England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(MR. JUSTICE SEDLEY)

		Royal Courts of Justice Strand London WC2
		15 July 1994

1. LORD JUSTICE RUSSELL: In this judgment I shall refer to the boy involved in the case as 'E'. He was born on 11th March 1979 so that he is now 15 years of age.
2. From an early stage in his life E gave his very caring parents cause for concern, for they took the view that E's learning ability was impaired and that he was in need of special education. They made representations to the local education authority, the Essex County Council ('LEA') and to E's teachers at his primary schools, so that in August 1986 the LEA agreed to prepare a statement under the provisions of the Education Act 1981.
3. The provisions of that statute, so far as relevant, are as follows:-

'1. Meaning of "special education needs" and "special education provision".

(1) For the purposes of this Act a child has "special educational needs" if he has a learning difficulty which calls for special educational provision to be made for him.

(2) Subject to subsection (4) below, a child has a "learning difficulty" if -

(a) he has a significantly greater difficulty in learning than the majority of children of his age; or

(b) he has a disability which either prevents or hinders him from making use of educational facilities of a kind generally provided in schools, within the area of the local authority concerned, for children of his age ..........

(3) "Special educational provision" means -

(a) in relation to a child who has attained the age of two years, educational provision which is addition to, or otherwise different from, the educational provision made generally for children of his age in schools maintained by the local education authority concerned; ..........

5. Assessment of special education needs

(1) Where, in the case of a child for whom a local education authority are responsible the authority are of the opinion -

(a) that he has special educational needs which call for the authority to determine the special education provision that should be made for him;

or

(b) that he probably has such special education needs;

they shall make an assessment of his educational needs under this section.

7. Statement of child's special education needs

(1) Where an assessment has been made in respect of a child under section 5, the local education authority who are responsible for the child shall, if they are of the opinion that they should determine the special educational provision that should be made for him, make a statement of his special education needs and maintain that statement in accordance with the following provisions of this Act.

(2) In any case where a local education authority maintain a statement under this section in respect of a child -

(a) it shall be the duty of the authority to arrange that the special educational provision specified in the statement is made for him; and

(b) the authority may arrange that any non-educational provision specified in the statement is made for him in such manner as they consider appropriate

unless his parent has made suitable arrangements.

8. Appeals against statements

(1) Every local education authority shall make arrangements for enabling the parent of a child for whom they maintain a statement under section 7 to appeal, against the special educational provision specified in the statement -

(a) following the first or any subsequent assessment of the child's special educational needs under section 5; and

(b) where the authority make any amendment to the special educational provision specified in the statement otherwise than on the making of any such assessment.

(2) Any appeal by virtue of this section shall be to an appeal committee constituted in accordance with paragraph 1 of Part 1 of Schedule 2 to the Education Act 1980.

. . . . . .

(6) In any case where -

(a) an appeal committee confirm the decision of a local education authority as to the special educational provision to be made for a child; or

(b) a local education authority inform an appellant of their decision in a case which has been remitted to them under subsection (4) (b) above;

the appellant may appeal in writing to the Secretary of State.

(7) On an appeal under subsection (6) above the Secretary of State may, after consulting the local education authority concerned -

(a) confirm the special educational provision specified in the statement

(b) amend the statement so far as it specifies the special education provision and make such other consequential amendments to the statements as he considers appropriate; or

(c) direct the local education authority to cease to maintain the statement.

4. Between 1986 and 1992 a vast amount of written material relating to E's condition and his needs was generated. It came from many disciplines. Experts gave reports at the behest of the parents and the LEA respectively. The first formal statement was made on or about 20th September 1990. It was a lengthy document containing 5 parts. For present purposes it is necessary to refer to only Part II and Part III. Part II was headed "Special Educational Needs". It set out the educational history of E and the current level of achievement in, for example, reading, writing, comprehension, and mathematics. It made recommendations as to the future education of E so as to improve his performance. Part III was headed "Special Educational Provision". This set out the means by which it was proposed to achieve improvement for example by individualised teaching, by staff aware of the boy's difficulties and by regular review of progress by an educational psychologist.
5. The parents remained unhappy about E's educational progress and emotional responses. They took the view that the special educational provisions that had been made were not working and they decided, as was their right, to appeal to the Appeals Committee pursuant to Section 8 of the Statute. At much the same time when E was due for a transfer from junior to secondary education, the parents urged the LEA to accommodate E in a specialist school catering for dyslexic pupils and to fund that type of education. This the LEA declined to do. Their stance was that E should receive specialist support in a state comprehensive school wherein he could receive something like seven hours specialist teaching each week. This specific recommendation did not appear in the Statement. By the end of 1990 the parents, whilst their appeal to the Committee was pending, enlisted the support of Dr Henry Chasty, a Director and professional advisor to the Dyslexia Institute. Dr Chasty opined that E should receive special educational support of 6 or 7 hours weekly together with an additional 1½ hours weekly devoted primarily to the boy's problems in the way of social behaviour. Dr Chasty's opinion was that the regime he recommended could not be provided within the state system, but could be provided at the Eccles Hall School in Norfolk where E's parents had placed the boy and were themselves paying fees (as they do to this day).
6. On 13th March 1991 the Appeal Committee remitted E's case to the LEA for further consideration. A problem with E's eye sight had emerged during the meeting of the Appeal Committee, and the Committee was also concerned with "social behaviour problems".
7. The LEA investigated the two matters raised by the Appeal Committee and in particular took the advice of Dr Zakia, a Consultant in child psychiatry. His report was to the effect that the boy did not suffer from "any serious emotional condition at present". The attitude of the LEA was unchanged. The view was expressed that adequate facilities would be available for the special needs of E at his local comprehensive state funded school.
8. On 2nd January 1992 through their solicitors, the parents exercised their final right of appeal under the Act. By this time the volume of evidential material had assumed truly daunting proportions for consideration by the Secretary of State. Our bundle comprises something over 400 pages, many of them in small and close typescript. We were told that this case was one of about 600 that are annually considered under appeal by the Secretary of State pursuant to Section 8. Our anxiety about the delay in dealing with the case of E remains (there are no time limits in the Statute) but it is at least explained by these statistics. In the event between January and November 19 92 the papers were considered by the Secretary of State. On 10th September 1992 he wrote to the parents' solicitors saying "We have received all the papers from both parties and have sought specialist advice on the case. We should be in a position to write to you shortly". There was no response to that letter, save an acknowledgment.
9. The decision of the Secretary of State was communicated to the parents and to the LEA by their letter dated 12th November 1992. It contains 15 numbered paragraphs, and I select short extracts in the hope that I do justice to the whole:-

"4..... In reaching his decision he has taken account of the advice, representations and evidence available to the Essex Local Education Authority and the Local Appeal Committee, and has had regard to the representations which you have made on behalf of the parents.

5. The Secretary of State has noted that E does have some learning difficulties, in absolute terms, as well as relative to his global level of intellectual functioning. He considers that E has mild specific learning difficulties (dyslexia) in the areas of literacy and numeracy, difficulties with handwriting, problems with memory and a disposition towards sensitivity. The Secretary of State does not believe that E's specific learning difficulties alone are sufficiently severe and complex to require the Authority to determine the special educational provision to be made for him. However, he is of the view that when taken together with E's disposition towards sensitivity these difficulties provide grounds for the authority to issue a statement of special educational needs. He considers that E's learning difficulties are adequately described in Part II of the Statement.

6. So far as E's specific learning difficulties in literacy are concerned, the Secretary of State considers that most of the analysis of his reading ability as he was reaching secondary transfer age suggests that it was reaching the level where he had achieved the skills necessary to cope with the reading material for year 7 pupils. In relation to spelling the Secretary of State considers that while E has some difficulties these are not acute.....

7. A similar picture emerges in relation to E's difficulties in numeracy.

8. Part II of E's statement recognises that he has difficulties with information processing and the transfer of material from short to long term memory. In the Secretary of State's view these difficulties are addressed by the special educational provision in Part III.

9. ....E does have some emotional problems....The Secretary of State does not believe, however, that there is sufficient evidence to show that these difficulties are severe enough to require placement in a small school catering for children with specific learning difficulties such as Eccles Hall.

10. E's difficulties can be catered for within a main stream school.

11. However the Secretary of State takes the view that Part III of the Statement does not currently specify in sufficient detail the help that E requires in two areas. First the Secretary of State considers that for the most part E should be taught in his normal peer group but believes he should receive 40 minutes per day tuition in a small group to include help in respect of the development of literacy and numeracy skills. Secondly he considers that a member of staff should be nominated to act as a point of reference for E and with whom he can discuss any concern with regard to general or specific subject areas. The Secretary of State has accordingly used his power under Section 8 (7) of the Education Act 1981 to make the following amendments to Part III of E's statement:-

2. (j) 40 minutes per day small group tuition to include help with the development of literacy and numeracy skills

8. Access to a member of staff with whom he may discuss concerns with regard to general or specific subject areas."

10. The decision letter concluded with an expression of regret that "a more welcome response" was not available to the parents.
11. It is to be observed that in the decision letter there was no mention of any advice that the Secretary of State had received as was foreshadowed in the letter of 10th September 1992.
12. On 9th February 1993 an application for leave to move for judicial review was lodged. The relief sought was certiorari and the quashing of the decision of the Secretary of State identified in his decision letter. The grounds for relief were set out extensively in Form 86A, but on the substantive hearing after leave to move had been granted they were refined as follows. It was submitted (1) that the decision of the Secretary of State was irrational (2) that the Secretary of State failed, in the light of his findings, to direct amendment of Part II of E's statement of special educational needs and (3) that the decision of the Secretary of State was in any event vitiated and should be quashed by reason of his failure to disclose to the parties and to invite further comment upon the advice he had indicated he had taken in his letter of 10th September 1992.
13. In a judgment delivered on 21st December 19 93 Sedley J. granted the parents relief under (3) and quashed the Secretary of State's Decision. He found against the parents on (1) and made no specific finding on (2) . The Secretary of State appeals to this Court against the Judge's finding on (3) whilst the parents cross appeal against the judgement under (1) and (2) .
14. To complete the history, after the hearing before Sedley J. the Secretary of State complied with the Judge's Order and disclosed the substance of the advice he had taken but which hitherto he had not disclosed. That advice came from a Mr J. D. Woodhouse, an educational psychologist and one of Her Majesty's Inspectors of Schools. Mr Woodhouse had been seconded to the Department of Education and Science in 19 92 and it was accepted, on behalf of the parents, that the advice of Mr Woodhouse could properly be described as "in house" as opposed to advice from outside the Department.
15. At the outset of this appeal both Counsel, Mr John Friel on behalf of the parents and Mr Stephen Richards, on behalf of the Secretary of State, invited the Court to look at the Report of Mr Woodhouse de bene esse. This we have done. We do not propose to refer to the document in detail but I shall later return to its form and nature.
16. The basic proposition of Mr Richards in this appeal was to the effect that the process of government necessarily involves civil servants engaging in a host of consultative exercises inter se, applying their individual expertise and experience to a given problem. The ultimate decision of the Minister in a case where there has been such consultation is a matter of judgment for the decision maker. How he reaches his decision is essentially a matter for him. It may involve extensive "in house" consultation, but, provided the process does not involve a new point with which the interested parties have had no opportunity of dealing, there is no duty to disclose material the product of the consultative process. The concept of fairness does not normally require disclosure. If it does then there should be disclosure. That will only arise in the most exceptional circumstances not applicable to the instant case.
17. For my part I accept these submissions, and I find considerable support for them in Bushell and Another v Secretary of State for the environment 1981 AC 75. In that case, which involved a local enquiry into the construction of a motorway and connecting roads the Minister thereafter made a decision which came under attack on the ground that he had taken into account undisclosed information and evidence going to fundamental issues. Lord Diplock at page 94 said

"The Highways Act 1959 being itself silent as to the procedure to be followed at the inquiry, that procedure, within such limits as are necessarily imposed by its qualifying for the description 'local inquiry' must necessarily be left to the discretion of the minister or the inspector appointed by him to hold the inquiry on his behalf, or partly to one and partly to the other. In exercising that discretion, as in exercising any other administrative function, they owe a constitutional duty to perform it fairly and honestly, and to the best of their ability, as Lord Greene MR pointed out in his neglected but luminous analysis of the quasi-judicial and administrative functions of a minister as confirming authority of a compulsory purchase order made by a local authority, which is to be found in B Johnson & Co (Builders) Ltd -v- Minster of Health 1947 2 AER 395, 399 - 400. That judgment contains a salutary warning against applying to procedures involved in the making of administrative decisions concepts that are appropriate to the conduct of ordinary civil litigation between private parties. So rather than use such phrases as 'natural justice' which may suggest that the prototype is only to be found in procedures followed by English courts of law, I prefer to put it that in the absence of any rules made under the Tribunals and Inquiries Act 1971, the only requirement of the Highways Act 1959, as to the procedure to be followed at a local inquiry held pursuant to Schedule 1, paragraph 9, is that it must be fair to all those who have an interest in the decision that will follow it whether they have been represented at the inquiry or not. What is a fair procedure to be adopted at a particular inquiry will depend upon the nature of its subject matter.

What is fair procedure is to be judged not in the light of constitutional fictions as to the relationship between the minster and the other servants of the Crown who serve in the government department of which he is the head, but in the light of the practical realities as to the way in which administrative decisions involving forming judgments based on technical considerations are reached. To treat the minister in his decision-making capacity as someone separate and distinct from the department of government of which is the political head and for whose actions he alone in constitutional theory is accountable to Parliament is to ignore not only practical realities but also Parliament's intention.

Ministers come and go; departments, through their names may change from time to time, remain. Discretion in making administrative decisions is conferred upon a minister not as an individual but as the holder of an office in which he will have available to him in arriving at his decision the collective knowledge, experience and expertise of all those who serve the Crown in the department of which, for the time being, he is the political head. The collective knowledge, technical as well as factual, of the civil servants in the department and their collective expertise is to be treated as the minister's own knowledge, his own expertise. It is they who in reality will have prepared the draft scheme for his approval; it is they who will in the first instance consider the objections to the scheme and the report of the inspector by whom any local inquiry has been held, and it is they who will give to the minster the benefit of their combined experience, technical knowledge and expert opinion on all matters raised in the objections and the report.

This is an integral part of the decision making process itself; it is not to be equiparated with the minister receiving evidence, expert opinion or advice from sources outside the department after the local inquiry has been closed".

Later, at page 101, Lord Diplock continued

"My Lords, in the analysis by Lord Greene MR in B Johnson & Co (Builders) Ltd -v- Minister of Health 1947 2 AER 395, 399 - 400 of the common sense in which a minister's functions are to confirm, modify or reject a scheme prepared and promoted by a local authority, it is pointed out that the minister's ultimate decision is a purely administrative one. It is only at one stage in the course of arriving at his decision that there is imposed on his administrative character a character loosely described as being quasi-judicial; and that is: when he is considering the respective representations of the promoting authority and of the objectors made at the local inquiry and the report of the inspector upon them. In doing this he must act fairly as between the promoting authority and the objectors; after the inquiry has closed he must not hear one side without letting the other know; he must not accept from third parties fresh evidence which supports one side's case without giving the other side an opportunity to answer it. But when he comes to reach his decision, what he does bears little resemblance to adjudicating on a lis between the parties represented at the inquiry...... No one could reasonably suggest that as part of the decision making process after receipt of the report the minister ought not to consult with the officials of his department and obtain from them the best informed advice he can to enable him to form a balanced judgment on the strength of the objections and merits of the scheme in the interest of the public as a whole, or that he was bound to communicate the departmental advice that he received to the promoting authority and the objectors."

18. A case at the other end of the spectrum was Regina -v- Secretary of State for Health Ex parte United States Tobacco International Inc 1992 1 QB 353. In that case the Secretary of State made a regulation banning the use of oral snuff which, for many years, the U.S. Tobacco Company had imported into the United Kingdom. In reaching his decision the Secretary of State took into account and indeed based the ban upon the advice of a committee set up to advise the Government. The Secretary of State declined to disclose the text of the advice. The Divisional Court (Taylor LJ and Morland J) quashed the decision. At page 371 Taylor LJ (as he then was) said:

"One cannot help feeling that the denial of the applicants request was due to an in built reluctance to give reasons or disclose advice lest it give opponents fuel for argument. One can understand and respect the need for ministers to preserve confidentiality as to the In-House advice they receive on administrative and political issues from their civil service staff. But here, the advice was from the body of independent experts set up to advise the Secretary of State on scientific matters. I can see no ground in logical reason for declining to show the applicants the text of the advice. In view of the total change of policy the regulations would bring about and its unique impact on the applicants, fairness demanded that they should treated with candour. To conceal from them the scientific advice which directly led to the ban was, in my judgment unfair and unlawful."

19. Finally, in Hoffmann - La Roche -v- Trade Secretary 1975 AC 295 Lord Diplock at page 369 said

"Even in judicial proceedings in a court of law, once a fair hearing has been given to the rival cases presented by the parties the rules of natural justice do not require the decision maker to disclose what he has minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a decision. If this were a rule of natural justice only the most talkative of Judges would satisfy it and trial by jury would have to be abolished".

20. In my judgment, in the instant case, Sedley J paid insufficient regard to the principles enunciated in the authorities that I have cited. Because the Secretary of State came to a decision as to the number of hours per week to be devoted to E by way of special tuition which differed substantially from the expert evidence adduced by both the LEA and the parents (see para. 2(j) of the Decision Letter) the learned Judge took the view that the advice received from Mr Woodhouse should have been disclosed because it must have played a very real part in the Secretary of State's decision making process. I accept that it probably did but, respectfully I disagree with the learned Judge when he concluded that "failure to disclose without giving the parents or the LEA any inkling of what it contained" was unfair.
21. In my judgment the Sections of the 1981 Statute earlier cited give the parents every opportunity of adequately stating their case in the initial stages and through the appellate procedures. There must come a time when finality has to be achieved. The appeal procedures in this case had taken long enough by the time the Secretary of State made his decision, and it is perhaps significant that when, in conformity with the Order of Sedley J. disclosure of the substance of Mr Woodhouse's advice was made, it provoked yet further lengthy submissions on behalf of the parents which, if the Secretary of State had had to deal with them specifically, would only have further prolonged the process to the advantage of no-one.
22. In an affidavit sworn on behalf of the Secretary of State it was said "the advice given by HMI in this case was based upon material already before the parties and was no more than an informed analysis of that material, and accordingly it is submitted that there was no unfairness in not disclosing his advice". Having now seen the material that was ultimately disclosed I am satisfied that Mr Woodhouse did not introduce any new material that had not already been adduced by either the parents or the LEA, and I am further satisfied that Mr Woodhouse's report was no more than a critical analysis of the quality of the evidence as well as its content. This, in my judgment, the Secretary of State was plainly entitled to have regard to in reaching his conclusion and was material which he was under no obligation to disclose. Accordingly I would allow the Secretary of State's appeal.
23. I move now to consider the cross appeal. Mr Friel drew our attention to the affidavit of Mr Graham Aylward Holley, an official in the Department for Education. The affidavit was before the learned Judge. It contained the following passage in paragraph 23:

"In the light of the Secretary of State's view as to E's mild special educational needs, one period per day was thought by him to be quite sufficient and it is respectfully submitted that this is made clear in the Decision Letter. Dr Harry Chasty, in the third of the Dyslexic Institute Reports (dated 31st December 1990 Document 163-170 in the applicant's bundle) came to the view in his penultimate substantive paragraph that only 1½ hours per week small group teaching in literacy and numeracy would be sufficient to meet any of E's needs in these unrelated respects, the areas for which the Secretary of State prescribed 3 hours and 20 minutes per week".

24. There is no doubt that this was a gross factual error on the part of the deponent. Dr Chasty's recommendation involved a total of 6 or 7 hours special educational support whilst the 1½ hours per week related primarily to matters involving social behaviour. Thus, argued Mr Friel, the decision of the Secretary of State was fatally flawed by this inaccuracy, and it was reflected in the finding of the Minister that something less than half of what the parents and the LEA considered appropriate as educational support was ultimately the decision conveyed in the letter of 12th November 1992.
25. Sedley J, whilst acknowledging and being critical of the error made by Mr Holley said this:-

"As to rationality I am unable to accept either that there is an intrinsic lack of adequate reasoning in the letter or that when related to the material placed before the Secretary of State by the parties, its findings in conclusion depart so far from the factual material that no responsible Secretary of State in the discharge of his appellate functions could sensibly have reached them. The findings may well be surprising, and in the light of what the parents had already achieved on E's behalf, may well have been shocking. But they were in my judgment rationally available to the Secretary of State on the basis of the material known to the parties and placed before him. In particular I accept Mr Hart's submission that it lay within the range of possible conclusions that E's dyslexia was no more than mild, and that there is no frank error in the assessment of E's backwardness in numeracy."

26. In agreement with the learned Judge I too am satisfied that Mr Friel has failed to show that the decision was other than one reached within the proper exercise of the Minister's discretion.
27. This leaves for consideration only the point taken by Mr Friel that the Secretary of State should have directed an amendment to Part II of the Statement of E's special educational needs. In Counsel's submission the statement should have been amended to declare that E had a disposition towards sensitivity and suffered from stress and anxiety if not placed in an appropriate environment. There is however no statutory requirement that the statement should include the causes of E's problems and Mr Friel recognised that he was confronted again with a discretionary exercise with which this Court would not interfere save on well established principles.
28. I am not persuaded that there should have been any amendment of Part II of the Statement. In my judgment both grounds of the cross appeal fail and I would dismiss it.
29. LORD JUSTICE BELDAM: I have had the advantage of reading both draft judgments with which I agree.
30. LORD JUSTICE PETER GIBSON: I entirely agree with the judgment of Russell L.J., but in deference to the full and careful judgment of Sedley J. from whom we are differing and in recognition of the very natural concern and disappointment which our decision will, I regret, cause the parents, I add a few comments of my own on the issue on which the Judge determined the case in favour of the parents. That issue was whether the procedure adopted by the Secretary of State was unfair in that before reaching his decision he did not disclose, either in whole or in summary, to the parties the expert evaluation made for him by Mr. Woodhouse of the material put before him by the local education authority and the parents respectively. As the Judge rightly recognised, whilst the Education Act 1993 will shortly bring into operation an entirely new appellate system, his decision might have implications for other aspects of government.
31. The appellate function of the Secretary of State is purely conferred by statute, and accordingly it is appropriate to look first to the statutory scheme to see whether there is any requirement that there should be disclosure to the parties of the type of material that is in issue in the present case. In contrast with the fully elaborated provisions in ss. 7 and 8 Education Act 1981 prescribing what the parents are entitled to know and receive before and when a statement is made by the authority and when the authority reconsiders its decision after the case is remitted to it by the appeal committee, the provisions governing the appeal to the Secretary of State (s.8(6) and (7) ibid.) say nothing about what the parents must be told if they appeal. However as Lord Reid said in Wiseman v Borneman [1971] AC 297 at p.308:

"Natural justice requires that the procedure before any tribunal which is acting judicially should be fair in all the circumstances .... For a long time the courts have, without objection from Parliament, supplemented procedure laid down in legislation when they have found that to be necessary for this purpose. But before this unusual kind of power is exercised it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of the legislation."

32. The Secretary of State accepts that although not expressly required to do so by statute he must in fairness give the parents an opportunity to respond to representations made by the authority which he consults pursuant to s.8(7) and indeed to go on giving each party an opportunity to respond to the other's representations until nothing further is said by one party which requires the opportunity to be given to the other to make a further response. Further he accepts that if some new point occurs to him or to his departmental advisers which he is minded to take into account in reaching his decision, he would come under a duty to tell the parties the substance of the new point and invite comments thereon. To that extent he concedes that considerations of fairness necessitate disclosure notwithstanding that the statute says nothing about it. But it is contended by Mr. Richards for the Secretary of State that it is not necessary to supplement the statutory provisions further than that.
33. The Judge reached his conclusion that fairness did require disclosure of Mr. Woodhouse's advice (or the gist of it) in this way. First he said that the Secretary of State in obtaining and digesting the report of Mr. Woodhouse was not at the final stage of making up his mind. He described the advice of Mr. Woodhouse as likely to be an independent expert evaluation of material provided by the parties. He sought to distinguish Bushell v Secretary of State for the Environment [1981] AC 75 on the ground that the advice given by Mr. Woodhouse differed qualitatively from the departmental advice in that case for two main reasons: first, in Bushell it was the Minister's methodology in coming to his decision which the objectors had claimed they were entitled to attack at a public hearing, and, second "the overriding obligation of the Minister to come to his conclusions in the public interest marginalised the expectation of participants in the public inquiry that they should be treated as if they were parties to a lis." He concluded that the failure of the Secretary of State to consult the parties before reaching his own conclusion "has placed him in the unfair situation of obtaining information behind the backs of parties ... and leaving them in the dark ... as to the possibility that he was going to arrive at significantly different conclusions from those sought by the LEA or the parents". He said: "If one simply looks at what happened in this case and asks "Was this fair?" the answer which I think most people would give is "No"."
34. I respectfully disagree. There is simply no basis in law or in fact for dividing the decision-making process on an appeal to the Secretary of State as consisting of an earlier stage in the course of which Mr. Woodhouse provided his appraisal and a final stage in which the Secretary of State made up his mind. It was common ground between the parties that Mr. Woodhouse was not independent from the Secretary of State but could be treated as an in-house adviser. I cannot see that the advice given by an Inspector of Schools within the Department of Education to the Secretary of State differs qualitatively from the departmental advice in the Bushell case for either of the reasons given by the Judge or at all. The significance of that case for present purposes lies not in the particular circumstances of the case, which are of course different from those in the present case, but in the analysis by Lord Diplock of the position in law of the departmental adviser in giving advice to the minister as part of the decision-making process. In my judgment that analysis is as apt in relation to the present case as it was in the Bushell case. Russell L.J. has quoted the relevant passages from Lord Diplock's speech and it is unnecessary for me to repeat them.
35. The practical reality in this case as in the Bushell case was that the Secretary of State would call on the considerable expertise within his Department to assist him in making up his mind. No doubt that is why Parliament gave the Secretary of State his appellate function so that all the departmental knowledge and experience would be available to the decisionmaker. In my judgment the advice received from Mr. Woodhouse was an integral part of the decision-making process. It is not necessary in the interests of fairness to require the disclosure of departmental advice unless the Secretary of State was minded to take into account a new point on which the parties have had no opportunity to make representations. It was of course incumbent on the Secretary of State in giving his decision to explain adequately how he has come to his conclusion.
36. Moreover, as Mr. Richards submitted, there are two additional considerations which tend to militate against disclosure. One is that the advice given to the Secretary of State in this field is confidential and there is an interest, which it is right to recognise, in such advice remaining confidential. It is important that those advising on sensitive issues such as are likely to arise in cases like this should give candid advice and should not be deterred from saying what they really think. It would be only natural if such advisers became more guarded in their comments were disclosure to be required as a matter of routine. The other is that such disclosure would inevitably cause delay in the final resolution of the appeal while each party considers what is disclosed, makes representations on it and then has the opportunity to make further representations on each other's representations. Such delay cannot be in the interest of the child concerned. Of course when a new point arises a delay will be inevitable, but it is neither necessary nor desirable that there should be disclosure in all cases regardless of whether a new point arises.
37. Mr. Friel in his argument on behalf of the parents in support of the Judge's conclusion did not seek to support the Judge's reasoning. He submitted that so long as the Secretary of State is minded to arrive at a conclusion different from that sought by the parties, fairness requires the Secretary of State to put that provisional view to the parties and to consider their representations before reaching a final conclusion. As a general proposition that seems to me untenable. Natural justice does not require that tentative conclusions be put to parties affected thereby in order to give them an opportunity to make representations on them (see Maxwell v Department of Trade and Industry [1974] Q.B. 523 and Hoffmann-La Roche v Secretary of State for Trade and Industry [1975] A.C. 295 at p.369) . On the particular facts of this case I do not see that fairness required such a course of action. True it is that the Secretary of State in his decision letter did not simply endorse either the authority's view or the parents' view, but he was fully entitled under s.8(7) to come to a different view of his own on matters on which both parties had already had the opportunity to make representations or express views. I do not regard any of the points where the Secretary of State differed from the parties as a new point.
38. For these reasons as well as those given by Russell L.J. I would allow the appeal by the Secretary of State and dismiss the cross-appeal by the parents.