England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		28th May 2008

1. KENNETH PARKER QC: The claimant in this application is a mother of three children currently attending Pimlico Community School ("the School"), a secondary school maintained by the defendant, the City of Westminster ("the Council"). The claimant seeks to challenge the decision of the defendant dated 17th March 2008 by which it resolved to discontinue, that is close, the school with effect from 31st August 2008, that discontinuation being subject to the Secretary of State for Children, Schools and Families ("the Secretary of State") and Future Academies ("Future") agreeing by that date to establish an academy on the same site as a replacement for the School. The Secretary of State and Future are joined as interested parties in this application.
2. The application for permission to apply for judicial review was considered on the papers by Cranston J on 24th April 2008. He refused permission, stating that there are no arguable legal grounds. He gave reasons in four paragraphs for the refusal. The claimant renewed its application for permission on 25th April 2008 and, pursuant to the procedural timetable agreed between the parties and approved by Stadlen J, the matter now comes before me as a rolled up hearing.

The relevant legislative background

3. Pursuant to the Education Act 1996 ("the EA 1996"), Local Education Authorities have a duty to ensure that efficient primary and secondary education is available to meet the needs of the population of their area; see section 13(1). They must ensure that they exercise their functions relating to the provision of education with a view to promoting high standards, ensuring fair access to educational opportunity and promoting the fulfilment by every child of his educational potential; see section 13A(1). Local Education Authorities must ensure that sufficient schools for providing primary and secondary education are available for their area and, in doing so, they must secure diversity in the provision of schools and increasing opportunities for parental choice; see section 14(1) and (3)(a).
4. The discontinuance of schools is governed by Part 2 of, and Schedule 2, to the Education and Inspections Act 2006 ("the EIA 2006") and the School Organisation (Establishment and Discontinuance of Schools)(England) Regulations 2007 (SI 2007 No 1288) ("the Regulations"). In this context, the school is discontinued where the relevant Local Education Authority ceases to maintain it; see section 15(8). The statutory scheme is that, where a Local Educational Authority proposes to discontinue a school, it must first consult, then it must publish formal proposals on which representations may be made, then it must consider whether to approve the proposals. Section 16(2) requires that, before publishing any proposals to discontinue a community school other than a special school or a rural primary school, the Local Education Authority must consult such persons as appear to it to be appropriate and in doing so must have regard to any guidance given by the Secretary of State; see section 16(3).
5. For present purposes, that guidance is contained in Closing a Maintained Mainstream School: A Guide for Local Authorities and Governing Bodies ("the DCSF guide") at paragraphs 1.2 to 1.6. The DCSF guide also contains non-statutory guidance which, in paragraph 1.8, advises local education authorities to remember to provide sufficient information on a consultation exercise. If, after that initial consultation, the Local Education Authority decides to proceed with the discontinuance of the school, it must formulate proposals containing the information specified in schedule 4 to the Regulations; see Regulation 14.
6. Section 15(1) provides that the Local Education Authority must publish the proposal in accordance with the Regulations. In effect, regulation 15 and part 7 of Schedule 5 to the Regulations require that an abbreviated version of the proposal be published. This is often referred to as the statutory notice. The abbreviated information includes the information specified in paragraph 11 of Schedule 4. Pursuant to regulation 16, any person may send objections or comments in relation to the proposals to the Local Education Authority within six weeks of the date of publication of the proposals. Schedule 2 to the EIA 2006 has effect in relation to the consideration, approval and implementation of proposals published pursuant to section 15. So far as is relevant, such proposals are to be considered by the Local Education Authority pursuant to paragraph 8 of that Schedule. Paragraph 8(4) empowers the Local Education Authority either to reject the proposals, to approve them without modification or to approve them with such modifications as it thinks desirable, after consulting the governing body of the school to be discontinued; see regulation 17. An approval may be conditional upon a particular event occurring by a particular date as specified in the Regulations; see paragraph 8(5). For present purposes, the relevant event specified in the Regulations is the making of any agreement under section 482 of the EA 1996 for the establishment of an academy; see regulation 20(m).
7. When considering approvals pursuant to paragraph 8(4), the Local Education Authority must have regard to the Secretary of State's guidance; see paragraph 8(6). Again, for present purposes, the guidance is contained in the DCSF guide. It sets out a non-exhaustive list of the factors to be taken into account in paragraphs 4.60 to 4.62. The non-statutory element of the DCSF guide advises that the Local Education Authority should satisfy itself that the consultation has met the relevant statutory requirements; see paragraph 4.9.
8. Academies are not maintained by Local Educational Authorities and, accordingly, they are independent schools for the purposes of education legislation; see EA 1996 section 463. As independent schools, academies are not subject to the normal regime for the establishment of new schools (also contained in Part 2 of the EIA 2006). Academies are established and maintained by persons commonly known as sponsors pursuant to an agreement between them and the Secretary of State entered into under section 482 of the EA 1996. An academy must have a curriculum satisfying the requirements of section 78 of the Education Act 2002; that is, a curriculum that is balanced and broadly based but with an emphasis on a particular subject area or particular subject areas; and it must provide education for pupils of different abilities who are wholly or mainly drawn from the area in which the academy is situated; see section 482(2). Before entering into an agreement pursuant to section 482, the Secretary of State must consult the Local Education Authority in whose area the academy is situated and any Local Education Authority within whose area a significant proportion of the pupils at the academy are likely be resident; see section 482(3)(b).
9. As envisaged by section 482, the establishment and maintenance of academies are governed by funding agreements between sponsors and the Secretary of State. The process leading up to the conclusion of such an agreement is summarised in the Secretary of State's guidance notes for sponsors and local authorities. The relevant sponsor will complete an expression of interest form which provides information about the proposal to establish an academy. Once it is accepted by the Secretary of State, there is a feasibility stage. Once the feasibility stage is completed satisfactorily, the funding agreement is drawn up and signed.

The relevant factual background

10. In November 2006, the School was inspected by Ofsted. Ofsted concluded that the School should be put into special measures pursuant to Part 1 of the Education Act 2005 because it was failing to give its students an acceptable standard of education and the persons responsible for leading, managing or governing the School were not demonstrating the capacity to secure the necessary improvement in the School. In consequence, on 1st March 2007, an interim executive board was appointed to replace the governing body of the School. One of the conditions of the appointment of the interim executive board was that it considered potential options for the future governance of the School.
11. The Council and the interim executive board consulted on options for the future of the School. That consultation exercise concluded on 25th May 2007 and a report on it prepared by Mr Steve Farnsworth, the Council's Director of Schools and Learning, (also the chair of the interim executive board) was considered by the Council's Children and Young People Oversight and Scrutiny Committee. At a meeting on 6th June 2007, the Committee heard oral representations from various stakeholders in the School in relation to the future of the School. The Committee met again on 20th June 2007 to consider the future of the School and in a subsequent report set out its recommendations to the Council's cabinet. On 9th July 2007, the cabinet considered the future of the School. A report from the Director of Schools and Learning proposed that the Council should seek the establishment of an academy.
12. The cabinet resolved that the Council was minded to pursue academy status and that the Director of Schools and Learning be instructed to bring forward a detailed proposal and a draft expression of interest, in order to secure agreement between the Council, the sponsor and the Secretary of State and to undertake the necessary statutory procedures, including consultation and the publication of notices. By a further report, dated 15th October 2007, the Director of Schools and Learning proposed that the charity Future be selected as sponsor. Appended to the report was a draft expression of interest. At a meeting on the same day, the cabinet resolved to authorise an invitation for Future to join with the Council in submitting an expression of interest, that the Director of Schools and Learning be authorised to agree a final version of the expression of interest and that a legally binding agreement on a fully comprehensive admissions policy be entered into with Future.
13. On 29th October, the statutory consultation on the proposal to discontinue the School commenced. This included a public meeting held at the School on 15th November 2007. The consultation period closed on 7th December 2007. There were then some 1,350 pupils at the School, with a further 210 due to join in September 2008. Some 55,000 leaflets were distributed. There were 85 written responses to the consultation exercise.
14. The Secretary of State accepted the expression of interest and it was signed on 16th October 2007. By a report dated 18th December 2007, the Director of Schools and Learning reported on the statutory consultation process and asked the responsible cabinet member, Sarah Richardson, to consider the responses to it before any further steps were taken towards the discontinuance of the School.
15. On about 3rd January 2008, Ms Richardson resolved to publish the statutory notice proposing a discontinuance of the school. The statutory notice was duly published on 3rd January 2008 and the period for making representations in relation to the statutory notice ended on 15th February 2008.
16. The Director of Schools and Learning presented a report to the cabinet dated 17th March 2008, concerning the proposed closure of the School. Appended to this report was the final version of the expression of interest as accepted by the Secretary of State and a draft memorandum of understanding between the Council and Future relating to the admission arrangements of the proposed academy. The evidence shows that the report and its appendices were published on the Council's website on 7th March 2008.
17. On 17th March 2008, the cabinet resolved to approve the proposal to discontinue the School in the following terms:

"... having considered the representations received in response to the publication of the statutory proposals to close Pimlico Community School, it be agreed to discontinue Pimlico Community School and, it be closed with effect from 31 August 2008 subject to the Secretary of State for Children, Schools and Families entering into a Funding Agreement with the Future charity (or Trustees on behalf of the charity or charitable body to be established) by 31 August 2008 approving the establishment of Pimlico Academy on the same site with effect from 1 September 2008."

This decision of 17th March 2008 is the decision under challenge.

18. On 10th April 2008, the Secretary of State signed a funding agreement with Future. Because it is envisaged that Future will sponsor more than one academy, it is in the form of a master funding agreement and a supplemental funding agreement relating to the proposed Pimlico Academy. Those agreements are in materially the same form as the drafts already before the court.

The grounds of challenge

19. As became clear at the hearing, the grounds of challenge came down in essence to the following. First, Mr David Wolfe on behalf of the claimant, submitted that, in the absence of a draft funding agreement, or at least of some other document containing the same or broadly the same information as a draft funding agreement, the Council could not lawfully decide to close the School. Secondly, he contended that, in the absence of a draft funding agreement, or at least of some other document containing the same or broadly the same information as the draft funding agreement, consultees lacked essential information for them properly to consider, and to make comment on, the proposals that became the subject of the statutory closure notice. The consultation process was therefore flawed. The statutory closure notice formed a necessary and important step in the challenged decision of 17th March 2008 to close the School. The flaw in the consultation leading to the statutory notice, therefore, vitiated the challenged decision and nothing done subsequently to the publication of the statutory notice saved the validity of the decision.
20. There is, therefore, a common theme running through both grounds. However, it seems to me logical to consider first the challenge to the substance of the decision before turning to the ground of consultation.

The substance of the decision

21. I note first that the applicable legislation does not in terms provide that a Council may not decide to close a community school with a view to its reopening as an academy unless there is a draft funding agreement or equivalent document before the council. Regulation 20(m) simply provides that if provision for pupils at a school proposed for closure is dependent on the establishment of an academy, any approval of the closure proposal should be conditional on the Secretary of State making an agreement for an academy under section 482(1) of the EA 1996.
22. Secondly, there is nothing to support Mr Wolfe's submission in the DCSF guide. Academies are referred to at paragraphs 4.25 to 4.27. Paragraph 4.25 contains a general description of academies. Paragraph 4.27 refers to regulation 20(m), and paragraph 4.26 says only this:

"4.26 . Where an Academy is to replace an existing school or schools, the proposals for the closure of those schools should indicate whether pupils currently attending the schools will transfer to the Academy and, if appropriate, what arrangements will be made for pupils who are not expected to transfer."

23. Thirdly, Schedule 4 to the Regulations, specifying the information that a closure proposal must contain, makes no reference to a funding agreement in final or other form.
24. Fourthly, it seems to me that the court should be very circumspect, particularly in the present context, before introducing by implication a condition precedent -- the existence of a draft funding agreement or its equivalent -- to the validity of a closure decision intended to facilitate the conversion of a school to an academy. The court does not make education policy nor does it legislate. Those functions are for Parliament and the Secretary of State under delegated powers.
25. Furthermore, under the applicable legislation, the relevant decision is for the Council and, in taking that decision, the Council clearly enjoys a significant area of discretionary judgment, including judgment over the nature and robustness of the information upon which it is minded to rely.
26. Rather than purporting to introduce by implication a legislative condition precedent as encouraged by the claimant's argument, I believe that the task for the court on this judicial review is to ask whether, having regard to the nature and quality of the information before it, the Council took a decision to close the school that was rational both in the light of the governing criteria laid down by section 13 of the EA 1996 and taking due account of the matters, insofar as they were here applicable, set out at paragraphs 4.16 to 4.62 of the DCSF guide.
27. However, the claimant contends that imposition of a legislative condition precedent of the kind that I have described is required by the ratio of P v the School's Adjudicator [2006] EWHC 1934 Admin ("P").
28. I do not accept this submission for the following reasons. The issue in P was whether the Adjudicator, the decision-maker in that case under the predecessor legislation, including the then equivalent of regulation 20(m), could lawfully approve the school closure by reference to a draft funding agreement without requiring the final funding agreement to be identical to the draft. It was not disputed that the closure decision could be taken before any funding agreement was signed; see paragraph 33 of the judgment. Wilkie J then held as follows:

"34. The claimant's case is that the Adjudicator had the power to insist on the funding agreement being in a specific form, either as per the draft before him, or containing specific provisions, dealing, for example, with safeguarding the rights and protections of parents and pupils in various respects. In my judgment the Adjudicator has no power to impose such a condition. The power of the Adjudicator is limited to giving approval expressed to take effect only if an event specified occurs by a specified date. The events, the occurrence of which may be specified as a condition for approval taking effect, are compendiously set out in regulation 9. The only relevant one is 'the making of any agreement under section 482(1) of the 1996 Act'. There is no power to require that the agreement be anything other than an 'agreement under section 482(1)'. There is no power to insist on such an agreement containing particular terms or being in a particular form. The legislator could have included such a power. It might have been thought to be one way of ensuring that the Secretary of State and the promoters did not, after the approval of the discontinuance, change the funding agreement so as adversely to affect the maintenance or enhancement of standards. The legislator did not, however, choose to deal with it in this way. It gave the Adjudicator the function of exercising judgment as to whether the draft agreement would maintain or enhance standards and, no doubt, exercising his judgment as to the likelihood of the draft being changed after approval and before it was formally agreed in such a way as would cut across his judgment in granting approval.

35. In this case the claimant explicitly raised the point with the Adjudicator that the draft agreement might subsequently be changed. To some extent they had grounds for that belief because of the letter of 21 December 2005, referred to above, in which the possibility of change is expressly stated. However, by the time the Adjudicator came to take his decision, he had the very clear statement of the Diocesan Board: that the draft agreement very closely followed a model agreement produced by the DfES; that there was a rigorous procedure to be followed if promoters intended to depart from the model; that in all material respects the draft agreement did follow the model; and giving the explicit undertaking that, save to the limited extent referred to in the letter, the draft would not change. In my judgment the Adjudicator was obliged to consider the extent to which he could rely on these assurances and undertakings. He did so and came to a conclusion that he could. This was a conclusion to which, in my judgment, he was entitled to come."

29. What the learned judge is saying in those paragraphs is that the decision-maker must evaluate such information as is available and take account of any evidence or representations that the sponsor cannot be relied upon to abide by its stated intentions or that insufficient information is available. In P, a draft funding agreement was available and was part of the information to which the Adjudicator needed to apply his mind. Concerns had been raised about the reliability of the sponsor and those concerns had also to be addressed. None of this would seem to me to be novel or controversial. In P, the learned judge was not directing himself to, far less purporting to answer, the question whether as a matter of law there was a condition precedent -- the existence of a draft funding agreement -- to the lawful exercise of the power to decide upon closure of the school with a view to its replacement by an academy. I am confident that, if the learned judge had been required to address and answer that question, he would have analysed the relevant legislative material in its policy context and would have reached the same conclusion that I have reached; namely, that there is no warrant for the implication of any such condition precedent.
30. I next asked myself what was the nature and quality of the information before the Council that led it to take the decision to close the school. In this context, it is important to note at the outset that the decision was not taken in a policy vacuum. The background to the decision can best be seen in the Department of Education and Skills' prospectus for sponsors and local authorities entitled "400 Academies" ("the prospectus").
31. In the prospectus under the heading "Why Academies?", the following is said:

"Academies are all-ability independent state schools with a mission to transform education where the status quo is simply not good enough. They are established and managed by independent sponsors, and funded by the Government at a level comparable to other local schools. No fees are paid by parents."

Then a little later:

"The Government is firmly committed to establishing 400 Academies. We regard the scaling up of the programme as a national imperative, supported by the recent independent report of the National Audit Office (NAO), the parliamentary watchdog, which concluded that Academies are 'on track to deliver good value for money', that they are 'popular with parents and staff' and that they are improving educational attainment at a much faster rate than the national average.

Independent status is crucial in enabling Academies to succeed. Strong, ambitious leadership, effective management, high aspirations for all pupils and good teaching are essential ingredients in their success.

.

Each Academy is unique. Because of the programme's focus on fitting each Academy to its community and circumstances, the success of Academies has been sustained as the programme has expanded and there is every reason to believe that this will continue to be the case."

32. Then, under the heading "Transforming Educational Opportunity", this is said, among other things:

"Evidence shows that Academies are bringing about strong and sustained improvements in pupil attainment and behaviour. They are also creating a culture shift in ethos and expectations. Where Academies replace highly challenging schools, it will inevitably take time to transform standards, but almost all Academies are demonstrating good year on year improvement."

There is then reference to what is called "key achievements", appearing from the National Audit Office (NAO) executive summary. Then, a little later on, under the heading "Sponsors", the following is, among other things, said:

"Sponsors challenge traditional thinking on how schools are run and what they should be like for students. They seek to make a complete break with cultures of low aspiration which afflict too many communities and their schools. We want this to happen, and it is why we entrust the governance of Academies to them."

33. That document, among other matters, informed the cabinet report dated 9th July 2007 prepared by Mr Steve Farnsworth, the Director of Schools and Learning, which concluded at that time that:

"... of the five potential options available, Academy status has the most potential both for the sustained raising of standards and the preservation of diversity of choice for parents, particularly those seeking non-denominational places [see paragraph 4.2]."

That report in turn was before the cabinet when, on 9th July 2007, it declared that it was minded to pursue Academy status for the school from September 2008, and to plan, accordingly, given:

"... the clear potential for this route to provide strong and decisive leadership and governance in the pursuit of higher pupil attainment, and the opportunity this status provides to secure diversity and choice through the preservation of a non-denominational, non-selective admissions policy." [see paragraph 4.10 under the heading "Reason for Decision]

34. Secondly, as a general matter, I have been impressed by the level of care taken by the Council at each stage of the decision-making process. I have already referred to the report of Mr Farnsworth of 9th July 2007 that informed the decision in principle to move to academy status. This report considered at length the five key criteria relating to the improvement of standards, the securing of appropriate admissions, the development of choice and the organisational improvement and aspirational potential of the academy option, as well as the financial, legal and other implications of the suggested move to academy status. On 15th October 2007, the cabinet progressed the procedure by deciding in principle that Future should be the sponsor and that statutory consultation on closure should be initiated. Again, the further report of Mr Farnsworth, dated 15th October 2007, shows in some detail how, against the five key criteria referred to above, Future of the final candidates was considered best placed to be sponsor. That report annexed a draft expression of interest that, following discussion and collaboration, had been secured from Future, dealing with some particularity with, among other things, admission, special educational needs and vision for the school's future.
35. On 3rd January 2008, the executive decision was taken to proceed with statutory notices proposing the closure of the school. This decision was taken with the benefit of a further report, dated 18th December 2007, from Mr Farnsworth, who had analysed at some length the consultation responses, noting in particular concerns about admissions and the suitability of the sponsor. The decision to close was then taken on 17th March 2008. This decision was informed by a final 29 page report, prepared by Mr Farnsworth, dated 17th March 2008 but released on 7th March 2008. The report noted that, since the approval by the DCSF in December 2007 of the expression of interest, Future had moved forward to the feasibility stage, where a sponsor is asked by the DCSF to choose an approved project management company to assist and carry out further consultation with parents and pupils, develop curriculum and business plans, liaise with the DCSF and the local authority and support the recruitment of key staff. Mr Farnsworth reported that Future had been very active, among other things, selecting a principal designate and beginning work on a full prospectus, the outline of which Mr Farnsworth set out at some length at paragraph 2.8 of the report.
36. The report also analysed the representations received after the publication of statutory notices, including any received after the statutory period ended on 15th February 2008 and indicated that any further representations made before the cabinet meeting on 17th March, when a final decision would be taken, would be taken into account at the meeting itself, as in the event occurred. Appendix 2 of this report contained a draft written agreement between the Council and Future in the form of a memorandum of understanding ("MOU"), the particulars of which I shall shortly consider in more detail.
37. At paragraph 2.11 of this final report, Mr Farnsworth concluded:

"At this point in the process in the creation of a potential academy, it is possible for Members [that is of the Council] to have confidence in the preparations and capacity of the proposed sponsor to lead the project and deliver enhanced educational opportunity for the Pimlico pupils and parents. The Secretary of State will be considering the range and depth of the sponsor's proposals as part of his judgement on the award of a Funding Agreement."

38. Against that background, I turn to consider the three specific criticisms made by the claimant of the nature and quality of the information before the Council upon which it relied in taking the decision to close the school. These criticisms concern the issues of future governance, admission policy and curriculum.

Governance

39. The key point regarding governance was that, under the permissible regime for academies, the sponsor directly or indirectly controlled the governing body of the school and so had a dominant influence, subject to any applicable legislative constraints, upon the policies pursued by the school. Indeed, this control and dominant influence was seen by some, including the DCSF, as a positive virtue of academies in general. The Council recognised this key point at an early stage in the decision-making. The prospectus, which was, as I have already explained, annexed to the cabinet report of 9th July 2007 said this, among other things, about the governance of academies. Under the heading "Governance" it is said:

"In order to determine the ethos and leadership of the Academy, and ensure clear responsibility and accountability, the private sector or charitable sponsor always appoints the majority of the governors. This is the case even when a local authority is acting as a co-sponsor for wider purposes. The number of governors on an Academy governing body is not prescribed, but the expectation is for the body to be relatively small."

40. Even at an earlier stage, at appendix 3b to the Committee report of 6th June 2007, in a table headed "constitution of secondary school governing bodies", the composition of the governing body of community schools (with mandatory and minimum representation of parents, staff, local authority and community) was contrasted with the constitution of academy governing bodies, which was not determined by legislation and where, as a matter of policy, sponsors appointed a majority of governors, although in practice academics had least one elected parent governor.
41. It was therefore clear to the Council that, whatever sponsor was chosen, that sponsor would be entitled to control the governing body of the school and was, for reasons considered valid by some involved in the formulation of education policy, practically certain to do so.
42. That proved the case.in the cabinet report of 15th October 2007, that informed the decision in principle to move forward with Future as the chosen sponsor, Mr Farnsworth said this at page 15 of the report:

"The Academy's governing body will seek to demonstrate the Academy's ethos both through its membership and its dynamic governance of the Academy. The Sponsor intends that there will be strong representation secured from the local community and business, as well as parent and staff representation. The Academy will appoint an outstanding Principal who will work with a strong team of staff to develop and implement the Sponsor's vision."

43. In short, the issue of governance did not involve further information. The Council had all the information that was needed. The issued called for the exercise of judgment: would the Council propose academy status for the School, recognising that the sponsor would control the governing body, in sharp contrast to the constitution of a community school? Of course, such control carries risk and certain consultees were not slow to draw attention to such risks but, as I have said, some involved with education believe that the rewards may well be expected to outweigh the risks, if a suitable sponsor is selected. The Council had to weigh these risks and rewards, as it in fact did, taking account of the present position of the School and the potential benefits that academy status under the control of this particular sponsor could be expected to bring.
44. Certain consultees disagreed strongly with the Council's assessment, but in my judgment that assessment was in no way legally flawed by the nature and quality of the information regarding the essential character of the future governance of the School as an academy controlled by Future as sponsor.

Admissions

45. It is very clear from all the documents to which I have referred that a critical issue for the Council in the decision-making process was that, if the School were to become an Academy, the chosen sponsor would adopt and follow an admission policy in line with that which currently characterised the school. A good illustration is found at paragraph 2.7 of the cabinet report of 15th October 2007, that informed the decision in principle to move forward with Future as the chosen sponsor, where it is said:

"Future has stated its willingness to commit to the key criteria which the Overview and Scrutiny Committee set out and Cabinet affirmed in its July 9th report:

• the school will remain a community school in ethos, if not in designation, with a non-denominational and comprehensive admissions policy predicated on the needs of its locality.

• the school will adopt admissions criteria consistent with Westminster's Community Schools admissions criteria and abide by the Hard to Place Pupils protocol."

46. The essence of the School's admission policy was that it was comprehensive and non-selective by reference to academic ability, subject to ten per cent of the annual intake being reserved to those with special musical aptitude, an intake that on the evidence tended in the event to comprise higher than average achievers. Places were first allocated to children with statements of Special Educational Needs, which named the school with the agreement of Westminster Local Authority. Places were then offered in a ranked order of preference by reference to whether the child was in public care; whether the child had exceptional medical, social or other need that could only be met by placement at the School; whether the child had a sibling at the School; and finally by reference to how closely the child lived to the School. Other than for the ten per cent already mentioned, there was currently no testing of academic or other skills-based ability.
47. However, on this latter aspect it is important to bear in mind a further consideration. School admission for, among others, community schools are governed by Part III chapter 1 of the School Standards and Framework Act 1998, and under section 84, headed "Code of Practice (for school admissions)", the Secretary of State is obliged to issue a code for school admissions. The current code at paragraph 1.48 refers to section 39 of the 2006 Act, which prohibits the introduction of any new selection by ability other than for banding or for sixth forms. Paragraphs 2.77 to 2.79 of the Code then deals with banding in the following terms:

"2.77. Banding, like other oversubscription criteria, only operates when the number of applications exceeds the number of places. Schools which use banding must not apply another test of ability once applicants are allocated to bands; they must not give priority within bands according to performance in the test. The admission authority must apply its other oversubscription criteria (such as random allocation) to each band to allocate places.

2.78. Banding is permitted by section 101 of the School Standards and Framework Act 1998, as amended by section 54 of the Education and Inspections Act 2006. The Education and Inspections Act 2006 removed the need for approval of statutory proposals before the introduction of banding arrangements, and this can now be done as part of the annual admissions consultation process.

2.79. Pupil ability banding is used by some admission authorities to ensure that their intake includes a proportionate spread of children of different abilities. Banding arrangements are good practice, provided the arrangements are fair, objective and not used as a means of unlawfully admitting a disproportionate number of high ability children."

48. Three points emerge from this. First, any community school may lawfully adopt banding. Second, banding is an oversubscription criterion. Third, banding can facilitate the aim of ensuring in an oversubscribed situation a proportionate spread of children of different abilities. The expression of interest, to which I have referred, is attached to and relied upon in the cabinet report of 15th October 2007, a report that informed the decision in principle to move forward with Future as sponsor. The expression of interest was therefore available to consultees in the consultation process leading to the decision to publish the statutory closure notice. The relevant question in the expression of interest is as follows:

"Please provide any further details known about the proposed oversubscription criteria and admission policy. In particular, how the policy will lead to a balanced intake and whether fair banding will be considered."

The answer began with this statement:

"During Feasibility, the Sponsors will work with the Local Authority to define the admissions policy for the Academy within the overall framework being developed for the City, as part of BSF planning.

The basis for this definition will be the following criteria..."

There was then set out the existing admission criteria for the school, to which I have referred and which did not include banding as an oversubscription criterion. After that description came the following statement:

"The Sponsor and Local Authority are of the view that this policy would facilitate a balanced intake without the need for banding. The tests related to banding can add considerable stress for parents and students going through the already complex secondary admissions process in London as well as incurring significant expense for the academy.

It is [a] condition of the Local Authority support for the Academy proposal that the admissions policy will be agreed with the Local Authority in the Feasibility stage and that the issue of all-ability intake, on which the Council and the Sponsor are entirely agreed, is resolved satisfactorily with the DCSF in the form of long-term agreements during the Feasibility stage, either through conditions of lease or a binding Memorandum of Understanding."

49. On the basis of this contemporary material, it seems to me that at the time of the expression of interest it was not the intention of Future to introduce banding as an oversubscription criteria. However, in evaluating that expression of interest, it is important to bear in mind the background and the stage in the process at which the intention was expressed. The background I have explained. According to the code, banding was permissible and could in the oversubscription situation positively contribute to securing a balanced intake of pupils of all abilities. The language of the expression of interest made clear that the admissions policy as set out would be subject to future agreement.
50. Against this special background and the prospect of future agreement, it seems to me that an informed reader would appreciate that what was said on banding was not necessarily cast in stone and that the possibility could not be ruled out that, as part of the procedure leading to future agreement, there might be some modification to what on its face appeared an unqualified position on banding. In any event, as I have earlier explained, by the time the final decision to close was taken in March 2008, the Council and Future had agreed upon the draft of the Memorandum of Understanding. Paragraph 5 and 6 of the draft MOU stated:

"5. The admission policy for the Academy shall be governed by the statutory Admissions Code for the time being in force but subject thereto the principles underlying the admissions policy for the Academy will ensure that places at the Academy will not be allocated to pupils:

5.1 in accordance with any faith-based requirements; or

5.2 (except in the event that fair banding should be applied) in accordance with academic ability.

6. The admissions criteria applicable to admissions to Year 7 for the academic year starting in September 2008 will be those set out in Annex 1 to this document."

51. Annex 1 and 2 of the draft MOU in effect set out the current admissions criteria that were, as seen, adopted in the expression of interest. In my view, the draft MOU did represent a shift in position but not a fundamental one. Banding, as described in and endorsed by the Code, was not now ruled out as an over-subscription criterion. However, there was nothing to indicate that banding would be introduced in the near future or without consultation. On the contrary, the admission criteria for September 2008 made no mention of banding nor did the criteria for 2009 and subsequent years, criteria which were expressed to be binding unless otherwise agreed by, among others, the Council. In short, banding was far from an immediate possibility and was one that could not be introduced unilaterally by Future.
52. I have set out at some length the nature of the information that was before the Council in respect of admissions. The Council took considerable pains to ensure that Future, as the chosen sponsor, fully understood and accepted the schools current admissions policy, subject to the limited qualification regarding banding that I have explained. In my judgment, there is no basis whatsoever for the contention that the nature and quality of that information disabled the Council from taking a rational decision to close the existing school and to move to academy status with Future as sponsor, taking account of the relevant statutory objectives and guidance.
53. As to curriculum, it is well understood that academies are not bound rigidly to the National Curriculum. On this topic, the prospectus states, under the heading "Transforming Educational Opportunity":

"Subject specialisms

The specialist schools programme has demonstrated the positive effect that specialist centres of excellence can have on a school's performance. All academies have at least one specialism.

Each sponsor agrees with the Department which specialism or specialisms their Academy will adopt. Sponsors and their principals are rightly focused on transforming achievement in English and Maths and other core curriculum subjects as their overriding priority. Normal practice is for at least one of an Academy's specialisms to be in a core curriculum area, for example Maths, Science or Modern Foreign Languages. Other common specialisms include Business and Enterprise and Sport. Many Academies have two specialisms, but this decision lies with the sponsors."

54. At the expression of interest stage, Future stated that visual and performing arts would be one specialism and that the second would be history, maths or science. By the time of the final decision, it had opted for history. More generally, it said this about the proposed curriculum in the expression of interest:

"Within Key Stage 3 all students will follow a broad range of core and foundation subjects - to guarantee a sound basis for making informed choices later in Key Stage 4. The main focus of the curriculum will be to develop literacy and numeracy skills to provide access to essential areas of knowledge and understanding. It is intended that students will have individualised learning plans incorporating challenging targets which they own and understand. In a culture of high expectation, success and achievement, they will be given the responsibility and opportunity to achieve or surpass their targets both in school time and out of hours. Key Stage 3 will also be characterised by the use of 'accelerated' programmes - to challenge and progress those students whose levels of achievement are ahead of expected norms.

At Key Stage 4, the Academy will offer both academic and vocational pathways and will play an active [role] within the City in determining with local schools and colleges the choice and provision of appropriate Diplomas to be made available to all pupils by 2013. High performance in core subjects will be a particular early priority of the sponsor in KS4 and these subjects will remain a vital element of all students' study at GCSE level. The Academy will develop leading practice in its support for vocational provision once its future specialism are fully determined though the Feasibility process.

The Academy Sixth Form will be designed with a key focus on academic qualifications and vocational programmes in the Academy's areas of specialism. The detail of the post-16 programmes will be developed during Feasibility in close dialogue with the LSC and the local authority and the Sponsor intends to expand the range of provision and its links with other providers as the Academy develops."

In my view, these indications and the expressed intention as regards specialisms gave the Council sufficient information regarding a likely future curriculum upon which it could reach a rational decision on closure.

55. In connection with this ground, the claimant also argues in a general way that, absent a draft funding agreement or similar document, the Council could not have sufficient confidence in the reliability of information provided by Future, in particular as regards its stated intentions, so as to reach a rational decision on closure. However, it was for the Council to determine how much reliance it could put upon the relevant information and upon Future's stated intentions. The documents to which I have referred showed that the Council took care to assess Future as a prospective sponsor and to evaluate the information that Future provided, including statements about future intentions.
56. There is nothing in those documents or the evidence more generally to show that no rational council could have relied upon the information or made the judgment that formed the basis of the challenged decision. I have already explained how Future modified the expression of interest in respect of banding but, taking account in particular of the background to and the context in which that modification occurred, that matter falls a very long way short of carrying the argument here advanced by the claimant. Of course, some consultees took a different view from that of the Council about Future and about how much reliance could be placed upon its stated intentions. However, for reasons already given, the court must be very cautious to confine itself to reviewing whether the Council had a rational basis for giving the weight that it did to the relevant information, and not to be drawn into a political debate as to whether the views on this issue of some consultees might be superior to the considered determination of the body to whom Parliament has entrusted the decision.

Consultation

57. It is well established that consultation must satisfy the basic requirements of procedural fairness. What is required has been stated must succinctly by Lord Woolf MR:

"To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken." [R v North and East Devon Health Authority, Ex parte Coughlan [2001] QB 213 at page 258]

58. The claimant contends that in this case consultees lacked sufficient and reliable information in respect of governance, admissions and curriculum to give intelligent consideration of, and an intelligent response to, the proposals in question.
59. However, I have explained at some length the nature and quality of the information, regarding in particular governance, admission and curriculum, upon which the Council, as I have found, reached a rational decision to close the school. All the documents to which I have referred and the relevant information in them were in the public domain and available to consultees. Consultees could have been in no doubt about, first, what was proposed; second, the information upon which the Council relied in respect of governance, admissions and curriculum and, third, the reasons for the decision. For example, as to governance, the consultees had access to the prospectus and the table in appendix 3B to the Committee report of 6th June 2007, and the statements of intent of Future referred to in the Council report of 15th October 2007. As to admissions, the expression of interest set out the position comprehensively, subject only to the later modification on banding. As to curriculum, there was the prospectus and the information in the expression of interest that I quoted earlier.
60. In my view, the information not only enabled the Council to take a rational decision on closure but also enabled the consultees to give an intelligent consideration of, and an intelligent response to, the proposal to close the school. Consultees knew that Future would control the governing body of the school, knew what admissions policy Future was minded to pursue, subject to the later modification on banding, and knew in broad but sufficient terms what kind of curriculum it was likely to adopt, including the specialisms of performance and visual art and either history, maths or science. It is nearly always possible to have further detail on any subject. Some consultees wished to have more detail on the matters mentioned and even criticised the Council for not giving further detail as part of the consultation. However, the test is not whether further detail could have been given but whether consultees had sufficient information regarding governance, admission and curriculum to give intelligent consideration of, and intelligent response to, the proposals in those respects. In my judgment, the consultees manifestly had such information.
61. It is necessary in this context to add a specific observation about banding. I have found that the modification regarding banding was significant. It was also made after the statutory period of consultation leading to the publication of the closure notice had ended. The question is whether the modification vitiated the consultation procedure. Silber J was faced with a similar question in R (Smith) v East Kent National Health Service Trust [2002] EWHC 2640 (Admin) and, after deliberate consideration of the authorities, he concluded at paragraph 45 that the test was whether a later change in the proposal was fundamental. If it was, the consultation was flawed and there would need to be further consultation before a lawful decision could be taken.
62. Given the context, and the underlying principle of fairness that governs the caselaw on consultation, it seems to me that a fundamental change is a change of such a kind that it would be conspicuously unfair for the decision-maker to proceed without having given consultees a further opportunity to make representations about the proposal as so changed. In this case, the change was not fundamental in the relevant sense. First, banding is permissible under the Code and is there endorsed as promoting in an oversubscribed situation the key objective of securing a balanced intake of pupils of all abilities. That is the centre piece of the School's current admissions policy and would remain the centre piece following the draft MOU, which otherwise comprehensively adopts the school's current admissions criteria. Secondly, there is no suggestion in the draft MOU that banding would occur in the near future. On the contrary, according to the MOU, the admission criteria for September 2008 and for subsequent years would remain as they currently are unless the Council, amongst others, agreed to any modification. Thirdly, banding was not to depend on Future's unilateral choice. Finally, for the reasons given earlier, this was a particular modification that was not definitively ruled out by the expression of interest, taking account of the background and context, and was not one that was wholly unforeseeable in all the circumstances.
63. In my judgment, the consultees had a fair opportunity to comment on the admission criteria, even if at the relevant time they did not know that Future would in fact modify those criteria to allow for the possibility of banding, but would modify them only as part of the proposed central objective of securing a balanced intake of pupils of all abilities, without contemplating immediate or unilateral introduction.
64. Finally on the issue of consultation, it is useful to consider what the consequences would be in this case if the claimant were right and the Council had been obliged to furnish to consultees, during the consultation period, particulars of a draft funding agreement or similar document. It would mean that the Council could not lawfully have taken the decision to publish a statutory closure notice without having before it such a draft or equivalent document. However, I have already held that, in the absence of a draft funding agreement or equivalent document, and taking account of the extensive information that it did have, the Council took a lawful decision of substance to publish the statutory closure notice. If the claimant were right, the obligation arising from consultation would impose a serious fetter upon the ability of the Council to take decisions that were otherwise rational, proportionate and justified. In all cases where closure of a school was proposed with a view to replacement by an academy, the process would need to be advanced to the point where there was in existence a draft funding agreement or equivalent document. In my view, the relevant legislation did not intend to create a condition precedent of this nature to the exercise of the Council's power to publish a closure notice, for the reasons already stated. These further considerations reinforce my conclusion that the claimant's case regarding consultation is misconceived both in principle and in substance.
65. In the light of my findings on the question of banding, it is unnecessary for me to consider whether, if the draft MOU had represented a fundamental change, the availability of the MOU from 7th March 2008 to the meeting on 17th March 2008, when the final decision was taken, would have provided a sufficient opportunity for consultees intelligently to consider and respond to the change. I would simply say on this point that I would seriously doubt whether, if a change were indeed fundamental, such a short period for consideration and response, particularly if consultees were not specifically and emphatically alerted to such fundamental change, would be sufficient.

Delay

66. In the light of my conclusion on the substance, it is strictly unnecessary for me to deal with the issue of delay. In any event, I approach this issue with some caution, for there is considerable merit in the points made by each side. Mr Kerr QC, who appeared for the Council, contends that the application is out of time. The challenge, whether to the substance of the decision or to the adequacy of the consultation, amounts to an attack on the publication of the statutory closure notice. The claimant is alleging that the Council did not at the time have sufficient information to justify the decision to publish the notice, or that the Council did not provide sufficient information to consultees, so that they could understand and comment upon the proposals that formed the subject of the statutory closure notice.
67. In particular, as regards consultation, item 3 of the published notice contained a statement by the Council that all statutory consultation requirements had been met, a statement which, on the claimant's case, was incorrect and a legally flawed basis upon which to proceed to a decision to close the school. Furthermore, in R v Secretary of State for Education ex parte Bandtock [2001] ELR 333, Collins J had held in a not dissimilar case that time began to run from the date when the process became allegedly fatally flawed, that is, in the present case either on 18th December 2007, the date of the decision to issue the statutory closure notice, or on 3rd January 2008, the date of the publication of the statutory notice.
68. Mr Wolfe, for the claimant, argues first that Bandtock is distinguishable. In that case, there were two decision-makers, the local authority and the Secretary of State, and, although the Secretary of State could in theory have re-evaluated the adequacy of consultation in the period following the publication of the notice, it was in practice unlikely that he would do so, and he might have some difficulty or reluctance in seeking to correct, by his own action, the alleged earlier failures of a different body. In this case, the decision-maker is the same throughout and is therefore better placed to respond to alleged deficiencies in its consultation procedures. Furthermore, his position is supported, albeit in a different context, by the later judgment of the House of Lords reversing the Court of Appeal and the learned judge at first instance, in R (Burkett) v Hammersmith and Fulham Borough Council [2002] UKHL 23; [2004] 1 WLR 1593, where it was held that for the purposes of RSC order 53 and CPR Rule 54.5(1), the grounds of application or claim in relation to an application for judicial review of the grant of planning permission first arose on the date when permission was actually granted.
69. As regards Mr Wolfe's reliance on Burkett, there appear to me to be certain differences in context. Lord Steyn, giving the principal speech in their Lordships house, held that compelling reasons of policy pointed to the result that he had reached. First, the provisional decision to grant permission had no legal effect. It was the grant of permission itself which gave rise to legal rights and duties; see paragraph 39 of Lord Steyn's speech. In this case, the publication of the statutory closure notice is a formal and important step in the proceedings leading to a decision to close and is the culmination of a stage, having its own recognised statutory code and procedure. Furthermore, in a case where closure is intended to be a forerunner to academy status, it can reasonably be expected that the parties centrally concerned in the process will, after the publication of the closure notice, commit time and resources to further work on the project, a further commitment that would be pointless and wasteful if the procedure was clearly fatally flawed. Mr Wolfe suggested that there would be no prejudice because ex hypothesi public funds had become available at the feasibility stage and Mr Moffett, who appeared for the Secretary of State, appeared relaxed about their potential wasted dissipation. I did not interpret Mr Moffett, in his economical but nonetheless forceful submissions, to be concurring with the absence of prejudice, but it is in any event self evident that it is not in the public interest that either taxpayers' money should be spent on what may turn out, on subsequent legal challenge, to be a doomed venture or that sponsors should incur the opportunity cost of committing their own management time and other resources to such a venture. However, in Burkett, Lord Steyn did also refer to the cost burden upon a litigant if proceedings are begun prematurely, and, in the event, unnecessarily; and to the general policy of the law that procedural rules should not discourage the resolution of disputes by negotiation and should not propel the parties into litigation; see paragraphs 50 and 53 of Lord Steyn's speech. This is clearly a very important factor, particularly given the current pressures on the court.
70. Ultimately, I see decisive force in Mr Wolfe's submission that here, unlike in Bandtock, the decision-maker is the same and is uniquely well placed to respond to criticism of the procedures leading to the publication of the statutory closure notice. For example, in this case the Council would have had a real opportunity if, on reconsideration, it had thought that it should do so, to furnish consultees with more information regarding governance, admission or curriculum, shortly after publication of the statutory closure notice and in time for them to consider as part of the post notice consultation. Such steps may well in other cases obviate the need for litigation. I accept that this would extend the period of uncertainty with the consequences referred to earlier. However, if I had to decide this issue, I would in the end be most influenced in this context by the third of the policy reasons relied upon by Lord Steyn in Burkett, the desirability of curtailing premature challenges and of encouraging negotiation rather than litigation, and would have not ruled the application out of time. However, I find that the application fails on the substance. My reasons are basically the same as those given by Cranston J when he determined the application on the papers and I therefore have no good reason to disturb his considered order refusing permission in this case.
71. MR WOLFE: My Lord, I am obliged. Can I deal with some consequential matters, if I may?
72. The first one is costs. Can I ask for an order that the claimant's publicly funded costs be subject to detailed assessment. I imagine it is uncontroversial and, secondly, my Lord, I do seek permission from the court for permission to appeal against the substance of my Lord's judgment, not the delay point, because that has gone in our favour. I do not know if my Lord wants me to expand on the basis for that or pause for a moment and see what else needs to be dealt with.
73. KENNETH PARKER QC: Well, I have taken a very firm view on this matter and I see no reasonable realistic prospects of success on an appeal and no other reason why I should grant permission.
74. MR WOLFE: Can I seek to address those points? I know my Lord has expressed a view. Firstly, on the prospects of success, my Lord has not dealt with the balance of Wilkie J's judgment, where he analyses the guidance requirements to consider standards, and my Lord will recall his explanation of how consideration of those matters required evaluation of the draft funding agreement. My Lord, in relation to the consultation matters, my submission, my Lord, is that my Lord's judgment in effect comes down to saying that, as long as consultees know how ignorant they are, they are entitled to express a view on that. In my submission that is not an answer. My Lord, whatever the --
75. KENNETH PARKER QC: With respect, I think that is rather a caricature of what I have just done.
76. MR WOLFE: My Lord, whatever the rights and wrongs of that, my Lord will appreciate that this is a case where there are -- indeed, as my Lord indicates, many other instances of academy proposals coming forward, not necessarily precisely on this structure of an existent school being closed in favour of another one but often in that situation and, my Lord, there is a wider public interest and therefore a further compelling reason in relation to the proper evaluation of what my Lord has dealt with, albeit very fully at first instance, by the Court of Appeal in order that these matters are properly dealt with once and for all by the Court of Appeal and in my submissions there is a tension, at least, between what my Lord said and what Wilkie J said. So even if not for prospects of success reasons, and I appreciate I am against a fairly closed door, for further compelling reasons reasons, if I can put it that way, I would seek permission to appeal.
77. KENNETH PARKER QC: Well, I hear what you say but I remain of the view in this case that there is no realistic prospect and there is no other good reason why I should give permission and therefore you must convince the Court of Appeal.
78. MS STEYN: My Lord, first I would seek costs on the usual lottery order basis, not to be assessed. Secondly, as far as permission is concerned, given that your Lordship has refused permission to apply for judicial review, the ordinary time limit within which the claimant would need to seek leave would be seven days. In this case, I would ask that that should be abridged so that the application notice should be put in by 4.00pm on Friday. Given the very great need for expedition in this case and for certainly, I would submit it would be appropriate to abridge time.
79. MR WOLFE: My Lord, I do not have a problem in principle with the abridgment of time. If I can just qualify that slightly though, because my Lord will appreciate that the claimant is publicly funded in this matter. There will be no difficulty from the lawyers' point of view of complying with what Ms Steyn suggests but it may be that the Legal Aid Board, the Legal Services Commission, would not turn round the necessary application for further funding by that point. I have no difficulty with undertaking that the application be made immediately and sought to be processed on a fully expedited basis by the LSE. Well, my Lord, it would be inappropriate to put the claimant in a position where she is in effect forced to kick off proceedings without funding and, more particularly, unprotected in the way that legal aid gives her. So, my Lord, as I say, I do not have a difficulty with the principal of the drafting being done by the lawyers in that time scale, but, my Lord, if the claimant's application for public funding has not been determined by Friday 4.00pm, if that is the suggested time, my Lord, in my submission that cannot be a proper guillotine. He will do our best but, my Lord, that would be the best way to deal with it, in my submission.
80. KENNETH PARKER QC: Well, I think I shall not abridge time in this case. I will give you your normal seven days.
81. MR WOLFE: I am grateful. My Lord, I do not, just to deal with the further matter Ms Steyn raises, say anything about the costs order, at least in favour of the Westminster Council. Obviously I cannot resist the principle of that but of course the claimant has the usual statutory protection, which does not concern my Lord immediately.
82. KENNETH PARKER QC: Yes. Well, the defendant is entitled to its costs.
83. MR WOLFE: My Lord, there is a further related matter which comes out of the question of appeal, which my Lord will have seen -- we did not specifically draw attention to it in the course of hearing -- that, in the context of Stadlen J's order, the other parties had each, with their different roles in the process, undertaken to take no further steps to implement their various roles in the process up until this determination. My Lord, obviously that undertaking now comes to an end as of this morning. Clearly, in terms of the process hereon in, I cannot extract an undertaking from the other parties, nor can this court bind the Court of Appeal to any particular timetable -- but, my Lord, I would either seek this, that my Lord makes an order which extends the effect of the undertaking, because otherwise we will be in a position where the status quo is not preserved and any future claim the claimant may make will be prejudiced potentially by the taking of further steps, or, at the very least, my Lord gives as firm an indication as is possible that any appeal is dealt with on an expedited basis by the Court of Appeal, appreciating, as I do immediately, that my Lord can bind the Court of Appeal's process, but noises from my Lord will be of great assistance in that regard, and, related to that, that the transcript of my Lord's judgment is made available, again on an expedited basis, because that is plainly in effect a necessary precondition to an appeal as properly formulated. We have obviously taken as full a note as we can but my Lord's judgment was fast and dense, if I can put it that way, and a judgment is necessary.
84. MR MOFFETT: My Lord, in relation to an undertaking, it is true that the Secretary of State gave an undertaking. In fact, it expired, I think, on Saturday. That may have been an accidental result of the date that was picked. My instructions are that the Secretary of State would not be willing to give a further undertaking and we would very firmly submit that the court should make no order. Firstly, your Lordship has found that the application is effectively unarguable. That is essentially the consequence of your Lordship refusing permission. Where an application is unarguable, certainly we would say no interim relief should be granted. Secondly, your Lordship heard at some length at the end of last week, on Friday, about the difficulties that are inherent in effectively staying the process of setting the academy up any further and, thirdly, of course, if the Secretary of State does proceed to take any steps and the Court of Appeal subsequently finds that be the case, that all of this was unlawful, that is at the Secretary of State's own risk. So, my Lord, for those reasons we very strongly urge your Lordship not to grant such an order.
85. KENNETH PARKER QC: Yes.
86. MR MCKENDRICK: My Lord, I do not know if you want submissions in relation to this issue. I understand my client's undertakings ran out on 9th March, expired on 9th May, and not been updated since then. The senior management team which are currently in place have very little time between now and the end of the school term to take the necessary steps, and they are fairly enormous steps, my Lord, to ensure that the academy is up and running by 1st September. Your Lordship may have been taken to a witness statement of Mr John Nash last week, during the substantive submissions made. They made out in some detail the very detailed steps that have to be taken by my client regarding various administrative management functions and that, if there was any continuation of an undertaking or any further order in relation to limiting what steps we have taken, would have been deeply prejudicial in relation to Future's ability to have an academy in the terms that they consider appropriate up and running by 1st September, which ultimately would be deeply prejudicial to the education of the children who will attend at that school from 1st September, my Lord.
87. KENNETH PARKER QC: Yes.
88. MS STEYN: My Lord, the Council have not given any undertakings previously and I assume none are sought of us.
89. MR WOLFE: My Lord, I am not sure where my learned friends are getting their observations about undertakings from. If one looks at bundle 1, page 36(60), it is the order of Stadlen J.
90. KENNETH PARKER QC: Which page is it?
91. MR WOLFE: Page 36(60). In each case certainly Westminster Council has given an undertaking. It is the first limb, the first paragraph there, and in relation to the interested parties they are dealt with in the second and third paragraphs there, and in each case there is an alternative formulation which is a date, and my learned friends are right about the dates, and or until this matter be determined by the court, which is plainly today.
92. MR MOFFETT: My Lord, with respect, the important section is the final wording, whichever is the earlier, and the date was the earlier.
93. KENNETH PARKER QC: Right. Well, I am not going to make any order for stay following this judgment. Firstly, I have decided that these grounds are not properly arguable in refusing permission and another judge of this court on the papers, Cranston J, also reached that judgment. Secondly, it seems to me that, on the balance of convenience, the progress of the procedures towards the establishment of the academy should continue and that, insofar as steps may be taken that may not then be effective, that will be at the risk of Future and the Secretary of State.
94. However, it seems to me, and I observed this on Friday at the hearing, that any uncertainty about the legality should be resolved as soon as possible and therefore I would indicate, firstly, that the transcript of the judgment be prepared with expedition and that any application for permission to appeal should also be considered expeditiously and any appeal should be heard expeditiously as well. Of course, I cannot control at all what the Court of Appeal may be minded to do and that is based on my own assessment of matters on the ground, as they appear to me at the moment.