PETITION OF PERTH AND KINROSS COUNCIL FOR JUDICIAL REVIEW AGAINST THE SCOTTISH MINISTERS [2020] ScotCS CSOH_41 (07 May 2020)

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URL: http://www.bailii.org/scot/cases/ScotCS/2020/2020_CSOH_41.html
Cite as: [2020] CSOH 41, [2020] ScotCS CSOH_41, 2020 GWD 17-245

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OUTER HOUSE, COURT OF SESSION
P767/19
OPINION OF LADY WISE
[2020] CSOH 41
In the Petition of
PERTH AND KINROSS COUNCIL
Petitioner:
for
Judicial Review of a decision by the Scottish Ministers to issue a call-in notice under the
schools (Consultation) (Scotland) Act 2010
Against
THE SCOTTISH MINISTERS
Respondent:
Petitioner: Mure QC: Brodies
Respondent: Ross QC; Charteris: Scottish Government Legal Directorate
7 May 2020
Introduction
[1]       The petitioner is a local authority which, like all Scottish local authorities, has a duty
to organise and provide education in its area and in performing those functions is properly
described as an education authority. One of the primary schools within the petitioner’s area
of responsibility is Abernyte Primary School (“Abernyte”). The school is a rural school,
situated within the village of Abernyte, which lies around seven miles west of Dundee. The
closest primary school to Abernyte is Inchture Primary School, approximately 3.4 miles
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away. On 27 May 2019 the petitioner notified the Scottish Ministers (“the respondents”), of
a decision to implement a proposal to close Abernyte. There followed a period during
which the respondents received representations, at the end of which they decided to issue a
call-in notice in terms of the relevant legislation, the Schools (Consultation) (Scotland) Act
2010, as amended (“the 2010 Act”). The petitioner seeks to challenge and reduce the
respondents’ call-in notice dated 16 July 2019.
The legislative scheme
[2]       The 2010 Act introduced a comprehensive consultation scheme that must be
followed where any Scottish education authority is considering closure of a school. In this
context the education authority is the local authority or the Council and I will use all three
terms interchangeably. There are a number of requirements at each stage pre-consultation,
consultation and post consultation. Section 1 of the legislation has an overview of the key
requirements for all school closures. Section 4 requires a local authority to prepare a
proposal paper that includes a number of features listed in section 4(1). Importantly for
these proceedings, section 4(2A), added by the 2014 Act, now requires that where a proposal
paper relates to a closure proposal, “ … it must also contain information about the financial
implications of the proposal”.
[3]       Particular provision is made for rural schools, in that authorities such as the
petitioner must have “special regard” to rural factors and so the procedures and
requirements relating to proposed closure of a rural school such as Abernyte are more
stringent. Some of these were introduced by amendments to the legislation by the Children
and Young People (Scotland) Act 2014 (“the 2014 Act”). The provisions of the amended
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legislation relating to rural schools insofar as material to these proceedings are in the
following terms;-
11A Presumption against rural school closures
(1) This section applies in relation to any closure proposal as respects a rural
school.
(2) The education authority may not decide to implement the proposal (wholly
or partly) unless the authority
(a) has complied with sections 12, 12A and 13, and
(b) having so complied, is satisfied that such implementation of the
proposal is the most appropriate response to the reasons for formulating the
proposal identified by the authority under section 12A(2)(a).
12 Factors for rural closure proposals
(2) The education authority must have special regard to the factors mentioned in
subsection (3).
(3) The factors are
(b) the likely effect on the local community in consequence of the proposal.
(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.
12A Preliminary requirements in relation to rural school closure
(1) This section applies where an education authority is formulating a closure
proposal as respects a rural school
(2) The authority must
(a) identify its reasons for formulating the proposal,
(b) consider whether there are any reasonable alternatives to the proposal
as a response to those reasons.
13 Additional consultation requirements
(1) This section applies to any closure proposal as respects a rural school.
(2) The proposal paper must additionally-
(a) explain the reasons for the proposal
(b) describe what ( if any) steps the authority took to address those
reasons before formulating the proposal,
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(c) if the authority did not take such steps, explain why it did not do so
(d) set out the alternatives to the proposal identified by the authority
under section 12A(2)(c),
(e) explain the authority’s assessment under section 12A(2)(c),
(f) explain the reasons why the authority considers, in light of that
assessment, that implementation of the closure proposal would be the
most appropriate response to the reasons for the proposal.”
[4]       The call-in provisions, which relate to all education authority decisions to implement
a school closure proposal, are contained in sections 15 and 17 of the 2010 Act, again as
amended by the 2014 Act. These provisions, again insofar as material to the issues for
determination in these proceedings are in the following terms ;-
15 Call-in of closure proposals
(1) Subsections (2)-(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 8 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 8 week period.
17 Grounds for call-in etc.
(1) The Scottish Minsters may issue a call-in notice only if subsection (2) applies.
(2) This subsection applies where it appears to the Scottish Ministers that the
education authority may have failed
(a) in a significant regard to comply with the requirements imposed on it
by ( or under) this Act so far as they are relevant in relation to the
closure proposal, or
(b) to take proper account of a material consideration relevant to its
decision to implement the proposal.
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(3) The education authority must provide the Scottish Ministers with such
information in connection with a closure proposal as they may reasonably require of
it for the purposes of their consideration of
(a) Whether to issue a call-in notice.
[5]       Further, sections 17A and 17B now set out the process where a call-in notice is issued
by Scottish Ministers. In essence the Ministers must refer the proposal to the Convenor of
the Schools Closure Review Panel who must then constitute a panel within a specified time
frame to review the proposal. The approach to be taken by the panel is set out in
section 17B. In essence the panel must consider whether or not the education authority has
failed in either of the ways in which it appeared to Scottish Ministers that it may have, as
section 17B mirrors the language of section 17(2). The education authority must provide the
panel with such information in connection with the proposal that the panel reasonably
requires section 17B(2). In terms of section 17C, the decisions available to the panel include
(a) refusing to consent to the proposal, (b) refusing to consent to the proposal and remitting
to the education authority for a fresh decision on implementation, or (c) granting the
proposal unconditionally or subject to conditions. There is provision in section 17D for an
appeal against the panel’s decision, restricted to points of law. Finally, section 19 requires
an education authority to have regard to any guidance issued by Scottish Ministers in
connection with the Act.
Summary of the factual background
[6]       The petitioner in this case began consideration of its school estate strategy in August
2012, the relevant document being produced at No 6/18 of process. Abernyte was identified
as a challenge to management of the school estate by November 2016. In a report (No 6/21
of process) to the authority’s Lifelong Learning Committee (“the Committee”) dated
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2 November 2016, the low occupancy of Abernyte was noted and recorded as 8 pupils out of
a capacity for the building of 44 pupils. It was proposed that an options appraisal be
developed to consider the matter of under occupancy of the school. Detailed work was
undertaken to prepare that options appraisal, all as recorded by Sheila Devlin, Executive
Director, Education and Children’s Services of the petitioner, in her affidavit No 10 of
process, at paragraphs 31-44.
[7]       An initial Options Appraisal (No 6/5 of process) was submitted to the Lifelong
Learning Committee in March 2018 and recommended reviewing the catchment area to
determine whether this would increase Abernyte’s school roll sufficiently to ensure its
future sustainability. Closure was not recommended as a reasonable option pending such a
review. A further report (No 6/8 of process) and associated updated Options Appraisal
(No 6/9 of process) was then submitted to the Committee in August 2018. That appraisal
recorded that the conclusion of the assessment on catchment area was that there would
continue to be insufficient pupil numbers to increase the school roll at Abernyte or make it
sustainable in future years if the catchment was extended. It recommended that a statutory
consultation exercise take place on a proposal to close the school.
[8]       The Proposal Paper (No 6/10 of process) in relation to the closure of Abernyte was
published on 24 October 2018 and the necessary consultation commenced shortly thereafter.
There were both public and staff meetings and representations were received. A report
(No 6/11 of process),(“the Consultation Report”) on the outcome of the consultation was
published on 18 April 2019. The appendices to that report include a detailed analysis of the
representations made and the petitioner’s responses to them. Particular issues had arisen in
relation to the reliability of the data used by the council including on pupil projections,
whether the option to review the catchment area had been fully assessed and whether the
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council had erred in relation to the availability of a playing field in the village. On the last
point, the petitioner had erred in recording that the field was owned by a local community
interest company when it is privately owned. The council did not regard this as an error
related to a material consideration. The petitioner also provided some breakdown of the
capital costs that had been estimated would be incurred if Abernyte did not close and was
upgraded. The total estimate of such cost was £330,000. In essence the petitioner concluded
that it had made no material inaccuracies or omissions in the proposal paper.
[9]       On 8 May 2019 the Committee’s Executive Director (Sheena Devlin) submitted a
report (No 6/12 of process) to the Committee narrating the outcome and findings of the
statutory consultation exercise and sought approval to implement the proposal to close the
school from 1 July 2020 or as soon as possible thereafter. The Committee granted that
approval on 22 May 2019 and the necessary notification of the decision to Scottish Ministers
with accompanying documentation was given on 27 May 2019, all in terms of section 15 of
the 2010 Act. The respondents then assessed the material. Mr Jerry O’Connell, Team Leader
of the School Organisation Team within the Scottish Government’s Learning Directorate
reviewed the documentation and completed a Proposal Assessment Form (No 7/1 of
process) on which he noted issues for consideration arising from the paperwork. A deadline
of 11 June 2019 for further representations was fixed. The call-in notice under challenge was
then issued on 23 July.
The Call-In Notice
[10]       Mr O’Connell issued the call-in notice (No 6/1 of process). It records that
52 representations were received by Scottish Ministers during the relevant period to 11 June
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2019. The material parts of the notice identify three areas of concern that led to the
conclusion to call-in the proposal and are in the following terms;-
Financial Information
“The Scottish Minsters have concerns about Perth and Kinross’s assessment of the
financial savings that would result from the closure of Abernyte and that these
savings have been overstated.
The Scottish Ministers are also concerned about the high refurbishment costs for a
school with a “B” condition rating. In the Councils’ final report, it provided a
detailed breakdown and rationale for the £330,000 costs, however in our view these
costs appear to be high for a school with a “B” condition rating and are also stated to
be “outwith five years” and therefore should not be included in costs the Council
says are required in the next 2-5 years.
After careful consideration, the Scottish Ministers have concluded that further
investigation is merited into the Council’s assessment of the future capital costs
the Council would incur if Abernyte were to remain open. There may be a failure
with reference to section 17(2)(a) of the 2010 Act that is, that Perth and Kinross
Council may have failed 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, in that the financial information the Council provided in terms of
section 4(2A) of the 2010 Act appears to have been inaccurate.
Previous actions taken to address falling pupil rolls
The Scottish Ministers note that the Council has failed to describe in their report the
actions they have taken in the past to address the reasons for closure and the reasons
for not taking any steps, or to explain why it did not take any such steps (as required
by section 13(2)(b) and (c) of the 2010 Act, respectively). In addition, the Scottish
Ministers are concerned by representations they have received which contend that
the Council has not taken the appropriate steps to address these issues despite
evidence of letters from the local community to the Council about their concerns
dating back to 2012. The Council’s reports also appears to focus primarily on the
pre-consultation activity undertaken by the Council in the run up to formally
consulting on closure and do not appear to describe explicitly the previous action the
Council had taken, nor why they did not take steps to address the problems
identified.
After careful consideration, The Scottish Ministers have concluded that further
investigation is merited into the efforts the Council has made to describe what
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steps it took to address the reasons for closure which is a requirement under
section 13(2)(b) of the 2010 Act. There may be a failure with reference to section
17(2)(a) of the 2010 Act- that is, that Perth and Kinross Council failed 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. Given the
centrality of the unsustainably low pupil roll to the Council’s proposal, such a
failure would be considered to be a failure in a significant regard.
Community Impact
The Scottish Ministers note that the 2010 Act requires that the local authority
consider the impact on the community’s future sustainability, availability of the
school’s premises and facilities for use of the community. There appears to have
been significant distance between the community and the local authority on the
impact Abernyte’s closure will have on the community and, in the case of ownership
of the playing field, a lack of knowledge on the part of the Council of the local
position. This casts significant doubt as to whether the Council has had “ special
regard” to the likely effects of the proposed closure on the local community, as they
are required to under section 12(2) and (3)(b) of the 2010 Act.
The Scottish Ministers consider that the Council appears to have underestimated the
level of community use currently and restricted the interpretation of that to non-
school related groups. The Council also relies on the use of the local Church as an
alternative venue, which based on the information provided by the respondents
appears a doubtful alternative.
After careful consideration, the Scottish Ministers have concluded that further
investigation is merited into the Council’s assessment of the impact of the
proposal (if implemented) on the local community. There may be a failure with
reference to section 17(2)(a) of the 2010 Act, that is, that Perth and Kinross Council
failed 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, in that
they may have failed to have special regard to the factors for proposals for rural
school closures in terms of section 12(2) and (3) of the 2010 Act. It appears that the
potential failure would be a failure in a significant regard as the enhanced
protection for rural schools provided for in the 2010 Act requires the Council to
have “special regard” to the rural factors.
The conclusion section of the notice records that the Minsters are calling in the proposal
under section 17(2)(a) of the 2010 Act and sets out briefly the procedure that will follow.
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The petitioner’s argument
[11]       In submissions, Mr Mure made the general point that decision making about
education rested largely with the relevant local authorities in Scotland. Each local authority
runs the schools and handles the budget for their area. The decision making of each local
authority is subject to democratic oversight by elected individuals. It was also relevant to
these proceedings that 40% of Scottish primary schools are classed as rural schools. Under
reference to the documents produced in relation to the factual background, Senior Counsel
submitted that the Council had gone to considerable lengths to explore all of the options for
Abernyte before concluding that there was no available route for generating sufficient pupil
numbers. All statutory duties had been acknowledged and fulfilled. The statutory
consultation exercise had then been undertaken in accordance with all necessary
requirements, as illustrated in the various papers and reports, Nos 6/8, 6/9, 6/10, 6/11 and
6/12 of process. Sheena Devlin’s affidavit set out in considerable detail exactly what steps
were taken at each stage. Even before formulating their proposal in October 2018, the
Council had spent nearly two years in consultation and discussion with parents and
interested parties. Her Majesty’s Inspectorate of Education (HMIE) had agreed that the
proposal had some potential educational benefits, such benefits being something that the
Ministers’ own statutory guidance (No 6/2 of process at para 33) say should be at the heart
of any proposal to make a significant change to schools.
[12]       Under reference to the call-in notice, Mr Mure submitted that it was interesting that
the first matter recorded was the number of representations. Further, only two of the large
number of relevant documents are referred to in the notice. An initial complaint that there
was no affidavit to support the respondents’ averment that all documentation provided by
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the petitioner was considered had been to some extent superseded by the late lodging of an
affidavit by Mr O’Connell but the document apparently prepared by him, (No 7/1 of
process) was rather brief. It was noteworthy that the document ended with the words
...pull together list of criticisms” and that the assessment was made on 7 June 2019 only ten
days after notification from the petitioner. The decision to call-in was not made until 16 July
and so it could not be correct that the respondents had insufficient time to seek input from
the council before deciding. It was also odd that Mr O’Connell’s affidavit stated (at para 2)
that the Options Appraisals (original and updated) were considered, when the original one
was not attached as a document, albeit that the report to the Committee was. It could be
that he had mistaken No 6/8 of process for an Options Appraisal. There was a concern that
the respondents were looking for “criticisms” rather than taking a balanced approach. The
context of the petitioner’s decision was that it had followed a three year process in fulfilment
of statutory obligations. In any event, the respondents’ assessment indicated a relatively
positive view of the proposal overall and Mr O’Connell’s affidavit failed to explain how the
respondents moved from that to the call-in decision. All that had changed was the receipt of
representations.
[13]       Mr Mure spoke first to his general grounds of challenge to the decision issued on
16 July 2019. This concerned fairness of procedure and an alleged lack of adequate reasons.
It was acknowledged that the legislation does not oblige Ministers either to share
representations received by them with the local authority or to seek further information
from that authority before reaching a call-in decision. However it was still open to the court
to intervene if not satisfied that the process included the appropriate degree of procedural
fairness Bank Mellat v Her Majesty’s Treasury [2014] 2 AC 700 at 777. In the circumstances
of this case, procedural fairness required Ministers to seek further information from the
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petitioner, or at least to provide the petitioner with such representations as they had
received and considered might give rise to a call-in notice. Those circumstances included
the very limited grounds for call-in, the primary role of the petitioner as education authority,
the identified educational benefits of the proposal, the available power to seek further
information under section 17(3), the reliance on representations received by the respondents
and not provided to the petitioner, the 2010 Act’s failure to guarantee the petitioner a right
to participate in any proceedings before the Panel and the five year prohibition on a further
closure proposal under section 2A of the Act, with relative consequences for the petitioner’s
management of its school estate. In essence the petitioner had been denied an opportunity
to address any issues of detail that may have arisen from the representations made to
Ministers and there was no indication that the respondents took into account that previous
representations had been fully addressed. Any correspondence after the call-in notice could
not rectify these inadequacies.
[14]       So far as the alleged inadequacy of reasons was concerned, it was not enough to
simply use the language of the statute. Reasons had to be clear, adequate and full. In
Comhairle Nan Eilean Siar (“CNES”) v Scottish Ministers 2013 SC 548 Lady Smith had clarified
that where reasons were given in a call-in notice, those reasons could be examined to see
whether they proceeded on a correct or incorrect basis in law. The respondents had omitted
to address whether the failure on the part of the local authority they had identified was
considered to be of the necessary degree, ie “in a significant regard”. The procedural
unfairness and reasons arguments in this case were general ones and should be considered
in light of the submissions on each of the three discrete grounds of review relative to (i)
financial information (ii) previous action to address pupil rolls and (iii) community impact.
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[15]       The focus of the argument for the petitioner on financial information was the
breakdown of the £330,000 figure, provided in Appendix 6 to the Consultation Report,
(No 6/11 of process), at p102. The reasons given in the call-in notice under this heading
included a reference to the petitioner’s possible overstatement of financial savings and a
statement that the £330,000 refurbishment costs were “outwith five years” in terms of
timescale. Mr Mure submitted that no basis was given in the notice for why Ministers
considered the anticipated costs for Abernyte to be “high” when costs for other schools in
the local authority area were comparable. Examples were given, including Greenloaning,
another “B” category school where up to £320,000 would require to be spent within 5 years,
as set out within No 6/7 of process. In any event there was a lack of detail in the notice as to
what estimates were said to be high. On the breakdown of the total figure of £330,000, the
figure represented a correct addition of the listed elements. The timing and priority of
particular works had to be regarded as approximate, as was the notion of “medium term”.
In context, even if the information was open to criticism, it could not reasonably be said to
amount to a “failure in a significant regard” which was the statutory test. In the sheriff court
decision in Highland Council v School Closure Review Panel 2016 SLT (Sh Ct) 207, that
expression had been interpreted as meaning “ in an important way”. In the present case,
there was no error in the raw information, let alone a failure in a significant or important
way, to comply with the statutory requirements. Had there been thought to be an error of
categorisation or arithmetic, the respondents could have resolved it with a simple telephone
call to the petitioner.
[16]       Further, it was clear from the Consultation Report (No 6/11 at pp15 and 17) that
issues with the school building and financial savings were not a material factor in the
closure proposal. That was the context in which the financial information, based as it was
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on a template developed by COSLA and referred to in the Ministers’ own guidance, had
been prepared. It was not reasonable or proportionate for the respondents to state that there
may have been a failure in a significant regard in relation to the financial information.
[17]       On the second discrete challenge, that of the reference in the notice to previous action
to address pupil rolls, the notice referred to section 13(2)(b) and (c) of the Act, which
imposed additional consultation requirements on relevant steps taken or at least an
explanation as to why none were taken. Senior Counsel submitted that the alleged failure
was merely one of description. Further, there seemed to be some confusion on the part of
the respondents between the Proposal Paper (No 6/10 of process) which contained the
formulated closure proposal and the Consultation Report (No 6/11) , prepared after
consultation had taken place. As might be expected it was the Proposal Paper that dealt
with this matter. It had to be read with the updated Options Appraisal, (No 6/9 of process),
which set out in detail the steps that had been taken to address the falling school roll at
Abernyte. The earlier Options Appraisal (No 6/5 of process) documented clearly the work
that had been carried out by the Council between 2016 and 2018 in this respect. The
catchment area had been reviewed as a possible alternative to closure. That was assessed
and a conclusion was reached that it was not a reasonable alternative. The process outcome
and reasons were also recorded in the later Options Appraisal (No 6/9 of process). In short,
the petitioner clearly had taken steps to address the falling school roll before it formulated
its closure proposal and had assessed reasonable alternatives. Section 12A(2)(c) of the Act
contemplated that there may be no reasonable alternative to closure and section 13 (2)(d)
refers to “any” reasonable alternatives identified. In the present case no reasonable
alternative to closure was identified.
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[18]       Further, the fact that people had made representations asserting they have been
concerned about the matter since 2012 was of no assistance in judging whether the petitioner
had complied with section 13 of the Act and so was not a relevant factor. In any event the
petitioner had not seen those representations. Anticipating the respondents’ argument that
section 13(2)(b) was concerned with what steps had been taken “ in the past”, as opposed to
the period leading up to formulating the proposal, Mr Mure pointed out that the expression
“ pre-consultation” appears in the respondents own Guidance (No 6/2 of process at paras 22-
24). It was evident from paragraph 82 of the Guidance that “the past” was the period prior
to formulating the proposal. Standing the wealth of detail set out in the various reports and
appendices, it was unreasonable to suggest that the Council may have failed in a significant
regard to comply with the requirements of section 13(2)(b). In a report appended to the
Consultation Report, Education Scotland had recorded (No 6/11 at p100) that the Council
had given “due consideration to any reasonable alternatives”. In all the circumstances no
reasonable Minister would have concluded that the petitioner might have failed on this
aspect of the process.
[19]       The final challenge related to that part of the notice dealing with community impact.
The primary submission was that this paragraph of the notice conflated two different issues,
that of the obligation to have special regard to rural factors in section 12 and the test of
failure “in a significant regard” under section 17(2)(a). The notice states in terms that the
Ministers consider that any failure to have special regard to rural factors would be a failure
in a significant regard. That was plainly not what the legislation stated and so was an error
of law. The term “special regard” was interpreted in Highland Council School v Closure
Review Panel 2016 SLT (Sh Ct) 207 as having its normal meaning, namely a greater or closer
consideration than usual. The substantive question was whether the respondents had
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pointed to any evidence that the Council failed to have special regard to the likely effect on
the local community if the proposal was implemented. In terms of section 12(4), the effect is
to be assessed by particular reference to (a) the sustainability of the community and (b) the
availability of the school’s premises and its other facilities for use by the community.
[20]       The Council had set out in detail its assessment of the impact of closure on the local
community in the Options Appraisal, the Proposal Paper and the Consultation Report.
What seems to have affected the respondents’ view on this matter also were the
representations which the petitioner had not seen and to which the legislation gave no right
to respond. The mere fact of representations being made on community impact did not
support the assertions in the notice on this issue. Ministers ought to have considered what
the Council had done by way of exploring and assessing the impact on the community
rather than focusing on representations made to them. In concentrating on the
representations, the notice contained no reference to any of the work undertaken and
documented by the council on community impact. This raised again the procedural
unfairness of relying on representations to which the Council was not permitted to respond.
On the specific issue of the ownership and use of the playing field, Sheena Devlin dealt with
this at paragraphs 84- 85 of her affidavit. It was clear that the field was not in the Council’s
ownership, something acknowledged in the Proposal Paper. Further information could
easily have been provided to Ministers had they requested it. In any event, it did not follow
automatically that community use of a playing field not owned by the Council would be
adversely affected by closure of the school.
[21]       The playing field issue was again demonstrative of the unfairness arising from a
process in which the Council had spent significant time and resources obtaining information
and consulting widely only for Ministers to receive other information at a very late stage
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and rely on it without seeking any response from the Council. On the example of whether
the church might not be a suitable alternative venue, the Council had addressed this in both
the Proposal Paper (at section 10-8-10-13) and the Consultation Report (pages 36-37).
Community impact generally was considered at every stage and it could not be said that the
rural factor had not been given closer than normal consideration.
[22]       Finally, under reference to the decision in IBA Healthcare Limited v OFT and others
[2004] ICR 1364, which Mr Mure anticipated would be relied on by the respondents, it was
submitted that where a legislative provision includes a test that a party believes something
“may” be the case, such a belief had to be reasonably held and based on the facts before that
party. In that case the Court of Appeal had been looking at a particular statute in context
and while one couldn’t just read across to the statute under discussion here, the similarity
was that it concerned a review of a gatekeeping role, as the OFT was the gatekeeper in
relation to a reference to the Competition Appeal Tribunal. Mr Mure submitted that the
court was entitled to enquire whether the Minsters had adequate material to support the
conclusion where the matter was one of factual judgement.
The respondents’ submissions
[23]       Ms Ross invited dismissal of the petition and presented her submissions in three
chapters. First she addressed the chronology and legal framework, including the role of the
petitioner and of Ministers. Then she responded to the petitioner’s general grounds and
then dealt with each of the specific grounds in the decision letter. On the first matter, much
of the chronology was agreed, but it was noteworthy that on 8 and 14 August 2019 the
School Closures Review Panel (“the panel”) had written to the petitioner requesting further
information. The statutory framework carries with it an expectation that information will be
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sought by the panel, despite the reference in Sheena Devlin’s affidavit (at para 88) to there
being no “role” for the Council in that process. Prior to the petitioner raising proceedings
the panel had intimated the date by which a decision would be made. Interim suspension of
the panel proceedings was then granted unopposed on 21 August 2019. The importance of
the 2010 Act was that it set up a complete scheme for the consultation process that may or
may not lead to a school closure. Each body, the education authority, Scottish Ministers and
the panel has specified duties and responsibilities within the scheme. Parliament has
achieved a careful balance between the primacy of the local authority’s educational duties
and the need for oversight by Scottish Ministers and separately the panel in appropriate
cases. As was recognised in CNES v Scottish Ministers 2013 SC 548, “… the Ministers’ role is
one of safeguarder in relation to the core objective of securing genuine consultation”. The
legislation should not be interpreted in a way that gives the local authority the benefit of the
doubt because of its duties as an education authority. The petitioner’s approach in this case
appeared to be that because of the enormous time and effort undertaken the court should
not trespass on its responsibility. That ignored the central feature of the legislative
provisions as a check on local authority decision making, primarily in relation to
consultation.
[24]       The introduction of an independent review body, the panel, by the 2014 Act
amendment was significant. It restricts the role of Ministers to the calling-in decision,
whereas they had previously also conducted the review that is now exclusively the panel’s
task. Any consultation must be meaningful in the sense that account has to be taken of what
one has been told by the consultee. It is not sufficient for the petitioner to show that it has
consulted, rather it must illustrate that it has satisfied all of the requirements of the 2010 Act.
Other changes to the 2010 Act by the 2014 Act were also significant, including the
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introduction of the statutory presumption against rural school closure in section 11A and the
requirement to include information about financial implications of a closure proposal in
section 4(2A). On consideration of alternatives in a rural school context, it was important to
understand that the requirement for the local authority to identify reasons for a proposal
was distinct from consideration of alternatives, as was evident from the list in section 13(a)-
(e). The identification of alternatives and the carrying out of a catchment review did not
amount to reasons. Finally, the role of the panel is to perform an independent review
function within a reasonably short time frame. The maximum period allowed for a decision
is sixteen weeks from initial constitution of the panel. But for these proceedings, the panel
would have decided this issue by November 2019.
[25]       It was noteworthy that there is no suggestion from the petitioner either that the
legislation itself is flawed or that the panel has acted improperly. The petitioner’s objections
on the basis of procedural unfairness and reasons lose force when the reality of the
legislative scheme is considered. Information can be sought by the panel and that is what
happened. Crucially, the panel is the body that makes the decision on whether there has
been a failure of the type described in section 17B and must give reasons for its decision in
terms of section 17C(2). It is now clear that Scottish Minsters’ decision making is effectively
procedural, with the panel making the only substantive decision. The test for Minsters in
section 17(2)(a) is watered down not only by the word “ may” but also by the word “
appears”, something not as definite as “believes”, which was the statutory wording in the
legislation under discussion in the case of IBA Healthcare Limited v OFT and others [2004] ICR
1364. So far as the affidavit of the petitioner’s director Sheena Devlin was concerned, there
was no difficulty with the factual account of what took place. The affidavit seems to
suggest, however, (at paras 86-87) that because a call-in notice will have an impact on the
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plan and will be widely known it somehow shouldn’t have been issued. Calling-in is a
feature of the statutory scheme and so cannot be regarded as something to be avoided. It
creates a necessary hiatus for a limited period to enable proper scrutiny by the independent
panel.
[26]       The main contention of the petitioner’s general unfairness ground seemed to be that
the respondents did not seek the petitioner’s comment on the representations made.
However, the respondents had done exactly what was required by the statute. Section 15(4)
obliged them to take representations made within three weeks into account and some
52 representations had been received during that period. Scottish Ministers are not required
to take account of the local authority’s view on or response to those representations and so
no issue can properly be taken with account being taken of such representations in reaching
a call-in decision. Against a background of calling-in being a procedural step only, this
approach made sense. The duties of the panel and the right of appeal to the sheriff provided
an effective procedural guarantee to local authorities. In Rees v Crane [1994] 2AC 173
Lord Slynn (at p191) listed some of the circumstances in which natural justice does not
require that a person be told of the complaints made against him. These include where an
investigation is purely preliminary, where there will be a full chance to deal with the
complaints later. Although the context of that case was very different, the education
authority in this case was very familiar with the statutory scheme and knew that there was a
period after notification when representations might be received by Ministers that could
lead to call-in. If the petitioner’s position is that more information could have been
provided, the proper forum for that will be the panel. Any other system would involve
delay while the respondents sent representations to the petitioner, allowed them a period to
respond and then consider all of that before even taking the procedural decision on calling-
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in. It is for the panel not Ministers to reach a concluded view on such matters, not for
duplication of work as between Minsters and the panel. There could be no question of
Ministers resolving the differences between the representations and the petitioner’s
paperwork. The documentation lodged at No 7/2 of process illustrated the issues raised
with Minsters in the representations made to them. The respondents picked out the main
points and noted them as part of the obligation under section 15(4) to take them into
account. Many raised mixed questions of fact and opinion. Although there are
circumstances in which Ministers can seek further information from the local authority as
envisaged in section 17(3), this would normally be impractical because of the strict timescale
for Ministers to decide whether to call-in.
[27]       Insofar as there was a reasons challenge, senior counsel submitted that, leaving aside
the arguments on whether the petitioner could point to any errors in the notice, the
respondents couldn’t be meaningfully criticised for a lack of reasons. On the face of the
notice there are reasons given. On the issue of whether the Ministers had failed to address
all of the information provided by the Council, Mr O’Connell’s affidavit now narrated the
position, but it was pled from the outset in Answer 12 and dealt with in the note of
argument. It wouldn’t usually be necessary for the respondents to have to confirm the
position pled on instructions in a matter of this sort. The affidavit is brief and simply
confirms that the respondents’ decision maker looked at all of the documents submitted.
Those mentioned by name in the call-in notice could not be read as an exhaustive list. It was
clear enough from Mr O’Connell’s working paper (No 7/1 of process), that the Options
Appraisal is the report to Committee.
[28]       On the first of the specific discrete grounds of challenge, the financial information,
Ms Ross submitted that the respondents had identified, accurately, an issue involving the
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inclusion of present and future costs. In the Proposal Paper (No 6/10) at para 4.12, the
petitioner recorded that the approximate cost of upgrading the school building was
£330,000. The works listed were said to be “ ..not required immediately but in the medium
term which is 2-5 years”. As planned and unplanned maintenance in the three years leading
up to the paper had been £14,144 , the respondents had been justified in making a general
comment that the £330,000 figure seemed high for a “ B” condition school. While it is
contended for the petitioner that the closure decision was not on financial grounds, it is not
for officials preparing a paper to say what is important. The closure proposal read as a
whole included a reference to costs. In the Consultation Report (No 6/11) there is a
breakdown (at p 110-111) of the £330,000 figure. After noting that there are no priority 1
items (ie requiring immediate work) the report listed the essential priority 2 work that
requires to be done within two years, at a cost of £183,621. Then as priority 3 there was
work listed as being required within 3-5 years, at a cost of £51,598. Taken together the cost
of works required within 5 years was far less than £ 330,000. While long term work for
beyond five years is then listed as priority 4, there appeared to be work that was listed twice,
once in priority 3 and again in priority 4 (boiler replacement). These discrepancies between
the statement in the Proposal Paper and the breakdown in the Consultation Report
amounted to sufficient cause for concern and for the respondents to give pause to the issue
of financial information. The petitioner’s submission that the addition was accurate (if one
included the priority 4 figures) made no difference, the concern remained that the
information given to councillors who made the decision was incorrect. Such a failure was
enough to call-in the closure proposal on this ground.
[29]       On the second challenge to the notice, the paragraph on previous action about falling
school rolls, senior counsel submitted that a distinction had to be drawn between the
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subparagraphs of section 13(2) that list certain additional matters that require to be
addressed in a proposal relating to closure of a rural school. In particular, section 13(2)(b)
requires a description of steps taken to address issues that (later) led to a proposal and so
relates to a period before the formulation of that proposal and not simply the time leading
up to the proposal. In contrast, section 13(2)(d) requires the education authority to set out
any alternatives to the identified proposal, something that is applicable only at that later
stage. The related requirement in 13(2)(c) to explain why it did not take such steps where
that was applicable was also important. The need to look at steps taken in the past is
confirmed by the respondents’ guidance (No 6/2 of process at para 82) in relation to
section 13(2)(b), which records the example of a falling school roll and the need to
understand what action, if any, the authority has taken in the past to seek to address that. A
review of the catchment area did not satisfy this statutory requirement as it would fall
within the subsequent stages listed in section 13(2)(d)-(f). As the falling school roll was the
principal reason for the school closure proposal, the apparent failure to comply with
section 13(2)(b) and (c) was significant and so the test in section 17(2)(a) was also satisfied in
relation to this issue.
[30]       On the third and final discrete challenge to the notice, that of community impact,
there were two issues. First, the respondents had recorded a “significant distance” between
the community and the local authority. This was evident from the significant number of
representations the respondents received. Community impact was a strong thread running
through those representations (summarised in No 7/2 of process) and so had to be
considered. In the Consultation report the petitioner claimed (No 6/10 at p 36) that declaring
the school to be surplus to the local authority’s requirements would present an opportunity
to use the school as part of a community asset transfer. That was at best speculative and
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seemed to be challenged in the representations, as did the councils’ view on practicability of
using the local church as an alternative venue for community events. Secondly, there was
the issue of the playing field. It was sufficient for the respondents to identify a lack of
knowledge on the part of the local authority during the process as to who owned the field
because it fed into the concern about the petitioner’s conclusion that the school closure
would have little community impact, in contrast with the views expressed in many of the
representations. The respondents could only have reached a different conclusion on this by
ignoring the large number of representations, make an assumption that the council was
correct in its view of community impact and decide not to call-in the proposal. Against that,
all that was required to call-in was that it appeared to the respondents that there may have
been a failure in a significant regard on this matter, a test that was clearly satisfied.
[31]       On the alleged error in the paragraph in the call-in notice on community impact,
Ms Ross pointed out that having special regard to the factors listed in section 12 (which
include community impact) when considering a rural school closure was a statutory
requirement and so that was an accurate statement. Having special regard was not
synonymous with a special requirement or of a significant requirement. The “in a
significant regard” provision in section 17(2)(a) relates to the potential failure and not to the
requirement on rural schools. The sentence alighted upon as an alleged error had to be read
in context. It was clear that the view was that a failure to have special regard to community
impact would be a failure in a significant regard because the issue of community impact is
given importance in the statute. It was going too far to suggest that there had been a
fundamental conflation of the two separate concepts. In any event, even if this final
comment in the letter could be said to be erroneously drafted, it could not undermine the
decision as a whole. It related to one of three separate aspects, any one of which would have
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been sufficient to call-in. The overall conclusion is correctly stated and there was no
material error in the paragraph on community impact of a type that could vitiate the
respondents’’ decision. It would be for the panel to decide whether there had been any
failure and if so whether the test of “in a significant regard” was met.
Discussion
[32]       The petitioner, as education authority for Perth and Kinross has a duty to ensure that
adequate and efficient school education is provided by the state throughout the local
authority area. Decisions about such provision are, as Lady Smith pointed out in the case of
CNES v Scottish Ministers 2013 SC 548 best taken locally when possible. This case is
concerned with the circumstances in which there may be a review of local decision making
on school closure where it appears to Scottish Ministers that there may have been a failure in
a significant regard to comply with the detailed requirements of the 2010 Act. The principal
purpose of the legislation, as narrated in the respondents’ guidance (No 6/2 at para 3), is to
“provide strong, accountable statutory consultation practices and procedures
consultation processes are expected to be robust, open, transparent and fair, and seen to be
so”. Since certain amendments to the scheme were made by the 2014 Act, those
requirements are more stringent where rural schools are concerned. When the Extra
Division decided the CNES v Scottish Minsters case there was no statutory presumption
against rural school closure, something now contained in section 11A of the 2010 Act. The
presumption is described in the respondents’ guidance (No 6/2 of process, para 4) as a
procedural presumption, because it can of course be overcome by meeting the detailed
requirements of sections 12 and 13. Additionally, at that time Scottish Ministers took the
decisions both on calling in and on the subsequent substantive review of the education
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authority’s decision. Under the amended Act, the formation of a panel, independent of
government, to take the determination on closure where the local authority’s decision has
been called-in by Ministers, avoids any suggestion of political justification for that
substantive decision. So, the initial consultation, proposal making and decision on that
proposal is carried out by the local authority, Scottish Ministers then decide whether, on an
application of the test in section 17 of the 2010 Act the closure proposal should be called-in
and if so the panel alone has the task of deciding whether there have in fact been failures of
a type described in the legislation such that the local authority decision must be reviewed.
In that tripartite exercise, it is the intermediate stage of deciding whether there is a “case to
try” on failure in a significant regard to comply with the statutory requirements that is
under scrutiny.
[33]       The petitioner makes overarching complaints of procedural unfairness and
inadequate reasons that are said to vitiate the decision reached by the respondents. The
main thrust of the argument is that, in the circumstances of this case, procedural fairness
required Ministers to seek further information of the petitioner or at least ask for comment
on such representations as had been received and might give rise to a call-in notice. It is of
course always open to the court to intervene if there is a lack of procedural fairness, even in
the context of a statutory scheme. However, in Bank Mellat v HM Treasury [2014] 2 AC 700,
an authority prayed in aid on this point by the petitioner, it was also emphasised that before
the court would take the unusual step of supplementing procedure laid down in legislation,
it would have to be “clear that the statutory procedure is insufficient to achieve justice and
that to require additional steps would not frustrate the apparent purpose of the legislation”
per Lord Sumption at p777,citing Lord Reid in Wiseman v Borneman [1971] AC 297 at 308.
In the legislative scheme under discussion in this case, the Scottish Ministers are conducting
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a safeguarding or gatekeeping function. Their decision is not one that disposes of the
substantive issue of whether the petitioner’s decision on closure of a school was taken in
accordance with legislative requirements, but only whether there are grounds for remitting
the question of whether there has been a relevant failure to the independent panel. In the
context of the 2010 Act and its purpose, it can easily be concluded that the absence of a
procedural requirement on the respondents to engage with the local authority before
reaching a decision on calling-in is not a barrier to achieving fairness. The local authority
will have submitted all the material on which it relied in making the decision on the
proposal and the respondents require to consider that against any representations made.
Ministers do not require to reconcile the differences between the different positions stated
by the council and those making representations because they are not making a
determination as between conflicting positions. The exercise in which Scottish Ministers are
engaged is in identifying whether there appears to be a basis for stating that the local
authority may have failed to comply with the legislative requirements in a significant way.
If there is such a basis, it will be for the panel to reconcile conflicts between the different
positions and reach a determination. The main consequence for the petitioner of the
respondents’ decision to call-in is a delay which, but for these proceedings, would have been
measured in weeks. In the context of the Ministersdecision being itself a procedural one
and a step in the larger process and in the absence of any challenge to the legislative scheme,
I do not consider that the absence of further input from the education authority on any of
the points raised amounted to procedural unfairness. Once the different roles of the
education authority, the Scottish Ministers and the panel are properly understood, it
becomes apparent that the call-in stage is one of those situations in which there is clear
justification for departure from the usual rule that someone knows of and is given a chance
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to respond to complaints against them as it is only a step in a larger process and not the
ultimate decision (Rees v Crane, supra, at p 191 G-H and 192 A-B). I reject the complaints of
procedural unfairness made by the petitioner. On the associated reasons challenge, I have
narrated the relevant passages of the notice that give reasons. While the quality of the
reasoning forms part of the argument in relation to the treatment by the respondents on each
of the three discrete grounds and will be examined in that context, it cannot be said that
there was any general failure on the part of the respondents to give reasons for their
decision.
[34]       I turn now to the test that Ministers had to apply in deciding whether there was a
basis to call-in the petitioner’s decision on the proposed closure of Abernyte. Section 17(2)
provides that it must “appear” to the respondents that the petitioner “may” have failed “in a
significant regard” to comply with the requirements imposed on it by the Act. In Office of
Fair Trading and others v IBA Health Limited [2004] ICR 1364, Morritt V-C in the Court of
Appeal thought it clear that a test including the words “may be the case” excluded the
purely fanciful, but that “In between the fanciful and a degree of likelihood less than 50%
there is a wide margin in which [the decision maker] is required to exercise its judgment”.
The test in the 2010 Act represents on any view a low threshold, entirely consistent with the
tripartite exercise involved. The local authority has made its decision, subject only to the
call-in and review provisions and so scrutiny by the respondents of the material upon which
that decision was based is part of the assessment under section 17(2). The other part is to
consider any representations made during the period referred to in section 15(4). There can
be no objection to the process being one of collating criticisms because if there are no
perceived relevant failures on the part of the local authority there can be no calling-in of
their decision on the closure proposal. It is necessary that the terms of the call-in notice go
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further than a mere reference to section 17(2)(a), it must make clear both that the
respondents are satisfied there may be a relevant failure and that any such failure is of the
requisite degree of “in a significant regard” - CNES v Scottish Ministers 2013 SC 548 at
para 44. There is no suggestion that the respondents failed to address both issues in this
case. The call-in notice identifies three separate matters on which the Minsters consider that
there may be a failure to comply with the relevant requirements of the 2010 Act. I turn now
to examine each of the challenges to these three separate sections to see whether or not they
are illustrative of error in the manner contended by the petitioner. I deal with this on the
basis that I have already rejected any suggestion that it was procedurally unfair or contrary
to natural justice for the decision to be made without sharing the representations or seeking
more information from the local authority.
[35]       The petitioner contends that insofar as the notice founds on section 17(2)(a) in respect
of financial information it is irrational, disproportionate and unreasonable and that the
reasons given are irrational and inadequate. While financial considerations may not have
been material factors in the petitioner’s closure proposal for Abernyte, the respondents were
in my view both entitled and obliged to consider this matter. The requirement for a
Proposal Paper to contain information about the financial implications of the proposal is not
restricted to rural school closure proposals section 4(2A) of the 2010 Act. The provision of
inaccurate information would certainly suggest that there may be a failure to comply with
that requirement. The education authority produces documents on which councillors must
be able to rely in reaching a decision on a closure proposal. It seems to be accepted by the
petitioner that, reading the Proposal Paper and Consultation Paper on this together, there
are inaccuracies, at least to the extent that there was duplication of certain work as between
priority 3 and 4 and that some of the work would take place outwith the 2-5 year period
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specified for all of the £330,090 cost in the Proposal Paper. The petitioner’s reliance on the
accuracy of the arithmetic in the Consultation Paper does not resolve the inconsistency. The
respondents’ tentative view that the petitioner has overstated the savings that would result
from the closure of Abernyte is justified by an analysis of the papers, which illustrate that
using the petitioner’s own figures, the cost of refurbishment over the next five years would
be significantly less than £330,090 (by at least £90,000, more if the duplication point is
resolved by priority 3 costs being overstated). The general comment that the costs seemed
high for a “B” condition school was also criticised by reference to refurbishment costs of
other schools, referred to in Sheena Devlin’s affidavit at paragraphs 78-80. In the context of
a comparison with total spending of £14,144 on the property over the previous three years,
however, the comment seems reasonable. That the apparent failure seemed to the
respondents to meet the necessary degree of “in a significant regard” is perfectly rational in
light of the sums involved in the acknowledged errors.
[36]       On the second challenge to the notice in relation to steps taken to address falling
school rolls, the petitioner’s position is that there is no evident failure and even if there was
it would only be a failure in description. It seems to me that the petitioner’s submission
about this aspect overlooked that section 13 includes statutory requirements that, if there
appears to be a failure to comply with them, it raises a relevant concern under
section 17(1)(a), albeit that the degree of failure would still require to be addressed.
Referring to it as merely an alleged failure of description belies the purpose of that
description, which is to allow analysis not just of whether any steps were taken to address
the problem of the falling school roll but also to consider any explanation as to why no such
steps were taken if that was the case. If the documentation does not state whether steps
were taken, the subsequent analysis of looking at an explanation for that cannot take place. I
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accept Ms Ross’ submission on the distinction between section 13(2)(a)-(c) and (d)-(f)
respectively. In the Proposal Paper, the local authority must, after explaining the reasons for
the closure proposal, provide retrospective information about what steps it took to address
those reasons (here principally falling school roll) “ before formulating the proposal”, a clear
reference to a period prior to even considering that closure might be an option. These
additional requirements for rural schools flow naturally from the procedural presumption
against rural school closure introduced by section 11A. The starting point for a local
authority must be to address a falling school roll in a way that avoids the spectre of closure.
Only if the problem can’t be addressed, and the local authority can explain why that was,
can it properly move to the next stage. Identification of alternatives is not synonymous with
addressing a problem and is part of the later stage. Conducting a review of a catchment area
is not tantamount to addressing a falling school roll problem; making alterations to a
catchment area would be different and could well constitute an attempt to address the issue.
The reference to representations in this paragraph links the failure that emerges from the
paperwork to the probable importance of that apparent failure. If, as the representations
state, the local community had raised concerns from 2012 about this issue and no steps were
taken, evidence of that will have to be considered carefully by the panel. In the context of
Ministers not being the final arbiters on this or any other issue, all that was required was a
tentative view based on the available material. Against that background the respondents
were entitled to conclude that there may have been a failure in a significant regard in
relation to this matter.
[37]       Turning to the last of three specific challenges, that of community impact, the
petitioner contends that the respondents again placed too much emphasis on
representations received and to which the council had no opportunity to respond. For all
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the reasons already given, this was not procedurally unfair in the context of the role of
Ministers at the call-in stage. Community impact is one of the factors to which the education
authority must have “special regard” when making a closure proposal in relation to a rural
school. Axiomatically, a large number of strongly expressed views by members of the
community on the perceived impact will be a relevant factor, albeit that at the later stage of a
panel determination on whether there has been a failure in a significant regard on this issue,
they will require to be more critically assessed. In my view it was sufficient for the
respondents at this stage to note the considerable distance between the council and the
community residents on this issue, together with identification of two examples that give
rise to a concern about statutory compliance before concluding that the modest test in
section 17(2)(a) was engaged. The two examples, that of the council’s error in relation to
ownership of the playing field and the dispute about whether the local church was a suitable
alternative venue for larger events, are clearly relevant to the issue of community impact.
The ownership position in relation to the playing field stated in the Proposal Paper was not
formally retracted in the Consultation Paper (see No 6/11 at para 8.12), although it is there
stated that if there was an error it was not a material consideration. But the issue was
whether the field was owned by a community group or an individual, something that on the
face of it would make a difference to its likely availability to the community. It was perfectly
reasonable for the respondents to be concerned about the lack of clarity on this point. The
dispute about the extent to which the church would provide an adequate alternative venue
for community events was similarly unresolved. Assertions by the local authority in the
reports are not a sufficient basis to resolve such issues. They can be resolved by the panel as
ultimate decision maker.
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[38]       However, the petitioner raised an issue of alleged error in law in this last challenge
that merits separate consideration. In the conclusion on community impact, the notice states
that there may be a failure under reference to the relevant statutory test, that possible failure
being to have special regard to the factors for rural school closures. Then it states “It
appears that the potential failure would be a failure in a significant regard as the enhanced
protections for rural schools … in the 2010 Act requires the Council to have “special regard”
to rural factors.” Senior Counsel for the petitioner argued eloquently that this was
illustrative of an error of law because it conflated the concepts of “special regard” and
“significant regard” when the legislation made no such link or created any such
inevitability. It is undoubtedly the case that an apparent failure to comply with any of the
statutory requirements is just that, it is not a failure to any particular degree. The sentence is
oddly expressed and could be interpreted as meaning that the respondents considered that
every failure, however small or insignificant, to have special regard for a rural factor would
be a failure of the necessary degree to call-in the closure proposal. That would be wrong. Of
course as the statute as amended does place particular emphasis on rural schools, by
imposing the procedural presumption and associated additional requirements, including
those in section 12(2) and (3), it is incumbent on the respondents to consider those with care
and to flag up any perceived inadequacies in the council’s obligation to have special regard
to them. Whether a failure to have special regard to the rural factors is significant would
depend on whether the perceived failure is trivial or not. Having considered this particular
sentence and the submissions made, I conclude that, while it overstates matters to view the
respondents as having confused or combined the two separate notions of “in a significant
regard” and “special regard”, the sentence is inappropriately and ambiguously expressed.
The importance placed on rural factors could lead to a conclusion that unless the perceived
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failure is trifling it may be regarded as significant. Much depends on what the apparent
failure is. However, the use of the word “would” coupled with the conjunctive “as” appears
to indicate it being a necessary conclusion that any failure in this respect is a failure in a
significant regard. On balance, therefore, I will treat the last sentence as erroneously
expressed. Two relative issues then arise, namely whether the error is material and secondly
whether, if it is, it vitiates either the relevant section or even the decision as a whole?
[39]       The role of the respondents was to ascertain whether any perceived failure “may” be
a failure in a significant regard. The erroneous use of “would” rather than “could” or “may”
must lead to a close analysis of the rest of the paragraph and the letter as a whole so that it is
understood both in the context of the community impact section and that section in its place
and context in the letter. What matters above all is whether the respondents applied the
correct test. I conclude that they did. First, the last sentence of the section comes after a
correct statement of applicable test in section 17(2)(a), with appropriate reference to the use
of the terms “ may be a failure” and “ in a significant regard”. Secondly, there are references
earlier in the section that illustrate an understanding that trivial points or gaps in knowledge
by the council would not matter (and so not meet the test). For example there is reference to
the “significant distance” between the local authority and the community in relation to the
community impact issue generally, a reference to the large number of responses on this
point and the strength of feeling that the Council had misunderstood the position. Further,
the uncertainty about the ownership of the playing field is also said to cast “significant
doubt” as to whether the council has complied with the special regard test in section 12(2)
and (3)(b) of the Act and for the reasons given the conclusion the council reached regarding
the use of the church may also be wrong. Taken together, these examples highlight the issue
as an important one because the differences are not merely of detail but suggest that the
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Council’s approach to this statutory requirement lacked rigour on matters that were of real
concern locally. There is sufficient in the narrative of the section prior to the unhappily
worded last sentence for me to conclude with some confidence that the respondents did not
misunderstand the test and so the error in expression in the final sentence is not a material
one.
[40]       It follows from the conclusion just given that there is no material error such as to
vitiate the section under discussion, far less the decision as a whole. In any event, I would
not have regarded the error as fatal to the decision overall. The correct statutory test for call-
in is enunciated on page 1 of the notice and at the end of each discrete section. The
respondents could call-in the proposal under any of those three separate grounds. Only if all
three sections contained material errors or other general grounds for review had been made
out, could the whole decision be reduced. For the reasons already given, I have rejected the
petitioner’s arguments about general procedural unfairness and also in relation to the first
two discrete challenges. The last sentence of the community impact section of the notice
adds nothing to what has gone before in that section and in context is not a material error.
[42]       For completeness I should add a note about Mr O’Connell’s affidavit, which was
produced by the respondents and lodged, under some protest from the petitioner, after the
Scottish Ministers had sight of the petitioner’s speaking note. That note criticised the lack of
an affidavit supporting the averment (in Answer 12) that the respondents had considered all
of the paperwork. No 7/1 of process, which was lodged timeously, comprises
Mr O’Connell’s assessment of the points arising from that paperwork. It is sufficient to
record that I would have been content to deal with the arguments without Mr O’Connell’s
affidavit and to proceed on the basis of the averment made on instruction, given the nature
of proceedings of this type.
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Decision
[41]       For all of the reasons given, I will sustain the respondents’ first plea in law and
dismiss the petition, reserving meantime all questions of expenses.





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