Community Council Dissolution: Proper-Purpose Limits and the Court’s Refusal of a “Declarator in the Air”

1. Introduction

Samantha Kane against Leslie Stewart Waugh and another (Court of Session) concerned the purported dissolution of the Ardgay and District Community Council (“the Community Council”). The petitioner (a former member) challenged (i) the Community Council’s decision at a public meeting on 17 April 2025 to propose a resolution to dissolve the Council under clause 17 of its constitution, and (ii) the subsequent public vote on 22 May 2025, at which the dissolution resolution was put to the community and, ex facie, passed.

The respondents were the former Chair and Secretary of the Community Council. The petitioner initially sought reduction, declarator, and damages, but progressively restricted her remedies—first abandoning damages, and then, crucially, abandoning reduction—leaving only declarator.

The central issues were:

  • Whether clause 17’s dissolution power (“necessary or advisable”) was lawfully exercised—i.e., whether the decision-makers genuinely applied the threshold test and acted for a proper purpose.
  • Whether the dissolution process was in substance an improper attempt to exclude the petitioner (in circumstances where there was no express constitutional power to remove a sitting member).
  • Whether there was procedural unfairness at the meeting of 22 May 2025 (natural justice / right to be heard / alleged predetermination).
  • Whether the court should grant declarator where it would have no practical effect.

2. Summary of the Judgment

Lord Arthurson reached a clear view on the merits: the dissolution decision “proceeded upon an unlawful basis” because it was taken “in the moment” without meaningful application of the clause 17 threshold (“necessary or advisable”), and the process was, in essentials, directed to excluding the petitioner from the Community Council.

However, notwithstanding that merits assessment, the petition was dismissed. The reason was remedial and discretionary: after the petitioner abandoned reduction, only declarator remained, and the court refused to pronounce a declarator “in the air” with no practical consequences. No finding was made on expenses.

On the subsidiary procedural fairness complaint, the court did not detect the unfairness alleged and did not elaborate further.

3. Analysis

3.1 Precedents Cited

Lloyds Pharmacy Ltd v National Appeal Panel 2004 SC 703

The respondents relied on dicta about the flexibility of formulations such as “necessary or desirable” (referenced at paragraph 11 of that decision) to support a broad, discretionary reading of clause 17’s “necessary or advisable” threshold. The intended use was to argue that, where the Community Council was not functioning, it was within members’ discretion to treat dissolution as “necessary or advisable”.

Lord Arthurson did not treat that submission as determinative. While the judgment does not embark on an extended textual comparison, it effectively distinguishes the reliance by insisting on something more basic than “flexibility”: the decision-makers must actually apply their minds to the threshold test in a meaningful way. A broad discretion does not excuse a failure to exercise discretion at all.

Macfarlane v Mochrum School Board (1875) 3R 88

The respondents invoked Macfarlane v Mochrum School Board (1875) 3R 88 (at 101) for the proposition (as advanced in submission) that even if a decision-maker were acting in bad faith (which was denied), the decision might not be open to challenge.

Lord Arthurson did not accept the argument in the manner it was deployed. The judgment proceeds on orthodox public-law control: where a power is exercised on an unlawful basis—here, by not engaging with the constitutionally mandated threshold and by using the power for an improper objective—the decision is vulnerable. The court’s reasoning treats the alleged “bad faith” debate as ultimately beside the point: the critical defects were failure to apply the clause 17 test and misuse of the dissolution mechanism for a purpose not contemplated by the constitutional scheme.

3.2 Legal Reasoning

(a) The “necessary or advisable” threshold must be genuinely addressed

Clause 17 permitted a proposal for dissolution if a two-thirds majority of councillors “decides at any time that it is necessary or advisable to dissolve”. Lord Arthurson placed decisive weight on the respondents’ own characterisation (in their Note of Argument) that the proposal was made “in the moment” during the meeting of 17 April 2025, in response to disorder.

The court’s reasoning is practical and evaluative: a decision taken “in the moment” in reaction to disruption was inconsistent with the idea of a properly reached, collective, considered conclusion on a “vital threshold test” governing dissolution. In short, the problem was not simply that the court disagreed with the outcome; it was that the outcome could not credibly be said to have been reached by applying the constitution’s condition for using the dissolution power.

(b) Improper purpose: dissolution cannot be used as a proxy removal power

The petitioner’s central contention was that dissolution was used as a disciplinary vehicle to remove her, because the constitution contained no power to exclude a member. Lord Arthurson accepted the essence of this: the “objective” of the process from 17 April to 22 May was, “in its essentials”, to seek to exclude the petitioner.

The judgment is careful in its language on motive and classification: it states that whether the matter is properly characterised as a “disciplinary mechanism, in bad faith or otherwise, is an open question”. But it is unambiguous about the legal flaw: clause 17 was utilised for the purpose of removing the petitioner “in circumstances in which those who initiated and thereafter completed that process can at no point be said to have applied their minds in either form or substance” to the clause 17 threshold test.

The court’s emphasis on dissent is also normative and constitutional in tone: “A history of dissent at meetings” could not establish the threshold. Dissent is treated as intrinsic to public debate and democratic institutions; using dissolution as a “nuclear” option to suppress dissent was said not to have been within the contemplation of the framers of clause 17.

(c) Natural justice / procedural unfairness largely rejected on the facts

The petitioner’s subsidiary argument invoked fundamental natural justice, particularly the right to be heard and alleged bias by predetermination at the 22 May 2025 meeting. The court reviewed video footage and concluded the petitioner was permitted to make a short statement before the vote; it therefore did not detect the procedural unfairness relied upon and declined further elaboration.

(d) Remedy and justiciability: refusal of declarator without practical effect

The most consequential part of the judgment for litigation strategy is remedial. Having persuaded the court on unlawfulness in substance, the petitioner nevertheless lost because she abandoned reduction, leaving only declarator.

Lord Arthurson articulated a firm institutional principle: courts do not exist to resolve theoretical arguments with no practical consequences, and judges are not “to write essays in a vacuum”. On that basis, even though the court had formed a view that the dissolution decision was unlawful, it refused to grant a declarator “in the air” and dismissed the petition.

The judgment thus highlights that declarator is discretionary and may be refused where it is purely academic—particularly where the impugned decision has already worked its effects and the practical restorative remedy (here, reduction) is no longer insisted upon.

3.3 Impact

(a) Governance of community councils and analogous bodies

The decision signals that a constitutional dissolution power is not an all-purpose managerial tool. Even where internal governance is strained, dissolution clauses must be exercised for their proper function (ending the body’s existence for reasons meeting the specified threshold), not as an indirect method of excluding an inconvenient member.

Practically, office-bearers and members of community councils (and similarly constituted local public bodies with written constitutions) should expect that:

  • “In the moment” decision-making in response to disorder will be scrutinised against any threshold language such as “necessary or advisable”.
  • Minutes and reasons matter: the decision must be demonstrably tied to the constitutional test, not retrofitted after the event.
  • If there is no express removal mechanism, attempting “removal-by-dissolution” risks being treated as an improper purpose.

(b) Public-law remedies and litigation strategy

The case is a pointed reminder that winning on unlawfulness does not guarantee relief. Parties must maintain a remedy that yields practical consequences. Where reduction is abandoned, a petitioner may be left with a purely declaratory remedy that the court can refuse as academic, resulting in dismissal despite adverse judicial findings about the decision-maker’s conduct.

(c) Relationship between merits review and remedial discretion

The judgment demonstrates a separation between (i) the court’s assessment of legality and (ii) the court’s willingness to grant an operative remedy. That separation may influence future cases in which petitioners seek declarations after events have moved on (e.g., elections held, bodies reconstituted), especially where the declaration would not affect legal relations or practical outcomes.

4. Complex Concepts Simplified

  • Reduction: a court order setting aside a decision (treating it as legally void/invalid). Here, reduction could have had practical effect by undoing the dissolution decision.
  • Declarator (declaratory order): a court declaration stating what the law is or that conduct/decisions were unlawful, without necessarily undoing anything. It is discretionary and may be refused if it would be merely academic.
  • Natural justice / right to be heard: basic procedural fairness, including an opportunity to present one’s position before an adverse decision is taken.
  • Predetermination / bias: where a decision-maker is said to have decided the outcome in advance, rather than considering the matter with an open mind.
  • Improper purpose: using a legal power for a purpose different from that for which it was granted (here, using dissolution to achieve member removal).
  • Ex post facto justification: attempting to justify a decision after the event with reasons or rationales not genuinely applied at the time.
  • “Declarator in the air”: a declaration that has no practical legal effect—i.e., it resolves no live dispute about rights or consequences.

5. Conclusion

Lord Arthurson’s opinion establishes two connected lessons. First, a community council’s dissolution power—even if framed broadly as “necessary or advisable”—must be exercised through genuine engagement with that threshold and for the proper constitutional purpose, not as a “nuclear” device to suppress dissent or indirectly remove a member where no removal power exists. Second, even where unlawfulness is demonstrated, the Court of Session may refuse declarator if it would be purely academic; abandoning practical remedies (notably reduction) can therefore be fatal to success.