EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
	[2014] CSIH 13
Lady Paton Lady Smith Lord McGhie	P555/12 OPINION OF THE COURT delivered by LADY PATON in the petition of THE EDUCATIONAL INSTITUTE OF SCOTLAND Petitioners and Reclaimers; 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 and Reclaimers: Clancy Q.C., E Mackenzie; Balfour & Manson LLP

Respondents: Moynihan Q.C., Marney; Legal Department, Glasgow City Council

29 January 2014

Introduction

[1] In this petition for judicial review, the Educational Institute of Scotland (EIS) challenge the lawfulness of a decision taken in March 2012 by the Director of Education of Glasgow City Council (the Council). The EIS characterise that decision as "[introducing] a policy (a) whereby the position of head of a nursery school could be held by individuals without teaching qualifications and who are not registered teachers": statement 2 of the petition. The Council describe the decision as an approval of a job specification inviting qualified persons, including non-teachers, to apply for posts as "head of nursery or family learning centre": answer 2 of the petition and Appendix 6/2. The EIS seek reduction of the decision as unlawful, and interdict against the Council from appointing non-teachers on local Council terms and conditions instead of the nationally-negotiated terms and conditions applicable to registered teachers. The Council oppose reduction and interdict, contending that the decision was lawful.

History of events

[2] In early 2003, regulation 5(1) and (2) of the Schools (Scotland) Code 1956, as amended, applied to nursery schools. That regulation provided:

"(1) Every teacher employed in a primary department shall hold or under the Training Regulations be deemed to hold a Teaching Qualification (Primary Education) or a Teaching Qualification (Secondary Education).

(2) The head teacher of a nursery school and the teacher in charge of a nursery class not forming part of a nursery school shall hold or under the Training regulations be deemed to hold a Teaching Qualification (Primary Education) with a special qualification to act as a principal teacher of a nursery school or a teacher in a nursery school...".

[3] In our opinion, the effect of that regulation was that it was mandatory to appoint a teacher registered with the General Teaching Council (GTC) to the post of head teacher of a nursery school (cf paragraph [51] below). To become a registered teacher, candidates had to obtain a university degree, and then carry out one year's post-graduate teacher training. Pay and conditions were negotiated nationally by the Scottish Negotiating Committee for Teaching Staff in School Education (SNCT), all in terms of a Framework Agreement entered into by the Council, the EIS, and other teaching unions. The head teacher led the educational curriculum and managed the nursery school, which was often largely staffed by persons with care qualifications ("child development officers"): statement 6 of the petition.

[4] Circumstances changed in 2003. The Schools (Scotland) Code Amendment Regulations 2003 repealed inter alia regulation 5(2) of the 1956 Code. Subsequently, the Requirements for Teachers (Scotland) Regulations 2005 repealed all the remaining provisions of the 1956 Code. As was noted in paragraph 10.4 of a report in 2008 to the Council entitled "Early Childhood and Extended Services Strategy 2008-2013" (6/16), the "repeal of the Schools Code gives authorities greater flexibility over the deployment of teachers in pre-school education." One recommendation in that report was "to require the Executive Director of Education and Social Work Services to engage in further consultation to develop the implementation strategy [for achieving quality pre-school education coupled with childcare services to support parents] and bring a detailed Action Plan and regular monitoring reports to Policy Development and Scrutiny Committee, and, where appropriate, to the Executive Committee." The Executive Committee's minutes dated 12 September 2008 (6/17) note, at page 2, that the Director of Education was instructed accordingly. In 2009, Scottish Government Guidance on Pre-School Teacher Deployment dated 19 May 2009 (6/57) discussed access to a teacher for pre-school children, and posed questions for consideration, including:

·   Have you established a clear view of the role that teachers should play in pre-school and how the impact of their work will be monitored and evidenced?

·   Have you considered how this role might vary depending on whether teachers are deployed into centres on a full-time, part-time, or peripatetic basis?

·   Have you considered how the respective roles of teachers, SCQF Level 9 staff and other staff can complement each other?

[5] In early 2011, the Director of Education of the Council, Mrs Maureen McKenna, circulated an e-mail dated 25 January 2011 (6/18) to all Council nursery school head teachers, stating inter alia:

"Colleagues

As you will know ... a strategic review of early years' provision across the city is to take place over the next few months ...

In 2008, council agreed the Early Childhood & Extended Services (ECES) Strategy which sets out a vision for securing access to early education and extended hours childcare across the city ... The Early Years Review will form the basis of a mechanism to support the ongoing delivery of the ECES strategy and will also present opportunities to identify and address a range of historic, operational anomalies ... There will be an opportunity for all Heads of Early Years Establishments to contribute to the review..."

[6] During the summer of 2011, the Council replaced retiring head teachers of Pikeman and Bonnybroom establishments for under-5s by appointing non-teachers as heads. The EIS consider these establishments to be nursery schools, but the Council's position is less clear (answer 9 of the petition). Further in 2011 the Council responded to a grievance lodged by the trade union representing child development officers, by conceding that Kelvin Park Early Years Centre was not a nursery school and that it did not require a registered teacher as its head (statement 9 of the petition).

[7] Discussions between the Council and the EIS concerning early years provision took place during October to December 2011: statement 9. By letter dated 16 December 2011, Mr Robertson of the Council wrote to Mr Donnelly of the EIS noting inter alia:

" ...I am also unclear about your point about a nursery school having to have a head teacher, I am not aware of any 'rule' that a nursery school must have a teacher as its head. Could you direct me to where this is set out?" [statement 9]

[8] In early 2012, the Council produced a document entitled Early Years Review (6/2). It stated inter alia:

"2.2 As with many other local authorities, centres previously run by Social Work for childcare became the responsibility of Education many years ago. They now deliver the same service as those entitled Nursery Schools. There remains a lack of understanding among some stakeholders that all our early years provision deliver the same curriculum and are reviewed and regulated to the same standards. This lack of understanding has led to a view among some of a two tier system. This view has no place in a modern early years service.

2.3 Glasgow has 112 establishments for early years (as at August 2011), including nursery classes in primary schools ...

2.5 There are nine different titles used in the names of centres ...

2.6 For term-time provision, there are 49 nursery schools and 21 nursery classes.

2.7 For extended 50 week provision, there are 11 family learning centres, 10 day nurseries, 8 early years centres, 6 nursery schools with extended hours, 3 nursery schools and family learning centres, 3 community nurseries and 1 children's centre ...

4.1 Glasgow City Council recognises the value of a skilled and well qualified workforce. All our early years staff have to be registered with the SSSC [Scottish Social Services Council]. Child development officers require to be qualified to a minimum of SVQ3 in Early Childhood Development...

5.4 In line with national policy which promotes the value of teachers in the delivery of pre-school education we will continue to provide a team of teachers Leaders of Early Learning whose specific role is to work alongside child development officers. The focus of work for these teachers will be reviewed annually in partnership with them to meet the needs of the service ...

6.2 The Leaders of Early Learning (LELs) team is to be developed further to enable them to deliver effective support for learning and teaching to partnership and Council centres. While LELs have a range of skills in developing curriculum initiatives it is recognised that in order to meet their developing role capacity needs to continue to be developed within and across the team. Training and development opportunities will be facilitated to bring the LELs and the Leaders of Learning teams together to facilitate joint working where appropriate. LELs will be included in appropriate city staff development activities to enable them to update partners on developments. Capacity building will focus on key priorities aligned with the improvement priorities of the city.

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 ...

6.5 As vacancies arise, heads' posts will be advertised as Grade 8 ... As with all members of Council staff, those who wish to work term-time to fit in with their personal circumstances can apply to do so and their salary will be adjusted accordingly ...

Appendix 2

PERSON SPECIFICATION

Post: Head of Nursery or Family Learning Centre

Job Family/Grade/Level: Social Renewal, Learning and People Development

Grade 8, Level 7

•      Lead and manage a diverse early years service which provides learning, development and care for children ...

•      Lead others in understanding children and promote positive and effective learning for all children ...

•      Manage and develop the curriculum in accordance with the policies of the council taking account of relevant national advice ...

•      Ensure appropriate arrangements are made for the management of the budget and other finances, including proper procedures to account for these.

Criteria (Essential):

Education qualifications and training: BA Childhood Practice or Primary teaching qualification ...

Other: Registration with Scottish Social Services Council or General Teaching Council ..."

[9] Paragraphs 2.3 and 2.5 to 2.7 of the Review reflected the fact that "school education" was being delivered in nursery schools, nursery classes, and other establishments for pre-school children, some being managed by the Council, and some (for example, private nurseries) working in partnership with the Council in terms of section 35 of the Standards in Scotland's Schools etc Act 2000: cf section 33(3) of that Act.

[10] Thus it was proposed that candidates would be eligible for the post of head of an establishment for under-5s if they were registered teachers, or if they held a BA in child care, for example either a BA in Childhood Practice from Glasgow University, or a BA in Childhood Studies from Strathclyde University. For these latter candidates, there was no requirement of a probationary year's teacher training. Details of the differences between the two types of candidate are set out in paragraph [18] of the Lord Ordinary's opinion.

[11] On 30 January 2012 the Review was distributed at a Joint Teachers Consultative Forum attended by inter alios three EIS representatives: statement 10 of the petition and 6/25. It was noted in the minutes of the meeting that "Responses to paper should be directed to Maureen McKenna" (6/25 page 2 item 6). An e-mail dated 1 February 2012 from Mrs McKenna to Mr Donnelly of the EIS (6/26) concluded: "I will discuss here how we take this forward but would welcome EIS involvement in shaping our practice and policy." By e-mail dated 3 February 2012 (6/27), Mrs McKenna distributed the Review to head teachers of nursery schools, inviting a dialogue with heads and adding:

"In addition, I would like a group of heads to discuss further the role of teachers in early years and how we can strengthen their role across our early years provision ..."

[12] At about this time, Mrs McKenna set up a review group named the Early Childhood and Extended Services Group, led by Gerard McKernan, with representation from a range of heads. The group's remit was to review the role of the teacher in early years, and to develop a Glasgow position. The group had several meetings in 2012, the first taking place on 7 March 2012.

[13] At a meeting on 7 February 2012, Mrs McKenna gave a presentation of the Review and the Council's proposals (statement 12 of the petition). Subsequently Mrs McKenna received e-mails from heads of nurseries (6/28 et seq), expressing disappointment with the content of the Review, and criticising various aspects. Mrs McKenna responded to each individual by e-mail, confirming that the views of head teachers would be taken into account. For example, in one e-mail dated 10 February 2012 to the head teacher of Cloverbank Nursery (6/29) Mrs McKenna wrote:

"I am sorry that you are disappointed by the outcome of the review. I am not clear, however, about the total disregard of the value and role of headteachers. As a teacher myself, I value greatly the role of the teacher and that is why I have set up a review group, led by Gerard McKernan, but with representation from a range of heads to review the role of the teacher in early [years] and develop a Glasgow position."

[14] In February 2012, the Nursery Teachers' Section of the EIS sent a written response to the Review: statement 13 of the petition and 6/3.

[15] On 5 March 2012 the Glasgow Local Association of the EIS sent written submissions regarding the Review: statement 16 and 6/4, arguing inter alia that the role of head teacher was required by statute. In an answering e-mail headed "Response to EIS: Early Years Review" (6/36) Mrs McKenna wrote inter alia: "I note your view that the role of the headteacher is required by legislation in nursery schools."

[16] An e-mail from the Council to the EIS dated 10 April 2012 (6/51) confirmed that certain "early years heads" posts would be advertised. An internal grievance dated 23 April 2012 by 30 head teachers of nursery schools (6/7), complained inter alia about a failure to communicate the new proposals. On 27 April 2012, Mrs McKenna advertised the posts. In each case, the job was described as "head" of a nursery, or nursery school, or family learning centre (statement 23, and 6/10-6/12). Applications were invited from those who held GTCS Registration (i.e. teachers) or those who met the requirements for registration as Lead Practitioner/Manager with SSSC (i.e. those qualified in child care). The posts involved working 52 weeks per years, in contrast with a teacher who worked during fixed school terms. If the candidate wished a term-time basis, pay would be adjusted accordingly. All successful candidates were to be subject to the Council's local Workforce Pay and Benefits Review (WPBR) terms and conditions of service, and not the SNCT nationally negotiated teachers' terms and conditions. A further grievance by the EIS was lodged on 27 April 2012: statement 24.

[17] On 9 May 2012, Messrs Balfour & Manson wrote to the Director of Education on behalf of the EIS, intimating concerns about the policy that head teachers at nursery schools might be replaced by non-teachers, and about the manner in which the proposals arising from the Review had been implemented without proper consultation: statement 25 of the petition and 6/14. The Council replied by letter dated 18 May 2012 (6/15), indicating that they would not hold the recruitment process in abeyance.

[18] The EIS then raised the present petition for judicial review. The petition was served on the Council on 29 May 2012. A motion for interim interdict was heard on 30 May 2012, when the Council gave certain undertakings. A first hearing took place on 21 and 22 June 2012. The EIS tendered affidavits on the first day of the hearing.

The remedies sought

[19] In paragraph 3 of the petition, the EIS seek the following remedies:

1. Reduction of the decision of [the Council] taken 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 Council] from (a) appointing any person who is not a registered teacher as head of a nursery school and (b) employing a teacher as head of a nursery school on terms and conditions inconsistent with the SNCT terms and conditions for head teachers; and for interim interdict.

The EIS also seek expenses and any other order which the court considers just and reasonable.

First hearing, and reclaiming motion

[20] At the first hearing on 21 and 22 June 2012, Lord Brodie considered the pleadings, affidavits, productions and submissions. He issued an opinion, and by interlocutor dated 18 July 2012 dismissed the petition. He held inter alia that there had been no contravention of regulation 3 of The Requirements for Teachers (Scotland) Regulations 2005; no decision amounting to a proposal permanently to discontinue a school; no breach of the Framework Agreement relating to teachers' pay and conditions; no irrationality by way of error relating to an equal pay issue; no absence of power on the part of Mrs McKenna to make the decision complained of; and no disappointment of a legitimate expectation of consultation. The undertakings given by the Council on 30 May 2012 ceased to have effect. Appointments to the posts of head were then made, including appointments of non-teachers to several nursery schools.

[21] The EIS reclaimed. In their reclaiming motion, they do not insist upon the submission relating to irrationality and equal pay, but contend that the Lord Ordinary erred in rejecting the other arguments and in dismissing the petition. One new argument presented in the Inner House was the failure to comply with a requirement said to be inferred from sections 6 and 8 of the Teaching Standards (Scotland) Act 2000.

Relevant legislation

[22]
1946
Education (Scotland) Act 1946

"1. PROVISION OF EDUCATIONAL FACILITIES BY EDUCATION AUTHORITIES. - (1) It shall be the duty of every education authority to secure that adequate and efficient provision is made throughout their area of all forms of primary, secondary and further education (including the teaching of Gaelic in Gaelic-speaking areas).

(2) 'Primary education' means progressive elementary education in such subjects as may be prescribed in the code, regard being had to the age, ability and aptitude of the pupils concerned, and such education shall be given in primary schools or departments. Primary education includes training by appropriate methods in schools and classes (hereinafter referred to as 'nursery schools' and 'nursery classes') for pupils between the age of two years and such later age as may be permitted by the code."

1980
Education (Scotland) Act 1980

"1 Duty of education authorities to secure provision of education

(1) Subject to subsections (1A) and (2A) below, it shall be the duty of every education authority to secure that there is made for their area adequate and efficient provision of school education and further education.

(1A) The duty imposed on education authorities by subsection (1) above shall, in relation to children who are under school age, be exercisable only as respects children of such description or descriptions as may be prescribed by order.

(1B) Where an order is made under subsection (1A) above, the amount of school education with which children of a description prescribed in that order are to be provided shall also be prescribed in the order.

(1C) An education authority shall have power in relation to pre-school children to secure for their area the provision of such school education, other than that which they are required by subsection (1) above to secure, as they think fit...

(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;...

135 Interpretation

(1) In this Act, unless the context otherwise requires,-

"nursery school" and "nursery class" have the respective meanings assigned to them by section 1(5)(a)(i) of this Act;...

"school" means an institution for the provision of primary or secondary education or both primary and secondary education being a public school, a grant-aided school, a self-governing school or an independent school, and includes a nursery school and a special school; and the expression "school" where used without qualification includes any such school or all such schools as the context may require"

2000
Standards in Scotland's Schools etc Act 2000

"2. Duty of education authority in providing school education

(1) Where school education is provided to a child or young person by, or by virtue of arrangements made, or entered into, by, an education authority it shall be the duty of the authority to secure that the education is directed to the development of the personality, talents and mental and physical abilities of the child or young person to their fullest potential.

(2) In carrying out their duty under this section, an education authority shall have due regard, so far as is reasonably practicable, to the views (if there is a wish to express them) of the child or young person in decisions that significantly affect that child or young person, taking account of the child or young person's age and maturity.

3. Raising standards

(1) The Scottish Ministers shall endeavour to secure improvement in the quality of school education which is provided for Scotland; and they shall exercise their powers in relation to such provision with a view to raising standards of education.

(2) An education authority shall endeavour to secure improvement in the quality of school education which is provided in the schools managed by them; and they shall exercise their functions in relation to such provision with a view to raising standards of education.

(3) The duties under subsection (2) above shall apply also in relation to school education which is provided in pursuance of any arrangements made, or entered into, by an education authority under-

(a) section 14 of the 1980 Act; or

(b) section 35 of this Act.

(4) In subsections (1) to (3) above 'school education' means school education directed as is described in section 2 of this Act.

6. School development plans

...

(3) The development plan shall include an account of the ways in which, and extent to which, the headteacher of the school will-

(a) consult the pupils in attendance at the school; and

(b) seek to involve them,

when decisions require to be made concerning the everyday running of the school...

8. Delegation schemes

(1) An education authority shall have a scheme for delegating to the headteacher of a school-

(a) managed by them; and

(b) of a category of school which is stated in the scheme to be covered by the scheme,

management of that share of the authority's budget for a financial year which is available for allocation to individual schools and is appropriated for the school; or management of part of that share.

(2) The scheme-

(a) shall delegate to the headteacher the preparation of the school development plan; and

(b) may also so delegate such other management functions in relation to the school as the authority think fit.

(3) The scheme shall require that the headteacher exercise the delegated functions in a manner consistent with the education authority's duties under section 3(2) of this Act...

32. Provision of education for pre-school children etc.

(1) Section 1 of the 1980 Act (which imposes a duty on education authorities to secure the provision of education) shall be amended in accordance with this section.

(2) In subsection (1), for the word "(2)" there shall be substituted " (1A) ".

(3) After subsection (1) there shall be inserted-

'(1A) The duty imposed on education authorities by subsection (1) above shall, in relation to children who are under school age, be exercisable only as respects children of such description or descriptions as may be prescribed by order.

(1B) Where an order is made under subsection (1A) above, the amount of school education with which children of a description prescribed in that order are to be provided shall also be prescribed in the order.

(1C) An education authority shall have power in relation to pre-school children to secure for their area the provision of such school education, other than that which they are required by subsection (1) above to secure, as they think fit.'...

33 Fees

(1) School education provided by virtue of subsections (1) and (1A) of section 1 of the 1980 Act shall be provided without payment of fees.

(2) An education authority may charge fees for school education provided by virtue of subsection (1C) of that section.

(3) For the purposes of subsections (1) and (2) above, the school education may be provided-

(a) in a nursery school;

(b) in a nursery class in a school; or

(c) in pursuance of arrangements entered into under section 35 of this Act, in some other establishment.

34 Guidance to education authorities as respects discharge of certain functions

The Scottish Ministers may from time to time give guidance to education authorities as respects the discharge by authorities of-

(a) their functions under the 1980 Act in relation to the provision of school education for pre-school children;

35 Provision of school education by persons other than education authorities

An education authority may, for the purposes of-

(a) fulfilling the duty imposed on them by subsections (1) and (1A) of section 1 of the 1980 Act; or

(b) exercising the power conferred on them by subsection (1C) of that section,

enter into arrangements with any person for the provision by that person of school education for children who are under school age or, as the case may be, for pre-school children."

2002

The Provision of School Education for Children under School Age (Prescribed Children) (Scotland) Order 2002

"Amount of school education to be provided for children of a prescribed description

3. - (1) The amount of school education with which [a pre-school child] is to be provided ... is [475] hours of school education during the school year ..."

2005

The Requirements for Teachers (Scotland) Regulations 2005

"General requirements in relation to employment of teachers

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

Requirement to employ registered teachers

4. (1) Every education authority shall, in discharging their functions

under section 1 of the 1980 Act and section 2(1) of the 2000 Act employ only a registered teacher ("registered teacher" having the meaning set out in paragraph (2) below) as a teacher.

(2) "Registered teacher" in these Regulations means a teacher whose particulars are recorded in the register maintained by the General Teaching Council for Scotland under section 6 of the Teaching Council (Scotland) Act 1965 and includes a teacher whose registration has been marked as suspended on the basis however that, for the duration of that teacher's registration being marked as suspended, such a teacher may only be employed as a teacher -

(a) by his or her existing employer, and

(b) in his or her existing teaching post."

Relevant scheme of delegation by the Council

[23]

GLASGOW CITY COUNCIL

SCHEME OF DELEGATED FUNCTIONS

16^TH February 2012

INTRODUCTION

The Council accepts the principle that decisions should be made at the lowest or

most local level consistent with the nature of the issues involved...

The proposed delegations are dealt with in three main sections:

• Delegations to Committees
• Special Authority to the Lord Provost and the Deputy Lord Provost
• Delegations to officers

SECTION 1 - DELEGATIONS TO COMMITTEES

...

(2) Exclusions from Delegations to Committees

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 - DELEGATIONS TO OFFICERS

The functions delegated to the Chief Executive and each Executive Director are also exercisable by officers at the levels shown on the list appended hereto. In exercising any delegated function the nominated officer will take account of any appropriate departmental practice or procedure, of any managerial instruction given and of any other similar consideration...

General

The following delegations are hereby made to the Chief Executive or any Executive Director and are exercisable also by Assistants. No. 5 is exercisable also by third tier officers...

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

Submissions for the EIS

[24] Senior and junior counsel for the EIS submitted that the proper categorisation of establishments for children under the age of 5 was (i) nursery schools, (ii) primary schools with nursery classes, and (iii) nurseries. The Early Years Review document failed to recognise that a nursery school was a "school", and as such governed by a separate legal regime which did not apply to nurseries. A child development officer was not a teacher and could not fulfil that role. Bearing in mind the statutory scheme, there had to be a sufficient number of registered teachers at a nursery school: one head teacher was sufficient, but an absence of teachers, or a system of visits from peripatetic teachers, was not sufficient. The onus lay on the Council to demonstrate an acceptable scheme of deployment of teachers. They had not done so. Reference was made to sections 6, 8, 32 to 36 and 58 of the Standards in Scotland's Schools etc Act 2000.

[25] Legal status of a nursery school and requirements of the statutory scheme: The Lord Ordinary erred in holding that "[Nursery schools] are not ... accorded any particular status": paragraph [32] of his opinion. That incorrect starting premise affected the rest of his analysis. Unlike nurseries, nursery schools were "schools" operating within a distinct legal framework. Nursery schools (i) were included in the definition of "schools" in the Education (Scotland) Act 1980; (ii) required "adequate numbers of teachers" in terms of regulation 3 of the 2005 regulations; (iii) engaged the statutory consultation procedure in the Schools (Consultation) Act 2010 when there was a proposal permanently to close the nursery school; (iv) were given recognition as a "school" in the Standards in Scotland's Schools etc Act 2000, sections of which applied to nursery schools (for example sections 6 and 8) but not to nurseries. As the Lord Ordinary failed to recognise that a separate regime applied, he failed properly to apply his mind to regulation 3 of the 2005 regulations.

[26] Regulation 3 of the 2005 regulations: Regulation 3 of the 2005 regulations required a head teacher to be appointed to a nursery school. Regulation 3 required "adequate numbers of teachers", yet the Council's decision meant that a nursery school might no longer employ any teachers. Adequate numbers had to be measured by looking at each individual school, and not at all the nursery schools together. Thus the provision of a peripatetic force of teachers failed to meet regulation 3: for example, the Pikeman and Bonnybroom nursery schools (with no teacher as head) had had no visit from any teacher for an entire academic year. From the documents available, the Council, when taking the decision in question in March 2012, had failed to have regard to what was required to employ adequate numbers of teachers in nursery schools. The EIS did not accept that the Council had initiated any consultation concerning their duties under regulation 3. The Council had therefore either failed to have regard to a relevant and material factor, or they had misdirected themselves as to the meaning of regulation 3 and had fallen into error. While a working group was currently addressing the import of regulation 3, that did not provide an answer to the present petition. The Council's reliance upon a peripatetic team of teachers was based on a mistaken interpretation of regulation 3. In order to provide adequate numbers of teachers, there had to be at least one teacher employed at the nursery school. The Council could not draw assistance from paragraph 6.2 of the Review (a vague statement of intent) or from passages in a Scottish Government Guidance on Pre-School Teacher Deployment paper entitled "Access to a teacher for pre-school children dated 19 May 2009 (6/57, quoted in paragraphs [37] and [55] below). Significantly, that document referred at page 4 not to peripatetic staff in a pre-school setting, but to "other graduate-level staff", while at page 5 a reference to peripatetic staff focused on rural schools.

[27] The Lord Ordinary was entitled to make findings in fact on the basis of the affidavit evidence. He had sufficient material to find in favour of the EIS. The correct interpretation of regulation 3 was to be reached as follows: (i) the Council had a duty to make adequate and efficient provision of "school education" (section 1 of the Education (Scotland) Act 1980); (ii) that duty was exercisable in respect of children aged between 3 and 5 (The Provision of School Education for Children under School Age (Prescribed Children) (Scotland) Order 2002); (iii) regulation 3 of the 2005 regulations required "adequate numbers of teachers" with "the appropriate skills and knowledge"; (iv) regulation 4 of the 2005 regulations required the Council to discharge their function under section 1 of the 1980 Act by employing only registered teachers; (v) 475 hours of school education had to be provided to pre-school children and should be provided by, or under the supervision of, a registered teacher; (vi) in any event, regulation 3 obliged the Council to employ an adequate number of teachers in each nursery school: what was adequate was a question of mixed fact and law, reviewable by the courts, and on any view, employing no teachers in a nursery school could not be adequate.

[28] Sections 6 and 8 of the 2000 Act: In an argument not advanced in the Outer House, it was contended that in terms of sections 6 and 8 of the 2000 Act, the Council had a duty, by necessary implication, to employ a head teacher at a nursery school. Sections 6 and 8 could not operate without the appointment of a head teacher. The 2003 and 2005 regulations repealed the 1956 Code, but could not repeal sections 6 and 8 (which were primary legislation). One could not have a "back-door" amendment of primary legislation by secondary legislation repealing other secondary legislation. All that the 2003 regulations did was to remove a special requirement concerning the qualification of head teachers, leaving in place the implied requirement of a head teacher. The Council's approach to the construction of sections 6 and 8 was misconceived, and had the result that all establishments for the under-5s would have to be regarded as "schools". That could not be correct.

[29] Conclusion relating to regulation 3 and sections 6 and 8: As a result of the failure to comply with regulation 3 of the 2005 regulations, and sections 6 and 8 of the 2000 Act, the decision complained of was unlawful and should be reduced.

[30] Decision amounted to proposal permanently to discontinue nursery school, yet consultation process not followed: Counsel submitted that it was an integral part of a "school" that it was staffed by one or more registered teachers who provided education for the pupils. There was no express statutory provision to that effect, but it was intrinsic in a "school" that a teacher (or teachers) were employed there. Significantly, some of the relevant advertisements referred to "nurseries" (not "nursery schools"), and some schools no longer had teachers on their staff. Physical closure of the establishment was not determinative. If the one registered teacher was removed, that removed the last feature which set nursery schools apart from other establishments. The change in policy in effect constituted a proposal permanently to discontinue a school, which engaged the provisions of the Schools Consultation (Scotland) Act 2010. Appropriate intimation and consultation were required. That had not taken place. The decision complained of was unlawful for that reason also.

[31] Breach of the Framework Agreement relating to pay and conditions: The pay and conditions for the advertised posts should have been negotiated using the SNCT agreement relating to head teachers, as had been agreed between the Council, the EIS, and other unions. That had not been done. A breach of the Framework Agreement had therefore occurred. That was another reason why the decision complained of was unlawful.

[32] Lack of authority to make the decision: The decision marked an important departure from long-standing practice. It amounted to policy-making of a kind which should be restricted to the Council or a Council committee. As could be seen from a report to the executive committee dated 12 September 2008 (6/16), the key recommendations were

(a) to provide good pre-school education and extended services and

"to require the Executive Director of Education and Social Work Services to engage in further consultation to develop the implementation strategy and bring a detailed Action Plan and regular monitoring reports to Policy Development and Scrutiny Committee, and where appropriate to the Executive Committee".

Those steps had not been taken. The Early Years Review went beyond the recommendations. In any event, the Council's Scheme of Delegated Functions provided that "matters of new policy or variation of existing policy" were excluded from the delegation to any committee (6/61 page 4 section 1(2)). Section 3 paragraph 4 allowed officers of the Council to "make changes to staffing structures, numbers and gradings in accordance with approved pay, grading and rewards arrangements ...", but "major departmental restructurings or staffing reviews must ... be reported to the Executive Committee for approval." The decision complained of was not just a new job description: it amounted to a new policy; it was a major staffing review. Accordingly Mrs McKenna did not have the requisite authority to make the decision. The decision was unlawful for that reason also, and should be reduced.

[33] Legitimate expectation of consultation: Counsel referred to R v North East Devon Health Authority, ex parte Coughlan [2001] QB 213 at paragraph [108]. The Lord Ordinary made no finding as to whether, and if so why, any consultation process adopted in the present case was meaningful and effective. Esto he concluded that the process was meaningful and effective, he erred in so doing. It was not clear what was being offered for consultation, on what time-scales or procedures. In particular it was not clear whether appointing non-teachers to the post of head of nursery or learning centre was part of the consultation process. There was certainly no consultation about whether, and if so how, a team of peripatetic teachers could satisfy regulation 3 of the 2005 regulations in nursery schools without a head teacher.

[34] Second hearing and evidence if necessary: Rather than dismissing the petition, the Lord Ordinary had the power, if not satisfied about any aspect of the case, to order a second hearing at which evidence could be led.

[35] Conclusion: The reclaiming motion should be allowed, the interlocutor of the Lord Ordinary dated 18 July 2012 recalled, and the remedies sought by the EIS granted. Judicial review was a flexible procedure (Rules of Court 58.4 and 58.6). If the court held that it was mandatory to have a registered head teacher in a nursery school, the orders sought in terms of paragraph 3(1)(a) and 3(2)(a) would be appropriate. If the court held that there was a breach of the Framework Agreement, the orders sought in terms of paragraph 3(1)(b) and 3(2)(b) would be appropriate. If the EIS succeeded only on the argument relating to regulation 3 of the 2005 regulations, the case should be put out for a hearing By Order to discuss the scope of any order (for example declarator and/or reduction and/or interdict). The Council knew which establishments were "schools" (as they had to apply the relevant statutory provisions to those establishments), and thus the terms of any interdict referring to nursery schools would not give rise to any doubt.

Submissions for the Council

[36] No statutory requirement to have a registered teacher as head of a nursery school: Senior and junior counsel for the Council submitted that the decision challenged was a decision taken to approve a job specification as set out in Appendix 2 to the Review (6/2). Regulation 3 of the 2005 regulations had indeed been considered at that time, as a working group chaired by Mr McKernan had been set up to consider inter alia (i) peripatetic Leaders of Early Learning and (ii) the import of regulation 3 of the 2005 regulations. The group had met on several occasions in 2012, but no firm conclusion - and certainly no agreement - had been reached. How teachers were to be deployed in nursery schools and other early years centres depended on the outcome of the McKernan consultation process. That process was ongoing and separate from the decision which was the subject of judicial review. Delivery of education to the under-5s had for years essentially been undertaken by child development officers. The capacity of the Leaders of Early Learning team (currently 19 teachers and one co-ordinator) was to be enhanced: paragraph 6.2 of the Review.

[37] The EIS did not aver what was the threshold or measure of "adequate numbers of teachers" in terms of regulation 3. Thus there was no basis upon which the EIS could invite the court to infer that the decision taken in March 2012 unavoidably led to a breach of that regulation. Regulation 3 was currently being met: (i) first, there was no requirement to employ a registered teacher as the head teacher of a nursery school, or even to employ a teacher in any post at any such school: education in the nursery school would continue to be provided in such circumstances; (ii) secondly, there were visits from the peripatetic Leaders of Early Learning team. Section 34 of the Standards in Scotland's Schools etc Act 2000 provided that education authorities should have regard to guidance in relation to the discharge of their functions under the 1980 Act for the provision of school education for pre-school children. As was noted in the Scottish Government Guidance on Pre-School Teacher Deployment dated 19 May 2009 (6/57) pages 4 and 5:

"[page 4] ... 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 FTE [full time equivalent]...

[page 5] ... Where peripatetic models are being adopted, the amount of teacher time devoted to each centre may not be identical. Local authorities may decide the factors that they consider to be most important e.g. the size and characteristics of the centre, the nature of the community served or the need for improvement, or such combination of these factors as they deem appropriate ..."

[38] Thus the role of peripatetic teachers was recognised, and the level of deployment depended on the circumstances of each individual centre (a matter being looked into by the McKernan consultation process). It was accepted that no member of the peripatetic teacher team had visited either the Pikeman or Bonnybroom

establishments during the academic year 2011-2012. An admission to that effect had per incuriam not been made in the Council's pleadings. But that fact did not affect the Council's argument.

[39] Counsel adopted and repeated all the submissions made to the Lord Ordinary, namely:

·      It was irrelevant what name was used to describe a centre which provided for the education of the under-5s.

·      It was a matter for the discretion of the education authority to determine what was an "adequate" number of teachers.

·      There was no legal requirement to have a teacher as the head of an establishment for under-5s, including nursery schools.

·      There was no minimum number of hours for which a teacher had to be engaged at any one centre.

·      The provision of school education could be made by a workforce with a combination of qualifications.

·      Teacher input could be provided on a peripatetic basis.

Thus a consideration of "adequate numbers of teachers" was dependent on a consideration of the whole circumstances as they affected each nursery school.

[40] The provision of school education was not confined to schools (Standards in Scotland's Schools etc Act 2000, sections 1, 3(1) and (3), 9, 33, and 36). School education was provided in early years centres and nurseries. The concept of "nursery school" was not defined in the legislation (Education (Scotland) Act 1980 section 135). The EIS did not define nursery school: yet it was essential that they did so, as the interdict sought concerned nursery schools.

[41] As for the new argument relating to sections 6 and 8 of the Standards in Scotland's Schools etc Act 2000, it was necessary to construe those sections as part of the legislative scheme whereby "school education" was being delivered in nursery schools, nursery classes and other establishments for pre-school children, some being managed by the Council, and some working in partnership with the Council in terms of section 35 of the Standards in Scotland's Schools etc Act 2000. As part of that scheme, any reference to "head teacher" in sections 6 and 8 had to be construed purposively as meaning "the head of the establishment". Moreover, it was not a necessary inference from sections 6 and 8 that a teacher had to be appointed as head of a nursery school. The 2000 Act pre-dated the legislative changes made in 2003. Section 3(2) of the 2000 Act applied just as much to family learning centres as to any other establishment: school education was to be provided by the local authority. Against that background it was not a necessary implication from sections 6 and 8 that it was mandatory to have a teacher as the head of a nursery school. The purpose of the legislation would be satisfied if a head or manager of a school or centre was appointed.

[42] No decision permanently to discontinue nursery school: There had been no proposal and no decision permanently to discontinue a school. No institution was to be shut down: the provision of education would continue. The reasoning in paragraphs [35] to [38] of the Lord Ordinary's opinion was adopted.

[43] No breach of the Framework Agreement: The head of an early years centre was not a teaching post. That was not regarded as contributing to the provision of teachers in terms of regulation 3. As it was not a teaching post, it did not fall within the Framework Agreement. The Lord Ordinary was entitled to reach the view he did in paragraph [42] of his opinion.

[44] No lack of authority to make the decision: The decision taken came within the terms of paragraph 4 of the general delegations to officers in section 3 of the Scheme of Delegated Functions. The decision in March 2012 was to approve a job specification. That job specification reflected the law as it stood since 2003. In her capacity as the Executive Director of Education, Mrs McKenna had been required to make a decision of an operational nature. Appointments of non-teachers had been made at Kelvin Park, Pikeman, and Bonnybroom in 2011. The decision did not therefore amount to policy-making of a kind which was restricted to the Council or to a Council committee. The decision fell well within her powers.

[45] Legitimate expectation of consultation: The complaint was that there had not been meaningful and effective consultation. It was important to clarify two separate issues: (i) the separate and ongoing consultation relating to the role of teachers in early years (the McKernan consultation); and (ii) the consultation conducted in relation to the appointment of non-teachers as heads of nursery schools (the Review and the response thereto).

[46] It was accepted that a consultation process, once embarked upon, had to be meaningful and effective (R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213, at paragraph [108]. That could be achieved in a variety of ways, depending on the circumstances. In the present case:

·      In the document entitled Early Years Review (6/2), the Council gave notice of their proposal to create a new post of head of early learning.

·      The Review was distributed at a meeting of the Joint Teachers Consultative Forum on 30 January 2012 (statement 10 of the petition).

·      The Review was circulated more widely by e-mail dated 1 February 2012 (statement 10).

·      The Council gave a presentation of the proposal at a meeting on 7 February 2012 (statement 12).

·      In February 2012 the EIS Nursery Teachers' Section sent a written response to the Review. Mrs McKenna replied to the response (statements 13 and 14).

·      On 5 March 2012 the EIS Glasgow Local Association sent a written response to the Review. The Council replied by letter dated 15 March 2012 (statement 18).

[47] The consultation had been adequate. The Lord Ordinary had not erred in the conclusion he reached in paragraphs [58] and [59] of his opinion. The EIS referred to affidavits which they had lodged on the first day of the first hearing, but the contents of those affidavits were not admitted, and the Council had not lodged countering affidavits, there having been no order for affidavits. The Lord Ordinary was correct not to make findings in fact on the basis of the EIS's affidavits (paragraph [16] of his opinion). If necessary, the Lord Ordinary could order a second hearing, and hear evidence. But the Council's position was that the issues could be disposed of on the pleadings on the basis of the facts which were not disputed.

[48] Conclusion: The petition was fundamentally irrelevant. No remedies should be granted. The reclaiming motion should be refused, and the interlocutor of the Lord Ordinary adhered to.

Discussion
Whether decision unlawful in terms of the legislative scheme

[49] Nursery schools are included in the definition of "schools" in section 135 of the Education (Scotland) Act 1980. They are recognised as "schools" in the Standards in Scotland's Schools etc Act 2000 (for example sections 3, 6, 8 and 33). Adequate numbers of teachers must be employed in schools under the Council's management (regulation 3 of The Requirement for Teachers (Scotland) Regulations 2005). A proposal to close a nursery school would engage the need for consultation and other steps, as set out in the Schools (Consultation) Act 2010 and detailed in paragraph [35] of the Lord Ordinary's opinion. We therefore accept the submission of the EIS that a "nursery school" is affected by certain statutory provisions which do not apply to nurseries, early learning centres, family centres, or play groups. To that extent, therefore, we disagree with the Lord Ordinary's observation in paragraph [32] of his opinion that nursery schools are not accorded any particular status. The very fact that certain statutory provisions apply to nursery schools but not to other establishments for children under the age of 5 gives nursery schools a different status.

[50] That said, the question at issue is whether it was unlawful for the Council to make the post of head of a nursery school available to "individuals without teaching qualifications ... who are not registered teachers".

[51] In our opinion, regulation 5(1) and (2) of the 1956 Code as amended imposed a clear requirement that the head of a nursery school had to be a registered teacher. The reference to "primary department" and "primary education" in paragraph 5(1) extended to "nursery schools" and "nursery classes": cf section 1(1) and (2) of the Education (Scotland) Act 1946. Thus it was mandatory that a head teacher be appointed to lead the curriculum in a nursery school. It automatically followed that the head teacher's pay and conditions were nationally negotiated by the SNCT. That state of affairs lasted for almost fifty years.

[52] We consider that the clear requirement imposed by regulation 5(2) of the 1956 Code was removed by the 2003 regulations. Also any remaining part of the Code was repealed by the 2005 regulations. The question for us is whether the EIS are correct in their contention that, despite these changes, other provisions of the legislative scheme affecting nursery schools (and in particular regulation 3 of the 2005 regulations, and - in an argument not presented to the Lord Ordinary - sections 6 and 8 of the Standards in Scotland's Schools etc Act 2000), when properly construed, have the effect of continuing the mandatory requirement that only registered teachers may be appointed as heads of nursery schools.

[53] We are unable to accept that such a continuing requirement can be inferred from the scheme of legislation. So far as sections 6 and 8 of the 2000 Act are concerned, these provisions were enacted at a time when the only person who could competently be the head of a nursery school was a registered teacher. The reference in each of sections 6 and 8 to "the headteacher" (in the context of the preparation of a development plan and other management duties) was therefore entirely understandable - and indeed inevitable - in 2000, when the Act was passed. But three years later, in 2003, regulations removed the requirement that the person in charge of such an establishment had to be a registered teacher. While accepting the submission of the EIS that primary legislation cannot be amended by secondary legislation, nevertheless it is our view that the use in the 2000 Act of the expression "the headteacher," properly and purposively construed in context following upon the changes made by the 2003 and 2005 regulations, simply means the person in charge of the nursery school. We are unable to accept that the removal in 2003 of the requirement for a registered teacher as the head is rendered ineffectual by the pre-2003 references in sections 6 and 8 of the 2000 Act, particularly where sections 6 and 8 do not impose any requirement that the head of the establishment should be a registered teacher, but simply contain what, in our view, amount to references to the person in charge of the nursery school.

[54] It is our opinion therefore that it was the 2003 regulations that introduced a "new policy or approach" to the education of children under the age of five. While the duties imposed upon the Council in terms of primary legislation such as section 1 of the Education (Scotland) Act 1980, and sections 2, 3, and 32 of the Standards in Scotland's Schools etc Act 2000, remained, the change made by the 2003 regulations enabled the Council to fulfil those duties in ways which did not necessarily involve appointing a registered teacher to be head of a nursery school.

[55] As for regulation 3 of the 2005 regulations, that regulation requires the education authority to "employ adequate numbers of teachers in the schools under their management, with the appropriate professional skills and knowledge necessary to enable those teachers to undertake the teaching duties allocated to them." We accept that adequacy requires to be assessed by reference to individual schools. Different systems of deployment, involving teachers either tied to a particular school, or visiting several schools, may amount to "adequate numbers of teachers in the schools under [the Council's] management". Much will depend upon the particular circumstances and requirements of the individual school. There will be many views and factors to take into account, including the requirement in paragraph 2(2) of the Provision of School Education for Children under School Age (Prescribed Children) (Scotland) Order 2002 that 475 hours of school education should be provided during the school year. Bearing in mind the potentially differing viewpoints of parents, pupils, teachers, administrative staff, support staff, and the Director of Education, it may not be an easy matter to assess: cf section 34 of the Standards in Scotland's Schools etc Act 2000 and the Scottish Government Guidance on Pre-School Teacher Deployment paper entitled "Access to a teacher for pre-school children dated 19 May 2009" (6/57) which states inter alia:

"... 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 FTE [full time equivalent]."

[56] In our opinion there may be many ways in which regulation 3 could be satisfied. For example, the employment at the school of one teacher (not necessarily holding the post of head), the rest of the staff being child development officers; or the deployment of peripatetic teachers such as the Leaders of Early Learning team on a regular rota system. No doubt there are other ways. What is important for the present case is that regulation 3 does not state, or even imply, that the head of a nursery school must by law be a registered teacher.

[57] In the result, we are not persuaded that anything in the scheme of legislation rendered the decision challenged "unlawful". Thus we agree with the conclusion reached by the Lord Ordinary on this issue.

Whether there was a "school closure"
[58] In the light of our observations in paragraphs [53] to [56] above, it will be seen that we do not consider that any nursery school has been "closed", or that there has been a proposal permanently to discontinue one. The nursery schools continue in existence, and are subject to the legislation affecting them. The Council continue to have duties to provide and improve the quality of the education of the children, all as set out in section 1 of the Education (Scotland) Act 1980 and sections 2, 3, and 32-34 of the Standards in Scotland's Schools etc Act 2000. As noted above, the Council may, since 2003, approach the fulfilment of those duties in ways different from those adopted in the years when the 1956 Code applied.

[59] We do not therefore accept that the Lord Ordinary erred in his approach to this question.

Whether the lack of SNCT-negotiated conditions for the person in charge results in a Breach of the Framework Agreement

[60] The post of head of a nursery school is no longer a post for registered teachers. The post is not a teacher's post, although someone with teaching qualifications is eligible to apply. As a result, the Framework Agreement does not apply. Again therefore we agree with the Lord Ordinary's reasoning and conclusion on this matter.

Whether Mrs McKenna lacked authority such that the decision was unlawful

[61] In our opinion, it was the 2003 regulations that introduced a "new policy or approach" to the education of children under the age of five (cf paragraph [54] above). Mrs McKenna was implementing that policy, taking the operational steps necessary to do so. We consider that she had full authority to carry out such steps by reason of the delegated power given to her by section 3 "Delegations to Officers", set out in paragraph [23] above. In particular:

"4 To make changes to staffing structures, numbers and gradings in accordance with approved pay, grading and rewards arrangement, and subject to the approval of the Executive Director of Corporate Services and the Executive Director of Financial Services ..."

[62] We are not, therefore, persuaded that the Lord Ordinary erred in his conclusion on this issue.

Whether there was a lack of consultation such that the decision was unlawful

[63] We refer to the history of events set out in paragraphs [2] to [18] above. As noted in paragraph [1] above, the parties are in dispute as to whether the decision challenged itself introduced a new policy, or whether it simply implemented a change in the legal background effective since 2003. It will be seen from the above, particularly paragraphs [54] and [61], that what occurred was, in our view, the latter. Nevertheless, possibly because it was always theoretically open to the Council to continue employing only registered teachers to the post of head of a nursery school despite the changes made by the 2003 regulations, consultation was undertaken in relation to the approach to appointments to heads of nurseries. On the basis of the steps taken and events outlined in paragraphs [2] to [18] above, we are satisfied that the consultation undertaken was adequate and effective. What is noticeable from the sequence of events is that (i) the Review was circulated and responses were invited; (ii) there were discussions at meetings; (iii) e-mails and letters sent to Mrs McKenna expressing views were acknowledged and replied to, with confirmation that the views were being taken into account. It is clear from the productions lodged that many of the responses were negative: but that does not mean that meaningful and effective consultation had not taken place. In our opinion, the Lord Ordinary was correct in his reasoning and the conclusion reached in paragraph [59] of his Opinion.

Decision

[64] In the result we have found nothing to support the contention that the decision made in March 2012 was unlawful. Accordingly we agree with the decision made by the Lord Ordinary. We refuse the reclaiming motion and adhere to the interlocutor of the Lord Ordinary dated 18 July 2012. Meantime we continue any question of the expenses of the reclaiming motion.