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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hardie v City Of Edinburgh Council, Re Application for Judicial Review [1999] ScotCS 265 (10 November 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/265.html Cite as: [1999] ScotCS 265

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In this petition for judicial review of a decision by the respondents to remove the petitioner from the list of supply teachers maintained by them, it is a matter of agreement that the petitioner is a registered teacher who works as a supply teacher and has worked on that basis with the respondents and other education authorities for about six years. He has worked for the respondents in this capacity on a regular basis since local government reorganisation in 1996. The respondents are a local authority constituted under the Local Government Etc (Scotland) Act 1994, and, as such, have a duty to secure that there is made for their area adequate and efficient provision of school education and further education, in terms of section 1(1) of the Education (Scotland) Act 1980. Between August 1998 and March 1999, the petitioner worked for the respondents on all but eighteen of the school days. On 10 to 12 March 1999 inclusive, the petitioner worked at Murrayburn Primary School, a school conducted by the respondents.

On 17 March 1999 a telephone call was made by Mr Tom McMillan, Neighbourhood Liaison Officer and Employment Manager of the respondents, to the petitioner's house. This telephone call was recorded on the petitioner's telephone answering machine. The purpose of the call was to request the petitioner to attend a meeting with Mr McMillan, which had been arranged for 19 March 1999. The petitioner returned Mr McMillan's call, when he was told that the meeting was to be an informal one; he was not told of the nature of the meeting, which was said to be inappropriate for discussion on the telephone. The meeting duly took place on 19 March 1999. At the meeting, the petitioner was advised that an allegation had been made by a pupil against the petitioner whom he had taught at Murrayburn Primary School. Thereafter Mr McMillan proceeded to ask the petitioner a number of questions of both a general and particular nature. The petitioner's position is that he was not told what was the purpose of the meeting, nor was he told the purpose of the questions asked of him when they were asked. At the conclusion of the meeting, the petitioner was told by Mr McMillan that, until he had completed his investigation into the complaint, the petitioner would not be provided with supply work within the City of Edinburgh. The petitioner, who was unaccompanied at the meeting concerned, was very nervous and, by the end of the interview, was unwell. He suffers from a medical condition which can result in breathing problems. Following upon the meeting, the petitioner was not able to drive home immediately.

Following upon the meeting described, the petitioner received a letter from Mr McMillan, dated 26 March 1999, which has been produced and is 6/1 of process. I refer to that letter for its terms. In this letter, Mr McMillan wrote inter alia as follows:

Since receiving the foregoing letter, the petitioner has come into possession of a copy of a report by Jeanette Perry, the Head Teacher of Murrayburn Primary School, which gives details of the alleged incident, which has given rise to the present matter. That report is produced as 7/2 of process. It is dated 18 March 1999, but was not available at the meeting, to which I have referred, held on 19 March 1999. At no time prior to the making of the decision of the respondents, set forth in the letter of 26 March 1999, did the petitioner have access to the report concerned. In relation to the allegations set forth in the report of 18 March 1999, the position of the petitioner is that the pupil concerned was not at any time on his knee, but was propped up against it.

Being dissatisfied with the manner in which the respondents had handled this matter, the petitioner has approached the Educational Institute of Scotland, his Union. A letter was written by the Depute General Secretary of that organisation, Fred Forrester to Mr McMillan, dated 1 April 1999, which has been produced and is 6/2 of process. I refer to that letter for its terms. Furthermore, the petitioner wrote to the Director of Education of the respondents, Roy Jobson. His reply to the petitioner is 6/4 of process. While an attempt was made to set up a meeting between the petitioner, his representative and the respondents, following the correspondence mentioned, no such meeting took place, since the present proceedings had been initiated.

In this petition, the petitioner seeks a number of remedies, which are described in paragraph 3 thereof. These include declarator that the said decision by the respondents to remove the petitioner from their list of supply teachers was one which was ultra vires, contrary to natural justice, et separatim is one which no reasonable education authority properly directing themselves in law would have taken; the petitioner also seeks reduction of the said decision.

When this petition came before me at a first hearing, counsel for the petitioner stated that both the competency and the relevancy of the petition were challenged by the respondents. Dealing first with the issue of relevancy, counsel for the petitioner pointed out that his client had offered to prove that the decision challenged to remove him from the list of supply teachers was (1) in breach of natural justice and (2) wholly unreasonable in the Wednesbury sense. If the petitioner was correct in either of these contentions, the petition should succeed and the decision complained of should not stand, subject, of course, to the issue of competency. Counsel for the petitioner said that the petitioner had a clear title and interest to raise the matter concerned; he had been deprived of the opportunity of being employed by the City of Edinburgh Council. While it was recognised that inclusion in their list of supply teachers was not a guarantee of employment, exclusion from the list was a guarantee that the person concerned would not be employed by the respondents. Developing his argument in relation to the matter of relevancy, counsel for the petitioner drew attention to the averments in paragraph 12 of the petition, where the petitioner's criticisms of the respondents' actions were specified. These could be categorised under two heads, Wednesbury unreasonableness and breach of natural justice. In this connection reference was made to The Council of Civil Service Unions and Others v The Minister for the Civil Service [1984] 3 W.L.R.1174 and particularly the observations of Lord Diplock at page 1196. In the present case Wednesbury unreasonableness and procedural impropriety were involved. While it was apparent from a consideration of the terms of the petition and the answers thereto by the respondents that certain issues of fact were in controversy, it was submitted that there was no need for a factual inquiry in relation to those matters, since there was a sufficient indication of wrongfulness in the conduct of the respondents to justify the remedies sought, arising from undisputed facts. Counsel for the petitioner wished to make clear at this time that, while pecuniary compensation was sought in the present proceedings, that was not a claim insisted in at this stage; that was reserved.

Turning to summarise the petitioner's position on the matter of competency, counsel for the petitioner submitted that the respondents' decision-making process involved here was susceptible of judicial review upon two grounds. Firstly, the case fell within the scope of judicial review, as explained in West v The Secretary of State for Scotland 1992 S.L.T.636. That was so because, in the matters concerned, the respondents were exercising an authority delegated to them by Parliament. Secondly, quite apart from that, the actions of the respondents complained of had an important significance for all supply teachers.

Elaborating his position in relation to competency, counsel for the petitioner argued that two preliminary matters were of assistance to his client. Firstly, there was an absence of other remedies than judicial review. In particular, there was no contractual remedy available to the petitioner, since he had no continuing contract of employment. His position, like that of all other supply teachers, was that, from time to time, temporary contracts were entered. There was no continuing contract of employment and, accordingly, there could be no claim for unfair dismissal. The relevance of that situation was that the remedy of judicial review was not excluded by virtue of the existence of a contract of employment. In that connection reference was made to Blair v Lochaber District Council 1995 S.L.T.407, where it was held that the true nature of the dispute involved was contractual rather than administrative, and for that reason recourse to judicial review was not competent, especially since the petitioner might have had an alternative remedy. The second matter of significance was that there were two authorities to the effect that the removal of the name of a person from an administrative list was matter susceptible of judicial review. The first was Smith v East Sussex County Council, an unreported decision of Scott Baker, J., dated 13 December 1996. The subject matter of that decision was the judicial review of the refusal of an Education Authority to reinstate a person on a list of supply teachers. While the application for judicial review was itself unsuccessful on its merits, no issue arose as to the competency of the proceedings in the circumstances concerned, although it had to be accepted that the issue of competency was not controversial. McLeod v Lothian Health Board 1999 S.L.T.163 was another decision concerned with the matter of the maintenance of lists for professional purposes. What was involved was a list of medical practitioners kept by the respondents. The Court granted the application and, by doing so, plainly indicated that it considered that the application was a competent one.

Looking at the matter as one of principle, it was important to consider what had been said about the scope of judicial review in West v Secretary of State for Scotland by Lord President Hope at page 650-651. It was there said that the Court of Session had power, in the exercise of its supervisory jurisdiction, to regulate the process by which decisions were taken by any person or body to whom a jurisdiction power or authority had been delegated or entrusted by statute, agreement or any other instrument. That proposition plainly applied to the decision-making of the respondents in pursuance of the authority in relation to the education system granted to them by section 1(1) of the Education (Scotland) Act 1980. The case of Joobeen v The University of Stirling 1995 S.L.T.120, at page 122, was of assistance. There it was recognised that Parliament might be the third party involved in the tripartite relationship described in West v The Secretary of State for Scotland. The dispute in that case had been determined on the basis of contract, but, in the present case, that was impossible, since there was no continuing contract between the petitioner and the respondents. Although the tripartite approach had been the subject of criticism, (see Judicial Review in Scotland, O'Neill, paragraphs 1.34-1.37). The requirements of the test could be satisfied in this case.

Turning to the second part of his submission on the matter of competency, it was pointed out by counsel for the petitioner that the present matter was one of general concern to supply teachers, of whom there were very many in the Scottish education system. That itself was a reason why the present matter should be seen as falling within the scope of judicial review. In that connection reference was made to Watt v Strathclyde Regional Council 1992 S.L.T.324. In that case, the fact that a decision was seen as of general application to some class of persons was a factor in favour of the decision being treated as within the scope of judicial review. In all the circumstances, it was submitted that the present petition was competent.

Turning to the merits of the application it was submitted that, in the circumstances which were uncontroversial, the decision of the respondents was unreasonable in the Wednesbury sense and also in breach of the requirements of natural justice. In particular, no warning or notice had been given to the petitioner before the meeting of 19 March 1999 relating to the nature and significance of that meeting to him. Furthermore, having regard to the provisions of the letter of 26 March 1999, it was obvious that the respondents had taken into account the contents of the report, dated 18 March 1999, of which they were aware but of which the petitioner had not been made aware, prior to the decision being taken to his detriment. The fact was that the petitioner had never seen that report at the material time and therefore had no opportunity to defend himself against the allegations made in it. In addition, prior to the meeting of 19 March 1999, the petitioner was given no information as to the purpose of the meeting. He went to that meeting not knowing its purpose. Furthermore, while he was aware, in very general terms, that a complaint against him was under consideration, he was not made aware of the nature of that complaint until that emerged during the course of the questioning to which he was subjected. That was contrary to natural justice, in respect that the petitioner had not been given fair, or indeed any, notice of the case he had to meet. In any event, the conduct of the meeting was unsatisfactory, in respect that it caused the petitioner to become unwell.

Further criticism of the respondents' procedure was based upon the terms of the letter of 26 March 1999. In that letter it was stated that the petitioner had been "evasive". That was an entirely unwarranted and unfair conclusion, having regard to the fact that, during the course of the interview concerned, the petitioner had become upset and distressed. A further point of significance arose from the terms of the report dated 18 March 1999. It appeared from that report that a very limited investigation had been conducted into the incident concerned, although it was supposed to have occurred in front of the whole class of pupils. Before any conclusion were reached about what had occurred, it would have been the proper course to obtain a version of the events from all witnesses. In a situation in which there was no continuing contractual relationship between the petitioner and the respondents and in which, therefore, the normal disciplinary procedures available to established teachers were not available to the petitioner, it was particularly important that the respondents should follow a fair and rigorous procedure in dealing with allegations against supply teachers. A further consideration was that no real reason existed for urgency in the handling of the matter. It would have been perfectly feasible for the respondents to conduct a proper investigation into the subject matter of the complaint.

It was further submitted that the respondents' decision was unreasonable in respect that there was no explanation as to how or why the alleged conduct should constitute professional misconduct of sufficient gravity to justify the deletion of the petitioner's name from the list of supply teachers maintained by the respondents. No indication was given as to what criterion the respondents had applied in reaching their conclusion. The respondents' decision was wholly disproportionate to the allegation which had been found established. Finally, after the respondents became aware that the petitioner was dissatisfied about the manner in which he had been treated, no offer to remedy the matter had been made. The only offer made was of a meeting to "explain" the decision.

Counsel for the respondents submitted firstly that the petition should be dismissed as incompetent and secondly that, even if the petition were to be treated as competent, there were no grounds for the granting of the remedies sought in it, in respect that the respondents had acted reasonably and had conformed with the requirements of natural justice. Dealing first with the issue of competency, he said that, while teachers were accepted as supply teachers and thereafter put on a list of such teachers, the list was not a creature of statute. Being on the list did not guarantee employment. There was no reasonable or legitimate expectation of employment. In The Council of the Civil Service Union v The Minister for the Civil Service at page 1194, Lord Diplock saw the withdrawal of a benefit which a beneficiary could legitimately expect to be permitted to continue to enjoy as a situation in which judicial review would be available. There was no such situation here. The respondents were free not to employ a particular supply teacher whose name appeared on their list. No right of the petitioner had been infringed by the respondents' decision. There was no continuing relationship between the petitioner and the respondents, although it was agreed that there existed a selection process which had to be undergone before the name of an individual appeared in the list. It had been said that the petition fell within the scope of matters susceptible of judicial review because of the provisions of section 1 of the Education (Scotland) Act 1980; yet that provision did not require an education authority to keep a list of supply teachers. West v The Secretary of State for Scotland had been relied upon by the petitioner. It was concerned with terms of employment in the Prison Service. The application failed because it was regarded as being purely an employment issue. In the present case, there was no legitimate expectation of the benefit which had been withdrawn. Furthermore, there was no tripartite relationship such as desiderated in West v The Secretary of State for Scotland. Reliance had been placed by the petitioner upon the unreported case of Smith v East Sussex County Council. It was plain from the judgment in that case that no argument against the competency of the application was advanced, although it was accepted that its competence was not conceded. Scott Baker, J., saw that case as on the borderline between matters which were subject to judicial review and those which were not. It had been made clear in West v The Secretary of State for Scotland that the law of Scotland and of England differed in relation to the competency of an application for judicial review in particular circumstances; the approach adopted by the two systems of law was different in principle. The decision in Smith v East Sussex County Council should not be followed. The list of medical practitioners which was under consideration in McLeod v Lothian Health Board was one which the respondents were obliged to keep in terms of statutory rules. That made the case distinguishable from the present one, where there was no statutory requirement to have any list of supply teachers. The petitioner had sought to rely on the decision in Watt v Strathclyde Regional Council. However, that case was concerned with the unilateral alteration of the terms of a contract of employment, which could affect a class of persons. That was a wholly different situation from the one involved in this case; there were no implications for other supply teachers in the present case.

Upon the assumption that the submissions made on behalf of the respondents regarding competence were wrong, it was submitted that the actions of the respondents were reasonable in the Wednesbury sense and involved no conflict with the principles of natural justice. In this connection it was pointed out that the petitioner had been informed that the meeting held on 19 March 1999 was to be concerned with an allegation against him, although it was accepted that the nature of the allegation was not disclosed. The position was that that meeting had been intended by Mr McMillan to be of an "investigatory" nature. He had thought that, at the material time, the petitioner was working under an ongoing contract of employment for a fixed period of supply. Had that been the case, which it was not, then the normal disciplinary procedures which operated in relation to complaints against teachers working under contracts of employment would have operated. That was a formal procedure. The intention of Mr McMillan had been that the meeting of 19 March 1999 would have enabled a decision to be made as to whether the formal procedure would be set in motion or not. In the event, the admissions made by the petitioner at the meeting of 19 March 1999 were sufficient to enable the respondents to take the action which they did. It was submitted that the petitioner had been given sufficient notice in outline of the nature of the meeting to satisfy the requirements of natural justice. Criticism had been directed against the respondents on the basis of principles of proportionality. It was said that the action taken was out of all proportion to the circumstances which were said to justify it. That was not accepted. The allegation made against the petitioner was of a serious nature. The petitioner himself had accepted at the meeting of 19 March 1999 that there should be no physical contact with pupils. He agreed at that meeting that he had been foolish in that respect. In the whole circumstances there were no grounds upon which the petition could succeed.

In reply, counsel for the petitioner argued that the petitioner had a legitimate expectation that he would be employed as a supply teacher in the geographical area of the respondents' operations. Plainly the presence of a name on the list of supply teachers possessed a considerable significance and indicated that the person concerned was likely to benefit from periods of employment. It had been argued that Smith v East Sussex County Council was not authoritative in Scotland; however it would be most unfortunate if in England and Scotland the Courts arrived at a different result in identical circumstances. Finally, in relation to the conduct of the meeting of 19 March 1999, it was plain that it involved an unfair inquisition of the petitioner.

In the light of the foregoing arguments, I deal firstly with the issue of the competence of this petition. That involves the question of whether this application is truly one falling within the supervisory jurisdiction of the Court, as that expression is used in Chapter 58 of the Rules of Court. The starting point in any such consideration must be the case of West v The Secretary of State for Scotland, in which the First Division of this Court undertook a comprehensive examination of the scope of that jurisdiction, in the light of authorities decided prior to the enactment of Rule 260B of the Rules of Court 1965, the predecessor of Chapter 58, and those subsequent to the introduction of that Rule. In the Opinion of the Court, delivered by the Lord President (Hope), at page 650, the Court, after undertaking the comprehensive review to which I have referred, stated that it was in the position to describe the principles by reference to which the competency of applications to the supervisory jurisdiction were to be determined. Thereafter three propositions were set forth to that end. These were as follows:

Thereafter, the Lord President went on to emphasise certain points in relation to these propositions by way of explanation. Certain of these points appear to me to be relevant in the circumstances of the present case. In particular, in his point (b), the Lord President explained that:

In his point (c) he said:

In point (d) he said:

Bearing in mind these principles, I consider the position of the respondents in relation to the petitioner. In my opinion, it is plain that the respondents are a body "to whom a jurisdiction, power or authority has been delegated or entrusted by statute .....". In this connection, I have in mind the provisions of section 1 of the Education (Scotland) Act 1980, which impose duties and give powers to education authorities, of which the respondents are one, to secure the provision of education, in particular, in schools. It is quite plain that, in connection with those responsibilities, imposed upon the respondents and others by Parliament, they have chosen to develop a system for the provision of teaching services which involves the use of supply teachers, that is to say, registered teachers who are to be employed from time to time for short periods in particular schools, but who do not have enduring contracts of employment. In pursuance of that policy, the respondents have created and made use of a list of supply teachers, who may be called upon to provide teaching services in the area of their operations. The decision which is under consideration here was, of course, one to remove the name of the petitioner from that list. During the course of the discussion before me, the point was made on behalf of the respondents that there was no duty upon them to maintain such a list, imposed directly by statute. So far as I am aware, that is true. However, that circumstance does not appear to me to lead to any particular conclusion and certainly not to that contended for by the respondents. The decision taken by the respondents, of which the petitioner complains, was a decision taken by the respondents in connection with the performance of their duties and exercise of their powers under section 1 of the Act of 1980. That appears to me to be indisputable. In point (d) of the Lord President, importance is attached to the existence of a tripartite relationship, between the person or body to whom the jurisdiction, power or authority has been delegated or entrusted, the person or body by whom it has been delegated or entrusted and the person or persons in respect of or for whose benefit that jurisdiction, power or authority is to be exercised. It appears to me that such a relationship can be said to exist in the circumstances of the present case. Parliament has imposed duties and powers upon the respondents by statute. One aspect of that power or authority has been the taking of decisions, such as that complained of in respect of the petitioner. Furthermore, it appears to me quite clear that the petitioner's argument in favour of the competency of the present application does not fall foul of the matters referred to in the Lord President's point (d). There the Lord President recognised that contractual rights and obligations, such as those existing between employer and employee, were not as such amenable to judicial review. In the present circumstances however, no such rights and obligations impinge on the matter in question, since it was accepted that there was no continuing contractual relationship of employer and employee between the respondents and the petitioner. In particular, there was no such relationship at the time when the decision complained of was made. Thus the kind of difficulty which faced the petitioner in Blair v Lochaber District Council simply does not exist in the present case. In all these circumstances I have come to the conclusion that the present petition is competent, the matter in question falling within the Court's supervisory jurisdiction.

In reaching the foregoing conclusion, I derive some comfort from the decision in Macleod v Lothian Health Board. While the particular circumstances under consideration in that case were very different to those involved here, I note that the background to the matter involved the existence of a statutory list of medical practitioners maintained by Lothian Health Board. The issue was concerned with the removal of the petitioner's name from that list. What may be of assistance in the present context is the circumstance that no challenge to the competency of the petition concerned appears to have been mounted. Furthermore, in Watt v Strathclyde Regional Council, the First Division of this Court considered a decision of the respondents as an education authority; that decision was one of general application to teachers employed by the respondents. That circumstance rendered the decision clearly one of an administrative character, in the Opinion of the Court. Such a decision was, by virtue of its character, susceptible to judicial review. While the circumstances of the present case are markedly different from those in that case, nevertheless it appears to me that issues of general application to all supply teachers whose names appear on the list operated by the respondents do arise. While the decision of the respondents complained of here related only to the position of the petitioner, plainly all persons whose names appear on the respondents' list have, in one sense, an interest in the issue of the procedure which ought to be followed where the presence of an individual's name on the list is in question.

In view of the contents of proposition (3) in the Opinion of the Court in West v The Secretary of State for Scotland, it might be thought that it would be both dangerous and unnecessary to take into consideration English decisions in relation to the competency of a petition for judicial review in the Court of Session. Nevertheless, since such authorities were relied upon in the argument before me by both parties, I think it right to refer to them. In Smith v East Sussex County Council (unreported; 13 December 1996) Scott Baker, J., was considering a decision made by the local education authority of the East Sussex County Council, which had refused to reinstate the applicant's name on the County Council's list of supply teachers. It appears that the name of the applicant had been removed from this list because of a complaint about his personal conduct. The issue of the competency of the application for judicial review arose because that was not conceded on behalf of the respondents, although no arguments were advanced to support the view that the application was incompetent. At page 6 of the transcript supplied to me, Scott Baker, J., said this:

While it is clear from this passage that Scott Baker, J. was applying an English concept concerning the scope of what was public law, with which I cannot be concerned, I am reassured that the English Court came to the conclusion which it did. The general importance of the appearance of a supply teacher's name on a list of the kind in question in that case and in this is emphasised. It appears to me that that feature is supportive of the view that what I am dealing with here is a decision of an administrative character of the kind referred to in Watt v Strathclyde Regional Council.

Finally in this connection counsel for the respondents laid stress on the observations of Lord Diplock in The Council for the Civil Service Union v The Minister for the Civil Service, at page 1194. He drew from that passage the proposition that, in considering the issue of competency, legitimate expectation was a relevant consideration. It appears to me from a consideration of the passage concerned that that concept was employed in the context of a consideration of the scope of decisions which were amenable to judicial review. In my opinion, if this passage is legitimate material for consideration in the context of an issue about the competency of a petition for judicial review in the Court of Session, about which I have doubts, in view of the decision in West v The Secretary of State for Scotland, the passage is of assistance to the petitioner, rather than to the respondents. Lord Diplock speaks of judicial review being available where a decision has been made affecting a person "by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment ....". It appears to me that it would be difficult to describe the position of the petitioner in the present case more aptly than by the use of the words quoted.

Having concluded that the present petition is competent, I turn now to deal with the merits of the grounds advanced in it on behalf of the petitioner. Essentially, these were two in number: (1) breach of natural justice; and (2) unreasonableness of the decision in the Wednesbury sense. Addressing first the contentions advanced in relation to an alleged breach of natural justice, as I understood the arguments of the petitioner, two particular criticisms were made of the procedure which had been followed, which did not depend on the resolution of any factual dispute between the petitioner and the respondents. In the first place, it was stated that the petitioner had received no specific information relating to the purpose of the meeting which was held on 19 March 1999 prior to it, or at its commencement. In particular, details of the allegation which was to be considered at the meeting were not communicated to the petitioner. In this connection I refer to what is set forth in Answer 6 for the respondents. In these circumstances, the petitioner had to attend the meeting and be subjected to questioning without having fair notice of the allegation which he might be expected to endeavour to answer. There was no agreement between the parties as to precisely what occurred at the meeting, but even on the respondents' version of events, details of the complaint made against the petitioner were not communicated to him at the outset of the meeting but emerged little by little during the course of the inquisitorial procedure which was followed. In my opinion these circumstances involve a breach of natural justice, in respect that, in my view, natural justice requires that, where a person in the position of the petitioner is facing the possibility of the removal of his name from a list such as that involved here, with the consequent likely withdrawal of employment opportunities, he ought to have been given, prior to the occasion of the investigation, fair notice of the allegations made against him and, furthermore, an opportunity, prior to the investigation, to prepare his case in answer to those investigations. Those things were not done in the present case.

The second aspect of the petitioner's case that the decision, of which he complained, had been taken in breach of the requirements of natural justice derived from the contents of the letter of 26 March 1999 sent by Mr McMillan to the petitioner, 6/1 of process. In that letter, Mr McMillan writes:-

It was accepted that, between the date of the meeting, 19 March 1999 and the writing of the letter dated 26 March 1999, Mr McMillan had come into possession of the report from the Head Teacher at Murrayburn School, Jeanette Perry, dated 18 March 1999. In my opinion, it is quite clear from the terms of the letter of 26 March 1999 that the contents of that report were taken into consideration and given weight by Mr McMillan in reaching the conclusion which he did, which was expressed in the letter. It was a matter of agreement that the petitioner had never, at any stage in the proceedings, had an opportunity to comment upon the terms of that report, which he had never seen. In my view, it is inherent in the requirements of natural justice that a report containing material of importance supporting the allegations made against him should have been communicated to the petitioner prior to a decision being taken about his future and moreover that he should have been given the opportunity to comment on the contents of that report, if it was to be relied upon by the respondents. Accordingly, I find that, in these two respects, the handling of this matter by the respondents' representative was in breach of the requirements of natural justice.

It may not be surprising that the situation which I have just described developed, since it became clear during the course of the discussion before me that Mr McMillan was labouring under a misapprehension concerning the petitioner's position. He apparently considered, at the time of the meeting of 19 March 1999, that the petitioner was currently employed as a supply teacher and would therefore be entitled to have the benefit of the formal disciplinary procedures which apply in such circumstances. It was said on behalf of the respondents that what was being undertaken on 19 March 1999 was in the nature of a "preliminary investigation", which would be followed by a formal investigation, in which, no doubt, procedures would be followed which would have given the petitioner full and fair notice of the case which he had to meet. What was meant by a "preliminary investigation", as I understood it, was an investigation, the purpose of which was simply to discover whether a formal disciplinary procedure should be undertaken. However, it appears that at some time between 19 March 1999 and 26 March 1999, when the letter to which I have referred was written, Mr McMillan discovered that the petitioner was not in fact currently employed as a supply teacher; it followed, of course, from that situation that no formal disciplinary procedures could be undertaken. As I understand it, Mr McMillan then simply proceeded to make use of the material which had been elicited at the meeting of 19 March 1999, for the limited purpose mentioned, in association with the report dated 18 March 1999, to reach the decision which he did, without apparently considering the propriety of that course in the circumstances as they were then recognised to be.

As will be apparent from my narrative of the petitioner's submissions, certain submissions were made to the effect that the decision of the respondents was unreasonable in the Wednesbury sense. Various points were made concerning the disproportion between the factual circumstances of the petitioner's alleged conduct and the action taken by the respondents. In addition, contentions were made concerning what might or might not be properly regarded as professional misconduct. I have reached the view that I cannot give effect to those submissions. They appear to me to depend upon the taking of a view as regards what in fact happened on the occasion at Murrayburn Primary School which has given rise to the complaint. That is a matter in controversy. In that connection, it appears to me to be quite impossible for the Court to attribute any weight to the account contained in the transcript, 7/1 of process, because, as I have held, the circumstances in which the meeting of 19 March 1999 was conducted were essentially unfair to the petitioner. I therefore consider that any concessions of any kind which he may have made at that meeting cannot properly be taken into account in the present context. Furthermore, as regards the report by Jeanette Perry, dated 18 March 1999, once again, I consider that I cannot take that material into account, since the petitioner has had no opportunity to comment upon it. In these circumstances, I cannot give effect to this branch of the petitioner's submissions.

In the whole circumstances, I shall sustain plea-in-law 1 for the petitioner to the extent that the decision of the respondents is in breach of natural justice. Accordingly I shall pronounce a declarator to the effect that the said decision by the respondents to remove the petitioner from their list of supply teachers was one which was ultra vires and contrary to natural justice. Upon that ground I shall pronounce decree of reduction of the said decision. I shall repel pleas-in-law 1, 2 and 4 for the respondents.