Dove & Anor, Re Application For Judicial Review [2001] ScotCS 291 (14 December 2001)

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[1] In November 1989 there came into force Part I of the Self Governing Schools etc. (Scotland) Act 1989 - "the 1989 Act". It provided a procedure whereby a school funded and managed by a local education authority might obtain what the 1989 Act described as "self-governing status". Put shortly, the procedure involved a decision by the school board to hold a ballot of parents of children attending the school on the question whether the school should seek such self-governing status and approval of such a proposal by an appropriate number of those entitled to vote. Where a school acquired such self-governing status a Board of Management was constituted which then assumed responsibility for managing the school and providing suitable and efficient school education at the school in place of the local education authority. Under section 1 of the 1989 Act the provision of finance for the school became in the first place the responsibility of the Secretary of State for Scotland who required to make annual grants - known as "recurrent grants" - but might also make capital grants for particular expenditure of a capital nature and special purpose grants. Section 28 of the 1989 Act provided that the Secretary of State might recover the amount of the recurrent grants from the local education authority in whose area the self-governing school was situated and regulations (the Self-Governing Schools Grant and Recovery (Scotland) Regulations 1994) were in due course promulgated with the consequence that ultimate responsibility for paying the annual costs of the school rested with the local education authority.

[2] It appears that only two schools in Scotland proceeded to acquire "self-governing status" in terms of the 1989 Act. One of those schools was St Mary's Episcopal Primary School, Dunblane - "St Mary's". Among the pupils currently attending St Mary's are the three sibling pupils on whose behalf this petition is brought by their parents as their legal representatives. The other school which acquired self-governing status was Dornoch Academy but it decided to return to management by the local education authority and did so return on 1 August 1999. A third school - Fort William Primary - advanced some way towards self-governing status but did not pursue matters so as to achieve that status.

[3] The petitioners make averments to the effect that the policy pursued in 1989 of providing for self-governing status was one which was opposed by the Opposition in the UK Parliament at that time. Following the initial elections to the Scottish Parliament, the present respondents - the Scottish Ministers - announced an intention to repeal the 1989 Act and restore schools with self-governing status to the management of the local education authority. The respondents thereafter, in accordance with that intention, presented to the Scottish Parliament a Bill which, subject to such modifications as may have occurred in the course of its parliamentary procedure, resulted in the Standards in Scotland's Schools etc. Act 2000. Various representations to the Scottish Parliament appear to have been made by the Board of Management of St Mary's and by some of the parents of its pupils during the course of the Bill's progress through the Scottish Parliament.

[4] Section 17 of the 2000 Act, which received Royal Assent on 14 July 2000, provides:

The 2000 Act also repealed Part I of the 1989 Act (being the whole provisions in that Act relating to self-governing schools).

[5] On 28 August 2001 the respondent Scottish Ministers, made the following statutory instruments or orders:

[6] In substance, those orders seek to effect the reversion of St Mary's to the management of the local education authority and to its being funded directly, rather than indirectly, by that local education authority. The present petition seeks to challenge the validity of those orders, and also a refusal of the Scottish Ministers of an application for grant aid, that refusal being consequent upon the respondents' decision to make the orders returning St Mary's to local education authority Management.

[7] It is not suggested by the petitioners that in terms of domestic Scots Law or procedure the steps taken by the Scottish Ministers to give effect to the policy of reversing the effects of the 1989 Act and returning "self-governing schools" to governance by the local education authority are defective. The sole ground of challenge relates to the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms ["the Convention"] and its first protocol.

[8] The particular provisions invoked by the petitioners are firstly, Article 2 to the Protocol (hereinafter referred to simply as "Article 2") which provides:

The second provision invoked by the petitioners is Article 14 of the Convention itself which provides:

Although two provisions of the Convention are in issue, it should be stressed that the petitioners' challenge involves taking both provisions together. It is not contended or argued by the petitioners that there has been, or would be, any breach of Article 2 itself if effect were given to the orders. The essence of the petitioners' complaint is that there has been allegedly unlawful discrimination in relation to matters covered by the ambit of the primary provision of Article 2. If, as the petitioners contend, the acts of the Scottish Ministers in question were to be in breach of Article 14 the consequence, in terms of section 57(2) of the Scotland Act 1998 would be that they were ultra vires.

[9] Where a complaint is made of discrimination it is of course necessary for the complainer to identify a person or body of persons with whom comparison may be made. In the present case the petitioners seek to compare St Mary's with Jordanhill College School in Glasgow, the particular comparison being in the respect that whereas the measures complained of return St Mary's to management by the local education authority, no equivalent measures exist for putting Jordanhill School under management of a local education authority.

[10] It is appropriate at this point to set out something of the history of Jordanhill School. The school was founded in 1920 by the Jordanhill College of Education and was run by the College as part of the facilities of the college for training intending teachers. In 1987 the College decided that it no longer required to have a dedicated school as part of its teacher training facilities in the College. For certain practical reasons the local education authority was unwilling to acquire the school from the College, which proposed accordingly to close the school. Opposition to the closure having been voiced by parents and others the then Secretary of State for Scotland decided that the school could continue as an independent school but be wholly grant-aided. The management of the school was then entrusted to a company incorporated under the Companies Act but limited by guarantee. It is financed in terms of the Jordanhill School Grant Regulations 1988 and section 73 of the Education (Scotland) Act 1980. Jordanhill School has accordingly never been managed by any local education authority and the sums provided to the school by way of grant are not provided by or recoverable from the local education authority.

[11] The argument for the petitioners that the measures restoring St Mary's to management by its local education authority constitute a breach of their rights under the Convention involves two principal branches and, consequently, two main issues.

[12] Firstly, it is accepted by counsel on both sides that the prohibition of discrimination enunciated in Article 14 of the Convention does not have a general, free-standing existence. Before Article 14 may have any application it is necessary that the alleged discrimination relate to the protection afforded by one of the substantive provisions of the Convention, or its Protocols. In other words, the alleged discrimination must be in respect of matters falling within the ambit of another, substantive provision. In the present case the petitioners contend that the measures under challenge, while not constituting any breach of Article 2 itself, nonetheless fall within the "ambit" of that provision. This is disputed by the respondents. The first issue is accordingly whether, on a proper construction or interpretation of that Article 2, the measures in question fall within the "ambit" of the right protected by that Article.

[13] The second issue, which is only reached on the assumption that the first issue is answered favourably to the petitioners, is whether there has been a difference in treatment as between children attending St Mary's and children attending Jordanhill which may properly be described as "discrimination" of a kind prohibited by Article 14.

[14] As just indicated, the first issue may be formulated as being whether a decision by the State to alter the management arrangements of a State sector school formerly managed and directly financed by the local education authority, but continuing effectively to be principally financed by that authority, so as to place it again under management and direct financing by that authority comes within the scope of ambit of the right protected by Article 2.

[15] What is meant by the "right to education" conferred by Article 2 was discussed by the European Court of Human Rights in what is commonly known as the "Belgian Linguistics" case, decided in 1968 and reported in 1 EHRR 252. Counsel on each side recognised the case as being the leading authority on the interpretation of the terms of Article 2. Having alluded to the negative formulation adopted by the drafters of Article 2, the European Court of Human Rights went on to say in respect of the right to education (para.3 ):

[16] Counsel for the Scottish Ministers submitted that in this judgment the European Court of Human Rights defined the right protected by Article 2 as embracing the components of a right to access to such educational institutions as may be provided by the State from time to time and the ability effectively to enjoy that right of education which would, in an appropriate case, include the right to obtain some official certificate or recognition of having received the education in issue. However, what Article 2 did not confer was any right to a particular form or organisation of the provision, by the State, of education. How a state might regulate and manage its schools was a matter which lay outwith the ambit of Article 2, provided that the arrangements did not deny or impede access to those schools and provided that the right to enjoy such education as was provided was effective. In this regard counsel for the respondents referred to what was said by the court in paragraph 9 respecting the guarantees laid down in Article 14, namely:

[17] Counsel for the petitioners on the other hand maintained both that the scope of the "right to education" protected by Article 2 should be construed more widely than had been thus indicated in the Belgian Linguistics case and that the term or notion of the "ambit" should receive a wide construction or interpretation. Counsel submitted that although in Belgian Linguistics the court had indicated the components of that right, it was not said expressly that those were the only components. In the Commission decision X v United Kingdom (1970) 14 Dr. 179, the European Human Rights Commission appeared to have treated the funding of denominational and integrated schools as a matter susceptible of the discriminatory treatment infringing Article 14, although it recognised from the Belgian Linguistics case that Article 2 did not give rise to any obligation to subsidise any particular type of education. Accordingly, while there might not be an obligation under Article 2 to provide a particular kind of education, that did not mean that the provision of education generally did not come within the ambit of Article 2. A change in the method of managing a school had, said counsel, the potential to change the character and nature of the school. A component of the right contained in the first sentence of Article 2 identified by the court in Belgian Linguistics was that the right should be "effective". It was, said counsel, apparent that any change in the management or administration of the school might have consequences for the effectiveness of the education provided in the school. Since management might thus impinge on the effectiveness of the education, it was submitted that management thereby came within the "ambit" of Article 2.

[18] In approaching the competing submissions on this branch of the argument it is, I think, important to bear in mind that, as was accepted by counsel on each side, it is well-established that Article 14 does not enact a general wide ranging prohibition on discrimination. The application of Article 14 is restricted to discrimination only in the "ambit" of the particular rights and freedoms protected elsewhere in the Convention. According to the passages in the textbook Clayton & Tomlinson on the Law of Human Rights, to which I was referred (p.1236ff) the term "ambit" was first used by the court in Van der Mussele v Belgium (1983) 6 E.H.R.R. 163, a case to which I was also referred by counsel for the petitioners. Other expressions which appear to have been employed were whether the subject "constitutes one of the modalities of the exercise of the rights guaranteed" or whether the measures in question "are linked to the exercise of the right guaranteed".

[19] In Van der Mussele the applicant - a Belgian lawyer - complained of the requirement of his professional body that he act, in some cases, for an indigent accused without payment of a fee as being a breach of the prohibition contained in Article 4 of the Convention on "forced or compulsory labour". Paragraph (3) of Article 4 lists, in sub-paragraphs, certain forms of work or service which do not come within the concept of "forced or compulsory labour". Respecting those sub-paragraphs the court said (para.38 in fine):

The court in Van der Mussele went on to observe inter alia that the services in question did not fall outwith the normal activities of a lawyer and the obligation to act without fee was of a similar order to "normal civic obligations". In those circumstances there was no breach of Article 4. When it turned to consider Article 14, the court went on to state (in para.43) that as it had -

It therefore appears to me that the court considered Article 14 applicable in that case because the extent of the right was defined by what was the "normal" state of affairs and the characterisation of what was normal might be affected by discriminatory factors. The application of Article 14 in that case was thus linked to the scope of the substantive right in Article 4.

[20] The concept of the "ambit" is perhaps more clearly illustrated by the decision in Rasmussen v Denmark (1984) 7 E.H.H.R. 371 to which counsel for the respondents referred. Mr Rasmussen's complaint of discrimination related to the fact that Danish legislation imposed time limits for men who wished to raise court actions relating to paternity which were not imposed on women seeking to raise similar such actions. Since the issues of paternity were civil rights and Article 6(1) secured to everyone the right to have any claim relating to such a civil right brought before a court or tribunal, the question of the time limits for bringing such actions (which were restrictions on the right of access to the courts) fell within the ambit of the right conferred by Article 6(1) of access to a court or tribunal. A further illustration may be found in Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471 in which three ladies settled in the United Kingdom complained of the refusal of the United Kingdom government in terms of the then prevailing Immigration Rules to allow their non-patrial husbands to join them in the United Kingdom. Although in the event it was held that Article 8 (right to family life) had not been breached, "family life" included marriage and normally also comprised the co-habitation of a married couple. Article 8 therefore applied to the Immigration Rules in issue. Consequently, in so far as they provided a treatment more favourable to husbands settled in the United Kingdom than to wives so settled, the rules were discriminatory and in breach of Article 14. It may also be noted that in Belgian Linguistics, the question of discrimination was focused in the issue whether enjoyment of the right to education was secured without discrimination on the ground of language.

[21] In these circumstances I do not consider that the use of the term "ambit" may properly be invoked to extend the application of Article 14 to matters arising in areas which do not properly fall within the scope of the substantive article in question. In other words, in order to bring Article 14 into play in the present case it is not sufficient that the measures complained of are related to education or the provision of education in some general way. Rather, the measures would require to involve issues or questions which properly fall within the scope of the right conferred by Article 2 or relate to its enjoyment.

[22] It is in my opinion evident from the cases decided by the court in Strasbourg that the "right to education" conferred by that Article is to be seen as a restricted one, being a right to have access to such educational institutions as the State may provide, as those institutions exist from time to time, and a right to be able to make effective use of that access to education, the latter of element of which would include the obtaining of official recognition of the studies completed. I have already set out some of the relevant passages in the Belgian Linguistic case. The description of the right given in that case was reiterated by the court in the later case of Kjeldsen, Busk, Madsen and Pedersen v Denmark (1976) 1 EHRR 711 in which the court said, at para.52:

[23] In the present case the actions of the Scottish Ministers of which complaint is made are, in their essence, a decision that a publicly financed school formerly managed by an elected local authority (and the officials employed by and responsible to that elected authority) should revert to management by that means rather than continue under management by a body consistent principally of elected parent members, elected staff members and certain co-opted members. It is not suggested that the measures in question in any way affect the ability of the children on whose behalf this petition is brought to attend St Mary's; nor is it suggested that they in anyway affect the children's ability to profit from the education which they receive there or otherwise to enjoy the right of access to that school. Insofar as it was asserted by counsel for the petitioners that the change in the body entrusted with the management of the school might in turn alter the nature and quality of the schooling I have to say that the right, as defined by the Strasbourg court, is that of access to the educational institution as from time to time existing. The provisions of Article 2 cannot be construed as conferring a right to object to the taking place of any change in the management of the institution or the nature of the education provided. Insofar as counsel for the petitioners suggested otherwise, I have to reject that suggestion. Further, insofar as counsel for the petitioners suggested that a change in the identity of the body entrusted with the management of the school might have consequences for the "effectiveness" of the education on offer, thus arguably bringing the impugned measures within the ambit of Article 2, I have to say that I consider that such a submission must also be rejected. The submission carries with it the implication of a right to education of a particular quality or standard. However, in the Belgian Linguistics case the court was at pains to state that the provisions of Article 2 did not impose any obligation on the contracting States to provide education of a particular type or of a particular standard. It is also to be noted that in Belgian Linguistics the adjective "effective" is employed by the court not as regards the quality of the teaching or education but respecting the enjoyment of the individual of the right of access to such education facilities as may be available and is exemplified by the court in the individual's ability to draw profit from the education received by having its receipt by him officially recognised.

[24] In the course of his submissions, Mr Devlin, who appeared as junior counsel for the petitioners, ventured a submission based on the second sentence of Article 2, which, as an adjunct to the first sentence, places on a State, insofar it does provide public education, a duty in that provision of education and teaching to respect the "religious and philosophical convictions" of parents. Counsel for the respondents objected to the development of this line of argument on the ground that the written pleadings for the petitioners neither alleged any breach of that obligation nor suggested that any issue of religious of philosophical convictions was to be canvassed. That is, I think, a correct reading of the petitioners' pleadings. Mr Devlin accepted that no such contention was properly offered in the pleadings but he submitted that questions of such convictions might enter into an "ambit argument".

[25] I would have been unwilling to dispose of this suggestion from the petitioners' counsel simply on a pleading point, had I come to the view that it had substantive merit and required further elaboration in the pleadings. But having had an opportunity to consider the suggestion I have reached the conclusion that it lacks that substantial merit. The term "religious or philosophical convictions" is plainly different from simple beliefs or wishes of a parent in relation to the administration of a school. Mr Devlin referred to the decision of the European Court of Human Rights in Campbell and Cosans v United Kingdom (1982) 4 EHRR 293 in which the Strasbourg court held that parental opposition to the traditional use of corporal punishment in Scottish schools could amount to a philosophical conviction. However, in my view, it is evident from the terms of the court's judgment (para. 36) that the court regarded the physical nature of the punishment, involving violence on the person of the pupil, as having a fundamental or philosophical quality which distinguished that particular form of punishment from various other means of discipline respecting which parental views could not amount to philosophical convictions. In my view, while the parents of the children on whose behalf this petition is brought may doubtless have a distinct, genuine and arguable preference for the maintenance of the self-governing status of St Mary's as being, in their estimation, in the better interests of their children's schooling, I do not consider it possible to elevate that preference, or belief, to the important status of a "religious or philosophical conviction". Moreover, it is to be observed that the second sentence of Article 2 relates to the content of the education provided, rather than administrative arrangements for its provision.

[26] Accordingly, the conclusion which I consider must be reached is that the measures under challenge cannot properly be said to fall within the ambit of Article 2, with the consequence that Article 14 does not come into play. In reaching that conclusion I do not overlook the decision of the Commission (not the Court) in Strasbourg in X v the United Kingdom. It appears from a study of the short report of the decision that consideration of Article 14 was embarked upon by the Commission of its own initiative and in the event it readily held Article 14 not to have been breached. To that extent, and also in respect that it is simply a Commission decision, and further in respect that the issues under consideration involved the funding of non-sectarian schools in Northern Ireland, thereby raising in turn issues relating to the religious convictions of parents, I do not find in that decision grounds for departing from the principles established by the European Court of Human Rights in the decisions to which I have referred.

[27] Although the conclusion at which I have arrived on my consideration of the arguments on the first issue in the case is determinative of the proceedings it is appropriate, lest I be wrong on that conclusion, that I give expression to the views which I have formed on the other principal branch of the argument.

[28] Before a complaint of discrimination can be advanced it is of course necessary that the complainer point to a difference of treatment. In the present case there is no dispute that St Mary's and Jordanhill Schools are treated differently in the singular respect that the measures in issue affect only St Mary's.

[29] Counsel for the respondents submitted that it was not enough merely to point to a difference in treatment. The difference in treatment had to materially disadvantage the complainer and accordingly, as I understood the submission, it was necessary for the petitioners to aver the respect or respects in which their children were disadvantaged. Counsel for the respondents referred to paragraph 45 of the judgment in Van der Mussele, which referred in turn to the applicant's submission in that case to the effect that Belgian lawyers were subject to "less favourable treatment" than other professions in Belgium. However, I do not see that passage as laying down a requirement that the precise disadvantage must be specified and established before a claim of discrimination will be upheld. As a matter of generality it is in my view implicit that in making a complaint of discrimination the complainer perceives the difference in treatment as adversely affecting him. Accordingly, insofar as it might be seen as simply relating to the requirements of pleading, I do not regard this particular branch of the respondents' submissions to be sound. The question of disadvantage or otherwise may however have a certain bearing on the ultimate logic of the petitioners' position.

[30] As was stated by the European Court of Human Rights in its decision in Van der Mussele, Article 14 safeguards individuals "placed in analogous situations" from discrimination. While there may be cases in which it is profitable to consider as discrete issues firstly, whether the two situations under comparison are indeed similar or analogous and secondly, whether the difference in treatment is justifiable, it appears to me that those two matters may merge where the contention is that the difference in treatment arises because the two categories of person or body in question are in different situations. That appears to have been the approach adopted by the court in Rasmussen and it is, as I understand the position, indeed the contention of the respondents in this case. The reason for applying different administrative arrangements to the two schools is that the two schools in question are in different situations, being in different administrative categories, with differing histories. The respondents point out that, unlike St Mary's, Jordanhill has never been funded or managed to any extent by a local education authority. Unlike St Mary's it did not become a "self-governing school" in terms of the 1989 Act and indeed was not affected by that legislation. The respondents declared policy - for which they claim support from a public consultation exercise and the proceedings in the Parliament - is to reverse the effects of Part I of the 1989 Act and restore the administrative and financial arrangements of the status quo ante. The respondents further say that the decision to adopt a policy of simply repealing the 1989 Act and reversing its effects so far as it was ever implemented, is one which falls within what is described in their pleadings as their "margin of appreciation".

[31] For their part, the petitioners contend that the two schools are similarly placed in that in the ultimate result both are, in a general sense, publicly funded and are mainstream schools not directly managed by the local education authority. The distinctions invoked by the respondents are, say the petitioners, simply differences in history. They contend that the policy of returning St Mary's to local education authority management, but not transferring Jordanhill to such management, lacks any underlying rational aim. It was further submitted by counsel for the petitioners that the reference by the respondents in their pleadings to their having a "margin of appreciation" was misplaced. The doctrine of "margin of appreciation" was something, said counsel, which could only be applied by the European Court of Human Rights and not by a national court. In that regard counsel made reference to what was said in R v Stratford Justices ex parte Lambert (1999) 2 Crim. App. R. 276, 286-7; R v DPP ex parte Kebilene [1999] 3 W.L.R., 993-994 and the discussion of the matter in Lester and Pannick at para.3.25 and Clayton and Tomlinson at paras.6-37ff. Reference was also made to R v Secretary of State for the Home Department ex parte Daly [2001] 2 All E.R. 433, 445. As I ultimately understood the submission of counsel for the petitioners on this particular sub-branch of the argument it appeared to me that their contention was that "margin of appreciation" was something only available to the Strasbourg court but national courts were enabled to recognise a similar area of discretion under a different name.

[32] In discussing these competing submissions it must be stressed that the merits, or demerits, of the arrangements for "self-governing schools" introduced by the 1989 Act are not a matter upon which it would be proper for this court to express any view. Whether schools funded by a local authority are better managed by the elected local education authority and its officials or by a school board of management is entirely a matter of political judgement. That judgement must be reached by the democratically elected organs of the State. The need to respect such policy decisions taken through the democratic process was recently emphasised, in the context of a human rights challenge, by the House of Lords in its decision in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 A.C. 975, to which senior counsel for the respondents referred. Accordingly, the policy, which has received Parliamentary approval, of repealing the relevant provisions of the 1989 Act and restoring those schools which had become "self-governing" in terms of that Act to their former status is one which the respondents are plainly entitled to pursue.

[33] Insofar as the policy pursued is that of reversing the effects of the 1989 Act the petitioners cannot, in my view, allege any discrimination among those affected by that Act. It is not said, for example, that there are other local authority schools which became "self-governing" under the 1989 Act but which the Scottish Ministers allow to retain that status. The simple fact is that St Mary's is the only local authority school which attained self-governing status but has not returned to management by the local education authority. There is, in my view, force in the respondents contention that the natural, and only proper, comparator for St Mary's is to be sought in such other schools as may have invoked the procedures under the 1989 Act - which were not available to Jordanhill. Indeed, it might be said that since the petitioners cannot argue that the respondents and the Parliament are not entitled to pursue the policy of reversing the effect of the 1989 Act which is seen as being to the advantage of the State's educational arrangements, it appears to me that an implication of the petitioners' argument is that the respondents require not merely to restore the status quo ante at the time of the enactment of the 1989 Act but also to go further and to alter the legislative arrangements affecting Jordanhill School.

[34] In my opinion, however, when deciding to undo the effects of the 1989 Act, the respondents were entitled to treat Jordanhill School as being in a different category from schools to which the 1989 Act applied and which had acquired "self-governing status" under that Act. Jordanhill School had never formed part of the system of public schools funded and managed by a local education authority but had its own unique history and administrative arrangements. In my view, as I think counsel for the petitioners eventually accepted, it is clear that in deciding upon administrative arrangements for schools the State - in casu the Scottish Ministers and the Scottish Parliament - enjoys a discretion or an area of choice or judgement in the evaluation of matters and selection of arrangements and solutions. I do not think it profitable, given the hypothetical nature of the views which I am currently expressing, to enter into a close discussion of whether that area of judgement, evaluation and discretion is something different from the "margin of appreciation" recognised by the court in Strasbourg as applying to national authorities when reaching decisions on such matters. I would simply record my understanding of the equivalent French expression - "marge d'appréciation" - as referring to that general area of judgement, evaluation and discretion commonly enjoyed by decision-takers in such fields and, in my respectful opinion, no special magic is to be attached to the particular English translation of that expression - "margin of appreciation" - adopted by the European Court of Human Rights in its judgments. (It is of course to be recognised that in reviewing the exercise of decisions within that discretionary area that Court, as a supra-national court, enjoys the advantage of awareness of the solutions or approaches adopted in the Contracting States).

[35] At all events the decision to regard Jordanhill School, which had never been funded or managed by any local education authority, and to which the provisions of the 1989 Act did not apply, as being in a different position from the local authority schools to which the 1989 Act did apply is one which must, in my opinion, clearly come within that area of discretion, or evaluation of the administrative situations of, on the one hand, the Jordanhill School, with its unique history, and on the other hand local authority schools, respecting which the 1989 Act applied in its universality. In my view, the decision of the Scottish Ministers to treat St Mary's as being a school affected by the 1989 Act, but regarding Jordanhill as a school unique in its history and legislative position and not governed by the 1989 Act, is one which has a rational basis. The two schools are not properly in similar or analogous situations. In so far as they are the subject of different treatment that difference is thus exempt from legal challenge under Article 14.

[36] Accordingly, even if the measures under challenge were to come within the ambit of Article 2 of the Protocol to the Convention, I conclude that the petition must also fail on the discrimination issue.

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