Court determines powers of Scottish Government in relation to school closures
7 February 2013
The petitioners, Comhairle nan Eilean Siar, decided to implement school "closure proposals" as defined by the Schools (Consultation) (Scotland) Act 2010. The respondents, the Scottish Ministers, issued call-in notices in respect of the proposals and thereafter determined to refuse their consent to the proposals. The Comhairle raised judicial review proceedings for reduction of the call-in notices and decisions. They were successful at first instance. The Scottish Ministers appealed.
Preliminary issues relative to the Scottish Ministers' powers and duties following call-in were debated at the reclaiming motion. An Extra Division of the Inner House agreed with the Lord Ordinary on these issues. The correct interpretation of section 15(5) of the Act was that the respondents were obliged to determine the closure proposals on their merits following call-in. The Court rejected the Scottish Ministers' contention that their role was confined to checking that the petitioners had complied with the procedural requirements of the consultation process in terms of the Act. However, the Court agreed with the Scottish Ministers that their failure to appreciate their powers and duties post call-in did not vitiate the call-in notices themselves. The Scottish Ministers’ additional challenges to the Lord Ordinary's determination of the validity of the call-in notices are yet to be determined by the Inner House.
James Wolffe QC and Chris Paterson, both of Axiom Advocates, appeared for the Comhairle; Ruth Crawford QC and Morag Ross, both of Axiom Advocates, appeared for the Scottish Ministers.
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