College board member fails legal challenge to order removing board

A judge in the Court of Session rejected the claim that the subordinate legislation and associated disqualification provisions were “unlawful”.

Lord Clark heard that the petitioner, Peter Laverie, a senior lecturer in social care and teaching fellow at the college who was one of 12 board members removed by the order made by the Scottish Ministers in October 2015, sought judicial review of the order which effected the removal and the statutory provisions providing for disqualification following removal.

The court was told that the petitioner, a member of the teachers’ union the Educational Institute of Scotland (EIS) who was elected to the board by the teaching staff, attended a meeting of the board in February 2015 when he and the other members were informed by the chair of his decision to suspend the principal of the college, although no reasons were given.

The Scottish Funding Council became aware of the suspension and following an investigation a report was produced in July which concluded that the board had mismanaged the college’s affairs and recommended that the Scottish Ministers remove the chair.

In September Cabinet Secretary Angela Constance wrote the board members setting out her concerns in relation to its perceived failings in governance and management and sought members’ comments.

Later that month she met the chair and two other members, at which the chair gave the board’s side of the story and submissions were also subsequently made by solicitors on behalf of the board members in a letter which explained the action which was being taken to address any perceived shortcomings.

However, following consultation with the Scottish Funding Council, in terms of section 24 of the Further and Higher Education (Scotland) Act 1992 the Ministers made the order on 8 October 2015, which came into immediate effect, and issued a statement of reasons listing six perceived failures in governance and management, including meetings without agandas, deficiencies in minutes of meetings, non-replacement of secretary, difficulties in relationship with students, breaking limits on legal expenses, and improper delegation of functions.

On behalf of the petitioner it was argued that section 24(2) of the 1992 Act was outside the legislative competence of the Scottish Parliament because it was “incompatible” with the petitioner’s rights under Article 6(1) of the European Convention on Human Rights.

If not, the making of the order by the Scottish Ministers, insofar as it related to the petitioner and his particular individual circumstances was an “ultra vires” act of the Scottish Ministers because it was a “disproportionate interference” with the petitioner’s Article 11 and Article 1 Protocol 1 (A1P1) Convention rights.

In any event, it was submitted that the Scottish Minister’s decision to make the order was unlawful at common law because: (i) there was “no basis” upon which any reasonable Scottish Minister, having regard to all relevant and material considerations and properly directing himself to the applicable legislation, could have decided to make the order to remove the petitioner from the board; and (ii) the procedure followed by the Scottish Ministers in making the order was “unfair” as it failed to conform to the rules of natural justice and thereby prejudiced the petitioner.

Dismissing the petition, the judge held that the petitioner’s rights under the Convention were not engaged.

In a written opinion, Lord Clark said: “The Board of the College is a public body, involved in the expenditure of public funds, and is supervised by public authorities. Membership of the Board is a matter of public service. As to the office itself, it is an unpaid, voluntary position on the board of a public body, assisting in its management.The office has no private character and no economic aspect. No case law was identified before me to suggest that Article 6(1) applies in such circumstances.”

He added: “The petitioner contended that in various respects the procedure adopted by the respondents failed to comply with Article 6(1). Even if Article 6(1) is engaged, in my view, having regard to the background and the process actually used, the petitioner’s contentions that it was breached are without foundation.”

The judge observed that Article 11 protected the right to freedom of peaceful assembly and freedom of association, including trade unions, but there was “nothing in the order which in any way restricts the right of the petitioner to form or join a trade union or which prevents a trade union (such as the EIS) from being heard” and the petitioner cannot, as a member of the Board of Management, be in any special position by virtue of the fact that he also happens to be active in a particular trade union, the EIS”.

Lord Clark said: “I am therefore of the view that the petitioner’s contentions, if accepted, would result in an innovation upon the nature and scope of the protection of Article 11 under the existing jurisprudence.”

The challenge to the order based on A1P1 also failed, as the petitioner could not cite any authority to support his view a position on a public board was a possession.

The judge also said that the common law challenges were “misconceived”, adding: “Having regard to the facts and circumstances explained above, it cannot be said that the Cabinet Secretary’s decision was irrational at common law. The simple reality is that those who serve on boards of management of this kind, which have important public responsibilities and duties, must recognise that they expose themselves to collective responsibility for the board’s performance.”

As for the challenge to the disqualification provisions, Lord Clark held that the petitioner’s rights were not engaged, and that even if they were they had not been violated.

He concluded: “Having regard to the relatively limited nature of the restrictions imposed by the provisions, albeit lifelong, and their aim, it cannot be said that the legislation does not strike a fair balance.”