Gove launches consultation with six councils behind BSF judicial review

Department for Education officials have kick-started the process of consulting with the six councils that successfully brought judicial review proceedings over the government’s withdrawal of funding for their Building Schools for the Future projects.

The six councils involved in the litigation were: Luton Borough Council, Nottingham City Council, the London Borough of Waltham Forest, Kent County Council, the London Borough of Newham and Sandwell Metropolitan Borough Council.

On 11 February Mr Justice Holman ruled that Education Secretary Michael Gove had “unlawfully and without justification” failed to consult with the authorities and had failed to give due regard to the equality impacts of his proposed decision.

In a written ministerial statement issued today, the Education Secretary maintained that the judge had ruled in his favour on the substantive points.

Gove cited the judge’s comments that it was “absolutely clear that the decision is not open to legal challenge on a discrete ground of irrationality, however that argument is developed or put” and nothing which the Department for Education or Partnerships for Schools had done in respect of these local authorities went “so far as to create a substantive legitimate expectation that any given project would definitely proceed”.

The Education Secretary said he had requested that the six authorities provide him “with any and all information” about the BSF projects in their area which they consider is necessary for him to take into account when making a fresh decision.

Gove said he would not be making contact directly with the affected schools. “Local authorities will want to engage with the schools concerned and will provide the school-level information that they consider is necessary for me to have in mind when making my decision,” he explained. “Local authorities are in the best position to give an overview of the local issues affecting the school estate in their areas.”

He also suggested that the councils might wish to include information on building condition, basic need pressures, contractual liabilities, equalities impact and any school reorganisation proposals for each school within their claim.

“In addition, I have suggested that they highlight the particular circumstances of the schools which are covered by their claims and how these differ from schools which have either already received or are due to receive BSF investment as a result of inclusion in an earlier wave; and schools which are not due to receive any BSF funding at all,” Gove said. “They may also wish to include information about costs that the councils have incurred by taking part in the repeat wave of the BSF.”

The Education Secretary pointed out that new general equalities duties may come into effect during the consultation period. He said he would therefore consider – in addition to disability, race and gender characteristics – the protected characteristics of gender reassignment, pregnancy and maternity, religion or belief, marriage and civil partnership and sexual orientation.

The six authorities have been given a deadline of 11 April 2011 to return their representations to the Department for Education. Partnerships for Schools (PfS) will also conduct site surveys of the schools in the consultation.

The process will then see:

• The Education Secretary “carefully consider” the information provided.
• An invitation to local authority officers and relevant elected members and MPs to attend a meeting at the Department for Education. “These meetings will allow the local authorities to discuss the information they have provided in more depth and allow them to make further representations on issues that they consider need particular attention,” he said. No decision will be made at these meetings
• The sending of a letter to the councils, detailing the Education Secretary’s provisional or ‘minded to’ decision and giving the authorities the opportunity to make further representations
• The Education Secretary make a decision on each of the projects “having considered, with an open mind, all of the information gathered over the consultation period and with due regard to [his] equalities duties”.

Gove also quoted in the written ministerial statement Mr Justice Holman’s comment that the final decision on any given school or project still rested with the Education Secretary and that he “may save all, some, a few or none”. He also cited the judge’s conclusion that “no one should gain false hope from this decision”.