Report by Brodies for the Quality Assurance Agency for Higher Education on the Law in Scotland Relating to Student Complaints and Appeals in Higher Education

1. Introduction

1.1 We have been asked by the Quality Assurance Agency for Higher Education ('the QAA'), via our instructing agents Mills & Reeve, Solicitors, to produce an update on the law relating to student complaints and appeals for the QAA to use when reviewing its Code of Practice for the assurance of academic quality and standards in higher education ('the Code'), and in particular section 5 of the Code ('Academic appeals and student complaints on academic matters - March 2000').

1.2 This report is intended to be free-standing but where there is no substantial difference between the Scottish and English positions we have, in the interests of avoiding duplication, refrained from restating the terms of Mills & Reeve's own report on the legal position relating to student complaints and appeals in higher education, dated May 2006. This report therefore identifies those areas where Scots law differs from the English position or where there is some ambiguity about the position under Scots law. As it is not clear from the current version of the Code to what extent the Scottish position was considered at the time of drafting, we have set out some of the basic principles of Scots law and practice which we believe are relevant. We have also considered the discussion of the right to representation in internal student hearings set out in Mills & Reeve's Note of September 2006. It may therefore be useful to read this report alongside the Mills & Reeve reports referred to.

1.3 In accordance with Mills & Reeve's approach, we have focused this report on the issues covered by section 5 of the Code - i.e. academic appeals and student complaints on academic matters, including the right to representation. We have not considered specifically any issues which fall outside that area, although many of the principles and recommendations set out in this report will apply generally to the procedures which should be adopted in relation to disciplinary and other matters.

2. Summary

2.1 There is no single body entrusted by statute with direct oversight of higher education institutions in Scotland in relation to student appeals and complaints. The principal avenue by which a challenge to universities' appeals and complaints procedures may be made is therefore by way of judicial review in the Court of Session.

2.2 There are also a number of other areas of law which have a largely incidental application to universities' procedures, and to a large extent are only relevant to areas other than academic appeals and complaints. The same is true of some statutory bodies which have a limited jurisdiction over higher education.

3. The Current Appeals and Complaints Procedures in Scotland

3.1. It may be useful to provide an overview of the existing complaints procedure in Scottish universities. Each university has its own system but in our experience they do not differ widely (no doubt, at least in part, because of the Code of Practice). Taking Edinburgh University's procedure as an example :

3.1.1. The expectation is that the student will try to resolve their complaint with those directly concerned first.

3.1.2. The first official stage is Stage 1 where a standardised Student Complaint Form is submitted to the Head of the relevant School. An investigator may be appointed and can make arrangements for conciliation by organising joint or individual meetings. The focus at this stage is on arriving promptly at an acceptable outcome rather than making a judgement about whether the student is right or wrong.

3.1.3. If the complaint is not resolved, it moves on to Stage 2. The Head of the relevant School completes a report on the substance and handling of the complaint. All parties are invited to see the report and can submit any additional comments. It is then handed over to the Head of the relevant College. Again, the matter is investigated and a meeting involving the student is necessary if not performed at Stage 1. The possible outcomes are (i) an acceptable outcome is agreed; or (ii) the investigator reports to the Head of College, who either decides what further action to take, or decides that it has been heard fairly and appropriate actions have been taken. The student then has access to the appeal process.

3.1.4. Appeal - a student can only appeal on set grounds which are either or both of: (i) substantial new information which was not available at Stage 2 for good reason, and (ii) evidence of a defect in the way the procedure was followed at Stage 2. The appeal is considered by the Head of Academic Affairs in consultation with the Academic Register. Should grounds for appeal be established, the Student Complaints Appeals Committee is convened to hear the complaint. The Committee is convened by a lay member of the University Court and the members are not the same individuals who were involved in Stages 1 and 2. Appeals are either upheld or not upheld. If they are not upheld, the student is referred to the Scottish Public Services Ombudsman (see section 12 of this report).

4. Changes in the Legal Position since 2000

4.1 Paragraph 1.4 of Mills & Reeve's report of May 2006 summarises those areas in which the law has developed since the publication of the Code. Of those areas mentioned, the following are also applicable to Scotland:

4.1.1. a focus on admissions and widening participation;

4.1.2. the bringing into domestic law of the European Convention on Human Rights;

4.1.3. greater legal rights to disclosure of information;

4.1.4. developing rights under private law - negligence and contract;

4.1.5. new statutory rights prohibiting unlawful discrimination and encouraging diversity; and

4.1.6. managing student complaints and appeals in a global context.

4.2. To these we would also add the creation of the Scottish Public Services Ombudsman as a relevant development since 2000.

4.3. The other issues referred to in relation to the Visitorial jurisdiction and the creation of the Office of the Independent Adjudicator for Higher Education, are not relevant in Scotland.

5. Statutory / Visitorial Oversight

5.1. The principal difference between the legal issues relevant to English and Scottish universities is that in Scotland there are no statutory bodies with legal responsibility for reviewing student complaints. Part 2 of the Higher Education Act 2004, which creates the Student Complaints Scheme, has no application in Scotland. The Office of the Independent Adjudicator for Higher Education therefore has no jurisdiction to review complaints made against Scottish universities. The QAA will of course be aware that the Garrick Report (the Report of the Scottish Committee of the National Committee of Inquiry into Higher Education) did not make any recommendation equivalent to the proposal in the Dearing Report that the procedures for handling student complaints be revised.

5.2. In contrast to England, the concept of a 'Visitor' with responsibility for overseeing the handling of appeals and complaints by a university is unknown in Scots law.

5.3. As discussed below, there are a number of statutory bodies and regimes which have some jurisdiction over certain elements of universities' conduct, most of which have been created or modified since 2000. However, the principal means of oversight in relation to the treatment of academic complaints and appeals will continue to be judicial review in the Court of Session. This is something of a mixed blessing for universities and for students, as it means that while very few students will actually be prepared to undertake the expense and effort such an action entails, a student who is sufficiently aggrieved to raise such an action can do so much more quickly than would be the case if intermediate stages of escalation were available.

6. Judicial Review

6.1. There has been little material change in the Court of Session's approach to judicial review since section 5 of the Code was issued in March 2000, although the coming into force of the Human Rights Act has expanded the grounds on which an action can be brought to include a breach of any of the Convention rights. In any event, given the importance of judicial review as the principal means of overseeing the conduct of universities in relation to complaints, we have set out a brief outline of the Scottish position, particularly where that differs from the English.

6.2. The two approaches to judicial review are largely similar, although there are some fairly important distinctions. In particular, there are differences relating to scope (i.e. when an action for judicial review can be raised, and against whom), title and interest (i.e. who may raise an action for judicial review), grounds (i.e. the basis on which an action may be raised), and the time within which an action can be raised. We will address each of these in turn.

6.3. Scope: The Need for a Public Law Dimension

6.3.1. In England, the key issue a Court will take into account in deciding whether an act or decision is amenable to judicial review is whether or not it is 'public' in nature (i.e. whether it engages questions of public law). In Scotland, however, the Courts have historically not distinguished between cases involving issues of private law from those involving public law¹. In response to decisions which attempted to apply the English 'public element' test (for example, Criper v Edinburgh University²), the correct test was definitively set out by Lord President Hope in West v Secretary of State for Scotland³. That test states that a petition for judicial review will be competent where there exists a ‘tripartite relationship' in which (1) power is conferred; (2) on a party to whom the taking of the decision is entrusted; and (3) whose decision affects the rights and obligations of another person.

6.3.2. Judicial review in Scotland is therefore not confined to 'public' acts, or to the acts of public authorities, as the tripartite relationship can exist in relation to private relationships⁴. However, it should be noted that an act will not be amenable to judicial review simply because it is carried out by a public authority - in fact, the Court in West decided that judicial review was not competent to the dispute in issue as it related to Mr West's employment and so was essentially contractual.

6.3.3. Universities are accordingly capable of being judicially reviewed in relation to academic appeals and complaints, due to the existence of the tripartite relationship (i.e. the Charter or Statute which provides the University with the power to award degrees etc.⁵, the University staff who exercise that power, and the students in respect of whom the power is exercised).

6.3.4. It should be noted that there will be cases where it will not be entirely clear whether a tripartite relationship exists, or whether an act or decision of a university can be judicially reviewed. In 2 cases brought against Stirling University⁶, both of which related to the exclusion of students for non-payment of fees, different approaches were taken as to whether judicial review was appropriate or whether the issue at hand was simply contractual in nature. This illustrates that different cases may turn on the details of their own particular facts, and that there is no definitive guidance on what will and will not be amenable to judicial review.

6.4. Grounds

6.4.1. The grounds of judicial review are very much the same in Scotland as in England. Those grounds were set out by Lord Diplock in the case of Council for Civil Service Unions v Minister for Civil Service⁷, who classified the grounds under three heads: (1) illegality; (2) irrationality and (3) procedural impropriety. This remains the leading case although since 1985 some additional grounds can be said to have developed.

The First Ground - Illegality (Ultra Vires)

6.4.2. This head itself can be broken down into various separate sub-categories, and a decision may be attacked in a petition for judicial review on the basis of one or more types of ‘illegality'. Examples of ‘illegality' would include where a university is empowered to make a decision based on a particular rule or provision but simply makes a mistake as to the meaning or application of the rule or provision; that the university has exceeded its powers⁸; that in making a decision, the university has taken into account factors which it should not have or, conversely, has failed to take account of relevant considerations⁹; and that a power has been used for a purpose for which it was not intended¹⁰.

The Second Ground - Irrationality

6.4.3. Judicial review is often characterised by the Court as an exercise in assessing the legality rather than the merits of a decision; how the decision was made rather than what the decision actually was. However, of the three grounds identified by Lord Diplock irrationality comes closest to the Courts examining the merits of a decision.

6.4.4. This ground is also known as ‘Wednesbury Unreasonableness'¹¹. It refers to the principle that a decision of a public body can be attacked on the basis that it is 'so unreasonable that no reasonable authority could ever have come to it'. This ground for review rests on the notion that, in such circumstances, a body cannot be said to be acting within its powers.

6.4.5. Traditionally the Scottish Courts have treated this as a very difficult test for a petitioner to meet, requiring to be satisfied that the decision-maker's judgement is quite obviously flawed before substituting their own. In Saleh v University of Dundee¹² the Court confirmed that it was for the University to decide whether or not to award a degree, and as long as their decision was not irrational or unreasonable the Court would not interfere.

The Third Ground - Procedural Impropriety

6.4.6. The third ground for judicial review is procedural impropriety and has also been described as referring to a ‘duty to act fairly'. The principal obligation on a university in relation to ‘acting fairly' is to ensure that it complies with any specific procedural requirements laid down in the rules which apply to its decision making processes, and also that those requirements are fair and reasonable.

6.4.7. A failure to comply with a procedural requirement will not always result in the public authority's decision being wholly invalidated. The Court will consider whether the failure to comply is so serious that the whole decision making process is so unfair to the person affected that the decision should be struck down.

6.4.8. The Court has also developed principles of fair procedure which ought to be followed by universities when they are making decisions, even in the absence of any specific procedural requirements. The most important principles in this area are referred to as the principles of ‘natural justice'. The two key principles of ‘natural justice' are: (1) the right to be heard¹³ and (2) the rule against bias¹⁴.

6.4.9. The right to be heard focuses on the rights of a party involved in a dispute to put their case fully and effectively to the decision maker on whom decision-making power is conferred. It should be noted that although many of the cases have considered the very specific issue of whether a person is entitled to an oral hearing before a decision is made the right to be heard encompasses wider concerns regarding the overall fairness of the procedure. One of the crucial areas is that a person must have an opportunity to see and respond to any information relied on by the decision-maker (see Saleh v University of Dundee, cited above).

6.4.10. The rule against bias (considered in the context of judicial independence in the case cited) is based on the principle that no-one may be a judge in his own cause (e.g. an examiner who marks an exam should not then decide on an appeal of that mark).

6.4.11. Closely linked to the two main principles of natural justice are rules which concern when and to what extent an individual is entitled to be given reasons for a decision made. Although there is no general rule that decisions must be given in all circumstances, they must be provided where there is a statutory requirement to do so or where they are required to allow the affected person to consider whether to pursue a right of appeal. A failure to give reasons may make it more likely that a decision will be held to be irrational where the reasons for the decision are not obvious or the facts which were relied upon were in dispute.

6.5. Time Limits

6.5.1. In England there is a strict 3-month time limit within which any action for judicial review of an act or decision must be brought. In Scotland, however, there is no set limit. The only requirement is that an action be brought without such delay as would, in all the circumstances, imply consent to the decision on the part of the person affected.

6.6. As in England, there had been some development in Scotland of a further ground of judicial review on the grounds of proportionality. This has now certainly become a relevant ground following the introduction of the Human Rights Act 1998.

7. Judicial Review & the Human Rights Act 1998

7.1. The Human Rights Act 1998 created a new ground for judicial review, incorporating many of the rights conferred by the European Convention on Human Rights into UK law. The consequence of this is that UK citizens are now able to claim the protection of their human rights before domestic UK courts rather than being required to make such a claim in the European Court of Human Rights in Strasbourg. The decisions of that Court are just as binding on the Scottish Courts as on the English.

7.2. In terms of section 6 of the 1998 Act it is unlawful for any public authority (defined as any body whose functions are of a public nature) to act in a way which is incompatible with a ‘Convention right'. Breach of a Convention right has thus become a new ground for judicial review.

7.3. There have been no reported actions brought against a Scottish university on the grounds that a student's human rights were breached. There is therefore little for us to add to the observations in Mills & Reeve's report relating to the case law from the European Court of Human Rights (to which the Scottish Courts are required by statute to have regard) and the English Courts (which will be persuasive in Scotland).

7.4. With reference to the above discussion of the scope of judicial review, it should be noted that the Human Rights Act applies only to public authorities, and authorities will not be subject to the Act in respect of any act which is wholly private. Ironically, the test for whether an act can be reviewed on human rights grounds is therefore equivalent to the English 'public act' test, which has been specifically rejected by the Scottish Courts in relation to judicial review in general. While it is very likely that a university would be held to be a public authority for the purposes of the Act, at least in relation to academic issues (including appeals and complaints) and disciplinary issues, the university may still not be considered a public authority for the purposes of, for example, its contracts of employment.

7.5. In any event, the Court is itself a public authority for the purposes of the Act, and so will be obliged to give effect to the requirements of the Act in reaching any decisions. The human rights of the petitioner will therefore be relevant in any judicial review, even where it cannot be said that the act reviewed is 'public' in nature.

8. Right to Representation

8.1. One particular area of human rights law on which we have been asked to comment is the fact that a petitioner may now complain that a public authority has failed to comply with the requirement under Article 6 of the Convention that in the determination of his civil rights and obligations (or in the determination of any criminal charge) a person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. This requirement will generally include a right to legal representation.

8.2. We agree with the assessment of Mills & Reeve, in their September 2006 report on the right to representation in internal student hearings, that neither the requirements of Article 6 nor the demands of procedural fairness necessarily require that a student be entitled to legal representation in any hearing relating to an academic appeal or complaint, although it may be necessary in some cases. As the Human Rights Act 1998 applies equally in Scotland and England, we see no reason why the position in Scotland would differ materially from that in England, and so would simply endorse the recommendations of Mills & Reeve in this area.

9. Claims in Negligence / Contract

9.1. There have been no cases reported in Scotland where a university or other educational institution has been found to have a duty of care to students, other than the usual occupier's liability in relation to unsafe premises etc¹⁵. However, the case of Joobeen v University of Stirling(cited above) illustrates that a contractual relationship exists between university and student, at least in relation to the payment of fees. It is not terribly difficult to envisage a situation in which a Court would hold that a failure by a university to mark a piece of work adequately, or provide teaching of a sufficient standard, could amount to a breach of contract.

9.2. Nevertheless, the difficulties a student would face in establishing that loss was suffered due to a failure by a university to provide a desired, or even objectively merited, degree or mark are illustrated by Lord Phillip's opinion in the case of Fraser -v- The Professional Golfers Association Limited¹⁶, which concerned the Pursuer's failure to meet the standards required for entry into the PGA. Lord Philip rejected the Pursuer's contention that there was a duty of care on the part of the PGA in favour of the Pursuer and noted that 'the possession of a particular qualification provides no guarantee of success in the relevant field. The progress of an individual's career depends at least as much on his personal qualities as on his possession of a qualification. There will therefore be great difficulty and uncertainty in the calculation of damages in such cases'. This case would also be relevant in any challenge to a refusal to admit a prospective student to a university.

10. Discrimination

10.1. There is no material difference between the discrimination provisions applicable in Scotland to those applying in England, at least in terms of the principles by which Scottish universities have to abide in providing education and dealing with students. We therefore do not think it is necessary to expand upon the advice on this area contained in Mills & Reeve's report.

11. Disclosure

11.1. The Data Protection Act 1998 applies in Scotland. However, Scottish universities are subject to a separate Freedom of Information regime under the Freedom of Information ( Scotland) Act 2002. The principal difference is that this regime is enforced by the Scottish Information Commissioner rather than his UK counterpart, the Information Commissioner (who nevertheless remains responsible for data protection in Scotland).

11.2. However, there are also some differences in respect of certain of the exemptions, in that the Scottish Act makes it harder for public authorities to rely on them by imposing a 'substantial prejudice' test as opposed to the simple 'prejudice' test in the UK legislation. For example, the Scottish equivalents of the exemptions in the UK Act which apply a 'substantial prejudice' test rather than a simple 'prejudice' test are: relations within the United Kingdom; the effective conduct of public affairs; the defence of the British Islands or any colony; international relations; commercial interests and the economy; law enforcement; and audit functions. It is therefore clear that Scotland's FOI regime favours disclosure to a greater degree than the UK Act.

11.3. The Scottish Commissioner has dealt with complaints against the Universities of Glasgow, Aberdeen and Edinburgh, as well as Glasgow Caledonian University. In each case the university was deemed to have failed to comply with the Act correctly, either because it relied on an exemption which it was not entitled to use, or because it did not deal with the request in the manner required by the Act. Universities must therefore be aware that they are required to comply correctly with freedom of information requests. It may be particularly important to do so where the information sought relates to a complaint or appeal by a student.

12. Statutory Regimes Affecting Scottish Universities

12.1. There are 2 Acts of the Scottish Parliament which seem to us to be indirectly relevant to the conduct of universities' appeals and complaints procedures. These are the Further and Higher Education ( Scotland) Act 2005 and the Scottish Public Services Ombudsman Act 2002. We will consider each of these in turn.

12.2. The Further and Higher Education ( Scotland) Act 2005

12.2.1. As the QAA is probably aware, this Act established the Scottish Further and Higher Education Funding Council ('the Council') to replace the Scottish Further Education and Scottish Higher Education Funding Councils. The Council assumed the responsibilities of its predecessors. In general terms the Council's main roles are to ensure the provision of quality further and higher education and to secure the efficient use of the funds provided by the Council to individual institutions.

12.2.2. While the Council is fairly unlikely to become involved in reviewing directly how universities deal with appeals and complaints, it may become involved where any failings in this respect were harming the overall quality of the education provided, or were leading to inefficient use of funds. One foreseeable example would be where funds were being wasted on unnecessarily complex procedures, or where the university was failing to conduct itself properly and, as a result, funds had to be wasted dealing with complaints which could have been avoided. They do, however, take an interest in ensuring that university procedures comply with various anti-discrimination statutes, which relates to the issues with which the QAA are concerned. The Council is also quite likely to take an interest in the quality of the procedures adopted by universities, although it is unlikely that it would be particularly pro-active in this regard.

12.2.3. In general, it is unlikely that the Council would have much direct involvement in overseeing the conduct of individual academic appeals and complaints by universities, although they may be more likely to take an interest in ensuring the procedures institutions have in place are adequate.

12.3. The Scottish Public Services Ombudsman Act 2002

12.3.1. The office of the Ombudsman was created by the 2002 Act to investigate complaints about most organisations providing public services in Scotland, including universities and colleges. Higher education institutions were made persons liable to investigation, and so were included within the remit of the Ombudsman, by the Further and Higher Education (Scotland) Act 2005. In terms of section 2(1) of the 2002 Act the Ombudsman may investigate any complaint from a member of the public who has suffered 'injustice or hardship' because of action taken by a person liable to investigation under the 2002 Act, in particular 'maladministration' or 'service failures'. It is a precondition of investigation by the Ombudsman that the internal complaints procedure of the relevant organisation has been exhausted.

12.3.2. At the end of the Ombudsman's investigation, a report is sent to the complainer, the body complained about and the Scottish Parliament. The Ombudsman's powers are limited to the laying of this report before Parliament and she cannot compel any action to be taken. The practical result may be that the body complained about considers that it is necessary to address any failings included in the report but there is no obligation for it to do so.

12.3.3. If a complainer is unhappy with the Ombudsman's decision not to take on all or part of the complaint, or is unhappy with the investigation report, a complaint can be made to the Ombudsman's Service Quality Manager (SQM). If the complainer is not satisfied with the response from the SQM, the subsequent step is to write to the Ombudsman, whose decision is then final.

12.3.4. From October 2005 (when higher education came within the Ombudsman's remit), the Ombudsman received 20 complaints across a number of higher education institutions¹⁷. Although the Ombudsman has only reported to the Scottish Parliament in respect of 2 cases, it is understood that none of the complaints were upheld.

12.3.5. It should be noted that the 2005 Act also amended the 2002 Act to state that the Ombudsman could not investigate action taken by a further or higher education institution in the exercise of academic judgement relating to an educational or training matter¹⁸. Any student who has appealed these issues and remains dissatisfied should therefore only have recourse to the Courts, by way of judicial review. However, we note from the Ombudsman's own figures that while 6 complaints were received in respect of universities the subjects of which were 'academic appeal / exam results / degree classification', only 1 was refused because it fell outside the Ombudsman's jurisdiction. It would therefore seem that the Ombudsman is prepared to take a generous view on what she is entitled to investigate. 3 complaints were made in relation to complaints handling, which is of course another key element of the Code.

13. Conclusion

13.1. Due to the absence of an equivalent to the Office of the Independent Adjudicator for Higher Education, Scotland has fewer avenues than England for ensuring that universities adhere to appropriate standards for their appeal and complaints procedures, as identified in section 5 of the Code. However, it is clear that the Court of Session will exercise its power of judicial review in respect of the actions of universities in those areas. The review of the Code should therefore be aware of the following requirements, which university procedures will have to meet to avoid being challenged successfully by way of judicial review:

13.1.1. that any steps taken be authorised by those procedures, that the person taking the steps is authorised to do so, and that those procedures in turn be in accordance with any specific requirements of statute or the university's Charter;

13.1.2. that any decisions made be reasonable, and that they be based only on relevant factors; and

13.1.3. that any proceedings be fair - in particular that they be conducted by an impartial person, that the student concerned be advised of and given the opportunity to comment on the facts and issues taken into account in reaching any decision, and that reasons are given for decisions where necessary.

13.2. As long as the procedures recommended by the Code and adopted by universities take account of the above requirements they should be generally satisfactory for the purposes of avoiding, or at least successfully resisting, legal challenge in the Scottish Courts.

13.3. In this report we have endeavoured to set out the general legal issues which are likely to be relevant to the conduct of academic appeals and complaints by Scottish universities. It is, however, impossible to anticipate every eventuality which might arise.

13.4. We would be happy to assist with any further queries which arise, either in relation to the terms of this note or in respect of any situations which might arise.

Brodies LLP

28 September 2006

CDL/CMO/MIL248.4

¹ See, for example, the case of St Johnstone F.C. v Scottish Football Association, 1965 SLT 171. In this case the SFA had fined St Johnstone without giving them the opportunity to respond to accusations made against them. The Court of Session considered that it was competent to judicially review decisions of the Council of the SFA, a limited company, to fine or expel member clubs in accordance with their own articles of association. (back to text)

² 1991 SLT 129.(back to text)

³ 1992 SC 385. (back to text)

⁴ In addition to the case of St Johnstone F.C. v Scottish Football Association referred to above, the Court has in the past decided that the decisions of arbiters (Shanks & McEwan (Contractors) Limited v Mifflin Construction Limited, 1993 SLT 1124) can be judicially reviewed, as the tripartite relationship exists. (back to text)

⁵ In particular, section 48 of the Further and Higher Education ( Scotland) Act 1992.(back to text)

⁶Naik v University of Stirling, 1994 SLT 449 and Joobeen v University of Stirling, 1995 SLT 120. (back to text)

⁷ [1985] AC 374. (back to text)

⁸Dundee Harbour Trustees v D & J Nicol 1915 SC (HL) 7. (back to text)

⁹Gerry Cottle's Circus Ltd v City of Edinburgh DC 1990 SLT 235. (back to text)

¹⁰Congreve v Home Office [1976] QB 629. (back to text)

¹¹ Having been established in the case of Associated Picture Houses v Wednesbury Corporation [1948] 1 KB 223.(back to text)

¹² The Times, December 23, 1992. (back to text)

¹³St Johnstone FC v SFA (above). (back to text)

¹⁴R v Bow Street Stipendiary Magistrates, ex p Pinochet Ugarte (No 2) [2000] 1 AC 119. (back to text)

¹⁵ The case of McLean v University of St Andrews (2004 G.W.D. 7-152), which is cited by Mills & Reeve, is indeed a useful illustration of this point. 2 other cases relating to St Andrews show the difficult issues which can arise in relation to liability for the safety of university premises: Hamilton v St Andrews University, 1955 S.L.T. (Notes) 74 and Allatt v St Andrews University Court 1950 S.L.T. (Notes) 62. (back to text)

¹⁶ 2004 GWD 9-300.(back to text)

¹⁷ See the Ombudsman's website at http://www.scottishombudsman.org.uk/index.php. (back to text)

¹⁸ Schedule 4 of the 2002 Act, para 10A.(back to text)