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PETER LAVERIE AGAINST THE SCOTTISH MINISTERS


Submitted: 17 March 2017

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OUTER HOUSE, COURT OF SESSION

[2017] CSOH 45

 

P11/16

OPINION OF LORD CLARK

In the cause

PETER LAVERIE

Petitioner

against

 

THE SCOTTISH MINISTERS

Respondents

 

Petitioner:  Lindsay QC, Stuart; Maclay Murray & Spens LLP

Respondents:  Mure QC, Ross QC; Scottish Government Legal Directorate

 

17 March 2017

Introduction
[1]        On 8 October 2015, the petitioner was removed from his position as a member of the Board of Management (“the Board”) of Glasgow Clyde College.  As a result of certain statutory provisions, the consequence of removal was that the petitioner became disqualified for life from being a member of a number of other boards of management in the further and higher education sector.


[2]        The petitioner challenges the lawfulness of the subordinate legislation which effected the removal:  The Glasgow Clyde College (Removal and Appointment of Board Members) (Scotland) Order 2015 (SSI 2015/348) (“the Order”).  He also challenges the lawfulness of the statutory provisions which provide for disqualification following upon removal (“the disqualification provisions”).  These are set forth in paragraph 5A(c) of Schedule 2 to the Further and Higher Education (Scotland) Act 1992 (“the 1992 Act”), paragraph 4(2)(c) of Schedule 1 to the Further and Higher Education (Scotland) Act 2005 (“the 2005 Act”), and paragraph 6(1)(c) of Schedule 2B to the same Act.

[3]        The petitioner seeks a number of orders in respect of the legislation, along with further remedies.  However, the parties were agreed that the appropriate course was to have the case put out by order, to deal with any outstanding matters in light of the decisions reached in this Opinion.

 

Background
[4]        The Order was laid before the Scottish Parliament on 8 October 2015 and came into force at 9.15 am on that day. It was signed by Angela Constance MSP, a member of the Scottish Government and the Cabinet Secretary for Education and Lifelong Learning ("the Cabinet Secretary").  The Order removed the petitioner and all other existing members of the Board, with the exception of one recently appointed board member, and appointed seven new members to the Board.  The Order was made by the Scottish Ministers in exercise of the powers conferred upon them by section 24(2) of the 1992 Act.

[5]        By virtue of the disqualification provisions, as a consequence of his removal from the Board by the Order, the petitioner is disqualified from appointment as a member of: (i) a board of management constituted under Part 1 of the 1992 Act;  (ii) the Scottish Funding Council; and (iii) any regional board constituted under the 2005 Act.  The disqualification is lifelong.  There is no right of appeal against disqualification and no provisions allowing the disqualification to be reviewed, modified or lifted at a later date.

[6]        The petitioner is a senior lecturer and teaching fellow, lecturing in social care courses at the College.  In addition, he is a member and official of the Educational Institute of Scotland ("EIS"), which is the largest teaching union in Scotland.  He was elected by the teaching staff of the College to be a board member under and in terms of paragraph 3A(2)(c) of Schedule 2 to the 1992 Act. He was re-elected by the teaching staff on 8 September 2015.

[7]        On 12 February 2015 the petitioner attended a meeting of the Board.  At this meeting, the petitioner and the other members of the Board were informed by the Chair, Mr George Chalmers, of his decision to suspend the Principal of the College.  Mr Chalmers informed the Board that he had obtained specialist employment law advice from a firm of solicitors, before reaching that decision.  According to the petitioner, at the meeting the Chair also advised the Board that he was unable to provide any further information relating to why he had decided to suspend the Principal, in case this prejudiced any disciplinary proceedings which might follow from her suspension.  Again according to the petitioner, in declining to provide any information relating to the reasons for suspending the Principal, the Chair further stated that he was following the specialist legal advice he had received.  The decision to suspend the Principal was made by the Chair alone exercising the powers conferred upon him by paragraph 5.1.8 of Part II of the College's Constitution.  The petitioner, and indeed the Board, played no part in the decision.

[8]        In an email dated 18 February 2015, sent to the Chair, members of the Board, and others, the Principal stated that she intended to seek advice from the College’s legal advisers about certain governance issues.  On 19 February 2015, the Principal was suspended.

[9]        The Scottish Funding Council became aware of the suspension of the Principal.  The Council instructed solicitors to investigate the circumstances of the suspension.  The solicitors carried out investigations and prepared a report dated June 2015 ("the Report').  The petitioner received a letter dated 3 July 2015 from the Scottish Ministers’ Director of Advanced Learning and Science, with a redacted copy of the Report enclosed.  The letter advised the petitioner that the Council had provided the Scottish Ministers with the Report under section 7C(7) of the 2005 Act and that the Report reviewed aspects of the governance and management of the College by the Board,

[10]      The Report concluded that the Board had mismanaged the affairs of the College and recommended that the Scottish Ministers exercise their powers under section 24 of the 1992 Act to remove the Chair of the Board.  The Report made no specific criticisms of the conduct of the petitioner as an individual and made no recommendations relating to him.  The letter from the Director of Advanced Learning and Science of 3 July 2015 stated that she would welcome the petitioner's comments on the Report, including its findings and recommendations.  

[11]      From 10 August 2015, the petitioner was absent from his employment on account of ill‑health.

[12]      By letter dated 9 September 2015, addressed to Mr Gordon Reid, one of the members of the Board, the Cabinet Secretary requested the Board's comments on the matters set out in the Annex to the letter, together with any proposals for Board action.  The Annex set out the Cabinet Secretary’s concerns in relation to perceived failings by the Board in governance and management.  The petitioner and all other members of the Board (excluding the suspended Principal) each received letters dated 9 September 2015 in the same terms as that addressed to Gordon Reid.  The letter stated that the Report did not inform the Scottish Ministers’ consideration of matters.

[13]      On 14 September 2015, the Cabinet Secretary met with the Chair and two members of the Board. At the meeting, the Chair of the Board stated that he was telling "the side of the story of 10 out of the 12 board members", including, it was understood by the respondents, the petitioner.  It was not suggested to the court on behalf of the petitioner that this understanding was incorrect.

[14]      The Cabinet Secretary copied to the petitioner and other members of the Board a letter dated 14 September 2015 which set out her understanding of what had been discussed at the meeting and invited further comments from the members of the Board by no later than 18 September 2015.

[15]      By letter dated 18 September 2015, Brodies LLP made submissions on behalf of the Board, including the petitioner, to the Cabinet Secretary.  This letter responded to the criticisms which had been made of the Board and set out the action which was being taken by the Board to address any perceived difficulties and shortcomings.

[16]      In terms of section 24(3) of the 1992 Act, the Scottish Ministers required to consult with the Scottish Funding Council before making an order under section 24(2)(a) of that Act.  By letter dated 5 October 2015, the Scottish Ministers’ Director of Advanced Learning and Science informed the Scottish Funding Council of the Scottish Government’s proposed action in relation to the Board, enclosing the draft Order, Policy Note and Statement of Reasons.  On 7 October 2015, the Chair of the Council replied stating that the concerns raised were serious and the proposed action was justified.

[17]      The Order was made in exercise of the powers conferred upon the Scottish Ministers by section 24 of the 1992 Act (as inserted by section 7 of the 2013 Act), which provides as follows:

"24 Mismanagement by boards.

     (1)   This section applies where—

(a)   it appears to the Scottish Ministers that the board of management of any college of further education—

(i)        have committed or are committing a serious breach of any term or condition of a grant made to them under section 12 or 12B of the Further and Higher Education (Scotland) Act 2005 (‘the 2005 Act’);

(ii)       have committed or are committing repeated breaches of such terms or conditions;

(iii)      have failed, or are failing, to provide or secure the provision of education of such standard as the Scottish Ministers consider appropriate;

(iv)      have failed, or are failing, to discharge any of their duties properly; or

(v)       have mismanaged, or are mismanaging, their financial or other affairs;…

 

(2)   Where this section applies, the Scottish Ministers may by order—

(a)   remove any or all of the members of the board (other than the principal of the college); and

(b)   where a removed member was appointed under paragraph 3(2)(a) or (f) or 3A(2)(a) or (f) of Schedule 2, appoint another person in place of the removed member."

 

[18]      The Scottish Ministers made the Order in exercise of the power under section 24(2)(a), relying upon section 24(1)(a)(ii) and (v), as it appeared to them that the Board of Management of the College had committed repeated breaches of terms and conditions of a grant made to them under section 12 of the 2005 Act and had mismanaged the affairs of the Board.

[19]      The Order was accompanied by a Statement of Reasons from the Scottish Ministers.  The Statement of Reasons identified the perceived failures in governance and management, which were broadly as follows:  (i) meetings of the Board took place without agendas on


14 April 2015 and 19 May 2015;  (ii) there were deficiencies in minutes of Board meetings throughout the period from 12 February 2015 to 25 June 2015; (iii) the Board Secretary had not been replaced timeously;  (iv) there were difficulties with the Board’s relationship with students;  (v) expenditure on legal expenses had exceeded certain specified limits;  and (vi) there had been an improper delegation of functions to a board member.

[20]      The procedure followed by the Scottish Ministers when they made the Order did not comply with section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 ("the 2010 Act") because the Order came into force on the same day that it was laid before the Scottish Parliament, rather than coming into force no earlier than 28 days after it had been laid.  Section 31(2) of the 2010 Act provides that a failure to comply with the laying requirements in section 28(2) does not affect the validity of the instrument.  In terms of section 31(3) and (4) of the 2010 Act, where an instrument is laid before Parliament but not in accordance with the laying requirements, the responsible authority must explain to the Presiding Officer why the laying requirements have not been complied with.

[21]      By letter dated 8 October 2015, the Cabinet Secretary wrote to the Presiding Officer, in accordance with section 31(3) of the 2010 Act, to explain why the Scottish Ministers had not acted in accordance with section 28(2) of the Act.

[22]      The Order was considered by the Delegated Powers and Law Reform Committee of the Scottish Parliament at its meeting on 27 October 2015.  It was also considered by the Education and Culture Committee of the Scottish Parliament at its meeting on 17 November 2015.  No motion for annulment was proposed by either committee.

[23]      On or about 27 November 2015, another person was elected to the position previously held by the petitioner as teaching staff member on the Board.

[24]      In March 2016, the Auditor General for Scotland published his report on the audit of Glasgow Clyde College for 2014/2015. He noted that the purpose of the report was “to draw Parliament’s attention to significant concerns about governance” at the College during 2014/2015. In broad terms, the Auditor General confirmed several of the main governance and management failures which formed the basis for the Order.

 

[25]      The respondents were not made aware, at any stage in the process described above, that the petitioner was absent from work on account of ill-health.

 

Submissions for the Petitioner
The Order
[26]      The Order was challenged on the following basis.  Section 24(2) of the 1992 Act was outside the legislative competence of the Scottish Parliament because it was incompatible with the petitioner's Article 6(1) Convention rights.  If not, the making of the Order by the Scottish Ministers, insofar as it related to the petitioner and his particular individual circumstances was an ultra vires act of the Scottish Ministers because it was a disproportionate interference with the petitioner's Article 11 and Article 1 Protocol 1 (“A1P1”) Convention rights. In any event, the Scottish Minister's decision to make the Order was unlawful at common law because:  (i) there was no basis upon which any reasonable Scottish Minister, having regard to all relevant and material considerations and properly directing himself to the applicable legislation, could have decided to make the Order to remove the petitioner from the Board;  and (ii) the procedure followed by the Scottish Ministers in making the Order was unfair to a material extent as it failed to conform to the rules of natural justice and thereby prejudiced the petitioner.  The submissions were developed as follows.

 

ARTICLE 6 (1)
[27]      In relation to Article 6(1) of the Convention, the office held by the petitioner, as a member of the Board, together with the rights associated with that office, were the petitioner's civil rights and obligations for the purposes of Article 6(1).  The petitioner's civil right to seek election as a representative of the academic staff was expressly recognised in domestic legislation by paragraph 3A(2)(c) of Schedule 2 to the 1992 Act.  Section 12 of the 1992 Act set out the powers that the petitioner was able to exercise as a member of the Board together with the obligations that were incumbent upon him.  Section 16 of the 1992 Act set out the properties, rights, liabilities and obligations which vested in the petitioner as part of the Board.

[28]      In addition to removing the petitioner from the Board, the Order engaged the disqualification provisions and disqualified the petitioner from holding a similar office in other institutions.  The disqualification provisions engaged by the Order therefore deprived the petitioner of his statutory right to stand for election as teaching staff member under paragraph 3A(2)(c) of Schedule 2 to the 1992 Act.  

[29]      In support of the submissions in respect of Article 6(1), reference was made in the petitioner’s Note of Argument to Le Compte, Van Leuven and De Meyere v Belgium (1983) 5 EHRR 183;  R (Wright) v Secretary of State for Health [2009] 1 AC 739;  Wilson v United Kingdom 36791/97;  26 EHRR CD195;  X v United Kingdom 28530/95;  25 EHRR 10;  Kingsley v United Kingdom (2002) 35 EHRR 10; and APB Ltd, APP and EAB v United Kingdom 30552/96;  25 EHRR CD141. In submissions, reference was made to: König v Federal Republic of Germany (1979‑80) 2 EHRR 170 and the document Practical Guide on Admissibility Criteria (2015) 60 EHRR SE8, at paragraph 244.

[30]      A decision to remove the petitioner from the Board was a determination of his civil rights and obligations, in terms of Article 6(1).  The decision whether or not to remove the petitioner from the Board therefore required to be determined by an independent and impartial tribunal established by law.  In the present case it was the Scottish Ministers who determined whether or not an Order should be made under section 24(2) of the 1992 Act.  There were none of the usual safeguards present in respect of persons who act in a judicial capacity, such as the judicial oath or the ability to decline jurisdiction.

[31]      Being a member of the Board gave the petitioner certain statutory rights and responsibilities.  Rights in public law are protected by Article 6(1).  In the present case the rights were closely analogous to private law rights.  An analogy was drawn with the rights of company directors and trustees of a trust, and with the rights of employees.  The office was a civil right, as was the right to join boards.

[32]      The disqualification provisions operated at three different levels: the petitioner cannot be a member of the board of management of a further education college, or the Scottish Funding Council, or a regional board. So, Article 6(1) was engaged.

[33]      Judicial review can in some instances remedy an earlier breach of Convention rights but for that to occur the court has to be able to exercise full jurisdiction.  This depends on the quality of the decision-making in the earlier procedure.  Here there were no safeguards, there was no disclosure of key allegations and factual disputes remained unresolved.  The facts required elucidation before a view could be taken as to what the Board should have done.  The result was a failure to have regard to the question of individual culpability.  Accordingly, the legislation was not Article 6(1) compliant.

[34]      Section 24(2) allows members of a board to be removed and uses the expression that they “may” be removed.  Thus, there was a discretion.  The provision also refers to the removal of “any or all” of the members of a board other than the principal.  It was therefore clear that there was a power to remove only some board members. In reaching decisions about removal, it was necessary to look at the individuals, their role on the Board and evidence of mismanagement on their part.

[35]      The petitioner played no part in the decision to suspend the Principal.  That decision was made by the Chair alone.  As the representative of the teaching staff the petitioner was not responsible for the preparation of agendas and minutes for the meetings of the Board.  It had never been suggested that the petitioner was responsible for the perceived breakdown in relations with students and their representatives.  The petitioner had no personal responsibility for the level of legal expenses incurred by the Board in connection with the disciplinary action against the Principal and in responding to the Report and the Cabinet Secretary's subsequent intervention.  It had never been suggested that the petitioner, as a lay person, should have challenged the specialist employment law advice provided.

[36]      In relation to the proportionality of the decision to remove the members of the Board, there was a recognition in the letter from Brodies LLP dated 18 September 2015 to the Cabinet Secretary of the need to learn lessons and remedy matters and there was identification of concrete steps being taken. Matters were in the course of being remedied.

[37]      In relation to the alleged failures in governance and management, no adverse consequences were identified by the Cabinet Secretary in respect of any particular decisions made.  There was no evidence that the absence of an agenda caused wrong decisions to be made.  It was a purely technical failure.  The board members felt able to proceed without an agenda given the urgency of the matters with which they were dealing.  The reason for the failure to have board minutes approved timeously was that there was no Board Secretary.  The Board was meeting more regularly in exceptional circumstances.  There were two meetings at which the Board Secretary was not present.

[38]      There was nothing in the findings which justified removal of the petitioner from office and the consequence of disqualification for life.  In relation to the alleged breakdown in the relationship between the Board and student members, that was a matter on which there was a factual dispute.  The Board did acknowledge the problem and had apologised to the Student Association.  The point taken by the Cabinet Secretary about exceeding the £25,000 limit in respect of legal fees was irrelevant - the petitioner had no involvement in that matter, the Chair having engaged the solicitors.  It was understood that the Deputy Principal and the Chair were dealing with this matter.  It was accepted that there was a breach of the rules regarding the delegated limit of expenditure but that breach provided no good reason as to why it would be proportionate to disqualify the petitioner for life.

[39]      As to mismanagement, the Cabinet Secretary failed to recognise that it was not the Board which was dealing with the disciplinary procedure.  The disciplinary process was underway at the time of removal of the members of the Board.  On the issue of improper delegation, this was a complex legal matter.  

[40]      Without seeking to minimise the importance of procedures, the complaints were all rather “small beer”.  There was no corruption or misappropriation of resources or catastrophic failure in the quality of teaching.  Whether viewed as a matter of proportionality or one of reasonableness, there was nothing individually or cumulatively which would merit lifelong disqualification.  There was a failure by the Cabinet Secretary to look at individual culpability.  This was the only lawful way to exercise the discretion under section 24(2) of the 1992 Act.

[41]      The constitution of Glasgow Clyde College sets out the Board Secretary’s responsibility to advise the Board on good governance issues.  It explains the powers of the Chair and it states that the Board must respect the Chair and must comply with the rulings of the Chair.

[42]      The Cabinet Secretary clearly had in mind that the removal would lead to disqualification and did not wish board members to have the opportunity to resign, hence the immediate coming into effect of the Order.

[43]      The procedure failed to comply with the requirements of Article 6(1) in the following respects: the petitioner's individual circumstances and personal culpability for any perceived failures in governance were not considered by the Scottish Ministers; the Board of Management was viewed collectively and no distinctions were drawn between any of the individual members; the petitioner was unable to respond personally to the Cabinet Secretary's requests for comments due to ill-health;  the petitioner was never informed of what, if any, complaints had been made against him as an individual as distinct from any perceived collective failings on the part of the Board of Management;  the petitioner was not informed of which other parties had been consulted by the Scottish Ministers or of the contents of any submissions made by any such parties.

[44]      There was no possibility of review of the Scottish Minister's decision to make the Order by a judicial body that has full jurisdiction and which complies with Article 6(1).  In the present petition for judicial review the court was exercising a limited supervisory jurisdiction and could not consider the merits of the Order.  The present proceedings were not an appeal. Reference was made to Tehrani v United Kingdom Central Council for Nursing Midwifery and Health Visiting 2001 SC 581,  AXA General Insurance Company Ltd v Lord Advocate 2012 SC (UKSC) 122, and Bramelid and Malmström v Sweden (1983) 5 EHRR 249.  Accordingly, the decision of the Scottish Ministers to make the Order and to determine the petitioner's civil rights and obligations, which he held as a consequence of being a member of the Board, was not a determination by an independent and impartial tribunal.  The decision of the Scottish Ministers to make the Order was incompatible with the petitioner's Convention rights under Article 6(1).  As a result, in terms of section 29(1)(d) of the Scotland Act 1998, section 24(2) of the 1992 Act is not law.

 

ARTICLE 11
[45]      The decision of the Scottish Ministers to make the Order was also a disproportionate interference with the petitioner's Article 11 Convention rights.

[46]      The office held by the petitioner, as a member of the Board, together with the rights associated with that office, were inherent and necessary elements of the petitioner's Convention rights to join and participate in trade unions, which are protected by Article 11 of the Convention.  

[47]      Article 11 was engaged because the petitioner cannot now perform his role as a union representative.  The role of the person elected by the academic staff was normally fulfilled by a union member.  The petitioner’s union activities were disadvantaged by not being able to sit on the board.  He cannot advance his union potential.  There was therefore an interference with his trade union rights.  His Article 11 rights have been breached because, in essence, the petitioner lacked personal responsibility for the matters which gave rise to his removal.  Reliance on collective responsibility did not render the interference proportionate.

[48]      Removing the petitioner from the Board was not necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.  Reference was made to National Union of Belgian Police v Belgium (1979-80) 1 EHRR 578 and Demir & Baykara v Turkey [GC} 34503/97.

[49]      Having regard to the personal circumstances of the petitioner and to his limited personal culpability for the perceived failures of governance which were identified in the Cabinet Secretary's Statement of Reasons, the removal of the petitioner from the Board was a disproportionate interference with the exercise of his trade union rights under Article 11.

[50]      Accordingly, in terms of section 57(2) of the Scotland Act 1998, the Scottish Ministers had no power to make the Order as it infringed the petitioner's Article 11 Convention rights.

 

ARTICLE 1, PROTOCOL 1 (“A1P1”)
[51]      The decision of the Scottish Ministers to make the Order insofar as it related to the petitioner was a disproportionate interference with his A1P1 Convention rights.  The office held by the petitioner and the rights associated with it were possessions for the purposes of A1P1 for the same reasons that they were civil rights and obligations for the purposes of Article 6(1).  Reference was made in the petitioner’s Note of Argument to Tre
Traktörer Aktiebolag v Sweden (1991) 13 EHRR 309; James v United Kingdom (1983) 5 EHRR 440;  Sporrong and Lönnroth  v Sweden (1983) 5 EHRR 35;  Bramelid and Malmström v Sweden;  and Pine Valley Developments Ltd v Ireland (1993)16 EHRR 379.

[52]      Removing the petitioner from the Board was not necessary in the public interest.  Reference was again made to the absence of any personal responsibility on the part of the petitioner.  In relation to the interference, the State could have used other means, for example providing training and support and following an agreed action plan.  No fair balance was struck in the present case.  Accordingly, it was not necessary to remove the petitioner from the Board in order to remedy the perceived failures in governance.

[53]      Reference was also made to Breyer Group Plc v Department of Energy [2015] 2 All ER 44;  Sinclair Collis Ltd v Lord Advocate 2011 SLT 620; Salvesen v Riddell 2012 SLT 633;  Pairc Crofters Ltd v Scottish Ministers 2013 SLT 308;  and Bank Mellat v HM Treasury [2014] AC 700.

[54]      In terms of section 57(2) of the Scotland Act 1998, the Scottish Ministers had no power to make the Order as it infringed the petitioner's A1P1 Convention rights.

 

COMMON LAW:  IRRATIONALITY
[55]      The Scottish Ministers’ decision to make the Order was unlawful at common law because there was no basis upon which any reasonable Scottish Minister, having regard to all relevant and material circumstances and considerations, and properly directing himself to the applicable legislation, could have decided to make the Order to remove the petitioner from the Board:  AXA General Insurance Company Ltd v Lord Advocate. Similar contentions as those referred to above in respect of infringement of the petitioner’s Convention rights were made.

[56]      In the circumstances the decision of the Scottish Ministers to include the petitioner in the Order and thereby remove him from the Board was irrational and unreasonable in terms of the Wednesbury approach.

 

COMMON LAW:  NATURAL JUSTICE
[57]      The decision to make the Order was unlawful at common law because the procedure followed by the Scottish Ministers in making the Order was unfair to a material extent as it failed to conform to the rules of natural justice and thereby prejudiced the petitioner.  Again, the petitioner founded upon the same key points as made in relation to the Convention rights.

[58]      It was necessary for the Scottish Ministers to provide the petitioner with details of the allegations against him as an individual board member and to provide him with an opportunity to comment thereon.  The evidence was not disclosed but instead merely an outline was given.  No witness statements or other forms of documentary evidence were provided.  The context was that there were clear disputes of fact.  

[59]      Any one or other of these failures would suffice to constitute a breach of natural justice.  The Scottish Ministers failed to follow fair procedures which complied with the rules of natural justice when they made the Order.

 

The Disqualification Provisions
[60]      As an automatic consequence of his removal from the Board by the Order the petitioner is now subject to a number of lifelong disqualifications.  This consequence should be viewed in light of the contentions advanced earlier.  The disqualification provisions were  outside the legislative competence of the Scottish Parliament because they were incompatible with the petitioner's Article 6(1), Article 11 and A1P1 Convention rights.

 

ARTICLE 6(1)
[61]      In relation to Article 6(1), the imposition of an automatic and mandatory prohibition from holding office, without any consideration of the individual circumstances of the petitioner and the extent of any personal culpability on his part for the perceived failures in governance and management, was incompatible with the petitioner's Article 6(1) rights.

[62]      The disqualification provisions deprived the petitioner of his statutory right to stand for election as academic staff representative under paragraph 3A(2)(c) of Schedule 2 to the 1992 Act. This statutory right is a civil right for the purposes of Article 6(1) of the Convention.  The automatic and mandatory disqualification of the petitioner under and in terms of the disqualification provisions was a determination of the petitioner's civil rights and obligations. The decision whether or not to disqualify the petitioner required to be determined by an independent and impartial tribunal established by law.

[63]      Disqualification is in principle unobjectionable, but provision for review or delimitation of the effect of the disqualification was required.  

[64]      In order to comply with Article 6(1), the legislation would require to provide similar procedures to those found in the Company Directors' Disqualification Act 1986 or in the Charities and Trustees Investment (Scotland) Act 2005.  By contrast with the petitioner’s position, company directors can be disqualified for 15 years. There are various brackets for disqualification and a person can get approval to serve on the boards of individual companies.  In relation to charitable trustees, protections exist; for example in terms of the 2005 Act, section 74 to 78, there are rights of appeal to the Court of Session.

 

ARTICLE 11 AND A1P1
[65]      Further and in any event, the automatic and mandatory imposition of a lifelong disqualification without any rights of appeal, review or recall was a disproportionate interference with the petitioner's exercise of his Article 11 rights and with his A1P1 property rights:  R (on the application of F) v Secretary of State for the Home Department [2011] 1 AC 331; Main v Scottish Ministers 2015 SC 639.

[66]      In order to be proportionate, any such disqualification would require to be for a finite period of time determined by reference to the degree of personal culpability of the individual board member, be subject to a right of appeal and have a mechanism for review, limitation or recall in the event of a material change in circumstances.  

[67]      In the absence of any such reasonable safeguards for the petitioner's Article 11 and A1P1 Convention rights the disqualification provisions were a disproportionate interference with these Convention rights.

[68]      A lifelong ban with no possibility of review was a violation.  The measures in the present case were uniform and blanket – disqualifying all involved despite varying degrees of individual culpability.

 

Mora, Taciturnity and Acquiescence
[69]      The petitioner did not delay unreasonably in bringing these proceedings and had not been silent or taciturn in response to the infringement of his Convention rights by the respondents.  In addition, the petitioner had not acquiesced in the respondents' infringement of his Convention rights. Reference was made to Tarves Health Ltd v Grampian Health Board 2014 SLT 974; Hendrick v Chief Constable of Strathclyde 2014 SC 551.

 

Submissions for the Respondents
[70]      The respondents contended that the petitioner is not entitled to any of the orders sought.  They also argued that the petition is barred by mora, taciturnity and acquiescence.  In summary, the respondents made the following submissions.

[71]      It was vital that the respondents should resolve the continuing failings at the College, minimise reputational damage, and ensure stable and effective governance.  This was achieved by the making of the Order.  By taking up membership of the Board, individuals assumed important responsibilities in relation to the stewardship and governance of the College.  The whole Board was collectively responsible and accountable for all Board decisions.  This was made clear in the Code of Good Governance for Scotland's Colleges.  Reference was also made to the Financial Memorandum with Fundable Bodies in the College Sector issued by the Scottish Funding Council and to the Guide for Board Members in the College Sector.

[72]      As to the factual background, the petitioner was kept informed of, and offered the opportunity to participate in, the consideration of the issues which ultimately led to the making of the Order. The petition made no reference to disputes of fact and hence this was not part of the petitioner’s case.

 

The Order
ARTICLE 6(1)
[73]      The challenge to the use of section 24(2) was misconceived. Article 6(1) does not apply universally to all decisions affecting a person.  It applies to the determination of “civil rights and obligations", an autonomous concept construed by the European Court of Human Rights: König v Federal Republic of Germany; Practical Guide on Admissibility Criteria, at paragraph 244.  The petitioner has offered no authority to vouch the proposition that the office that he held as a member of the Board, together with the rights said to be associated with that office, were his civil rights and obligations for the purposes of Article 6(1).

[74]      Political rights such as the right to stand for election and to sit in the legislature fall outwith the category of civil rights: Pierre-Bloch v France (1988) 26 EHRR 202.  Public law rights have only gradually been identified as civil rights in some cases, principally where "they are of a personal and economic nature and do not involve any large measure of official discretion":  see eg R (A) v Croydon LBC [2010] PTSR 106 (per Lord Hope of Craighead at para 59).  The position of Board member was an unpaid voluntary office on the governing body of a public institution funded almost exclusively by the State.  The domestic legislation left a wide discretion to the respondents as to whether or not an individual was qualified to apply for appointment to such a board.  The Board's composition and powers were matters of public law, and the role of the State in legislating for, arranging and supervising such appointments furthered public and institutional aims related to education in the publicly funded sector.  The post of board member was not of an economic nature, and provided no private rights for the benefit of the individual concerned.

[75]      Paragraph 3A of Schedule 2 to the 1992 Act did not grant any statutory right to the petitioner.  Rather, it laid down requirements for the composition of a board of management.  Powers and assets were vested in the Board as a body, and not in the petitioner as an individual.  The Board's power to make decisions was a collective one.  Board members could be removed by the Board itself, and the petitioner held office on such terms as the regional strategic body might determine:  see Clause 2 of the Constitution and Articles of Governance; and paragraph 5 of Schedule 2 to the 1992 Act.  A decision to remove a person from such a position did not amount to a determination of his civil rights and obligations within the meaning of Article 6(1).  Accordingly, Article 6(1) was not engaged.

[76]      Secondly, esto such a decision did amount to a determination of the petitioner's civil rights and obligations, it was not incompatible with Article 6(1) provided that it was subject to review by an independent and impartial tribunal which had as full jurisdiction as the nature of the decision requires.  The powers of the court to review, by way of judicial review, the legality of the decision and the procedures followed were sufficient to ensure compliance with Article 6(1): R (Alconbury Developments Limited) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295.  Judicial review was perfectly capable in these circumstances of providing an appropriate hearing: T‑Mobile (UK) Ltd and another v Office of Communications [2009] 1 WLR 1565.

[77]      The respondents consulted with the petitioner and other board members, met with them and received their representations, prior to reaching a decision.  The respondents' discretion enabled and obliged them to have regard to wide aims of public policy in relation to the provision of effectively governed colleges of further education.  If the rights founded upon by the petitioner constituted “civil rights” for the purpose of Article 6(1), they lay towards the periphery of that article, and in all the circumstances the requirements of Article 6(1) have been met in the present case.

 

ARTICLE 11
[78]      Article 11 protects, among other things, the right to form and join trade unions.  The Order did not interfere with these rights.  The petitioner was not elected to the Board in his capacity as a member or official of the EIS.  In terms of paragraph 3A(2)(c) of Schedule 2 to the 1992 Act, the Board is comprised of, among others, a person appointed by being elected by the teaching staff of the College from among their own number.

[79]      The person so appointed had the same duties and responsibilities as other Board members. His function was not to represent the interests of any trade union or its members. The fact that the petitioner is a member of the EIS was irrelevant to the issues raised in the petition. There was no requirement under Schedule 2 that a person appointed by being elected by the teaching staff must be a member or official of any trade union. Article 11 was not engaged. The question of the lawfulness of restrictions on the exercise of Article 11 rights, in terms of Article 11(2), therefore did not arise.

 

A1P1
[80]      The challenge to the Order insofar as based upon A1P1 was misconceived for two reasons.  First, neither the office of member of the Board nor any of the rights associated with it were possessions within the meaning of A1P1.  Reference was made to Sporrong and Lönnroth v Sweden and Tre
Traktörer Aktiebolag v Sweden.

[81]      "Possessions" is an autonomous concept, not limited to property rights as recognised by domestic law.  It is wider than most understandings of "property":  Gasus Dosier and Fordertechnik GmbH v The Netherlands (1995) 20 EHRR 403. The key factor appears to be the actual existence of some economic interest (Reed & Murdoch, Human Rights Law in Scotland 3rd edit. paragraph 8.08).  Thus, an application which in effect involves a claim to pursue a hobby or interest will fall outwith the scope of the provision:  RC, AWA & Others v United Kingdom (1998) 26 EHRR CD210.

[82]      The petitioner's position on the Board was unpaid.  The powers associated with it were powers as a Board member rather than as an individual. The petitioner's position on the Board and the rights associated with it did not involve actual economic interests.  As explained above, the power to take decisions rested with the Board and not any individual member; a quorum was required before decisions could be taken.  A1P1 was therefore not engaged.

[83]      Secondly, esto the decision to make the Order and the removal of the petitioner from the Board amounted to interference with rights protected by A1P1, such interference was lawful.  It was in the public interest, subject to conditions provided for by law and proportionate.

[84]      As for proportionality, the role performed by college boards is an important one.  As is narrated in paragraph 2 of the Policy Note, colleges are vital to the success of Scotland and its people and college boards are vital to the success of colleges.  Students rely on college boards for the proper stewardship of their institution.  Concerns about mismanagement by college boards are therefore bound to be taken seriously, given the responsibilities incumbent upon them.

[85]      It was apparent from the factual background narrated above that a thorough process was followed when concerns were raised about mismanagement by the Board.  Members of the Board, including the petitioner, were informed of the concerns which had arisen, given notice of the fact that removal from office was being considered and afforded the opportunity to explain their position.  The decision to make the Order was a proportionate one which the Minister was entitled to make, having regard to the provisions in section 24 of the 1992 Act.

[86]      The Board had failed to adhere to the Code of Good Governance and the Financial Memorandum. Further, the Order was proportionate in circumstances where the Board did not understand or accept that it had failed in its management of the College, and persistently failed to take responsibility for its actions and omissions and to recognise the seriousness of the issues facing the College.

COMMON LAW: IRRATIONALITY
[87]      Members of the Board, including the petitioner, were informed of the concerns which had arisen, given notice of the fact that removal from office was being considered and afforded the opportunity to explain their position.  As was clear from the detailed Statement of Reasons appended to the Policy Note accompanying the Order, the Cabinet Secretary gave careful consideration to the explanations provided by the Board in relation to each of the areas of concern.  The result of her consideration justified the conclusions that the Board had committed repeated breaches of terms and conditions of a grant made to them under section 12 of the 1992 Act and was mismanaging its affairs.

[88]      Having reached the conclusions set out in the Statement of Reasons, the Cabinet Secretary considered it necessary to exercise the power conferred by section 24(2) of the 1992 Act to remove from office all those who were Board members during the relevant period (February to June 2015).  That was a reasonable decision which she was entitled to make.  The fact that there may be grounds for criticising, or disagreeing with, a decision did not render it irrational.  The threshold for establishing Wednesbury unreasonableness was a high one.  Against the background described above, there was no proper foundation for the assertion that no reasonable Minister having regard to the relevant and material considerations and properly directing himself to the applicable legislation could have decided to make the Order.  The decision to make the Order could not be said to lie outwith the range of options reasonably open to the respondents, or to be irrational.

 

COMMON LAW:  NATURAL JUSTICE
[89]      Procedures to be followed in the event of the Scottish Ministers exercising their power to remove any or all of the members of a board were set out in section 24 of the 1992 Act.  These included a requirement to consult the Scottish Funding Council.  The respondents complied with those conditions.

[90]      Moreover, as was clear from the petition and answers, the respondents went considerably further than the statutory provisions required with a view to ensuring that a fair procedure and the rules of natural justice were observed.  While the petitioner avers that he suffered ill-health, he does not suggest that officials in the Scottish Government were aware of this, nor did he as an individual seek any extension of time to make further representations.

[91]      The allegation that the procedure followed was unfair and failed to conform with the rules of natural justice was without foundation.

 

Challenge to the Disqualification Provisions
ARTICLE 6(1)
[92]      The petitioner’s characterisation of Schedule 3A(2)(c) as providing for a "statutory right to stand for election" was inaccurate.  Further and in any event, statutory provisions having the effect that certain categories of persons will not be eligible to hold certain types of office did not amount to a determination of civil rights and obligations.

[93]      Article 6(1) extends only to "contestations" (disputes) over "rights and obligations" which can be said, at least on arguable grounds, to be recognised under domestic law;  it does not in itself guarantee any particular content for "rights and obligations" in the substantive law of the contracting states: H v Belgium (1988) 10 EHRR 339.  Article 6(1) cannot be employed to seek to create a right which is not so recognised: Matthews v Ministry of Defence [2003] 1 AC 1163.  Accordingly, Article 6(1) was not engaged.

 

ARTICLE 11
[94]      The disqualification provisions did not interfere with the Article 11 rights.  The provisions applied to all persons removed from office under section 24(2) of the 1992 Act.  They were not targeted at trade unions or their members.  The fact that the petitioner is a member of the EIS was irrelevant to the issues raised in the petition.

[95]      Article 11 was not engaged. The question of lawfulness of restrictions on the exercise of Article 11 rights in terms of Article 11(2) therefore did not arise.

 

A1P1
[96]      Neither the office of member of the Board nor any of the rights associated with it were possessions within the meaning of A1P1.  A fortiori, the opportunity to hold similar offices was not a possession. A1P1 was thus not engaged.

 

Mora, Taciturnity and Acquiescence
[97]      The possibility that an order would be made removing members of the Board was not only clear from the legislation, but was raised with board members more than three months before the Order was ultimately made on 8 October 2015.

[98]      Following the making of the Order, the new members of the Board assumed office and had been discharging their functions for several months.  On or about 27 November 2015, another individual was appointed by being elected to the position previously held by the petitioner as teaching staff member of the Board.  It was in the public interest that the legal position of the Board and its members be clear, and that any challenge be taken at the earliest opportunity.  To the respondents' knowledge, the petitioner took no steps to prevent the making of, or to challenge, the Order or to advance the other claims now made, until the petition was served on 8 January 2016.

[99]      Acquiescence may reasonably be inferred from the petitioner's inaction and silence.  In all the circumstances of the case, the elements of mora, taciturnity and acquiescence were established. Reference was made to Portobello Park Action Group Association v City of Edinburgh Council 2013 SC 184, Somerville v Scottish Ministers 2007 SC 140, and United Co‑operative Ltd v National Appeal Panel for Entry to the Pharmaceutical Lists 2007 SLT 831.

 

Decision and Reasons
Mora, Taciturnity and Acquiescence
[100]    A summary of the requirements for making out a preliminary plea of mora, taciturnity and acquiescence in the context of judicial review can be found in CM v The State Hospital Board for Scotland [2015] SC 112 at paragraph 57:

“[57]    In Portobello Park Action Group Association v City of Edinburgh Council an Extra Division reviewed the principles that applied to a plea of mora in the context of judicial review where there is not, as yet, a formal time limit for the presentation of a petition (see generally Report of the Scottish Civil Courts Review (‘the Gill review’), Ch 12, paras 25 et seq; Courts Reform (Scotland) Bill 2014 (SP Bill 46), sec 85, inserting sec 27A, ‘Time Limits’, into the Court of Session Act 1988 (cap 36)).  The Division, in essence, followed the First Division in Somerville v Scottish Ministers to the effect that all three elements required to be established before the plea could be sustained.  Whether there has been a delay, in the sense of a lapse of time beyond what is reasonable, depends upon the particular facts and circumstances.  Taciturnity involves a failure to assert a claim, when a reasonable person would do so. Acquiescence is an assent to a state of affairs inferred in an objective manner from inaction and silence.”

 

The plea of mora, taciturnity and acquiescence may succeed if the first two elements are established and then either prejudice or acquiescence can be inferred from the facts and circumstances:  Hendrick v Chief Constable of Strathclyde.  Mora involves an excessive or unreasonable delay:  Tarves Health Ltd v Grampian Health Board.  Whether there has been delay beyond a reasonable time depends on the facts and circumstances and it is necessary to take into account the complexity of the matter and the need to take advice, gather information and draft proceedings:  United Co-operative Ltd v National Appeal Panel for Entry to the Pharmaceutical Lists.

[101]    In his affidavit, the petitioner explained how matters had progressed following upon the passing of the Order.  His account of events was not the subject of material challenge by the respondents.  The petitioner initially went down what was described in submissions as “the parliamentary route” and sought to make the point that the Order had not been laid before Parliament for the statutory 28 day period required in terms of section 28(2) of the 2010 Act.  He wrote to the Presiding Officer and to parliamentary committees with jurisdiction.  For some twenty days or so, the petitioner waited to see if the parliamentary route might result in matters being remedied. Raising proceedings at that stage would have created a real risk of the petition being challenged as premature, because the Order could still be set aside.  It was only on 17 November 2015 that it became apparent that the only method of challenge was by judicial review.  The petitioner sought funding from the EIS.  He consulted with Senior Counsel.  The points raised involved complex issues regarding Convention rights.  

[102]    Each of the elements of mora, taciturnity and acquiescence requires to be established, albeit that the latter can be inferred.  In relation to mora, there was no unreasonable delay by the petitioner.  The period which elapsed prior to the petition being raised was not an unreasonable period when one has regard to the complexity of the issues and the need to obtain a measure of funding, to gather information and to have proceedings drafted. Taciturnity might be established by showing a failure to speak out, but the petitioner spoke out at a relatively early stage: he made contact with the Presiding Officer and the committees.  The merits and fairness of the Order were challenged by him.  In relation to acquiescence, the respondents did not put forward any proper basis upon which it could be inferred that the petitioner had acquiesced.  In the whole circumstances, the petitioner acted fairly expeditiously and there is no basis for concluding that he displayed taciturnity or that acquiescence can be inferred. 

[103]    Accordingly the plea of mora, taciturnity and acquiescence falls to be repelled.

 

The Substantive Challenges
[104]    Section 29 of the Scotland Act 1998 imposes limitations upon the legislative competence of the Scottish Parliament and provides, where relevant:

"29(1) An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.

 

(2) A provision is outside that competence so far as any of the following paragraphs apply —

 

 ... (d) it is incompatible with any of the Convention rights or with EU law ..."

 

Section 57(2) of the Scotland Act 1998 imposes corresponding limitations upon the Scottish Ministers' powers to make subordinate legislation and provides, where relevant:

"57(2) A member of the Scottish Government has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with EU law ... "

 

I turn now to consider the position in relation to each of the Convention rights upon which the petitioner founds.

 

The Challenges to the Order
IS ARTICLE 6(1) ENGAGED?
[105]    Article 6(1) provides that:

“In the determination of his civil rights and obligations…everyone is entitled to a fair and public hearing by an independent and impartial tribunal established by law”.

 

I am not persuaded that the rights founded upon by the petitioner, which are the office of board member and the powers and rights said to be associated with it, are civil rights for the purposes of Article 6(1).  

[106]    The cases founded upon by the petitioner do not support his contentions. In König v Federal Republic of Germany, it was said that whether or not the right is to be regarded as civil “must be determined by the substantive content and effects of the right - and not its legal classification - under the domestic law of the State concerned” (para  89).  The court made reference to commercial activity and public law activity.  In holding that the rights of a medical practitioner were of an essentially commercial and private character, the court contrasted these with “a public-law activity” (para 92).

[107]    In Pierre-Bloch v France, the issue was whether Article 6(1) applied to the circumstances of a person elected to the National Assembly, who had been required to forfeit his seat after having exceeded the maximum permitted amount of campaign expenditure.  The right to stand for election to the National Assembly was described as a political right and not a civil right within the meaning of Article 6(1).  In the proceedings to remove the applicant from his seat, his pecuniary interests were at stake but that economic aspect did not result in the existence of any civil right under Article 6(1).

[108]    In R (A) v Croydon LBC, Lord Hope of Craighead, in his review of the authorities (at para 59) noted that the cases:

“…indicate that Article 6(1) is likely to be engaged when the applicant has public law rights which are of a personal and economic nature and do not involve any large measure of official discretion”.

 

[109]    The Board of the College is a public body, involved in the expenditure of public funds, and is supervised by public authorities.  Membership of the Board is a matter of public service.  As to the office itself, it is an unpaid, voluntary position on the board of a public body, assisting in its management.  The office has no private character and no economic aspect.  No case law was identified before me to suggest that Article 6(1) applies in such circumstances.

[110]    The rights associated with the office were said to arise from sections 12 and 16 of the 1992 Act.  However, the Board is a body corporate (section 11(2) of the 1992 Act) and the provisions founded upon refer to rights of the Board, not to the rights of individual members of the Board.  This emphasises the collective nature of the governance structure: the Board, as a body corporate, is given statutory powers which it exercises.  The property of the college is vested in the Board, as a body corporate.  Board members simply have no individual powers.  The position on the Board does not give any rights to property, remuneration or employment.  The fact that expenses are met involves merely reimbursement and not payment.  There are accordingly no rights associated with the office which constitute civil rights for the purposes of Article 6(1).

[111]    The petitioner also founds upon Schedule 3A(2)(c) of the 1992 Act, which provides that the board of a college which is not a regional college is to be comprised of, among others “a person appointed by being elected by the teaching staff of the college from among their own number”.  In my opinion, having regard to the considerations above, this provision does not confer upon the petitioner any right which could constitute a civil right in terms of Article 6(1).

[112]    The petitioner’s suggested analogy between the position of board member and that of company director is of no assistance.  Members of the Board do not have powers of the sort that a company director has, whether executive or non‑executive.  Powers cannot be delegated to individual board members such as the petitioner.  A company director will generally be remunerated and many directors have a contractual relationship with the company.  A board member receives no remuneration and is not an employee.

 

[113]    Cases concerned with employment, including in the public sector, differ markedly from the present circumstances.  The petitioner is not an employee and, as is noted above, there is no economic aspect to the position of board member.

[114]    Overall, the petitioner was unable to point to any authority for the proposition that what might be described as a public law right with no private or economic aspect fell within Article 6(1).  

[115]    Accordingly, I reject the petitioner’s contention in his challenge to the Order that Article 6(1) is engaged.

 

BREACH OF ARTICLE 6(1)
[116]    The petitioner contended that in various respects the procedure adopted by the respondents failed to comply with Article 6(1). Even if Article 6(1) is engaged, in my view, having regard to the background and the process actually used, the petitioner’s contentions that it was breached are without foundation.

The Key Documents
[117]    Compliance with the Code of Good Governance for Scottish Colleges and the Financial Memorandum with Fundable Bodies in the College Sector are terms and conditions of the grant of funding by the Scottish Funding Council under section 12 of the 2005 Act.  That is something of which all members of the Board should have been aware:  it is obviously of fundamental and central importance to the entire functioning of the Board.

[118]    The Code of Good Governance contains numerous references to the effect that the Board operates as a collective unit and has collective responsibility.  The opening principle is that an effective board has to be collectively responsible.  The Code also deals with accountability, the decision-making processes of the Board (and their openness and transparency), delegation, risk management and internal control systems, and the use of funds economically, efficiently and effectively. It also covers the involvement of student members on the Board.   

[119]    In the Financial Memorandum, it is stated that it is a matter for the Board to comply with the terms of the Memorandum.  Accordingly, financial responsibility rests with the Board of Management and not with any individual or other group or sub‑group.

[120]    There is also a Guide for Board Members in the College Sector, which sets out the responsibilities and duties of Board members. It refers to the governance role and legal responsibilities of the Board.  It sets out the basic duties of the Board, which plainly relate to the Board as a collective unit.  It refers to making decisions in the best interests of the college.

[121]    In addition to these key documents, Glasgow Clyde College produced its own Constitution and Articles of Governance (“the Constitution”).  Section 2 of the Constitution sets out the duties of the Board of Management and notes that it is a body corporate.  There can be no doubt from the terms of this document that these are duties of the Board as a collective unit.  Reference is made to the duty to keep proper accounts.  The document also sets out the powers of the Board, it again being clear that these are vested in the Board as a body.  Notably, paragraph 2.7.3 (iv) states that a person is not eligible for appointment to the Board if he has been removed from office by the Scottish Ministers under section 24 of the 1992 Act.  Accordingly, quite separately from the legislation, the Constitution itself makes provision for disqualification.  The Constitution also refers to the Board’s duty to appoint a Board Secretary and to the responsibilities of the Secretary, which are “advising the Board on its obligations under and compliance with statute, good Governance issues and this Constitution and Articles of Governance”.  The Constitution also refers to the duty of the Board to make documents available for public inspection, including agendas, minutes of meetings and reports or other documents considered at meetings.  Annexed to the Constitution are Standing Orders which make reference to the duties of the Secretary in respect of notices of meetings, agenda items and minutes.

[122]    It is clear from all of these documents, which set the framework for the operation of the Board, that collective responsibility is a central feature.  Where the petitioner in his submissions or the Board (in its responses to the Cabinet Secretary) refer to not being responsible for particular matters, this simply fails to recognise that responsibility for the management of the affairs of the college rests with the Board of Management.  I am not persuaded that there is any basis for suggesting that any of the matters raised by the Cabinet Secretary and which formed the basis for the decision to remove the members of the Board were not the responsibility of the Board.

The Process
[123]    In relation to the fairness and justice of the process, it was made apparent in terms of the letter of 3 July 2015, sent to the petitioner from the Scottish Government’s Director of Advanced Learning and Science, that there was a possibility that the Ministers might make an Order removing board members.  The letter also noted that the normal 28 day rule for laying such an Order before the Scottish Parliament might be breached if the Ministers considered that necessary. 

[124]    In her letter dated 9 September 2015, the Cabinet Secretary stated that it seemed to her that the Board might have committed repeated breaches of terms and conditions of a grant made to it under section 12 of the 2005 Act and might have mismanaged its affairs. The grounds for considering that this might be the case were set out in an Annex to the letter.  These included: (i) issues about governance, relating to the suspension of the Principal, failure to provide that the decision-making processes were transparent, properly informed, rigorous and timely, and a breakdown in relations between the Board and its student members;  (ii) exceeding the delegated financial limits of expenditure without approval by the Scottish Funding Council;  (iii) failure to address the governance concerns raised by the Principal immediately prior to her suspension;  and (iv) improper delegation of functions to an individual Board member in relation to the disciplinary process following the suspension of the Principal.  In the letter, she stated that she was considering what action required to be taken to address the issues and indicated that one possible outcome was the making of an order under section 24 of the 1992 Act to remove the Chair and other Board members.  It is noteworthy that she also stated that “Before I reach any conclusion, I request your comments on the matters set out in the Annex…”.

[125]    As is noted above, in the letter, the Cabinet Secretary also offered to meet the petitioner and any other board members to discuss matters.  Such a meeting was requested and was duly held on 14 September 2015.  It was attended by, among others, the Cabinet Secretary, the Chair and two other members of the Board.  At the meeting, those representing the petitioner and the Board members had the opportunity to make comments and representations, and they did so.  The notes of the meeting show that the Cabinet Secretary was there to listen and to hear the views of the Board before making any decisions.  The board members explained their position, including that of the petitioner.

[126]    Following the meeting, in her letter dated 14 September 2015, the Cabinet Secretary wrote to the petitioner and other members of the Board (excluding the Principal) confirming that detailed comments, including any relevant material which they considered would be useful, should be provided by close of business on 18 September.  In their letter dated 18 September 2015, the Board's solicitors enclosed what was described as a detailed response drafted by Board members with input from the individuals named at the foot of the letter, one of whom was the petitioner.

[127]    It is therefore clear that the petitioner (and the other Board members) were asked to give their views and contentions and that they did so.  There was no suggestion made by or on behalf of the petitioner in any of the responses that he should be treated differently from the Board as a collective unit or that he had no personal involvement.  In fact, he associated himself with the collective response made by the Board.  It was also not stated at any stage that the petitioner was absent through ill health.

[128]    The Cabinet Secretary considered the Board’s response, but was not persuaded by it.  She was minded to make an order in terms of section 24 of the 1992 Act.  As is required in terms of section 24(3) of the 1992 Act, the Scottish Ministers consulted the Scottish Funding Council, sending it the draft Order, Policy Note and Statement of Reasons.  The Statement of Reasons set out, in relation to each area of concern, a summary of the Board's explanation and the Ministers' consideration and conclusions.  The Chair of the Council, in her letter dated 7 October 2015, stated that she had consulted the overwhelming majority of her board members, that they had considered very carefully the Draft Order, Policy Note and Statement of Reasons and that they considered the concerns raised to be serious and the action proposed to be justified.  The Order was then made, laid before the Scottish Parliament and came into force on 8 October 2015.

[129]    As is noted above, the Scottish Ministers explained to the Presiding Officer and the parliamentary committees why the Order should come into effect immediately.  The parliamentary committees which had considered the Order accepted that explanation.  The view of the Scottish Ministers was that it was clear that there had been considerable media coverage and speculation, and there was an ongoing risk of reputational damage to the College, and of continued mismanagement, to the detriment of its functioning as a college of further education.  Of course, as a matter of law, the fact that the Order was laid in breach of the laying requirements of section 28(2) did not preclude the Parliament from resolving, within the period of 40 days beginning with the date of laying, that the Order be annulled.  However, no motion was proposed to the effect that the Order should be annulled.

The Petitioner’s Specific Contentions
[130]    The petitioner founded upon the language in section 24(2) of the 1992 Act that the Scottish Ministers could remove “any or all” of the board members to suggest that the discretion as to removal cannot be exercised lawfully without consideration of the individual’s culpability.  While the terms of the provision plainly permit the removal of an individual board member in appropriate circumstances, the language does not carry with it a need to establish culpability on an individual basis in any particular case.  It is plainly enough that there is mismanagement or there are other breaches for which the Board members are collectively responsible.  In the present case, it is in my view beyond doubt that the failures which were identified and acted upon by the Cabinet Secretary were collective failures for which all members of the Board were responsible.

[131]    The petitioner’s contention that he was not informed of any complaints made against him as an individual fails on the same basis:  there were no such complaints about his individual responsibility for any specific matter, but there were issues about his failure along with the other board members in their collective management role, and he was made aware of these and given ample opportunity to respond to them.

[132]    It was not only the Cabinet Secretary who approached matters on the basis of collective responsibility.  The Cabinet Secretary wrote separately to every board member inviting that individual’s comments. The petitioner and his fellow board members did not respond with contentions based upon the absence of individual responsibility, but rather gave a collective response.  Board members were consulted as individuals but chose to respond as a collective.  This was entirely appropriate because it was their collective failure to manage which was being alleged.  Indeed, it is perhaps implicit that the responses made by or on behalf of the Board assisted in demonstrating that the allegations of collective mismanagement were well-founded.

[133]    As to the petitioner’s argument that he was a representative of the academic staff, the reality is that his obligations as a member of the Board were not to the constituency from which he was elected.  As the key documents demonstrate, the Board of Management does not operate on the basis of members representing individual constituencies.

[134]    Agendas and minutes of Board meetings have particular importance.  They are certainly not minor or immaterial aspects of the Board’s functions.  These documents are open to inspection, including by members of the public. That is a normal consequence of the need for transparency in a process which involves responsibility for the spending of substantial amounts of public money.  The statute, the Code and the Constitution attach importance to agendas and minutes, and these are plainly significant documents.  The Board had to make sure that the such documents were available and that other Board members were informed of their contents.

[135]    In relation to the point about the absence of the Board Secretary, it is clearly intended by the various governance and constitutional documents that it is the Board which is responsible for seeing to it that things are actually done in accordance with the rules and requirements.  Indeed, that is the point of having a Board of Management.  Proper management must involve the scrutiny and challenge of matters relevant to the Board’s functions, such as the absence of the Board Secretary.  On any view, the position of the Secretary is of major importance. Ultimately, this issue and indeed all aspects of management of the College come back to the Board as the executive body of the college.

[136]    As to the financial requirements, and the fact that a sum in excess of £90,000 was spent on legal fees in relation to the suspension of the Principal, it was plainly the Board’s responsibility to comply with the delegated limit (which was £25,000).  The delegated limit was exceeded without approval from the Scottish Funding Council and the sum spent was in excess of £55,000 by the time when retrospective approval was sought. It was for the Board to subject this matter to scrutiny and the suggestion that it was under the control of the Deputy Principal is a demonstration of the fact that the Board failed to understand or accept its role as the governing body.

[137]    The suggestion that the petitioner had no personal responsibility for the level of expenses incurred is equally misconceived.  Expenditure required to be monitored by the Board.

[138]    On the Principal’s concerns in relation to mismanagement, which had been raised by her in an email dated 18 February 2015, there was no suggestion that the board members were unaware of the email and the matters raised. On the information available, there was no Board discussion of those concerns.

[139]    The petitioner submitted that the Cabinet Secretary wanted to make sure that board members should not be allowed the opportunity to resign and hence that she was set on disqualifying them from holding similar offices.  However, giving an opportunity to board members to resign would not have been transparent and would have cut across the statutory process which the Cabinet Secretary was undertaking.  Rather than there being a determination on her part to penalise, the Cabinet Secretary was simply using the statutory powers in accordance with their terms.

[140]    I note from the Auditor General’s report that serious issues about governance of the College were found.  The Auditor General had an obligation to draw these to the attention of the Scottish Parliament.  The Auditor General and the Scottish Funding Council each endorsed the existence of failures in governance and management.

[141]    Accordingly, the petitioner’s contentions do not establish a breach of Article 6(1).

[142]    Moreover, Article 6(1) is complied with if there is access to an independent and impartial tribunal, which can include proceedings by way of petition for judicial review:  R (Alconbury Developments Limited) v Secretary of State for the Environment, Transport and the Regions.

[143]    The petitioner contended that in judicial review proceedings the court would be exercising not a full jurisdiction but only a limited supervisory jurisdiction.  This submission proceeded on the basis that the Cabinet Secretary had made determinations of factual issues. The petition was not presented upon the basis that there were material disputes of fact. In any event, I have no difficulty in concluding that there was no substantive factual dispute which was determined by the Cabinet Secretary. Rather, she focused on the broader issues of governance and management.

[144]    However, even if it is correct that certain factual matters were determined, these would fall into the category of matters (to adopt the words of Lord Hope of Craighead in Ali v Birmingham City Council [2010] UKSC 8;  [2010] 2 AC 39 at para [54]) which were “incidental to a more searching and judgmental inquiry” into the issues of governance and management.  Any conclusion on disputed facts would have been “a staging post on the way to the much broader judgment that had to be made” (Runa Begum v Tower Hamlets LBC [2003] UKHL 5, per Lord Bingham at para 9(2)).  Thus, the absence of a full fact-finding jurisdiction does not deprive this court of what is needed to satisfy Article 6(1).

[145]    In any event, if Article 6(1) is engaged, it seems to me that the rights founded upon by the petitioner must be close to the boundary of the concept of “civil rights” with the result that the existence of judicial review on conventional grounds is adequate to ensure a fair determination within the meaning of Article 6(1).  In rights of this peripheral kind, the absence of a full fact-finding jurisdiction would not disqualify the judicial review process for the purposes of Article 6(1):  R (A) v Croydon LBC (per Baroness Hale at para 45, and Lord Hope of Craighead at para 55).

[146]    Accordingly, the challenge to the Order based upon Article 6(1) must fail.

 

ARTICLE 11
[147]    Article 11 of the Convention is in the following terms:

“(1) Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

 

(2) No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police, or of the administration of the State.”

 

It can be seen that Article 11 gives a right to freedom of peaceful assembly and freedom of association.  It includes protection of the right to form and join trade unions.  The case law on Article 11 focuses on these rights and the right of individuals to have their trade union heard.  There is simply nothing in the Order which in any way restricts the right of the petitioner to form or join a trade union or which prevents a trade union (such as the EIS) from being heard.

[148]    The petitioner cannot, as a member of the Board of Management, be in any special position by virtue of the fact that he also happens to be active in a particular trade union, the EIS.  The legislation governing appointments to the Board says nothing about the appointee being a member of a trade union.  There is nothing in the relevant governance or constitutional documents to suggest that an appointee to the Board, such as the petitioner, officially represents a trade union.  The interests of the trade union are not the personal interests of the petitioner.  Article 11 is not about protecting an individual in relation to appointments through which he might in some way develop or further his own personal role in a trade union.  I am therefore of the view that the petitioner’s contentions, if accepted, would result in an innovation upon the nature and scope of the protection of Article 11 under the existing jurisprudence.  I also note that no such contentions were advanced in any of the responses or representations to the Cabinet Secretary.

[149]    Thus, Article 11 is not engaged.

 

A1P1
[150]    A1P1 provides as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

 

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

 

[151]    The petitioner submitted that the office of board member constituted an item of incorporeal property and hence was a possession for A1P1 purposes. In my view, this contention is unfounded.  A1P1 protects possessions and the key factor is the actual existence of some economic interest (Reed & Murdoch, Human Rights Law in Scotland 3rd edit. Paragraph 8.08 and the cases there cited).  As has been discussed above, there is no property or economic interest in the office of board member.  The office of board member is not a claim or other form of asset.  It is not something upon which a monetary value can be put. It is not capable of being transferred or disposed of or bequeathed.

[152]    The cases cited in argument all relate to property or economic rights.  The petitioner cited no case law supporting the view that a position on a board of this nature, against the domestic legislative background, is a possession.  As was explained above, the post of board member is not one involving employment and is not remunerated;  rather, it is purely voluntary.  It is a public office held under the provisions of the statute.  It is not a possession under domestic law or in terms of the Strasbourg case law.  The rights associated with the office are rights of the Board as a body corporate, as the statute makes clear.  Accordingly, A1P1 is not engaged.

[153]    Even if A1P1 is engaged, the issue would arise as to the nature of the interference and the question of proportionality.  These matters were not the subject of detailed submission, but there is nothing in the circumstances to suggest that the Order failed to strike a fair balance.  The impact of any infringement of the rights of the petitioner is not disproportionate to the likely benefit of the impugned measure.  The petitioner has not in my view required to bear an individual and excessive burden (see Lord Reed’s observations in Bank Mellat v HM Treasury, para 69, under reference to James v United Kingdom, para 50).  

[154]    As Lord Reed further observed in AXA General Insurance v Lord Advocate, (para 131, under reference to Brown v Stott [2003] 1 AC 681 at 703) a national court, while it does not accord to the legislature the margin of appreciation recognised by the European court, “will give weight to the decisions of a representative legislature and a democratic government within the discretionary area of judgment accorded to those bodies.”  Where, as here, the point at issue is how the Scottish Ministers dealt with allegations of mismanagement by the Board of Management of a public sector educational body, it seems to me that substantial weight has to be given to the exercise of their judgment.

[155]    Accordingly, the challenge to the Order based on A1P1 must fail.

 

COMMON LAW
[156]    Having regard to the facts and circumstances explained above, it cannot be said that the Cabinet Secretary’s decision was irrational at common law.  The simple reality is that those who serve on boards of management of this kind, which have important public responsibilities and duties, must recognise that they expose themselves to collective responsibility for the board’s performance.  That is repeatedly made clear in the governance and constitutional documents and the legislation provides that removal can be a consequence of mismanagement.  The key themes of the petitioner’s complaints – that no account was taken of his individual responsibility and that he was not shown evidence of his individual failings - are misconceived.

[157]    In terms of natural justice, it is not entirely clear what process the petitioner is suggesting the Cabinet Secretary ought to have undertaken.  However, what is clear is that the process in fact undertaken plainly complied with the requirements of natural justice.  The Cabinet Secretary obtained, in writing, and through meetings, representations from all board members who wished to make them.  The petitioner’s affidavit refers to his ill health in the summer of 2015 but it was not suggested that this was brought to the attention of the respondents at any stage prior to intimation of the present petition.  In any event, the petitioner was represented by the Board members who attended the meeting with the Cabinet Secretary on 14 September 2015.  He was a contributor to the letter of 18 September 2015 sent on behalf of the Board members.   

[158]    The decision of the Cabinet Secretary to remove the board members was entirely within the range of reasonable responses under the statutory provisions.  The petitioner’s suggestion of, in effect, “tipping-off” members to allow them to resign would evade the very purposes of the legislation.  The immediate bringing into effect of the Order does not display any wrong or vindictive motive by the Cabinet Secretary.

[159]    When one looks at the whole circumstances, it was not unreasonable in the Wednesbury sense for the Cabinet Secretary to approach matters as she did, viewing the Board on a collective basis.  The Cabinet Secretary was fully entitled to reach the view that the Board had failed in its duties of management of the institution.

 

Challenge to the Disqualification Provisions
[160]    Unlike disqualification of company directors, removal of a board member has no impact on his right to be employed, earn a living or practice his profession.  It has no penal effect.  In the cases referred to by the petitioner (R (on the application of F) v Secretary of State for the Home Department and Main v Scottish Ministers) a number of requirements, invasive of the personal freedom and liberty of the individual, had to be met.  These cases are not analogous to the present situation in which an opportunity to serve on an unpaid basis on a board has been removed.  The disqualification provisions place no obligations or requirements on the members who have been removed. The disqualification provisions simply introduce limited restrictions about serving on certain boards in the further and higher education sector.  Beyond that, the freedom and liberty of the former board member is unaffected.

 

ARTICLE 6(1)
[161]    The challenge to the disqualification provisions in relation Article 6(1) proceeds on the basis that the terms of Schedule 3A(2) of the 1992 Act (noted above) give a statutory right to stand for election, which has been removed.  A provision which states how the Board of Management is to be comprised cannot in my view be characterised as providing a statutory right to stand for election.  However, even if one proceeds on the basis that it can be so characterised, I do not consider that it is a civil right for the purposes of Article 6(1), for the reasons given earlier.  Further, I do not consider that the disqualification provisions, which have the effect that certain categories of persons will not be eligible to hold certain types of office, amount to a determination of civil rights and obligations – they merely state the consequences of removal.

[162]    Accordingly, Article 6(1) is not engaged.

 

ARTICLE 11
[163]    Likewise, I see no basis upon which it could be concluded that the disqualification provisions interfere with the Article 11 rights of the petitioner.  The disqualification provisions apply in relation to all persons who have been removed from office under section 24 of the 1992 Act.  The disqualification provisions are not directed at trade unions or their members.  The petitioner remains fully entitled to form and join a trade union and the trade union itself remains fully entitled to be heard, by the appropriate means.  The fact that the petitioner is a member of the EIS is simply of no relevance.

[164]    Article 11 is not engaged.  The question of lawfulness of restrictions on the exercise of Article 11 rights in terms of Article 11(2) therefore does not arise.

 

A1P1
[165]    It is assumed that the petitioner’s position is that the opportunity to be appointed to a board of management of a college, to the Scottish Funding Council or to a regional board, constitutes a possession for the purposes of A1P1.  I have earlier concluded that the office of member of the Board and any rights said to be associated with it are not possessions within the meaning of A1P1.  For the same reasons as discussed above, the opportunity to hold a similar office is not a possession.  It does not constitute property, or a claim or other form of asset.  There is nothing in the Strasbourg jurisprudence or the domestic case law put before me which supports the contention that it is a possession.  A1P1 is therefore not engaged.

[166]    Even if A1P1 is engaged, the question of proportionality would arise. The petitioner, and other members of the Board, took office on the basis of legislation which included provision for removal and disqualification in certain circumstances.  These potential consequences were part of the regime to which they voluntarily subjected themselves.

[167]    It is clear that the simple aim of the provisions is to ensure that those who have been removed from a relevant board of management, on the grounds of mismanagement, should not be permitted to be members of certain similar boards.  Where the context is the management of public institutions, with a remit involving the use of public funds, it is entirely legitimate and understandable that the legislature would wish to achieve that aim.  Having regard to the relatively limited nature of the restrictions imposed by the provisions, albeit lifelong, and their aim, it cannot be said that the legislation does not strike a fair balance.  In any event, in matters of this kind, as I have explained above, substantial weight has to be given to the discretionary area of judgment of the legislative body.  I therefore conclude that even if A1P1 is engaged, rights under it have not been violated by the disqualification provisions.

[168]    While of no particular relevance to my reasoning on this issue, I note that in terms of the Constitution (which is not the subject of challenge in this petition), the petitioner would in any event have been disqualified from further service on the Board following upon his removal.

 

Disposal
[169]    It follows that I shall dismiss the petition. In accordance with the joint position of the parties, I shall put the case out by order so as to deal with any remaining matters. In the meantime, I reserve all questions of expenses.