Meade v Haringey London Borough Council
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE EVELEIGH |
| Judgment Date | 13 March 1979 |
| Judgment citation (vLex) | [1979] EWCA Civ J0313-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 1979 M. No. 618 |
| Date | 13 March 1979 |
[1979] EWCA Civ J0313-3
The Master of The Rolls
(Lord Denning)
Lord Justice Eveleigh and
Sir Stanley Rees
In The Supreme Court of Judicature
Court of Appeal
On Appeal from The High Court of Justice
Chancery Division
GROUP B
(Mr. Justice Goulding)
MR. A. IRVINE. Q.C. and MR. C. CARR (instructed by Messrs. Beale & Co., Solicitors, London) appeared on behalf of the Plaintiff (Appellant).
MR. A. GRANT (instructed by T.P. Neville, Esq., Solicitor, Civic Centre) appeared on behalf of the Defendants (Respondents).
On Monday, the 22nd January, 1979 the caretakers at the schools in Haringey came out on strike. There were very few of them. Only one or two for a school of 500 or 600 children. Their duties were simple enough. To look after the buildings and the heating system. To unblock drains. To lock up at night and open up in the morning. And so forth. Yet by coming out on strike they succeeded in paralysing the educational system of the great London Borough of Haringey. The Borough Council closed over 100 schools for weeks on end. 37,000 children were deprived of the teaching they should have had. They were put back in their examinations and their careers. Some ran loose in the streets while their mothers were out working.
The parents of the children were much upset by all this. They went to their lawyers to see if there was any way to get the schools re-opened. The lawyers looked up the statute and found that it was the duty of the Borough Council under section 8 of the Education Act 1944" to secure that there shall be available for their area sufficient schools for providing full-time education" suitable to the requirements of the pupils. The parents relied on this section. They came to the courts to see if the Borough Council could be compelled to do their duty under it. Mr. Justice Goulding held that the courts were powerless. The only person who could give orders to the Borough Council was the Secretary of State (Mrs. Shirley Williams). She refused to do so. In a letter of the 19th February, 1979 she said that "the Haringey local education authority have not failed to discharge their duty under section 8 of the Education Act 1944".
I am not quite sure what the Secretary of State meant. Ifshe thought that the duty of the Borough Council was only to provide the school buildings and no more, I think she was badly advised on the law. As I read the statute, it was and is the duty of the Borough Council - not only to provide the school buildings - but also to provide the teachers and other staff to run the schools - and furthermore to keep the schools open at all proper times for the education of the children. If the Borough Council were to order the schools to close for a term - or for a half-term - or even for one week, without just cause or excuse, it would be a breach of their statutory duty. If any of the teachers should refuse to do their work, the Borough Council ought to get others to replace them - and not pay the defaulters. Likewise if the caretakers refuse to open the schools - and keep the keys - the Borough Council ought to demand the return of the keys and open up the schools themselves if need be. For this simple reason: It is the statutory duty of the Borough Council to keep the schools open. If they should fail to do so, without just cause or excuse, it is a breach of their statutory duty.
Now here is the point of the case. The Borough Council say that they had just cause or excuse for closing the schools: because they feared that to open them would cause industrial strife or make it worse. Mr. Grant acknowledged before us that they could have opened them. They could have got the keys from the caretakers. They could have got other people to do the work of the caretakers: for got volunteers to do it. But they felt that, if they did so, the trade unions would cause so much trouble that it would make things worse. So they kept the schools closed - until they could get agreement with the unions to call off the strike. In contrast some other London boroughsdid keep their schools open.
To see whether this is a good answer, I propose to go through the history of events as disclosed in the affidavits. It will show that the branch secretaries of the two unions exercised a dominating influence over the Borough Council: and that the closure of the schools was the result of a combination of the unions and the Council acting together.
It started with a letter from the branch secretaries of the National Union of Public Employees and the General and Municipal Workers' Union. It was sent on the 15th January, 1979 to the Chief Education Officer. They virtually ordered the schools to be closed. This is what the letter said:
"Herewith official notification of Strike action by all School Caretakers, Assistants, Reliefs and Cleaners in Charge as from the 22nd January 1979 onwards. All Educational Establishments in Haringey will be closed from that date. We will be advising our Members to maintain minimal custodianship".
The Chief Education Officer obeyed the order. He did it, no doubt, after consultation with the Education Committee. He issued an instruction to all headmasters of all schools that parents should be advised not to send the children to school. He said that teachers should make themselves "technically available" - meaning, I presume, that they should be technically available to teach but should not in fact teach - so that they would get their full pay without doing any work. He added:
"I would strongly advise that no member of any other union or association performs any duty which he/she would not normally perform - specifically that no-one should attempt to open a school".
As the caretakers always opened the schools, this meantthat all schools were to "be closed. That was the order he issued.
Then on the 29th January, 1979 the Council themselves issued a leaflet explaining their position. It showed that the unions had the determining voice in the closure of the schools: and that the Council were in sympathy with the unions and doing as they asked.
"School closure statement.
"Haringey Schools have been closed for the past week because of a strike by caretakers and other manual staff." Last Thursday 25 January the local branches of the National Union of Public Employees and the General and Municipal Workers Union decided to continue their action, and this means that local schools will remain closed for the time being. Their decision has been made official by the unions' head offices.
"The Council believes that the root of the problem is the Government's pay policy, and so the Council supports the unions' pay claim for a £60 minimum wage.
"Other staff have been advised not to broaden the effects of the strike and the Council is doing everything possible to lessen, the impact on those hardest hit by negotiating with the unions involved. The manual workers' action would have been far more widespread but for the Council's good relations with the local unions.
"The Council very much regrets the hardship caused to Haringey parents and children".
In that circular the Borough Council refer to their good relations with the local unions. This is a reference to some concessions which the Council managed to get out of the unions. This is what the Chairman reported to the Education Committee:
"So far our discussions with the unions on strike have produced some positive results:
"(1) I know that minimal custodianship includes acceptance of oil deliveries at schools and, therefore, there should be no danger of heating systems failing or damage because of freezing.
"(2) Two special schools (the Vale School and the William C. Harvey School) have been permitted to open because of the severe nature of handicap suffered by the pupils.
"(3) All Child guidance clinics which do deal with crises and emergencies are now open".
Those concessions were minimal. The vast numbers of normal children were left without any education at all.
These happenings aroused great consternation among parents. They made protests by public demonstrations. Questions were asked in Parliament. They asked the Attorney-General to intervene. They wrote to the Secretary of State for Education on the 30th January and the 11th February: but all they got was this reply many days later on the 19th February, 1979:
"Your letter further requests that the Secretary of State should take action under section 99(1) of the Education Act 1944. This is applicable where there has been a failure to discharge a duty imposed by, or for the purpose of, the Education Acts. After careful consideration of the information at present before her the Secretary of State has concluded that the Haringey local education authority have not failed to discharge their duty under section 8 of the Education Act 1944 to secure that there are available sufficient schools for their area.
More generally, the Secretary of State has on severaloccasions publicly expressed her concern about the interruption of children's education, and her view that local education authorities should keep schools open wherever possible, and that special consideration should he given to the needs of children taking public examinations this year".
Seeing that nothing was done by the executive authorities of Government, the parents appealed to the last resort available to the beleaguered citizen. They appealed to the courts of law. On the 20th February, 1979...
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