R (Luton Borough Council) v Secretary of State for Education
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holman,MR JUSTICE HOLMAN |
| Judgment Date | 11 February 2011 |
| Neutral Citation | [2011] EWHC 217 (Admin),[2011] EWHC 556 (Admin) |
| Docket Number | CO/10428/2010,Case No: CO/10349/2010, CO/10424/2010, CO/10428/2010, CO/10437/2010, CO/1070/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 February 2011 |
[2011] EWHC 217 (Admin)
MR Justice Holman
Case No: CO/10349/2010, CO/10424/2010, CO/10428/2010, CO/10437/2010, CO/1070/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Richard Drabble QC and Mr Daniel Kolinsky (instructed by Addleshaw Goddard) for Luton Borough Council and (instructed by Ward Hadaway) for Nottingham City Council
Miss Jemima Stratfordq QC and Mr Oliver Jones (instructed by London Borough of Waltham Forest Legal Services)
Mr Peter Oldham QC and Mr TOM CROSS (instructed by Dickinson Dees LLP) for London Borough of Newham
Mr Harry Matovu QC and Mr Tony Singla (instructed by Kent County Council Legal and Democratic Services)
Mr Nigel Giffin QC and Ms Rachel Kamm (instructed by Bevan Brittan LLP) for Sandwell Metropolitan Borough Council
Mr James Goudie QC, Mr CLIVE SHELDONandMr ROBIN HOPKINS (instructed by The Treasury Solicitor) for the Secretary of State for Education
Hearing dates: 25th – 28th January 2011
I am very grateful to all the leading and junior counsel and all the solicitors in these combined cases for their thorough preparation and their sustained arguments, to which I pay tribute. The hearing was attended throughout by a considerable number of representatives from all parties, and I would like to thank them all for their close attention and good humour during a case in which, I appreciate, the stakes may be said to be very high.
The essential issue
In 2003 the Department for Education (DfE or "the department" – I ignore the different titles of the department over the period in question) within the then (Labour) government launched a national programme called Building Schools for the Future (BSF). The programme aimed over a fifteen year period from 2005 – 2020 to rebuild or refurbish every secondary school in England, of which there are about 3,500. The estimated overall capital cost increased, and exceeded £50 billion by 2009. By July 2010, 181 schools had benefited from BSF funding of which 98 were new builds. A further 735 were, at more or less advanced stages, in the pipeline for refurbishment/rebuild.
On 12 May 2010, after a general election the previous week, a new, coalition, government was formed. On 5 July 2010 the newly appointed Secretary of State for Education in that government, Mr Michael Gove MP, made a statement in the House of Commons in which he announced that certain projects which were in the pipeline would go ahead; others would be stopped; and, in effect, that the BSF programme, which he criticised in trenchant terms as "a dysfunctional process", would come to an end.
I will, for convenience, call the six claimants Luton, Nottingham, Waltham Forest, Newham, Kent and Sandwell. They all had projects in that pipeline which were stopped or cancelled. They all complain that the decision of 5 July 2010 and/or the decision making process leading up to it was, for a range of reasons, unlawful, at any rate insofar as it affects them, and that the decision should be quashed, insofar as it affects them, and that the Secretary of State should be required to reconsider their projects. Newham also seek an order for reimbursement to them of expenditure which they say they have wasted as a result of the decision.
The cost of the projects (including academies) which were saved and are going ahead following the Secretary of State's decision is of the order of £9 billion. The cancelled or stopped projects affect about 79 local authorities and 735 schools. The total cost of the capital grants "saved" on all the stopped projects is about £7.5 billion. I put the word "saved" in inverted commas because the Secretary of State's decision and statement does not preclude that some of the projects may proceed in the future, but they will not proceed now and as part of the run off of the BSF programme. The claims relate to 58 schools, and if all the projects about which the claimants complain were to be reinstated and carried out, the cost to the department would be of the order of nearly £1 billion. (If Nottingham's 8 "indicative approved" schools, as explained later, are added, the total number of schools would increase to 66 and the cost by a further £60 million.)
All the claimants say, through their leading counsel, that they accept the political decision that cuts and savings had to be made. But they say that other (unidentified) projects should have been stopped rather than theirs; or, in any event, that the line should have been drawn so as to save rather than stop their projects.
Although there are six claimant local authorities, each with their own facts, there is considerable overlap in the way the claims are put. Indeed, leading counsel for the claimants largely divided up the grounds or heads of claim so that only one counsel developed any given common argument. I was grateful for that economy. Nevertheless the case generated about 7,500 pages of documents, complemented by two "core bundles" totalling about 840 pages and a further 460 pages of "court documents". The skeleton arguments, supplemented by various additional notes and written submissions, amounted by the end to about 300 pages. The claimants invoke several of the established and well-known grounds of judicial review challenge, but the case does not involve any new principle of law. The claimants also allege breach of statutory duties under the equality legislation, but the actual statutory provisions in point are short and straightforward ones. No issue has arisen as to the construction of new or complex statutory provisions. Yet the case has generated also a bundle of no less than 70 authorities and other legal material (not all of it referred to).
However the case remains one of judicial review. It is not a detailed public inquiry into the demise of the BSF programme, nor does it require fact-finding on disputed facts after hearing oral evidence. All judicial review requires scrutiny. Cases involving torture, persecution or other grave threats to human rights require anxious scrutiny; but this is not such a case and, as the claimants are themselves public authorities, no human rights issues arise. So although a measure of scrutiny is required, the essential character of the present case is one of review of the minister's decision and decision making process. Whilst speaking on behalf of all of the claimants, Mr Nigel Giffin QC stressed the importance in this case of focussing upon the wood rather than the trees. My own view is that if, on any one or more of the grounds alleged, the Secretary of State, when personally making patently political, large scale macro economic decisions, has acted irrationally or unlawfully, that ought to be apparent without unduly detailed or sophisticated enquiry. I asked Mr James Goudie QC, who appeared on behalf of the Secretary of State and whose experience in this field is very great, whether such an impressionistic approach is heretical. He assured me it is orthodox. I thus propose to consider this case in a relatively impressionistic way, focussing on the wood rather than the trees, and without over-immersion in, or reference to, the mass of detail in both the facts and the arguments which have been advanced. These considerations are now fortified by the observations in the Court of Appeal on 28 January 2011 (the last day of the oral hearing in the present case) in Jones v Jones [2011] EWCA Civ 41 at paragraphs 73 and 74, which I incorporate by reference. Although the subject matter of that case could not have been further removed from this one, the observations are entirely general. "The primary function of a first instance judgment is to … identify the crucial legal points and to advance reasons for deciding them in a particular way."
The BSF programme and how it operated: a very simplified summary
The DfE delivered the BSF programme through an agency, wholly owned by the department, called Partnership for Schools (PfS). In his statement to the House of Commons on 5 July 2010 the Secretary of State described the scheme as being "characterised by … needless bureaucracy" with a large number of "meta-stages" and "sub-stages". He said that "it can take almost three years to negotiate the bureaucratic process of BSF before a single builder is engaged or brick laid. Some councils that entered the process six years ago have only just started building new schools." The "bureaucratic process" was not, however, devised by the councils; and it is largely upon the stage at which any given claimant council was mired in the department's own "bureaucratic process" that their claims depend.
When BSF was launched, local authorities could apply to participate in it. Not all have done so. The programme was to be implemented over the following 15 years in a series of "waves". Participating local authorities were to divide their own overall projects into "sample" and "non-sample" schools. As a generalisation, the "sample" and most pressing or needy projects were to be allocated to the earlier waves. A Funding Allocation Model (FAM) was developed, allocating an authority's estimated overall funding requirement between the different waves. The overall funding earmarked for a particular local authority was known as their "funding envelope". At this point a local authority needed to develop, first, a Strategic Business Case (SBC); and after approval of that, their Outline Business Case (OBC). The OBC is a document, written to a prescribed PfS template, which sets out in some detail...
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