Secretary of State for Education and Science v Metropolitan Borough Council of Tameside

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeViscount Dilhorne,Lord Wilberforce,Lord Diplock
Judgment Date21 October 1976
Judgment citation (vLex)[1976] UKHL J1021-1
Docket NumberParliamentary Archives, HL/PO/JU/4/3/1293
Date21 October 1976

[1976] UKHL J1021-1

HOUSE OF LORDS

Lord Wilberforce

Viscount Dilhorne

Lord Diplock

Lord Salmon

Lord Russell of Killowen

Parliamentary Archives, HL/PO/JU/4/3/1293

Secretary of State for Education and Science
(Appellant)
and
Metropolitan Borough Council of Tameside
(Respondents)
Lord Wilberforce

my lords,

1

This appeal is concerned with secondary education in the Metropolitan Borough of Tameside. Tameside is a new unit of local government created under the Local Government Act 1972: it includes areas formerly in Cheshire and Lancashire. Its resources in secondary education included 16 secondary modern, five grammar and three purpose-built comprehensive schools under construction. Soon after its creation the Council, as local education authority, put forward a scheme for bringing all the schools in the area under the comprehensive principle—"comprehensive" in this context not bearing its normal meaning in English, or the meaning it bore in the Education Act 1944, but its meaning in modern political jargon of a system which, in theory, lets everyone in to any school without selection by aptitude or ability. Grammar schools, by contrast, allocate places by selection. This scheme was brought in and, as the law required, was laid before the Secretary of State for Education and Science on 10 March 1975; it was very detailed and would clearly take some time to implement. Briefly, it provided: (1) for setting up three new purpose-built comprehensive schools (those mentioned above); (2) for bringing the sixteen secondary modern schools into the comprehensive principle; (3) for abolition of the five grammar schools by turning three of them into comprehensives, and two into six form colleges. These proposals in due course, on 11 November 1975, received the Secretary of State's approval, and the Council then became entitled to put them into effect: but, and this is important, the Secretary of State's approval imposed no duty on the Council to implement them. In fact, the Council did take some steps towards their initial implementation by the beginning of the school year in September 1976. These steps were of a rather hurried nature, and, the respondents now contend, premature, and made not without an eye upon the local government elections to be held in May 1976. It is certainly fair to say that it was and is clear that necessary buildings for the changeover could not be completed, or in some cases more than just begun, by September 1976, and that if the new proposals were to start at that date there would be a good deal of improvisation and temporary disruption. There was some impressive evidence of this from a number of experienced teachers.

2

Local elections were held on 6th May 1976. The issues no doubt were numerous and of varying importance, but the survival of the grammar schools as selective entry schools was one issue strongly fought, and on which the opposition party took its stand. A large number of parents had signed a petition against the 1975 proposals and no doubt supported the opposition. The opposition gained control of the Council, and they considered themselves to have been given a mandate to reconsider their predecessors' education policy. They formulated their own proposals as not involving a total reversal of that policy. They set them out in a carefully thought out and moderate letter addressed to the Secretary of State on 7 June 1976. They proposed to adopt what had already been done in the direction of comprehensive education—the three new comprehensives would be continued and completed "as a valuable nucleus of any future scheme". The sixteen secondary moderns would be continued. But they did not propose to implement at once the plans for conversion of the grammar schools. They proposed to postpone these plans and to continue the schools for a time so that the position could be reviewed, in the light, amongst other things, of the new Education Bill then before Parliament. Their policy was "to maintain the status quo with the least disturbance and disruption of the children's education pending any longer term, well thought out proposals".

3

The Secretary of State, and his Department, were greatly concerned with the difficulties likely to be brought about by a change in control of the Local Education Authority. Undoubtedly such changes are an administrator's nightmare. The Department had approved the "comprehensive" plan, and they knew and approved that the Authority had planned to start introducing it in September 1976. A change of course only three months before the new school year was to start very naturally worried the officials. There was correspondence between the Department and the Authority in May and June in which the Authority was asked to explain its plans, particularly with regard to the selection of pupils; there was a meeting in Whitehall on 9 June, which does not seem to have been amicable or conclusive. The Secretary of State remained of the opinion that it was too late to reverse the previous Council's plans and that the new Council was acting unreasonably in doing so. So on 11 June 1976 he gave a direction to the Council to implement their predecessors' proposals, and on 18 June 1976 he asked for an order of mandamus that they should do so. This order was granted by the Divisional Court but on 26 July 1976, on appeal by the Authority, it was discharged by the Court of Appeal, leave to appeal being refused. By an emergency procedure which started with an application for leave to appeal on 29 July and which phased into a full hearing of the appeal, your Lordships heard full, and I must say admirable, arguments on a complete documentary record on 29-31 July. I would like to acknowledge the efforts and co-operation of those advising each side which enabled this exceptionally quick procedure to be carried out. The argument was concluded on 31 July, and on 2 August it was announced that their Lordships were of opinion, for reasons to be announced and now set forth, that the appeal failed.

4

I must now set the legal scene. The direction of 11 June 1976 was given under section 68 of the Education Act 1944. Education is still governed by this notable statute (as amended), and it is necessary to understand its structure. Under the Act responsibility for secondary education rests upon a four-fold foundation. The Minister (as he was then called); local authorities; parental wishes; and school managers and governors. All have their part to play. The primary responsibility rests on the Minister. He has to promote the education of the people of England and "to secure the effective execution by local authorities, under his control and direction, of the national policy for providing a varied and comprehensive (old meaning) educational service in every area", (s.l.) But local education authorities, which are elected, have their place defined. It is they who are responsible for "providing secondary education "in schools" sufficient in number, character, and equipment, to afford for all pupils opportunities for education offering such variety of instruction and training as may be desirable in view of their different ages, abilities, and aptitudes" (s.8). Section 13 is an important section—it is that which was acted on in 1975. It enables local education authorities to make "significant changes" in the character of any school but requires them to make proposals to that effect to the Secretary of State. So the initiative is theirs: ultimate control is with the Secretary of State: there is no obligation, before or after his approval, on the authority to carry its proposals out. Section 68 must be quoted in full.

5

"If the Secretary of State is satisfied, either on complaint by any person or otherwise, that any local education authority or the managers or governers of any county or voluntary school have acted or are proposing to act unreasonably with respect to the exercise of any power conferred or the performance of any duty imposed by or under this Act, he may, notwithstanding any enactment rendering the exercise of the power or the performance of the duty contingent upon the opinion of the authority or of the managers or governors, give such directions as to the exercise of the power or the performance of the duty as appear to him to be expedient."

6

This section does not say what the consequences of the giving of directions are to be, but I accept, for the purposes of the appeal, that the consequences are to impose on the authority a statutory duty to comply with them which can be enforced by an order of mandamus.

7

Analysis of the section brings out three cardinal points.

8

(1) The matters with which the section is concerned are primarily matters of educational administration. The action, which the Secretary of State is entitled to stop, is unreasonable action with respect to the exercise of a power or the performance of a duty—the power and the duty of the authority are presupposed and cannot be interfered with. Local education authorities are entitled under the Act to have a policy, and this section does not enable the Secretary of State to require them to abandon or reverse a policy just because the Secretary of State disagrees with it. Specifically, the Secretary of State cannot use this section to impose a general policy of comprehensive education upon a local education authority which does not agree with the policy. He cannot direct them to bring in a scheme for total comprehensive education in their area, and if they have done so he cannot direct them to implement it. If he tries to use a direction under section 68 for this purpose, his direction would be clearly invalid. A direction under section 68 must be justified on the ground of unreasonable action in doing what under the Act the local authority is entitled to do, and under the Act it has a freedom of choice. I do not think that there is any controversy...

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