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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Malloch v Aberdeen Corp [1973] ScotCS CSIH_2 (01 June 1973) URL: http://www.bailii.org/scot/cases/ScotCS/1973/1973_SC_227.html Cite as: 1973 SC 227, 1974 SLT 253, [1973] ScotCS CSIH_2

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01 June 1973

Lord Keith's Opinion. Delivered on 25th January 1973.—

This action is a sequel to Malloch v. Aberdeen Corporation, 1971 S.C.CH.L.) 85. In that case the pursuer sought reduction of a resolution of the defenders' education committee, dated 18th March 1969, purporting to dismiss him from his employment with them as a teacher. The pursuer's ground for seeking reduction was that, contrary to natural justice, the committee had refused to receive written representations or to afford to the pursuer a hearing before they passed the resolution. The pursuer having failed both in the Outer and in the Inner House of the Court of Session, the House of Lords, by a majority, decided that he was entitled to the remedy concluded for.

In the House of Lords the respondents, Aberdeen Corporation, argued that because the pursuer held his post at pleasure he was not entitled to be heard before dismissal. The majority of the House rejected this argument on the ground that the Public Schools (Scotland) Teachers' Act, 1882 (as re-enacted with modifications in subsequent legislation) contained a plain implication that a certificated teacher had a right to be heard in his defence before he was dismissed. The respondents also argued that a hearing would have been a useless formality, since on a proper construction of regulation 4 (2) of the Schools (Scotland) Code, 1956, as amended by paragraph 2 of the second schedule to theTeachers (Education, Training and Registration) (Scotland) Regulations, 1967, they were legally bound to dismiss the pursuer, since he was admittedly not registered under the Teaching Council (Scotland) Act, 1965. This argument was rejected by the majority of the House on the ground that the pursuer, if afforded a hearing, might have had an arguable case to the effect that this was not the proper construction of the amended regulation, in respect that it did not apply to certificated teachers already employed at the date of the amendment, or if it were, that the amendment of the regulation was ultra vires of the Secretary of State.

The present chapter of the dispute begins on 30th December 1971. On that date the Corporation sent to the pursuer, who was still not registered under the Act of 1965, a letter informing him that at a meeting to be held on 24th January 1972 the education commitee were to consider a motion in these terms:—“That the education committee of the Corporation of the City of Aberdeen, acting in exercise of the powers delegated to them by the said Corporation, hereby resolve to dismiss Mr John Strachan Malloch, 71 Cromwell Road, Aberdeen, who is at present an assistant teacher of mathematics at Hazelhead Academy (Aberdeen Academy), and who is not registered with the General Teaching Council for Scotland, on the ground that his failure to register with the said Council has made his continued employment a contravention of an enactment, namely, paragraph 4 of the Schools (Scotland) Code, 1956, as amended, and therefore unlawful; and on the additional ground that in any event, his continued employment as a teacher not registered as aforesaid is contrary to the policy of the said committee who are not prepared to employ in a school under their management any teacher who is entitled to be registered with the said Council and is not so registered.”

The pursuer was also informed that, if he so desired, the committee were prepared to hear him in relation to the motion at their meeting on 24th January.

The pursuer raised the present action against the Corporation and against the Secretary of State for Scotland on 19th January 1972. In it he concludes (1) for declarator that the purported amendment of regulation 4 (2) of the 1956 Code was ultra vires of the Secretary of State, (2) for declarator that the amended regulation on a proper construction does not apply to teachers already in employment of an education authority but only to those taken into employment after the amendment came into operation, (3) for declarator that the Corporation are not entitled to dismiss the pursuer on either of the grounds set out in the proposed motion, (4) for interdict against the Corporation or its education committee dismissing or purporting to dismiss the pursuer on either of the stated grounds, and (5) for interim interdict. I granted interim interdict on 21st January 1972, after hearing counsel for the pursuer and for the Corporation.

At the procedure roll discussion before me both defenders argued that the action was irrelevant and should be dismissed, while the pursuer argued that the defences should be repelled and decree pronounced de plano. There is no material dispute on the facts, and I am satisfied that the action can be disposed of as matter of relevancy on the pleadings. Before dealing with the arguments submitted, I think it desirable to trace to some extent the legislative history of governmental control over the qualifications of teachers in schools supported at public expense. Section 56 of the Education (Scotland) Act, 1872 provided:—“No person shall be appointed to the office of principal teacher in a public school who is not the holder of a certificate of competency.” It went on to save the interests of any person who at the time of the passing of the Act was the principal teacher of a school under preexisting acts, or of a burgh school, and of certain other persons, by providing that such persons should be deemed to hold a certificate of competency. Sections 57 and 58 provided for the examination under regulations made by the Scotch Education Department (as it was called until 1918) of persons desiring to obtain a certificate of competency, and for the issue by the Department of such certificates. Section 67 of the Act provided for parliamentary grants being made to schools according to the rates and under the conditions contained in the minutes of the Department in force for the time being.

This latter power to lay down conditions for the payment of grants was used to regulate in considerable detail the management of schools not directly, but by prescribing what conditions schools must satisfy in order to qualify for payment of grants. Thus in the 1897 Code of the Scotch Education Department (Cmnd. 8477) regulation 17 provided inter alia that “before any grant is made to a school the Department must be satisfied that … (d) the principal teacher is certificated.” Regulation 41 recognised certain other categories of teacher, namely provisionally certificated teachers, assistant teachers and pupil-teachers, the qualifications of each category being laid down in later regulations.

Later a more discretionary outlook was adopted. In the 1920 regulations as to secondary schools (Cmnd. 801), regulation 7 provided:—“the qualifications of all teachers employed in giving instructions in each subject must be approved by the Department. As a rule no person should be appointed who does not hold a definite qualification under some article of the regulations for the preliminary education, training and certification for various grades of schools.” By 1939 the corresponding regulation (24 (2) of the Day Schools (Scotland) Code of that year (S.R. & O. No. 422)) had come to read:—“the qualifications of all the teachers shall be such as are approved by the Department. Save in exceptional circumstances no teacher will be approved who does not hold a teacher's certificate.” Regulation 25 dealt with special qualifications required in certain cases, leaving open the possibility of exceptions in special circumstances, with the sanction of the Department.

The Re-organisation of Offices (Scotland) Act, 1939 transferred to the Secretary of State the functions of the Scottish Education Department. The Education (Scotland) Act, 1945, repealed sections 56 to 59 inclusive and also section 67 of the 1872 Act. Section 49 empowered the Secretary of State to make regulations with a view to the training of teachers, and also to award certificates of competency to teach, and to prescribe by regulations the conditions of award and the conditions under which they might be withdrawn. Section 55 (1) provided:—“The Secretary of State may by regulations make provision that any payment which he is required or authorised to make by or under the Education Acts shall be subject to such conditions as may be prescribed in the regulations, and that education authorities and other persons to whom such payments have been made shall comply with such requirements as may be specified in the regulations. The said regulations may include codes relating to the conduct of schools, junior colleges and other educational establishments and the education to be provided therein.” Under the consolidating Act of 1946, section 49 (2) of the 1945 Act became section 77 (2) and section 71 of the 1945 Act became section 77. Under the latter enactment the Secretary of State made the Schools (Scotland) Code, 1950 (S.I. No. 915), regulation 5 (2) of which was in these terms:—“Save as hereinafter provided, every teacher employed by an education authority shall be a certificated teacher holding the qualification required by this Code for the post in which he is employed.” Regulation 5 (3) provided for the temporary employment in special circumstances of certificated teachers not holding the appropriate qualification for his post. Regulation 6 prescribed the particular qualifications for certain posts. Regulation 29 saved the rights of teachers who, when the Code came into operation, held a post for which the Code prescribed a particular qualification and did not hold that qualification. In 1956 the Secretary of State made a new Code, The Schools (Scotland) Code (S.I. No. 894), and that of 1950 was revoked. Regulation 4 (2) and (3) are in the same terms as regulation 5 (2) and (3) of the 1950 Code. The qualifications for particular posts were altered to some extent, but regulation 30, the saving provision, is in the same terms as regulation 29 of the 1950 Code.

The Education (Scotland) Act, 1956, by section 9, introduced a modified section 77 of the 1946 Act, but does not otherwise bear on the matters under review. The Local Government and Miscellaneous Financial Provisions (Scotland) Act, 1958, however, introduced a significant change in the pre-existing pattern. Section 6 and paragraph 6 (1) of the fourth schedule to the Act added the following sub-section to section 1 of the 1946 Act:—“(8) the Secretary of State may make regulations prescribing the standards and general requirements to which every Education Authority shall conform in exercising their functions under this section.” The reason for this was that the Act of 1958 did away with grants in aid of expenditure by education authorities, abolishing the Education (Scotland) Fund constituted by section 69 of the 1946 Act, and substituting for this and other grants a system of general grants. It was thus rendered no longer possible to adject conditions to the receipt of grants by education authorities, and consequently the Secretary of State was … by the new sub-section given power directly to prescribe the manner in which such authorities should conduct their schools. It was recognised that if nothing were done the 1956 Code would cease to apply to education authorities, and consequently it was provided by the Abolition of the Education (Scotland) Fund (Consequential Provisions) Regulations, 1959 (made inter alia under the new section 1 (8) of the 1946 Act,) regulation 12, that the 1956 Code should continue to apply to education authorities.

The Education (Scotland) Act, 1962 was another consolidating Act, Section 1 (2) re-enacted in substantially the same terms section 1 (8) of the 1946 Act. Section 81, relating to training of teachers and certificates of competency, came in place of section 77 of the Act of 1946, and section 85, relating to the dismissal of certificated teachers, re-enacted with minor modifications section 81 of the 1946 Act.

The Teaching Council (Scotland) Act, 1965 provided for the constitution of the General Teaching Council for Scotland. Section 6 (1) imposed upon the council a duty to keep a register of persons who were entitled and had applied to be registered therein. Under section 6 (2) the persons entitled to be registered include any person who is a certificated teacher, and also any person not otherwise qualified for registration whose education, training and fitness to teach are such as, in the opinion of the Council, to warrant his registration. Section 6 (3) empowered the Council to make rules relating inter alia to the payment of such registration fees as might be prescribed with the approval of the Secretary of State. The present annual registration fee is £1. Sections 10 and 11 provide for disciplinary proceedings by committees of the Council against persons on the register. Section 16 (which was not brought into operation until 1968) provided by sub-section (1) for the removal of the Secretary of State's power, under section 81 of the 1962 Act, to award certificates of competency to teach, and by sub-section (2) that any reference in the 1962 Act to a certificated teacher should (with one minor exception and unless the context otherwise required) include a reference to a registered teacher.

Nothing in the 1965 Act bore to make registration with the Council an essential condition of employment as a teacher by an Education Authority, either for teachers already in such employment or for those who might be taken into employment in the future. However, in 1967 the Secretary of State made the Teachers (Education, Training and Registration) (Scotland) Regulations (S.I. 1162). Paragraph 2 of the second schedule provided that in regulation 4 of the 1956 Code, for the words “certificated” and “uncertificated” wherever these occurred, there should be substituted the words “registered” and “unregistered” respectively. These regulations bore to be made under inter alia the powers conferred on the Secretary of State by section 1 (2) of the 1962 Act.

The Education (Scotland) Act, 1969 came into force (apart from some provisions not relevant in this case) on 25th August 1969. It substituted a new section 2 of the 1962 Act in substantially the same terms as section 1 (2). It substituted for section 81 of the 1962 Act (dealing with training of teachers and certificates of competency) a new section 81 dealing with entirely different matters. Section 18 (1) provided that in section 85 of the 1962 Act (dealing with dismissal of teachers) there should be substituted for the word “certificated” wherever it occurred the word “registered,” but by sub-section (2) the effect of this as regards teachers in an institution of further education was postponed until such date as the Secretary of State might by order appoint. No date has yet been appointed. It was common ground before me that the result of section 18 (2) was to put certificated but unregistered teachers in education authority schools, such as the pursuer, in a similar position as regards dismissal to that which prevailed before the passing of the Public Schools (Scotland) Teachers Act, 1882, so that the employment of such teachers was now entirely at the pleasure of the education authority: Morrison v. Abernethy School Board, (1876) 3R. 945. In their case there is now no special procedure to be gone through before dismissal, and no right to be afforded a hearing.

Finally, the Teaching Council (Scotland) Act, 1971, by section 1 (1), empowered the Secretary of State to make regulations requiring Education Authorities and managers of Educational Establishments to deduct registration fees from the salary of any person to whom the Section applies and to remit such fees to the General Teaching Council for Scotland. The persons to whom this section applies are, in terms of sub-section (2), “Persons in the employment of the said authorities or managers on such a date or during such a period as may be specified in the said regulations, who are registered in the said register, and who as a consequence of that employment are required by virtue of any enactment (whether passed or made before or after the commencement of this Act) to be so registered.” Under section 3 (1) “enactment” is defined as including any order, regulation or other instrument having effect by virtue of an Act. Under the power conferred by section 1(1) the Secretary of State made the General Teaching Council (Deduction of Fees for Renewal of Registration) (Scotland) Regulation, 1971 (S.I. No. 296).

On the question of ultra vires, there was first advanced on behalf of the pursuer the argument that the crucial amendment of regulation 4 (2) of the 1956 Code, which the 1967 regulations bore to introduce, was not within the powers conferred by section 1 (2) of the 1962 Act, upon the general ground that the requirement that every teacher employed by an education authority should be a registered teacher could not reasonably be regarded as calculated to promote the adequate and efficient provision of education within the meaning of section 1 (1). I reject this argument. Parliament has thought fit by the 1965 Act to constitute the General Teaching Council for Scotland and to give it various functions as regards the qualification for registration of teachers and the discipline of registered teachers. There can be no doubt that although the Act does not fall to be read as one with the Education Acts, its provisions are closely related to the general system of state education in Scotland. Parliament must necessarily have taken the view that the implementation of these provisions would tend to promote the efficiency of that system. In these circumstances it cannot be held that the Secretary of State could not reasonably take the view that a general requirement regarding the employment of registered teachers would tend towards the adequate and efficient provision of education. I think it is also a relevant consideration that ever since the Act of 1872 the detailed provisions regarding the qualifications from time to time required to be possessed by teachers employed by education authorities have consistently been embodied in subordinate legislation.

The next argument for the pursuer, and it is a more formidable one, was that Parliament had not, on a proper construction of section 1 (2) of the 1962 Act, evinced any intention to empower the Secretary of State to alter the qualifications required for employment as a teacher by an education authority in such manner as to take away the vested rights of persons so employed at the time of the alteration. Accordingly the 1967 amendment of the 1956 Code was ultra vires if and in so far as it bore to have this effect. It is a well established principle of law that a statute should not be held to take away vested rights without compensation unless the intention to do so is expressed in clear and unambiguous terms. (See Colonial Sugar Refining Company Ltd. v. Melbourne Harbour Trust Commissioners, [1927] AC 343, per Lord Warrington of Clyffe at p. 359). I think it follows that no less clear and unambiguous terms are required where it is alleged that a statute has conferred power on a minister to take away vested rights by statutory instrument without compensation. (Cf. Hartnell v. Minister of Housing and Local Government, [1965] A.C. 1134, per Lord Wilberforce at p. 1172.) In my opinion the possession of the qualifications requisite under existing statutory provisions for employment as a teacher connotes the presence of a vested right such as to attract the application of the principle which I have stated. This is, I think, recognised by the express saving of certain vested interests in section 56 of the 1872 Act, regulation 29 of the 1950 Code, and regulation 30 of the 1956 Code. It may be that such express saving of rights in subordinate legislation was strictly essential at times when the general requirements regulating the conduct of schools constituted merely conditions requisite for receipt of grants, not direct statutory obligations, but not strictly essential after the position had been changed in 1958 by the introduction of the new section 1 (8) of the 1946 Act. But however that may be, there appears to have been clear recognition that a teacher suitably qualified for a post actually held by him had a right to continue to hold that post notwithstanding a change in the qualifications laid down for it.

It was argued for the defenders that, whatever might be the position regarding changes in qualifications concerned with the education or training of teachers, a new requirement of registration under the 1965 Act did not involve any encroachment on vested rights. A certificated teacher was entitled upon application to be registered automatically under section 6 (2) (a) of the Act, so that in his case registration was a mere formality, and the annual payment of a fee of £1.00 was of no significance. In my opinion this is not correct. Registration under the Act involves considerably more than a mere formality. In particular, it involves submission to the disciplinary procedures of the General Teaching Council for Scotland. It is not for me to inquire into the reasons for the pursuer's unwillingness to register. It is sufficient to say that in my view registration is an onerous matter, and that to make registration an essential condition for employment as a teacher involves, for any person already employed as such and holding the qualifications theretofore accepted as warranting his competency to teach, an encroachment on a vested right.

The question, therefore, which I have to decide, on this branch of the case, is whether the 1967 amendment of the 1956 Code was authorised by section 1 (2) of the 1962 Act in so far as the amendment bore to affect certificated teachers in employment when it came into force. I proceed at this stage on the basis that, as contended for by the defenders, the amended regulation 4 (2) of the 1956 Code did on a proper construction apply to such teachers. I shall consider later whether or not that is indeed the proper construction. I start from the premise that it is necessary to find in the 1962 Act clear and unambiguous language evincing Parliament's intention to empower the Secretary of State to encroach on vested rights of teachers in the way in which he has done. The enactment relied on as conferring the power in question must be read in context, and in the light of surrounding circumstances. Legislative history affecting the same subject matter may be looked at, and should there be any ambiguity, reference can be made for the purpose of resolving that ambiguity to a later Act in pari materia; (Kirkness v. John Hudson & Company Ltd., [1955] A.C. 696 per Viscount Simonds at p. 711). On the other hand, even where two Acts are to be read together, “it is not permissible to make what is clear in the earlier Act obscure and ambiguous by reference to something said in the later Act.” (Ibid, at p. 713.) A clear provision in the earlier Act can only be overridden by an express retrospective declaration in the later Act as to the meaning of that provision. The enactment relied on by the defenders as authorising the Secretary of State to make the crucial amendment of 1967 is section 1 (2) of the 1962 Act, coupled with section 144 (5) (relating to the variation and revocation of regulations). I cannot find in section 1 (2) any clear and unambiguous statement of Parliament's intention to authorise the Secretary of State to encroach on vested rights of teachers. There is a presumption against such having been the intention, and in my opinion section 1 (2) contains no words apt to rebut this presumption. That is perhaps enough to settle the question, but in my view confirmation is to be gained from the earlier legislative history. I have already noted that the 1872 Act, when introducing the requirement of certification for principal teachers, expressly saved the interests of certain persons already employed as such. Various Codes from time to time in force up to 1950 did not bear to make certification the absolute rule for teachers other than principal teachers. The Scottish Education Department and later the Secretary of State retained a certain discretion in the matter, and I see no reason to suppose that this discretion was not sufficient, in appropriate cases, to avoid interference with vested interests—though with the passage of time and the general establishment of the system of certification, it is reasonable to infer that such cases must have become rare. Further, up until 1945 compliance by education authorities with the Regulations regarding teachers' qualifications could be enforced only by the threat of withholding grants. It is difficult to envisage that serious occasion for such threats is likely to have arisen. Under the 1945 Act education authorities who had received grants became directly obliged to conform to the regulations. By virtue of the 1950 Code certification bore to be made a sine qua non of employment as a teacher. The pursuer avers in article 3 of the Condescendence that there were then many uncertificated teachers employed who did not have to leave their employment by reason of their being uncertificated. This averment is plainly made in the light of the observation of Lord Reid in Malloch v. Aberdeen Corporation at p. 106, made in relation to the proper construction of regulation 4 of the 1956 Code, that “It is a recognised principle that legislation should be interpreted in light of the mischief which it appears to have been intended to remedy. So I would want to know whether at the time when a regulation corresponding to regulation 4 was first enacted there were any uncertificated teachers then in employment who had to be dismissed.” This averment is denied by the Secretary of State and not admitted by Aberdeen Corporation. I do not think it necessary to the decision of the present point that this dispute of fact should be resolved. By 1950 the system of certification had been established for over 75 years. Having regard to the provisions of the earlier Codes, it must have been generally known that certification was normally required as a condition of employment, and that exceptions were subject to the approval of the Secretary of State. There is no saying how many exceptions there may have been, but those who were the subject of them must have known that they were not considered to be properly qualified. I cannot regard such persons as having acquired vested rights merely by virtue of having been taken into employment as acknowledged exceptions to the general rule. They may not have been appointed on a permanent basis. So I do not consider that regulation 5 (2) of the 1950 Code involved any encroachment on vested interests. Strict compliance with this regulation may or may not have been waived, though I observe that the 1950 Code contains no provision corresponding to regulation 28 of the 1956 Code, which reserves power to the Secretary of State, in exceptional circumstances and on good cause shown, to authorise a departure from any provision of this Code. In my view it would make no difference whether or not strict compliance was waived. The same applies to regulation 4 (2) of the 1956 Code. What I do consider significant is that when the Secretary of State by the 1950 Code, and again by the 1956 Code, introduced new particular teaching qualifications for particular posts, he expressly saved the vested interests of teachers already holding such posts. This indicates to me that he did not consider himself to be authorised to abrogate vested interests. In 1958 the Secretary of State was, as I have mentioned, empowered for the first time to regulate directly by statutory instrument the conduct of education authorities schools. The new section 1 (8) of the 1946 Act, precursor of section 1 (2) of the 1962 Act, was, as I have said, introduced by reason of a change in the grant system, and there is nothing in its terms or to be gathered from a consideration of the mischief which it was intended to remedy, which tends to evince any purpose of innovating upon the pre-existing policy of avoiding interference with vested interests of teachers. Under the power thereby conferred, the 1956 Code was re-enacted in precisely the same terms as before. The 1962 Act was a consolidating one. The 1965 Act cannot have been in contemplation even in 1962, still less in 1958, from the Act of which year section 1 (2) of the 1962 Act was derived. It would be strange if an enactment of 1958 were to be held to authorise the Secretary of State to impose, to the prejudice of vested interests and in complete reversal of previous policy, an essential condition for continued employment as a teacher, namely registration, which did not exist as a possible condition until 1965.

The defenders founded, in support of their argument that the crucial 1967 amendment of the 1956 Code was intra vires, upon various provisions in subsequent legislation. They referred in particular to section 16 (1) of the 1965 Act, providing for removal of the Secretary of State's power to award certificates of competency to teach, to the complete repeal by the 1969 Act of section 81 of the 1962 Act, resulting in the abolition of the Secretary of State's power to withdraw certificates of competency, to the transfer by section 18 (1) of the same Act from certificated to registered teachers of the special safeguards against dismissal contained in section 85 of the 1962 Act, and to sections 1 (1) and 3 (1) of the 1971 Act, the effect of which I have described above. It was argued that these provisions evidenced that it was the policy of Parliament to substitute registration for certification as the criterion of eligibility for employment as a teacher by an Education Authority. That may be accepted, but in my opinion it does not necessarily follow that Parliament intended to remove entirely the vested rights of certificated teachers, in employment at the date of the 1967 regulations. Section 2 of the 1969 Act, under which the 1967 regulations as well as the 1956 Code are now to be deemed to have been made, is in substantially the same terms as section 1 (2) of the 1962 Act, under which they were actually made. In my opinion Education (Scotland) Act of the 1962 Act clearly did not authorise the Secretary of State to amend the 1956 Code so as to take away vested rights. In that respect I can find no ambiguity in section 1 (2). No provision in any of the subsequent Acts contains any retrospective declaration as to its meaning. It follows that, on a proper application of the principle expounded by Viscount Simonds in Kirkness v. John Hudson & Company Ltd. the meaning of section 1 (2) cannot be controlled or modified by the subsequent Acts.

It was also argued that since the 1967 regulations had been laid before both Houses of Parliament for the requisite period and had not been annulled, they must be taken to have received the direct authority of Parliament. This argument, if sound, would preclude any successful attack on the validity of any modern regulations, since all are now laid before Parliament, and I do not accept it. The present case is, in my view, distinguishable from Institute of Patent Agents v. Lockwood, (1894) 21 R. (H.L.) 61. The rules in issue there had been made under an enabling power (section 1 of the Patent Designs and Trade Marks Act, 1889) which contained a specific provision that the rules, if laid before Parliament for 40 days and not annulled, should be of the same effect as if they were contained in the principal Act. The corresponding provision of the 1962 Act, section 144 (4), merely provides that any statutory instrument containing regulations made by the Secretary of State under the Act shall be subject to annulment in pursuance of a resolution of either House of Parliament. In passing, it may be observed that the nature and effect of the crucial amendment, perhaps radically affecting teachers who possess qualifications historically accepted (to use the words of Lord Wilberforce in Malloch v. Aberdeen Corporation at p. 122) may have been by no means obvious, considering that the change was effected by the bare alteration of one word in regulation 4 (2) of the 1956 Code, and that the proper construction of the amended regulation 4 (2) is open to question.

I am of opinion for these reasons that if and so far as the crucial amendment on a proper construction affected certificated teachers at the time in the employment of education authorities it was ultra vires. I now turn to consider the proper construction. I have already quoted the terms of regulation 4 (2) of the 1956 Code in its original form. It is for consideration first whether the words “teacher employed” mean teacher who shall be employed or teacher who is or shall be employed. This is the question posed by Lord Reid in Malloch v. Aberdeen Corporation at p. 105. In the circumstances of that case it was unnecessary for him to answer it and he did not do so. Various arguments were canvassed on either side, but there is only one which I have found convincing. It was to the effect that, if the regulation be interpreted as looking only to the future, there would be no need for regulation 30 which saves vested interests. It is of course apparent that vested interests are saved only in relation to teachers who, when the Code came into operation, were employed in posts for which the Code prescribed new particular qualifications. Broadly speaking, such teachers, if they held the qualifications previously prescribed for the post, were to be deemed to hold the new qualifications. This seems to me to make it plain that “every teacher employed,” in regulation 4 (2) must mean every teacher who is or shall be employed, because regulation 30 obviously recognises that there might be teachers already employed in certain posts who, because they did not hold the new qualifications for these posts, would, failing specific provision, be ineligible for continued employment therein. The word “teacher” where it occurs for the second time in regulation 4 (2) is qualified not only by the word “certificated” but also by the words “holding the qualifications required by this Code for the post in which he is employed.” It is true that there is no saving for the interests of uncertificated teachers, but for the reasons I have expressed when dealing with the earlier legislative history of the matter, I do not consider this unreasonable or surprising. Further, adverse effect was capable of being mitigated by use of the Secretary of State's power, under regulation 28, to authorise a departure from any provision of the Code in exceptional circumstances and on good cause shown. The next question relates to the effect of the 1967 amendment of regulation 4 (2), substituting the word “registered” for the word “certificated.” In Malloch v. Aberdeen Corporation Lord Reid said at p. 106 that this substitution could not alter the proper pre-1967 interpretation of the regulation. Senior counsel for the pursuer argued that the amendment could and did alter the proper construction of regulation 4 (2), since in substance it re-enacted it in a different form in a different context at a time when the saving provisions of regulation 30 were spent. With the greatest respect, I agree with the view expressed by Lord Reid. I do not consider that the alteration of one word in the regulation can be taken to have the effect of altering the meaning of other words. If it had been intended to do this, I would have expected that to be made clear, and this could easily have been done. I have therefore come to the conclusion that the amended regulation 4 (2) did bear to affect teachers already employed, not only those who might be taken into employment in the future, and that it was to that extent ultra vires of the Secretary of State. I am prepared to pronounce decree of declarator accordingly, and I refuse decree in terms of the second conclusion of the summons.

It follows that Aberdeen Corporation are not entitled to dismiss the pursuer on the ground that his failure to register with the General Teaching Council for Scotland has made Ms continued employment unlawful. If the Corporation did so, they would have proceeded on a view of the law which I have found to be erroneous, and to that extent would have misdirected themselves in law. The dismissal would therefore be bad. It remains to consider whether the Corporation are entitled to dismiss the pursuer on the second ground stated in the proposed resolution, namely that his continued employment as an unregistered teacher “is contrary to the policy of the (education committee) who are not prepared to employ in a school under their management any teacher who is entitled to be registered with the said Council and is not so registered.”

Now that the safeguards against dismissal contained in section 85 of the 1962 Act no longer apply to certificated teachers who are not registered, the pursuer holds his employment with Aberdeen Corporation entirely at their pleasure. He has no right to be heard before being dismissed. In Ridge v. Baldwin, [1964] AC 40 Lord Reid said at p. 66 “I fully accept that where an office is simply held at pleasure the person having power of dismissal cannot be bound to disclose his reasons. No doubt he would in many cases tell the officer and hear his explanation before deciding to dismiss him. But if he is not bound to disclose his reasons and does not do so, then, if the Court cannot require him to do so, it cannot determine whether it would be fair to hear the officer's case before taking action.” In the present case the Corporation have made known ab ante the grounds on which it proposes to dismiss the pursuer, and in my opinion it is open to the Court to consider the validity of these grounds in the same manner and to the same extent as if the dismissal had already taken place and these reasons for it had been openly assigned by the Corporation. The principles applicable in such a situation were thus stated by Malins V.C. in Hayman v. Governors of Rugby School, (1874) L.R. 18 Eq. 28, at p. 68 “I think the clear result of the numerous authorities cited on both sides in the argument of this case is that all arbitrary powers, such as the power of dismissal, by exercising their pleasure, which is given to this governing body, may be exercised without assigning any reason, provided they are fairly and honestly exercised, which they will always be presumed to have been until the contrary is shewn, and that the burthen of shewing the contrary lies upon those who object to the manner in which the power has been exercised. No reasons need be given, but if they are given the Court will look at their sufficiency.”

Again, in Wright v. Marquis of Zetland, [1908] 1 KB 63 at p. 70 Vaughan Williams L.J., with the concurrence of the other members of the Court of Appeal said “I wish also to add, with regard to the effect of the words ‘at pleasure,’ that, giving these words the widest possible meaning, I think that the pleasure must be exercised in good faith. Therefore, if the dismissal of a master be what I may, for the sake of brevity, call a corrupt dismissal, I think the Court might set it aside. There is, however, no suggestion of that sort here. I further think that there may be cases in which, the governors or the headmaster, as the case may be, having thought fit to assign a cause for the dismissal of a master, although under no obligation to do so, and that cause, when brought before the Court, appearing to be an insufficient cause, the Court may, in a case where the dismissal is corrupt, set aside the dismissal.” As regards the sufficiency or insufficiency of the reason for the dismissal the function of the Court is limited to considering whether or not a reasonable person in the position of the party exercising the power of dismissal could properly have regarded the reason assigned as a sufficient one in the circumstances. In Short v. Poole Corporation, [1926] 1 Ch. 66 an education authority formed the view that, as matter of policy, the retention of married women teachers in their elementary schools was inadvisable, and in pursuance of that policy dismissed the plaintiff, a married woman. The Court of Appeal decided that they were entitled to do so. Sargant L.J., said at p. 94 “A mere decision to discontinue the employment of married women teachers, or of any women teachers at all, or a decision to employ women teachers only, could not, in my judgment, be interfered with by the Courts, however mistaken such a decision might appear to be.” In Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, [1948] 1 KB 223 Lord Greene M.R., in a similar but not identical context said at p. 229 “It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word ‘unreasonable’ in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting ‘unreasonably.’ Similarly, there may be something so absurd that no sensible person would ever dream that it lay within the powers of the authority. Warrington L.J., in Short v. Poole Corporation gave the example of the red haired teacher dismissed, because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another.”

In the present case there is no suggestion of bad faith on the part of Aberdeen Corporation. It was argued for the pursuer that the policy adopted by the Corporation and proposed to be acted on was unreasonable, that it was not truly the policy of the Corporation but was foisted upon them by the Secretary of State, and that it was proposed to be applied inflexibly. I am unable to hold that the policy stated by the Corporation is unreasonable. The education committee, or a majority of it, might well genuinely consider it to be in the interests of the efficiency of their schools to refuse to employ teachers who are eligible for registration under the 1965 Act, but who are not so registered. The application to all their teachers of the disciplinary system set up under the Act might well be regarded as a sufficient advantage to justify the view taken by the committee. It was suggested that the policy would admit of the employment of teachers who were not entitled to be registered, but that is not, in my view, a proper inference to be drawn from the terms of the policy statement contained in the proposed resolution and referred to by the Corporation on record. I can perceive nothing arbitrary, frivolous or vexatious in that policy such as would entitle the Court to find it unreasonable in the sense of the authorities. Further, I can find nothing in the pursuer's averments which, if proved, could possibly lead to the conclusion that the Corporation's policy of not employing unregistered teachers had been adopted at the behest of the Secretary of State irrespective of the question of whether or not the employment of such teachers is lawful. As regards the alleged inflexibility of the policy, I find nothing in the pleadings to warrant the view that the Corporation would under no circumstances admit any exception to it, but I am not in any event prepared to say that the Corporation would not be entitled to refuse to make any exceptions.

I am therefore not prepared to grant declarator that the first-named defenders are not entitled to dismiss the pursuer upon the second ground set forth in the proposed resolution.

I shall continue the case for further hearing on the form of interlocutor to be pronounced.

The second defender reclaimed and the reclaiming motion was heard before the First Division (without the Lord President) on 26th and 27th April, and 9th, 15th and 16th May 1973.

Argued for the pursuer (respondent);—The amendment purported to be made to the Schools (Scotland) Code, 1956, is ultra vires of the Secretary of State in that it takes away from certificated teachers such vested rights as they possess in virtue of certification while providing them with no compensation in respect of the loss of such rights, the taking away of their rights being expressed in clear and unambiguous terms. The status of a certificated teacher and the rights flowing from that status could not be regarded as the equivalent of the status and rights of a registered teacher, on account of the nature of the training required in order to obtain a certificate and the nature of the status among teachers to which the holder of a certificate was entitled. A certificate could be withdrawn for misconduct, but in all other respects it was permanent. The rights flowing from it were vested in the holder, and (in as much that they represented his entitlement to employment) had a value which was capable of assessment, and therefore of compensation. To withdraw the status of a certificated teacher without providing him with compensation was in the circumstances to withdraw from him a vested interest. The education authority's policy as regards refusal to employ or to continue to employ non-registered teachers could not be justified on any reasonable ground. The policy was conceived in bad faith and had no adequate explanation other than the desire of the education authority to exclude from their employment such persons as the pursuer. The pursuer was not aware of any ground on which his ability as a teacher could be challenged, in such a way as to justify the termination of his employment with the education authority.1

Argued for the first-named defenders;—These defenders were entitled to dismiss the pursuer from his employment with them. First, he was a certificated teacher but not registered, and, in consequence of statutory provisions and regulations made under these provisions, it was no longer competent for these defenders to have in their employment teachers who, though certificated, had not registered. Secondly, in any event, it was the policy of these defenders not to employ teachers who were not registered, and to dismiss teachers who had not registered. Under section 1 (2) of the Education (Scotland) Act, 1962, the Secretary of State had very wide powers, and as a consequence of these powers he could make conditions such as registration obligatory for teachers. A teacher was entitled, if certificated, to continue in his employment by registering, but if he did not register, deprivation of employment was not to be regarded as the deprivation of a vested right, as the certificate itself did not give him a right to be employed, or, for that matter a right to continue in employment. The question of registration, moreover, involved no obligation on a teacher other than the payment of a small registration fee and submission to new disciplinary procedures more favourable to his own interests than under the previous system. Even if the Secretary of State's amendment of the Schools (Scotland) Code, 1956, were to be declared ultra vires, these defenders were entitled as a matter of policy to dismiss the pursuer. He was employed at their pleasure and could be dismissed by them at any time. These defenders had every right to form a policy in such matters as the employment of non-registered teachers, and had in fact done so. Their policy was founded upon considerations both proper and reasonable: these defenders have not acted towards the pursuer in bad faith or corruptly.2

Argued for the second-named defender (reclaimer);—By section 1 (2) of the Education (Scotland) Act, 1962, the Secretary of State was given power to provide that education authorities should employ only such teachers whose qualifications confirmed to such standards and general requirements as he might lay down, and one such standard was (in virtue of the Schools (Scotland) Code, 1956, as amended by the Teachers (Education, Training and Registration) (Scotland) Regulations, 1967) the requirement that a teacher should be registered. The 1962 Act made no provision with respect to any vested rights of certificated teachers who were not registered, and in the absence of any special provision in the Act or elsewhere, there was no reason to suppose that the Secretary of State was not entitled to make regulations requiring the employment only of registered teachers. As to the question of vested rights and the principle that a statute should not be held to take away such rights without compensation unless the intention to do so was expressed in clear and unambiguous terms: First, the pursuer had no such right as would attract the operation of the principle. He had no right that could be regarded as property for which compensation could be assessed, not having any right to be employed as a teacher, and though certificated and hitherto in employment having no right to continue in employment as he was employed only at pleasure. There must be a vested right in a strict sense, and here the pursuer's highest right was to be eligible (if he registered) to continue in the employment of an education authority. The pursuer's rights, such as they were, did not stem from legislation, but were incidental to the duties imposed by statute on education authorities. Moreover, far from being deprived of any right he might possess, the pursuer was for reasons of principle depriving himself of that right by refusing to register. Secondly, any vested right which the pursuer had was never taken away. The pursuer, because he was enabled by virtue of being a certificated teacher to register was at liberty to do so, and in so doing became possessed of rights under the new system. It was not possible for Parliament to “deem” certificated teachers to be registered because of the requirement of an application to be placed on the register by the certificated teacher involved, although upon such application being made registration would automatically follow. Thirdly, even if the pursuer did have a vested right and even if the principle with respect to compensation was applicable, Parliament none the less evinced the intention that the Secretary of State should have power to make such regulations as he did, having the effect that they did in the pursuer's case. Registration was to replace certification in a situation where conditions of employment were always subject to subordinate legislation. Moreover, if the pursuer were not registered under the new system he would not be subject to any disciplinary body, and would not as a non-registered teacher have any rights under the new disciplinary procedures, and such could not have been the intention of Parliament in introducing the new system.3

At advising on 1st June 1975,

Lord Migdale —

This is a reclaiming motion from an interlocutor by Lord Keith dated 7th February 1973 in which he granted a declarator in Mr Malloch's favour against part of a motion by the first defenders to dismiss him from his position as a teacher in one of their schools but refused to grant declarator in his favour on the other part of that motion. The declarator in Mr Malloch's favour proceeded on the view that a regulation made by the second defender (whom I will refer to as “Secretary of State”) was ultra vires of his enabling powers because it would deprive Mr Malloch of a vested interest. The reason why the Lord Ordinary refused to declare that dismissal was bad for the reasons stated in the second part of the motion was that it was within the discretion of the first named defenders (whom I will call “the Corporation”) to dismiss him.

Before us the Secretary of State attacked the Lord Ordinary's decision on the validity and effect of his regulation and Mr Malloch attacked the Lord Ordinary's refusal to grant declarator against the Corporation on the second reason set out in their motion to dismiss him.

This is another step in a dispute which has been going on for some years within the teaching profession. We were told about it by Mr Malloch (who ddressed us in person, with clarity and determination) and was accepted by counsel for the Secretary of State and for the Corporation as generally correct. What we were told cannot affect our interpretation of statutes or regulations but it helps me to understand why certain steps were taken and why Mr Malloch has not registered with the General Teaching Council.

The control of education in local schools and in particular the machinery for training teachers, setting the standards to which aspiring teachers must attain and their fitness to teach was in the hands of a department of the Government and latterly under the Secretary of State. When the trained student had obtained the necessary qualifications and proved himself suitable to teach in a school, he obtained, from the Secretary of State, a certificate of competency to teach and this certificate became his passport to the teaching profession. It did not give him a post but enabled him to apply for one. It was for long a condition that only a certificated teacher could be appointed to teach in a local authority school. To this there were certain exceptions within the discretion of the Secretary of State which do not concern us.

Within the body of teachers in Scotland there grew an up opinion that their profession should enjoy a measure of self government such as was enjoyed in the medical profession, in nursing, in dentistry and by accountants and architects. A Committee was set up, now referred to as the Wheatley Committee, to inquire into the matter. It reported to the Secretary of State in June 1963 (Report on the Teaching Profession in Scotland, 1963 Cmnd. 2006), and it recommended that a General Teaching Council should be set up which would regulate the admission of teachers into the profession, deal with internal discipline and have the power to dismiss teachers. It also recommended that there should be a register of teachers and that registration should be made a condition of permission to teach and that the Council should be given authority to charge a fee for registration.

Following on this report the Teaching Council (Scotland) Act, 1965,4 was passed. It was to come into operation on dates to be prescribed by the Secretary of State. It set up a General Teaching Council and by section 6 (1) it became the duty of the Council to establish and keep a register of persons entitled to be registered and who applied to be registered. Any person was entitled to be registered if he was a certificated teacher and paid the fee. The Council would issue certificates of registration. It also provided that machinery for discipline be set up and to deal with dismissal. It took away the power of the Secretary of State to award certificates of competency to teach. It did not deal with teachers already holding teaching posts under a certificate of competency in express terms and it did not make registration with the Council compulsory or say that holding a certificate of registration was an essential condition for holding a teaching post in local authority schools. Following on this Act the Secretary of State made theTeachers (Education, Training and Registration) (Scotland) Regulation, 1967, 5 which is at the core of this dispute.

Mr Malloch said that he and some other teachers did not like the idea of being under the General Teaching Council and for that reason he had not registered. The Corporation took the view that because he had not done so it was no longer lawful under the Regulation to employ him as a teacher. They accordingly told him they had resolved to dismiss him. He then raised an action in the Court of Session concluding for reduction of the resolution and notice of dismissal. He was unsuccessful before Lord Avonside in the Outer House and before the Second Division. He then appealed to the House of Lords which allowed his appeal, and remitted the case to the Court of Session with a direction to reduce the dismissal. The reason for allowing the appeal was that the Education Committee of the Corporation had acted without affording Mr Malloch a hearing. Three of their Lordships in addition said that he might have had an argument against the validity of the regulation of 1967. That could not be argued before their Lordships on his pleadings.

Following on that decision the education committee of the Corporation set down a motion to dismiss Mr Malloch and invited him to be heard on it. The terms of the motion and intimation of the date of the proposed hearing were sent to Mr Malloch on 30th December 1971. The hearing was to be on 24th January 1972 but on 19th January 1972 Mr Malloch raised the present action against the Corporation and the Secretary of State. In it he seeks declarator (first) that the regulation of 1967 was ultra vires; (second) that a regulation in the Schools Code of 1956 as amended by the Regulation of 1967 did not, on a proper construction, require that a teacher already in employment should become registered but applied only to teachers entering employment after the amending regulation came into operation; (third) for declarator that the Corporation were not entitled to dismiss him upon either of the two grounds in the motion to dismiss him; and (fourth) for interdict.

The grounds or reasons for dismissal set out in the motion were, (firstly), that his continued employment as a teacher who was not registered was a contravention of the Schools (Scotland) Code, 1956, paragraph 4, as amended by the Regulation of 1967 and therefore unlawful; and (second) in any event his continued employment as a teacher not registered was contrary to the policy of the education committee who were not prepared to employ, in a school under their management, any teacher who was entitled to be registered and was not so registered. The Lord Ordinary held the first reason to be bad but upheld the second reason.

So the position before us is that counsel for the Secretary of State attacked the decision of the Lord Ordinary that the amendment by the regulation of 1967 of the earlier regulation of 1956 was ultra vires in so far as it injured an interest vested in Mr Malloch. Then Mr Malloch (who supported the Lord Ordinary's decision on that point) himself attacked the decision on the validity of the Corporation's motion to dismiss him as a matter of their policy that they would not continue to employ a teacher who was entitled to register but had not done so. On the first issue counsel for the Corporation informed us that they offered no separate contentions on the ultra vires point and that, if we adhered to the Lord Ordinary's view that the amendment to the regulation of 1956 was ultra vires in respect of Mr Malloch, they would concede that the first reason or ground of dismissal in their motion was bad. On the other hand if we reversed the Lord Ordinary's decision and decided that the regulation was not ultra vires, they would seek to justify Mr Malloch's dismissal on both grounds. If we upheld the Lord Ordinary on the first ground, they would support the Lord Ordinary on the second ground in the motion.

The early history of the law dealing with education in Scotland has been fully set out by Lord Reid in his speech in Malloch v. Aberdeen Corporation6 at p. 247 and is also dealt with by the Lord Ordinary in this case. Statutes and subordinate legislation provided that after a student qualified and passed tests of fitness to teach he was granted a “certificate of competency” and so became a “certificated” teacher. This was, as Mr Malloch aptly put it, the key which would unlock the door and allow him to enter the realm of employment as a teacher. Certificates of competency to teach have for long been recognised in Acts of Parliament dealing with education.

The Education (Scotland) Act, 18727 gave the Scottish Education Department power to issue certificates of fitness to teach in local schools and provided that all principal teachers must hold a certificate. By the Reorganisation of Offices (Scotland) Act, 1939 8 the functions of the Scottish Education Department were transferred to the Secretary of State who was authorised to award certificates of competency to teach to those who had fulfilled the requirements for these posts.

By the Education (Scotland) Act 1946,9 section 77 (2), the Secretary of State was authorised to award certificates of competency to teach and might by regulation prescribe the terms of the certificates, the conditions of award and the conditions under which they might be withdrawn.

In 1956 the Secretary of State made the Schools (Scotland) Code, 1956,10 regulation 4 (2) of which said:—“Save as hereinafter provided, every teacher employed by an education authority shall be a certificated teacher holding the qualifications required by this Code for the post in which he is employed.” I have italicised the word “certificated” because it was the alteration of this word by the Teachers regulations of 1967 11 which is of importance which has given rise to this litigation. Paragraph 6 and the second schedule 12 said: “2. In regulation 4 (of the Code of 1956) for the words ‘certificated’ and ‘uncertificated’ wherever they occur there shall be substituted the words “registered’ and ‘unregistered’.” So regulation 4 (2) of the 1956 Code then read “every teacher employed by an education authority shall be a registered teacher holding the qualifications required.” The effect of this alteration hurt Mr Malloch because, for his own reasons, he had not registered although he held all the necessary qualifications for the post in which he was then employed and had his certificate of competency to teach to prove it. It was on this regulation that the Corporation based their first ground in the motion of dismissal: that it was not lawful to retain him in employment. Mr Kirkwood, for the Secretary of State, said that the effect of the amendment was to make “registration” not “certification” the condition for employment.

Mr Malloch challenged the validity of this amendment. He pointed out that Parliament has nowhere said that registration is to be compulsory and has nowhere said that certification is no longer to be a passport to employment as it always had been. This change had been brought about by the regulation of 1967 and was not authorised by any Act of Parliament.

The first issue before us is whether it was within the statutory authority of the Secretary of State to make this amendment, bearing in mind that it made a radical alteration in the hitherto accepted method of evidencing a teacher's qualifications. The Schools (Scotland) Code, 1956, purports to have been made in exercise of powers conferred on the Secretary of State by three sections of the Education (Scotland) Act, 1946. Of these only one which might bear on regulation 4 (2) of the Code is section 76 (2) which empowered the Secretary of State to make regulations providing that any payment of money made by him shall be subject to such conditions as may be specified in the regulations. Section 77 (2) of that Act empowered the Secretary of State to award certificates of competency to teach and to prescribe the form and conditions of awards and withdrawals. That section is not among those referred to as an enabling power in the Code.

Between the making of the Code in 1956 and the making of the amendment in the Teachers Regulations of 1967, two Acts of Parliament were passed. The first was the Local Government and Miscellaneous Financial Provisions (Scotland) Act, 1958,13 which by the fourth schedule paragraph 6 (1) introduced an additional sub-section (8) at the end of section 1 of the 1946 Act. This was in the following terms: “The Secretary of State may make regulations prescribing the standards and general requirements to which every education authority shall conform in exercising their functions under this section.”

When this sub-section was added there were already in the act of 1946, section 77 (2) which gave the Secretary of State powers to award certificates of competency to teach and to prescribe by regulations the terms and conditions of his awards and section 71 (1) which gave the Secretary of State power to attach conditions to payment of grants.

The second of the Acts was the Teaching Council (Scotland) Act, 1965,14 which, as I have said, set up the General Teaching Council for Scotland and provided that it shall be the duty of the Council to establish and keep a register containing the names, addresses and qualifications of persons entitled to be registered therein and who apply in the prescribed manner to be so registered. It also provided that certificated teachers were entitled to be registered. This Act also, by section 16, made some amendments to the Education (Scotland) Act, 1962, 15 and section 81 (1) (a) ceased to have effect. This was the provision which gave the Secretary of State power to award certificates of competency to teach in schools and sub-section (3) was amended so as to delete the word “certificated.” Section 16 (2) provided that in the Act of 1962 “any reference to a ‘certificated teacher’ shall, unless the context otherwise required include a reference to a teacher registered under this Act.” I do not know whether this is to be read as meaning that thereafter references to a “certificated teacher” must be read as a reference to a teacher who is both registered and certificated or whether it refers to teachers who are either certificated or registered.

The Education (Scotland) Act, 1962,16 (by section 147 and the eighth schedule) repealed the Act of 1946 but certain of its provisions appeared again. Section 1 (8) now became 1 (2) in the same terms as the amendment introduced in 1958. Section 71 (1) reappeared as section 76 (1) and provides that the Secretary of State “may by regulations make provision that any payment under this Act shall be subject to such conditions as may be prescribed in the regulations.”

The regulations of 1967 purport to have been made in exercise of powers conferred on the Secretary of State by section 7 (1) of the Teaching Council (Scotland) Act, 1965. This section gives powers to make regulations prescribing conditions to be fulfilled by a person to qualify him for admission to a course of training to be a teacher, and has no bearing on the present issue. They also purport to have been made in exercise of powers conferred by certain sections of the Education (Scotland) Act, 1962, as amended. These are sections 1 (2), 75 (3), 76 (1), 81 (2), 102 (3) and 144 (5). Section 1 (2) states: “The Secretary of State may make regulations prescribing the standards and general requirements to which every education authority shall conform in exercising their functions under the foregoing sub-section.” This is in the same terms as sub-section (8) added to section (2) of the 1946 Act by theLocal Government and Miscellaneous Financial Provisions (Scotland) Act of 1958. The foregoing sub-section says “it shall be the duty of every education authority to ensure that adequate and efficient provision is made throughout their area of all forms of primary, secondary and further education.” Section 75 (3) deals with regulations about making grants. Section 76 (1) states that the Secretary of State may by regulations make provision that any payment (by him) shall be subject to such conditions as may be prescribed in the regulations. This is the same wording as appeared in Section 77 (2) of the 1946 Act. Section 81 (2) deals with regulations constituting or altering bodies for training teachers. Section 102 (3) deals with superannuation of teachers and section 144 (5) provides that any regulations made by the Secretary of State under the provisions of that Act may be varied by a subsequent regulation.

Section 147, which is not referred to, embodies a saving clause covering certificates granted under any enactment repealed by that Act but in force before its commencement.

Before the regulation of 1967 was made the only possible statutory authority under which the Code of 1956 with its requirement that all teachers employed should be certificated could be altered would appear to be regulation under section 1 (2) of the 1962 Act. The provisions which empowered the Secretary of State to attach conditions to the award of certificates of competency disappeared with the Local Government Act of 1958.

The same Act did away with the Education (Scotland) Fund out of which the Secretary of State had made grants to local authorities and to which grants he attached the condition that the provisions of schools codes should be observed, including the provision that only certificated teachers be employed. The abolition of the fund would appear to have removed the sanction by which the Secretary of State compelled local authorities to comply with the school code. So at the time the regulation of 1967 was made the only enabling section would appear to be section 1 (2) of the 1962 Act. It was on this provision that Mr Kirkwood for the Secretary of State appeared to rely. That section empowers the Secretary of State to make regulations prescribing the standards and general requirements to which any education authority shall conform by exercising these functions to ensure that adequate provision is made for education. A regulation that any teacher employed by them shall be a certificated teacher could be said to be a “standard” necessary to secure adequate provision for education. I am unable to see how a requirement that every teacher be a registered teacher can have any relation to standards necessary to secure adequate provision for education.

The other term “general requirements” may be read as covering a wide field but we are asked in this case to read it as authorising a regulation which imposes on educational authorities a duty to employ only registered teachers. The former code restricted employment to certificated teachers. A registered teacher is a certificated teacher who has registered. A certificated teacher who has not registered can no longer be employed. It is a drastic change and affects teachers as well as an education authority. In Mr Malloch's case it injured his vested interest as a teacher. With these considerations in view, I ask what did Parliament intend those words to cover? It is not clear that they were intended to cover a change in the conditions required for employment. Mr Kirkwood, however, said that could be inferred from the Act read as a whole. I do not agree. Those words were introduced into the Education Act of 1946 and repeated in the Act of 1962. At the time when these words were introduced into the Act of 1946, section 71 (1) empowered the Secretary of State to attach conditions to grants and section 77 (2) of that Act empowered him not only to award certificates of competency but also to prescribe the terms and conditions of the award. Moreover at that time there was in the Schools (Scotland) Code, 1956, regulation 4 (2), the provision that teachers should be certificated, so “general requirements” could not in 1956 have been intended to cover the requirement about certificated teachers. If those words did not cover the making of the provision in regulation 4 (2) of the Code of 1956, I do not see how they can have acquired a wider meaning in 1965. Accordingly I cannot find in these words implied authority to alter the conditions of employment of teachers.

I realise that on this view the amendment of regulations in 1967 would be ultra viresin respect of all certificated teachers whether then in employment or entering employment at a later date. This view did not commend itself to the Lord Ordinary. Moreover Mr Malloch did not ask us to decide in his favour on that point although it would appear to be covered by his first conclusion. Accordingly I will not decide the case on that point. I regard it, however, as a matter of importance.

The Lord Ordinary has decided that it is ultra viresin respect of Mr Malloch (and presumably other certificated teachers then in employment) because it hurts their vested interest. I agree with this view. There are two considerations to bear in mind. The first is that in the Acts dealing with education from 1872 down to 1962 there appears a saving clause which includes certificates. Section 147 of the Education (Scotland) Act, 1962, provides that without prejudice to the Interpretation Act, 1889,17 “any certificate given under any enactment repealed by the Act, shall if in force immediately before its commencement, continue in force.” Moreover section 38 (2) of the Interpretation Act provides that the repeal of an enactment shall not, unless the contrary appears, affect any right or privilege acquired under an enactment repealed. Provisions saving the position of qualifications attained by teachers under earlier regulations also appear in the codes of 1950 and 1956. In the amending regulation nothing is said about safeguarding the position of certificated teachers then employed.

The other consideration is the one founded on by the Lord Ordinary, that it is a well-accepted principle of law that a statute shall not be held to take away vested interests without compensation unless the intention to do so is expressed in clear and unambigious terms (Colonial Sugar Refining Company Ltd v. Melbourne Harbour Trust Commissioners,18 Lord Warrington of Clyffe at p. 359). Lord Reid in Westminister Bank Ltd. v. Minister of Housing and Local Government (Beverley Borough Council), 19 at p. 529, accepted this statement but queried the concluding words: he then added “when we are seeking the intention of Pariament that may appear from express words but it may also appear by irresistible inference from the statute read as a whole. But I would agree that, if there is reasonable doubt, the subject should be given the benefit of the doubt.”

For my part I cannot find in section 1 (2) of the Act of 1962, nor in that Act read as a whole, nor in any other of the so-called enabling provisions either express authority or material from which to draw any inference (let alone an irresistible one) that Parliament intended to authorise the Secretary of State to make a regulation which would take away Mr Malloch's right to continue to teach in a local authority school.

According I agree with the Lord Ordinary that section 1 (2) of the 1962 Act did not authorise the Secretary of State to amend the 1956 Code so as to take away any vested rights.

Mr Kirkwood contended that all the amendment did was to require Mr Malloch to register with the General Teaching Council. That was not taking away any right nor did it detract from the value of his certificate. It was still evidence of his qualification to teach. It was also his passport to registration. In any event his right under the certificate was not a “vested right” as that term was intended by Lord Warrington of Clyffe. It could not be turned into cash and so could not be balanced by compensation. I do not agree. Mr Malloch was in employment and he was qualified to teach before the amendment by reason of his scholastic attainments and his certificate. After the amendment, on Mr Kirkwood's view, he was no longer eligible for employment as a teacher. Clearly this deprived him of a vested interest. To follow Mr Malloch's analogy of the key and the door, his certificate no longer opened a door to employment but on to a register which imposed on him new conditions and new provisions about discipline. It will also cost him about £1 a year.

I agree with the Lord Ordinary that nothing in the Acts passed after the amendment sheds light on the intention of Parliament at the date of the amendment. That intention must be ascertained from the Act or Acts which enabled the Secretary of State to make the amending regulations.

On the view I take on the ultra viresissue it is not necessary to consider whether the amended regulation itself should be interpreted as applying only to teachers coming into employment in the future or to those in employment as well.

It follows that if the amended resolution is ultra viresof the power in the Secretary of State in Mr Malloch's case, the first reason put forward by the Corporation for dismissal is bad. Mr Malloch's employment is not unlawful.

I now turn to the second issue raised before us. Is the Corporation entitled to dismiss Mr Malloch by reason of their policy? Clearly he was employed at pleasure. Section 82 (1) of the Act of 1962 says that the faction of appointing teachers shall be in the education authority “and any such appointment shall be during the pleasure of the authority.” This has been recognised as the position in Scotland since the decision in Morrison v. Abernethy School Board.20 It is also well established law that if an employee is engaged “at pleasure” his employer can dismiss him without giving reasons and cannot be compelled to state them provided always that the power of dismissal is fairly and honestly exercised. The burden of showing that it has not been fairly and honestly exercised is on the employee. If, however, the employer chooses to give his reasons a Court may look at their sufficiency (Malins V.C. in Hayman v. Governors of Rugby School 21 at p. 68.

In Wright v. Marquis of Zetland22 at p. 70 Vaughan Williams L.J. said of the words “at pleasure” that dismissal must be exercised in good faith. If the Court considers that the cause is an insufficient cause it may be set aside. I also accept that the sufficiency or insufficiency is to be judged by measuring whether or not a reasonable person in the position of the employer could properly have regarded the reason assigned as a sufficient one in the circumstances.

Two questions arise. The first is whether the second reason stated in the motion is independent of the first reason? The second question is, assuming it should be treated as an independent reason, whether it was arrived at in good faith or has been shown to be insufficient.

On the question of independence I am satisfied that the answer must be in the affirmative. The terms of the motion have clearly been framed with care and the two reasons are separated by the words “and on the additional ground that in any event.” This is itself sufficient but the wording of the second reason also shows it has been reached independent of the view of their legal duties in the first reason. So even if the first reason is bad, as I think it is, the second reason falls to be considered on its own.

This second reason is that the education committee has decided as a matter of policy that it would not employ any teacher, qualified to do so, who had not registered. Mr Malloch referred to pressure put on the committee from the outside to employ only registered teachers. There is no proof that this was done but even if there was canvassing of members by an outside body or person I do not think that would vitiate a decision on policy. The decision must have been reached by a majority. It may be that a minority took a different view, but the view of the majority would still rule. I find no evidence of bad faith and divergence of opinion does not mean that the reason of the majority is insufficient.

In Short v. Poole Corporation,23 Sargant L.J. at p. 94 was dealing with a decision of a majority of an education authority which had decided it was inadvisable to retain married women as teachers. It may look archaic today but one of the reasons was that they considered that the duty of a married woman was primarily to look after her domestic concerns. His Lordship said the decision could not be challenged in Court merely because many people outside disagreed with it. He said “It is quite conceivable that the majority of a popularly elected body might genuinely consider that such a policy was beneficial. It would be for the electors, if they thought fit, to alter the policy by changing their representatives at the next election.”

It may well be that the education committee in this case thought that it was in the best interests of their schools that this dispute about registration should be settled by a decision to employ only registered teachers. I do not see how that can be said to be insufficient reason for dismissal.

In my view the Lord Ordinary was right to refuse to make the declarator sought to the effect that the Corporation is not entitled to dismiss Mr Malloch on the ground of policy.

In the result I would refuse the reclaiming motion so far as presented to us by the Secretary of State and also refuse the reclaiming motion as presented by Mr Malloch against the Corporation on the ground of policy.

I say nothing about the effect on Mr Malloch's rights of the Industrial Relations Act, 1971.24 It may be that if he is ultimately dismissed he can invoke its provisions.

Lord Cameron —

This reclaiming motion forms another step on a process of litigation which has for some years been conducted by the pursuer against the first defenders and concerns the powers or obligations of the first defenders to dismiss him from his employment as a teacher in one of their schools because he is not willing to become registered with the General Teaching Council set up under the Teaching Council (Scotland) Act, 1965.25 This is the second action which the pursuer has raised, the first having been decided in his favour in the House of Lords in June 1971 on the ground that his statutory right as a teacher to a hearing before a decision to dismiss him could competently be taken had been infringed by the first defenders who had purported to dismiss him without offering him that opportunity.

The present proceedings were begun on 19th January 1972, for the purpose of forestalling a meeting of the first defenders' education committee at which a motion to dismiss the pursuer was to be considered and if approved, passed. This meeting was to have been held on 24th January 1972 and the pursuer had received intimation of it and an invitation to attend. The pursuer did not accept the invitation but instead raised the present action. In view of what Lord Reid said in the earlier proceedings26 at p. 106 as to the possible effect of the pursuer's representations at such a meeting, as well as the decision of the House itself, it may be thought that the raising of the present action was at least premature, but no point is raised in the pleadings to attack their competency.

As your Lordship in the chair has fully set out the history of this matter and referred in detail to the relevant statutes and regulations I do not attempt to repeat them.

The contest between parties to the present action arises out of two separate but related issues. The first relates to the power of the second defender, who is the Secretary of State, charged with certain statutory duties in connection with education in local authority schools, to make regulations and in particular to make a regulation which was said to have certain retrospective consequences that infringe or extinguish the vested right of the pursuer as a certificated teacher to obtain such employment as he possesses and against whose professional qualifications for such employment nothing could be or is said. The second relates to the terms of the proposed motion for the pursuer's dismissal to be put before the education committee of the first defenders. I shall hereafter refer both to the committee and the first defenders as the “first defenders.”

The regulation at issue is regulation 4 (2) of the Schools (Scotland) Code, 1956,27 as amended by the Teachers (Education, Training and Registration) (Scotland) Regulations, 1967, 28 Schedule 2, paragraph 2. These regulations, which I shall refer to as “the 1967 regulations” were made on 28th July 1967 and came into operation on 1st April 1968 which was the date on which the General Teaching Council set up under the Act of 1965 came into existence and operation.

The first issue between the parties on which the first defenders offer no argument, being content to accept the judgment of the Lord Ordinary on this, raises serious questions as to the application of the doctrine of ultra viresand of the true construction of the statutory authority of the second defender to make regulations affecting or which may affect adversely existing rights of teachers employed in local authority schools.

Before expressing any opinion on this issue I would note two matters of some importance. The first is that the pursuer, who argued his case with great sincerity and care, made it quite clear that he was not refusing to register out of any motives of obstinacy or intransigency. He was at pains to explain his reasons, which were based upon strongly held but temperately expressed opinions as to the effect on professional standards which he feared would result from the setting up of the Teaching Council and from the disciplinary powers with which it was clothed. I have no doubt that the pursuer is sincere in his views and their expression but, as I shall explain later, these are not matters for this Court either upon the issue of ultra viresor on the second main issue, namely, the grounds on which the first defenders proposed to dismiss him on 24th January 1972.

The other matter has caused me more difficulty. Before the Lord Ordinary the issue of ultra vireswas argued fully on the pursuer's behalf by senior and junior counsel. In the debate on the reclaiming motion the pursuer decided to present his case in person and it may be that there are other arguments which could have been brought forward in support of his case on ultra vires than those with which we were favoured. However, on the arguments submitted I have reached the conclusion at which I understand your Lordships have also arrived, that the amendment of regulation 4 (2) of the Schools Code of 1956 made by the second schedule of the 1967 regulations made that particular regulation inept, in respect that to amend it to the effect intended by the second defender was ultra vires, at least as regards teachers already in employment and holding permanent certificates.

On the first major issue in this reclaiming motion there are four questions which I think have to be answered. The first is whether the regulation is in sufficiently wide terms to apply to all teachers including those already employed in schools under the jurisdiction of local authorities; second, if it does so apply, whether its effect is to require the dismissal of all teachers so employed who do not register; third, if that is the meaning and effect of the regulation, does that deprive such teachers of a vested right or interest without compensation; and, fourth, if so, had the second defender any statutory power to make such a regulation.

In its express terms the regulation 4 (2) is one of unrestricted generality. If it stood by itself it would appear peremptory in that in its original form it would forbid the employment of a teacher who was not certificated. It is for the Secretary of State to make regulations prescribing “the standards and general requirements to which every education authority shall conform in discharging their functions under the Act.” This is a provision which was added by amendment29 to section 1 of the Education (Scotland) Act, 1946, 30 and has continuously appeared in the various amending statutes from that date with minor differences of wording which do not affect its sense. I think that the matter of certification as attestation of qualification for employment is clearly one which falls within the Secretary of State's competence under section 2 of the Act of 1962, as amended. If no education authority could lawfully employ teachers other than certificated teachers then it would appear to follow as an obvious consequence that to continue to employ an uncertificated teacher whose employment had hitherto been lawful became unlawful and therefore, the local authority in discharge of its statutory duty of compliance with the regulations would require to terminate his employment. In this connection it is well to keep in view that the employment of teachers in local authority schools is employment at pleasure. It is because of this unrestricted generality of the regulation and of its predecessor in the Schools Code of 1950 31 that special provision was made to save the position of teachers employed immediately before the Codes came into operation and their position was specifically safeguarded by regulations 30and 29 respectively. In addition, I note that the Teachers (Education, Training and Registration) (Scotland) Regulations 1965 32 which came into force on 1st April of that year, made under regulation 12 (3) special transitional provision saving the rights and interests of teachers who held certificates awarded under the similar regulations of 1931 33 (which were wholly superseded by those of 1965) or under earlier regulations, by providing that they should be deemed to hold equivalent certificates under the regulations then to come into force. In my opinion these saving provisions make it clear that the proper interpretation of regulation 4 (2) in its unamended form is that in the absence of such saving provisions it would be of unrestricted application to all teachers then in employment or those to be employed, and it was only so far as the regulations specifically saved or protected existing rights or interests that the general regulation did not apply to teachers covered by these saving clauses. It is to be noticed that this saving of vested interests, which is contained in regulation 30 of the Schools Code of 1956, does not appear to have been revoked by anything in the second schedule to the regulations of 1967. It of course relates only to certificated teachers so that the result of the amendment is to leave the generality of the wording unaffected as regards registered teachers but to take away any true protection of vested interests, because those registered teachers could have no vested interests by 1st April 1968 in respect that requirement of registration as a licence to teach or to obtain teaching employment did not exist prior to this date. In these circumstances I think that the amended regulation 4 (2) renders the employment of unregistered teachers in schools unlawful. If their employment is unlawful I can see no escape from the conclusion that the local authority cannot lawfully continue to employ a teacher who does not register. This is just another way of saying that he must be dismissed unless a particular modification of the regulation can be achieved by the authority concerned to save his position, which is not an issue in this case. What then is the position of the teacher who does not register? He has a certificate which was a “licence” to obtain employment. His certificate is no longer such a “licence” unless he exchanges it for a different “licence” with different terms, conditions and obligations. There is little room for argument in face of the plain terms of the Schools Code of 1956 and its predecessor of 1950 that the possession of a certificate which could only be obtained after substantial expenditure of time, money and effort was regarded as a vested interest and, in my opinion, rightly so regarded. It was said on behalf of the second defender that it is only rights of property or rights the loss of which can be assessed in money terms that may be taken into account when determining whether the effect of an enactment or regulation is to deprive citizens of rights or vested interests without compensation. None of the cases cited on behalf of the second defender appeared to me to warrant this contention or the laying down of a principle that it is only those rights or interests the loss of which can be assessed with precision in terms of money or are rights which have a commercial value in the market that are protected by the presumption against retrospective expropriation or extinction of existing rights or interests without compensation. It is true that a teacher's certificate is not an article of commerce in the sense that it can be sold or bought, but that does not mean that it lacks substantial or material value in the hands of its holder. To be deprived of the certificate without proof of misconduct is a deprivation which could sound in very substantial pecuniary loss. What the regulation 4 (2) does is precisely this, and offers no compensation for resulting loss other than the opportunity to acquire in exchange a materially different article, acceptance of which is compulsory under the penalty of total loss of employment. The choice presented to a certificated teacher in these circumstances can scarcely be termed “free.” This is not a light matter, and the pursuer was, I think, well entitled to draw attention to the difficult situation in which a teacher in his position was placed. In my opinion the effect of the amendment to regulation 4 (2) making employment of any teacher who was unregistered unlawful was to encroach very materially on the vested interests of certificated and employed teachers without in any real sense compensating them for what was being taken away, namely, the very real value to them of their certificates.

Being of this opinion I now come to consider the fourth and last question on this branch of the case, whether the second defender had statutory power to make such a regulation.

On this branch of the case on which the Lord Ordinary has found in the pursuer's favour, the first defenders presented no argument being content to accept his decision. This had two consequences, first, that the issue fell to be debated between the pursuer and the second defender alone, and second, upon the second main issue in the case the first defenders necessarily conceded that the first ground upon which it was proposed that the pursuer should be dismissed was bad and could not be supported. Mr Kirkwood, for the second defender, maintained that the authority of the Secretary of State to make the regulation amending regulation 4 (2) of the Schools Code derived from his general powers under section 1 (2) of the Education (Scotland) Act, 1962,34 as amended by the provisions of section 1 of the Education (Scotland) Act, 1969. 35 The wording of the section is of wide generality:—“The Secretary of State may make regulations prescribing the standards and general requirements to which every education authority shall conform in discharging their functions under section 1 of this Act.” Not only is the languauge of wide generality but it is directed to the measure of the Secretary's power in relation to the control of the exercise of their statutory functions by the education authority. There is no specific reference in this section to the teachers to be employed by such an authority or to the extent of the Secretary of State's power of control over the training and qualifications of such teachers by regulations to be made by him in virtue of the powers conferred by this section. That he has such control counsel maintained is to be inferred of necessity from the generality of the language. Mr Kirkwood did not submit that the Secretary of State's powers in this regard had been enlarged by any subsequent legislation and in particular by the Teaching Council (Scotland) Act, 1965. In taking this course I think Mr Kirkwood was right. He also frankly admitted that the provisions of section 6 (2) of the Act of 1965 did not introduce compulsory registration of all certificated teachers or even of certificated teachers already in employment in local authority schools at the date on which the Act of 1965 came into force. But he maintained that what Parliament had expressly refrained from doing in 1965, although the recommendation of the Wheatley Committee in their Report was in favour of compulsory registration of all teachers, the Secretary had competently done by the alteration of one word in the Schools Code of 1956 in virtue of his existing powers under the Education (Scotland) Act, 1962. The proposition is a bold one. The amended regulation in the Code is to apply to all school teachers and if certificated teachers already in employment are not prepared to exercise their entitlement to registration conferred on them by the express provision of the Act which introduced registration and the General Teaching Council with its discipline committee then their continued employment is made unlawful, as their “licence” to be employed, formally evidenced by their possession of a certificate awarded by the Secretary of State, is cancelled. The only “licence” for employment in the future for them and for all future school teachers is registration. In effect, therefore, the amendment of regulation 4 (2) of the Schools Code of 1956 meant that while section 6 (2) of the 1965 Act expressly entitled a certificated teacher to registration as a right but provided no penalty for non-acceptance of the choice of registration, the section should read that a certificated teacher would be entitled to registration subject to this, that failure to register involved the automatic consequence of loss of employment. In my opinion the second defender's submission is unsound and the existence of no such power in the Secretary of State can be derived from an interpretation of the language of section 1 (2) of the 1962 Act.

It is a well-recognised principle of statutory interpretation that extinction of or encroachment on vested rights or interests without compensatory provision must be matter of express enactment or irresistible inference from the language of the statutory provision under review. Parliament being sovereign can legislate with retrospective effect and can cut down or extinguish existing rights of property or other already vested interests or rights at its will, but it must make its meaning plain and where there is doubt as to its intention the presumption is against interference with existing rights or interests.

Section 1 (2) of the Education (Scotland) Act, 1962, makes no mention of school teachers as such at all, far less any specific power as given to the Secretary of State to declare unlawful the continued employment of teachers already qualified and certificated by him at the date of declaration. To do so would be necessarily to extinguish an existing interest of value, the interest in the continued possession of a certificate awarded by the Secretary of State, which is the “licence” to obtain employment in schools under the jurisdiction of a local authority. There being no such express power, the question is whether the proper discharge of his duty necessitates that the Secretary of State should be clothed with such a power and that he should have this power is irresistibly to be inferred from the language of the section. In my opinion, this question may be considered first in the light of the situation as in fact existed in 1962. At that time and for many years before, the “licence” to be employed as a school teacher in local authority schools in Scotland was the certificate awarded by the Secretary of State. This certificate, at least since 1931, was a “permanent” certificate only to be suspended or withdrawn by the Secretary of State in the event of misconduct on the part of the certificate holder or in other circumstances which are not relevant to this question. Up until 1962 the Secretary of State had never claimed a right to withdraw a certificate at his will in the event of his making changes in training curricula or the standard of qualification to be obtained by aspirants to certification. It is, in my view, significant that when such changes were made in the various schools codes which affect training or the nature and extent of the qualifications for obtaining a certificate, careful provision was made to protect the rights of holders of existing certificates. This demonstrates that in order to secure adequate performance of his statutory duty in this matter of school education, it was not necessary or essential that the Secretary of State should have the power which he now contends he possesses, as necessary for his proper discharge of his statutory functions. But, apart from this, I think that the grant of a certificate prior to 1962 was a grant which could only be withdrawn or suspended by the grantor in terms of the regulations under which certification was awarded. Having once granted a certificate he could not derogate from his own grant without specific authority. This does not, of course, mean that the Secretary of State would have no power to dismantle the whole structure of certification and replace it with another system with differing requirements for qualification, but in such an event could he by regulation alone, a regulation deriving its validity from the powers given by Parliament in the Act of 1962, deprive existing certificate holders already in employment of their “licence” to continue in that employment subject to the pleasure of their employers? If he could not do so then it would follow that the Secretary of State would have no necessarily implied power to compel registration under pain of instant dismissal.

The Secretary of State's power to grant, suspend or withdraw a certificate was undoubted, but that power did not derive from the terms of section 1 (2) of the 1962 Act or of its predecessor, the earlier Act of 1946, a power which was inserted in the Act of 1946 by amendment in paragraph 6 (1) of the fourth schedule of the Local Government and Miscellaneous Provisions (Scotland) Act, 1958,36 as your Lordship in the chair has pointed out. The second defender's powers in the matter of prescribing the conditions for the grant of teachers' certificates as well as in the matter of their suspension or withdrawal are contained in specific statutory provision set out in section 81 of the Act of 1962, replacing similar provisions in section 77 of the Act of 1946. By section 81 (1) (a) the second defender could award certificates of competency to teach in schools or other educational establishments and by section 81 (3) (c) he could by regulation “prescribe the circumstances in which the Secretary of State may suspend or withdraw such certificates.” Regulations to be made under this section were, of course, subject to the scrutiny of Parliament. There is nothing in these powers to suggest that in their exercise the Secretary of State was empowered to make regulations which would supersede and extinguish the rights of already certificated teachers and in fact, as I have already indicated, he never sought to do so. It is true that the repeal provision of section 16 (1) of the Act of 1965 took away the power of granting of certificates from the second defender as from the date the Act became operative and this dismantled the whole machinery of certification by which the quality and qualifications of teachers in local authority schools had been controlled and directed first by the Scotch Education Department and later by the Secretary of State. Not only is there nothing in the language of section 81 of the Act of 1962 which gave express power to the Secretary of State to make regulations which would have the effect of automatically depriving teachers already certificated of the whole value of their certificates but there is no inference far less an irresistible inference to be derived from the language of the section that Parliament intended such a power to be implied. It may be significant also that in practice ever since the introduction of certification by section 56 of the Education (Scotland) Act 1872 37 (at that time applicable to principal teachers only) it had never been found in the interest of the proper discharge of the statutory duty of the Department or of the Secretary of State in respect of the adequate provision of all forms of primary and secondary education to introduce so draconian a regulation as is the now amended regulation 4 (2) of the Schools Code of 1956.

Thus the 1931 Regulations38 for the training and certification of teachers which was in force in 1965 provided specifically by article 50 “The teachers certificate will be regarded as a permanent, certificate. It will not be withdrawn, or suspended, except on grounds of misconduct.” These regulations of 1931, as I have noted, were replaced by the Teachers (Education, Training and Certification) (Scotland) Regulations, 1965. Regulation 12 specifically saved the rights of teachers holding certificates awarded under the regulations relating to the certification of teachers and made under the Education (Scotland) Acts, 1872 to 1945 and in Articles 29 of the 1950 and 30 of the 1956 Schools Code. As I have already noted there are similar protective clauses in the interests of teachers already certificated. In addition, and necessarily in view of the entitlement conferred on certificated teachers by section 6 (2) (a) of the Act of 1965, the regulations of 1967 by regulation 7 provided that a teacher who held or was under the revoked regulations deemed to hold a specified teachers' certificate was deemed to hold what under the new regulation was to be known as a specified teachers' qualification—for registration with the new General Teaching Council. Thus throughout the whole history of certification the rights of existing certificate holders have been carefully preserved when any changes were made. In these circumstances it could not be argued that there was imperative necessity for such a power. While Mr Kirkwood, quite rightly, did not suggest that it was proper to attempt an interpretation of the language of section 1 (2) of the Act of 1962 by reference to the later act of 1965, there being no ambiguity in the language of section 1 (2), I think that the specific language of section 6 (2) (a) of the Act of 1965 has a certain negative significance in respect that as the Act deals with a new structure for the training, attestation and discipline of teachers, which is to replace the old system of certification without a period of transition and readjustment, it would be natural to expect Parliament to make specific provision for the effect of the change upon teachers in employment or possessed of the certificate which was being rendered obsolete and replaced by registration as regards attestation of qualification for teaching posts in schools. Parliament has done so in section 6 (2) (a). If Parliament had intended to make registration compulsory under pain of loss of employment in the event of failure to register, Parliament could have said so, and it would have been easy to do so, but Parliament had done nothing of the kind. In making the transitional provision of entitlement Parliament in so doing posed the question “What is to happen if the certificated teacher for any reason does not register?” but that question is left unanswered in the Act itself. Mr Kirkwood says the answer lies in the amendment to regulation 4 (2) of the 1956 Schools Code made by the second defender under the amplitude of his powers under section 1 (2) of the 1962 Act. In my opinion this will not do and if Parliament has posed the question without giving the answer, the answer is to be found by Parliament and not in subordinate legislation authorised in an earlier statute which neither specifically confers the power nor is its language such as to yield the irresistible inference that such a power was being conferred.

It is not the ambiguity of section 1 (2) of the 1962 Act which is in issue but its amplitude and, in my opinion, its language is not sufficiently wide to yield the irresistible inference of interpretation which the Secretary of State's argument on this question of ultra vires seeks to place upon it. I, therefore, think that the amendment made by the Secretary of State of regulation 4 (2) was ultra vires, at least as regards teachers who were then in employment.

As the matter was not fully argued before us I am not prepared to express a concluded opinion as to whether the whole of regulation 4 (2) is ultra vires though, as at present advised, I should be inclined to that view, but it is not necessary for a decision of the present case to go so far. Agreeing with your Lordships I am of opinion that in holding the regulation ultra vires in respect of teachers certificated and in employment at the time the amendment came into force, the Lord Ordinary reached a right conclusion and his decision should be affirmed. That disposes of the first main issue in the case. I turn now to consider the meaning and effect of the proposed motion for the pursuer's dismissal.

The first defenders' motion for the pursuer's dismissal is based on two grounds of which the second is said to be additional to the first but is also qualified by the words “in any event.” The first ground of proposed dismissal is that the pursuer's continued employment in the first defenders' service would be contrary to law. The second is based upon a policy decision of the first defenders themselves not to employ unregistered teachers. The actual policy resolution was passed on 8th November 1971 but does not in terms specify that it is to be applicable to certificated but so far unregistered teachers at that time in the employment of the first defenders. The pursuer's argument on this branch of the case was based on the assumption that the first ground of the proposed dismissal was bad in law. If this was so then the additional reason was insufficient by itself to support the motion and was in itself bad as being an unreasonable exercise of the first defenders' discretionary powers. In any event even if the second reason were itself good it was ineffectual because it was fatally affected by the flaw in the first. If both grounds for the proposed motion are bad then the motion is open to successful attack. For the reasons already given, agreeing with the Lord Ordinary, I think the first ground is bad in law. The question then is “Was the second or additional ground bad in itself or insufficient to support the motion if deprived of the aid of the first ground, or was it a ground which was factual and independent and, therefore, by itself sufficient to warrant the proposed dismissal?” In my opinion the first defenders were entitled to proceed to operate the policy resolved upon in November 1971 both in respect of teachers to be employed in the future and of those actually employed in the relevant category of school and was thus a policy which applied to the pursuer. The employment of the pursuer is at pleasure and provided he was given the opportunity of being heard, the employers are entitled to dismiss him at any time without assigning any reason for so doing. If, however, they did give reasons these may be scrutinised and should it appear that the employers have proceeded upon grounds which they were not entitled to take into account or upon a misdirection of themselves in the law to be applied their decision may be set aside. The exercise of a discretionary power may be tainted and, therefore, subject to successful attack if exercised corruptly or in bad faith or “unreasonably” as that ambiguous word had been interpreted. Thus, to illustrate “unreasonableness” if the party exercising the power has taken into account or proceeded upon grounds which are irrelevant to the issue which he has to determine his decision may be subject to successful attack as “unreasonable” or equally if he has proceeded upon grounds on which no reasonable man properly directing himself on the law to be applied could proceed, the exercise of his discretionary power may be set aside. These instances are illustrative but not exhaustive of what may be regarded or held as “unreasonable” exercise of a statutory discretion. But the Court is not entitled to act as a court of review of the exercise of such a discretion. It is concerned solely with the issue of whether apart from any question of corruption or bad faith the decision, where reasons are given for it, has been based on considerations to which the party exercising that discretionary power is entitled to have regard and also are in accord with law as it applies to the particular discretion to be exercised. If the reasons are such that they are lawfully to be taken into account and if there is no misdirection of himself in law, then the relative weight to be given to them is for the party and not for the Court.

The first defenders defend their policy decision in their pleadings in a brief sentence. In my view there is nothing in the statute which defines their duties which prohibits them from taking such a decision. It is one which is directly related to the qualification of teachers to be employed in respect that it requires them to be registered with the General Teaching Council, which has important functions in respect of the training of teachers and in the maintenance of discipline in the teaching profession. Now, one of the consequences of the setting up of the Council and transferring to it of powers from the Secretary of State, is that teachers certificated but not registered are subject to no statutory code of discipline, as the Secretary of State's former powers of suspension or withdrawal of their certificate which otherwise once granted was permanent are no longer operative. In addition, a certificated but non-registered teacher was deprived of the right which he had possessed under section 85 (3) of the 1962 Act to seek an inquiry by the Secretary of State into his dismissal. Consequently, very considerable changes followed the setting up of the General Teaching Council and the system of registration under the Act of 1965 in the relations between teachers and their employers and between teachers and the Secretary of State. Thus, while their technical teaching qualifications might remain the same there were certain material differences in the rights and obligations of registered and non-registered teachers. For example, the former were to be subject to a whole new code of discipline while the latter were not. The registration of the former was not permanent in the sense that the latter enjoyed the right to his certificate once awarded subject only to the Secretary of State's powers under regulation to suspend or withdraw. In these circumstances I am not prepared to hold that a decision to employ only registered teachers was not one which lay within the competence of the first defenders, far less that a decision of that kind was so unreasonable that no reasonable authority properly directing itself to its legal powers and obligations and the law applicable to its duties could have made such a decision. The duty of the first defenders is laid down in section 1 (1) of the 1962 Act as amended and is “to secure that there is made for their area adequate and sufficient provision of school education and further education.” This is the principal duty of the first defenders as education authority. The employment of teachers and the terms on which they are to be employed (subject to any constraint or directions contained in statute or competent regulations) is clearly a matter which falls within the scope of the first defenders' principal duty. That being so, a determination or resolution as to whether the defenders should or should not employ only those teachers who have registered with the Teaching Council is on the face of it a decision in a field on which the first defenders were not only competent but required to act. This is precisely what these defenders by their resolution of 8th November 1971, the competency of which has not been challenged in these proceedings, purported to do. As the Lord Ordinary points out, there are material differences in the relationship between registered teachers and the Teaching Council on the one hand and the post 1965 relationship between certificated but non-registered teachers and the Secretary of State on the other which could well and competently influence the defenders in reaching a policy decision as to whom they were prepared to have or keep in their employment. That being so, I do not regard myself as competent or entitled to speculate or inquire into what other motives, considerations or pressures may have operated on the minds of the individual members of the first defenders or on the education committee as a whole. It was urged by the pursuer that the decision on policy was in fact the result of pressure from the Secretary of State, but even if that were so every decision in a matter of choice or discretion is one which is determined by considerations, arguments or even pressures. The weight to be accorded to these elements determining a choice of action or policy to be followed, assuming neither bad faith, corruption, misdirection nor the taking account of irrelevant or illegitimate matters, is for the authority clothed with the power of choice. The pursuer's pleadings challenged the policy decision as bad on several grounds. The first in article 9 of the condescendence is, in my opinion, bad because it is clear that the first defenders could only have passed such a resolution on the basis that a power to continue to employ unregistered teachers might still reside in them if it should be found that the regulation was ultra vires and its interpretation covered the position of unregistered teachers already in employment. It was clearly a decision based on very practical and readily intelligible grounds. The second ground appears to be unsound: I find no basis in statute or regulation for the contention that, assuming a choice was open to the first defenders whether or not to employ unregistered teachers, they could not lay down by themselves a general policy to be followed without having to consider its applicability in every individual case. The third ground stated appears to be bad for the reason to which the Lord Ordinary has referred. No doubt the result of such a policy decision if applicable, as I think it was, to all teachers not only those to be employed in the future but those actually in employment has the effect of making registration compulsory if a teacher wished to retain employment in a local authority school, because a certificated but unregistered teacher was faced with the alternative of registration or dismissal. Whether a teacher dismissed on this ground would have a remedy under the Industrial Relations Act, 1971,39 is another matter with which this case is not concerned and does not arise on the pleadings and I say no more about it. This veiled compulsion, for such it really was, in effect did what Parliament conspicuously omitted or failed to do in the Act of 1965, but this fact does not appear to me to render the policy decision of November 1971 inept or ultra vires the first defenders. In any event it does not necessarily mean that a teacher who is certificated but refuses or fails to register is necessarily deprived of all possibility of employment by a different authority which may not be carrying out such a policy as the first defenders resolved to adopt in November 1971. It does mean, however, that such a teacher debars himself from continued employment with the first defenders in schools under their jurisdiction by a failure to register; in fact he makes certain of his own dismissal and, therefore, to use the entitlement to become registered becomes, if the teacher wishes to keep his job, a necessity and not a matter of choice. Such a result may be unfortunate for those who may not be prepared to exercise a right of registration, but I do not think it is a result which can be challenged as arising out of an ineffectual or illegal exercise of a statutory discretion by the first defenders.

The conclusion at which I have arrived is that assuming that the first defenders were free to exercise a choice as to whether they would employ or continue to employ certificated but unregistered teachers their exercise of that discretion is not open to successful attack by the pursuer. The question, however, remains whether if the first defenders were wrong in considering that the amended regulation of 1956 was sound in law and that it rendered registration a sine qua non for employment or continued employment, this error not only made the first ground of the motion for the pursuer's dismissal inept, but also rendered inept the second because it was not severable from the first. This was the pursuer's argument. In my opinion it is unsound. If the motion as drafted had omitted the words “in any event” then I think there might have been considerable attraction in the argument, even though the meaning to be attached to the motion would in that event be somewhat difficult to understand. If the law required dismissal and the first defenders have no choice in the matter, then the so-called additional reason would be not only tautological but practicably unintelligible, but the motion does contain these words “in any event” and the immediate question is what do they and in particular the word “event” mean? There can be only two relevant events, the possibility that the amended regulation did not apply to the pursuer but only to persons to be employed in future or the possibility that it did and it was found to be ultra vires the second defender. I therefore think that the stated grounds were intended to be and can be treated as separate and independent and that the validity of either does not depend on demonstration of the validity of both. The use of these words in our system of pleading is familiar as indicative of the statement of independent, possibly inconsistent and even contradictory pleas-in-law, This motion was prepared on the basis that if acted upon it would have certain practical and legal consequences, consequences which, if the first defenders' previous experience were any guide, might well lead to future and prolonged litigation between the first defenders and the pursuer. In my opinion, the Lord Ordinary reached the right conclusion on this branch of the case also and that the pursuer's argument fails.

For these reasons agreeing with the conclusions of your Lordship in the chair, I am for refusing this reclaiming motion.

Lord Milligan. —

I agree with your Lordships that the reclaiming motion so far as presented by the Secretary of State should be refused and that the reclaiming motion as presented by Mr Malloch should also be refused. Like your Lordships I reserve my opinion as to the validity of the 1967 amendment in so far as it affects new teachers as no argument was presented to us on this issue.

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