HL Deb 11 July 1938 vol 110 cc662-83

LORD AMULREE had given Notice that he would move, That an humble Address be presented to His Majesty, praying His Majesty to withhold his approval to such parts of the Combined County of Perth and Kinross Educational Trust Scheme, 1936, as may affect or refer to the MacDougall Bursary Fund. The noble Lord said: My Lords, this question arises under the Combined Counties of Perth and Kinross Educational Trust Scheme, 1936, purporting to be made under the Educational Endowment (Scotland) Acts, 1928–1935. The objectors to the scheme are the trustees of the MacDougall Bursary Fund, the University of St. Andrews, and certain other persons. The Educational Endowment (Scotland) Acts, 1928–1935, gave the Commissioners appointed under those Acts powers of a very general nature for the reorganisation of educational endowments, but they were enjoined to have special regard to the spirit of the intention of the founders, to the interests of the locality to which the endowment belongs, to the possibility of effecting economy in administration, to the need for continuing the provision for endowments of competitive bursaries at universities, etc., and to the interests of the beneficiaries designated by the founders.

The Statute further made provisions for the procedure of the Commissioners in holding an inquiry; and eventually, after the Commissioners have held an inquiry and taken certain steps they frame a scheme and submit it to the Scottish Education Department. The Scottish Education Department, having received the scheme, have to give certain information to all persons interested and a notice stating they will receive objections, if any. The power of the Department under the Act of 1928 was either to approve the scheme or to remit it to the Commissioners for amendments. They had no further power. Then there was the further provision that if any interested party was dissatisfied with this scheme after it had been approved by the Department, the objector might present a petition, before the expiration of two months, praying that the scheme should be laid before both Houses of Parliament. Either House was given power either to approve the scheme as a whole or withhold approval of part of the scheme. To-day I ask your Lordships to resolve to pray His Majesty to withhold approval of part of a scheme.

Four years ago a debate in this House was initiated by the noble Earl, Lord Leven and Melville, on the general administration of the Commissioners under these Acts. Various criticisms were made, to which I need not refer because they are immaterial to this present matter. Two points were made, however. It was complained that the Commissioners gave no reason or no sufficient reason for changes in the existing endowments, and that the power of the Education Department to deal with schemes was too limited, in the sense of reviewing any scheme of the Commissioners. Following upon, and probably in consequence of that debate, and also in consequence of certain severe criticisms made by Judges in the Court of Session when cases had come before them, a Bill was introduced in 1935 giving effect to certain amendments.

First of all the Bill continued the office of the Commissioners, which was a limited one, till December 31, 1936, and that date is important. Further, the Bill introduced certain amendments. One required the Commissioners to state their reasons for interfering with any particular endow- ment. Section 4 of the Act of 1935 says this: (1) that the Commissioners shall prefix to their scheme a memorandum stating the reasons for which, in the view of the Commissioners, reorganisation of the endowment is necessary; (2) the respects in which the draft or scheme or amended scheme involves any substantial alteration of the purposes to which the endowment is applied; and (3) the reasons for any such alteration. The Act also provided that the memorandum containing the reasons was deemed to be part of the scheme. A further amendment gave to the Education Department further power in dealing with the scheme, the additional power being that the Department, after consultation with the Commissioners, might disapprove the scheme. The Department now had power to approve the scheme or disapprove of it after consultation with the Commissioners or remit the scheme to the Commissioners for the purpose of amendment.

The MacDougall Bursary Fund referred to in the Motion was created under the will of the late Miss Isabella MacDougall. Miss MacDougall was a lady who during her life time took a great interest in education. She was a highly cultured lady and a good classical scholar. Under her will she made certain specific bequests, and included in those bequests was one vesting in the trustees under the will certain property which was to be let off to poor men and women in the County and City of Perth whom the trustees might select, free of rent, and the trustees were to raise a fund for repairs and insurance, rates and taxes. In fact they did so, and the amount received for that purpose was £8 10s. a year. It was of course before the War. The residue of the estate was left to create a fund for bursaries for persons born in the County and City of Perth, such bursaries to be held at the Universities of Edinburgh, Glasgow and St. Andrews. The bursars were to be elected by examination, the examination to be held by competent persons, and in point of fact the examinations have always been held by professors of various universities. The bursaries were to be tenable for three years, and were not to exceed £50 a year.

The trustees appointed were to be the incumbents of four churches of the Church of Scotland in the City of Perth. This is important, as showing the intention of the testatrix that the trustees should be persons who had been students themselves and knew students' ways. The Trust has been carried out in an excellent way. The trustees themselves kept in close contact with the bursars. They received reports on their work twice a year. They advised them from time to time, and interviewed them at frequent intervals. Between the trustees and the bursars there was a personal touch. The Trust Fund has been most carefully nursed. The amount of the Fund when it was created was about £10,000. By careful supervision it has now increased to about £15,000, and the income is about £700 a year. The amount available for bursaries has increased 70 per cent. The successful bursars were allowed to choose their own universities. The trustees have always moved with the times. When, for example, the universities were opened to women the trustees applied to the Court for leave to amend the trust deed, to make the bursaries available for girls as well as for lads. The trustees advised the bursars from time to time and saw them at frequent intervals. The trustees have received numerous letters from bursars after they have gone out into the world thanking them for the great kindness and friendly counsel they received when they were students. There was thus a personal touch between the bursars and trustees which was perhaps more valuable than the bursary itself.

The proceedings in regard to the scheme before your Lordships took the normal course. The hearing of the draft scheme took place in May, 1936, and the final scheme, which is dated December 26, 1936, appears to have been issued on the last day that the Commissioners held office. The Commissioners went out of office on December 31, 1936. The trustees took objection to the scheme, and they as objectors were heard by the Department. The result of that hearing was abortive. At the conclusion of the hearing they were told that the only power the Department had was to approve. They could not disapprove of the schema because there were no Commissioners to consult. They could not remit the scheme to the Commissioners for there were no Commissioners. All they could do was simply to approve the scheme. The other power they had of disapproving the scheme or of remitting it to the Commissioners to amend had gone. They could only disapprove after consultation with the Commissioners, but there were no Commissioners, therefore they could not disapprove. They could not remit the scheme for amendment to the Commissioners, for there were no Commissioners. The whole structure so carefully prepared by Parliament was defeated. The safeguards which were conferred by the Act of 1935 were circumvented. The objectors were in a worse position than objectors before the relief Act of 1935.

The position would thus seem to be clear. The trustees, having been deprived of their statutory rights, are entitled to say that the scheme—at least so far as it relates to the Trust—should cease to operate and that they should be left out of the scheme. There are serious objections to the scheme itself. The Commissioners seem to have disregarded the duty imposed upon them by the Act of 1935. They were required by the Act to state the reasons for which reorganisation of the endowment is necessary, that is, the particular endowment in this case, the MacDougall endowment. They have not done so. The only reasons given, as stated in the memorandum, were the coordination between public expenditure upon education and the expenditure of educational endowments, administrative convenience, and an over-all reduction in the expense of administration. This provision is to ensure that unless there be adequate reasons applicable to a particular endowment there shall be no reorganisation of that endowment or any substantial alteration of the purpose. This has been ignored.

The scheme provides that: unless for reasons satisfactory to the governing body no person shall be accepted as a candidate who has left school more than twelve months prior to the date of the examination. This is against the provisions of the trust deed. The will and the trust deed have no limit. A young person of school-leaving age may have to go out to earn in order to supplement the family earnings. He could not qualify to enter unless for some special reason which may be satisfactory to the governing body of trustees. What a position to put him in. The young person may have been working to supplement the family income for four or five years and preparing himself by private study, and then he has to trust to good luck that he will obtain the approval of the governing body to sit for examination. Young people may leave school for reasons of health or because of family circumstances, and may afterwards by private study be in a position to enter a competition; but in this case if twelve months have elapsed they are disqualified. It is unfair to the children of poor parents who may be withdrawn from school to work and supplement the family income.

"Reasons satisfactory to the governing body" may have no meaning. The scheme will cause injustice to the more competent and meritorious candidates, since it provides that the examinations will be held at three separate universities. This will defeat the purpose of the trust. The sum of £600 a year is to be administered in bursaries. The income from the fund is £700. Apparently £100 is to be devoted to other purposes foreign to the Trust, save a sum for expenses. This scheme provides for the provision of hostels, grants for special equipment at schools, playing fields, clubs and school excursions. I submit that this is entirely outside the Trust. The testatrix intended that this foundation should be for persons proceeding to the university. The intention of the testatrix is disregarded and the money is being applied for other purposes. The scheme relates to the County of Perth and the County of Kinross. In this way income from the Fund may be devoted to objects outside the County of Perth and certainly not within the spirit of the intention of the founder. I submit, for these reasons, that this Motion be agreed to.

Moved, That an Humble Address be presented to His Majesty, praying His Majesty to withhold his approval to such parts of the Combined County of Perth and Kinross Educational Trust Scheme, 1936, as may affect or refer to the MacDougall Bursary Fund.—(Lord Amulree.)


My Lords, I desire quite briefly, but with all the earnestness at my command, to support the Motion which has just been moved. The observations which my noble friend Lord Amulree has made disclose, I think, quite clearly that a question of broad and im- portant principle is here involved. Were it not so, neither he nor I would trouble your Lordships' House with the matter. At this point let me say that of course one makes no reflection upon the sincerity of the Commissioners in the discharge of what is, no doubt, a difficult and delicate duty. If they have erred, as I am going to submit they have certainly and obviously erred, then that of course was not done perversely but inadvertently, and under pressure of somewhat exceptional circumstances.

I venture to think that their decision with regard to the MacDougall Trust is a most regrettable one—I had almost said a deplorable one. My noble friend Lord Amulree has indicated some of the reasons why he thinks so too. I do not propose to detain your Lordships by discussing these reasons on the merits; I content myself by saying that I am in entire agreement with what my noble friend said. It seems strange that a Trust so successfully and usefully administered, of an important character and covering a period of half a century, should have been, I will not say wantonly interfered with, but slumped with forty-nine or fifty other trusts of a quite different character, and so destroyed. It is argued that this is contrary to the "spirit of the intention of the founder." These are the statutory words, and, if I may say so, neither as a Judge nor as a legislator have I ever been quite sure that I understood precisely what they meant. However that may be, there is a good deal to be said for the view that the intention of the founder of this Trust has been frustrated by this act of administration. But, as I say, on the merits I am not going to delay your Lordships further.

I do desire, however, to emphasize two points which seem to me to be of importance from the legal point of view. I suggest that the Commissioners on this occasion have in two matters sinned against the statutory provisions which they are supposed to have been administering. Both points have been mentioned by my noble friend, and I desire to underline them. The first is that under the Act of 1935, the amending Act, this provision is made. It is a new provision, as my noble friend reminded the House. I remember it very well because I had the honour of making my maiden speech on that Bill when it was introduced to your Lordships' House. In Section 4, sub- section (1), of the Act, that provision set forth that the Commissioners should prefix to each of their decisions in future the reasons for which, in the view of the Commissioners, reorganisation of the endowment"— endowment in the singular number— is necessary. And then, if there is any alteration, the alteration of the purposes to which the endowment is applied or applicable must be set forth. Having read the scheme which the Commission passed in this case, I do say that they have not complied with that explicit direction in the Act of Parliament. It is true that they have prefaced their decision with a memorandum, but I cannot think that a vague statement that the educational interests of the County of Perth as a whole will be advanced by treating fifty endowments in a particular manner approximates to setting forth what the Act tells them they shall set forth—the reasons for disturbing the organisation of this particular endowment. I venture to think that this is a slipshod method of procedure which should not receive countenance from your Lordships' House, and which is contrary in my humble view to the provisions of the Act of Parliament. Thai is the first point.

The other, to which I attach even greater importance from the legal point of view, is this. The Act of 1928, the principal Act, provided that when a scheme tame before the Scottish Education Department they could do one of two things. They had an option conferred upon them. They could either approve the scheme de plano, or they might remit it back to the Commissioners for amendment. What happened, as my noble friend has told your Lordships' House, in this case, was that, for some reason which I do not know, the Commissioners held up this scheme until the last day on which they were in office, being the last day of the year 1936. Will your Lordships be good enough to observe what the necessary implication of that procedure was? The necessary implication was that the Scottish Education Department were disabled from remitting the scheme back for amendment to the Commissioners. The result of that procedure was that the trustees of the MacDougall Endowment were precluded from effectively objecting to the scheme or from having it amended. I venture to say that such procedure—I do not use the words in any sinister significance—was a fraud upon the Act of Parliament. An option was conferred upon the Department, an option was conferred upon the Commissioners. Both options were wiped out by the decision of the Commissioners on their last day of office to promulgate this scheme.

For aught I know, at the interview that took place with the Scottish Education Department when the scheme was discussed by the trustees of the MacDougall Trust with the Department, it may well have been, from the shorthand notes which I have read, that the Department were convinced that a case for amendment of the scheme had been made out, but, in consequence of the death of the Commission, as the Secretary of the Scottish Education Department himself said—I quote his words— the Department could not make any amendment. Had the Commission still been in existence the Department could have remitted it to the Commissioners suggesting amendments, but the Commission is dead, and I think if this scheme is to be amended at all it has to be started de novo. Let your Lordships observe what that means. It means, as I said a few moments ago, that the trustees of this endowment have been disabled from effectively objecting to the scheme, and the Scottish Education Department have been disabled from remitting the scheme back to the Commissioners for reconsideration.

I venture to think that that is a fatal flaw in procedure. The trustees come to your Lordships' House to exercise what is a most exceptional form of remedy, and they would not have done so, I feel quite convinced, but for the exceptional circumstances in which they find themselves. They are advised that they have no other remedy, and I should think your Lordships would be slow to leave them in the position in which they find themselves, through no fault of their own, disabled from objecting to a scheme of this kind and with no remedy except the remedy which my noble friend Lord Amulree has proposed I will only add this. If I read the Statute aright, to withhold the assent of your Lordships' House to this particular scheme in so far as it concerns the MacDougall Trust will not be in any way fatal to the rest of the scheme. As I read the Statute, the Education Department, in place of the Commissioners, will be able to initiate a new scheme, with this difference, however, that when this scheme has been initiated it will be within the right of the trustees, if they desire it to be amended, to go to the Court of Session and have that done. Of all these options the trustees at this moment have been deprived, and I venture to think that in these circumstances, which are entirely exceptional, your Lordships will not hesitate to agree to the exceptional remedy proposed by my noble friend.


My Lords, I should like very strongly to support the reasons which have been adduced by my two noble and learned friends who have preceded me. This is not an ancient endowment. It is an endowment made in 1883, and there is no suggestion whatever that it has not been admirably administered. We have been fortunate in Scotland in having many such trusts which are the result of benefactions by those who are interested in education, and if the trusts are to have their schemes demolished by Commissioners, as this scheme has really been demolished, it would be a poor encouragement to others to formulate similar benefactions. The work of the Commissioners has been excellent in the cases to which it was fairly applicable, for there have been a great many ancient trusts, many now practically obsolete, which of course required to be put on a proper foundation, and to this difficult and often rather thankless task the Commissioners have addressed themselves with admirable assiduity.

But I venture to say that this particular Trust in no way falls within the mischief which the Commissioners were set up to remedy. It is not a case where the purposes of the Trust are obsolete, or a case where the amount of the expenditure is out of proportion to the benefits given, or a case where the machinery which has been devised for its administration was defective. In every way this has been an efficient and admirable Scottish Trust for education, and it has been carried out in conformity with the wishes of the lady who founded it, and no reason whatever has been adduced for interfering with her wishes, which have been loyally carried out. In reference to what has been said about one single preamble I would point out that it is really difficult to see how the fifty-one trusts, with all their diverse circumstances, can be covered by a single preamble which can give the reasons for the demolition of the whole of them holus-bolus. No individual reasons are assigned for interfering with this Trust.

What to my mind is a much more serious circumstance is this. Be the scheme of the Commissioners good or bad, the unfortunate trustees who have hitherto, without any default, administered the Trust have been deprived of the means which the Statute contemplated they should have of being heard upon the matter. When a body whose period of life is a stipulated period reaches the end of its legal existence and expires, as this Commission has expired—and perhaps I might say expired unwept in Scotland, but at any rate has expired—it is impossible of course to carry out the procedure which it was intended that this Commission should carry out. It is no longer there to do so. The MacDougall trustees have been deprived, therefore, of the opportunity of criticising or objecting to this scheme because, being issued on the last day, there is unfortunately no appeal after death. It is impossible therefore to appeal to the Commissioners and put reasons before them, because the Commissioners as such are defunct.

Consequently this is one of those cases that sometimes happen. There has been a breakdown in machinery due to postponement for office reasons, and for some reason or other the Commissioners' last and death-bed action was to issue this scheme affecting fifty-one Scottish trusts, and one of the trusts is the one on whose behalf I am putting these considerations before your Lordships. It is a Trust which has a strong and rooted objection to the scheme, and in these circumstances I think the case has been made out for asking His Majesty's Government to withhold approval of the particular scheme in so far as it affects this single Trust. I have pleasure in supporting what has already been said in this matter. I should have thought that the Commissioners themselves, whenever their attention was brought to it, would at once have recognised the propriety of withdrawing this particular scheme.


My Lords, I will not detain the House for more than a moment or two. It is not necessary for me to do so, because so strong a case has already been made out by my noble friends Lord Amulree and Lord Alness. It seems to me as a layman that the case which has been made is an unanswerable one. But I would like to say this. The legal case has been put so very clearly from the point of view of some of the possible beneficiaries, that it seems to me, having heard what the noble Lord, Lord Alness, said, that there should be a reconsideration of this scheme by the educational authorities, and that we must consider the case of certain children of Perth City who will be ruled out of benefit. It seems to me that your Lordships' House should not agree that because, by an unfortunate lapse of time, a case has not been able to be heard, we could not rule out the proposal that is made when it will damage for all time a certain number of children who will not henceforth be able to participate in benefits which the benefactor wished them to get. I should like to say how very strongly I support the case that has been made out. I should add that I am a member of the Perth County Council, but I have not had an opportunity of hearing what that Council has to say, and I have merely put forward my own personal opinion.


My Lords, I feel that I am in rather an invidious position to-day, because, as the noble Lord, Lord Macmillan, has reminded the House, there is no appeal after the grave, but when one who has had charge of certain work hears reference made to that work as being wanton, a frustration of an Act of Parliament, indeed fraudulent frustration, I think even a dead man should be excused if he turns in the grave. But the point before your Lordships is really whether a scheme which was devised by the Commission over which I had the honour to preside was in any way not created in accordance with the Statute which set up that Commission, and also whether anything that has happened in the procedure since that scheme was first made is still not in accordance with what the Statute laid down. I do not think it is right and proper that I should take the responsibility of what has happened since the death of the Commission. The paternity of the child now rests on the Department, and I have no doubt that the noble Lord who replies for the Government will deal with that particular point.

The matter which I should like to bring before your Lordships is this. For what is an educational endowment intended? How can we arrive at what is the spirit of the intention of the person who created that endowment? That really was the problem with which the Commissioners were faced time after time during the seven years in which they operated in reviewing the educational endowments in Scotland. Surely the first question is easily answered in this way. An educational endowment is meant to give the beneficiary something in advance of what the child can get through the ordinary medium of education under the State. When these endowments were started, when each trust was founded, the founder had some particular object in view; he or she wanted to give a special inducement, a special advancement, to the beneficiary, and they all created these trusts to give effect to such a purpose. I should like to pay a very cordial tribute to all those people who have spent days and hours in carrying out the difficult duties of these trusts. We had before us during the hearings by the Commission hundreds of these bodies of trustees, and I should like to pay a tribute to them for the work they have given so wholeheartedly to carry out the duties entrusted to them.

But, while saying that, I feel bound to say that I had and my colleagues also had a general feeling of disappointment. Time after time, when we put to these trustees the question, "Have you considered whether the advance of legislation has brought different possibilities before the Trust, have you considered whether these advantages and benefits are not now normally provided by the State, and do you not think your powers might well be widened?" we had this answer, "As a body we have never considered that." Now I do feel, in view of that, that it is perhaps easy to understand that in principle the Commissioners came to the conclusion that it was an advantage to amalgamate these endowments, that it was an advantage to create a new spirit, to bring in fact, into the action of the endowments, what we felt, and truthfully felt, was the spirit of the intention of the endower rather than to allow a definite continuance of the particular terms of the endowment. That, I think, is a reason for the general form of the schemes adopted by the Commission.

The scheme now definitely before your Lordships brings out in two points, I think, illustrations of what I mean. I think it was the noble and learned Lord, Lord Macmillan, who said that this was not dealing with a scheme that was obsolete. Is that perfectly true? Have there been no changes in legislation, and in the advantages given to the youth of Scotland, since 1883? The noble and learned Lord surely has not forgotten the Education Acts passed since then. For that reason it did seem to the Commissioners that there was a solid reason for reorganising this particular endowment. The other illustration, I think, again brings out the reason. I think it was the noble Lord, Lord Amulree, and the noble and learned Lord, Lord Alness, who pointed out the benefits of university bursaries. If you look at this scheme, is it not a benefit that the result of the scheme is to make available these bursaries not only at one Scottish university but at all the Scottish universities? Through the utilisation of the ordinary machinery of examinations, without the expense of a special examination, the fund is enabled to give another bursary, an extra bursary above those given under the original scheme.

Another point is the question of school bursaries. Everyone in Scotland now admits that to give money from endowment funds to school bursaries is not applying that money to the best advantage. Education is so well provided at both primary and secondary schools that the employment of endowment funds for this purpose is really unnecessary. For that reason the Commissioners came to the conclusion, as narrated in this scheme, that the continuation of subsidies to the McLaren Trade School was unnecessary. But, as I have said, the Commissioners adopted a main principle in this and all the schemes with which they dealt. That was to give the widest possible discretion to the governing bodies under the scheme to utilise the funds at their disposal by means of a plan submitted for the approval of the Department and enable them to find a great many different forms of help to the scholars. All these are narrated as options at the disposal of the governing body. It is this want of freedom of action in the old endowments which has brought a good many of them to the stage of being, as the noble and learned Lord, Lord Macmillan, described them, obsolete.

I do not wish, and I do not think it would be right for me, to deal with other matters which were referred to, but I should like to assure your Lordships that there was no deliberate holding up of these schemes on the part of the Commission. The Commissioners worked, for the seven years during which they were entrusted with these duties, as hard and as intensely as they possibly could. There were laid down in the Act certain stages which had to be carried through. Certain periods had to elapse. I cannot from memory speak exactly as to what happened between the first hearing of this particular scheme and the time when the scheme was promulgated, but I can assure your Lordships that there was no deliberate policy on the part of the Commissioners to deal with this scheme otherwise than with their full energy, and that there was no intent to hold it up or to make it difficult for those concerned to adopt any procedure of appeal to which they were entitled under the Act.


My Lords, I think we have all listened with great interest to what the noble Earl, Lord Elgin, has just told us about the work of the Commission. In general I agree entirely that in regard to schemes which have got out of date, and in view of the great advance which has taken place in our educational system, it was right and proper that the Commission should examine the various bequests in Scotland. But that does not mean that in this case a mistake has not been made. Everyone who has any knowledge of the working of the MacDougall Trust knows how well that Trust has worked in the past, managed within the Church of Scotland and dealing with a very fine bequest from Miss MacDougall. Year by year, through a competitive examination, certain individuals went to the Scottish universities with scholarships. Under the scheme that competitive examination is in part done away with and now there are separate examinations in the various universities instead of one examination, conducted by very competent examiners, as anyone who looks at the list of examiners in past years will admit. Therefore, I think that this scheme ought at least to have been in such a form that the trustees could have put forward their views to the education authorities. I do not for a moment suggest that it was a deliberate act on the part of the Commissioners that the scheme was put forward at the last minute. I would suggest that perhaps this scheme was so good that it was only at the last minute that they thought of putting it forward. At any rate, be that as it may, I think a very good case has been made out for this prayer.

I do not want to touch on the legal side—my noble friends who are versed in the law are much more competent than I can be to put that point of view—but there is a point I would like to put. It is that under the new scheme if an applicant for examination for one of these bursaries has left school more than twelve months, he is, I understand, ruled out of taking part in the examination. As we know, many of our youths in Scotland leave the secondary school, go into industry or into offices and continue their education, and then are only too willing to come forward and accept a bursary such as this to study in the university. I think that point has been overlooked and that that kind of amendment would have been put forward if the scheme had been subject to amendment at the time when it was issued. A great many schemes have been dealt with. Something like fifty or more have been dealt with in relation to various bequests for educational purposes in Scotland. It is only reasonable that mistakes should be made and I think a mistake has been made in regard to the MacDougall Trust. I hope that the noble Lord who speaks for the Government will accept this prayer and say that something may be done to put this scheme right.


Before the noble Lord replies for the Government, may I draw the attention of the House to what may be an eirenicon by which the difficulty may be avoided? The Act lays down that, after the expiry of the powers of the Commissioners, the Department may have the like powers, except in the case of a university endowment or of the Carnegie Trust, as are conferred by the Act on the Commissioners. Therefore, although the Commissioners are dead, my noble friend opposite will have the satisfaction of knowing that they rise phœnix-like from the grave in the shape of the Scottish Education Department. Therefore the fact that His Majesty's Government withhold their approval from this scheme does not mean that this scheme is immune from amendment in any shape, but that the Department can promulgate a scheme applicable to the MacDougall Trust, which will then go through practically the same procedure as before, and any necessary amendments can be made in it. Therefore the worst that can possibly happen, if amendment be required to the MacDougall Trust, is that the amendment will be postponed. It will be effected without leaving behind it the sense of injustice which every person always feels when he has not had an opportunity of putting his objection. It is not a case of leaving the MacDougall Trust outside the scope of the amendment, but merely that an amendment, if there be an amendment, will take place through the instrumentality of the Scottish Education Department instead of through the Commissioners, and after all parties have been heard.


My Lords, I am grateful to my noble and learned friend Lord Macmillan for stepping in at the last moment with this suggestion, but before I take advantage of this suggestion it would be appropriate that I should give your Lordships the view of His Majesty's Government on this matter in view of a great many important points which were raised by the noble Lord, Lord Amulree, and others who spoke, and also because this is the first occasion on which a Motion has been moved in this House for art Address to His Majesty praying Him to withhold approval to a scheme prepared by the Endowment Commissioners appointed under the Educational Endowments (Scotland) Act, 1928. The noble Lord, Lord Amulree, in moving his humble Address, dealt particularly with that part of the scheme which concerns the MacDougall Bursary Fund. He has urged that the fund should be allowed to continue to function as at present and should not be included in the general scheme for the endowments of the County of Perth. That, I must confess, is not the view of the Department of His Majesty's Government concerned, and I should have hoped that, for the reasons which I am about to give your Lordships, you might be prepared to agree with His Majesty's Government that in this case the prayer need not be granted.

One of the main objections which has been voiced this afternoon is against the inclusion of this fund in the general scheme for the County of Perth. These amalgamations have been and are being proposed for some time on considerations of general policy. Under the Educational Endowments (Scotland) Act, 1928, the Commissioners were given specific power to prepare schemes for grouping, amalgamating or combining educational endowments. The Commissioners' functions were examined by the Court of Session in several cases, and in the last case the Lord President pointed out that these powers were given by Parliament with the intention that they should be exercised. The general considerations which guided the Commissioners to their conclusion and have led the Department to approve it were as follows. The Commission of 1882 reorganised the endowments on what I might briefly call a parish basis, and it is a natural development of the policy of the 1882 Commission to move towards a county basis, and the effect of subsequent legislation on these schemes and of the more recent policy of placing public education on a county basis has resulted in that move towards the placing of these matters on a county basis.

The policy of amalgamation has also several positive advantages. It enables a wider experience to be applied to the administration of an endowment and a wider view to be taken of the methods by which the favoured areas could best be benefited by the endowment funds. Moreover, the policy of amalgamation ensured a closer co-ordination between the public expenditure on education and expenditure from educational endowments. It is clear that this was one of the matters which Parliament had in view in passing the Act of 1928, because the Commissioners were directed to have regard to existing conditions, social and educational. Further—and I am not sure that this point has been mentioned this afternoon—it was anticipated that the abolition of a large number of governing bodies with their attendant clerks would reduce the costs of administration to the advantage of the beneficiaries. This forecast is verified by the result of a recent audit, which shows that only 5 per cent. of the expenditure under 45 endowment schemes was upon administration. This represents a substantial general decrease.

Now, my Lords, an account of the MacDougall Bursaries themselves. Objection has been taken to the changes in detail which have been made by the Commissioners in the conditions of award and tenure of the bursaries. These changes are designed to reduce the expense of awarding the bursaries and to bring the conditions of award and tenure into line with the conditions of award and tenure of many other bursaries. So far as can be ascertained, those conditions are proving satisfactory in practice in the case of these other bursaries. It has been said that a candidate will be deterred from obtaining a bursary if he had left school more than twelve months prior to the date of the examination. I think Lord Amulree raised that objection also. But it ignores the saving clause which has been inserted in Section 30 of the scheme in order to meet this very point. That section now provides that Unless for reasons satisfactory to the governing body"— those are the words which should be noted— no person shall be accepted as a candidate who has left school more than twelve months prior to the date of the examination. Those words, it is contended, provide all reasonable elasticity.

Another point to which exception is taken is the departure from a common examination for all MacDougall bursary candidates. Under the existing arrangements the trustees conduct at considerable expense an ad hoc examination for the award of the bursaries, and at this examination all the candidates compete on a common footing. When the order of merit has been adjusted by the trustees in the light of the examiners' reports, the candidate first on the list is given his or her choice of attending St. Andrews, Glasgow or Edinburgh University. The candidate second in merit may then go to either of the two universities not chosen by the first candidate, and the third candidate, if he wishes to take advantage of the bursary, is obliged to go to whichever university is not selected by either of the two prior candidates. Under the scheme the allocation between the universities will be preserved, but the ad hoc examination will be abolished. Instead, the candidates will be required, firstly, to select the university which they will attend and, secondly, to compete at the ordinary bursary competition of that university. This arrangement involves no real hardship and it has some positive advantages.

Candidates will be enabled to compete at one examination for two sets of bursaries—the MacDougall bursaries and those administered by the university. Thus a candidate who does not obtain a MacDougall bursary has a chance of gaining a university bursary without having to sit for a second examination. Another advantage is that the abolition of the special examination, with the resultant saving in administrative expenses, has enabled the Commissioners to provide for the award of twelve bursaries as against the eleven which are at present awarded. This in itself is a substantial gain for the future candidates. In these circumstances we are satisfied that the arrangements indicated in the scheme are as satisfactory as can be attained without departing entirely from the founder's desire to allocate her bursaries between the three universities.

Another point of objection is based on the ground that the terms of the memorandum prefixed to the scheme do not comply with the requirements of the Act of 1935. This is a point of law which in terms of the Endowments Acts the objectors had the opportunity of submitting to the Court of Session within one month of the scheme's submission to the Department. They did not take advantage of the opportunity. In fact we are satisfied that the memorandum complies with the requirements of the Act. But the main bone of contention this afternoon deals with the question of what I would call date. A complaint has been made on the ground that, as the Commissioners submitted the scheme to the Department on their very last day of office, the Department had no opportunity of remitting it to the Commissioners, with such declara- tion as the nature of the case seemed to them to require, and that the trustees were thereby deprived of the opportunity of claiming the right of having the scheme remitted back to the Commissioners with suggested amendments as often as occasion might require. This objection presupposes that the action of the Commissioners prevented the Department from taking any action other than that of approving the scheme. Such a presumption is without foundation. The scheme received exhaustive consideration by the Department over a period of more than a year, and my right honourable friend the Secretary of State for Scotland, as the responsible Minister, personally satisfied himself that the scheme was one which should receive approval. Had he arrived at any other conclusion there would have been no hesitation in abandoning the scheme and starting de novo, as was done in the case of another scheme—the Edinburgh Educational Endowments Scheme—in similar circumstances.

Any statement that the trustees were deprived of the opportunity of claiming the right of having the scheme remitted back to the Commissioners is based upon a misconception of the terms of the relative Statute. No governing body had the right to have a scheme remitted. The remission or approval of a scheme was a matter entirely within the discretion of the Department. If my right honourable friend had considered that the terms of the scheme were such as would have warranted a remit had the Commissioners remained in office, he would have had no hesitation in abandoning the scheme, and the Department would then have prepared a draft scheme giving effect to the amendments which were considered desirable.

It is also maintained that if the Commissioners had not submitted a scheme it would have fallen to the Department to prepare a scheme, in which case the trustees, in the event of their being dissatisfied with the merits of the scheme, would have had the right of petitioning the Court of Session for amendment of the scheme or for the substitution of a new scheme. This argument could, of course, have been put forward by any body of objectors at any time during the Commissioners' period of office, and it would have had equally little force. The I policy of Parliament, as expressed in the Act of 1928, is quite clear. The original work of preparing schemes under the Act was to be done by the Commissioners, the reviewing bodies being the Department and Parliament. After the original work had been done, the preparation of any schemes which were needed was to be undertaken by the Department, and the governing bodies were to have the choice of the reviewing body, which might be either Parliament or the Court of Session.

I have gone into this question at some length, because I thought it only right that your Lordships should be told in full what is the view of the Department on this matter. I hope you will agree with me that in this instance there is no reason to depart from the normal procedure, which has taken place on previous occasions, but a suggestion was put just now to your Lordships' House by Lord Macmillan, who I think pointed out that if this prayer is adopted there is no great disadvantage, inasmuch as I understand that the scheme would be submitted to His Majesty in Council for approval, and thereafter that portion dealing with the MacDougall bursaries would be left out. It is for your Lordships to decide which way you wish to act on this matter, and I have merely done my best to indicate what are the views of the Department.


I think, my Lords, that the Motion requires verbal Amendment, for the reason that as it stands it might wipe out part of the scheme, and all parts in one sense affect all the other charities in the scheme. I understand that the noble Lord desires to amend his Motion.


I am very much obliged to the noble and learned Lord, and if I may I would amend the Motion, so that it will read: "That an humble Address be presented to His Majesty, praying His Majesty to withhold his approval to the Combined County of Perth and Kinross Educational Trust Scheme, 1936, in so far as it may affect or refer to the MacDougall Bursary Fund."

On Question, Motion, as amended, agreed to: the said Address to be presented to His Majesty by the Lords with White Staves.