Bradbury v Enfield London Borough Council
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DANCKWERTS,LORD JUSTICE DIPLOCK |
| Judgment Date | 23 August 1967 |
| Judgment citation (vLex) | [1967] EWCA Civ J0823-1 |
| Date | 23 August 1967 |
| Court | Court of Appeal (Civil Division) |
[1967] EWCA Civ J0823-1
The Master of the Rolls
(Lord Denning)
Lord Justice Danckwerts and
Lord Justice Diplock
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
MR. R.E.G. HOWE, Q.C. and MR. C. FAY (instructed by Messrs. Oswald Hickson & Co.) appeared as Counsel for the Appellants.
MR. H.E. FRANCIS, Q.C. and MR. P. MILLETT (instructed by Messrs. T.D. Jones & Co., Agents for Mr. C.E.C.R. Platten, Enfield) appeared as Counsel for the Respondents.
In this case the Council of the London Borough of Enfield propose to change the system of education within the Borough. Several ratepayers object and bring this action to restrain the Council from acting on the proposals.
Hitherto the system of education has been organised into primary education for junior pupils, that is children up to the age of 11 years plus some months; and secondary education for senior pupils, that is children from the age of 12 years to 18 years. At the age of 11 plus, there has been a selection of junior pupils so as to allocate then to various schools for secondary education. They are separated into two groups. The best and brightest pupils are allocated to the grammar schools. These are often old foundations going back to the time of Edward VI. The remaining pupils are allocated to secondary modern schools. These are usually new foundations.
In 1965 the Government decided to end selection at 11-plus and to eliminate the system whereby children were separated into two groups. They decided that for all children there should be a comprehensive system of education, available to all and for all. The Secretary of State accordingly issued a circular dated 12th July 1965 requesting the local education authorities to prepare plans for re-organising secondary education in their areas on comprehensive lines. The circular concluded: "The Government are aware that the complete elimination of selection and separatism in secondary education will take time to achieve. They do not seek to impose destructive or precipitate change on existing schools; they recognize that the evolution of separate schools into a comprehensive system must be a constructive process requiring careful planning by local education authorities in consultation with all those concerned".
In response to this circular many of the local education authorities began to re-organize their system of secondary education. One of then was the Council for the London Borough of Enfield. This is one of the new outer London Boroughs. Itcomprises the former Boroughs of Edmonton, Enfield and Southgate. Formerly the Middlesex County Council was the local education authority. The new Enfield Council took over in April 1965. They prepared a development plan for secondary education within the Borough. On 1st March 1966 they decided to change over to a comprehensive system. They set a target date of September 1967. They sent a circular to parents telling then of the proposal, saying: "In September 1967 there will be no selective admissions. All the children of the 11-plus ago group will enter comprehensive schools".
On 1st June 1966 the Chief Education Officer submitted to the Department of Education detailed proposals covering some 30 existing schools. In several cases it was proposed to amalgamate 2 or 3 existing schools and turn them into a single comprehensive school, but using the existing buildings. In a few cases it was proposed to enlarge existing promises or build new premises so as to accommodate a single comprehensive school.
On 13th December 1966 the Department replied. They said that, in regard to several schools, the proposals were satisfactory and suitable for early implementation. In regard to 4 schools, the proposals would require further examination. But in regard to 9 of the schools they said that the proposals "are not acceptable to the Secretary of State in their present form".
On receipt of that letter of 13th December 1966 the Council must have realised that their project was in peril, and that, unless the difficulties were resolved, they might not be able to put it into effect by September 1967. They got quickly to work. In the next 2 or 3 weeks there were many discussions with the Department. In the result they modified their proposals and on 18th January 1967 the Chief Education Officer submitted revised proposals to the Department.
A week later, on 26th January 1967, the Department replied indicating that the revised proposals were acceptable but giving a reminder to the Council that, under the Statute, publicnotices had to be given before the proposals could be officially approved. The important paragraph said:- "The Secretary of State has now considered these revised proposals and has reached the conclusion that they would, in principle, form an acceptable element in the Authority's general scheme of re-organisation. The Authority will, however, appreciate that any indication of his view at this stage must be without prejudice to his statutory decision under Section 13(4) of the Education Act 1944 where the publication of Notices is required under Section 13(3) of that Act (as amended)". Now comes the important point. The Council in January 1967 duly issued public notices in regard to a number of the schools. Thereafter several persons objected and submitted their objections to the Minister. He considered the objections. On 19th May 1967 he gave his official approval to the proposals for those schools.
But in respect of 8 of the schools, no public notices were given. The Council say that they were advised by the Minister that no notices were required in the case of these 8 schools. Howsoever that may be, the advice of the Minister is not law, and we have to consider whether in those 8 schools notices should have been given.
I pause to say that this is solely a question of law. We are not concerned in this Court with the policy of the Minister or of the Education Authority. Nor have we to consider whether it is a good thing to change from a selective system of education to a comprehensive system. We have only to consider whether the requirements of the law have been fulfilled. I turn therefore to the statutory requirements. I will state shortly their effect, only using the actual words of the Statuses when they are important.
First: On the 1st April 1965, when the Council for the London Borough of Enfield took over responsibility for education, they cane under a duty to "maintain" the existing schools, and not to "cease to maintain" them, except in accordance withSection 13 of the 1944 Act. (See Section 31 (5) of the London Government Act 1963).
Second: When the Council intend to "establish a new" school or to "cease to maintain" an existing school, they are under a duty to submit their proposals to the Minister; and forthwith to give public notice of the proposals in the prescribed manner. Thereupon any 10 Local Government electors can, within 2 months, submit objections to the proposals. The Minister must, I think, consider those objections. After considering them, he may approve them. (See Sections 13(1)(3)(4) of the Education Act 1944).
Third: A local education authority are not to do or undertake to do anything to implement their proposals until they have been approved by the Minister. (Section 13(5) of the Education Act 1944). In particular they continue to be under a duty to maintain an existing school until their proposals to "cease to maintain it" have been approved by the Minister, see Section 13(8) at the end.
The crucial question is as to the meaning of the words "maintain" a "school" in these Statutes. The definitions do not help much but reading them in the light of the various sections, it appears to me that a "school" is an institution which exists independently of the buildings in which it is housed for the time being many a school retained its identity during the war even though it was evacuated to a place 200 miles away. A school is an institution with a character of its own. If an education authority is under a duty to "maintain" a school, it must see that it retains its fundamental character. If the education authority makes a change of a fundamental nature, so much so that anyone would say it was a different school altogether, then it "ceases to maintain" the existing school and "establishes a new school". That is, I think, the effect of the decision of Wilford v. County Council of the Vest Riding of Yorkshire, 1908, 1 King's Bench, at page 683. The question there arose under theEducation Act 1902 under which the local education authority was under a duty to "maintain" and keep efficient all public elementary schools within their area. There was at Garforth a public elementary school for children of all standards from 1 to 7. The County Council gave a direction saying that it was to be confined to children in standards 1 to 3. The result was that in future the school was to be turned into an infants school, and that the older children were to go elsewhere. Mr. Justice Channell held that the effect of the direction was "to alter the whole character of the school", and that it was not legitimate for the authority to give such a direction. He said that: "The result of the defendants' action is, however, a thing which I must look at, and that result seems to me clearly to be to alter the fundamental character of the school".
Applying this test, I do not think that the change in the curriculum of a school of itself alters its fundamental character. Suppose a local...
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