importance that they do so, given the primacy of the education authority's role, as discussed above. Whilst it is correct that the Ministers were not obliged to give reasons, they chose, in the call - in letters, to do so. Having done so, those reasons can be examined to see whether or not they proceeded on a correct or incorrect basis in law: Gallacher v Stirling Council, para 36. Resolution of the issue cannot turn solely on the fact that they referred to section 17(2)(a) of the 2010 Act not, in fairness, that it was suggested on behalf of the Ministers that it could. The position advanced by Miss Crawford was, rather, that it was apparent from the terms of the reasons given that they considered the failure to be of the necessary degree. I do not agree. The reasons state (a) that the Ministers had identified one flaw in the case of Carloway - failure to give sufficient consideration to the likely effect on the local community of the school closing - and that it was "for that reason" that they were calling in the proposal, and (b) that the Ministers had identified two flaws in the case of Shawbost - failure to have sufficient regard to the likely effects of different travelling arrangements and failure to have sufficient regard to viable alternatives - and that it was for those reasons that they were calling in that proposal. That is all. They do not state that they considered any of those flaws to amount to a failure to comply with the statutory requirements in a significant regard and we are not persuaded that that can be inferred. The plain reading of the notices indicates that the Ministers' considerations had not gone beyond the identification of what they saw as failures. Nothing stated in the call - in letters demonstrates expressly or by inference that they considered the separate and important question of whether or not any or all of those failures were in a significant regard.
[45] In these circumstances, I conclude that the notices did, as the Council contends, proceed on an error of law and for that reason alone, require to be set aside.
Section 12
[46] I do not accept that the terms of section 12 give rise to a legislative presumption against the closure of rural schools. Whilst the terms of the section set out obligations that require the education authority to pay particular attention to the three rural factors when considering the proposal in respect of a rural school, neither there nor elsewhere in the legislation is there a statement of policy aim. It is not appropriate to refer to, for instance, a ministerial statement and thereby read a policy aim into the Act. As was submitted by senior counsel for the Council, the court's task is to ascertain and give effect to the true meaning of what Parliament has enacted and to do so, primarily, by giving the statutory provisions their ordinary and natural meaning.
[47] Whilst there are circumstances where it may be legitimate and helpful to look at external material such as what is said in the Policy Memorandum which accompanies a Bill or Explanatory Notes that are published with the legislation, it is important, we consider, that that be only for the purpose of identifying the objective context of the legislation and the mischief which it was designed to meet. Caution requires to be the watchword: R (Spath Holme Ltd) v Secretary of State for the Environment Transport and the Regions per Lord Bingham of Cornhill at 392-3; per Lord Nicholls of Birkenhead at 398 -400; per Lord Cooke of Thorndean at 408-9; per Lord Hope of Craighead at 408-9; per Lord Hutton at 414-5. Such material is not to be taken as being directive as to the meaning to be taken from the words used in the legislation. Further, the objective context and mischief may be clear from the relevant statutory terms themselves and in that case, it is difficult to see what part in the construction exercise could legitimately be played by the content of external materials.
[48] I consider that the relevant context and mischief is, in the case of the 2010 Act, clear from the legislation itself without having to look beyond it when construing its terms, including those of section 12. As was repeatedly submitted on behalf of the Ministers, 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' role is one of safeguarder in relation to that core objective of securing genuine consultation.
[49] Regarding rural schools, three factors are identified in section 12 as requiring special regard. Senior counsel for the Ministers suggested what seemed to amount to redefinition of 'special regard' as being that it would be presumed that a rural school could not be closed if a rural factor was identified and found to be negative in effect. Section 12 does not, however, use the language of presumption and I do not consider that, properly construed, it requires to have presumption read into it. Rather, I consider that the terms have a clear and straightforward meaning which is best understood as follows. 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. Much may turn on the facts and circumstances of the individual case so, to put it another way, can whatever the education authority did in the course of the consultation process in the particular case, 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 ultimately carried out 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.
Rural factors and the Carloway and Shawbost proposals
[50] I am not persuaded that the matters referred to by the Ministers demonstrate that the Council failed to have special regard to the rural factors. Indeed, I consider that, on a proper consideration of all the material which documented the consultation process, it could only be concluded that special regard was paid to the rural factors from start to finish. They were identified as requiring special consideration at each stage and particular concerns that were raised were noted and responded to.
[51] Whilst, as I have noted, above, the Council did not expressly respond to the question about the possibility of Shawbost continuing on the basis of S1 only, I consider that it is not now open to the Ministers to seek to rely on that matter. It did not feature as a reason in the relevant call - in letter and I am not persuaded that the general reference to viable options was sufficient for that purpose, particularly when it was made in the context of a criticism of the Council for not having taken sufficient account of HMIe's "more radical option". Nor was it relied on in their written pleadings. In any event, it seems likely, given the Council's responses on the subject of what they considered to be the possible alternatives that their answer to the question would have been a negative one; "S1 only" did not feature on their list. If they did fail to have regard to it, that could not, in these circumstances, have amounted to a failure in a significant regard.
[52] Turning to the Carloway proposal, the Ministers appear to have misunderstood the concerns on which their assertion of failure to have sufficient regard to community use of the school seem to have been based. As I explain above, what the material demonstrates is not anxiety about the loss of the school to community use but the potential knock - on effect on the viability of the community hall, all of which was plainly listened to and considered by the Council, as is evident from their responses.
[53] So far as Shawbost is concerned, the material to which I refer above demonstrates that, far from failing to consider HMIe's "more radical option" they considered it and explained why it was not viable. Regarding other unspecified alternatives, it may not, in terms of the legislation, be for the Ministers to state what they consider to be viable alternatives when calling in a closure proposal. However, it will be difficult if not impossible for them to conclude that there may have been a failure to consider viable alternatives in a significant regard if they do not do so in circumstances where, as here, an education authority has set out what they consider to be the possible options with an explanation of why they do not consider any of them to be viable alternatives to the closure proposal in question. I am not persuaded that it was incumbent on the Council, in paying special regard to this rural factor, to go beyond a consideration of the options discussed in their consultation response.
[54] Regarding travel arrangements, as I note above, the Council gave detailed consideration to the likely effects of change. It cannot, on the material that was before the Ministers, fairly be said that the Council did not take the matter seriously or that they did not look beyond the question of the extension of travel times to wider issues of the effects on pupils' health, their families, the local communities and extra- curricular activities.
[55] Put shortly, the question of whether or not what this Council did in the course of the consultation process could fairly be described as involving it having had special regard to the rural factors can only, I consider, be answered in the affirmative. That being so, for this reason also, the call - in notices fall to be set aside.
Disposal
[56] I propose that, in these circumstances, an interlocutor is issued refusing the reclaiming motion; sustaining the petitioner's second and fourth pleas in law, thereby reducing the call-in notices, repelling the first and second pleas in law for the respondent, and continuing, meantime, the question of expenses.
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
Lord Menzies Lady Smith Lord Brodie | [2013] CSIH 45 P788/11 and P791/11 OPINION OF LORD BRODIE in the Petition of COMHAIRLE NAN EILEAN SIAR (originally constituted as the Western Isles Council and having changed its name in terms of the Local Government (Scotland) Act 1973 s 23 and the Local Government (Gaelic Names) (Scotland) Act 1997 s 1) Petitioners and Respondents; against THE SCOTTISH MINISTERS Respondents and Reclaimers: for Judicial Review of (1) call-in notices dated 14 December 2010 relating to Shawbost and Carloway Schools; and (2) decision letters dated 12 January 2011 refusing consent to closure proposals _______________ |
For Respondents and Reclaimers: Crawford, QC; Ross; Scottish Government Legal Directorate
For Petitioners and Respondents: Wolffe, QC; Paterson; Simpson & Marwick
31 May 2013
[57] I agree that the reclaiming motion should be refused for the reasons given by Lady Smith.
[58] At risk of doing little more than repeating what appears in Lady Smith's opinion, I would wish to add the following observations on the submissions that we heard on the proper construction of section 12 of the 2010 Act. My particular concern is with the recourse that was had by senior counsel for the Scottish Ministers, Miss Crawford QC, to the legislative history of the provision.
[59] Sections 3 to 11 of the 2010 Act make provision for the procedures to be followed in respect of a relevant proposal relating to any school. Sections 12 to 14 make special provision for rural closure proposals. Section 12 provides:
"(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) 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)."
The factors mentioned in subsection (3) were referred to in submissions as "the rural factors".
[60] Miss Crawford explained that the appeals were seen as raising questions of general importance. Among these was what was the proper construction of section 12. In counsel's submission, because special regard had to be had to the rural factors, on a proper construction section 12 was to be understood as establishing a legislative presumption in favour of keeping open rural schools. By that she meant that it was implicit in section 12 that if there was a viable alternative to a closure proposal and/or there were likely adverse effects on the local community or on consequential travelling arrangements, then that would operate as a presumption against school closure. Miss Crawford allowed for possibility of the presumption being displaced or over-ridden by matters of greater importance, but the starting point was the presumption and the basis for the presumption was section 12. In support of that submission counsel referred to certain material drawn from the legislative history of the Act: the Policy Memorandum published with the Bill; answers given by officials to members of the Scottish Parliament's Education, Lifelong Learning and Culture Committee on 6 May 2009 when the Bill was at Stage 1; and what was said by the responsible minister, the Cabinet Secretary for Education and Lifelong Learning, in Parliament on 19 November 2009.
[61] I do not accept the submission that, properly construed, section 12 legislates a presumption against the closure of rural schools. I recognise that in any particular case there may be practical difficulties in loyally following the statutory requirement to have "special regard" to the rural factors as well as having (simple) regard to other material factors, possibly to countervailing effect. Despite that, at least for present purposes, I see no need to attempt to paraphrase or gloss the statutory language. Nor do I see any benefit as likely to arise from such an attempt. The expression "must have special regard" means just what it says. I entirely agree with what appears at paragraph [48] of Lady Smith's opinion.
[62] As was submitted by Mr Wolffe QC on behalf of the Council, it is for the courts in construing statute to give effect to the intention of Parliament but, ordinarily, the intention of Parliament is to be understood by reference to the words used by Parliament in the particular piece of legislation, interpreted by reference to their ordinary and natural meaning, read in the relevant context. Just what amounts to the relevant context will depend on the circumstances of a particular case but it will generally include the legislative history of the statutory provision in question: A-G v Ernest Prince of Hanover [1957] AC 436 at 461, Bennion On Statutory Interpretation (5th edition) p588. The legislative history of a statute will involve the generation of a variety of documents. In both the Westminster and the Scottish Parliaments these include the Explanatory Notes (an example of these was lodged in the present case but not relied on). In relation to Westminster legislation it has been held that, irrespective of whether or not a text appears to be ambiguous, Explanatory Notes provide an admissible aid to construction insofar as they cast light on the objective setting or contextual scene of the statute, and the mischief at which it is aimed: see eg Imperial Tobacco Ltd v The Lord Advocate 2012 SC 297 at paras 184 to 188 and the cases cited there. The Standing Orders of the Scottish Parliament provide for Explanatory Notes to accompany a Bill on its introduction. Rule 9.3 para 2A of the Standing Orders is in these terms:
"A Bill shall on introduction be accompanied by Explanatory Notes which summarise objectively what each of the provisions of the Bill does (to the extent that it requires explanation or comment) and give other information necessary or expedient to explain the effect of the Bill."
The Standing Orders make provision for the publication of revised or supplementary Notes in the event of amendment of the Bill during its passage through the Parliament. As I understand it, the Schools (Consultation) (Scotland) Act 2010 Explanatory Notes which were lodged in the present case are an example of what will originally have been Explanatory Notes on the Bill incorporating any revisions or supplementary Notes as may have been necessary, together with a summary of the parliamentary history of the Act with references to web pages where reports of proceedings can be found. I see no reason why the Explanatory Notes published with Acts of the Scottish Parliament should not be used for the same purpose as Explanatory Notes to Westminster legislation are used, bearing in mind the terms of the introductory paragraphs of, in this case, the Explanatory Notes to the 2010 Act:
"1.These Explanatory Notes have been prepared by the Scottish Government in order to assist the reader of the Act. They do not form part of the Act and have not been endorsed by the Parliament.
2. The Notes should be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or a schedule, or a part of a section or schedule, does not seem to require any explanation or comment, none is given."
Rule 9.3 of the Standing Orders of the Scottish Parliament also provides that an Executive Bill shall be accompanied by a Policy Memorandum. In terms of paragraph 3 (c) of rule 9.3 the Policy Memorandum must set out:
"(i) the policy objectives of the Bill;
(ii) whether alternative ways of meeting these objectives were considered and, if so, why the approach taken in the Bill was adopted;
(iii) the consultation, if any, which was undertaken on those objectives and the ways of meeting them or on the detail of the Bill and a summary of the outcome of that consultation; and
(iv) an assessment of the effects, if any, of the Bill on equal opportunities, human rights, island communities, local government, sustainable development and any other matter which the Scottish Ministers consider relevant."
In short, the Policy Memorandum is the Scottish Ministers' explanation to the Scottish Parliament of why they consider legislation, in the terms of the Bill, is required at the particular point in time when it is introduced, and what will be its likely effects in respect of particularly important matters. Just as it is admissible to have regard to the Explanatory Notes when construing the legislation to which they relate, so it would seem admissible to have regard to the Policy Memorandum. It is, however, important to keep in mind what is the legitimate purpose for doing so. What applies to the Explanatory Notes must apply to the Policy Memorandum. What was said by Lord Steyn in R (Westminster City Council) v National Asylum Support Service [2002] 1 WLR 2956 at 2959 is apposite:
"In so far as the Explanatory Notes cast light on the objective setting or contextual scene of the statute, and the mischief at which it is aimed, such materials are therefore always admissible aids to construction. They may be admitted for what logical value they have."
Thus, it is legitimate to look at the Policy Memorandum in order to understand the context in which a particular legislative proposal is being put forward and what the Executive hoped to achieve by it. What the Policy Memorandum cannot assist with is whether the words adopted by Parliament in enacting a particular piece of legislation did indeed achieve what the Executive intended. As was said by Lord Steyn (supra):
"What is impermissible is to treat the wishes and desires of the Government about the scope of the statutory language as reflecting the will of Parliament. The aims of the Government in respect of the meaning of clauses ... cannot be attributed to Parliament. The object is to see what is the intention expressed by the words enacted."
Lord Nicholls was to similar effect in R v Environment Secretary, Ex p Spath Holme Ltd [2001] 2 AC 349 at 396G:
"...the 'intention of Parliament' is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation."
[63] Among the paragraphs of the Policy Memorandum to which Miss Crawford drew particular attention were paragraphs 14, 15 and 16. These provide, inter alia:
"14. As stated earlier, the Scottish Government's policy intention is to ensure that a decision by a local authority to close a rural school is only taken after a number of other considerations have been taken into account. ...
15. The Bill aims therefore to establish a robust process of pre-consideration and decision-making. The Bill would require authorities to have special regard to three factors ...in the context of proposing and consulting on closing a rural school.
16. The authority will be required to set out how it has considered the three factors in its proposal paper. The authority must reconsider the factors again in the light of the consultation responses, and publish its reassessment in the consultation report. A presumption will thereby be established that no rural school will be proposed for closure (not even the consultation process commence) unless and until those factors have been fully taken into account."
Should construction of the 2010 Act require the reader to know what were the Executive's policy intentions in proposing the legislation, then it is legitimate to have regard to what appears, for example, in the first sentences of paragraphs 14 and 15. However, that is all that can properly be taken from the passages quoted. The other sentences attempt to summarise and suggest the effect of clauses in the Bill. Miss Crawford was fully entitled to argue, on the basis of the words used in the Act, that the effect of these words was to create a presumption against the closure of rural schools. The point I wish to make is that, in my respectful opinion, what she was not entitled to do was to recruit the Executive's statement as to what it intended the words used in the Bill to mean as an aid to determining what these words, as contained in the Act, in fact did mean, on a proper construction. The object, as Lord Steyn explained, is to discover the intention expressed by the words enacted in the statute and not the intention expressed by other words in another document.
[64] As I have indicated, Miss Crawford referred, in the context of considering the role given by the Act to Scottish Ministers in calling in a proposal, to an answer given by an official who appeared before the Scottish Parliament's Education, Lifelong Learning and Culture Committee on 6 May 2009. Miss Crawford also referred to what was said by the Cabinet Secretary for Education and Lifelong Learning during the debate in Parliament on 19 November 2009. Insofar as the answer given by the official and what was said by the Cabinet Secretary purported to explain the meaning of the Bill I would regard this material to be inadmissible as aids to construction of the Act, and that for the reason given by Lord Steyn in R (Westminster City Council) v National Asylum Support Service and by Lord Nicholls in R v Environment Secretary, Ex p Spath Holme Ltd. It is true, in relation to ministerial statements, that the previous practice of excluding what was said in the course of parliamentary proceedings was relaxed by the House of Lords in Pepper v Hart [1993] AC 593 but I did not understand it to be suggested by Miss Crawford that recourse to the statements by the Cabinet Secretary in the present case would be justified by reference to the Pepper v Hart criteria. For example, I did not understand it to be said that the wording of section 12 was truly ambiguous or obscure or absurd without reference to a clear ministerial statement in Parliament.