Council gets lawyers involved as row over use of private emails by minister and advisers widens

Solicitors for Sandwell Metropolitan Borough Council have written to the Department for Education demanding to know whether Education Secretary Michael Gove and his advisers used personal email addresses to consider the cancellation of Building Schools for the Future projects and a subsequent legal challenge.

The letter from Bevan Brittan was sent to the Department’s Permanent Secretary, Sir David Bell, after the Financial Times claimed the Minister and his advisers had used private emails to discuss government business. The paper said that information in the emails was not disclosed when it tried to retrieve it under the Freedom of Information Act.

The Daily Telegraph later reported a source "close to the Education Secretary" denying any breach and saying that the emails were being used for party political rather than government business.

Bevan Brittan said it “noted with concern the media coverage.... of the alleged use of private email accounts by the Secretary of State and his advisers and particularly the fact that certain of these emails allegedly concerned the BSF judicial review.”

The letter went on:

“Please confirm by return:

• Whether you have already established if any personal email accounts of the Secretary of State and/or any of his aides, officials and advisors (“the Relevant Email Accounts”) were used, formally or informally, in the decision-making process around the cancellation of the BSF programme and/or the reconsideration of that decision following the judicial review judgment.
• Unless already done so, that you will carry out a search of the Relevant Email Accounts using the following keywords: Sandwell, SMBC, BSF, and Building schools,

and that you will confirm to us the results of this search within 14 days (i.e. by 5 October 2011) and that you will disclose the results of this search to us within a further 14 days (i.e. by 19 October 2011).”

The letter also called on the Department to confirm when Sandwell would be informed of the final decision in respect of BSF funding. The council had submitted final representations on 18 August but said it had received no news of when it should expect to be notified.

“The need for certainty on this point is becoming more and more pressing for our client,” Bevan Brittan said. “By way of example, our client was recently informed by the Office of the Schools Adjudicator that an application by one of its schools (Perryfields High) for a reduction in pupil admission numbers had been refused. That school is currently operating in part out of sixteen temporary classrooms and urgently requires funding to tackle the considerable capacity issues it faces.”

The law firm added that Sandwell’s client schools were facing considerable uncertainties “generally, and especially in light of the lack of clarity around the announcement of 19 July 2011 of £500m to tackle a severe shortfall in available pupil places along with the Priority Schools Building Programme”.

Sandwell’s Leader, Cllr Darren Cooper, told Local Government Lawyer that he was simply asking questions – given the FT relevations – and seeking reassurance about the transparency of the decision-making in relation to cutting BSF projects in his borough.

Sandwell was one of six councils involved in the BSF judicial review earlier this year. Last month it held open the prospect of further legal action after accusing the Education Secretary of failing to comply with a High Court ruling.

The Education Secretary had previously said he was “not minded” to fund the BSF projects that were subject to the judicial review challenge. He had been forced to reconsider the matter after Mr Justice Holman ruled that the original decision to withdraw funding had “unlawfully and without justification" failed to consult with the authorities and had failed to give due regards to the equality impacts of his proposed decision.

Philip Hoult