Secretary of State for Education and Science v Tameside Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judgment Date | 1976 |
| Date | 1976 |
| Year | 1976 |
| Court | Court of Appeal (Civil Division) |
Education - School - Secretary of State, powers of - Local education authority proposing to introduce comprehensive system of education - Scheme approved by Secretary of State - Control of authority passing to political opponents committed to retention of grammar schools - Authority proposing selective entry to grammar schools - Direction by Secretary of State to implement scheme of comprehensive education - Whether lawful - Whether authority “proposing to act unreasonably” - Whether sufficient time for authority to put proposals into effect - Duty of teachers to cooperate -
A local education authority proposed to bring all the schools in their area under the comprehensive principle. Their scheme was approved by the Secretary of State for Education and Science in November 1975, and implementation of the scheme was envisaged by the beginning of the school year in September 1976. In May 1976 local government elections were held, and in the authority's area the survival of the grammar schools was a strongly fought issue on which the opposition party took a stand. The opposition party gained control of the authority, and considered that they had a mandate to reconsider their predecessors' education policy. The new authority proposed to continue and complete three new comprehensive schools which were in the course of construction, to continue 16 secondary modern schools and to postpone plans for conversion of three grammar schools into comprehensive schools or sixth form colleges. In a letter to the Secretary of State on June 7, they said that the schools in their area were not ready for the changed roles proposed by their predecessors and that implementation of those proposals in September would have caused grave disruption to the children's education. They summarised their present plans as being “the maintenance of the status quo with the least disturbance and disruption to the children's education pending any longer term, well thought out proposals.” All allocations of pupils for the forthcoming year made by their predecessors — some 3,000 — would be honoured subject to parents' agreement. Two of the grammar schools would remain grammar schools open to 11 year old entry, making 240 selective places available. All parents of 11 year olds were to be given the right to apply for reallocation. If, as was likely, the number of applicants exceeded the number of places available, those pupils most suitable and most likely to benefit from that type of education would be selected by a combination of reports, records and interviews. There would be no formal 11 plus examination. (In the event, there were 783 applications by parents of 11 year olds for the 240 places in response to letters sent out to 3,200 parents.) On June 11 the Secretary of State, acting under section 68 of the Education Act 1944, directed the authority to give effect to the proposals approved by him in November 1975 and to implement the arrangements previously made for the allocation of pupils to secondary schools for the coming year on a non-selective basis. His letter of direction stated:
“A change of plan at this stage of the year, designed to come into effect less than three months later, must in his opinion give rise to considerable difficulties. The authority's revised proposals confront the parents of children due to transfer in September with the dilemma of either adhering to secondary school allocations for their children which they may no longer regard as appropriate, or else submitting to an improvised selection procedure (the precise form of which, the Secretary of State understands, has even now not been settled) carried out in circumstances and under a timetable which raises substantial doubts about its educational validity.”
On June 18, 1976, the Secretary of State applied for an order of mandamus ordering the authority to comply with his direction. The Divisional Court rejected the Secretary of State's claims that the authority's plan would create difficulties in relation to the appointment of staff, building work and preparation for courses, but said that they had heard nothing to indicate that the authority had an adequate selection procedure and referred to a difference between the authority and the teachers' unions involving the result that the teachers were not prepared to cooperate in putting the authority's proposed selection procedure into effect. They held that the Secretary of State was justified in saying that in the circumstances there was no time to carry out the proposed selection procedure by September and that accordingly there had been material on which he had been entitled to express himself as satisfied that the authority were going to act unreasonably. They made the order of mandamus. The Court of Appeal, who received evidence to the effect that the selection procedure proposed by the authority on the basis of reports, records and interviews was well known and tried and workable and that sufficient teachers were available to form a selection panel, allowed the authority's appeal and quashed the order of mandamus.
On appeal by the Secretary of State: —
Held, dismissing the appeal, that under the Act of 1944 a local education authority were entitled to have a policy, and section 68 did not entitle the Secretary of State to require them to abandon it because he disagreed with it; that he could give a direction only if they were acting unreasonably in doing what they were entitled to do; that his objection that their policy was creating a dilemma for parents was insupportable in view of the fact that the electorate, including many parents, had voted for a selective basis of secondary education and the authority were providing it; that the critical question was whether on June 11, 1976, the Secretary of State had had a sufficient factual basis for believing that the change proposed by the authority would lead to educational chaos or undue disruption, bearing in mind that the electorate must have accepted that there would be some disruption; that the question which the Secretary of State should have considered was whether a reasonable authority would have attempted to carry out the selection procedure proposed in the time available or at all; that he did not appear to have directed his mind properly or at all to that question; that although the authority's letter stating that selection would be by a combination of reports, records and interviews was lacking in specification it must have conveyed sufficient to the experts at the Department of Education and Science to have enabled them to understand what was meant, and such defects as there were in the proposed procedure did not enable it to be said that no reasonable authority would have attempted to carry it out; that the teachers were public servants with responsibility for their pupils and a duty to produce reports and it could not have been unreasonable for the authority to have taken the view that if the Secretary of State did not intervene the teachers would cooperate; and that, accordingly, there had been no ground on which the Secretary of State, properly directed, could have found that the authority were acting or proposing to act unreasonably (post, pp. 664G–665A, H–666A, 668D–E, 669A–C, H–670A–C, 671F, 675H–676A, 678C, E, F, 679C–F, 680G–H, 681C, D–G, 682F–H, 683A–B, C–E, 686C–E, G–H, 687C, H, 688B–C, 689A–C, 690C–D, 691D, F, 692A–B).
Per Lord Russell of Killowen. “Unreasonably” is a very strong word indeed (post, p. 691A). Facts subsequently brought forward as existing on June 11 could not properly be relied on as showing that the authority's proposals were not unreasonable unless they were of such a character that they could be taken to have been within the knowledge of the Secretary of State (post, p. 692C).
The following cases are referred to in their Lordships' opinions:
Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [
Secretary of State for Employment v. ASLEF (No. 2) [
W. (An Infant), In re [
The following additional cases were cited in argument in the House of Lords:
Cumings v. Birkenhead Corporation [
McEldowney v. Forde [
Padfield v. Minister of Agriculture, Fisheries and Food [
Reg. v. Minister of Housing and Local Government, ex parte Chichester Rural District Council [
Rex v. Sarum (Bishop) [
Sadler v. Sheffield Corporation [
The following cases are referred to in the judgments of the Court of Appeal:
Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [
City of Plymouth (City Centre) Declaratory Order, 1946, In re; Robinson v. Minister of Town and Country Planning [
Liversidge v. Anderson [
Nakkuda Ali v. Jayaratne [
Padfield v. Minister of Agriculture,...
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