Scotland's most senior judge has dismissed an appeal by East Ayrshire parents against the closure of St Paul's primary in Hurlford and strengthened the hand of councils in future closure wrangles.
Lord Rodger of Earlsferry, Lord President of the Court of Session, has backed East Ayrshire council's intepretation of the "80 per cent rule" under which plans to close schools more than four-fifths full must be referred to the Government. He also supports the council's definition of the school's capacity and its decision not to refer the closure of the Roman Catholic school to the Secretary of State.
Alyson King, a St Paul's parent, who led the campaign against closure and the illegal occupation of the school last year, had challenged an earlier Court of Session verdict supporting the council's actions.
But Lord Rodger, in a written judgment, has vindicated the previous court ruling and the council's arguments, although he found that East Ayrshire and the Scottish Office had misused the school's "historic attendance figures" in making calculations about the school's capacity. The error was not significant enough to overturn the earlier opinion, he maintains.
The dispute centred on the difference between the "planning capacity" and the "working capacity" of the school. East Ayrshire argued the planning or pupil capacity was 122 but parents contended the working capacity was 100. Since the school had 81 pupils, parents argued the decision to close the primary should have been passed to the Secretary of State under the 80 per cent rule. Decisions to close schools more than 80 per cent full have, since 1988 and the battle over the closure of Paisley Grammar, to be referred to the Government.
East Ayrshire did not dispute the working capacity was 100 but said the school had the space to cope with more pupils.
A Scottish Office investigation at the time found East Ayrshire had not breached any regulations in taking its closure decision and had correctly calculated the planning capacity of the school. Lord Rodger observes that the terms "planning capacity" or "working capacity" do not appear anywhere in legislation and are terms used by the former Strathclyde Regional Council in a circular to determine practical ways of determining capacity.
He found East Ayrshire had considered all the factors under the 80 per cent rule and had rejected them. Lord Rodger notes: "When we examine these factors specified by Parliament, however, we see that Parliament cannot have intended simply to refer to the 'working capacity' of the school as that would be calculated under the circular." Crucially, according to Lord Rodger, the parents' case for referral was the attendance figures in the 10 years before the council decided to close the school.
In a key section of his ruling, he comments: "The fact that in calculating the 'pupil capacity' of a school the authority require to have regard to its historic attendance figures shows conclusively that a school's 'pupil capacity' for these purposes is not synonymous with its 'working capacity' in terms of the circular.
"We are therefore satisfied that the petitioner (Mrs King) is wrong in her contention that in applying the 80 per cent rule the respondents required to fix the pupil capacity of St Paul's at 100 pupils simply by using the working capacity calculation under the circular."
Tommy Farrell, East Ayrshire education convener, stated last week: "This has been a long, painful process for everyone involved but I'm delighted that the Court of Session has consistently upheld the council's position."
The decision to close St Paul's, along with four other primaries, was taken in May last year. It provoked a parents' occupation during the summer and led to a small group of parents educating their children separately in community provision. By the end of last session all parents had opted to send their children to other local primaries.