England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London WC2
		Tuesday, 12th June 2001

1. MR JUSTICE HARRISON: This claim for judicial review, made with the permission of Newman J, relates to a decision of the Education and Community Services Committee ("the ECS Committee") of the defendant, the Walsall Metropolitan Borough Council ("the Council"), dated 13th February 2001, when it decided to award the contract for the Council's catering services to an outside caterer, P Martin & Sons (Trefonen) Limited ("Martins"). Those services had previously been supplied by the Council's own Direct Services Labour Organisation ("the DSO"). There were about 600 employees in the catering DSO, about 250 of whom were members of the first claimant, the Transport and General Workers Union. The second claimant, Hilary Hollington, was employed by the DSO before it was transferred to Martins following the decision of 13th February 2001. The main concern of the claimants relates to the terms and conditions of their employment with Martins in the future. However, the ground of challenge to the decision of 13th February 2001 relates to the voting of the ECS Committee when taking that decision.
2. There were five non-elected members of the ECS Committee. Three of them were parent governor representatives of schools maintained by the local education authority and two of them were church representatives of voluntary schools. Statute requires such representatives to be included in the membership of local authority education committees. In this case, those five non-elected members of the ECS Committee were instructed that they were not allowed to vote on the catering decision.
3. The decision to be made was whether to vote in favour of the motion to accept the officer's recommendation that the catering contract should be awarded to Martins rather than to one of two other tenderers, or whether to vote in favour of an amendment that the decision should be deferred for further information about a new DSO business plan to be obtained and, in the interim, that the DSO contract should be extended for a further 12 months.
4. The ECS Committee voted 11 to 9 in favour of the motion and against the amendment. It is common ground that the church representatives would have abstained from voting anyway as it was their custom to do so on controversial issues such as this. However, the evidence is that the three parent governor representatives would have voted against the motion and in favour of the amendment if they had been allowed to do so. It follows that the decision of the ECS Committee would have been different if the three parent governor representatives had been allowed to vote. The issue, therefore, in this case is whether those three parent governor representatives were wrongly excluded from voting. The resolution of that issue depends upon the proper interpretation of regulation 10 of the Education (Parent Governor Representatives) Regulations 1999 ("the 1999 Regulations") which were made under section 499 of the Education Act 1996 ("the 1996 Act"). I turn therefore to deal first of all with the relevant statutory provisions and government guidance.
5. Section 102 of the Local Government Act 1972 provides that a local authority may appoint committees. Section 499(1) of the 1996 Act provides as follows:

"Subsection (2) applies to any local authorities which in accordance with section 102(1) of the Local Government Act 1972 have appointed any committees wholly or partly for the purpose of discharging any functions with respect to education which are conferred on them in their capacity as local education authorities."

6. Subsection (2) is, in fact, a subsection which empowers the Secretary of State to give a direction requiring the appointment of church representatives of voluntary schools on such committees, but I have quoted subsection (1) because it is also relevant to subsection (6), which is the enabling subsection for regulations to be made dealing with parent governor representatives on such committees.
7. Subsection (6), which was inserted by section 9 of the School Standards and Framework Act 1998 ("the 1998 Act"), provides so far as relevant as follows:

"Regulations may require -

(a) any such committee as is mentioned in subsection (1) or (3) ...

to include one of more persons elected, in accordance with the regulations, as representatives of parent governors at maintained schools in relation to which the committee or subcommittee acts."

8. Subsection (7), which was also inserted by the 1998 Act, provides:

"Regulations may make provision for -

(a) the number of persons who are to be elected for the purposes of subsection (6) in the case of any local education authority ...

(d) the term of office of persons so elected and their voting rights."

9. Subsection (8), also inserted by the 1998 Act, made further enabling provision for the regulations.
10. The 1999 Regulations were made pursuant to section 499(6), (7) and (8) of the 1996 Act. Regulation 2 defines, inter alia, a "relevant committee" as follows:

"... a committee appointed by a local authority ... in accordance with section 102 of the Local Government Act 1972 wholly or partly for the purpose of discharging any functions which are conferred on the local authority ... in its ... capacity as a local education authority ..."

11. Regulation 3(1), which deals with the number of parent governor representatives, states:

"A local education authority shall appoint at least two but not more than five parent governor representatives to each relevant committee of the authority."

12. Regulation 6(1) provides that a person shall be qualified to be elected as a parent governor representative of a relevant committee if:

"(a) he is a parent governor at a school maintained by the local education authority; and

(b) he is the parent of a registered pupil who is educated at a school maintained by the authority, or who is educated by the authority otherwise than at school."

13. I come then to regulation 10, which is the crucial regulation for the purposes of this case. It provides as follows:

"(1) Subject to paragraph (2), a parent governor representative shall be entitled to vote on any of the following matters -

(a) matters which relate to schools maintained by the local education authority;

(b) matters which relate to pupils who are educated in schools maintained by the local education authority, or who are educated by the local education authority otherwise than at school.

(2) A parent governor representative shall not be entitled to vote on the determination of the local education authority's total revenue expenditure on education or the determination of its total capital expenditure on education."

14. I should say that a similar provision to regulation 10 is contained in a direction made by the Secretary of State under section 499(2) of the 1996 Act relating to church representatives. That is annexed to Circular 19/99 which deals with church representatives on local authority committees dealing with education.
15. Circular 13/99 deals with parent governor representatives on local authority committees dealing with education. It is necessary to refer to a few provisions of that circular.
16. Paragraph 1 of Circular 13/99, which is an introductory paragraph, states:

"... The intention is to enable parents to have a direct input to their local authority's policies on education provision for pupils of school age."

17. Paragraphs 72 to 74 of the Circular come under the heading "Right To Vote In Committees To Which Appointed". Paragraph 72, in effect, repeats the provisions of regulation 10. Paragraph 73 states that parent governor representatives will be allowed to vote on matters which effect how funds earmarked for education are to be spent and it gives examples of various budgetary matters, such as how much of the education budget is devoted to schools, what proportion of the schools budget retained centrally is devoted to each of the main funding areas, and so on. Paragraph 74 states that parent governor representatives should not vote on any matter determining the local education authority's total education revenue or capital budget or any matter which would require the Council to raise the Council tax. Finally, Annex B of the Circular gives an example of a description of a parent governor representative's role, which includes acting as an apolitical voice for parents, representing to the local authority the main education issues which concern parents of pupils maintained by the authority, and feeding back to the parents the local authority's discussions of and decisions on education.
18. The only part of the evidence to which I need refer at this stage is that the catering contract relates very largely to the provision of meals in schools. It also relates to such matters as meals on wheels and civic functions, but about 80 to 85 per cent of the volume of the work of the catering service is concerned with the provision of school meals. There is no dispute about that evidence.
19. Regulation 10(1)(a) gives parent governor representatives a right to vote on "matters which relate to schools" maintained by the local education authority, and regulation 10(1)(b) gives them the right to vote on "matters which relate to pupils" who are educated in schools maintained by the local education authority, or who are educated by the local education authority otherwise than at school.
20. Mr Giffin, who appeared on behalf of the claimants, accepted that, if he could not get home under regulation 10(1)(a), he would not be able to get home under regulation 10(1)(b), so the argument centered on regulation 10(1)(a). The issue, therefore, as defined by Mr Giffin, is whether the decision about the contract for the provision of school meals is a "matter which relates to schools". The claimants contend that the answer is obviously "yes".
21. It was submitted that the words "relate to" are wide ones. Reference was made to a passage in the judgment of Dillon LJ in Peacock Homes Ltd v Secretary of State for the Environment [1984] 83 LGR 683, a case concerning an enforcement notice appeal under the Town and Country Planning Act 1971, when he said at page 693:

"The key words 'which relates to' in the phrase 'a condition or limitation which relates to the carrying out of such operations' are not words of art. They are words often used in the Act, as in other statutes, in a very general sense ... They may often mean little more than 'which has to do with'."

22. It was submitted that that is what the words "which relate to" mean in regulation 10(1). The question is whether the catering contract decision was a matter which had to do with schools or pupils as opposed to a matter that comes before the ECS Committee which does not have to do with schools or pupils. It was submitted that that was a straightforward and easily understandable test which fitted well with the legitimate concerns of the parent governor representatives who would have a proper interest in any topic which would have any sort of impact upon maintained schools, including their budgets and staff working at the school, as well as their pupils. It was pointed out that there are a number of matters dealt with by the ECS Committee upon which the parent governor representatives would not be able to vote, such as art galleries, leisure centres, community centres, museums and libraries. Also, there are matters of an educational nature upon which the parent governor representatives would not be able to vote because they were not concerned with maintained schools or pupils at those schools, such as discretionary awards for higher education, funding for further education, special educational needs for pre-school children, funding at private schools and so on.
23. Mr Giffin made the point that, if a secondary school decided to opt out of the Council's collective catering arrangement and to use an external provider, the governing body would have to decide to whom the contract was awarded and on what terms, matters which plainly relate to the school, but on the Council's case, if it were dealt with collectively by the Council, it would not be a matter which related to schools. The point was also made that a local education authority's power to provide registered pupils at maintained schools with school meals is contained in section 512(1) of the 1996 Act. It was suggested that it would be startling if a decision about the contract through which that provision was to be made was not a matter which relates to schools or pupils.
24. Mr Giffin submitted that the award of the catering contract would be a matter of significant concern to the schools because it would determine the identity of the organisation responsible for school meals, it would determine who would employ the school's dinner ladies, and the contract price would effect the quality and cost of school meals with consequences for the school's pupils and the school's budgets. The mere fact that the Council had kept the head teachers of maintained schools informed about the progress over the future of the catering service contract and its consequences for the schools showed, it was said, that it was obviously a matter which relates to schools.
25. Mr Lewis, on the other hand, submitted on behalf of the Council that the catering decision was a decision by the Council as to how it was going to maintain a capacity to provide catering services, which was not a matter relating to schools or pupils within regulation 10.
26. In connection with that submission, Mr Lewis referred to the history of the matter, which involved a decision by the Council's Contractor Committee on 7th February 2000 that the catering contract would be put out to tender and that the catering DSO would not be allowed to tender for it because it was losing too much money and a saving of about a quarter of a million pounds was required.
27. The decision at that meeting, which was attended by the first claimant, had not been challenged, but the Contractor Committee had ceased to exist a month later and its outstanding business had been transferred to the ECS Committee. However, there had subsequently been an improvement in the performance of the catering DSO as a result of which, in December 2000, it was decided that the option of an in-house bid by the catering DSO should be considered as well.
28. Mr Lewis made the point that there had been no suggestion at the meeting of the Contractor Committee on 7th February 2000 that there should be parent governor representatives on the committee or that the matter should be decided by the education committee because it was a matter relating to schools. He submitted that the decision on 13th February 2001 was a structural decision as to how the Council would maintain a capacity to provide catering services which involved best value considerations of economy, efficiency and effectiveness, and which, as a matter of common sense, was not the sort of matter about which it had been intended that parent governor representatives would have the right to vote. Reliance was also placed on paragraphs 73 and 74 of Circular 13/99, particularly on the statement that parent governor representatives should not vote on matters that would raise the Council tax.
29. Mr Lewis submitted, in the alternative, that section 499 of the 1996 Act and the 1999 Regulations were intended to enable parent governor representatives to participate in decisions concerning the discharge of educational functions, that is to say, to vote on educational issues, and that the decision as to which of the three tenderers were to take over the Council's catering capacity was not a matter that involved the discharge of educational functions and did not involve educational issues and so did not come within regulation 10. He submitted that the scope of the right of parent governor representatives to vote was limited by section 499(1) in that it described the committees of which they were to be members as being committees for discharging any function with respect to education conferred on them in their capacity as local education authorities. It was said that the 1999 Regulations could not have been intended to grant wider rights of voting than that.
30. In support of that alternative submission, reliance was placed on the fact that section 499(6) had been inserted by the 1998 Act in a part dealing with measures to raise standards of school education and in a chapter dealing with general responsibilities of local education authorities. Reliance was also placed on paragraph 1 of Circular 13/99, referring to the intention that parents should have a direct input to policies on education provision, which, it was suggested, would include such matters as special educational needs, school amalgamations or closures or change from grammar school to comprehensive. Reliance was also placed on the description of the parent governor representatives's role in Annex B of the Circular to which I have already referred.
31. Mr Lewis also sought to rely on the Parent Governor Representatives (England) Regulations 2001, which came into force shortly after the date of the decision in this case. Regulation 10 of those regulations gives the parent governor representatives the right to vote "on any question which relates to any education functions" which are the responsibility of the authority concerned's executive. It was suggested that there was no intention to change the matters on which there was a right to vote and that the different wording only resulted from recent legislation changing the structure of local authorities. If he were wrong about that, Mr Lewis submitted that the 2001 Regulations were broader and were dealing with educational functions generically, whereas the 1999 Regulations are limited to decision relating to particular schools. If he were wrong about that and the 2001 Regulations were cutting down the ambit of the voting rights, it would, he said, be relevant to the question of the exercise of discretion in this case.
32. Mr Giffin submitted that the scope of regulation 10 of the 2001 Regulations is wider than its counterpart in the 1999 Regulations because it is no longer confined to maintained schools and pupils in those schools. It now gives the right to vote on educational functions that do not relate to such schools or pupils.
33. Finally, Mr Lewis contended that when regulation 10 refers to matters which relate to schools or pupils, it must mean matters which relate to the discharge of educational functions in relation to schools or pupils.
34. Having considered all those competing submissions, I have come to the conclusion that the claimants' interpretation of regulation 10 is to be preferred. It is consistent with the ordinary and natural meaning of the words used in regulation 10(1) and it does not involve the reading of words into the regulation which are not there. It has the advantage of simplicity and ready comprehension.
35. Section 499(1) is not the enabling statutory provision for the voting rights in regulation 10. Section 499(7)(d) is the enabling provision for that regulation. Section 499(1) identifies the committee which, by virtue of section 499(6), must have parent governor representation on it. Under section 499(1) such a committee is one appointed for discharging any "functions with respect to education" conferred on it in its capacity as a local education authority. That provision does not limit what parent governor representatives may vote on. Nevertheless, as Mr Giffin said, matters which relate to schools or pupils will by definition relate to "functions with respect to education". There is therefore no inconsistency between section 499(1) and regulation 10. Section 499(1) is, however, broader than regulation 10 because local education authorities have some "functions with respect to education" which have nothing to do with maintained schools or pupils in them. The obvious example being functions with respect to higher and further education.
36. The provision of school meals by local education authorities is a function given to them by section 512 of the 1996 Act and, in itself, can properly be said to be a "function with respect to education". The budget for school meals comes out of the education budget and the amount of the budget is capable of affecting both the cost and the quality of the meals which are both matters of concern for the schools and pupils, quite apart from the employment considerations. Those are all considerations which would be of direct concern to parent governor representatives upon which one would expect them to have a right to vote. Bearing in mind that 80 to 85 per cent of the work of the Council's catering service is concerned with the provision of school meals, the decision as to whom the contract is awarded is of direct concern to those schools. In my judgment, it is a matter which relates to schools and to pupils within the meaning of regulation 10 and it is, therefore, a matter upon which the parent governor representatives were entitled to vote. They were wrongly excluded from voting. And the ground of this application is therefore made out.
37. Before I come on to deal with the issue of discretion, I should say that my decision has not been influenced by the 2001 Regulations although, if I had to decide the point, I would have held that regulation 10 of the 2001 Regulations is broader than regulation 10 of the 1999 Regulations because it is not restricted to maintained schools and pupils in them, whereas the latter is.
38. I turn then to the issue of discretion. Mr Lewis referred to the broad discretion that the court has in deciding what, if any, remedy should be granted. The relief sought by the claimants is a quashing order to quash the decision to approve the award of the catering contract to Martins, and a declaration that the contract between the Council and Martins is void and of no effect. Martins were served with these proceedings as the interested party but they have not appeared or made any representations to the court.
39. Mr Lewis submitted that either no relief should be granted or that relief should be confined to a declaration as to the entitlement of the parent governor representatives to vote. In support of that submission, he contended that the claimants did not have a sufficient interest to justify the grant of a remedy because the rights conferred by the 1999 Regulations are conferred on the parent governor representatives whereas the claimants are not parent governor representatives, nor are they interested in vindicating the rights of parent governor representatives. Their concerns relate to possible future changes to the terms and conditions of the employees after transfer to Martins and, it was said, they are using these proceedings to further their political agenda.
40. It is also submitted that the decision not to have an in-house DSO but to have an external contractor was taken at the meeting on 7th February 2000 which was attended by the first claimant and no challenge was made to that decision.
41. Next, it is said that the Council would be unable to realise the significant savings which would be involved if an external contractor were used instead of the DSO.
42. Finally, reliance is placed on the administrative inconvenience that would be caused if the relief sought were granted. The contract with Martins was signed on 19th March 2001 and came into force on 16th April 2001, although, as it happened, Martins did not start until 28th May 2001. The employees have now been transferred from the DSO to Martins pursuant to the Transfer of Undertakings (Protection of Employment) Regulation 1981 and the upsetting of the contract at this stage would, it is said, affect some 350 employees who are not members of the first claimant union.
43. I accept that I have a broad discretion in deciding whether or not I should grant the relief sought. However, what is involved in this case is the unlawful exclusion of non-elected members of the ECS Committee from voting on a matter upon which they were entitled to vote. The evidence is that, if the parent governor representatives had not been unlawfully excluded from voting, the decision would have been different. I accept that it is relevant that the claimants are not parent governor representatives, but they nevertheless have a genuine interest in the consequences of the decision and they represent a significant number of the workforce affected by the decision.
44. I do not attach much weight to the fact that no action was taken by the first claimant after the decision of 7th February 2000 because the reality of the situation is that, since December 2000, the option of considering a bid from the catering DSO has been revived. Furthermore, it is not necessarily right to say that the significant savings involved with Martins would not be realised. It may still eventually be decided that Martins should be used, but, if not, there may still be savings as a result of the DSO business plan.
45. There would inevitably be some administrative inconvenience if the relief sought were granted and it would affect a significant number of people. On the other hand, it is accepted that it is possible to make the necessary arrangements, and there is no suggestion of any delay in bringing these proceedings. Furthermore, the contract with Martins was signed by the Council on 19th March 2001, which was after a letter before action had been sent to the Council on 14th March 2001, with a copy sent to Martins on 15th March 2001, and Martins did not start until 28th May 2001, just over a week before the date of this hearing. I agree with Mr Giffin that both the Council and Martins went into it with their eyes open.
46. Taking into account all those considerations, I have decided that I should exercise my discretion in favour of the claimants and that I should grant the relief sought. In those circumstances, I will grant a quashing order to quash the decision of the ECS Committee made on 13th February 2001 and I will grant a declaration that the contract between the Council and Martins is void and of no effect
47. MR GIFFIN: My Lord, I am grateful. I apply for the claimants to have their costs of the proceedings, which I would invite your Lordship to assess summarily, a costs schedule has been duly served. May I hand that up. (Handed)
48. MR JUSTICE HARRISON: My recollection is that it might have been with the papers.
49. MR GIFFIN: My Lord, it has in fact been updated to take account of today and so forth anyway.
50. MR JUSTICE HARRISON: I see. Very well.
51. MR GIFFIN: I am not sure whether there is any objection. My learned friend kindly indicates not.
52. MRS OLDHAM: There is no objection, my Lord.
53. MR JUSTICE HARRISON: The sum therefore is £15,649.83 including VAT.
54. MR GIFFIN: My Lord, those are my applications.
55. MR JUSTICE HARRISON: Thank you very much. Mrs Oldham, can you resist that?
56. MRS OLDHAM: My Lord, I cannot resist that and do not seek to do so.
57. MR JUSTICE HARRISON: Before we go on to anything else, I will order that the defendant should pay the claimants' costs, which I assess summarily in the sum of £15,649.83.
58. Yes, Mrs Oldham.
59. MRS OLDHAM: My Lord, I am instructed to ask for permission to appeal from your Lordship's decision. The areas of concern which my clients would seek to ventilate before the Court of Appeal are, firstly, as to the scope of regulation 10 and, secondly, as to the issue of the standing and interest of the claimants in this case. Your Lordship has rehearsed in his judgment the arguments of Mr Lewis on behalf of the Council and those are the arguments which it would be sought to pursue further at a higher level.
60. MR JUSTICE HARRISON: You mean the standing of the claimants in relation to the question of relief?
61. MRS OLDHAM: My Lord, yes.
62. MR JUSTICE HARRISON: Because I think it was expressly accepted by Mr Lewis that he was not suggesting that the claimants did not have standing to bring the claim, but rather in terms of a sufficient interest to have the relief claimed.
63. MRS OLDHAM: And to justify your Lordship exercising his discretion in the way that he has, my Lord, yes.
64. MR JUSTICE HARRISON: Thank you. Mr Giffin, is there anything you wish to say on that?
65. MR GIFFIN: My Lord, I would resist it very briefly on the basis that, firstly, your Lordship is plainly right on the substantive question. Secondly, that the question of the relief sought is very much a matter for the discretion of the judge with which the Court of Appeal would be most unlikely to interfere. Thirdly, that any point of wider importance on regulation 10 is of limited interest given that those regulations have now been superseded. Fourthly, that it is highly desirable that all concerned should now know where they stand with this contract and that should not be delayed by any appeal.
66. MR JUSTICE HARRISON: Yes, thank you very much. Mrs Oldham, I am not prepared to grant permission to appeal so you will have to go to the Court of Appeal if you so wish.
67. MRS OLDHAM: So be it, my Lord, thank you.
68. MR JUSTICE HARRISON: Thank you very much.