Tameside Revisited: Prospectively “Reasonable” Retrospective “Maladministration”
| DOI | http://doi.org/10.1111/j.1468-2230.1987.tb02577.x |
| Author | David Bull |
| Date | 01 May 1987 |
| Published date | 01 May 1987 |
TAMESIDE
REVISITED: PROSPECTIVELY
“REASONABLE”; RETROSPECTIVE
“MALADMINISTRATION”
THAT
anyone should wish to re-till the
soil
of
Tameside,’
more than
10
years on, could require some explaining. I approach this task as
a non-lawyer who first trespassed on this well-ploughed field, along
with my social policy students, seeking
to
advance our understanding
of
the allocation of decision-making responsibilities. We have not
been disappointed: the legal commentators* have assiduously drawn
upon the duel between the Secretary
of
State for Education (Mr.
Fred Mulley, October 1975-September 1976) and the Metropolitan
Borough
of
Tameside to demonstrate arguments about the
distribution
of
decision-making functions.
Thus have they contributed
to
at least four aspects
of
our
study: the relationship between legislative intent and judicial
interpretation3; the judicial appraisal
of
electoral mandates4; a
growing judicial willingness (not least on the part
of
Lord Denning)
to scrutinise administrative actionss; and the judicial control
of
ministerial discretion.6 On this last point,
Tameside
has been
especially useful in our consideration
of
what one
of
its fiercest
parliamentary critics has called “judge-proof” law.’ In other words,
it has been for us the prime illustration
of
a distinction with which
the law student will be more generally familiar: that between
“objective” and “subjective” discretion.6
’
Secretary of Stare for Education and Science
v.
Tameside Metropolitan Borough
Council
(19761 3 All E.R. 665; [1977] A.C. 1014. The latter report includes a brief
summary (A.C., pp.1019-1020) of the judgment in the Divisional Court of the Queen’s
Bench Division; but reference will be occasionally required, below,
to
the
fuller
transcript
notes
of
Cherer
&
Co. (“Q.B. transcript”).
My interest, here, is in the analyses
of
legal
commentators alone:
1
have not
considered
it
necessary comprehensively to review what
educationisrs
have derived from
Tameside.
While
my focus will be on educational
administration
(what are the prerequisites
of
the
school admissions process?), those educationists with whose work
I
am acquainted have
tended
to
treat
Tameside
in terms of educational
opportunity
(“choice”
for
the
few;
and/or a victory for the middle-class):
see
M. David,
The Stare, the Family and Education
(1980), pp.182 and 207-208; M. Kogan,
The
Politics
of Educational Change
(1978), p.67;
and N. Wright,
Progress in Educarion
(1977), p.83.
‘
Ibid.,
p.332; P. P. Craig,
Administrative Law
(1983), p.368; and P. McAuslan,
“Administrative Law, Collective Consumption and Judicial Policy” (1983) 46 M.L.R. 1,
14-15.
P. Watchman, “Palm Tree Justice and the Lord Chancellor’s Foot”, in
P.
Robson
and P. Watchman (eds.),
Justice,
Lord Denning, and the Constitution
(1981) 1, 2.
Craig,
supra,
note 4, p.365; and J. A.
G.
Griffith,
The
Polirics
of
the Judiciary
(3rd
ed., 1985), pp.135 and 137.
’
H.C. Deb., Education (No. 2) Bill, Standing Committee D, 1979-80, col. 467. Mr.
Christopher Price, M.P., felt
so
strongly about the destruction, by the
Tameside
judgment,
of
a “perfectly good appeals arrangement” that he promptly promoted a
Private Member’s Bill in a vain attempt to make
good
this damage:
see
D.
Bull, “School
Admissions:
a
New Appeals Procedure” (1980) J.S.W.L. 209, 213; and C. Price, “The
New Lawmakers” (1976)
New Statesman,
163.
*
H. W. R. Wade,
Administrative Law
(4th ed., 1977), pp.379-381; and
D.
C. M.
Yardley,
Principles
of
Administrative Law
(1981), pp.68-71.
307
C. Harlow and
R.
Rawlings,
Law and Administration
(1984), pp.333-334.
308
THE
MODERN
LAW
REVIEW
[Vol.
50
I. ALLOCATION
OF
DECISION-MAKING
FUNCTIONS
While there is no need to rehearse, in great detail, all
of
the above
lessons, some
of
them will require further attention in the
reappraisal that follows of events, during 1976, in Tameside.
Familiar as those events will be to most readers, Figure
1
provides
an outline calendar
of
key developments.
Three preliminary observations need to be made about that
calendar. First, it should be noted that our focus will be on the
time needed
for the new council to complete its plans. Other issues
were considered by the courts (notably whether Labour’s
arrangements for its proposed comprehensive scheme were
themselves sufficiently advanced for “reasonable” implementation’)
but it was seemingly accepted that the “main crux” or “nub
of
the
case”’O was one
of
time: could the new council reasonably have
expected to implement, in time, its revised scheme?
The focus, then, was on short-term,
procedural
considerations;
the long-term,
substantive
issue
of
comprehensive versus selective
education was not at stake.’l There is,
of
course, an extent to
which the Secretary
of
State could be said to be concerned with
both procedure and substance: would hurried selection result in
some children being denied their dessert; and could
any
kind
of
selection, hurried or otherwise, be procedurally and substantively
fair in 1976, given that many primary school heads had already
stopped maintaining children’s school cards in the way that selective
secondary education had hitherto demanded?
The latter obstacle to fairness seems to be as fundamental a
criticism as could be made of politicians moving to reverse partially-
implemented plans; yet it appears only to have been made
after
the
House
of
Lords had published its reasons.12 If the former question
was not directly put either,
it
might be read into Mr.
Mulley’s obliquely expressed concern that “an improvised selection
procedure” would be “carried out in circumstances and under a
timetable which raise substantial doubts about its educational
’
All E.R. 669; A.C. 1022-1023 (Lord Denning M.R.); and All E.R. 683; A.C. 1048-
1049 (Lord Wilberforce).
lo
All E.R. 669; A.C. 1023 (Lord Denning
M.R.);
and All E.R. 678; A.C. 1034
(Geoffrey Lane L.J.).
‘I
As Scarman L.J. put
it,
section 68 “must mean
. . .
not ‘unreasonably policy-wise’
but ‘unreasonably’ in the administrative sense”: All E.R. 676; A.C. 1032. Lest it seem
ingenuous
to
discount political preferences (including those of judges) on the substantive
issue (addressed in
infru,
section
I!),
it should be noted that the Tameside Conservatives
were making a short-term gesture: Labour’s 1976 Education Bill, which was simultaneously
going through the legislature, included provision to require those local education
authorities that had not yet done
so
to abolish selective secondary schools. This provision
was enacted in the Education Act 1976, s.l(l), but repealed by the Conservatives’
Education Act 1979,
s.1.
P.
Rowan, “The arguments that turned Tameside upside down,”
Times
Educufiond
Supplement,
October 29, 1976, pp.10-11.
MAY
19871
TAMESIDE REVISITED
309
validity.” In fact, the Tameside improvisators themselves acknow-
ledged that their selections might not be “perfect.”13 Two counter-
arguments were available to them: if parents did not wish to
participate in an imperfect competition, they need not enter it;
and, anyhow, “a very flexible transfer scheme”14 would enable
mistakes to be remedied. Little appears
to
have been made
of
the
latter argument, while the former seems not to have featured at
all: as we shall see, parents were held to have opted for “disruption”
(procedural) rather than imperfection (potentially substantive).
My second preliminary point is a reminder
of
the wording
of
the
power under which the Secretary
of
State acted. The Education
Act
1944,
s.68
empowers him to intervene if he:
“is satisfied either on complaint
by any person
or
otherwise,
that any local education authority
. . .
have acted or are
proposing to act unreasonably with respect to the exercise
of
any power” (emphasis added).
The italicised phrase requires elaboration here. The most casual
acquaintance with this legislation will know that the “any person”
concerned has generally been a parent complaining to the Secretary
of
State (notably about school admissions) while the “otherwise”
has meant that the Secretary
of
State has apparently taken it
upon
himself
to issue a directi~e.’~ Yet this dichotomy between parent-
led and direct action is surely over-simplified: from time to time
any Secretary of State must experience pressure, from persons
other than parents, to intervene. Such overtures-by teachers in
respect
of
Tameside’s “unreasonable” change
of
tack (see Figure
1,
event @-were sufficient to persuade the education correspondent
of
The Times
that it had become “increasingly clear,” by June
2,
that the Secretary of State would “have to intervene.”16 Yet this
build-up
of
national pressure from teachers featured neither in the
law reports nor in the legal commentaries derived therefrom.
This omission, indicated in Figure
1,
brings us to the final
preliminary consideration. The inclusion, in my Tameside calendar,
of
such judicially-neglected events is essential to the thrust
of
the
present article: the courts’ appraisal
of
the Tameside saga (and,
consequently, the derivative commentaries) sometimes focused on
l3
Positions cited
in
All E.R. 684;
A.C.
1049-1050 (Lord Wilberforce) and in All
E.R.
672;
A.C.
1026 (Lord Denning
M.R.).
See also Lord Denning’s own assessment that the
selection “would be far from perfect”: All E.R. 670; A.C. 1024.
“
All
E.R.
683;
A.C.
1047 (Lord Wilberforce).
For
the former use
of
section 68, see
P.
Meredith, “Executive Discretion and Choice
of Secondary School” [1981] P.L. 52, 77-79; and D. Bull, “Monitoring Education
Appeals: local ombudsmen lead the way” (1985)
J.S.W.L.
189, 222.
For
examples
of
the
latter intervention, see
R.
Saran,
Policy-Making
in
Secondary Education
(1973), pp. 18-20
and 70-71.
l6
T. Devlin,
The
Times,
June
2,
1976. The teachers concerned were members of the
N.A.H.T. (see Fig.
1,
event 6). Followers of the recent
McGoldrick
case in Brent will
have noticed that the Secretary
of
State,
Mr
Kenneth Baker, was under union pressure,
on behalf
of
Miss McGoldrick,
to
use his section 68 powers:
The Guardian,
December
16, 1986; see, further,
infra,
second note 18.
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