R v Secretary of State for Education and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SEDLEY |
| Judgment Date | 12 April 1995 |
| Judgment citation (vLex) | [1995] EWHC J0412-13 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 April 1995 |
| Docket Number | CO/0869/95 |
[1995] EWHC J0412-13
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Before: Mr Justice Sedley
CO/0869/95
LORD CAMPBELL OF ALLOWAY QC and MR JOHN FRIEL (instructed by Messrs Young & Lee, Birmingham) appeared on behalf of THE APPLICANT
MR JAY and MISS CHAKRABARTE (instructed by The Treasury Solicitor) appeared on behalf of THE RESPONDENTS
Wednesday 12 April 1995
MR JUSTICE SEDLEYLord Campbell QC moves on behalf of the applicants, two representative parents, for certiorari to quash a decision of the Secretary of State for Education given on 5 January 1995 to approve the closure of Beacon School by the local authority which has maintained it, Walsall Metropolitan Borough Council. The Secretary of State, but not the local education authority, has been represented in these proceedings.
The decision was purportedly taken in the exercise of the Secretary of State's powers under section 184(4) of the Education Act 1993, which, since the bringing into force of the material part of this statute on 1 April 1994, has been the sole power at her disposal to approve a school closure. The proposal itself, however, was made as long ago as November 1992 under the then extant power, section 14 of the Education Act 1981. Lord Campbell takes a preliminary point on the transition from one statutory regime to another: in his submission there is no transitional provision linking the 1981 Act to the 1993 Act so as to permit the approval under the latter of a school closure proposal made under the former.
Section 14 of the 1981 Act provides:
"(1) A local education authority shall not cease to maintain a special school except in accordance with proposals approved by the Secretary of State under this section."
The section goes on to provide for notice of intention to cease to maintain a special school to be given by the local education authority to the Secretary of State, parents and other local education authorities which use the school, and to forward objections to the Secretary of State together with their own observations. The Secretary of State, by subsection (5), could then either approve or reject the proposals or, under subsection (6), approve them with an altered date for implementation.
The 1993 Act, by section 308(3), was to come into force on days appointed by the Secretary of State. The Education Act 1993 (Commencement No 3 and Transitional Provisions) Order 1994, with effect from 1 April 1994, repealed both section 9(5) of the Education Act 1944 (which designated schools like Beacon School as special schools) and section 14 of the Education Act 1981 (by dint of the partial bringing into force of the repeal provisions set out in section 307(3) and Schedule 21 of the 1993 Act), and with effect from the same day brought into force section 183 and 184 of the 1993 Act.
Section 183 is side-noted 'Establishment etc. of maintained or grant-maintained special schools' and provides, by subsection (2), for a local education authority to give notice of any intended discontinuance of a special school. By subsection (6) the notice is to be served on the Secretary of State and such other persons as she may prescribe in regulations. Section 184, side-noted 'Procedure for dealing with proposals', by subsection (1) requires a local education authority to consult such persons as they think appropriate for serving a Discontinuance Notice, and by subsection (4) empowers the Secretary of State, after considering proposals, objections and observations on the objections, to reject or approve the proposals as under the 1981 Act or, after further consultation with the authority and the governing body, approve the proposals with modifications.
The significant differences in procedure are, therefore, that a local education authority must consult before proposing discontinuance of a special school; that notice of the proposal is to be served on such persons, other than the Secretary of State, as may be prescribed, rather than on the range specified in the 1981 Act; and that in addition to approval or rejection, the Secretary of State's powers enable her to modify any part of the proposals and not merely the date when they are to come into effect.
Schedule 3 to the Commencement Order, by part II, makes transitional provision in relation to special schools. Paragraph 5(1) deals with applications for a maintained school to become a special school, and paragraph 5(2) with the seeking of approval for a change in the arrangements for a special school. But there is nothing in the Order which touches the transition which has purportedly occurred in the present case. The consequence, Lord Campbell submits, is that on 31 March 1994 section 14 of the 1981 Act died, and with it the application for approval of the closure of Beacon School, and on 1 April 1994 a new regime came into being under which no lawful application has yet been made to the Secretary of State for approval of the closure. Her decision of 5 January 1995 was consequently, it is submitted, ultra vires.
Mr Jay, for the Secretary of State, relies principally on the provisions of section 303 of the 1993 Act:
"(1) Any reference, whether express or implied, in this Act or any other enactment, instrument or document to a provision of Parts II to IV of this Act is to be read, in relation to the times, circumstances or purposes in relation to which a corresponding provision of the repealed enactments had effect and so far as the nature of the reference permits, as including a reference to that corresponding provision."
In place of the complexity of transitional provisions often found in legislation, this provision has the equal and opposite drawback of being so elliptical as to create much the same degree of puzzlement. But Mr Jay is in my judgment right, on analysis, in his submission that the subsection operates so that any express or implied reference in section 184 to section 183 is to be read in relation to the purposes to which any 'corresponding provision' of the 1981 Act was directed, so as to include a reference to that provision. Although section 184 contains three express references to section 183 (which is in part III of the 1993 Act), none corresponds to any relevant provision of the repealed section 14 of the 1981 Act. Section 184(1) refers to section 183's provisions for consultation before serving notice of a proposal; section 184(4) refers to the provisions of section 183(3) concerning proposals by a funding authority for alterations or discontinuance; and subsection (5) deals with the Secretary of State's power of modification of funding bodies' proposals. It is therefore necessary, if it can be done, to find a relevant implied reference in section 184 to section 183, or vice versa, in order to be able to operate the machinery of section 303(1). This, I think, the respondent can do. Among the matters to which sections 184 and 183 both relate are the procedure for consideration by the Secretary of State of a closure proposal in relation to a special school and the form of decision. This, I think, must be what an implied reference of one section of the Act to another means.
Does it then relate to "purposes in relation to which a corresponding provision of the repealed enactments had effect"? Lord Campbell submits that the provisions of section 14 of the 1981 Act were, precisely, not corresponding but differing provisions; and provisions, moreover, that it was the manifest intention and effect of the Commencement Order to terminate at 1 April 1994 without any such transitional provision as paragraph 5 of Schedule 3 to the Order made in relation to other elements of the special school regime. But it is not, in my judgment, legitimate to use delegated legislation as an aid to the construction of primary legislation. The Act itself, by section 303(1), creates bridgeheads between repealed and incoming legislation in so far as they include 'corresponding' provisions. In my judgment corresponding provisions for this purpose are provisions which may differ but are directed to the same ends. The respective provisions of section 14 of the 1981 Act and sections 183 and 184 of the 1993 Act correspond in this sense, with the result that the implied references of section 183 and section 184 to one another are deemed to include references to the provisions of section 14 of the 1981 Act.
Why the draftsman has adopted this mode of operation, depending as it does on there being not one, but two, interrelated provisions in the new Act, at least one of them within Parts II to IV, in order to trigger the reference back to the predecessor legislation, is baffling; but Mr Jay has satisfied me that whatever was the thinking behind the provision, it operates in the present case so as to enable the Secretary of State to continue under the 1993 Act the process begun under the 1981 Act.
Mr Jay was not disposed initially to place any reliance on section 17(2(b) of the Interpretation Act 1978, but on further reflection he submitted that it operated to the same effect. The material words of section 17 of the Interpretation Act 1978 are:
"(2) Where an Act repeals and re-enacts, with or without modification, a previous enactment then, unless the contrary intention appears ….
(b) in so far as any …. thing done under the enactment so repealed …. could have been …. done under the provision re-enacted, it shall have effect as if …. done under that provision."
Lord Campbell submits that a contrary intention does indeed appear, not necessarily from the 1993 Act itself but from the want of any transitional...
To continue reading
Request your trial