After months of waiting, campaigners on the Isle of Mull have finally had their day in court.
Community members have taken the council to Judicial Review over the decision to locate a new school for the island in Tobermory, just a few minutes away from the existing site.
Nobody disputes that the current school is dilapidated and needs replaced, but no matter how inconvenient it may be for decision-makers and political leaders, there’s a lot more to this than a simple school rebuild project.
Due to a decision made decades ago, children living in the south of Mull do not attend school on their own island. Instead, they are shipped off to Oban through the week for their entire time at secondary school, starting at ages as young as 11.
Speak to people affected by these arrangements – as The Herald has done for months – and you hear heart-breaking stories of traumatised children, or of families who decided to simply abandon their homes on the Ross of Mull, further depopulating their communities, in order to protect their sons and daughters.
The problem is that Mull is much bigger than many realise, and travelling from its southwestern tip to a school in Tobermory, the primary settlement located on the north east coast of the island, takes too long even under the best of conditions – factor in single track roads, winter weather, and tourists, and the timeframes stretch even further.
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For many, the council’s talk of a new school seemed like an opportunity to right a historic wrong, and rebuild education on Mull in a way that would not just better serve its current residents but also protect its fragile communities, now and into the future. The idea was that the current school, which includes a nursery, primary and secondary within a combined structure, could be split, allowing the high school to be moved to a central location that would be accessible to everyone.
After all, if millions of pounds of public money were to be spent on a new school for the island, didn’t it make sense to use that process as the catalyst to address a damaging status quo – one that decision makers, whether in the council HQ in Lochgilphead or the Scottish Parliament at Holyrood, would never accept for their own children?
A significant number of those on Mull thought so, and hopes were raised even further when families living in the south of the island – outside the catchment for the current Tobermory school – were asked for their opinions about a proposed “Mull Campus Project.”
But the sort of transformation they hoped for was not, in the end, put on the table by the council, which insists that it only secured funding to replace the existing, all-through school within its current structures. Put simply, that means that, according to the council, the only option is a like-for-like rebuild that secures, rather than challenges, existing arrangements.
The actual reason for this has never been made clear. Repeated claims that the funding package being utilised – the Scottish Government’s Learning Estate Investment Programme (LEIP) – can only ever be used in like-for-like construction projects have been shown to be false, and the strength of feeling about the issue amongst the people of Mull should have been obvious to any individual or organisation with a genuine connection to the island.
Whatever the reason, officials have insisted that splitting the secondary school off from the primary and nursery, even if that’s what Mull wants and needs, is not an option that it will countenance.
The message to islanders has been clear: it’s a single-site approach or nothing at all.
So the council went through a site selection process, after which officers did what everyone expected them to: recommend that a new, all-through school be built in Tobermory.
By extension, this also meant recommending that 11-year-old children should continue to be separated from their families and sent to a hostel on the mainland.
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Even an offer of free land at the proposed central location didn’t change things after officials decided that potentially saving hundreds of thousands of pounds on an expensive project for a cash-strapped council was not a “material change” in circumstances.
Following a tense and emotional meeting, during which attempts to move alternative motions were rejected by officials, the council – without taking a vote – accepted the recommendation to proceed with the Tobermory location as the preferred site.
But instead of accepting that the status quo would continue, and that they would just have to accept what the council offered, a group of islanders set about pursuing legal action. After an astonishingly successful crowdfunding campaign, they launched a petition for judicial review, which was accepted by the Court of Session.
The hearing in the case has now been heard. It was, as anyone would expect, an incredibly dry and extremely technical affair.
The KC for the islanders argued that the council should have reconsidered its site recommendation on the basis of the offer of free land, something that officials seemed determined to avoid doing. Had they done so, it is certainly possible, and perhaps even likely, that the scoring matrix put in place would have resulted in a recommendation to build at Craignure, not Tobermory – something that would have caused huge problems for the council. Officials were also accused of misrepresenting the terms of the offer to councillors, and of failing to clarify the details of it with the landowners.
The KC also argued that islanders had not been properly consulted by the council, and that the decision to proceed without a formal vote on the site selection was a breach of the authority’s own rules.
In response, the council’s lawyer insisted that it would have been inappropriate to re-score the proposed sites on the basis of free land, and attempted to place considerable weight on the apparent expertise of the council officials involved in the process. He also sought to dismiss the concerns about the lack of a formal vote to confirm the council’s decision-making.
As for the consultation of islanders, he simply argued that there was no requirement for that type of formal engagement, because it was not legally mandated for that stage of the process. Within this framing, it was fine for officials to gather the views of people who thought they were being consulted, but it was ultimately just a pleasantry.
Islanders may believe that they should have been fully consulted on such a monumental and generational decision for Mull, but the council’s position is that they had no right to expect or demand it.
This is strikingly similar to the argument advanced by the council in another Judicial Review brought by constituents, this time by those opposed to its handling of plans for Helensburgh waterfront.
During the hearing, the council’s KC referenced an affidavit by Diane Forsyth, the project manager for the new school, who has been seconded to the council from its consultants, Hub North. He explained that she had raised a concern about the people of Mull effectively holding a referendum on the preferred location for the new school, something that was clearly seen as entirely unacceptable.
This, ultimately, gets to the core question at the heart of this whole, sorry saga: do the people of Mull have the right to be consulted on the type of schooling they want for their island going forward, or should they simply trust the alleged experts working for a council headquartered several hours away from their homes?
Do those living on Mull know what is best for their communities, or should they be told?
It will be weeks or months before the judgement is delivered. The court might find that the council is wrong and order some or all of its processes to be revisited, or it might decide that the council is, at least in a legal sense, in the clear.
But it doesn’t actually matter much either way anymore.
If the campaigners win, the authority will have to carry out some or all of its processes again, but the core problem – that Argyll and Bute Council is not willing or able to pursue a split site solution – is unresolved.
If the council wins, then work on the new school can recommence, but the argument that succeeded in a courtroom won’t survive in the real world. Ultimately, the council would win the right to tell those on Mull that it didn’t need to listen to them about where they want the new school for their island, and that they should just take what they’re given.
How does that really help anyone, or provide the basis on which the community can be expected to move forward?
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And there are plenty of other hurdles. What happens if huge numbers of islanders use the forthcoming formal consultation, which will have to be submitted to Education Scotland, to express their rejection of the whole premise of the council’s plans? What do officials do if the local landowner decides, given the circumstances and negative publicity, not to sell the site after all? What is the plan if they ever get to the stage of putting spades in the ground, and the day council officials turn up for their photo opp, they face angry protests from the people who are expected to be grateful for the new school building?
The hard reality of this case is actually quite simple: it doesn’t matter who loses, because nobody really wins.
This controversy – which has caused considerable emotional pain to many on Mull – cannot be solved in a courtroom, and attempts to ignore the full context of the problems aren’t going to help either.
The only way forward is to recognise what is really going on here and operate on that basis. That means acknowledging that the educational status quo on Mull is intolerable, recognising that a possible solution does exist, and finding a way to make it happen.
To make things even more straightforward, it means putting the young people of Mull first.
The problems facing Mull predate the existence of councils are they are currently incorporated. Argyll and Bute officials didn’t create the problem of the educationally divided island, and given that there are costs involved in fixing it, it’s not reasonable to expect them to deal with it on their own either. But the council has to find the courage to actually make that case, and in doing so to act on behalf of the people they are supposed to represent.
Of course the government does not want to revisit the funding package available, no doubt because of concerns that other councils behind other LEIP projects might want more cash too. But what is happening on Mull is quite clearly a unique situation, and should be dealt with on that basis. If the council is willing to accept that the solution it has tried to push through won’t work, then the government should be willing to step in to help find, and fund, an outcome that will.
That will cost money, but it’s an entirely affordable amount for a national government.
There’s also precedent being set right now – the government is trying to buy Ardrossan Harbour, a move requiring major capital investment, in order to protect the communities of Arran now and in the future. It is an usual, but necessary, step that will cost more than one hundred million pounds, multiple times the cost of solving the problem of a new school for Mull.
If politicians decide something is important enough, then they find a way to fund it. If they decide that the people of Mull matter enough, then they’ll find a way to help them.
And if the government won’t step up, then other parties should do so instead. There is an election around the corner, and Scotland’s prospective politicians should be put on the spot over this.
The Labour, Liberal Democrats, Greens, Conservatives and Reform manifestos could include a promise to fund the campus the people of Mull really want, but also a commitment to review the way in which these issues are handled, and a pledge to ensure that decisions affecting island communities, for example, are made by the communities themselves, not faceless officials in the so-called ‘local’ council office.
Councillors don’t have to live with this choice. Neither do lawyers, or officials, or consultants, or government ministers, or newspaper journalists.
The people of Mull will have to live with it, now and for generations to come. Their children will have to live it with.
The least they deserve is to have local and national governments willing to recognise that fact, and act accordingly.
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