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Order removing college board not unlawful, court rules

21 March 2017

A former management board member of Glasgow Clyde College has failed in a legal challenge to a legislative order removing almost the entire board from office – and disqualifying the petitioner from membership of similar boards as a result.

Peter Laverie, one of 12 members of the board removed by the order made by Cabinet Secretary Angela Constance in October 2015, challenged by judicial review the order itself and the statutory provisions providing for disqualification following removal. A senior lecturer and teaching fellow at the college, he was elected to the board by the teaching staff. 

The order followed a breakdown in relations between the college principal, Susan Walsh, and board chairman George Chalmers. In February 2015 Mr Chalmers informed the board that having obtained specialist employment law advice, he had suspended the principal using powers in the college's constitution. The Scottish Funding Council investigated and concluded that the board had mismanaged the college's affairs, recommending that the chair be removed. Members' comments were requested on the report. The Cabinet Secretary wrote to members requesting comments on certain matters, and met the chair and two other members, at which the chair gave the board's side of the story. Submissions were also made by solicitors on behalf of the board members.

Ministers consulted with the Funding Council in terms of the legislation, and then made the order along with a statement of reasons listing six perceived failures in governance and management, including meetings without agandas, deficiencies in minutes of meetings, non-replacement of secretary, difficulties in relationship with students, breaking limits on legal expenses, and improper delegation of functions. The order came into force on the day it was made, despite a provision that it should be laid before the Parliament for 28 days first (a failure that did not affect its validity). MSPs did not seek to annul the order.

For the petitioner it was argued that his rights had been infringed under article 6(1) of the Human Rights Convention, as there had been a determination of his civil rights and obligations without recourse to an independent and impartial tribunal, and it had not been suggested that he was personally responsible for key matters; under article 11 (right to join and participate in trade unions), because he could not now perform his role as a union representative or advance his union potential; under article 1 of Protocol 1, because the rights associated with his office could be classed as possessions; and at common law because the decision was unreasonable and contrary to natural justice. The disqualification provisions, in the Further and Higher Education (Scotland) Act 1992, infringed the same Convention rights.

Dismissing the petition, Lord Clark in the Outer House first of all rejected an argument that the petitioner had delayed too long in bringing his challenge, where he had first of all sought to invoke parliamentary procedures and and then sought funding from his union and consulted with senior counsel. He had spoken out at an early stage and it could not be inferred that he had acquiesced in the situation.

However his rights under the Convention were not engaged. There were no civil rights at issue within article 6(1), as membership of the board was a matter of public service, was voluntary and unpaid, and had no private character or economic aspect. In any event there was no breach of article 6(1) where members had collective responsibility for board actions, and the Cabinet Secretary had considered the board's position. Reasons had been given for the order to take effect immediately. 

The right protected by article 11 was to freedom of peaceful assembly and freedom of association, including trade unions. "There is simply nothing in the order which in any way restricts the right of the petitioner to form or join a trade union or which prevents a trade union... from being heard", Lord Clark said. Nor was there any interference with possessions under article 1 of Protocol 1 as there was no authority that a position of this type comprised some economic interest such as to make it a possession.

The common law challenges were also misconceived: people who served on boards exposed themselves to collective responsibility, and the procedure followed plainly complied with natural justice.

As for the statutory disqualification, "Having regard to the relatively limited nature of the restrictions imposed by the provisions, albeit lifelong, and their aim, it cannot be said that the legislation does not strike a fair balance. In any event, in matters of this kind,... substantial weight has to be given to the discretionary area of judgment of the legislative body", Lord Clark concluded.

Click here to view the opinion.

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