Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 120
P555/12	OPINION OF LORD BRODIE in the Petition of THE EDUCATIONAL INSTITUTE FOR SCOTLAND Petitioner; for Judicial Review of a purported decision of Glasgow City Council taken in or around March 2012 concerning the appointment of heads of nursery schools ­­­­­­­­­­­­­­­­­________________

Petitioners: Clancy QC et Mackenzie; Balfour + Manson LLP

Respondent: Moynihan QC et Marney; Executive Director, Corporate Services, Glasgow City Council

18 July 2012

Introduction

[1] The petitioners in this petition for judicial review are the Educational Institute of Scotland, a teaching union constituted by Royal Charter and having their headquarters at 46 Moray Place, Edinburgh. The respondents are Glasgow City Council, a local authority constituted in terms of section 2 of the Local Government etc (Scotland) Act 1994 having their headquarters at City Chambers, Glasgow. The respondents are accordingly an education authority in terms of the Education (Scotland) Act 1980, as amended.

[2] In terms of section 1 (1) of the 1980 Act an education authority has a duty to secure that there is made for its area adequate and efficient provision of school education and further education. This duty extends not only to children of school age but also to children between the ages of three and five for a minimum of 475 hours during the school year: 1980 Act section 1 (1B); Provision of School Education for Children under School Age (Prescribed Children) (Scotland) Order 2002, SSI/90 regulations 2 and 3. Moreover, an education authority has power in relation to pre-school children to secure for its area the provision of such school education, other than that which it is required to secure by section 1 (1) of the 1980 Act, as it thinks fit.

[3] An establishment in which the provision of school education is secured in relation to pre-school children may be described as a nursery school. According to the petition there are approximately 55 nursery schools under the management of the respondents, as well as a variety of other establishments in which provision is made for pre-school children. The expression "nursery schools" has been used in statute from at least the time of the enactment of the now repealed Education (Scotland) Act 1946, but is only indirectly defined. Section 135 of the 1980 Act provides that: "'nursery school' and 'nursery class' have the respective meanings assigned to them by section 1 (5) (a) (i) of this Act". Section 135 further provides that: "'school' means an institution for the provision of primary or secondary education or both primary and secondary education ...and includes a nursery school." The reference to "nursery school" in section 1 (5) (a) (i) of the 1980 Act is in the context of a definition of "school education". Thus:

"1. ... (5) In this Act -

(a) 'school education' means progressive education appropriate to the requirements of pupils, regard being had to the age, ability and aptitude of such pupils, and includes -

(i) activities in schools and classes (such schools and classes being in this Act called 'nursery schools' and 'nursery classes'), being activities of a kind suitable in the ordinary case for pupils who are under school age;

Until recently each of the nursery schools in the respondents' area has been managed by a head who has been a teacher registered with the General Teaching Council, albeit that the former statutory requirement that the head be a registered teacher with a special qualification to act as a principal teacher of a nursery school, as imposed by regulation 5 (2) of the Schools (Scotland) Code 1956, SI 1956/894, was removed by the Schools (Scotland) Code Amendment Regulations 2003, SSI 2003/75. Since 2006, when additional specialist nursery teachers were withdrawn, the only registered teacher employed in each of the respondents' nursery schools has been the head teacher.

[4] In the summer of 2011 the heads of Pikeman Nursery School and Bonnybroom Nursery School retired and the respondents filled the vacant posts with non-teachers. On 27 April 2012 the respondents advertised the vacant posts of head at the following nursery schools: Wellfield Nursery School, Sighthill Nursery School, Bellrock Nursery School, Penilee Nursery School, Craigbank Nursery School, Adelphi Nursery School, Anderson Street Nursery School, Cranstonhill Nursery School, Kelvin Park Early Years Centre and Wyndford Nursery School. The terms and conditions on which these positions were advertised are different to those which applied to the teachers previously employed as heads of these nursery schools and are different to those applicable to the head teachers of the respondents' other nursery schools. The pay scale is based on the respondents' pay scale rather than the nationally agreed Scottish Negotiating Committee for Teaching Staff in School Education ("SNCT") scales. There is a requirement to work throughout the year. There is no requirement that the holder of the post be a registered teacher.

[5] By this application the petitioners take issue with the legality of the respondents proceeding to appoint persons who are not registered teachers to the posts advertised on 27 April 2012 where, as the petitioners aver is the case in each of the relevant nursery schools, no other registered teacher is employed on the staff. In their averments the petitioners characterise the decision complained of as being to introduce a new policy whereby (a) the position of head of a nursery school could be held by individuals without teaching qualifications and who are not registered teachers and (b) that any teachers appointed to that position would be employed on different terms and conditions to individuals currently employed as head teachers of nursery schools who are employed on terms and conditions that are nationally agreed by the SNCT. In their Answers, the respondents identify the relevant decision as the decision by Mrs Maureen McKenna, their Director of Education, under delegated authority, to approve the "Person Specification" for the post of Head of Nursery or Family Learning Centre.

Procedure in the petition

[6] First orders were granted by Lord Glennie on 30 May 2012 when counsel for the respondents appeared and gave an undertaking on behalf of the respondents, until 22 June 2012 not to: (a) appoint any person who is not a registered teacher as head of a nursery school and (b) employ a teacher as head of a nursery school on terms and conditions inconsistent with the SNCT terms and conditions for head teachers. A first hearing was fixed for 21 June 2012. Answers were appointed to be lodged by 15 June 2012.

[7] The petition duly came before me for a first hearing on 21 June 2012. Mr Clancy QC appeared for the petitioners together with Mr Euan Mackenzie, Advocate. Mr Moynihan QC appeared for the respondents together with Mr Marney, Advocate. Answers had been lodged on behalf of the respondents. I allowed the adjustments that had been made to the petition. Two inventories of documentary productions had previously been lodged by the petitioners. A further inventory was received from the petitioners and one inventory from the respondents. In addition, Mr Clancy tendered five affidavits on behalf of the petitioners. These were of Ms Janette Devlin Belcher, Head Teacher of Whiteinch Nursery School; Mrs Gillian Maria Carlin-Kulwicki: Chairperson of the petitioners' Nursery Teachers Section (Glasgow); Ms Margaret Connor Dobie, retired Senior Education Officer; Mr Denis Brady, former Principal Officer for Early Years of the respondents; and Mr Hugh Donnelly, Secretary of the petitioners' Glasgow Local Association. Each of these affidavits was dated 21 June 2012. Mr Moynihan took no issue with the lodging of the affidavits or Mr Clancy's reference to them in the course of his submissions but he did not concede that their contents were necessarily accurate.

[8] I heard submissions from Mr Clancy and Mr Moynihan which continued over two days. On 22 June 2012, while reminding me of the urgency of the matter and the desirability of an early determination, Mr Moynihan renewed the undertaking which had been given before Lord Glennie on 30 May 2012 pending my determination of whether or not the petitioners were entitled to interdict.

Remedies

[9] The remedies moved for by Mr Clancy, on behalf of the petitioners, were:

"(1) reduction of the decision of the respondents dated in or around March 2012 to introduce a policy whereby (a) the position of head of a nursery school could be held by individuals without teaching qualifications and who are not registered teachers and (b) that any teachers appointed to that position would be employed on different terms and conditions than individuals currently employed as head teachers of nursery schools who are currently employed on SNCT terms and conditions;

(2) interdict against the respondents from (a) appointing any person who is not a registered teacher as head of Wellfield Nursery School, Sighthill Nursery School, Bellrock Nursery School, Penilee Nursery School, Craigbank Nursery School, Adelphi Nursery School, Anderson Street Nursery School, Cranstonhill Nursery School, Kelvin Park Early Years Centre or Wyndford Nursery School and (b) employing a teacher as head of these nursery schools on terms and conditions inconsistent with the SNCT terms and conditions for head teachers and for interim interdict."

Outline of the petitioners' grounds for judicial review

[10] On the petitioners' approach, as developed by Mr Clancy in submission under reference to the averments in the petition and the content of the affidavits, the opening of the post of head of a nursery school in their area to other than registered teachers signified what could only be understood as a major change of policy on the part of the respondents. As far as the nursery schools affected by the advertisement on 27 April 2012 ("the affected nursery schools") are concerned, the appointment of someone other than a registered teacher as head would have the result that no registered teacher would be employed in these schools. That would contravene the requirement to employ adequate numbers of teachers in schools under their management which is imposed by regulation 3 of the Requirements for Teachers (Scotland) Regulations 2005, SSI 2005/355.

[11] Given the requirement imposed by regulation 3 of the 2005 Regulations an establishment that employs no registered teachers cannot be regarded as a school. Thus, should someone other than a registered teacher be appointed as head of one or other of the affected nursery schools, then what had been a school would have been discontinued, as that expression falls to be understood in terms of the Schools (Consultation) (Scotland) Act 2010. The adoption of the policy by the respondents and then its application to the affected schools was therefore a closure proposal to which the requirements for consultation and the other key requirements imposed by section 1 of the 2010 Act would apply. The respondents have not carried out these requirements. Accordingly, the appointment of someone other than a registered teacher as head of one or other of the affected schools would be unlawful on that ground.

[12] The petitioners are party, together with the respondents and other teaching unions, to a collective bargaining agreement, the Framework Local Recognition and Procedure Agreement of March 2004 ("the Framework Agreement"). Paragraph 3 of the Framework Agreement provides that all agreements etc. of the SNCT shall be adopted as a base for negotiations under the procedures established by the Framework Agreement. Put shortly, the terms and conditions of employment negotiated by the SNCT provide the terms and conditions of employment for registered teachers employed by the respondents, including those employed as heads of nursery schools. As far as the petitioners have been able to ascertain, the duties of the persons to be appointed as heads of the affected schools will be the same as the duties of the registered teachers presently employed as heads of the other nursery schools in the respondents' area. The terms and conditions on which posts at the affected schools have been advertised are not the relevant SNCT terms and conditions. They are different. Thus, on the appointment of a registered teacher as head of one of the affected schools that registered teacher would be employed to discharge the same duties as other registered teachers employed by the respondents, but not on the relevant SNCT terms and conditions. On the appointment of someone who is not a registered teacher that person would be carrying out the duties of a registered teacher but not on the relevant SNCT terms and conditions. Either alternative would constitute a breach of the Framework Agreement.

[13] In an e-mail dated 12 March 2012 (6/38 of process), Mrs McKenna, the respondents' Director of Education, writing to Ms Janette Belcher, Head Teacher of Whiteinch Nursery School, included the following sentences: "The position with regard to the heads' posts is an issue which has been live with us for a while and we have been exploring ways in which we could resolve it. The issue is an equal pay one." The petitioners' position was that they did not know when, why or by whom the decision of which they complain was made, but the reference by the respondents' Director of Education to equal pay was a misdirection that pointed to the decision having been irrational. It was not open to the respondents to justify a decision as a means of managing inequality where it was the respondents' policy which had unnecessarily created the inequality in the first place. Underlying this was a failure on the part of the respondents to distinguish between nursery schools, on the one hand, and other establishments making provision for pre-school children, on the other.

[14] Given that the opening of the post of head of a nursery school in their area to other than registered teachers constituted the adoption of a new policy or the variation of an existing policy, in terms of paragraph (2) of the respondents' Scheme of Delegated Functions of 16 February 2012 (6/61 of process) ("the Scheme") it was a matter which was excluded from delegation to a committee, let alone to an official. Accordingly if, as is averred in Answer 2, the relevant decision was taken by the respondents' Director of Education, then she had no power to do so.

[15] Finally, in all the circumstances, the petitioners had had a reasonable expectation to be adequately consulted on the proposal to appoint someone other than a registered teacher as head of the affected nursery schools. There had been no such consultation but the respondents had nevertheless gone ahead and adopted the new policy. In the absence of proper consultation this was unlawful.

[16] I shall discuss the submissions of parties on these six grounds for review more fully below, but first I would note the salient facts relied on by Mr Clancy in presenting his submission in support of these grounds with a view to putting his argument in context. In part what I describe as salient facts reflect the averments in the petition. In part they reflect what appears in the affidavits lodged on 21 June 2012. Mr Clancy invited me to make findings in fact on the basis of the affidavits in that the affidavits had not been disputed by Mr Moynihan and that no contradictory material had been put before the court on behalf of the respondents. I am not prepared to do that. It would appear to me to be going too far, too fast. Apart from anything else, while Mr Clancy referred to particular paragraphs in particular affidavits, he did not identify specifically what findings he wished me to make. The affidavits are relatively extensive. They contain expressions of subjective opinion as well as objectively ascertainable facts. It is not always clear to the uninstructed reader of the affidavits as to what precisely is meant. No order has been made requiring them to be lodged with a view to substantiating a matter in issue, whether in terms of RCS 58.9 (2) (b) (vi) or otherwise. Importantly, Mr Moynihan stressed that he had not said that he did not challenge them.

Salient facts relied on by the petitioners

[17] Mr Clancy emphasised the distinction to be drawn as between the 55 nursery schools managed by the respondents, and the other establishments managed by the respondents in which provision is made for pre-school children (of which there were some 67 in number). These other establishments have a variety of names but Mr Clancy described them as "nurseries". In the petition nursery schools are defined as follows (at paragraph 6):

"Nursery schools are stand-alone establishments (cf primary schools with nursery classes) and provide education to children aged 3 to 5. Nursery schools are managed by head teachers. Head teachers have teaching qualifications and require to be registered with the General Teaching Council ('GTC'). They are experienced in leading and developing the educational curriculum, currently the Curriculum for Excellence."

The petitioners' averments continue:

"The respondents' nursery schools were formerly largely staffed by teachers, but, as a result of decisions taken by the respondents a number of years ago are now, with the exception of the head teacher, largely staffed by individuals with care qualifications, namely Child Development Officers. The respondents also run a variety of nurseries for children aged between a few months old to five years of age. These nurseries are managed and staffed by Child Development Officers, who have no teaching qualifications or experience."

In his submissions Mr Clancy described a nursery school as a juristic entity which had certain identifying characteristics. It will be called a school by the respondents and all those having to do with it whether they were teachers, parents, or the brighter pupils. Typically, it will have been so identified for many years prior to the commencement of the 1980 Act. It will typically if not always have been staffed by at least one registered teacher. It will have had a registered teacher as head since before commencement of the 1980 Act. The age of its pupils will fall within the three to five year-old range in respect of which there is a statutory duty to provide school education. Typically it will operate only during school term-time (6 of the 55 nursery schools referred to are open throughout the whole year).

[18] Mr Clancy pointed to paragraph 6 of the affidavit of Mrs Carlin-Kulwicki and paragraphs 11 and 12 of Mr Donnelly's affidavit, for an explanation as to the distinction between a registered teacher and a Child Development Officer ("CDO"), both of whom might work in a nursery school. It was fundamentally a matter of initial qualification. A registered teacher must be a university graduate who has completed a post-graduate year either in a chosen subject or in primary education studies. As a consequence of this training a teacher will lead the curriculum, teach in context, model good practice, assess children and have a full understanding of both child development and the impact of the curriculum on the child. The role is similar to that of colleagues in primary schools and a registered teacher who teaches in a nursery school will be qualified to teach children from the earliest age up to age 12. In contrast, there are variable entry levels to CDO training. A CDO's training does not have a curricular focus. Its emphasis is on childcare and welfare. A CDO cannot teach in a primary school. CDOs deliver the curriculum designed by the teacher. CDOs are contracted to work a 35-hour week. Teachers are also contracted for 35 hours per week but historically have worked more flexibly. In his affidavit, Mr Donnelly refers to registered teacher heads of nursery schools as not being supernumerary by which I understand him to mean that they are counted in computing the adult to child ratio for a nursery school (stated in his affidavit to be 1:10) whereas the heads of other pre-school establishments are supernumerary when computing the 1:8 ratio referred to in his affidavit.

[19] Mrs Carlin-Kulwicki's affidavit includes a quotation from paragraph 2.6 of the SNCT Handbook which sets out the role of a head teacher. The position taken in Mrs Carlin-Kulwicki's affidavit is that the duties of a nursery school head teacher are the same as the duties of a primary or secondary school head teacher.

[20] At Answer 30 h) of the Answers the respondents aver:

"Paragraph 3 [of the 2005 Regulations] imposes a requirement to employ an adequate number of teachers, with appropriate professional skills and knowledge, in the schools under the management of an educational authority such as the respondents. The respondents meet that requirement by employing a team of teachers to work on a peripatetic basis across institutions providing 'school education' to children of pre-school age."

At paragraph 8 and following in her affidavit Mrs Carlin-Kulwicki addresses the question of the deployment of peripatetic teachers in the respondents' nursery schools. She describes peripatetic support as sporadic and piecemeal. Mrs Carlin-Kulwicki states the position as at 2010 as being that nursery teachers from the peripatetic team no longer work directly with children; engage in curricular planning; assess children or model good practice. From 2011 the team has been comprised of 20 teachers entitled "leaders of early learning" but, according to Mrs Carlin-Kulwicki, peripatetic input is not now received on a regular basis in the respondents' nursery schools. Mrs Carlin-Kulwicki summarises the extent to which each of the affected nursery schools has the benefit of the services of a peripatetic teacher at paragraph 17 of her affidavit. In statement 23 of the petition it is averred that the focus of the peripatetic team is on improving quality in partner centres (i.e. establishments where care is available from a private or voluntary sector provider). It is averred that the involvement of peripatetic teachers in partner centres is directed at evaluating documentation rather than teaching children. With the exception of four nursery schools where peripatetic teachers have been employed as acting head teacher, the team of peripatetic teachers visit the respondents' nursery schools rarely if at all. No peripatetic teachers have been in Pikeman or Bonnybroom Nursery Schools in the 2011/2012 academic session.

[21] It is the position of the petitioners that the respondents had not consulted with them over the appointments to the position of head of Pikeman and Bonnybroom Nursery Schools. On 18 November 2011 there was a meeting attended by Mr Donnelly and the respondents' Assistant Director of Education, Mr Ian Robertson, to discuss a number of matters including the various forms of provision for pre-school children. From what was said, Mr Donnelly understood that it was the intention of the respondents to replace nursery school head teachers as they retired with persons who were not registered teachers, it being the view of the respondents that there was no legal obstacle to so doing. At the meeting Mr Donnelly was given a note (6/21 of process) which was in the following terms:

"HEAD OF EARLY YEARS

As part of the proposed service reforms within the early years sector, to support progression towards a clearer, more equitable structure, the following position will be adopted in relation to the future recruitment of Heads of Early Years:

·       All new Heads of Early Years will be recruited on Glasgow City Council's pay and grading structure;

·       The grade for all posts will be Grade 8 ...

·       The full salary will be payable for 52 week contracts and pro-rata for term-time appointments;

·       All prospective candidates will meet the criteria for registration with the Scottish Social Services Council as Manager/Lead Practitioner within Day-care of Children Services category or hold current registration with the General Teaching Council;

·       Teachers who are members of the Teachers Superannuation Scheme would be eligible to remain as members on appointment as Head of Early Years"

[22] Paragraph 7 of the Framework Agreement provides that negotiation between the management side and the joint union side will be conducted within a committee known as the Glasgow City Council [Local] Joint Negotiating Committee for Teaching Staff ("the Glasgow LNCT"). Some of the business of the Glasgow LNCT is taken forward in a smaller, less formal group known as the Joint Teachers Consultative Forum ("the JTCF"). Other matters are discussed within the JTCF, including positive industrial relations, education policy and future possible LNCT agreements.

[23] At a meeting of the JTCF on 30 January 2012 the respondents distributed a paper entitled Early Years Review (6/2 of process) with the information that the paper would be more widely distributed and a request for a speedy response. As appears from statement 11 in the petition, Early Years Review is introduced by paragraph 1.1 which is in the following terms:

"1.1 During 2010-11, a review of the early years provision took place. Two seconded heads visited every early years centre to gather views on what worked well and what we needed to do better. An intern worked over the summer gathering and analysing data on the service... This paper provides a high level summary of the findings..."

Members of the petitioners had assisted in the preparation of Early Years Review but in the capacity of members of staff of the respondents rather than as representatives of the petitioners. Part 6 of Early Years Review is entitled "Next steps". It includes the following paragraphs:

"6.3 Given the fact that all centres are delivering the same curriculum and are reviewed and regulated to the same standards, then one role profile will be in place for heads regardless of whether the service is term-time, school hours or 50 week. See Appendix 2.

...

6.8 We will review the provision across the city and consult with stakeholders on the nomenclature to move to a position which provides greater clarity for service users. For example, all provision could be called a nursery or a family learning centre with clear definitions of what service users can expect within each."

Appendix 2 contained a "Person Specification" for the Head of Nursery or Family Learning Centre.

[24] As I have already indicated, it is averred by the respondents, at Answer 2, that the decision to approve the "Person Specification" for the Head of Nursery or Family Learning Centre, as contained in Appendix 2 of Early Years Review, was taken by Mrs Maureen McKenna, the respondents' Director of Education, in March 2012, under authority delegated to her.

[25] On 27 April 2012 the respondents advertised the vacant positions of head at the affected nursery schools. One of the affected nursery schools has the title of an Early Years Centre but each of the others has all the identifying features attributed by Mr Clancy to what he described as the juristic entity which was a nursery school.

The grounds for judicial review: submissions and discussion

[26] I turn now to consider the submissions of parties in relation to the six grounds for judicial review advanced on behalf of the petitioners.

(1) Illegality by virtue of contravention of regulation 3 of the 2005 Regulations

[27] Regulation 3 of the Requirements for Teachers (Scotland) Regulations 2005, SSI 2005/355 provides:

"Every education authority shall employ adequate numbers of teachers in the schools under their management, with the appropriate skills and knowledge necessary to enable those teachers to undertake the teaching duties allocated to them."

Regulation 4 (1) of the Regulations provides:

"Every education authority shall, in discharging their functions under section 1 of the 1980 Act ...employ only a registered teacher..."

[28] While accepting that there was no statutory requirement for the head of a nursery school to be a registered teacher, Mr Clancy submitted that it was clear from the terms of regulation 3 of the 2005 Regulations, read with regulation 4, that an "adequate" number of registered teachers had to be employed in every nursery school. While it might be for the education authority to determine what was adequate, if a school had no teachers whatsoever then the statutory requirement was not being complied with; zero could not be an adequate number. Given the absence of anyone else qualified to carry out teaching duties, unless a registered teacher was appointed as head of each of the affected nursery schools, the respondents would be in breach of their statutory duty.

[29] On behalf of the respondents, Mr Moynihan took no issue with the proposition that regulation 3 of the 2005 Regulations imposes a requirement on an education authority, such as the respondents, to employ an adequate number of teachers, with appropriate professional skills and knowledge, in the schools under their management. That was effectively admitted in Answer 30 h). However, that did not have the result that the appointment of a non-teacher to the position of head of a nursery school or a decision which opened up the possibility of such an appointment was unlawful. There was an outstanding question as to precisely what was the role of the teacher in nursery school education, having regard to regulation 3, but this was a question which the respondents were continuing to address in a working group led by Mr Gerard McKernan (mentioned in Mrs Carlin-Kulwicki's affidavit). Insofar as it focused on a different question, the creation of a new post, which was entirely lawful, the petition should fail because no wrongful act was averred: Murdoch v Murdoch 1973 SLT (Notes) 13.

[30] Mr Moynihan developed his response to Mr Clancy's argument on statutory illegality under reference to five topics, four which I took to be more germane to what I have identified as Mr Clancy's first ground of review, while the fifth related to what I have identified as Mr Clancy's second ground of review. The first four topics were the (1) the legal requirement for the head of a nursery school to be a teacher, (2) a nursery school as a juristic entity, (3) what does the relevant legislation mean by "school education", and (4) what precisely is the requirement imposed by regulation 3 of the 2005 Regulations.

[31] As to the first topic, from the date of the revocation of regulation 5 (2) of the Schools (Scotland) Code by the 2003 Regulations there has been no requirement that the head of a nursery school be a registered teacher and with that revocation all mention of a head teacher of a nursery school was removed from the scheme of statutory regulation. The 2003 Regulations also revoked the requirement, previously imposed by regulation 23 of the Code to employ nursery nurses or helpers in a proportion of one such person for every 20 pupils. The 2005 Regulations can be seen as introducing a more flexible requirement of "adequate numbers of teachers in... schools". Mr Moynihan emphasised that regulation 3 referred to "schools" in the plural. The requirement therefore relates to all the schools under the management of an education authority not to each and every school taken individually. Only teachers could discharge teaching duties but regulation 3 of the 2005 Regulations did not require a teacher to be a full-time member of staff. As to the second of Mr Moynihan's topics, while it was accepted that there was a role to be played by the establishments which were called nursery schools, nothing turned on a particular establishment being one of the 55 nursery schools identified by Mr Clancy as opposed to it being one of the 67 other establishments managed by the respondents for pre-school children (the "nurseries" referred to by Mr Clancy). As far as the statutory duty to provide a minimum of 475 hours of school education was concerned, that could be provided in a nursery school or in one of the other establishments. As to the third topic, "school education" was defined by section 1 (5) (a) of the 1980 Act as "progressive education appropriate to the requirements of pupils". Thus, the core duty was the provision of progressive education irrespective of the sort of establishment in which it might be provided. That is illustrated by the terms of section 33 (3) of the Standards in Scotland's Schools etc, Act 2000 where, for the purposes of the duty on education authorities in respect of children under school age, school education may be provided (a) in a nursery school; (b) in a nursery class in a school; or (c) in pursuance of arrangements made in section 35 of the 2000 Act, in some other establishment. Section 35 allows education authorities to enter into arrangements for the provision of school education with other persons (the partner centres referred to by Mrs Carlin-Kulwicki in her affidavit are examples of establishments conducted in terms of arrangements under section 35). Similarly the 2002 Order, which specified the 475 hours per year in respect of children aged between 3 and 5, is concerned with the provision of school education in the sense of progressive education and not with the facilities where that education might be provided. Turning to his fourth topic, Mr Moynihan referred to the Scottish Government Guidance on Pre-School Teacher Deployment dated 19 May 2009 (6/57 of process) ("the Guidance") which had been issued in terms of the power conferred on Scottish Ministers by section 34 of the 2000 Act to give guidance to education authorities as respects the discharge by authorities of, inter alia, their functions under the 1980 Act in relation to the provision of school education for pre-school children. The language in which this guidance was couched and the policy objectives set out in the guidance were instructive as to what is to be understood by "adequate" numbers of teachers. The Guidance uses the expression "pre-school centres" to describe establishments where pre-school education took place, as well as "schools", "nurseries" and "early years settings". The Guidance explains:

"... the Scottish Government has committed, in its Concordat with local government to:

Improving the learning experience for children and young people by ... improving early years provision with access to a teacher for every pre-school child.

...

High quality educational experiences across all the learning stages are essential in order to give children the best possible start. The focus is on improving experiences and outcomes for young children, in line with the Early Level of a Curriculum for Excellence. The deployment of teachers in early years settings, in ways which make the best use of their particular skills, has a key part to play in the provision of high-quality pre-school provision and the achievement of the National Indicator on pre-school.

This document aims to provide information for providers of pre-school on the key issues to consider when implementing the commitment to deliver access to a teacher for all pre-school children.

...

The commitment to access to a teacher for all pre-school children is part of a wider Scottish Government commitment to developing the children's services workforce. The other key elements are:

The introduction of the SCQF Level 9 qualification in Childhood Practice. Managers of pre-school and childcare centres will be required to hold, or be working towards, such a qualification by 2011 if they do not already hold a teaching or other qualification that meets registration requirements.

...

The research evidence from studies undertaken in pre-school settings is not conclusive on the question of how much of a teacher's time is required to improve children's outcomes. There would, therefore be no basis for setting a minimum threshold for what counts as access in terms of [full-time equivalent].

In terms of the Scottish Government and COSLA's commitment, access to a teacher can be considered either as teacher involvement in a specific centre on a full/part time basis or sustained peripatetic support that contributes positively to the learning experience for children. Occasional or ad-hoc support from a teacher is unlikely to deliver this and will be counted separately in measurement of progress via the annual Pre-School and Childcare census.

...

The introduction of degree-level qualifications in Childhood Practice will mean that there will be a mix of teachers and other graduate-level staff in pre-school settings. It will, therefore, be important to be clear on the respective roles of each, with a focus on deploying teachers in ways which make use of their particular skills. These roles may vary and depend on whether the teacher is full time in a centre or peripatetic.

Where a teacher is full time, they should have a role leading practice. Where peripatetic, their role is more likely to be in enriching the learning experience alongside staff in the centre. Centre managers must retain overall responsibility for the learning experience in their centre.

...

Local authorities are responsible for taking decisions on teacher deployment in their area. Deployment of teachers on a full-time basis to centres continues to have a strong role to play in delivering positive outcomes for children. However, local circumstances will vary and it may not be possible for teachers to be deployed on a full-time basis in every pre-school centre in the short or medium term. Where this is the case, alternative models of teacher support may be adopted, such as a part-time or peripatetic teacher model.

...

The Concordat commitment is to move towards providing access to a teacher as quickly as possible. Progress may vary across authorities and across different types of centre in the short and medium term but overall the goal must be to provide sustained access to a teacher for every pre-school child."

Mr Moynihan took the following points from the terms of the Guidance: the name used to describe the establishment or centre in which provision was made for school education was irrelevant; determining what was an adequate number of teachers in an education authority's schools was a matter for the discretion of that education authority; there was no need for a teacher to be the head of any establishment; there was no minimum number of hours for which a teacher had to be engaged in any one centre; provision of school education can be made by a workforce with a combination of qualifications; teacher input can be provided on a peripatetic basis; and adequacy of numbers is dependent on a consideration of the whole circumstances as they affect each nursery school, with the result that the court is not in a position to give a definitive answer to the question posed by the petitioners' submissions in support of the first ground of review.

[32] For the purposes of considering the parties' respective submissions, I accept that it is meaningful to refer to certain establishments managed by the respondents as "nursery schools". I accept that there are some 55 of them in the respondents' area and that the 10 establishments which I have referred to as the "affected nursery schools" fall within that group. I accept that school education is provided within these nursery schools and that they are "schools" in terms of section 135 of the 1980 Act. What I do not accept is that a nursery school is, to use Mr Clancy's perfectly intelligible expression, a juristic entity. Nursery schools are mentioned in statute. They are not however accorded any particular status. They are not the subject of any special rights, obligations, liberties or privileges. They are simply establishments or places where progressive education is provided for pupils who are under school age. Consequent upon my view on that matter I do not accept that there is any necessary legal distinction to be made as between the establishments described by the petitioners as nursery schools and the establishments described by the petitioners as "nurseries". That, despite the emphasis that Mr Clancy gave to the special status of a nursery school, is not fatal to his argument in support of this ground of review. It may beg the question as to what precise function the petitioners would say is being discharged by the respondents in nurseries, particularly in respect of children between the age of three and five, but if the petitioners are correct in their contention that the result of implementing the proposal complained of would be that the affected nursery schools will be conducted unlawfully, that would still be the case whether or not there are nurseries which are also are being conducted unlawfully and have been so conducted for some years. The apprehended illegality which Mr Clancy complains of is the purported provision of 475 hours of progressive education in a nursery school where there is no registered teacher involvement whatsoever. He does not complain about what goes on in nurseries and I was given very little in the way of indication as to what does go on in nurseries beyond the respondents averments at Answer 30 g) that all establishments under their management, notwithstanding the name given to them, deliver the same curriculum and are reviewed and regulated to the same standards of care and education, all provide school education. I shall leave consideration of nurseries aside and, following Mr Clancy, restrict myself to the affected nursery schools.

[33] Mr Clancy accepted that since 2003 there has been no requirement that the head of a nursery school be a registered teacher. Equally, Mr Moynihan accepted that the involvement of registered teachers was a necessary component in the provision of school education. It would seem to follow that where there is no teacher involvement whatsoever then there can be no school education. The key provision which ties together the provision of school education and the employment of teachers is regulation 3 of the 2005 Regulations. What an education authority does (and, I would suggest, all that an education authority can do) is to secure the provision of school education and further education. Further education is not a matter of present concern. Regulation 3 states that every education authority shall employ adequate numbers of teachers in the schools under their management. That can only be for the purpose of securing the provision of school education and I would see the corollary of that to be that unless teachers are employed, the provision of school education cannot be secured. Regulation 3 goes on to state that these teachers must have the appropriate skills and knowledge necessary to enable them to undertake the teaching duties allocated to them. It may be that "teaching" has a more restricted meaning than "school education" and it may be that "teaching duties" are not the only duties incumbent on an employed registered teacher. Be that as it may, I do not find anything in the latter part of regulation 3 to contradict the view that statute requires the employment of teachers in order to secure the provision of school education and that this requirement applies to children of pre-school age. Accordingly, if I were to be satisfied that the inevitable consequence of the proposal of which the petitioners complain would be that the respondents would be purporting to provide school education in the affected nursery schools whereas there would be no teacher involvement whatsoever, then I would see there to be a case for granting the remedies sought. Statute does not, however, indicate where or in what manner teachers are to be employed or what, if any, teaching duties should be allocated to them. Subject to the standards prescribed in terms of section 2 of the 1980 Act and the guidance provided by the Scottish Ministers (in relation to pre-school children) in terms of section 34 of the 2000 Act, I would take these matters to be for the judgement of education authorities. As was accepted in terms by Mr Clancy, the decision as to what are "adequate numbers of teachers in the schools under their management" is clearly a matter for the discretion of education authorities, having regard, as Mr Moynihan emphasised, to the whole circumstances of each school. There is scope to utilise the services of peripatetic teachers. It therefore does not appear to me that simply because someone who is not a registered teacher is employed as head of one or other of the affected nursery schools and no other registered teacher is employed in that particular school, that the provisions of regulation 3 have been contravened. I would observe that it is not averred in the petition precisely what were the teaching duties of the former heads of the affected nursery schools. It may be implicit that where a registered teacher is the head, then the activities of the pupils will conform to a model of progressive education by virtue of the head's planning and direction of the curriculum, but I do not find that stated expressly. Certainly, I do not understand that it is the petitioners' position that the appointment of a registered teacher as a head of a nursery school will mean that that registered teacher will necessarily engage in the direct face-to-face teaching of pupils. I can see that a head might do that, but it is not part of the petitioners' case that a head necessarily will be in front of a class on any sort of regular basis. While I accept the force of Mr Clancy's observation that it is dangerous to look at a few selected passages in isolation, it seems to me that the terms of the Guidance provided by the Scottish Ministers are instructive as to what might constitute "adequate numbers of teachers" for children under school age. The Guidance recognises that teachers may not be deployed full-time and that they may be peripatetic. It is accepted that it may not be possible for teachers to be deployed on a full-time basis in every pre-school centre in the short or medium term, albeit that there is a commitment on the part of the Scottish Ministers to move towards providing pre-school children with access to a teacher as quickly as possible. Just what is meant by "access" to a teacher is not entirely clear but the language used by the Scottish Ministers is inconsistent with the notion that anything less than one full-time registered teacher in each nursery school would result in a breach of the law.

[34] Putting the matter slightly differently, I accept that the involvement of registered teachers in school education of children under school age over all of an education authority's nursery schools might become so diluted that a situation would arise where the education authority was in breach of its duties under regulation 3 but that is not the case that the petitioners are offering to make. Their case depends on the proposition that, irrespective of what judgement may be made by the education authority, every nursery school (although apparently not every nursery) must as a matter of law have a full-time registered teacher. I consider that proposition to be unsound. There has not been any such requirement since 2003. This ground of review cannot succeed.

(2) Illegality by virtue of contravention of the 2010 Act

[35] As is averred in the petition, the 2010 Act sets out a statutory consultation procedure that must be followed "where, in relation to any school, an education authority has formulated a relevant proposal". Before proceeding to implement a relevant proposal an education authority must take certain steps that are set out in the Act. The authority must: prepare an educational benefits statement, prepare and publish a proposal paper, give notice of the proposal to the relevant consultees and invite representations, hold a public meeting, involve Her Majesty's Inspectors [of Education], review the proposal and prepare a consultation report. Section 2 (1) of the Act provides that a "relevant proposal" is "any proposal specified in paragraphs 1 to 10 of schedule 1 [to the Act]" and a "closure proposal" is a proposal specified in paragraph 1 of that schedule. Among the proposals specified in paragraph 1 is a "proposal to permanently - (a) discontinue a school, or (b) discontinue ...all the nursery classes in a school ..."

[36] At statement 30 of the petition the petitioners aver that the decision complained of has the effect that a nursery school may no longer employ any teachers in the school with the result that the school will cease to be a school and that that amounts to a school closure proposal which would trigger the 2010 Act consultation procedures. Supporting these averments, Mr Clancy reminded me of the terms of regulation 3 of the 2005 Regulations and sections 1 (5) (a) (i) and 135 of the 1980 Act; referred me to the affidavit of Mrs Carlin-Kulwicki at paragraph 17, that of Mr Brady at paragraphs 4 to 12 and that of Ms Dobie at paragraphs 9 to 11; and succinctly submitted that with no registered teacher employed in an establishment no progressive education could be provided there and therefore no "activities of a kind suitable in the ordinary case for pupils who are under school age" and therefore no school education, with the result that the establishment could not be a school. Where that establishment had been a school, as was the case with the affected nursery schools, then a school had effectively been closed, hence Mr Clancy's characterisation of the decision complained of as a proposal to close or, to use the language of paragraph 1 (1) of the 2010 Act, to permanently discontinue a school.

[37] Mr Moynihan's response was equally succinct. Mr Clancy had accepted that there was no necessity for the head of what was described as a nursery school to be a registered teacher. Once it was accepted, as it must be, that minimum teacher deployment over all the schools under its management was a matter for the judgement of the education authority as to what numbers were adequate, it could not be said that simply because a nursery school did not have a full-time teacher on the staff, perhaps even for as long as an academic year, that that school had been "permanently" discontinued.

[38] Essentially for the reasons that I have discussed when considering the petitioners' first ground of review, I agree with Mr Moynihan that the petitioners' averments do not instruct a case of the decision complained of amounting to a proposal to permanently discontinue a school.

(3) Breach of the Framework Agreement

[39] The Framework Agreement entered into by the respondents, petitioners and other teaching unions provides, inter alia:

"2. [The respondents] and the recognised unions jointly affirm their commitment to the maintenance of good industrial relations and accept that this ...Agreement ...will be binding on the signatory parties.

3. All agreements, orders, settlements and determinations of the [SNCT] dealing with ...appointment procedures, particulars of employment ...promotion procedures, staff development arrangements, specific duties and job remits, arrangements for school based consultation ...other allowances, working time arrangements shall be adopted as the base for negotiations under the procedures established by this ...Agreement.

4. The purpose of this ...Agreement is to establish bargaining machinery and a negotiating procedure between the [respondents] and the signatory unions whereby relevant conditions of service can be determined for all teaching staff ...

7. Negotiations between the [management side and the joint union side] shall be conducted within a committee known as ...the Glasgow LNCT

...

15. In addition to the principal function of constituting a forum for the negotiation of relevant conditions of service the functions of [the Glasgow LNCT] shall include consultation on other relevant matters

..."

[40] At statement 32 of the petition it is averred that the decision complained of concerns the terms and conditions of head teachers at nursery schools but that the respondents did not use the SCNT agreement as the base for negotiations in respect of the recently advertised posts. Implicit in these averments is the assertion that the respondents are in breach of the Framework Agreement, although the precise nature of the breach is not very clearly spelled out. In making his submissions Mr Clancy explained this ground of review as follows. He accepted, as was averred in answer by the respondents, that the posts which had been advertised were not posts for teachers or head teachers, and he accepted that neither the Framework Agreement nor the Glasgow LNCT were concerned with the terms and conditions of employment of non-teachers. However, he submitted that in the event of either a registered teacher or someone who was not a registered teacher being appointed as head of any of the affected nursery schools, there would be a breach of the Framework Agreement in that either a registered teacher would be employed on terms which were not based on SNCT agreements, orders and settlements, or someone who was not a registered teacher would be employed to do the job of a registered teacher. Mr Clancy recognised that the advertisements for the post of head of one of the affected nursery schools did not mention teaching duties but if the respondents were suggesting that the responsibilities associated with the recently advertised posts were materially different from the responsibilities of those heads currently employed at the respondents' other nursery schools then it was for the respondents to explain this. The stark reality was that it was proposed to replace the registered teachers who had been in post with non-teachers to whom the respondents will point as the persons discharging the statutory duty to provide school education for children between the ages of three and five. What was proposed was no more than a device for re-labelling a job.

[41] Mr Moynihan confirmed that he did not take any point that might otherwise be available to him in the context of an application for judicial review arising out of the fact that this ground of review was essentially based on an allegation of breach of the contract between the parties constituted by what was a collective bargaining agreement. There was, however, no breach. Mr Clancy had accepted that the new post of head of early years was not a teaching post. That was so and it did not have teaching duties associated with it. The Glasgow LNCT did not extend to non-teachers and therefore was not engaged by the respondents' proposal. To the extent that the petitioners were relying on an obligation on the respondents under the Framework Agreement to consult, Mr Moynihan relied on what had been said by Arden LJ when giving the judgment of the Court of Appeal in R (on the application of Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2012] EWCA Civ 472 at para 104: "For a legitimate expectation to arise in public law, a public body must make a clear and unequivocal representation." Here the petitioners cannot point to such a clear and unequivocal representation that implementation of the proposal to appoint non-teacher heads of the affected nursery schools would be subject to any particular consultation process. Mr Clancy had referred to the proposal as a device for re-labelling a job. This was not so. As appeared from paragraph 6.3 of Early Years Review, all early years' centres, irrespective as to whether they were described as nursery schools or not, were delivering the same curriculum and were reviewed and regulated to the same standards. Thus "one role profile will be in place for heads regardless of whether the service is term-time, school hours or 50 weeks".

[42] I would see the short point here as being that the new post of Head of Early Years is not on the face of it a teaching post and it is not a post covered by the Framework Agreement. A registered teacher might be appointed to the post but there can be no objection to a registered teacher taking employment with an education authority in other than a teaching capacity. This does not afford the petitioners a ground for review.

(4) Irrationality by virtue of misdirection in law: error as to "an equal pay issue"

[43] Mr Clancy reminded me that the explanation offered by the respondents' Director of Education for what he said was a change of policy in her e-mail of 12 March 2012 to Ms Janette Belcher was that "the issue is an equal pay one." The petitioners did not know why, by whom or when the decision complained of was made but it was Mr Clancy's submission that if it was the Director who made the decision and she did see it as a question of Equal Pay then she had misdirected herself and thus had acted irrationally. Clearly it was not a matter of Equal Pay as that expression was usually used in the context of employment law. However the overarching point was that it was not open to the respondents to justify a policy by reason of its addressing an inequality if it was the policy itself that had created the inequality. No logical basis had been put forward for what was a change in policy. Again, the underlying problem was a failure on the part of the respondents to distinguish between nursery schools and other establishments making provision for pre-school children.

[44] Mr Moynihan began by observing that this ground of review appeared to be based on one reference in one e-mail. What was said in the e-mail might be thought to be unremarkable in that one would assume that if posts were the same in the sense of requiring the same qualifications and involving the discharge of the same duties then they would be subject to the same terms and conditions of employment. It was averred by the respondents that the approach taken by them was logical and rational. It afforded them flexibility in providing a 52-week service and not one which was restricted to term times. It would have been irrational: (a) to have two different categories of employees (a Head Teacher and a Head of Nursery or Family Learning Centre) doing the same job; and (b) to have two different sets of terms and conditions applying to the same job. While not taking issue with the proposition that the respondents had to act rationally in the matter, Mr Moynihan noted that this was not a situation where the respondents were under a duty to give reasons for their decision and there were no reasons. In such circumstances, it was not legitimate to infer that the decision was necessarily irrational: Purdon v City of Glasgow District Licensing Board 1989 SLT 201 at 203. That may well have the result that it is difficult to mount an irrationality challenge to an administrative decision where there is no duty to give reasons: Ladbroke Racing (Strathclyde) Ltd v William Hill 1995 SLT 134 at 138. That in turn means that usually consideration of such a decision will begin and end with the question as to whether the decision was within the authority of the decision-maker. Mr Moynihan did not go the distance of maintaining that such decisions were never amenable to judicial review on the ground of irrationality. In Purdon, Lord Davidson had specifically recognised that they were, but irrationality, judged by the familiar standard set out in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 at 228 must be demonstrable from the available facts and circumstances. Absence of reasons where none need be given could never be sufficient to support the conclusion that a decision had been irrational.

[45] This ground of review is built on what I see as the very insubstantial basis of one loose expression extracted from one e-mail which has no particular status. Reading the e-mail, it is tolerably clear that Mrs McKenna is not referring to the question of Equal Pay in the technical sense of employment law. Rather, she is simply expressing the view that similar jobs should attract the same remuneration. That is a reasonable position. However, I see Mr Moynihan's analysis to be useful. The complaint is of irrationality; that is the absence of a tenable reason. Where there is a duty to give reasons and reasons are given they can be considered with a view to determining their adequacy and rationality or otherwise. Where there is a duty to give reasons and no reasons are given then it will be legitimate to infer that there were no good reasons for the decision in question. However, where there is no duty to give reasons one cannot infer that the decision was irrational simply because no reasons are given. Here there was no duty to give reasons and no formal reasons were given (albeit a rationale was offered in Answer 33). In the result there is no basis for the petitioners' assertion that the decision complained of was irrational.

(5) Absence of power to make relevant decision

[46] The petitioners' contention that the decision complained of fell outwith the powers delegated to the respondents' Director of Education was based on their construction of the respondents' Scheme of Delegated Functions of 16 February 2012 (6/61 of process) ("the Scheme").

[47] The Scheme begins with an Introduction as follows:

"The [respondents accept] the principle that decisions should be made at the lowest or most local level consistent with the nature of the issues involved. An important element in the practical implementation of this principle is an effective scheme of delegations encompassing all major levels of decision making below that of the Council itself, viz:

committees,

·       the Chief Executive,

·       Directors,

·       other officers

Functions have been delegated to committees by reference to the Terms of Reference of Committees subject to certain exceptions. This general delegation gives the committees sufficient powers to enable them to carry out these functions but reserving always to the Council such matters as major policy etc.

The proposed delegations are dealt with in three main sections:-

·       Delegations to Committees

·       Special Authority to the Lord Provost and Deputy Lord Provost

·       Delegation to officers

..."

There follows Section 1 - Delegations to Committees. After paragraph 1 (1) headed "General Delegations to Committees" there is paragraph 1 (2), "Exclusions from Delegations to Committees" which includes:

"There shall be excluded from the delegations to any committee the following:-

(a)   determining the objectives of the Council;

(b)  matters of new policy or variation of existing policy;

..."

Section 3 is Delegations to Officers. After certain qualifications of delegations, it includes:

"General

The following delegations are hereby made to the Chief Executive or any Executive Director and are exercisable also by Assistants.

...

4. To make changes to staffing structures, numbers and gradings in accordance with approved pay, grading and rewards arrangements, and (sic) subject to the approval of the Executive Director of Corporate Services and the Executive Director of Financial Services. Major departmental restructuring or staffing reviews must, however, be reported to the Executive Committee for approval.

..."

[48] Mr Clancy took his stand on the exclusion from the General Delegations to Committees, by virtue of paragraph 1 (2) (b), of matters of new policy or variation of existing policy. What was complained of here was a change of policy of such significance that it was reserved to the respondents. Mr Clancy emphasised the public interest in a decision which involved moving to a situation where there might be no teacher in a nursery school. It had an important historical dimension. Since 1956 nursery schools had always operated with teachers at the helm. As well as its impact on children and parents, it had an impact on the professionals, both registered teachers and CDOs. The respondents claimed to be intent on consultation, as appeared from Early Years Review. This pointed to the respondents being in the realms of new policy. The same conclusion was to be drawn from the respondents' Executive Committee minutes of 12 September 2008 (6/17 of process) where, in respect of the early childhood and extended services strategy 2008-13, the Committee instructed the Executive Director of Education and Social Work to engage in further consultation to develop the implementation strategy and to submit a detailed action plan and regular monitoring reports to the Education and Social Work Policy Development and Scrutiny Committee.

[49] Given that the opening of the position of head of a nursery school in their area to other than registered teachers constituted the adoption of a new policy or the variation of an existing policy, in terms of section 1 paragraph 1(2) of the Scheme the decision complained of was excluded from delegation to a committee, let alone an official. Accordingly if, as is averred in Answer 2, the relevant decision was taken by the respondents' Director of Education, she had no power to do so.

[50] Mr Moynihan's response began with the observation that the proposition that what had occurred was an important change in policy depended on the speculation that there would be no registered teacher available to each of the affected nursery schools and an incorrect application of regulation 3 of the 2005 Regulations through a failure to recognise that the requirement in the regulation related to "schools" in the plural, not to each individual school. The proposition left out of account that peripatetic teachers can meet the need. The word "policy" where it was found in paragraph 1 (2) (b) of the Scheme suggests something at quite a high level. The decision under attack was not in a higher echelon. The petitioners were simply wrong to assume that a teacher must hold the post of head and therefore to allow a non-teacher to be appointed to the post did not amount to a recent change of policy, rather it reflected what had been the law since 2003. Moreover, non-teachers had been in post as heads of Pikeman and Bonnybroom Nursery Schools since the summer of 2011. What was involved here came within the terms of paragraph 4 of the general delegations to officers in Section 3 of the Scheme.

[51] Agreeing with Mr Moynihan, I would see Mrs McKenna's decision as coming within the terms of paragraph 4 of the general delegations to officers. There is no question but that it is open to the respondents to delegate decision-making to their officers; the question is whether they have done so in this case. That there has been quite extensive delegation is evident from the terms of the Scheme. Importantly, the Scheme begins with a statement of the principle that decisions should be made at the lowest or most local level consistent with the nature of the issues involved. That principle informs the construction of what follows: both the delegation at Section 3 paragraph 4 and the exclusion at Section 1 paragraph 1 (2) (b). The textual context of the exclusion, reinforced by the principle in favour of decision-making at the lowest level consistent with the nature of the decision points to the exclusion as relating to "policy" at quite a high level of scope and generality. I do not see the approval of a new job description or, putting it slightly differently, a decision to open a particular post to candidates with particular qualifications, as being of that nature. I accordingly accept that the decision complained of came within the powers delegated to Mrs McKenna as Director of Education.

(6) Disappointment of legitimate expectation of consultation

[52] This, said Mr Clancy, was the most fact-sensitive argument. It was to the effect that the relevant decision had been arrived at in a procedurally unfair manner. The petitioners and their members who were nursery school teachers had had a legitimate and reasonable expectation that the respondents would properly consult with them before implementing the new policy. There were two issues: (1) whether as a matter of law a duty of consultation arises; and (2) in the event that it does, whether the respondents are in breach of that duty. He recognised that it was the respondents' position that it was not conceded that there was such duty but that, in any event, the petitioners had been afforded the opportunity for suitable and adequate consultation between November 2011 and March 2012.

[53] Mr Clancy drew my attention to statement 34 of the petition. It was the petitioners' position that a legitimate and reasonable expectation of consultation arose from the following circumstances: the terms of the Framework Agreement, particularly paragraph 15; the promise of consultation on The Early Childhood and Extended Services Strategy 2008-13; the Early Years Review document; and the various communications with individual teachers referred to in the petition. Despite what might be suggested by the terms of Early Years Review the respondents had not carried out a proper consultation with the petitioners or with nursery school teachers before implementing the decision complained of. There had been no consultation through the Glasgow LNCT. No other framework or formal consultation procedure had been established. On no occasion did the management side sit down with the union side and discuss the proposal to open the post of head of a nursery school to a non-teacher. There had been no response to the petitioners' concerns over the legality of a nursery school being conducted with no teacher on the full-time staff. In addition to statement 34 of the petition, Mr Clancy referred to Ms Belcher's affidavit at paragraph 2, Mr Donnelly's affidavit at paragraphs 15 and 18 and Mrs Carlin-Kulwicki's affidavit at paragraphs 2, 29 and 32 for the factual position and to Mr Donnelly's paper, Initial Commentary on Nursery Teacher's Section Response to Early Years Review (6/4 of process) for the petitioners' view as to the lack of a rationale for the proposal. There was a reasonable expectation that, before any decision was made, the respondents would set up a framework for consultation and acknowledge and discuss the teachers' views on the proposal. None of that happened. In paragraph 2 of her affidavit Mrs Carlin-Kulwicki acknowledges that she has recently been invited to attend a working group led by Mr McKernan which is exploring the role of the teacher in early years, but to make a decision and only afterwards consult on its implications was unacceptable.

[54] Mr Moynihan accepted that Mr Clancy had correctly identified the two issues in relation to legitimate expectation. He did not see that there was much in the way of dispute as to what was the relevant law. That was to be found set out in R (on the application of Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts supra and R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213. Thus, for a legitimate expectation to arise, the public body must make a clear and unequivocal representation giving rise to the expectation and, as appeared from Coughlan at para 108:

"...whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon, it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of the consultation must be conscientiously taken into account when the ultimate decision is taken ..."

[55] As Mr Moynihan would have it, the petitioners had in fact been consulted on Early Years Review, as was demonstrated by the documents lodged as 6/3 and 6/4 of process which contain the petitioners' responses to Early Years Review. The burden of the petitioners' complaint was that the respondents had not carried out a "meaningful" consultation, that the petitioners' views had not been "acknowledged" or "taken into account", and that the petitioners had not been invited "to sit down and discuss" the proposal. These complaints were unfounded. The petitioners had been given and had taken the opportunity to be consulted and their response had, in its turn, been responded to. Mr Clancy simply had no basis for his assertion that the respondents had failed properly to consider 6/4 of process. Mrs McKenna had acknowledged and responded to the petitioners' documents, 6/3 and 6/4, in her Response to EIS, lodged as 6/36 of process. Mrs McKenna accepted in that document that there was "much to do". She expressly noted the petitioners' view as the role of a head teacher as required by the legislation; it could not be said that she "had not considered the legalities". The law did not require the respondents to "sit down" with consultees who had articulated an irresolvable difference of opinion on what the law required but the point based on failure to have regard to the petitioners' concerns on the legality of what was proposed was in any event redundant. If any of the petitioners' legal points have merit then the court will grant the remedies sought; if they do not have merit then it is irrelevant that they were not considered by the respondents. Accordingly any failure to have regard to the petitioners' concerns does not give rise to a separate ground of review.

[56] Mr Moynihan submitted that there had been proper consultation on the appointment of a non-teacher to the post of head of a nursery school. The question therefore came to be whether the e-mail correspondence had given rise to the expectation of any consultation beyond that. According to Mr Moynihan that question had to be answered in the negative because of the absence of any clear and unequivocal representation. If what was being looked for was consultation on the role of the teacher in providing progressive education for children under school age then that consultation continued. No decision has been made about this and therefore if, founding on regulation 3 of the 2005 Regulations, that was what the petitioners were complaining about then the application for judicial review was premature. What then was it that the petitioners said the consultation was to be about and with whom? Mr Moynihan asked.

[57] The petitioners' position in relation to this ground of review appear from the first three sentences of statement 34 of the petition:

"...the decision complained of was arrived at in a procedurally unfair manner. The decision constituted an important change in policy. The petitioners and their members who are nursery [school] teachers employed by the respondents had a legitimate and reasonable expectation that the respondents would properly consult with them before deciding on and implementing the new policy."

[58] There is no issue as to the applicable law. There is no general obligation on an administrative decision-maker to consult with those who are likely to be affected by his decision before making it, but in particular circumstances such an obligation may exist and where it does a decision reached without there having been consultation will be vitiated by reason of procedural unfairness. Moreover, where there is an obligation to consult, the consultation must be carried out properly, albeit that what amounts to proper consultation will depend on the circumstances. An obligation to consult may be imposed expressly by statute. An example of such a statutory obligation is the obligation to consult on school closure proposals contained in the 2010 Act. However, there may also be an obligation to consult where the decision-maker has undertaken to consult or has otherwise so behaved as to give rise to a legitimate expectation that he will consult before making a decision. Here, Mr Moynihan did not dispute that the respondents had undertaken to consult, although he distinguished as between two issues in respect of which the undertaking had been made: the creation of the new post of head of early learning and the precise role of registered teachers in the provision of progressive education to children of under school age. On the first issue, which is the one focused on in the petition; a consultation process had been carried out. On the second; a consultation process remains ongoing.

[59] Following Coughlan, for a consultation process, once embarked on, to be adequate for the purpose of satisfying the requirements of procedural fairness it must be meaningful and effective but this can be achieved in a variety of ways, depending on the nature of the decision being consulted upon and the identity of the consultees. As Mr Clancy rightly said, it is all very fact sensitive. Moreover, a right to be consulted is not to be confused with a right to veto. A consultation process is not a negotiation. A decision-maker may make a decision which the consultees disagree with, as long as he takes dissenting views into account. Here, the respondents did give notice of their proposal to create a new post of head of early learning in their Early Years Review and they did invite and receive comments on that proposal from the petitioners. I do not find the petitioners' complaint under this head to be made out.

Decision

[60] In my opinion, for the reasons given above, the averments in the petition, even when supplemented with the additional material in the affidavits, do not establish that the decision complained of was unlawful. The petitioners are therefore not entitled to the remedies sought. I shall therefore dismiss the petition. I shall reserve all questions of expenses.