QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R (on the application of PARENTS FOR LEGAL ACTION LTD)
|- and -
|NORTHUMBERLAND COUNTY COUNCIL
Smith Bernal WordWave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Mathew Purchase (instructed by Northumberland County Council Legal Services) for the defendant
Hearing dates: 10 and 13 February 2006
Further written submissions filed 7-16 March 2006
Crown Copyright ©
Mr Justice Munby :
"the outcomes of the Stage 1 consultation process and the concerns of those opposed to the Council's preferred framework" that is, a two-tier system,
the council resolved that:
"the preferred framework be adopted as the basis for Stage 2 consultations with flexibility to meet geographic and demographic local circumstances."
I will explain in due course what is meant by the Stage 1 and Stage 2 consultation processes. For the moment I merely note that the Council rejected, by a substantial majority, a proposed amendment which would have prevented a change to a two-tier system in places "where the majority of the community are opposed to change."
i) Stage 0 (autumn 2003 to May 2004): This was a general consultation on whether the defendant should adopt a two-tier system. The outcome of this process was summarised in section 6 of a report dated 27 May 2004 prepared by the defendant's Director of Education. At its conclusion the defendant resolved on 9 July 2004 to adopt "in principle" a two-tier system. Following on from this the Director in November 2004 prepared his report, 'A Strategic Plan for Education Provision in Northumberland,' to which I have already referred.
ii) Stage 1 (December 2004 to March 2005): This was again a general consultation on whether the defendant should adopt a two-tier system for the county as a whole, but conducted on a fuller basis, utilising a wider range of methods and based on additional information. The outcome of this process was summarised in section 6 of the Director's report, 'The Outcomes of the Stage One Consultation Process,' to which I have also referred. At its conclusion, as we have seen, the defendant resolved on 19 April 2005 to adopt a two-tier system as its "preferred framework" to form the basis of further, local, consultation.
iii) Stage 2 (April 2005 and ongoing): This is a process of consultation with each school partnership on the precise changes to be made to individual schools within that partnership. Stage 2 itself comprises three phases (also referred to as "steps") for each school partnership. Two or three school partnerships are consulted with at a time. At the conclusion of the process the defendant will decide whether to publish statutory proposals under either section 28(3) or section 29(3) of the School Standards and Framework Act 1998. The process will then move on to the next two or three school partnerships. It is not envisaged that the entire process will be completed before about 2020 or 2021.
"Questions were raised about current year groups in specific schools and about what schools children should [be] sent to for the first time. Mr Doughty advised that, at this stage, only illustrative models were available. Detailed analysis would come out at stage 2."
"It was therefore clear to all, including opponents of the decision, on what basis the County Council would proceed to Stage 2 Consultation. Any 'alternative models' to those proposed in Part B of the 'Strategic Plan for Provision of Education in Northumberland', published in November 2004, would be discussed within the context of a primary/secondary structure, and this has been the case in Stage 2 (Step 1) consultation in the first three partnerships to undergo re-organisation."
He went on (emphasis added):
"all requests for partnership re-organisation to the Schools Organisation Committee over the coming years will be on the basis of a primary/secondary structure".
"A meeting was held at each Partnership School in Cramlington The meetings were offered three models for consideration."
Each was in fact a model of a two-tier structure. In paragraph 6.3 he said:
"The meetings were reminded that, although this consultation was not about revisiting the three tier / two tier argument individuals would have an opportunity to object to any final model on the grounds that it was a two tier option following the publication of Statutory Notices."
"Frank Jordan explained that Southlands Middle School would close as a Middle School under the two-tier education system. However, decisions had not been made yet as to what the school site would be used for
Frank Jordan explained that the meeting was to discuss the proposed models for the Cramlington Partnership and not to discuss the decision made by NCC to move to a two-tier education system
He said that all models were to close Middle Schools "
"At this point it is important to emphasise that at the beginning of this year we had a public, countywide consultation on the challenges we face and the Council's preference for a primary secondary system of education. The Council decision on this is now made.
The focus of this stage of consultation is on discussing how we can move to a primary/secondary system in Cramlington."
"(1) Where a local education authority propose
(a) to establish a new community or foundation school, or
(b) to make any prescribed alteration to a community school, or
(c) to make any prescribed alteration to a foundation school consisting of an enlargement of the premises of the school,
the authority shall publish their proposals under this section.
(3) Proposals under this section shall
(a) contain such information, and
(b) be published in such manner,
as may be prescribed.
(5) Before publishing any proposals under this section, the relevant body or promoters shall consult such persons as appear to them to be appropriate; and in discharging their duty under this subsection the relevant body or promoters shall have regard to any guidance given from time to time by the Secretary of State.
(8) Schedule 6 has effect in relation to the procedure for dealing with proposals under this section and their implementation
(10) In this section "the relevant body " means the local education authority
(11) In this Part
(a) "alteration", in the context of a prescribed alteration to a maintained school, means an alteration of whatever nature, including the transfer of the school to a new site but excluding any change
(i) in the religious character of the school, or
(ii) whereby the school would acquire or lose a religious character "
"(1) Where a local education authority propose to discontinue
(a) a community, foundation or voluntary school, or
(b) a maintained nursery school,
the authority shall publish their proposals under this section.
(3) Proposals under this section shall
(a) contain such information, and
(b) be published in such manner,
as may be prescribed.
(4) Before publishing any proposals under this section, the relevant body shall consult such persons as appear to them to be appropriate; and in discharging their duty under this subsection the relevant body shall have regard to any guidance given from time to time by the Secretary of State.
(7) Schedule 6 has effect in relation to the procedure for dealing with proposals under this section and their implementation.
(9) In this section "the relevant body" means the local education authority mentioned in subsection (1) "
"1(1) This Part of this Schedule applies to proposals published under section 28 [or] 29 which relate to a school or proposed school in England.
(2) In this Part of this Schedule "the relevant committee" means the school organisation committee for the area of the local education authority who maintain the school
2(1) Any person may make objections to, or comments on, any proposals published under section 28[or] 29
(2) Where the proposals were published by a local education authority
(a) any objections or comments under this paragraph shall be sent to the authority within such period as may be prescribed ("the representation period"); and
(b) within such period as may be prescribed the authority shall send to the relevant committee copies of all objections or comments made (and not withdrawn in writing) within the representation period, together with the authority's observations on them.
3(1) Proposals published under section 28 [or] 29 require approval under this paragraph if
(a) the proposals were published by a local education authority and either
(i) objections to the proposals have been made in accordance with paragraph 2 and any of them have not been withdrawn in writing within the representation period;
(2) Where any proposals require approval under this paragraph, they shall be considered in the first instance by the relevant committee, who may
(a) reject the proposals,
(b) approve them without modification, . . .
(c) approve them with such modifications as the committee think desirable after consulting such persons or bodies as may be prescribed, or
(d) if the committee think it appropriate to do so, and subject to regulations, refer them to the adjudicator.
(7) Where any proposals are referred to the adjudicator under this paragraph
(a) he shall consider the proposals afresh; and
(b) sub-paragraphs (2) to (4) (other than sub-paragraph (2)(d)) shall apply to him in connection with his decision on the proposals as they apply to the committee."
"Those who are considering bringing forward statutory proposals (ie the "proposers") must consult all interested parties, and in doing so must have regard to this guidance. The proposers should allow adequate time, and provide sufficient information, for those being consulted to form a considered view on the proposals, and should make clear how consultees' views can be made known. The conduct of consultation is not prescribed in regulations and it is for proposers to determine the nature of their consultation including whether to hold public meetings and to whom they will issue letters.
Proposers must be able to demonstrate how they have taken into account the views expressed during consultation in reaching a decision on the publication of proposals. Where, in the course of consultation, a new option emerges which the proposers wish to consider, proposers should consult afresh on this option before proceeding to publish proposals.
It is important that proposers consider carefully who might have an interest in proposals and must, therefore, be consulted. The Secretary of State considers that the interested parties who should be consulted by proposers include:
- any school which is the subject of proposals;
- parents and teachers in the area who may be affected by the proposals
[I omit the remainder of the list since nothing turns on it]
Proposals should be published within a reasonable timeframe after conclusion of consultation so that the proposals are informed by up to date feedback. The Department considers that consultation should have taken place not longer than 12 months before the proposals are published."
"The [School Organisation Committee] and schools adjudicator (if proposals are passed to them) will consider first whether adequate consultation has been carried out in accordance with legislation. The consultation process should take place well in advance of the actual publication. It is vital that proposers consult all interested parties.
It may be appropriate for a number of options to be considered before a final decision is made, but proposers should ensure that in the course of the consultation the emerging choice is sufficiently identified to enable those being consulted to focus on it. Where an entirely new option emerges from the consultation process the Secretary of State generally expects proposers to broaden the consultations to take account of that option.
In order that proposals are informed by up-to-date feedback, the Secretary of State would normally expect consultation to have taken place not longer than 12 months before the proposals are published."
"It is common ground that the issue of Gatwick will probably re-emerge, if only as a proffered alternative solution. The question really becomes this: knowing that the Claimants will probably and legitimately wish to advocate Gatwick as an alternative solution at a later stage in the decision-making process, is it procedurally unfair of the Secretary of State to operate the consultation process in such a way that the Claimants lose their only real opportunity to present their case on Gatwick without there being in place a Government policy which, realistically, will present them with an insurmountable hurdle? In my judgment, when one considers the decision-making process as a whole, the answer is that to operate the consultation process in that way is indeed procedurally unfair. Accordingly, this ground of challenge succeeds."
"Other things being equal, it was permissible for [the Secretary of State] to narrow the range of options within which he would consult and eventually decide. Consultation is not negotiation. It is a process within which a decision-maker, at a formative stage in the decision-making process, invites representations on one or more possible courses of action."
That does not assist the defendant in the present case. In the first place, sections 28(5) and 29(4), read in conjunction with (respectively) sections 28(1) and 29(1), require consultation on any proposal, as the case may be, to alter or close a particular school. That very specific statutory requirement, in my judgment, would preclude the kind of narrowing of options which the defendant would have to establish if it is to justify as adequate the consultation process which has in fact been offered here. Moreover, and as I have already noted, the actual decision in the Medway case was against the Secretary of State, for by narrowing the options the Secretary of State was found to have acted unfairly and therefore unlawfully.
"there is nothing here [in R v North and East Devon Health Authority ex p Coughlan  QB 213] to suggest that consultation involves as a legal requirement an articulation of both sides of the argument. Proper consultation requires sufficient reasons to be given for the particular proposals to enable those consulted to give intelligent consideration and an intelligent response to the proposals. But it is not said that consultation requires sufficient information to be given about any objections to the proposals to enable those consulted to give intelligent consideration and an intelligent response to the objections."
But that, with respect to Mr Purchase, goes to a different point and one which is not being taken by the claimant.
"In order to reach a compromise, the Scrutiny Recommendations be accepted with the caveat that, in Recommendation 5, the Independent Evaluators will be agreed by the three Party Group Leaders, and all the Scrutiny recommendation are subject to anything subsequently decided when the substantive reports are considered later on in the agenda."
The amendment was carried by a large majority. It was then put to the vote as the substantive motion and carried. The meeting "further" resolved that 'Putting the Learner First, A Strategic Plan for Education Provision' was a suitable document in scope and content as a basis for general consultation until 1 March 2005.
"the brief and scope of the second independent evaluation was clarified and agreed with the Elected Members that had recommended this resolution. On the 23rd February a meeting was held with Cllr Jim Wright" he, as I understand it, was representing Councillor Davey, the Labour Leader of the Council "Cllr John Carlin (Executive Members for Children's Services), Cllr Scott Weightman" the leader of the Liberal Democrat group "Cllr Michael Jeans" the leader of the Conservative group "Jackie Strong, Neville Gaukroger and Alan Parker. Following this meeting it was clear that members did not want to revisit the full independent evaluation At the meeting the brief for the Second Evaluation was agreed and this was to involve scrutiny and examination of the whole process of consultation but specifically Given this clarification at the meeting with the Elected members the financial evaluation was not included. Alan Parker was appointed to undertake this second independent evaluation."
i) The defendant failed to take account of a material consideration, namely (a) an independent evaluation (which on the claimant's case had never been prepared) and/or (b) its previous decision requiring such an evaluation to be carried out. The claimant's case is that an independent evaluation was a material consideration to which the defendant was obliged to have regard before coming to a decision.
ii) The defendant breached the claimant's legitimate expectation that such an evaluation would be carried out prior to its decision as to the basis upon which to proceed to Stage 2 of the consultation.
"In my judgment the CREEDNZ Inc case (via the decision in In re Findlay) does not only support the proposition that where a statute conferring discretionary power provides no lexicon of the matters to be treated as relevant by the decision-maker, then it is for the decision-maker and not the court to conclude what is relevant subject only to Wednesbury review. By extension it gives authority also for a different but closely related proposition, namely that it is for the decision-maker and not the court, subject again to Wednesbury review, to decide upon the manner and intensity of inquiry to be undertaken into any relevant factor accepted or demonstrated as such. This view is I think supported by the judgment of Schiemann J in R v Nottingham City Council ex p Costello (1989) 21 HLR 301, to which Mr Luba referred us. That case concerned the degree of inquiry which an authority was obliged to undertake into issues of priority need and intentional homelessness. Schiemann J said, at p 309:
"In my view the court should establish what material was before the authority and should only strike down a decision by the authority not to make further inquiries if no reasonable council possessed of that material could suppose that the inquiries they had made were sufficient."
This approach is lent authoritative support by the decision of this court in R v Kensington and Chelsea Royal London Borough Council ex p Bayani (1990) 22 HLR 406, which was concerned with the authority's duty of inquiry in a homelessness case. Neill LJ said, at p 415:
"The court should not intervene merely because it considers that further inquiries would have been sensible or desirable. It should intervene only if no reasonable housing authority could have been satisfied on the basis of the inquiries made.""
"the defendant's safety/evacuation and environmental capacity reasons for refusing planning permission in February 2003 were material considerations which the committee should have taken into account in June 2003. In so concluding, I do not suggest that members were bound to reach the same conclusion in June as their predecessors had in February, nor do I suggest that officers should not have set out their own professional judgment. However, the members in June should have been given a proper opportunity to consider whether or not they adhered to the objections made in February, and if not why not. They were not given that opportunity."
That was a very different case and one moreover where, as Sullivan J pointed out (see at para ), the way in which the matter had been presented to councillors was "seriously misleading and unfair." It does not assist the claimant here. There was, in my judgment, no error of law by the defendant.
"An element of the Putting the Learner First strategy is to address these fundamental building issues so that modern fit for purpose facilities that inspire and promote improved educational standards can be provided to all learners.
The indicative capital costings show a baseline capital requirement of Ł425 million across the estate to bring it up to the required standard under a [two-tier] system. This figure compares to Ł461 million for a revised three tier educational system (emphasis added)."
The claimant also draws attention to what the Director said in a briefing paper for councillors:
"The total capital costs include the cost to effect the age of transfer as well as those costs required in the short term to address urgent health and safety issues and the capital required to bring the estate up to the required DfES Building Bulletins. This is therefore a strategic business case for the modernisation and transformation and not a simple comparison of costs for reorganisation (emphasis added)."
i) the defendant had produced costings under three headings: (a) "urgent", defined as "mechanical and electric installations which require immediate attention, (b) "basic works", defined as "minimum costs to provide the facility" and (c) "recommendations/balance", defined as "work costs to fully refurbish the mechanical and electrical installations including the existing building;" and
ii) the indicative cost of Ł425 million was calculated by reference to the cost of the "basic works" and took no account of the very substantial additional cost of the "recommendations/balance."
Put another way, the claimant complains that, as it was put in another of the defendant's documents, the Ł425 million costs:
"represent the proposal change of use of the site, not enhancements/upgrading the existing facilities beyond this remit."
i) What would councillors have understood the "required standard" to mean in this context? Ms White's answer to this question is that, having regard to the whole of the material put before them, councillors would have understood that the indicative costs referred to were the costs required for modernising and upgrading with 'modern fit for purpose facilities' across the school estate, or at the least the costs required for upgrading to meet the DfES Building Bulletins standard.
ii) Did the indicative costs represent the investment required to meet that standard? Ms White submits that they did not: see paragraph  above.
"a significant need to invest in Northumberland schools to bring them up to the required minimum standards as outlined by DfES guidance,"
quantified the total backlog of repairs as amounting to Ł52.78 million before going on to point out that a further Ł26 million was need to address the needs of mechanical and electrical installations and a further Ł7.3 million to ensure Disability Discrimination Act compliance. He continued in paragraph 9.2:
"The figures highlighted above relate to costs required to bring school buildings up to the required standard What these figures do not indicate is that many school buildings also have fundamental suitability issues This therefore limits the ability to deliver a modern curriculum."
This reflected earlier observations contained in the Director's report, 'A Strategic Plan for Education Provision,' of December 2004. Paragraph 2.6 of the Executive Summary identified that:
"the Council needs to invest an extremely large amount of capital resources in addressing the large backlog of condition and suitability needs of Northumberland's schools."
Paragraph 4.3 of Part A of the main report was pretty blunt:
"the majority of the buildings have reached the end of their service life, with some offering an increased health and safety risk. There is therefore a clear need to modernise the education estate Given that the majority of the buildings have reached the end of their life it would not represent best value to start to invest in the current building stock. There is essentially a need to rebuild the entire estate."