Comhairle Nan Eilean Siar v The Scottish Ministers [2013] ScotCS CSIH_45 (31 May 2013)

Comhairle Nan Eilean Siar v The Scottish Ministers [2013] ScotCS CSIH_45 (31 May 2013)

The Scottish Ministers failed to apply the correct statutory test by not considering whether any alleged failure by the Council was 'in a significant regard' as required by section 17(2)(a) of the 2010 Act. The Council had, in fact, paid special regard to the rural factors throughout the consultation process. The call-in notices were therefore issued on an error of law and must be set aside.

Citation
[2013] ScotCS CSIH_45
Parties
Petitioner and Respondent: Comhairle Nan Eilean Siar (originally constituted as the Western Isles Council); Respondent and Reclaimer: The Scottish Ministers
Jurisdiction
Scotland
Judgment Date
31 May 2013
Procedural Posture
Judicial Review / Reclaiming Motion (appeal) Against Call in Notices and Refusal of School Closure Proposals
Outcome
Reclaiming motion refused; call-in notices reduced (set aside)
Legal Topics
School Closure Procedures, Statutory Interpretation, Ministerial Powers, Consultation Requirements, Judicial Review of Administrative Action
Administrative Law Education Law Local Government Law School Closure Procedures Statutory Interpretation Ministerial Powers Consultation Requirements Judicial Review of Administrative Action

Case Brief

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Parties

Comhairle Nan Eilean Siar (originally constituted as the Western Isles Council)

Petitioner and Respondent

The Scottish Ministers

Respondent and Reclaimer

Procedural Posture

Judicial Review / Reclaiming Motion (appeal) Against Call in Notices and Refusal of School Closure Proposals

Legal Issues

  1. 1 Did the Scottish Ministers apply the correct statutory test under section 17(2)(a) of the Schools (Consultation) (Scotland) Act 2010 when issuing call-in notices?
  2. 2 Did the Ministers have a proper factual basis for concluding that grounds for call-in existed?
  3. 3 Did the Council have special regard to the 'rural factors' under section 12 of the 2010 Act?

Ratio Decidendi

The Scottish Ministers failed to apply the correct statutory test by not considering whether any alleged failure by the Council was 'in a significant regard' as required by section 17(2)(a) of the 2010 Act. The Council had, in fact, paid special regard to the rural factors throughout the consultation process. The call-in notices were therefore issued on an error of law and must be set aside.

Court Disposition

Reclaiming motion refused; call-in notices reduced (set aside)

Orders

  • Sustain petitioner's second and fourth pleas in law
  • Reduce (set aside) the call-in notices