Councils win BSF judicial review over failure to consult, discharge equality duties
Six local authorities have won their judicial review of the Education Secretary’s decision to withdraw funding for their Building Schools for the Future projects.
The authorities involved in the claim were:
- Luton Borough Council
- Nottingham City Council
- The London Borough of Waltham Forest
- The London Borough of Newham
- Kent County Council
- Sandwell Metropolitan Borough Council.
Mr Justice Holman said he was not persuaded that Michael Gove decided and acted in breach of any substantive legitimate expectation of any of the claimants.
However, the High Court judge ruled that the Education Secretary, “unlawfully and without justification”, failed to consult with the authorities as to the effect on their individual projects of his possible decision options.
“Partly as a result, but also as a discrete matter, he unlawfully failed to give due regard to the equality impacts of his proposed decision,” Mr Justice Holman said.
“He must now, after giving each of them a reasonable opportunity to make representations, reconsider his decision insofar as it affects the claimants and each of the projects in relation to which they have claimed, with an open mind, paying due regard to any representations they may make, and rigorously discharging his equality duties.”
However, the judge warned that other local authorities which consider themselves in the same or sufficiently similar factual position to clam the same relief would be “far too late” to apply for judicial review. “I do not mean to trivialise so important an issue, but it may be said that fortune favours the brave.”
The judge also pointed out that whilst the Secretary of State must reconsider the position of each of the claimants with an open mind and paying due regard to their representations, and provided he discharges that duty and his equality duties, “the final decision on any given school or project still rests with him”.
“He may save all, some, a few, or none. No one should gain false hope from this decision,” Mr Justice Holman added.
In a statement the Department for Education said: “We are delighted that the judge did not call into question the decision to end the wasteful and bureaucratic Building Schools for the Future programme. On the substantive points he concluded that it was a rational decision and that the authorities involved had no expectation of being allowed to proceed with their projects.”
Commenting on the judgement, Bevan Brittan partner Emily Heard, who acted for one of the claimants (Sandwell), said "This case sends a signal to all public bodies making difficult decisions about cuts that they must actively consider the impact of those cuts on the people affected by them, and consult with those people where necessary.”
Philip Hoult
A fuller story on the judgement will appear later.
