QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
Strand. London WC2A 2LL
B e f o r e :
| THE GOVERNING BODY OF THE LONDON ORATORY SCHOOL
|THE SCHOOLS ADJUDICATOR
|(1) SECRETARY OF STATE FOR EDUCATION AND SKILLS
|(2) THE GOVERNING BODY OF PETERBOROUGH PRIMARY SCHOOL
Mr.Clive Lewis (instructed by the Treasury Solicitor) appeared for the Defendant.
Handed down, 12 August 2005
Crown Copyright ©
"On a reference under subsection (1) ... the adjudicator shall either –
(a) decide whether, and (if so) to what extent, the objection should be upheld, or
(b) in such cases as may be prescribed, refer the objection to the Secretary of State for that question to be decided by him".
"prohibiting or restricting the reference under subsection (1) ... , within such period following a decision by the adjudicator or the Secretary of State under this section as may be prescribed, of any objection raising the same (or substantially the same) issues in relation to the admission arrangements of the school in question;".
"(1) Where an objection about the admission arrangements for a particular school for a particular school year had been decided by the adjudicator or the Secretary of State, no subsequent objection may be referred (by the person or body who made the objection or by anyone else) about-
(a) those arrangements, or
(b) the arrangements for that school for the next following school year, which raises the same or substantially the same issue".
"17. I have to say that it seems to me it is quite clear what the effect of quashing the second adjudication would be. The adjudication would no longer stand. As a result of the operation of section 90(3), the Adjudicator would be obliged to consider those objections for what would be a third time. It is not, it seems to me, open to him to do nothing. It is not open to me, in the face of specific statutory provisions, to declare that he should do nothing. It is not possible in my view for valid objections, which have been made in accordance with section 90(2), simply to hang in limbo".
As a result Goldring J. refused permission to apply for judicial review.
"( 1) This rule applies where the court makes a quashing order in respect of the decision to which the claim relates.
(2) The court may -
(a) remit the matter to the decision-maker; and
(b) direct it to reconsider the matter and reach a decision in accordance with the judgment of the court.
(3) Where the court considers that there is no purpose to be served in remitting the matter to the decision-maker it may, subject to any statutory provision, take the decision itself.
(Where a statutory power is given to a tribunal, person or other body it may be the case that the court cannot take the decision itself).
"63. The next question is whether I should remit the matter to the Adjudicator so that she could make a fresh determination upon the objection raised by the Peterborough Governors pursuant to section 90(3) of the 1998 Act. Mr. Swift, in his forceful submissions ... argued that that is the proper course of action".
"8. Accordingly, if this court remits the matter now to the Adjudicator there is only one decision which lawfully the Adjudicator could take. That would be to dismiss the objection to interviewing raised by the Peterborough Governors."
"65 .... The decision which I have made relates solely to the admission arrangements for September 2005. It is now simply too late to deal with the objection to interviewing that has been raised. If in future years the Governors of the Oratory School propose to interview applicants for places and if in future years objection is taken to that proposal, such an objection can be put before the Schools Adjudicator and all the issues can be considered afresh. The arguments against interviewing can be deployed and the arguments advanced by the School in favour of interviewing, including the extensive material which has been lodged in the course of the hearing, can also be deployed. The outcome of any future application to admissions procedures in future years will be a matter for the Adjudicator, upon which I make no comment. I am dealing in this case with the lawfulness of a determination made in respect of the admissions arrangements for September 2005".
"Jackson J concluded (#64(7)) that in the events which had happened it would be 'Wednesbury' unreasonable for the Adjudicator now to require the abandonment of interviews, and accordingly there is now 'only one decision which lawfully the Adjudicator could make' (#64(8)) (ie not to uphold the objection to interviews). If that was a proper conclusion in the circumstances the judge was quite entitled not to remit the matter, since any further determination by the Adjudicator would be a formality in the sense that s/he could only reach one lawful conclusion. On this basis there is no usurpation of the Adjudicator's role under s.90 (3) of the 1998 Act, and the case is quite different from Goldring 1's decision in the Watford Grammar Schools case. The Adjudicator's concern that there is here a 'point of principle' is misplaced. The judge has not purported to decide the merits of interviews for himself. He specifically disavows doing so: see #65. He has merely held that because of the very severe time pressures it would be irrational to disrupt the admissions arrangements for September 2005.
I see no basis on which the conclusion of the judge on this narrow issue should arguably be departed from."
Submissions and conclusions