Scottish Court of Session Decisions

Robert Thomas Norfor, C.A., Edinburgh, as secretary and treasurer of the Representative Church Council of the Episcopal Church in Scotland and others, pursuers, brought an action against the Education Authority for the County of Aberdeen, defenders, for declarator (1) that St John's Episcopal School, New Pitsligo, was at the date of the passing of the Education (Scotland) Act 1918 (8 and 9 Geo. V, cap. 48) on 21st November 1918 a voluntary school within the meaning of “the Education (Scotland) Act 1897” (60 and 61 Vict. cap. 62); (2) that the said school was transferred as and from 15th May 1919 to the defenders, in terms of the said Education (Scotland) Act 1918, by the trustees for behoof of the Congregation of St John's Church, New Pitsligo; (3) that at the date of the said transference the said school was a primary school providing a full primary school course of instruction together with a further supplementary course; and (4) that the defenders as education authority vested in the property, control, and management of the said school in virtue of the said transference and of the provisions of the said Education (Scotland) Act 1918 were bound in terms of the said Act to hold, maintain, and manage the said school for the space of ten years at least from and after the said 15th May 1919 as a primary public school providing a full primary and supplementary course of instruction, subject to the provisions of the said Education (Scotland) Act 1918, and to the defenders' curriculum for the time being applicable to courses of primary instruction in schools under their charge; and for interdict against the defenders holding, maintaining, and managing the said school at any time within the space of ten years from and after the said 15th May 1919 as a school for infants and junior pupils only,

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or otherwise than as a school providing a full primary course of instruction, subject to the provisions of the said Act according to the defenders' curriculum for the time being applicable to schools under their charge, and transferring, within the said space of ten years, pupils attending the said school at any stage of their primary or supplementary course to the Public School, New Pitsligo, or to any other school under the charge of the defenders.

The defenders pleaded, inter alia—“3. The question raised by the pursuers being a question as to the due fulfilment or observance of a provision of sub-section (3) of section 18 of the Education (Scotland) Act 1918 the same falls to be decided finally by the Scottish Education Department, and the action is therefore incompetent and ought to be dismissed.”

On 9th January 1923 the Lord Ordinary ( Constable) pronounced an interlocutor in which he sustained the third plea-in-law for the defenders, and dismissed the action.

Opinion.—“This case raises a question of general importance with regard to the transfer of voluntary schools to the education authority under section 18 of the Education (Scotland) Act 1918. The question is whether after such a transfer the education authority are bound to maintain the same type of school, or are entitled so long as they maintain it as a public school to alter the course of instruction and the class of children for whom instruction is provided so as to co-ordinate the system of education in the district.

Section 18 of the Act of 1918 provides that at any time after the first election of education authorities under the Act it shall be lawful for the vested owners and trustees of any voluntary school to transfer it by sale, lease, or otherwise to the education authority, who shall be bound to accept its transfer on such terms as, failing agreement, may be determined by arbitration. Sub-section (3) provides that ‘any school so transferred shall be held, maintained, and managed as a public school by the education authority who shall be entitled to receive grants therefor as a public school and shall have in respect thereto the sole power of regulating the curriculum and of appointing teachers.’ To this provision are adjected three express conditions, viz.—( a) That the existing staff of teachers shall be taken over; ( b) that the religious belief and character of all teachers appointed to the staff shall be approved by representatives of the church or denominational body in whose interest the school has been conducted; and ( c) that facilities shall be provided for religious instruction in the school by a supervisor to be approved as aforesaid. Sub-section (4) provides that ‘any question which may arise as to the due fulfilment or observance of any provision or requirement of the preceding sub-section shall be referred to the Department whose decision shall be final.’ Sub-section (5) provides that after the expiry of two years from the passing of the Act no grant from the education fund shall be made to any school to which the section applies unless it shall have been transferred to the education authority. Sub-section (9) provides that if at any time after the expiry of ten years from the transfer of a school the education authority are of opinion that the school is no longer required or that the conditions prescribed in sub-section (3) ought no longer to apply thereto, it may with approval of the Department discontinue the school or maintain and manage it free of the said conditions.

Provision for the transfer of voluntary schools had already been made in previous statutes, section 38 of the Act of 1872 applying to voluntary schools generally, and section 29 of the Act of 1908 to secondary and intermediate schools. The distinctions between the old and new transfer provisions were (1) that in the former case the transfer was a voluntary act on both sides whereas in the latter it was compulsory—expressly compulsory on the education authority to accept the transfer and virtually compulsory on the existing owners and trustees to make it, because otherwise they would forfeit the grant from the education fund; (2) that in the former case the transfer was gratuitous whereas in the latter case it was on arbitration terms; and (3) that in the former case the transfer was unqualified whereas in the latter case it was subject to various conditions which have given rise to the present question.

The particular school which is now in question is St John's Episcopal School, New Pitsligo, Aberdeenshire, which was formerly vested in trustees for behoof of the congregation of St John's Episcopal Church, New Pitsligo, and formed one of many schools provided and conducted by the Episcopal Church in Scotland in pursuance of its educational activities. After the passing of the Act of 1918 the majority of these church schools were transferred to the education authorities, and among those so transferred was St John's School. The transfer was by way of sale, and the conveyance which was so far as appears unqualified in its terms operated from 15th May 1919. Prior to the transfer the school was carried on by the managers as a primary school providing a full primary course of instruction together with a supplementary course. After the transference the education authority continued to carry on the school on the old lines till 1921 when, taking advantage of the resignation of the headmaster, they resolved to make a change. The old public school and St John's School are situated within a comparatively short distance of each other, and in August 1921 the education authority resolved to run the schools in sequence, providing in St John's School for four classes only composed of infants and juniors and transferring the higher classes to the old public school, in which at the same time a new intermediate course was introduced.

In these circumstances the pursuers, who consist of the Representative Church Council and the former trustees of the school, with concurrence of the Central and Local Education Boards of the Church, have brought the present action against

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the education authority for the county of Aberdeen. They maintain that the actings of the defenders are illegal and ultra vires and in breach of their obligations under the Education Act 1918, and the leading conclusions of the action are to have it declared, inter alia, that the defenders are bound in terms of the Education Act 1918 to hold, maintain, and manage the school for the space of ten years at least from 15th May 1919 as a primary public school providing a full primary and supplementary course of instruction subject to the provisions of the Act and to the defenders' curriculum for the time being applicable to courses of primary instruction in schools under their charge, and to have the defenders interdicted from holding, maintaining, and managing the school at any time within the said period as a school for infants and junior pupils only or otherwise than as a school providing a full primary course of instruction.

The defenders plead in the first place that the pursuers have neither title nor interest to insist in the action. Except in so far as these pleas merely re-echo the question of statutory construction upon which the parties are at issue on the merits I think that both are bad. It appears to me that the pursuers have an undoubted interest to preserve not only a certain system of religious instruction in the transferred schools but also the status of these schools as secular educational institutions, if such preservation be the effect of the statutory conditions by which the transfers are regulated. Even on the assumption, which the defenders' counsel grudgingly conceded, that the interest of the Church was limited to securing appropriate religious instruction, it is obvious that that object would be materially affected by the type of school which the transferees continued to maintain.

The defenders' next plea is more serious. They plead that the action is excluded by section 18 (4) of the statute which requires any question which may arise as to the due fulfilment or observance of any provision or requirement of sub-section (3) to be referred to the Education Department. This plea which goes to the jurisdiction of the Court must be disposed of before the merits of the question at issue; but the pursuers maintain that the question raised is not one as to the due fulfilment or observance of a provision of sub-section (3). It is therefore necessary to consider exactly what the question at issue between the parties really is.

Sub-section (3) as already pointed out consists of one main obligation and three provisos. No question is raised as to the provisos but only as to the main obligation. The defenders maintain that their only obligation is to maintain a public school, and that it is not averred that they have failed to do so. The pursuers on the other hand maintain that the defenders' obligation is to maintain as a public school the particular school which is transferred, considered not as a mere building but as an educational establishment of a certain type and character, and that in the case of St John's School they have committed a breach of their obligation by converting it from a primary school into an infant or junior school. The result is that the question at issue between the parties is a question of the construction of the statutory obligation which is imposed upon the transferee.

Turning to section 18 (4) it is obvious that a dispute may arise as to the due fulfilment of the previous sub-section either because parties differ as to the meaning of a provision or requirement or because they differ as to whether a provision or requirement of admitted meaning has been fairly or reasonably complied with. In one case the dispute would be as to the measure of the obligation, in the other case as to the adequacy of the means adopted for its fulfilment. The question is whether the statutory clause of reference applies to both classes of dispute—in which case it would apply to the dispute in the present case—or whether it applies only to the latter class of dispute—in which case it would not.

The pursuers' counsel endeavoured to exclude the application of the statutory clause of reference on the special ground that the question at issue between them on the merits depends not only on subsection (3) but also on sub-section (9). I do not think that the argument is well founded. Sub-section (9) deals exclusively with the powers of the education authority after the expiry of ten years from the transfer. It may perhaps be legitimately appealed to as throwing a certain light upon the proper construction of sub-section (3), but the substantive provisions or requirements which must be observed by the education authority for the first ten years are wholly contained in sub-section (3).

There is no doubt that the language of sub-section (4) is capable of including both classes of dispute above referred to. In favour of the more limited construction it may be said that the meaning of the obligation and the means adopted for its fulfilment are different things and that the words ‘fulfilment’ and ‘observance’ in the section point more directly at the latter than at the former. If the Legislature had meant to include questions of construction it might easily have said so; and reference might be made to the conveyancing practice with regard to ancillary clauses of reference in contracts in which it is usual if not invariable to refer expressly both to the construction and performance of the contract. It may also be said that while the Department is a peculiarly appropriate tribunal to determine the administrative question whether the statutory requirements have been reasonably complied with, it is not so obviously appropriate to determine the legal question of statutory construction.

On the other hand in favour of the broader construction it may be said that prima facie the language of the statutory clause of reference includes both classes of dispute, because the determination of what is due fulfilment cannot be reached without

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an interpretation of the provision or requirement to be fulfilled. In this view the detail adopted in conveyancing practice is superfluous and in any case cannot affect the construction of an Act of Parliament. It may also be said that while in theory the measure of the obligation may be distinguished from the adequacy of its fulfilment, it is very difficult to maintain the distinction when a practical question arises. It happens that in the present case the alterations made by the defenders have been very marked and have undoubtedly changed the character of the school. But if the alterations had been slighter the question arising would have been partly one of construction and partly one of reasonable compliance, and it would have been very difficult on the assumption that the construction of the obligation was for the Court and the adequacy of its fulfilment for the Department to distinguish between their respective functions. Even if not impossible the distinction would be obviously inconvenient to work out. The result of insisting on the distinction in the present case has been to compel the pursuers to peril their case upon a rigid rule of construction, but a tribunal exercising both powers might to the possible advantage of the pursuers give effect to a more elastic rule. In any case I think that a tribunal which has been selected as peculiarly appropriate to determine a dispute as to reasonable compliance is in the circumstances also the most appropriate to determine a dispute which involves construction of the rule to be complied with. These considerations would not be sufficient to warrant the application of the statutory clause to a question which its language did not prima facie include, but they seem to me to be a good answer to the exclusion of the clause from a question which I think its language does prima facie include.

There is little guidance on the question to be obtained from authority. The well-settled distinction explained by Lord Dunedin in Sanderson & Son v. Armour & Company ( 1922 SC (HL) 117) between general clauses of reference in a contract and clauses which only apply during the currency of the contract is not in point; and the circumstances of Cowdray v Ferries ( 1919 S.C. (H.L.) 27), to which I was also referred, were very different from the present. But both cases illustrate the general rule that clauses of arbitration whether statutory or contractual will be fairly interpreted and applied according to their terms.

Applying that rule in the present case, 1 think that I am bound to sustain the third plea-in-law for the defenders and dismiss the action.”

The pursuers reclaimed, and argued—It was for the Court and not for the Scottish Education Department to construe the meaning of the obligation to “maintain,” imposed by the Education (Scotland) Act 1918 (8 and 9 Geo. V, cap. 48), sec. 18, subsecs. (3) and (9). To “maintain” meant “to retain the character of.” There was no express exclusion of the jurisdiction of the Court. The question raised in the present case was with regard to the ascertainment, not the fulfilment of the statutory obligation, and the question as to the meaning of the obligation to maintain was not the class of question referred to in sec. 18, sub-sec (4). The language of sub-sec. (4) indicated that the questions therein referred to were questions of fact as to the due fulfilment of a known and disputed obligation. A question such as that which was raised in the present case was not in the contemplation of the Legislature at the time when the Act was passed, and a Government Department was an unsuitable tribunal to decide it. It was a question of law— Attorney-General v. West Riding of Yorkshire County Council, [1907] AC 29, per Lord Chancellor (Loreburn) at 35, Lord Davey at 38, and Lord Robertson at 41, and clear words of implication were necessary in order to exclude the jurisdiction of the Court where the question was a question of law—Maxwell, Interpretation of Statutes (6th ed.), p. 235; Martin v. Eccles Corporation, [1919] 1 Ch. 387, per Younger, J., at 405; West Suffolk County Council v. Olorenshaw, [1918] 2 K. B. 687, per Shearman, J., at 690; Gillow v. Durham County Council, [1913] AC 54; Wilford v. West Riding of Yorkshire County Council, [1908] 1 KB 685, per Channell, J., at 697 and 698. The case of Cowdray v. Ferries, 1919 S.C. (H.L.) 27, 56 S.L.R. 220; the Education (Scotland) Act 1918, sec. 18, sub-sec. (7); the Education (Scotland) Act 1872 (35 and 36 Vict. cap. 62), sec. 36; the Education Act 1902 (2 Edw. VII, cap. 42), sec. 7, were also referred to.

Argued for the respondents—The words of reference in sec. 18, sub-sec. (4), of the Education (Scotland) Act 1918 were, prima facie, apt to include the question raised in the present case. The words of the sub-sec. were universal, viz., “any question …. shall be referred.” The word “maintain” was not a new word—Education (Scotland) Act 1872, sec. 36. The mere fact that the question might be an important one was not enough to exclude the jurisdiction of the Department. Nor was it enough to exclude the jurisdiction of the Department that a question of law was involved.. The class of questions which the section referred to the Department for decision might include questions of law as well as questions of fact. The Department had implied power to determine the measure of the obligation, because an arbiter must explicate his own jurisdiction— Scott & Sons v. Del Sel, 1922 S.C. 592, 59 S.L.R. 446, per Lord Ormidale at 1922 S.C. 602, 59 S.L.R. 451; Sanderson & Son v. Armour & Company, 1922 SC (HL) 117, 59 S.L.R. 268, per Lord Dunedin at 1922 S.C. (H.L.) 126, 59 S.L.R. 272; Caledonian Railway Company v. Clyde Shipping Company, 1917 S.C. 107, 54 S.L.R. 105, per Lord President (Strathclyde) at 1917 S.C. 113 and 114, 54 S.L.R. 109, and Lord Skerrington at 1917 S.C. 115, 54 S.L.R. 110; North British Railway Company v. Lanarkshire and Dumbartonshire Railway Company, (1895) 23 R. 76, 33 S.L.R. 56, per Lord President (Robertson) at 23 R. 79, 33 S.L.R. 58; Midland Railway v. Loseby & Carnley, [1899] AC 133, per Lord Macnaghten at 137, and Lord Shand at 139 and 140. The English

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law of arbitration was different from the Scottish law of arbitration—Arbitration Act 1889 (52 and 53 Vict. cap, 49), secs. 4, 10, and ( especially) 19. Not much assistance was to be obtained as to the terms of reference from decisions arising out of the construction of other Acts. Wilford v. West Riding of Yorkshire County Council, cit., per Channell, J., at 698, 699, and 700 was also referred to.