Coalition cancellation of school building program was unlawful

11 February 2011 by

Luton Borough Council & Nottingham City Council & Ors, R (on the application of) v Secretary of State for Education [2011] EWHC 217 (Admin) (11 February 2011) – Read judgment

The high court has ruled that the coalition government’s cancellation of Labour’s school building program in 6 areas was unlawful. The full background to the ruling can be found here.

Michael Gove, the education secretary, announced in July that the £55bn scheme was to be reduced significantly, prompting five councils to challenge the decision by way of judicial review.

In 2003 the Department for Education launched a national programme called Building Schools for the Future (BSF). The programme aimed over a fifteen year period from 2005 – 2020 to rebuild or refurbish every secondary school in England, of which there are about 3,500. The estimated overall cost increased, and exceeded £50 billion by 2009. By July 2010, 181 schools had benefited from BSF funding of which 98 were new builds. A further 735 were, at more or less advanced stages, in the pipeline for refurbishment/rebuild.

On 5 July 2010 the newly appointed Secretary of State for Education in that government, Mr Michael Gove MP, made a statement in the House of Commons in which he announced that certain projects which were in the pipeline would go ahead; others would be stopped; and, in effect, that the BSF programme, which he criticised in trenchant terms as “a dysfunctional process”, would come to an end.

Mr Justice Holman ruled that the decision was unlawful on two grounds: namely, that the secretary of stated failed to consult the councils adequately in respect of the effect on individual schools, and that he failed to discharge his duties to carry out an equalities impact assessment. He did not address the substantive rationale of the decision. Perhaps that challenge will come if he makes the same decision again he reconsiders. The judge concluded:

121. In the result, I do not further examine or question the broad rationality of the Secretary of State’s decision. I am not persuaded that he decided and acted in breach of any substantive legitimate expectation of any of these claimants.

122. However I do consider and hold that, unlawfully and without justification, he failed to consult with any of these claimants as to the effect on their individual projects of his possible decision options. Partly as a result, but also as a discrete matter, he unlawfully failed to give due regard to the equality impacts of his proposed decision. He must now, after giving each of them a reasonable opportunity to make representations, reconsider his decision insofar as it affects the claimants and each of the projects in relation to which they have claimed, with an open mind, paying due regard to any representations they may make, and rigorously discharging his equality duties.

As to the effect of the decision, the secretary of state must now reconsider the decision and pay regard to the failings of his previous decision, including consulting the councils:

126. The extent of my decision is that the Secretary of State must, I stress must, reconsider the position of each of the claimants with an open mind and paying due regard to whatever representations they may respectively make. But provided he discharges that duty and his equality duties, the final decision on any given school or project still rests with him. He may save all, some, a few, or none. No one should gain false hope from this decision.

So the courts have dealt another blow to the government’s cuts agenda. The emerging theme is that the coalition may have been too keen to implement reforms quickly, and as a result failed to consider the decisions properly in some cases. It seems likely that more similar claims will follow, and will keep the courts busy in the next few months and perhaps years.

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  1. Adam Wagner says:

    Jack – but if the government has made a series of quick decisions without proper consultation or equality considerations, does that not suggest that there could be a number of other claims?

  2. Jack says:

    This is shoddy reporting.

    The Councils lost on both of their substantive grounds of challenge. The rejection of the rationality and legitimate expectation arguments are particularly significant. If the BSF decision isn’t susceptible to attack on these grounds it seems unlikely that there will be many other ‘cuts’ cases in which they can be succesfully invoked.

    Far from opening the floodgates for further claims, this judgment is a clear indication that the Admin Court recognises that its role in this area must be narrowly circumscribed.

    As the judgment explicitly recognises, the decision is for the SoS and his general approach is entirely rational.

    Difficult to construe this as anything other than a notable victory for the Government.

  3. Law Think says:

    What’s that? An ‘unelected’ judge telling an elected representative what he can and cannot do? Why am I sceptical that is likely to get any of the popular odium that we have seen over the last few days?

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