R (Jones) v Ceredigion County Council
| Jurisdiction | England & Wales |
| Judgment Date | 23 May 2007 |
| Neutral Citation | [2007] UKHL 24 |
| Date | 23 May 2007 |
| Court | House of Lords |
[2007] UKHL 24
HOUSE OF LORDS
Appellate Committee
and others (FC)
Appellant:
Andrew Nicol QC
Nicholas Bowen
(Instructed by Russell Jones & Walker)
Respondent:
Nigel Giffin QC
Jane McCafferty
(Instructed by Sharpe Pritchard)
Ordered to Report
The Committee (Lord Bingham of Cornhill, Lord Hoffmann, Lord Scott of Foscote, Lord Mance and Lord Neuberger of Abbotsbury) have met and considered the cause Ceredigion County Council (Respondents) v. Jones (FC) and others (FC) (Appellants). We have heard counsel on behalf of the appellants and respondents.
The following is the considered opinion of the Committee.
This appeal raises a novel problem on the procedure to be adopted on a leapfrog appeal to the House under sections 12 and 13 of the Administration of Justice Act 1969.
The underlying dispute between the parties may be very briefly described. The claimants in the proceedings are children who live in Ceredigion but have at all material times attended a Welsh-speaking school in Pembrokeshire. They travel to the school on a school bus provided by Pembrokeshire. Until 2003 Pembrokeshire provided this service without charge, but in about July 2003 policy changed and Pembrokeshire was only willing that Ceredigion children should travel on its bus if Ceredigion paid. Ceredigion was unwilling to do so but offered the children places at English or Welsh-speaking schools in Ceredigion, to which transport would be provided where necessary. The children and their parents did not wish to change schools. So the parents appealed to a non-statutory panel established by Ceredigion to rule on requests for free school transport. The panel decided that it was reasonable for the children to leave their school in Pembrokeshire and avail themselves of free transport available to a Welsh-speaking school in Ceredigion. Thus the panel upheld Ceredigion's decision not to pay for the Pembrokeshire bus.
The children (by their parents) applied for permission to seek an order quashing the panel decision. Hooper J granted leave and directed the parties to agree the facts and identify the issues for decision. This they did, identifying three such issues. The first issue was directed to the correct construction of sections 509 and 444 of the Education Act 1996. The second issue concerned the correct construction of section 444(4)(b)(iii) of the 1996 Act. The third issue may be ignored, since it plays no part in the history. To succeed in quashing the Ceredigion decision, the claimants had to succeed on both issues. Conversely, Ceredigion would defeat the application to quash if it succeeded on either. But (apart from a supporting declaration) the only relief sought by the claimants was a quashing order, and the issues related to the grounds relied on for doing so.
The application came before Collins J, who gave judgment in favour of the claimants on both issues and held that the decision should be quashed: [2004] EWHC 1376 (Admin), [2004] ELR 506. Following the delivery of judgment, counsel for Ceredigion asked for permission to appeal to the Court of Appeal, which the judge indicated he would grant. Counsel also applied for a certificate under section 12 of the 1969 Act to permit application to be made to the House of Lords for leave to appeal directly to the House.
Under section 12(1) the judge has a discretion to grant a certificate under the section if satisfied that three conditions are met. First, the judge must be satisfied under subsection (3), in relation to a decision of the judge in any proceedings, that a point of law of general public importance is involved in that decision and that that point of law meets the criteria specified in either (a) or (b) of subsection (3) of section 12. Paragraph (b) relates to cases where the judge is bound by a decision of a higher court, and was accepted in this case to be inapplicable. Paragraph (a) applies where the point of law in question "relates wholly or mainly to the construction of an enactment or of a statutory instrument, and has been fully argued in the proceedings and fully considered in the judgment of the judge in the proceedings". Collins J was satisfied that the conditions in subsection (3) and paragraph (a) were met.
Secondly, the judge must be satisfied under section 12(1)(b) that a sufficient case for an appeal to the House of Lords under Part II of the 1969 Act has been made out to justify an application for leave to bring such an appeal. Collins J was satisfied that this condition was met.
Thirdly, the judge must be satisfied under section 12(1)(c) that all parties to the proceedings consent to the grant of a certificate under this section. In this case, after some initial hesitation on the claimants' part, they did.
The judge accordingly ordered on 29 June 2004 (1) that the Ceredigion decision be quashed; (2) that a certificate be granted pursuant to section 12 of the 1969 Act; and (3) that "In the event that leave to appeal to the House of Lords is not granted, [Ceredigion] do have permission to appeal to the Court of Appeal". No criticism is made of the judge's order, which was wholly appropriate. Section 12(5) of the Act provides that no appeal shal lie against the grant or refusal of a certificate under the section: since the parties have to consent before a certificate is granted it is hard to see that an appeal could be mounted against a grant, but the judge's refusal of a certificate is intended to be final. There are some classes of case, specified in section 15, in which section 12 may not be invoked. One of these (in subsection (4)) is "where the decision of the judge, or any order made by him in pursuance of that decision, is made in the exercise of jurisdiction to punish for contempt of court".
Section 13 of the Act lays down certain procedural rules applicable where a certificate is granted under section 12. By subsection (1), at any time within one month from the date on which the certificate was granted, or such extended time as the House may allow, any of the parties to the proceedings may make an application to the House under section 13. Ceredigion timeously submitted a petition, seeking to reverse the conclusion of Collins J on each of the two issues which he had decided against it. Section 13(2), central to this appeal, provides:
"Subject to the following provisions of this section, if on such an application it appears to the House of Lords to be expedient to do so, the House may grant leave for an appeal to be brought directly to the House; and where leave is granted under this section -
(a) no appeal from the decision of the judge to which the certificate relates shall lie to the Court of Appeal, but
(b) an appeal shall lie from that decision to the House of Lords"
Thus where leave is given, the only appeal will be to the House of Lords. Subsection (3) provides that applications under the section shall be determined without a hearing, a procedure which has become routine but was not so in 1969 when the Act was passed. The Judicial Office of the House invited the claimants to lodge objections to the grant of leave to appeal, indicating that in the absence of objections leave would probably be granted,...
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