Malloch v Aberdeen Corp [1973] ScotCS CSIH_2 (01 June 1973)

Malloch v Aberdeen Corp [1973] ScotCS CSIH_2 (01 June 1973)

The 1967 amendment to the Schools (Scotland) Code was ultra vires insofar as it purported to require certificated teachers already employed to register, thereby depriving them of vested rights without clear statutory authority. However, Aberdeen Corporation was entitled to dismiss the pursuer as a matter of policy, provided the policy was not unreasonable, arbitrary, or adopted in bad faith.

Citation
[1973] ScotCS CSIH_2
Parties
Pursuer/respondent: John Strachan Malloch; First Named Defender: Aberdeen Corporation; Second Named Defender/reclaimer: Secretary of State for Scotland
Jurisdiction
Scotland
Judgment Date
01 June 1973
Procedural Posture
Civil / Appeal/reclaiming Motion
Outcome
Declarator granted in favour of pursuer regarding ultra vires amendment; declarator refused regarding dismissal based on policy; case continued for further hearing on interlocutor form.
Legal Topics
Ultra Vires, Vested Rights, Teacher Registration, Dismissal at Pleasure, Natural Justice
Administrative Law Education Law Employment Law Ultra Vires Vested Rights Teacher Registration Dismissal at Pleasure Natural Justice

Case Brief

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Parties

John Strachan Malloch

Pursuer/respondent

Aberdeen Corporation

First Named Defender

Secretary of State for Scotland

Second Named Defender/reclaimer

Procedural Posture

Civil / Appeal/reclaiming Motion

Legal Issues

  1. 1 Whether the 1967 amendment to the Schools (Scotland) Code was ultra vires in depriving certificated teachers of vested rights without compensation
  2. 2 Whether Aberdeen Corporation could lawfully dismiss a teacher for failure to register with the General Teaching Council for Scotland
  3. 3 Whether the Corporation's policy of not employing unregistered teachers was unreasonable or unlawful

Ratio Decidendi

The 1967 amendment to the Schools (Scotland) Code was ultra vires insofar as it purported to require certificated teachers already employed to register, thereby depriving them of vested rights without clear statutory authority. However, Aberdeen Corporation was entitled to dismiss the pursuer as a matter of policy, provided the policy was not unreasonable, arbitrary, or adopted in bad faith.

Court Disposition

Declarator granted in favour of pursuer regarding ultra vires amendment; declarator refused regarding dismissal based on policy; case continued for further hearing on interlocutor form.

Orders

  • Declarator that the 1967 amendment was ultra vires as applied to certificated teachers already employed.
  • Refusal of declarator that the Corporation could not dismiss the pursuer as a matter of policy.