Public Law

In a decision which has been described (depending on who you get your news from) as a defeat, a minor setback and a win the education secretary Michael Gove has been ordered to reconsider cuts planned to the Buildings Schools for the Future (BSF) projects in six English local authority areas. Waltham Forest, Luton Borough, Nottingham City, Sandwell, Kent County and Newham (the Councils) sought judicial review of the decision of the Secretary of State for Education to cut funding for school buildings improvements in their areas.

The case, heard in the High Court in London before Mr Justice Holman, related to Mr Gove’s decision announcement on 5 July 2010 that the BSF programme would be significantly reduced. Certain projects would still go ahead but others would be abandoned. The Councils’ claims related to 58 schools and if their projects were to be reinstated the cost to the government would be over £1 billion.

Mr Justice Holman made clear that as the case was one of judicial review his role was to scrutinise the minister’s decision and the decision making process. He was not in a position to carry out a detailed public inquiry into the reasons why the BSF programme was being wound down, or as he put it, he would be “focusing on the wood rather than the trees”. After carrying out the required scrutiny, Mr Justice Holman decided that there was no inherent irrationality in the decision to make the cuts. Importantly, it was not the role of the court to usurp the minister’s political role.

So far so good for Mr Gove. A further “win” for the government was Mr Justice Holman’s finding that the Councils did not have a legitimate expectation that the funding of their projects would go ahead, even once it had passed a key stage of the process.

However, while the Councils did not have a substantive legitimate expectation they did have a procedural legitimate expectation to be consulted. This was because Mr Gove’s decision was a substantive change in policy, the sums involved were very large and the Department for Education had been in regular contact with the Councils prior to the decision on 5 July. This failure to consult led to a fairly damning appraisal of the minister’s behaviour described as “so unfair as to amount to an abuse of power”. Mr Justice Holman added, “However pressing the economic problems, there was no overriding public interest which precluded consultation or justifies the lack of any consultation.”

The court also found that there had been a failure to follow correct process in reaching a decision because of Mr Gove’s failure to discharge relevant statutory equality duties and consider the impact of his decision on disability, race or gender equality issues. This was despite a now eerily prophetic warning of the consequences of the failure to do so by Theresa May MP in her role as Minister for Women and Equalities.

Mr Justice Holman ends his decision with a note of caution clearly mindful that many local authorities facing similar cuts would be considering a challenge of their own. He notes that many authorities would now be too late to apply for judicial review and that “I do not mean to trivialise so important an issue, but it may be said that fortune has favoured the brave”. The decision over whether the contested projects go ahead will still ultimately rest with Mr Gove and as Mr Justice Holman makes clear “No one should gain false hope from this decision”. For local authorities facing deep cuts to their budget that may be easier said than done.

Niall McLean

Associate at Brodies LLP
Niall is a member of Brodies' market leading Government, Regulation and Competition practice. Niall gives both public and private sector clients advice in a broad range of areas including: corporate crime and investigations, governance, defamation and reputation management, public law and statutory interpretation.
Niall McLean