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Neutral Citation Number: [2011] EWHC 519 (Admin) |
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Case No: CO/8771/2010 |
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
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Cardiff Civil Justice Centre
2 Park Street, Cardiff, CF10 1ET |
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09/03/2011 |
B e f o r e :
THE HONOURABLE MR JUSTICE BEATSON
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Between:
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R (on the application of the Governors of Brynmawr Foundation School)
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Claimant
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- and -
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The Welsh Ministers
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First Defendant
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Blaenau Gwent County Borough Council
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Second Defendant
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Tim Kerr QC (instructed by Sinclairs Solicitors) for the Claimant
Clive Lewis QC (instructed by The Legal Services Department of the Welsh Assembly Government) for the First Defendant
Rhodri Williams QC (instructed by Clarks Legal LLP, Solicitors) for the Second Defendant
Hearing dates: 19-20 January 2011
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
See Post - Judgment Discussion & Ruling
Mr Justice Beatson :
I. Introduction:
- Since 1 April 2006 the functions of the Welsh Ministers, the first defendant, have included consulting upon, and making proposals for, a "prescribed alteration" to a foundation school: see section 113A of the Learning and Skills Act 2000 ("the 2000 Act") as amended. Proposals to provide or to cease to provide sixth form education in a school are "prescribed alterations": see regulation 3(2)(c) of the School Organisation (Proposals by the National Assembly of Wales) Regulations 2004, SI 2004 No. 1576, ("the 2004 Regulations").
- The claimants are the governors of Brynmawr Foundation School (hereafter "Brynmawr School"), an 11-18 co-educational foundation school. They challenge the decisions of the Welsh Ministers to enter into an arrangement with Blaenau Gwent County Borough Council ("the Council") pursuant to section 83 of the Government of Wales Act 2006 ("GOWA 2006") on 14 June 2010 under which the Council would exercise the function of consulting upon and making proposals about the provision of sixth form education at the school. In additional grounds they also challenge the Council's consultation process as vitiated by bias, predetermination, non-compliance with relevant guidance as to the time a consultation should take place, and the rationality of a decision to close the school's sixth form.
- The first of these grounds is that there was an unlawful delegation by the Welsh Ministers to the Council. A similar claim, by the governing body of Bishop Hedley Catholic School, a voluntary aided school, was withdrawn. The parties agreed that the decision in these proceedings would apply to the arrangement between the Welsh Ministers and Merthyr Tydfil County Borough Council to consult on and make proposals about the sixth form of Bishop Hedley School. The rival submissions on the delegation issue reflect different positions as to the extent to which the statutory framework governing the provision of education in Wales protects foundation and voluntary aided schools against interference by their local authorities in relation to the education they provide, in this case sixth form education. But underlying them there is also a broader question about the scope of the powers of the Welsh Ministers as part of the machinery given to them to exercise their executive functions under the devolution settlement. That involves some consideration of the framework for governance in Wales.
- Brynmawr School was founded in 1897 and moved to its present site in 1964. It became grant maintained in 1992 and has been a foundation school since 1999. It is one of four schools within the area of the second defendant which offers post-16 education. The other schools are community schools over which local education authorities have more control. Brynmawr School's sixth form is bigger than those in the other schools and has grown in recent years. It has some 200 pupils in its sixth form, which is about double the size of the next-largest sixth form in the area.
- The Council is restructuring sixth form education in its area and wishes to close all the sixth forms in its area, including the one at Brynmawr School, and to replace them with a new post-16 institution on part of the site of the former steelworks at Ebbw Vale. This is part of a wider project, in the Council's words, "to re-skill and up-skill the population of Blaenau Gwent".
- I have been assisted by helpful written and oral submissions by Mr Tim Kerr QC, on behalf of the claimants, Mr Clive Lewis QC, on behalf of the Welsh Ministers, and Mr Rhodri Williams QC, on behalf of the Council.
II. The procedural history and evidence:
- These proceedings were issued on 17 August 2010 and permission was given on 9 September. The governors' case then was that the arrangement made on 14 June 2010 constitutes an unlawful delegation by the Welsh Ministers of their powers. This is because the statutory scheme for education, in particular in the School Standards and Framework Act 1998 ("the 1998 Act") and the 2000 Act, make it clear that the responsibility for consideration of restructuring of sixth form education in relation to a foundation school lies with the Welsh Assembly Government, that is the Welsh Ministers, and not with the local education authority.
- On 30 November the claimants applied to name the Council as a defendant rather than an interested party, to amend their pleadings to challenge the decision of the Council to issue and publish a statutory notice to close the sixth form at the school, and to add three grounds. Their solicitors had informed the Council of the additional grounds on 22 October.
- The first of the additional grounds is that the Council's consultation process was vitiated by actual bias or alternatively by an appearance of bias and breach of the relevant codes of conduct for local authorities in Wales because of the involvement of Mr Hillman, the leader of the Council and the grandfather of a pupil at the school. Mr Hillman had written on the Council's headed paper complaining of the treatment of his grandson and linking it with the issue of the closure of the school's sixth form, but participated in the Council's decision making process without declaring an interest.
- The second additional ground, that the consultation process was unlawful and procedurally unfair, has three limbs. Mr Kerr submitted that the Council embarked on the formal consultation before entering into the arrangement with the Welsh Ministers; that the outcome of the consultation was unfairly predetermined by excluding the option proposed by the school that it should continue to have a sixth form; and that it was undertaken in substantial part during the summer holiday period contrary to guidance issued by the Welsh Assembly Government and without informing parents of an extension to the consultation period.
- The third of the additional grounds is that in the circumstances of this case it would be unlawful and irrational, that is Wednesbury unreasonable, for the Welsh Ministers to decide to close the school's sixth form. This last ground was not pursued in Mr Kerr's skeleton argument or his oral submissions. He was right not do so. The factual and regulatory background, in particular as set out at [28], [30] – [32], [43], [45] and [57] of this judgment, shows it was unarguable. On 3 December permission was given to amend the grounds but the court directed that permission to apply for judicial review on those grounds should be considered at the hearing. In substance, in relation to the additional grounds, the hearing proceeded on a "rolled-up" basis.
- The evidence on behalf of the claimants consists of four statements by James Retallick, the headteacher of Brynmawr School, respectively dated 9 August, 25 October and 9 December 2010, and 13 January 2011, and a statement of Michael Charles, a partner in the firm of Sinclairslaw, the claimants' solicitors dated 30 November 2010. The evidence on behalf of the defendants consists of three statements of Alun Davies, an education consultant employed by the Council and formerly its Interim Chief Education Officer (dated 14 October 2010, and 6 and 19 January 2011), two statements of Owen Evans, Director of Skills, Higher Education and Lifelong Learning in the Welsh Assembly Government's Department for Children, Education and Lifelong Learning (18 October and 18 November 2010), a statement of Jeffrey Godfrey, director of the Welsh Assembly Government's Legal Services Department (dated 18 October 2010), two statements of Des Hillman, the leader of the Council, dated 4 and 17 January 2011, and a statement of Dylan John, the Council's Chief Legal Officer and Monitoring Officer, dated 17 January 2011.
III. The legislative background:
- Apart from GOWA 2006, the relevant statutes are: the School Standards and Framework Act 1998 ("the 1998 Act") as amended, the Learning and Skills Act 2000 ("the 2000 Act") as amended, and the School Organisation (Proposals by the National Assembly of Wales) Regulations 2004, SI 2004 No. 1576, ("the 2004 Regulations").
- The material provisions of the 1998 Act as amended are:
"33 Further provisions relating to establishment, alteration or discontinuance of schools in Wales
(1): "Except in pursuance of proposals falling to be implemented under any enactment –
(a) no maintained school in Wales shall be established or discontinued;
(b) no prescribed alteration shall be made to any such school...." (emphasis added)
34 Rationalisation of school places:
Schedule 7 (which provides for the National Assembly for Wales to give directions to
local authorities in Wales and governing bodies of maintained schools in Wales to bring
forward proposals for the rationalisation of school places, and for such proposals to be
made by the Assembly) shall have effect."
- Foundation schools are (see section 20 of the 1998 Act) one category of school "maintained" by local education authorities in both England and Wales. There are differences in the statutory framework in Wales for foundation schools and that for community schools. The only powers in respect of foundation schools expressly given to local authorities are, after consultation, to propose "an enlargement of the premises of the school" (section 28(1)(c) of the 1998 Act) or its complete closure (section 29(1) of the 1998 Act). There is, in particular, no express statutory provision giving a local authority power to make proposals for reorganisations of sixth forms in foundation schools in Wales.
- Before 1 April 2006 the power to make proposals for reorganisations of sixth forms in foundation and voluntary aided schools in Wales lay with the National Council for Education and Training for Wales ("ELWa"), which was under a duty to consult before making proposals. On that date, pursuant to the National Council for Education and Training for Wales (Transfer of Fuctions to the National Assembly for Wales and Abolition) Order 2005, SI 2005 No 3238 (W.243) ("the 2005 Order"), ELWa ceased to exist. Its powers and duties became exercisable by the National Assembly for Wales: see regulations 4 and 5 of the 2004 Regulations. On 4 May 2007, pursuant to section 162 and paragraph 30 of Schedule 11 to GOWA 2006, these powers and duties were transferred to the Welsh Ministers with effect from 25 May 2007.
- Section 113 and schedule 7 of the 2000 Act deal with sixth forms requiring significant improvement, and are not relevant in these proceedings. This case is concerned with section 113A and schedule 7A of the Act. It makes provision for the restructuring of sixth form education and provides:
" (2) The National Assembly for Wales may make proposals under this section—
(a) with a view to meeting recommendations made in the report of an area
inspection under section 83,
(b) with a view to promoting one or more of the relevant objectives, or
(c) If—
(i) they are made in addition to proposals relating to education or
training other than in schools, and
(ii) the combined proposals are made with a view to promoting one
or more of the relevant objectives.
(3) For the purposes of this section, the following are "relevant objectives"—
(a) an improvement in the educational or training achievements of persons
who are above compulsory school age but below the age of 19;
(b) an increase in the number of such persons who participate in education
or training suitable to the requirements of such persons;
(c) an expansion of the range of educational or training opportunities
suitable to the requirements of such persons.
(4) Proposals under this section are proposals for one or more of the following...
(b) an alteration to one or more maintained schools which relates to the
provision of secondary education suitable to the requirements of such persons
and is of a description prescribed by regulations...
(4A) Proposals under this section are to be published.
(5A) In respect of proposals under subsection (2), the relevant authority shall, in
accordance with regulations made under subsection (9), determine whether to—
(a) confirm them, with or without modification or subject to the occurrence
of any event; or
(b) withdraw them.
(6) Schedule 7A (implementation of proposals) has effect….
(9) Regulations may make provision about proposals under this section and may in
particular make provision about—
(a) the information to be included in, or provided in relation to, the
proposals;
(b) publication of the proposals;
(c) consultation on the proposals (before or after publication);
(d) the making of objections to or comments on the proposals;
(e) withdrawal or modification of the proposals;
(g) confirmation of proposals under subsection (2) by the relevant authority.
...
(11) For the purposes of this section and Schedule 7A—
"alteration" means an alteration of whatever nature, including the transfer of the
school to a new site but excluding any change—
(a) in the religious character of the school, or
(b) whereby the school would acquire or lose a religious character;
...
"maintained school" means a community, foundation or voluntary school or a
community or foundation special school;
"regulations" means—
…
(b) in relation to proposals by the National Assembly for Wales,
regulations made by the National Assembly for Wales;
"relevant authority" means—
…
(b) in relation to the National Assembly for Wales, the National Assembly
for Wales... ."
- Regulation 4 of the 2004 Regulations provides that "[b]efore making proposals under section 113A the National Assembly must consult such persons as it considers appropriate, setting out the considerations that have led to the proposals and the supporting evidence".[1] Regulations 5-10 and Schedule 1 of the 2004 Regulations make provision for the publication of proposals, objections within two months of publication, decision-making after the close of the objection period by the National Assembly (regulations 8A and 9), the persons to be notified of each decision, and the form of the Statutory Notice.
- Schedule 7A to the 2000 Act and regulation 10 of the 2004 Regulations deal with the implementation of proposals for restructuring sixth form education, which have been confirmed by the relevant authority under that section. Paragraph 1(2) of schedule 7A requires proposals to be implemented in the form in which they were confirmed subject to the specified exceptions. Those exceptions empower the relevant authority to specify a later date by which an event subject to which confirmation has been made must occur or, after consultation with prescribed persons, to modify the proposals or, if satisfied that implementation would be unreasonably difficult or circumstances have so altered since confirmation that implementation would be inappropriate, that the proposals not be implemented.
- By sections 2 and 3 of the Local Government Act 2000 a local authority has power to do anything which it considers is likely to achieve "the promotion or improvement" of the "economic" and "social" well-being of its area. Section 3(1) provides that "the power under section 2(1) does not enable a local authority to do anything which they are unable to do by virtue of any prohibition, restriction, or limitation on their powers which is contained in any enactment".
- The determination of whether the arrangement made by the Welsh Ministers and the Council in the present case involved an unlawful delegation by the Welsh Ministers requires consideration of the material parts of the structural arrangements for governance in Wales. Before setting out the present position, two important differences between GOWA 2006 and the arrangements put in place by the Government of Wales Act 1998 ("GOWA 1998") should be noted. Although GOWA 1998 provided that specified functions, including those concerning education and training, were to be devolved to an elected National Assembly for Wales ("the Assembly"), prior to the enactment of GOWA 2006, the Assembly had no power to legislate, other than to make subordinate legislation, and there was no legally separate executive. Executive power was exercised by the Assembly's First Secretary, other Secretaries, and the Assembly's staff acting as its delegate.
- The position was changed by GOWA 2006. The Assembly now has power to make laws, known as Assembly Measures, in respect of those specific matters for which legislative competence has been conferred upon the Assembly: see section 93 to 95 of GOWA and Schedule 5, as amended. "Field 5" in Schedule 5 is "education and training". GOWA 2006 also created the Welsh Assembly Government as an entity separate from, but accountable to, the Assembly. Part 4 of GOWA 2006 contains provisions for further devolution of legislative powers in specified subject areas, subject to a referendum. Since the hearing, in a referendum held on 3 March 2011, a majority voted in favour of a proposal that the Assembly be able to do so.
- The Welsh Assembly Government consists of the Welsh Ministers, the First Minister and the Counsel General, who, by section 56 "have the functions conferred upon them by or by virtue of this Act or any other enactment or prerogative instrument". "Function" (see section 158) means "power or duty". Section 57 deals with the exercise of functions. It provides that "[f]unctions may be conferred or imposed on the Welsh Ministers by that name" and that "[f]unctions of the Welsh Ministers, the First Minister and the Counsel General are exercisable on behalf of Her Majesty."
- Certain functions, that is powers and duties, previously exercised by the Assembly under GOWA 1998 have been transferred to the Welsh Ministers by section 162 of and paragraph 30 of Schedule 11 to GOWA. I have summarised the way the Welsh Ministers acquired the power to alter the upper age limit of a foundation school, its content, and the duty to consult before making proposals at [16] and [18].
- The first ground of challenge depends upon the true meaning and effect of section 83 of GOWA 2006. It is therefore necessary to set it out in full:
83 Agency arrangements and provision of services
(1) Arrangements may be made between the Welsh Ministers and any relevant
authority for—
(a) any functions of one of them to be exercised by the other,
(b) any functions of the Welsh Ministers to be exercised by members of
staff of the relevant authority,
(c) any functions of the relevant authority to be exercised by members of
the staff of the Welsh Assembly Government, or
(d) the provision of administrative, professional or technical services by
one of them for the other.
(2) Any arrangements under paragraph (a), (b) or (c) of subsection (1) for the
exercise of functions of the Welsh Ministers do not affect the responsibility of the Welsh Ministers; and such arrangements for the exercise of any functions of a relevant authority do not affect the responsibility of the relevant authority.
(3) The references in subsections (1) and (2) to functions do not include functions of making, confirming or approving subordinate legislation contained in a statutory instrument.
(4) In this section "relevant authority" means any Minister of the Crown or
government department, any public authority (including any local authority) in
England and Wales or the holder of any public office in England and Wales.
(5) This section applies to the First Minister and the Counsel General as to the
Welsh Ministers.
IV. The factual and regulatory background
- For a number of years there has been concern about the size and viability of post-16 education in schools in Wales. The Welsh Assembly Government and local authorities have considered proposals to alter and restructure the organisation of schools in Wales. For its part the Council was concerned that levels of achievement in schools in its area are less good than in other parts of Wales.
- In September 2009 the Welsh Assembly Government published Circular 021/2009 School Organisation Proposals. This set out the policy context and general principles concerning any review of the provision of school places and explained the criteria which the Welsh Ministers would apply in reaching decisions on proposals which came to them. Paragraph 1.5 of the summary section states that "the guidance applies to community, voluntary, foundation and special schools". Paragraph 1.31 states that with respect to sixth form reorganisation of voluntary aided and foundation schools "the Welsh Ministers have indicated their intention to delegate their own powers (to be decided on a case-by-case basis) which derive from the [2000 Act] to alter post-16 provision at VA and foundation schools to LAs if the need arises". There had been a consultation on this in 2006 (see a circular dated 11 October 2007 issued by the Department for Children, Education, Lifelong Learning and Skills).
- Section 2 of Circular 021/2009 sets out the way proposals would be considered by the Welsh Ministers. Paragraph 2.1 states that each case is judged on its merits taking into account the factors set out in the circular. Paragraph 2.2 states that "the Welsh Ministers would not normally be prepared to approve closure of a popular and effective school unless evidence is presented that the alternative proposed would offer at least equivalent quality and diversity at lower total cost than would have been available had the school remained open". In the case of proposals to add or remove sixth forms, the circular sets out additional factors which will be taken into account. These include (see paragraph 2.4) whether the proposed provision will contribute to the wider range of relevant courses and qualifications and high quality employer-informed vocational learning routes targeted at pupils of all abilities required under the Learning and Skills (Wales) Measure 2009 for 14-19 year olds.
- In February 2009 an outline business case was submitted to the Welsh Assembly Government seeking approval for investment to create "a new learning zone for learners aged 16+ in Blaenau Gwent". The case for change was based on seven "investment objectives" including increasing participation rates in post-16 education and training and "to re-skill and up-skill the population of Blaenau Gwent". The next material development was an informal consultation document published by the Council in November 2009 entitled Education Provision at 'the Works'. "The Works" are the former steelworks at Ebbw Vale. The background to this consultation was the announcement by the Welsh Assembly Government of the allocation in principle of a grant of some £44.4 million to the Council to undertake a major educational development on the site.
- The Executive Summary stated that the establishment of a "learning campus" on the site of the former steelworks meant there would be "a greater range of academic and vocational learning pathways" available to 16-19 year olds. Section 5 of the document stated that the highest priority issues identified included inter alia "limited curriculum opportunities and disproportionate costs associated with small sixth forms". One key issue is that "sixth form numbers in Blaenau Gwent schools are likely to fall further owing to the general reduction in the total pupil population" and that "generally, the larger the sixth form or post-16 year groups, the broader the range of subject choices which can be offered". Another key issue is stated to be that "maintaining more schools than are necessary means that every school receives a reduced share of the total available schools budget and every pupil or student is supported by a lower level of funding".
- Post-16 education is dealt with in section 6 of the document. This refers to the application made by the Council to the Welsh Assembly Government. It is stated (page 14) that "Blaenau Gwent's sixth form students at the moment can only access a limited combination of A Levels and vocational courses at a single location" and (page 15) that "bringing sixth form and college students together will significantly enhance the learning process by offering a greater number and choice of subjects and courses".
- The paper sets out three possible options for consideration: maintaining the status quo, establishing a single sixth form in an existing 11-18 secondary school in Blaenau Gwent, and providing post-16 education at the proposed new "Learning Zone" on the works site. In relation to the first it is stated (page 16) that existing schools will be faced with falling pupil numbers and the consequent financial pressures and it will be increasingly difficult to offer "the range of courses…to which a 16+ student is now entitled". It is also stated that the establishment of a single sixth form would not meet the Assembly Government's requirements "in terms of learners' entitlements" and its intention "to achieve parity of esteem between vocational and academic learning". In relation to the proposed post-16 provision at the proposed new learning zone, it is stated that, based on current funding allocations, it is envisaged that "30+ A Level option choices would be offered including some not currently available in the sixth forms of Blaeneau Gwent".
- The claimants were concerned about the proposals in the consultation document. On 2 December their solicitors wrote to the Council and to the Welsh Assembly Government challenging the legality of a delegation to local authorities of the power of the Welsh Assembly Government to alter post-16 provision in a foundation school. In February and May 2010 the Council sought advice from the Welsh Assembly Government about the duration of the consultation. The response referred to Guidance Circular 48/2004. The advice given was to allow a two calendar month period, that this period should not fall "substantially in school holidays" and it was for the Council to decide whether the period should include the summer holidays. Paragraph 31 of the Guidance Circular states that "preliminary consultation…should not take place predominantly within the school holidays". Paragraph 41 states that "publication of final proposals should be timed to ensure that the objection period does not fall substantially within school holidays".
- The next significant development was a report dated 22 April 2010 by Alun Davies, then Interim Director of Education and Leisure, to the Council's Executive on the informal consultation exercise. There had been opposition to the suggestion that post-16 provision be under the governance of Coleg Gwent. Mr Davies's report favoured an alternative to this. It stated (paragraph 4.2.2) that a single independent Sixth Form College offered students and parents the best option. What was envisaged was a collaborative arrangement between the four schools which provided post-16 education. Brynmawr School had offered to take on the running of post-16 provision on behalf of the Learning Zone. The report did not favour this. It stated that, if the school remained as the sole 11-18 school in the authority, "it is possible that it could become more popular" and that the school could "admit more pupils than its admission number". It also stated "this could jeopardise the continued viability of other secondary schools in the area" and it would not deflect the possible claim that Brynmawr Foundation School is "different" and would not be seen "as a Blaenau Gwent response to a Blaenau Gwent issue". The Sixth Form College proposal was stated to offer "students and parents the best of both worlds".
- After stating that the Council had no power to change the age range of a foundation school, the report stated "any consultation involving the removal of sixth form provision from Brynmawr…requires powers to be delegated to the local authority from the Welsh Assembly Government Minister for Education". Paragraph 10.2 recommended that "a request be made without further delay to the Welsh Assembly Government Minister for Education to delegate powers to remove the sixth form from Brynmawr Foundation School". The report also included a draft consultation booklet.
- The next event chronologically is the one which has given rise to the bias challenge. On 7 May there was an incident at the school in which a number of pupils put graffiti on an area of the school's premises. After investigation, six pupils, including the grandson of Mr Hillman, the leader of the Council, were found responsible. They were punished that day inter alia by being excluded from a school dance that was to take place on 30 June. In a letter dated 10 May, given to Mr Hillman's grandson to pass to his mother, the school informed her and enclosed a cheque refunding the sum paid for him to attend the dance. I was informed at the hearing that the boy did not give the letter and the cheque to his mother because he hoped the school would relent. By the time the boy's mother heard of his punishment, she had hired a dinner jacket for the event. She complained to the school about his treatment and the money needlessly spent on hiring the suit. Mr Hillman did not know about the incident until 29 June. On 1 July he wrote a letter (set out at [52]) to Mr Retallick complaining about the way the school had treated his grandson.
- Returning to the proposed consultation, on 14 May the Council's Executive approved Mr Davies's report and resolved that "an urgent request" be made to the Welsh Minister for Education to delegate powers to remove the sixth form of Brynmawr School. On 17 May, Mr Davies on behalf of the Council wrote to Dr Gunning, then Director of Skills, Higher Education and Lifelong Learning, (the post now held by Mr Owen Evans). The letter referred to the informal consultation, and the Council's preferred option of removing the sixth forms from the secondary schools in its area. It also asked whether the National Assembly for Wales would recommend delegating powers regarding the reorganisation of sixth form provision at Brynmawr School to the Council by section 83 of GOWA 2006.
- Dr Gunning replied in a letter dated 28 May stating that in principle he was satisfied that it was appropriate to delegate the Welsh Ministers' powers to the Council and that doing so would enable the Council in its consultation to adopt a holistic approach to school reorganisation in its area. The letter states:
"Before agreeing to such delegation, the Council's assurance is required that the options regarding the sixth form of Brynmawr Foundation School to be put forward in the consultation (and thereafter, in any proposal that may follow) will be legally possible."
The letter also states that if a delegation is made it would have "no bearing on any determination necessary from the Welsh Ministers emanating from proposals made by the Council under those delegated powers". By then Dr Gunning's department had told the Council that its preferred option of setting up a new Further Education College, would not, because it had a turnover of less than £15 million, comply with Assembly Government policy. The Council had responded by suggesting a federated arrangement between existing secondary schools with sixth forms, Coleg Gwent, and the University of Newport.
- There is a dispute between the parties as to the meaning of the requirement in Dr Gunning's letter that an assurance be given that the options would be "legally possible". On behalf of both defendants it was submitted that this is a reference to the fact that the Department for Children, Education, Lifelong Learning and Skills told the Council that the proposed federated arrangement was not a structure for which the Assembly Government considered it had power to provide funds. On behalf of the claimants it was submitted that the assurance required was as to the legality of a delegation of the Welsh Minister's powers. This was because the requirement related specifically to Brynmawr School and not to the governance arrangements. Moreover, the context of this correspondence was that the claimants' solicitors had written to the defendants on 2 and 16 December 2009 stating that the proposed delegation to the second defendant was ultra vires. It was also submitted by Mr Kerr that there was no direct evidence as to what Dr Gunning meant by the words he used in the letter.
- I accept the defendants' submissions on this. What Dr Gunning's letter required was an assurance "that the options regarding the sixth form of Brynmawr Foundation School" will "be legally possible". The Council had (see [27]) indicated an intention to enter into arrangements under section 83 about provision at foundation schools in 2007. In 2010 it was unlikely to have required an assurance that it was lawful to delegate its powers. Also, the idea for a federated arrangement arose because the Assembly Government had informed the Council of the difficulty with the proposal for a new Sixth Form College.
- I have referred to the view expressed by the claimants to the Welsh Assembly Government and the Council's solicitors that the Assembly Government had no power to delegate the statutory power and that if it did so proceedings would be instituted. In a letter dated 29 January their solicitors asked Mr Roberts, the first defendant's senior lawyer in the Legal Services Education (Schools) team if the Council had requested it to delegate such powers. In a further letter dated 28 May it asked whether the first defendant was proceeding to act on the request made by the Council in its letter dated 17 May. In a letter dated 4 June Mr Roberts stated that "no delegation has yet been made and we will inform you if and when such a delegation is made".
- The Council's formal consultation started on 7 June. On that day its Executive resolved to undertake a statutory consultation, and approved the draft consultation booklet. It did so with the proviso that officers make every effort to ensure the consultation for Brynmawr School be held in the Brynmawr area. The Council's formal consultation document Educational Provision at 'The Works' was published either on 7 June (Mr Retallick's evidence) or 9 June (Mr Davies's evidence). But only after that, in a letter dated 10 June, did Mr Davies respond to Dr Gunning's request for assurance that the options regarding the sixth form at Brynmawr School in any proposal would be legally possible. His letter stated "I now give you that assurance". That was four days before the delegation arrangement under section 83 of GOWA 2006 was signed but three days after the Council's decision and at least one day after the consultation document was published.
- The contents of the consultation document were very similar to Mr Davies's report to the Council's meeting on 14 May (on which, see [34] – [35]). After summarising the options proposed in the informal consultation, there was a section headed "Why do we need change?" In this it was stated that change would improve standards by giving a greater range of academic and vocational learning pathways, would reduce the number of young people over 16 who are not engaged in any economic or learning activity and was needed because "sixth form numbers in Blaenau Gwent schools are likely to fall further owing to the general reduction in the total pupil population".
- The consultation used many different forms. There were eighty hours of open days with parents and interested parties. A consultation leaflet was sent to every house in Blaenau Gwent and a consultation booklet went to every pupil in every school funded by the Council. The list of consultees included neighbouring local education authorities and colleges of further education, voluntary organisations, Community First Partnership Boards, and the Children and Young People's Partnership. Consultees were asked to let the Council know their views on any of the proposals within the document and were told: "if instead you wish to propose alternative options, the Council would be happy to consider these". The document then set out four preferred proposals. The fourth proposal dealt with post-16 provision. It was:
"The establishment of post-16 provision (previously provided in the sixth forms of secondary schools in Blaenau Gwent) delivering all post-16 programmes of learning and learning opportunities under the governance of Coleg Gwent".
- The five page section on the proposal to reorganise post-16 education and training contained a background section which stated that the level of participation of young people in Ebbw Vale in post-16 education and training had been below the all-Wales figure and that sixth form numbers in Blaenau Gwent schools were likely to fall further, owing to the general reduction in the total pupil population. The tables showed that there was a projected reduction in total sixth form numbers from 418 in 2012 to 395 in 2019. The numbers for Brynmawr School in that period were projected to rise from 199 to 220 but the numbers in the sixth forms of the other three schools were projected to fall. The case for change was stated to rest on seven "investment objectives" including increasing participation rates, raising standards of success and achievement, to re-skill and up-skill the population, and to increase progression to higher education or to employment.
- This section of the document also contained a heading "WHY NOT PROGRESS THE BRYNMAWR PROPOSAL?" in which the claimants' proposal that it take over the provision of post-16 education in the area was described (in language almost identical to that in Mr Davies's report: see [34]) as creating "a sense of unfairness" which would "do little to deflect the possible claim that [the school] wass 'different'" and that if the school became the sole sixth form "it is possible that it could become more popular" and this could "jeopardise the continued viability of other secondary schools in the area".
- On 14 June Dr Gunning wrote to Mr Davies stating that, in the light of the Council's assurance that it would be legally possible to implement any school organisation proposals that the Council took forward (see [38] – [40] and [42]), he had reached the conclusion that "the Council should be delegated the powers requested". He enclosed the delegation arrangement signed by him on behalf of the Welsh Ministers, but stated "please note that the delegation of the Welsh Ministers' powers do not come into effect until both parties have signed the delegation arrangement", and, for the avoidance of any doubt "the statutory consultation period in respect of Brynmawr School can only begin once the arrangement has been signed by both parties". On that date, Mr Davies, on behalf of the Council, signed the arrangement: first statement, paragraphs 7 and 8.
- The recitals to the arrangement refer to the abolition of ELWa and the transfer of its functions, first to the National Assembly and then to the Welsh Ministers, and the inclusion of power to make proposals for the alteration of sixth forms in foundation schools. They also refer to the indication by the Welsh Assembly Government in November 2006 (see [27]) that where reviews of post-16 provision identified the need for a potential reorganisation of sixth forms which included those at foundation or voluntary schools, the Welsh Ministers would delegate their powers to the relevant local education authority. Recital E states:
"One such review was undertaken by the Local Education Authority during 2009. This review identified that there may be a need to restructure sixth form education in that area. As the relevant educational institutions in Blaenau Gwent County Borough Council include a Foundation School – Brynmawr School ("the School"), the LEA have requested that the Welsh Ministers' powers in the 2000 Act be delegated to them to enable the LEA to take forward proposals that include the school."
- Clause 4 of the arrangement sets out the functions to be performed. Clause 4.1 states that the Welsh Ministers agree that the Council will exercise the functions which are vested in the Welsh Ministers under section 113A of and Schedules 7 and 7A to the 2000 Act. The effect is that the Council may consult upon and make a proposal to make an alteration to Brynmawr School. Clause 4.2 provides that the Council may only propose to make an alteration to the school in accordance with the provisions of section 113A(2) of the 2000 Act and the 2004 Regulations. The remaining paragraphs of Clause 4 set out the four steps; consultation, publishing proposals, receiving objections and submitting proposals to the Welsh Ministers. Clause 4.6 provides that the Welsh Ministers will, in accordance with section 113A(5A) of the 2000 Act and regulation 8(a) of the 2004 Regulations, determine whether to approve the proposals with or without modification or subject to a condition or to reject them.
- Clause 4.3 deals with consultation. It provides:
"In accordance with Regulation 4 of the 2004 Regulations, before making any proposals under section 113A, the Local Education Authority agrees to consult such persons as it considers appropriate, setting out the considerations that have led to the proposals and the supporting evidence. The Local Education Authority also agrees to comply with any guidance on consultation requirements issued by the Welsh Ministers."
The consultation requirements are contained in Circular 48/2004. I have referred to paragraph 31, which states "preliminary consultation on issues impacting upon schools should not take place predominantly within the school holidays". Paragraph 33 states that provision should be made for "a reasonable consultation period of not less than two months from the publication of the consultation document".
- I have referred (see [36]) to the incident that has given rise to the bias challenge and to the letter Mr Hillman wrote to Mr Retallick on 1 July. The letter was written on Council headed paper although with Mr Hillman's personal address. Mr Kerr relied on the fact that the telephone and fax numbers were those of the Council, that the letter carried a reference number and had apparently been prepared by a Council official, the envelope in which it was posted was franked by the Council's franking machine so that the postage was paid for by Council funds, and Mr Hillman is described in the letter after his signature as "leader".
- It is necessary to set out a substantial part of this letter:
"I do not normally interfere in these types of issues, only when I have spoken to Declan and his mother (my daughter) and by reading the correspondence relating to this issue have I got a full flavour of the events."
…
[The letter stated that the writer is shocked at the incident that took place and that his grandson's school record and behaviour patterns show that he has not been brought up to do or support incidents of that kind].
…
"Having said that I am also shocked at the attitude of some of your staff towards Declan…Also the dates of the supporting letters and the returned cheque do not corroborate your staff's handling of the situation.
From conversations and by viewing on the internet, pupils at your school behaved disgracefully on the last day of school but were still allowed to go to the Prom.
…
Which leads me to think that Declan has in fact been singularly dealt with. Even though he admitted his misdemeanour straightaway and cleaned it off and took his all-day punishment in Mr John's office.
I understand from other conversations I have had that the other pupils involved were sent home because they lived locally and that Declan spent all day in Mr John's office, because he lives a distance from the school. However, as your records will show his grandmother's contact details are with your staff and have been used on numerous occasions…Therefore I must conclude yet again, Declan was singled out, for special notice to be taken of him. I ask myself why? I can only assume that because of my position and the strategy of the Authority does not sit well with yourself or indeed your staff.
…
As you know and as Councillor Elias will tell you, I run an open-door policy, anyone can come to see me. I am disappointed that while you chastise my Authority's consultation procedure in the press, you find it not possible to meet and discuss an issue with a parent of a pupil in your own school. I find this quite hypocritical, it is on record that I have always held you in high esteem but I am afraid this episode has firmly put a dent in that view.
I am very disappointed with this singular attack on my grandson for an agenda he has nothing to do with. His Mother and I are very concerned about his future at your school now and into the future. I urge you as a Community leader to arrange a meeting with Declan's mother so that these fears can be laid to rest, in the hope that Declan and the school can put it behind them and move on."
In Mr Retallick's fourth statement he states that on 2 July he responded to Mr Hillman by sending a holding letter. The copy of the letter that is exhibited to his statement shows that it was addressed to Mr Hillman's home address. Mr Hillman's evidence is that he did not receive this letter.
- On 8 July the governors' solicitors prepared a draft letter complaining about Mr Hillman's letter. The draft (which was not sent) stated that sending private correspondence on Council letterhead paper with the "allegations and insinuations" contained in it was "wholly ill-judged and inappropriate". It also stated that it was hoped that Mr Hillman's "personal involvement in this case and writing letters of this kind is not going to, in any way, influence the strategies of your Authority and the decisions that may ultimately arise as a consequence", and "I am sure that after taking legal advice you will wish to reconsider whether to adopt the course that you have so adopted was wise in the circumstances".
- The consultation period was originally to end on 7 August but it was extended to 14 August. Notification of this extension was given to the heads of all schools in an email and by a posting on the Council's website. But parents were not informed directly. By the end of the period, several thousand responses were received by the Council.
- After these proceedings were filed and permission was given, a meeting of the Council's Executive on 22 September considered a report by Ms Lindoe, the Council's newly appointed Director of Education and Leisure Services summarising another report by "Tribal", the Council's independent consultants. Mr Hillman's uncontradicted evidence (first statement, paragraph 14) is that Mr Retallick was present in the public gallery during this meeting. At the meeting, the Council resolved to publish a statutory notice proposing the closure of Brynmawr School's sixth form. The notice was published on 14 October. The allegation that the Council's leader behaved in a way so as to give rise to a perception of bias and in breach of the Welsh Code of Conduct arises in part because of what he said at the meeting on 22 September in the light of his letter dated 1 July which I have set out at [52].
- Ms Lindoe's report contains a comparative assessment of the proposals for what is described as the "Coleg Gwent tertiary arrangements" and "curriculum plan 2012 of the Brynmawr Foundation School". This summarises Tribal's comparative analysis of the merits of the two alternative arrangements. It states that the plan submitted by Brynmawr Foundation School "provides a reasonable range of programmes but it is heavily weighted to traditional 'A' Level courses" and "the range of vocational pathways is limited and it does not appear to address the needs of the majority of school-leavers (year 11) who currently do not achieve the level of achievement to gain success from this level of programme".
- The minutes of the Executive Committee's meeting on 22 September record that Mr Hillman suggested that the item on education provision on the former steelworks site be brought forward on the agenda. The minutes record that Ms Lindoe outlined the contents of her report. She advised that, if it was approved, an addendum should be added stating the power under Section 113A and Schedule 7A of the 2000 Act to reorganise sixth form provision "has been delegated to the Council by instrument of delegation". She also stated that:
"There is a consensus of opinion amongst the respondents that Blaenau Gwent's proposal is not the preferred way forward regarding post-16 education. Brynmawr Foundation School has submitted an alternative option (Appendix 11). An evaluation of this is contained in the report from Tribal (Appendix 5) detailing outcomes, perceived advantages and disadvantages, costs, and general comments. To summarise the two options (Blaenau Gwent's preferred option and Brynmawr Foundation School's) Brynmawr's would not, in my view, be an Authority-wide answer to the current issues facing post-16 education in Blaenau Gwent. The Authority's option would better address the post-16 issues in Blaenau Gwent relating to education and training as outlined in this report and conform to WAG's requirements on transformation."
- The minutes record comments by the Executive Member Regeneration, the Executive Member Neighbourhood Services and Housing, and the Executive Member Education. The minutes then record the Leader of the Council as concurring with the comments already made and making a statement which is set out in full. This states, inter alia:
"[H]ere today, we have a great opportunity to start the transformation of education that will improve the prospects of all our young people for the future…We must also make the most of our once in a lifetime opportunity to secure investment for new state of the art education facilities at the works in Ebbw Vale",
and
"not everyone is happy. There are those who want to stay on the sidelines – even when they are aware that they can't realistically go it alone. We have listened and we have taken their views into account."
The leader of the Council is then recorded as referring to the addendum and asking members to agree to its wording. The minutes then record "RESOLVED accordingly" and "Upon a vote being taken it was unanimously RESOLVED that the report be accepted…".
- There is a conflict in the evidence as to whether Mr Hillman made these remarks before the vote or after it. Mr Hillman's evidence (first statement, paragraph 15, second statement, paragraph 4) is that he did not contribute to the discussion other than to vote in favour of the proposals and that he made the speech referred to in the minutes after the resolution had been passed. The evidence of Mr John, the Council's Chief Legal Officer and Monitoring Officer (statement, paragraphs 6-7) is that Mr Hillman's speech was made after the vote had taken place. He stated that the minutes are set out in the order that they are because "the style in which the Council draws up its minutes is always to record the result of the vote at the very end of the minutes dealing with the resolution in question". The circumstances of this case show that a mechanical and formulaic approach to minute taking is very ill-advised and can have unfortunate consequences.
- Mr Kerr relied on the fact that the minutes recorded Mr Hillman's intervention before recording the resolution and their confirmation as an accurate record at the next meeting on 13 October. Moreover, he invited me to conclude that since Mr Hillman had made no declaration of interest and thus saw no reason to regard himself as interested or to recuse himself, there was no reason for him to wait until after the vote before making his contribution. In view of the evidence of Mr Hillman and Mr John and the fact that Mr Retallick, who was at the meeting, relies only on the minutes and does not (second statement, paragraph 19; fourth statement, paragraph 15) state that he saw or heard Mr Hillman speak before the vote was taken, I reject Mr Kerr's invitation and conclude that on the evidence before me, the speech was made after the vote.
- Mr Kerr advised in conference on 7 October and subsequently received Mr Hillman's letter dated 1 July. The additional grounds were only put to the Council in full on 22 October. At the time these proceedings were launched the Council had reserved its position with regard to the consultation process. This had ended three days before proceedings were launched. It was said that the point was not taken at that time because the Council was still considering the issues and did not decide to issue a statutory notice proposing the closure of the school until two months after these proceedings were launched.
V. Discussion
- Four issues fall for decision: (i) the legality of the arrangement made by the Welsh Ministers under section 83 of GOWA 2006 ("the delegation issue"); (ii) bias and breach of the Model Code of Conduct, (iii) predetermination, and (iv) the timing of the consultation: procedural irregularity.
(i) The delegation issue
- (a) The submissions: Mr Kerr QC submitted that since GOWA 2006 does not include specific provision for education and training, the legal regime for educational provision remains as stated in the statutory schemes in the School Standards and Framework Act 1998, the Learning and Skills Act 2000, the 2004 Regulations (see [18] – [19]) and the 2005 Order (see [16]). He accepted that the Assembly has power to legislate to modify section 33(1) of the 1998 Act in Wales so that a local authority as well as the Welsh Ministers can consult on and propose alterations to sixth form provision in a foundation school but submitted that it is not open to the Welsh Ministers to bypass the legislative process by a delegation to the Council in an arrangement made pursuant to section 83 of GOWA 2006. Accordingly, he submitted, the arrangement made with the Council was an unlawful delegation of functions the legislation has given to the Welsh Ministers.
- There are two limbs to Mr Kerr's submissions. First, he relied on the well-established rule of statutory construction expressed in the Latin maxim generalia specialibus non derogant that the legislature is presumed to have not intended that provisions of general application in subsequent statutes are to apply in circumstances for which special and different provision have been made in previous statutes. He referred to the judgment of Lord Diplock in the Privy Council in Teh Cheng Poh v Public Prosecutor [1980] AC 458, at 476, and to Bennion on Statutory Interpretation, 5th ed., 306-7. Because the power in section 83 of GOWA 2006 given to the Welsh Ministers to delegate functions is a general one, it must be read subject to the provisions of the different statutes dealing with powers over schools, and in particular powers over foundation schools, which carefully prescribed the respective roles of local authorities and the Welsh Ministers. Mr Kerr submitted (skeleton argument, paragraph 44) that the earlier specific legislation on education enacts a statutory scheme "which occupies the entire territory and is characterised by a series of checks and balances as between local authorities, [school] governing bodies, and organs of, [in the case of England], central, or (in the case of Wales), regional government".
- Secondly, he submitted that the discretion conferred by section 83 cannot be used to delegate the power to make proposals for the re-organisation of sixth forms in foundation schools because that is contrary to the policy and objects of the relevant provisions of the 1998 and 2000 Acts. This argument, based on the principles stated in Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, proceeds as follows. First, the arrangement made by the Welsh Ministers in relation to Brynmawr School is an attempt to provide to the Council by the back door the power to propose the closure of sixth form provision in a foundation school which sections 28 and 33 of the 1998 Act and section 113A of the 2000 Act prohibit it from doing. Mr Kerr relied on the fact that while the power in section 113A had not always rested with the Welsh Ministers, none of the bodies which had that power (i.e. ELWa and the Assembly) was a local authority.
- Mr Kerr accepted that section 33(1) of the 1998 Act envisages that proposals to alter the sixth form provision at a foundation school may fall "to be implemented under 'any enactment'" but submitted the latter words mean no more than that Parliament or the Assembly may legislate providing such powers. He submitted that the contention that GOWA 2006 is an "enactment" within section 33 "begs the question". To qualify, "the 'enactment' must be of a nature which permits it to close a foundation school's sixth form. If it does not it is not a relevant 'enactment'": see skeleton argument, paragraph 53.
- He also submitted that section 83 does not provide the Welsh Ministers with power to override or undermine legislative policy choices which have already been made and so cannot be used to delegate to an authority a function which the particular statute, from which the function is derived, expressly or impliedly prohibits that relevant authority from carrying out. The third strand of this part of the argument relies on the wording of the arrangement entered into by the Welsh Ministers and the Council on 14 June. This (see recital E, at [48]) purports "to enable the LEA to take forward proposals" and that shows the arrangement is not for the Council to take procedural steps, but to circumvent the statutory scheme contained in the 1998 and 2000 Acts.
- Mr Kerr supported both limbs of his submissions by reference to the need to consult, arguing that a consultation process by the Council was not likely to have the same scope as one by the Welsh Ministers. He observed that the school had pupils from outside the catchment area and the list of consultees did not include Wales-wide bodies, for example the Children's Commissioner for Wales, the Equality and Human Rights Commission for Wales, and the National Association of Head Teachers.
- On behalf of the Welsh Ministers Mr Clive Lewis QC submitted:
"The power of the Welsh Ministers in section 113A of the 2000 Act to make proposals for prescribed alterations is a power conferred upon the Welsh Ministers by an enactment. As such, it is one of the 'functions' of the Welsh Ministers. It is not one of the legislative functions excluded from the scope of section of 83(1) GOWA 2006. As a function within section 83(1) of GOWA, the Welsh Ministers may enter into an arrangement with a relevant authority (such as a local authority) whereby that function is to be exercised by that other authority" (first skeleton argument, paragraph 27).
- Mr Lewis submitted that it is not consistent with the constitutional status of GOWA 2006 to seek to read in implied limitations on the scope of section 83, on the basis of provisions enacted before it and before the statutory function in question was created by section 113A of the 2000 Act. The generalia specialibus non derogant maxim does not apply because of the clear and express wording of GOWA 2006 and the fact that it both transfers the section 113A powers to the Welsh Ministers and grants them power to make arrangements for a relevant authority to exercise their functions. He placed considerable weight (see e.g. first skeleton argument, paragraph 27) on the status of GOWA 2006 as "the statutory (indeed constitutional) code prescribing how functions (including those in earlier statutes) are now to be exercised". Similar written submissions were made on behalf of the Council, and, at the hearing, Mr Rhodri Williams QC adopted Mr Lewis's submissions.
- (b) The framework for governance in Wales: The starting point is to consider the framework for governance in Wales since the devolution of power to the new institutions in 1998. The powers of the Welsh Ministers and the Assembly are now contained in and derive from GOWA 2006. Like any entity whose powers are derived from statute, they must operate within the scope of those powers (see Whaley v Lord Watson [2000] SC 340 at [348] – [349] per Lord Rodger in relation to the powers of the Scottish Parliament) and it is for the court to determine the scope of those powers by the application of the rules of statutory construction. In doing so the court will take into account the nature and purpose of the statute under consideration. In R v A (No 2) Rape Shield [2002] 1 AC 45 at [44] Lord Steyn stated that "a court must always look for a contextual and purposive interpretation". Consideration of the nature of a statute involves taking into account whether it is a "constitutional" statute.
- Mr Kerr accepted that GOWA 2006 is intended to provide a framework for devolved government in Wales, including the general allocation of functions, but submitted that this did not affect the rule of construction reflected in the generalia specialibus non derogant maxim. That rule of construction, he submitted, is relevant to the ascertainment of the limits and effect of the framework for devolved government in Wales and the ascertainment of those limits remains a matter for the court. This, however, does not reflect the approach of the courts to the construction of a statute which is recognised to have constitutional status. Account has been taken of that status when construing the statute. For example, "constitutional" statutes, unlike "ordinary" statutes, have been stated not to be susceptible to implied repeal: see Laws LJ in Thoburn v Sunderland City Council at [63]. Again, Lord Coulsfield in Mills v HM Advocate (No 2) [2001] SLT 1359 at [19] – [20], affirmed [2004] 1 AC 441 stated that there is force in the argument that the detailed provisions dealing with devolution issues in the Scotland Act 1998 are part of the constitutional settlement embodied in it and the requirements of those provisions should not be avoided or circumvented by resort to a specific provision in the Human Rights Act 1998.
- It is clear that the statutes devolving power from the Westminster Parliament to Scotland, Wales and Northern Ireland are major constitutional measures: see HM Advocate v R [2002] UKPC D3 per Lord Rodger at [121]; Robinson v Secretary of State for Northern Ireland [2002] UKHL 32 at [25], and Thoburn v Sunderland City Council [2003] QB 151 per Laws LJ who at [62] included GOWA 1998 in a list of constitutional statutes. Lord Mance has described the Scotland Act 1998 and the Human Rights Act 1998 as "essential elements of the architecture of the modern United Kingdom": Somerville v Scottish Ministers [2007] UKHL 44 at [169]. Despite the important differences between the devolution settlement in Scotland and Northern Ireland and that in Wales,[2] this description is equally applicable to both the Government of Wales Acts. Accordingly, in applying the rules of statutory construction in order to determine the scope of the powers conferred on the Welsh Ministers or the Assembly by GOWA 2006, the court will take into account its constitutional status.
- (c) Section 83 and its relationship with the earlier Acts: Section 83(1)(b) empowers the Welsh Ministers to make arrangements for any "relevant authority" to exercise "any functions of the Welsh Ministers". Section 83(3) excludes the functions of making, confirming or approving subordinate legislation contained in a statutory instrument from the scope of section 83. Section 83(4) specifically provides that "any local authority" (emphasis added) is a "relevant authority". Section 158 of GOWA 2006 defines "function" to mean "power or duty". Functions, that is powers or duties, may be conferred on the Welsh Ministers "by or by virtue of" GOWA 2006 or "any other enactment or prerogative instrument": see GOWA 2006, section 56. One of the powers conferred on the Welsh Ministers is that contained in section 113A of the 2000 Act. It was conferred on them by section 162 and paragraph 30 of Schedule 11 to GOWA 2006. Thus, the combined effect of sections 56 and 83(4) mean that, since the exclusion in section 83(3) does not apply, on its face, the functions conferred on the Welsh Ministers by section 113A are functions about which the Welsh Ministers can make arrangements with "any local authority".
- Mr Kerr accepted there is no express prohibition in the 1998 and 2000 Acts on a local authority consulting upon and making proposals for a "prescribed alteration" to a foundation school. But he submitted that the terms of section 33 of the 1998 Act (see [14]) mean that the Council is prohibited from consulting on and making such proposals. Mr Kerr also sought to downplay the significance of section 83(3), the only express limitation on the scope of section 83, which has the effect that arrangements under section 83(1) may not be made about the functions of making, confirming or approving subordinate legislation contained in a statutory instrument. He submitted that this was "an unsurprising exclusion from an otherwise general power" because "it would be constitutionally irregular if the executive could delegate its secondary legislative powers to an authority over which it has no control and for whom it has no direct responsibility": skeleton argument, paragraph 49.
- I do not consider that section 83(3) can be set aside in this way. The need specifically to exclude subordinate legislation shows the breadth of the language of section 83(1). It also shows that consideration was given by Parliament to the question of limitations on the scope of section 83. It would thus have been possible for Parliament to have excluded the functions under section 113A of the 2000 Act or, more generically, functions in areas in which other, more particular functions are given to local authorities while others are given to the Welsh Ministers.
- Secondly, the submission that the terms of section 33 of the 1998 Act mean that the Council is impliedly prohibited from consulting on and making proposals about the sixth form of a foundation school does not (see [72] – [73]) take sufficient account of the constitutional nature of GOWA 2006. Section 83 is part of the machinery given to the Welsh Ministers to exercise their executive functions under the devolution settlement. Its provisions are not as detailed as the provisions in the devolution statutes dealing with "devolution issues" considered by Lord Coulsfield in Mills v HM Advocate (No 2). But it is a part of a section of the architecture of and framework for the governance of Wales and what Lord Coulsfield stated (see [72]) is relevant in the present context. If provisions dealing with devolution issues are part of the constitutional settlement embodied in the devolution statutes which should not be avoided or circumvented by resort to a specific provision in the Human Rights Act, itself a statute with constitutional status; so also a provision in GOWA 2006 prescribing how the Welsh Ministers may exercise their functions should not, absent clear words, be avoided or circumvented by resort to a specific provision in a non-constitutional statute.
- A third difficulty with Mr Kerr's argument is shown in his attempt to formulate the proper territory for section 83 and the scope of the limitations which he argued should be implied into it. I have set out the formulation in his written submissions at [75]. His basic position is that the territory of section 83 does not extend to a function under a special and different statutory scheme which occupies the entire territory and contains checks and balances between local authorities and other governmental bodies.
- Education is not the only area of public administration involving a legislative division of powers between two tiers of government, here between local government and central government, in Wales the Assembly or the Welsh Ministers. Town and country planning and health are two other such areas. The mere fact that functions, that is powers and duties, have been divided between different levels of government, or that functions are only given to one level of government, could be characterised as being part of the checks and balances that are a facet of accountability. But to do so would have the effect of creating a major implied limitation on section 83, which is an important part of the machinery given to the Welsh Ministers to exercise their executive functions in a number of areas. In the present context it might preclude a single "holistic" consultation exercise on school re-organisation in an area involving all the schools in that area. Mr Kerr initially submitted that it was open to the Welsh Ministers to legislate so as to amend section 33 to enable a local authority to do this. As Mr Lewis observed, however, the Welsh Ministers have no power to enact legislation - it is the Assembly which does that. There is no indication in Part 2 of GOWA 2006, in which section 83 is to be found, that in exercising functions, that is powers and duties, in relation to a specific matter, the powers of the Welsh Ministers are to be constrained where they could achieve the same outcome by legislation.
- In his oral submissions Mr Kerr accepted that section 83 could be used in circumstances in which functions over a general area of administration have been allocated between the Assembly and local government if those given to local authorities are "complementary" to those given to the Assembly. In the present case, he submitted that it is clear that the functions are not "complementary" because local authorities are excluded from consideration of re-arrangements of sixth forms in foundation schools in their areas. There is, however, in fact no explicit prohibition, only an absence of authority. In my judgment, the difficulties in deciding whether split functions are "complementary" or whether they reflect a rigid allocation of functions which should not be disturbed by an administrative arrangement pursuant to section 83, points against this approach.
- It is also not clear whether the implied prohibition would only extend to an arrangement with a local education authority about a foundation school in its own area or would also preclude an arrangement whereby the Welsh Ministers asked a local authority to consult on proposals about sixth form education in a foundation school which is in an area other than its own. It is, moreover, not clear why a similar argument to that made by the claimants could not be deployed where a local authority is given no functions at all in the area of public administration under consideration. The omission of the Westminster Parliament, or, in Wales, the Assembly to give functions to a local authority could on this approach be seen to be a decision that the function cannot be delegated under section 83. That would, however, have the effect of emasculating section 83 in a way that is inconsistent with the scheme of GOWA 2006.
- I also reject Mr Kerr's submission that the statutory scheme in the 1998 and 2000 Acts occupies the entire territory. That this is not so is made clear by section 33 of the 1998 Act. Section 33 recognises that alterations to the sixth form of foundation schools may be proposed not under its provisions but "in pursuance of proposals falling to be implemented under any enactment" (emphasis added), including a future enactment. One such enactment was the 2000 Act, which gave powers to ELWa. Those powers were transferred, first to the Assembly, and then to the Welsh Ministers. It is significant that section 33 does not prohibit the power to be granted to any particular body, for example to a local authority. All it requires is a legislative foundation for the making of proposals for such alterations. In the light of this, it is also difficult to see the structure contained in the 1998 and 2000 Acts as part of the checks and balances as between local authorities and first, the Assembly, and now, the Welsh Ministers.
- The legislative basis for the making of proposals about sixth forms in foundation schools is contained in section 113A of the 2000 Act and the determination of who can make such a proposal is to be found in the 2004 Regulations and GOWA 2006. Mr Kerr submitted that GOWA 2006 is not "any enactment" within section 33 of the 1998 Act. The foundation for this submission appears to be that GOWA 2006 contains no specific provision for education. But the provision for education in Wales is contained in the mosaic of statute and regulation, including provisions incorporated by reference and functions transferred. GOWA 2006 is part of that mosaic because section 162 and schedule 11 transfer the functions in respect of foundation schools from the Assembly to the Welsh Ministers as part of the package of functions which are subject to the provisions of section 83.
- In 2006 the Westminster Parliament decided that certain functions (i.e. powers and duties) hitherto exercised by the Assembly would henceforth be exercised by the Welsh Ministers and decided how the Welsh Ministers could so exercise them. One of those functions was that under section 113a the Westminster Parliament's decision about how the functions of the Welsh Ministers were to be exercised included granting them the power to make "arrangements". To limit the term "functions" in section 83(1) in the way Mr Kerr submitted it should be limited would be to give it a different meaning to that in, for example, sections 56 and 57 of the Act, paragraph 30 of schedule 11, and the definition section, section 158. There is no warrant in GOWA 2006 for so doing. "It is a sound rule of construction to give the same meaning to the same words occurring in different parts of an Act of Parliament" (Courtauld v Legh (1869) LR 4 Exch 126, at 130, relied on in R v Kansal (No 2) [2001] UKHL 62 at [102]) unless it is made clear that the words have different meanings.
- I return to the maxim generalia specialibus non derogant and to the decision in Teh Chong Poh relied on by Mr Kerr. Where a provision or a group of provisions are not intended to be comprehensive, the generalia specialibus non derogant maxim, which has been described (see Lord Mustill in Smith v Director of the Serious Fraud Office [1992] 3 All ER 456) as expressing a principle of common sense, will not (see R v Horsham JJ, ex p. Farquharson [1982] QB 762 at 789 per Lord Denning MR) be applied. In 2006 the Westminster Parliament clearly intended the Welsh Ministers to have the power to enter into arrangements with respect to their functions with other relevant authorities, including local authorities. The transfer of functions concerning foundation schools is contained in the same statute as the power to enter into arrangements with such bodies, albeit that it is a transfer by the technique of incorporation by reference. This is not therefore a straightforward case of a general provision in a later statute and a particular provision in an earlier statute.
- Additionally, there is no necessary conflict between the 1998 and 2000 Acts and the provisions in GOWA 2006, as there would have been between the statutes under consideration in Teh Chong Poh's case but for the application of the maxim. The statutes in that case were the Malaysian Internal Security Act 1960, which provided that it was an offence punishable with a mandatory death penalty to have a firearm in a security area, and the Arms Act 1960 (which came into force in 1962), making it an offence punishable by seven years imprisonment to possess firearms anywhere. It was held that the provisions of the Internal Security Act, which came into force first, applied where an offence occurred in a security area because there would otherwise be a conflict between the specific provision for security areas and the more general provision in the later statute. That scenario is far removed from the circumstances of the present case. Here the Westminster Parliament gave the Welsh Ministers these functions at the same time as it specified the means by which the Welsh Ministers were to carry out their functions. The means included delegation pursuant to an arrangement under section 83.
- For these reasons, I reject Mr Kerr's submissions on the first limb of the delegation issue. The reasons for so doing also mean that his submissions on the second limb, the application of the Padfield principle, must be rejected. The language of section 83 is clear. Given the constitutional status of GOWA 2006, the court is reluctant to read implied limitations into it by reference to legislation which is not of a "constitutional" nature. It cannot be said that the Welsh Ministers are frustrating the policy and objects of the relevant provisions of the 1998 and 2000 Acts, in particular because of the clear indication in the language of section 33 of the 1998 Act that they do not occupy the entire field.
- As far as the submission that a consultation exercise by a local authority will not necessarily be the same as that by the Welsh Ministers is concerned, the statutory duty is to consult such persons as the Welsh Ministers consider appropriate. The arrangement has empowered the Council to consult those it considers are appropriate within the terms of the arrangement. The rationale for what has occurred is a decision of the Welsh Ministers that it is preferable for there to be a single "holistic" consultation exercise on school re-organisation in the area which involves all the schools in the area. It cannot be said that that is an improper purpose or Wednesbury unreasonable. The statutory protection in Section 113A and schedule 7A of the 2000 Act remains in place, in particular the consultation is subject to regulation 4 of the 2004 Regulations and any guidance issued by the Welsh Ministers. The consultees included (see [44]) organisations outside the area. There is a similar opportunity to respond to the proposals published on 14 October 2010. It is the Welsh Ministers who will then have to make a determination under regulation 8A of the 2004 Regulations.
(ii) The Bias and Model Code of Conduct issues
- Mr Kerr relied on the failure of Mr Hillman to declare his personal and prejudicial direct interest at the meetings on 7 June at which he spoke in favour of the Council's preferred option and against the position preferred by the school and its governors. This, and Mr Hillman's participation at the special meeting on 22 September, means that the decisions taken at the two meetings must be quashed. His participation was, Mr Kerr argued, a breach of paragraph 7 of the Local Authorities (Model Code of Conduct) (Wales) Order 2008 No 708. That provides that a member of a Council must not in an "official capacity or otherwise, use or attempt to use" his or her position improperly to secure for himself or herself, or any other person, an advantage or so use his or her official capacity "improperly for private purposes". The Council has an almost identically worded Code of Conduct. Mr Kerr submitted that Mr Hillman had a personal and prejudicial interest in the discussions about the school because his grandchild attended the school,
- Mr Kerr also submitted that Mr Hillman's letter dated 1 July ([52]), written on Council notepaper and expressly linking the treatment of his grandson to the proposed closure of the school's sixth form breached both the Code and the common law rule disqualifying a person on the ground of bias. Paragraph 12(1) of the Code provides that where a member of a Council has "a personal interest" in any business of the Council, that person also has "a prejudicial interest in that business" if the interest "is one which a member of the public with knowledge of the relevant facts would reasonably regard as so significant that it is likely to prejudice" the member's judgment of the public interest. There are obvious similarities between this test and the common law test of bias set out in R v Bow Street Stipendiary Magistrate, ex p Pinochet Ugarte (No 2) [2001] AC 119 and Porter v Magill [2002] 2 AC 357. Mr Kerr submitted that Mr Hillman had a direct personal interest, contrary to the interests of the school, which triggered his automatic disqualification under the principle enunciated in Pinochet (No 2), and a fair-minded and informed observer would, when informed of the letter, conclude that there was a real possibility of bias on the part of Mr Hillman against the school which he had accused of singling out a member of his family.
- Mr Hillman's letter dated 1 July, written on Council paper, expressly linking the treatment of his grandson with the proposed closure of the school's sixth form, was, putting it at its very lowest, extraordinarily ill-advised. Mr Williams submitted that the letter could not affect the legality of Mr Hillman's participation at the meeting on 7 June because at that date he was unaware of his grandson's involvement in the incident. As far as the meeting on 22 September is concerned, he submitted that by then "the issue was over and had been long forgotten". The suggestion is that in the light of Mr Hillman's evidence, the weight of evidence before the committee including the report from Ms Lindoe (see [56] – [57]), and the fact that Mr Hillman did not speak at the meeting until after the members unanimously voted in support of the resolution, a fair-minded and informed observer would not have concluded that there was any bias on the part of Mr Hillman which could have affected the outcome of the meeting or the decision taken by the Council.
- Had these matters been raised promptly, I do not consider that they could be brushed aside as Mr Williams has sought to do. I have referred to the express link made in the letter between the treatment of Mr Hillman's grandson and the Council's position about the future of the school's sixth form. The future of the school and the Council's position has clearly generated great controversy in the area. After Mr Hillman had written the letter dated 1 July, it became inappropriate for him to be involved in decision-making about the school, including chairing the meeting on 22 September without making any declaration of the issue that had arisen between him and the school. But, although Mr Retallick and the governors' solicitors knew of Mr Hillman's letter by 8 July (see [53]) there was no complaint about Mr Hillman's participation in the decision-making process. It is not clear whether a positive decision was taken after consulting solicitors not to raise points based on the common law rule as to bias and the Model Code of Conduct. But, whether as the result of a conscious decision or because of an oversight, the points were not raised until 22 October after these proceedings were issued on 17 August 2010.
- The failure to raise these matters, either in early July, or at the time these proceedings were issued, or indeed until 22 October, after the meeting of 22 September, has undoubtedly caused the second defendant prejudice. This is because Mr Hillman continued to participate in the decision-making and chaired the meeting on 22 September at which the Council resolved to publish a statutory notice proposing the closure of Brynmawr School's sixth form. Had the matter been raised in July or when proceedings were issued, it would have been possible for Mr Hillman to withdraw from any further involvement. The issue was only raised with the second defendant over three months after Mr Retallick and his legal advisors knew of the material facts. It was first raised a month after the meeting on 22 September which was attended by Mr Retallick and it was not until 30 November that an application was made to amend the grounds to include it. This is not a case in which a lay person was aware of facts but not of their legal significance. In these circumstances, and given the prejudice to the second defendant that has resulted from the matter not being raised promptly, I decline to extend time and refuse permission on this ground.
(iii) Predetermination
- The lack of promptness to which I have referred also affects this and the "timing" grounds. The claimants knew of the consultation period from early June but at that stage were only concerned with the delegation point. No reason is given for the failure to bring these forward at the time of the original claim save that Mr Kerr only advised on these matters in October. But the claimants' grounds of challenge are in a document over the names of Mr Kerr and junior counsel dated 18 July, by which time, although the matters before the meeting on 22 September were not known, the underlying factual position as to the timing of the consultation and the terms of the consultation document were. Moreover, it remains the fact that there was no promptness even after the meeting on 22 September. Although the reason given for the lack of promptness is weak, I consider the substance of this ground.
- I have concluded that the outcome of the consultation process was not predetermined. Mr Kerr relied on the decision in R (Parents for Legal Action Ltd) v Northumberland County Council [2006] EWHC 101 (Admin) at [46] where Munby J (as he then was) stated that "the fact that an objector can make objections after the defendant has published its proposals does not justify an unfair and unlawful consultation at an earlier stage". What is important in this case is the context. The Council considered the Brynmawr alternative proposal after the informal consultation in 2009. It favoured an alternative whereby there would be an independent Sixth Form College run collaboratively by representatives of all schools in the area, including Brynmawr School. That was considered to be "the best option" in the papers put to the Council's Executive Committee meeting on 14 May: see [33], notwithstanding that it was not the proposal favoured by the Council at the time of the informal consultation. The Council reverted to the scheme it originally preferred after being told by the Welsh Ministers that the proposal for an independent Sixth Form College would not comply with policy: see [38]. This does not smack of predetermination.
- Significantly, the consultation paper (see [46]) raised and dealt with the Brynmawr School's proposal although it indicated the Council's position in clear terms. In the Northumberland case, at no stage in the consultation process was there any consultation on whether or not specific school partnerships or specific schools should adopt a two-tier model. Here, the Council stated its preferred proposals, and stated why the Brynmawr alternative proposal was not one of them, but (see [44]) had earlier made it clear that it was open to consultees to propose alternative options which "the Council would be happy to consider". This is not a case in which consultees have (see the Northumberland case at [45]) "been denied any meaningful opportunity to express their views" on the Brynmawr alternative proposal.
- Additionally, in assessing the complaint that is made about the Council expressing a preferred proposal, it must not be forgotten that the well-known principles found in such cases as R v Brent LBC, ex p. Gunning (1985) 84 LGR 168, the "Sedley requirements", also require that proposals give sufficient reasons to permit consultees to make a meaningful response. What is required has been stated (see R (Lloyd) v Dagenham LBC [2001] EWCA Civ 533 at [13], per Schiemann LJ) axiomatically to require "the candid disclosure of the reasons for what is proposed".
- The invitation to consultees to suggest alternatives to the options was taken up by many consultees. All those views, including those expressing support for the claimants' alternative Brynmawr proposal, were considered by the Council. The Council's consultants, Tribal, had analysed the proposals, including the alternative Brynmawr proposal, and Ms Lindoe's report dealt with them. I accept Mr Williams' submission that in reality the claimants' complaint is not that the school's alternative proposal was not seriously considered, but that it and the other alternatives proposed were not accepted.
(iv) The timing of the consultation
- The consultation commenced on 7 June. Initially it was to close on 6 August, but that date was extended to 14 August. It was submitted that the consultation was unauthorised at the time of its inception because the arrangement under section 83 was not signed until 14 June, and the Welsh Ministers had made it clear that the statutory consultation period in respect of the school could only begin once the arrangement was signed by both parties. I do not consider that there is anything in this point. The Council was consulting on proposals about all the schools and was certainly entitled to commence its consultation in respect of the community schools on 7 June. It was arguably, in the light of the broad power to promote the economic and social well-being of its area contained in section 3 of the Local Government Act 2000 (see [20]) entitled to raise the issue of the Brynmawr School even if this could not, at that stage, be part of the formal statutory consultation period. The period was extended until 14 August so that there was a two-month period after the arrangement had been entered into and the formal period started.
- Dr Gunning had, on 28 May, stated that subject to the assurance requested (see [38]), he was satisfied that it was appropriate to delegate the Welsh Ministers' powers to the Council. The reason given for the Council's decision to jump the gun and launch the consultation, even before it responded to Dr Gunning's letter, was the need to have as much of it as possible in the school term and to meet the requirement in the guidance: see Mr Davies's second statement, paragraph 44. I do not consider that this means that all that happened thereafter was invalid.
- The second limb of Mr Kerr's submissions on this issue is that the consultation substantially took place during the school summer holidays. There was some debate as to the words used in paragraphs 31 and 41 of the 2004 Guidance. The former stated that the two month formal consultation period should not be conducted "predominantly" during the school holidays. The latter stated that the publication of proposals should be timed to ensure that the objection period does not fall "substantially" within school holidays. Paragraph 41 is concerned with publishing notice of "final proposals" whereas paragraph 31 and the word "predominantly" is concerned with the earlier "preliminary consultation". Mr Williams calculated that 32 days of the consultation were during school term, and 28 days were during the school holidays, so that the consultation did not take place "predominantly" in the summer holidays. In any event, the claimants' lack of promptness in taking this point means that I would not have considered it appropriate to set aside the consultation and the subsequent decisions made on this ground. Although proceedings were launched three days after the end of the consultation period, this ground was first raised over two months later.
VI. Conclusions
- For the reasons I have given, I refuse permission on the bias and breach of the Model Code of Conduct ground, grant permission on the predetermination and timing grounds, but dismiss the claim on those grounds and on the delegation ground.
Note 1 Guidance was issued by the Assembly in Circular 48/2004 issued on 8 November 2004. The material paragraphs are set out at [33]. [Back]
Note 2 At present the differences include the scope of the power to legislate (see [21] – [22]) and the delineation of competence. In Wales the specified circumstances in which the devolved institutions have competence are enumerated in the legislation whereas the Scottish and Northern Ireland statutes provide for competence in all but certain specified reserved matters. [Back]
1. MR JUSTICE BEATSON: I am grateful to everyone for the corrections that have been sent. There has been an extraordinary number of typos which I did not see. I picked up other matters as well. In a number of paragraphs there are non fundamental but not purely grammatical corrections: for the assistance of counsel, paragraph 16 (reference to a referendum), paragraph 22, paragraph 82, paragraphs 84 and 85 where there has been movement of text from one paragraph to another paragraph.
2. For the reasons given in the judgment, copies of which I hope are available to everyone in court, the challenge to the decision of the Welsh Ministers is dismissed. In respect of challenges to the decisions of the council which were heard on a rolled up basis, ie for permission, permission is granted in respect of what I call pre determination and timing grounds but not in respect of the bias or breach of the model code of conduct grounds. Although permission is granted on the pre determination and timing ground, the claim on this ground is dismissed.
3. I have a number of number of applications. I had some as to costs yesterday. There is a fat bundle here about protective costs.
4. MISS CLEMENT: That is a joint bundle from the parties.
5. MR JUSTICE BEATSON: I am starting a trial at half past ten and I am going to start it.
6. MISS CLEMENT: My application for costs is very simple. It may be that perhaps you need to hear from Mr Kerr first.
7. MR JUSTICE BEATSON: I think I do. I think I need to say something else to Mr Kerr. You have applied for permission to appeal in relation to bias and model code of conduct. I am not sure, I do not have power to do that. I have refused you permission and you can have a rolled up hearing for permission. Permission has been refused. It has to be the Court of Appeal
8. MR KERR: It is a slip on my part, I apologise.
9. MR JUSTICE BEATSON: It is understandable because we have treated all the points in the same way.
10. MR KERR: The point is taken. May I briefly say what I want to say over and above what is in the written skeleton argument which I hope you have?
11. MR JUSTICE BEATSON: All of them have been very helpful.
12. MR KERR: Your Lordship has in the first paragraph the order that we seek and in the second paragraph the I hope uncontroversial propositions of law on which we rely, five of them. I do not go over that ground. Time is short.
13. In response to the Welsh Ministers' claim for costs, I cannot add much to what is in paragraphs 3 to 8 of the skeleton argument, save to say my friend Miss Clement in her skeleton argument says that we had no private interest in defending the school's sixth form sorry, that we had exclusively a private interest.
14. MR JUSTICE BEATSON: You might have been on better ground with your protective costs order.
15. MR KERR: We cannot understand how it can be said that our interest is exclusively private. It is not the governors' school. They do not own the school. They do not run it for profit. They govern it as volunteers without remuneration, save possibly for expenses and the like, honoraria, certainly not for profit. The suggestion that State schools might be run for profit, as happens elsewhere in the world, was recently rejected by the current government in considering its thinking on free schools and academies. I accept that the interest is the school's interest but not that that interest is private.
16. If you look at Shelter (the white ring binder at tab 4. a very short report) Shelter was not ordered to pay costs. Mr Justice Carnwath (as he then was) refused the Secretary of State costs. In the summary, on the second page, and the second and last page of the Crown Office Digest report, you will see four factors in the middle of the page as to why it was appropriate to refuse costs; (1) Already pending before the court a sequence of individual cases raising the same issue. Here, we have had the Bishop Hedley case, so there has been one other which is riding on the back of this one. (2) The legal question raised was one of genuine public concern. I think that is common ground. (3) The applicant's involvement had assisted the court in determining the issue speedily. That is a different case, but effectively they got a quicker decision than otherwise would have been the case. That is not dissimilar to the position here. (4) Had the matter been determined in separate proceedings, it was likely that the applicant would have been legally aided and therefore burden on public funds. Here, it could have been a parent publicly funded who had made exactly the same challenge and would have had locus to do so.
17. The only other point I make is that reading Miss Clement's skeleton argument one gets the impression that it is an all or nothing; the public/private interest dichotomy is an all or nothing question. Not so. There is no bright line, as Mr Justice Munby put it in Smeaton at paragraph 17. I take you to that in tab 1 of the authorities bundle.
18. MR JUSTICE BEATSON: That is the one that came yesterday as well. I have looked at it.
19. MR KERR: My paragraph numbering went awry due to a computer glitch in my skeleton argument. You have to add 1 to the paragraph numbers in the skeleton argument. I do not know why. The real paragraph 17, as I hope it is in your copy, should begin "I respectfully agree with everything said by Mr Justice Dyson."
20. MR JUSTICE BEATSON: I have a sort of old fashioned print out with your skeleton argument. You said the paragraph numbers are all wrong.
21. MR KERR: They are 1 out, I think, so it might be 16 rather than 17. If it begins with "I respectfully agree with everything said by Mr Justice Dyson" that is the right paragraph. That is after extensive citation from Mr Justice Dyson's judgment in Child Poverty Action. What Mr Justice Munby said is:
"But I do not read him as indicating that there is some bright line distinction between those judicial review cases which do and those which do not involve a public interest challenge, let alone as saying that the determining factor in the award of costs is the presence or absence of some 'private interest'. A more flexible and nuanced approach is, surely, indicated by the statutory duty to have regard to all the circumstances ..... "
and so forth. Your Lordship can read to the end of the paragraph. There is no allowance for that nuanced approach made in Miss Clement's skeleton argument.
22. MR JUSTICE BEATSON: You would say the nuanced way to deal with it is to make no order for costs against you. That might be equally unnuanced.
23. MR KERR: I said no order or alternatively a heavily discounted order. The governing body will have to bear its own costs out of the budget. I rely on the matters in the written skeleton.
24. MR JUSTICE BEATSON: I was not sure that the suggestion that the UK tax payers as opposed to the Welsh tax payers are the right ones to bear the cost of all of this.
25. MR KERR: I wondered about tax raising powers and so forth and I thought I had better not go there.
26. MR JUSTICE BEATSON: I do not think we want to go there, but your paragraph 8 has an exclamation mark in my note.
27. MR KERR: That is a typographical error.
28. MR JUSTICE BEATSON: No. It is my exclamation mark.
29. MR KERR: I turn to the application by Mr Williams for Blaenau Gwent. Again I have little to add to what is in the written skeleton argument. He is an interested party down to 22 October when he becomes a potential defendant. The first point is that this is not a Smeaton type case where an intervenor would be tainted with criminality if the case were to succeed, as in a case where a claimant seeks a declaration that certain conduct would be criminal. It is a very long way from that. My friend says he is entitled to costs as interested party filing the acknowledgement of service. Those should have been nil or negligible because he only had to adopt the submissions of the Welsh Ministers who did not require external solicitors, let alone counsel, let alone leading counsel. What we have in the summary grounds of resistance and detailed grounds of resistance A57 and A65 respectively are lengthy and sophisticated documents, both signed by leading counsel and my friend instructed by external solicitors. That was grossly disproportionate. That is the first point.
30. The second point is that my friend says in paragraph 6 of his skeleton argument that the importance of the outcome justifies two sets of costs, and he relies on the Bolton practice note. We say that is completely different. We rely on the same practice note at tab 6, Lord Lloyd's second proposition (page 1178 H). The context was different. It was about a planning appeal. Lord Lloyd sets out some general propositions, starting at F. The preamble is the one mentioned in the skeleton argument. The second one is:
"The developer will not normally be entitled to his costs unless he can show that there is likely to be a separate issue on which he was entitled to be heard, that is to say an issue not covered by the council or Secretary of State or unless he has an interest which requires separate representation."
And so on. So neither of those two conditions is met here in respect of down to 22 October.
31. Then my friend says that Mr Alan Davis had to make a witness statement and that the costs of that should be recoverable. Not so. All that was needed was a phone call to the Welsh Ministers to offer Mr Davis' services to provide a witness statement if the Welsh Ministers wanted one. But they would not have needed one because the issue was one of pure construction, one on which his evidence was neither here nor there.
32. In respect of the conduct of the leader and its adoption and support by the council, my friend takes the technical point which is sophistry of the smoke and mirrors kind.
33. MR JUSTICE BEATSON: What are you looking at?
34. MR KERR: He says in his skeleton argument at paragraph 9 (ii) that there was no finding of unlawfulness in respect of the leader's conduct. That is an extremely over technical approach. I rely on paragraphs 90 and 91 of the draft judgment or whatever the equivalent final paragraphs
35. MR JUSTICE BEATSON: I think they are the same. You rely on 90 and 91. Well 91 and 92 are the ones where I say about delay.
36. MR KERR: I am grateful. In my written skeleton argument I relied on the point that a substantial portion of Mr Williams' submissions in oral and written argument were devoted to his failed defence of the propriety of the leader's conduct. That is not disputed in my friend's skeleton argument although he got mine first. It will be remembered from the oral hearing that I also made a separate point that his first skeleton argument was exclusively devoted to the delegation issue and travelled much the same ground as Mr Lewis'.
37. Lastly, the suggestion that his solicitors this is paragraph 9 (vi) of his skeleton argument his in house solicitors were not sufficiently expert to cope with judicial review, in response to that we say they are being far too modest about their skills and expertise and should have more confidence in them.
38. I make seven points in support of that. First, as already submitted, until the proposed amendment in October their only task was to adopt the Welsh Ministers' submissions. I would have thought they could have managed that. That is the first point.
39. The second point is it really is not our problem. It is an internal management issue if they truly lacked the expertise, as they say they did. We looked at their website, and it refers to providing litigation as a service. I have copies if your Lordship needs to see them. It refers to providing a service that is comprehensive and includes litigation. There are 24 staff, according to the website. I am not sure they are all necessarily lawyers. There may be para legals and others. That is the second point. It is really not the governing body's problem if, as a matter of internal management, solicitors lack the expertise they need. This is, par excellence, local authority litigation.
40. The next point is that whatever they lacked in expertise, they could have supplemented by help from counsel if needed. I do not say that that should have been leading counsel. I do not say that that would have been recoverable but it would have been a much more targeted approach than just instructing a firm of solicitors with a generic retainer to conduct the litigation.
41. The next point is that Methyr Tydfil v Bishop Hedley used in house solicitors and if they can manage why not Blaenau Gwent.
42. The penultimate point is that Blaenau (?) said they want the fourth degree of representation, as I call it: (1) in house solicitors; (2) external solicitors; (3) counsel; and (4) leading counsel.
43. MR JUSTICE BEATSON: They did not have both counsel and leading counsel. They had leading counsel.
44. MR KERR: No. The degree of counsel at leading level where they had to defend on two aspects only and not on the delegation point at all.
45. Lastly, the cost of defending the leader's conduct and the consultation exercise at the hearing although very helpfully carried out by my friend could have been carried out by junior counsel. It was the delegation point which merited the involvement of leaders and not the two other aspects. In the Northumberland case on which I relied, it was won by junior counsel.
46. MR JUSTICE BEATSON: It is not for me to say it, but there are many cases which would be adequately litigated by junior counsel but we have our system.
47. MR KERR: We do. It is also incumbent on a party who wants to take a point before a costs judge to flag it up.
48. MR JUSTICE BEATSON: Yes.
49. MR KERR: The point that I flag up is
50. MR JUSTICE BEATSON: I am not a costs judge.
51. MR KERR: You are not a costs judge. But the White Book makes clear that it is open to parties to seek an indication from the court, and I do, that Mr Williams was, with great respect, too big a gun for this case.
52. MR JUSTICE BEATSON: You did not have Mr Wolfe mounting the bias challenge. Mr Wolfe dropped out at an early stage.
53. MR KERR: At a very early stage.
54. MR JUSTICE BEATSON: Miss Clement?
55. MISS CLEMENT: You have had my submissions in my written submissions about the effect of the protective costs order. In short, I say that having applied for a protective costs order in advance of the hearing, having been refused that protective costs order on the papers, having been refused permission to appeal against that refusal by Lord Justice Sullivan a few days before the hearing before you, then it is inappropriate at this stage to afford the very same costs protection.
56. MR JUSTICE BEATSON: Yours is really a res judicata point, sort of analogous. This issue has been decided.
57. MISS CLEMENT: Yes, because essentially the case law on no order for costs and public interest litigation all pre dates 2005 and the Corner House judgment, which led to the inevitable growth of protective costs orders. So essentially I say that the way that costs protection is now governed in the Administrative Court is through a pre emptive application for a protective costs order. That having failed for the reasons given by the judge that there was a significant private interest in this case it would be inappropriate in the exercise of your Lordship's discretion to make no order for costs, that PCO having been refused.
58. At the back of the PCO bundle
59. MR JUSTICE BEATSON: I do not think that I ever saw a PCO bundle.
60. MISS CLEMENT: There was one at the front, I believe, of the bundle Mr Kerr handed up to you this morning.
61. MR KERR: It is a separate clip.
62. MR JUSTICE BEATSON: We are not going to do this by half past ten, are we?
63. MISS CLEMENT: I am going to be very quick on this point. Essentially, I set out the reasons given
64. MR JUSTICE BEATSON: What do you want me to take? I am behind tab 6, which is the back of the bundle which is labelled PCO bundle. There is then something on the front of it.
65. MISS CLEMENT: Yes. It is the slip at the front.
66. MR JUSTICE BEATSON: The slip at the front you want me to look at.
67. MISS CLEMENT: I want to take you to the judgment or the reasons given for the orders made by His Honour Judge Bidder QC and by Lord Justice Sullivan which are right at the back of that bundle, at pages 32 and 33.
68. MR JUSTICE BEATSON: I have seen Judge Bidder's reasons. I have not seen Lord Justice Sullivan's but I think I saw them somewhere else.
69. MISS CLEMENT: Essentially, the point I make is that two judges in this case have already said that a PCO was inappropriate because there was a significant private interest that was being pursued by the governors in this case. And it is precisely that private interest that makes it inappropriate for Mr Kerr to seek no order for costs on the basis that this was private interest litigation. It is that very short point.
70. For the avoidance of doubt, I also seek the Welsh Ministers' costs of opposing the protective costs order which would ordinarily follow the event. The authority for that proposition is the Corner House judgment at paragraph 78.
71. The only other point I make on costs is that even if one ignores the PCO application, this simply is not the kind of public interest case where the orders sought by Mr Kerr have been granted historically because in those cases the recipients of such orders have been either charities or NGOs, such as Shelter, Green Peace, etc.
72. MR KERR: We are a charity, my Lord. We are a charity by statute.
73. MISS CLEMENT: They were instances where those charities had no private interest in the outcome of the litigation. They were seeking to clarify
74. MR JUSTICE BEATSON: I am going to deprecate Mr Kerr, even from the front row, standing up and interrupting.
75. MR KERR: I apologise.
76. MR JUSTICE BEATSON: He may forfeit his right to reply as a result of taking the right to reply before Miss Clement finished in the nicest possible way. But you are changing your ground. You said PCO. You said private. Then you say they are not a charity. Mr Kerr says they are a charity. You say, yes, but they are private. We are back to the point you made before.
77. MISS CLEMENT: My second point is they are not akin to the cases where the public interest orders have been made previously. In those cases they were brought by charities to clarify the law. Those charities did not have that
78. MR JUSTICE BEATSON: Does this charity seek to clarify the law on Section 83?
79. MISS CLEMENT: They also had that interest in the outcome, a private interest.
80. MR JUSTICE BEATSON: I understand that. So we are back to your first point.
81. MISS CLEMENT: Yes.
82. MR JUSTICE BEATSON: So all these other points do not add much to the first point.
83. MISS CLEMENT: I am happy to sit down at this point.
84. MR WILLIAMS: I am not going to finish by half past ten.
85. MR JUSTICE BEATSON: No. We are going to finish. I am very disappointed that all this stuff about protective costs has come this morning with very little foreshadowing, no indication that half an hour was not going to be enough. I have interrupted less than I normally do.
86. MR WILLIAMS: I shall be as brief as I can.
87. MR JUSTICE BEATSON: You have four minutes.
88. MR WILLIAMS: Your Lordship has my skeleton argument. I apologise that it was filed late yesterday.
89. MR JUSTICE BEATSON: I understand why it was late. You now have less than four minutes. Do not use your time by apologising.
90. MR WILLIAMS: It is wrong, in my submission, falsely to differentiate between the two claims after the second defendant was joined as a defendant proper. The only costs which are separable and relate only to the delegation claim after 22 October are the costs of drafting the first skeleton argument, drafted in reply to the direction of the court. The second defendant is entitled to the costs of its acknowledgement of service and summary grounds. It is suggested that we should have just adopted what the first defendant did. That was not possible. We did not know what they were going to say. There was a time limit to be complied with.
91. In respect of the detailed grounds and the witness statement of Alan Davis, they do raise separate issues, namely the date of the signing of the instrument of delegation which clearly was very important given what was going to be argued on timing and the correct interpretation of the letter from the first defendant. That had not been mentioned in the first defendant's summary grounds and, indeed, was not properly covered even afterwards. Mr Davis had produced a copy of the signed previously we had only had unsigned copies. It is difficult to overstate the importance that we have covered the delegation issue to the second defendant.
92. Paragraph 6 of my skeleton argument shows the case of Bolton. In the case my friend refers to at tab 1 of the authorities bundle, at paragraph 38 and following of the judgment of Mr Justice Munby, having set out the passages in Bolton Metropolitan District Council, Mr Anderson (at paragraph 38 in particular) points to four matters as justifying an order for costs which he seeks. In the first place, interested party directly affected; that clearly applies here.
93. Secondly, he submits should have separate representation. In relation to the amended claim, obviously that is true. We had to be there. The first day was taken up with the claimant's opening. We responded on the second day with an amended claim. The evidence of Mr Davis was important to the court. That is the third point. The submissions were not duplicative. It is true that there may have been some common ground in the skeleton arguments. I was very careful in oral submissions to limit myself. I hardly dealt with the delegation issue at all and, consequently, limited myself to matters which had not been covered entirely by my friend Mr Lewis. In relation to the period from 22 October, the original claim, the delegation issue, the only additional costs were the costs of the skeleton argument. In relation to the amended claim, I reiterate that there was a presumption that the defendant certainly should get its costs. That is effectively accepted, I think, that there should be an order by the claimant in it protective costs application. It conceded that.
94. In respect of the points I make in paragraph 9, I shall not reiterate those. At 9 (vi), the great preponderance of submissions made on behalf were dealt with in the amended claim.
95. MR JUSTICE BEATSON: You have made that point.
96. MR WILLIAMS: In relation to the amended claim, the pr determination issue took up just as much time as the bias issue. You will remember that I had to take you to the trial (?) report, all the annexes that that included and how that had been dealt with in the various reports to the council and decisions that it made.
97. In respect of the use of external solicitors, these are my instructions. The second defendant has only one litigator dealing mainly with the Magistrates' Court, three child care lawyers and one and a half people dealing with conveyancing and the chief legal officer Mr Dylan John (?) there is a witness statement from him. His range of responsibilities deal with all sorts of things, including being returning officer for the local authority. It is the second smallest local authority in Wales. My instructions are that in 30 years of Mr John's experience on the council they have only had one JR to deal with. They do not have the experience to do these in house.
98. In relation to the protective costs order, the only costs incurred were the drafting of submissions, written submissions, which were dealt with by the judge. That was in answer again to written directions on the court. In relation to costs, those are my submissions.
99. MR JUSTICE BEATSON: Mr Kerr, reply and make your other application.
100. MR KERR: No res judicata in relation to the protective costs order. That was a pre emptive order which was sought. Your Lordship has now heard the whole case and can revisit the matter as a matter of discretion. That is what CPR 44 says.
101. The second point: no costs application was made to Judge Bidder so far as I am aware. We had given him impecuniosity as one of the main bases of the application. His order did not remit the matter. It was dealt with on papers for reasons of economy. The implication is that he was content to let costs lie where the fall in respect of that failed application.
102. My friend's Welsh Ministers submissions to Judge Bidder were drafted by leading counsel. that should be disallowed in any event. Mine were drafted not by me but by my instructing solicitor. Mr Lewis drafted the ones for the Welsh Ministers to oppose the PCO. Those should be disallowed.
103. The application for permission to appeal on the written grounds in the skeleton argument which, I hope, do not require amplification subject to the point you made in relation to the refusal.
104. MR JUSTICE BEATSON: I have no jurisdiction to do it.
105. MR KERR: Indeed. That is all.
Ruling on Discussion
(As Approved by the Court)
106. MR JUSTICE BEATSON: I will deal with this briefly, having had the benefit of full skeleton arguments and submissions. I will first deal with Mr Kerr QC's application for permission to appeal against the decision on all grounds. As permission to apply for judicial review was refused in respect of bias and breach of model code of conduct grounds, there is no jurisdiction for me to grant permission to appeal. In relation to the other grounds, I am going to refuse permission.
107. On the delegation point although it is a point of some importance, it is a point of construction and I do not believe the first limb of CPR 52.3 (6) is satisfied. While the implications of the decision may have wider resonance I think it is for the Court of Appeal to decide whether it wants to hear an appeal on that basis. I do not consider that the first limb of either limb is satisfied in respect of the premeditation and timing grounds.
108. As far as costs are concerned, Mr Kerr submits there should be either no costs order or a heavily discounted costs order in favour of the Welsh Ministers because the governors, as a charity, who were seeking to clarify the law in respect of Section 83 of the Government of Wales Act 2006, are public servants. He submits that the refusal of a protective costs order in advance by His Honour Judge Bidder QC and permission to appeal that order refused by Lord Justice Sullivan does not preclude the court making a decision in line with the pre protective costs order jurisdiction exemplified, for example, in the Smeaton case in 2002 and the Shelter case in 1997.
109. I have concluded that the Welsh Ministers are entitled to costs. While Mr Kerr is right to point to Mr Justice Munby's judgment in the Smeaton case that there is no bright line between a judicial review brought in the public interest and one brought in a private interest the factors that weighed with Judge Bidder and Lord Justice Sullivan are not displaced by my assessment of the position in the light of the two day hearing.
110. Accordingly I order the claimant to bear the first defendant's costs, to be subject to a detailed assessment if not agreed. In that context, I observe that, while the Welsh Ministers are entitled to some costs for resisting the application for a protective costs order, I do not consider that it was necessary for their resistance to be settled by leading counsel. I know not whether Miss Clement was involved in this matter at that stage but her performance on costs today shows that junior counsel would have been very adequate.
111. As far as the second defendant the council is concerned, I have concluded that while Mr Williams QC is right to point to the importance of the delegation point for the second defendant and the fact that the issue of the date of the delegation was a matter which the second defendant's witness brought to the attention of the court, for the reasons set out in Mr Kerr's written submissions, the second defendant should only have its costs in relation to the additional grounds, ie, from 22 October. In relation to those, it will be for the costs judge to consider the extent to which, if the parties do not agree costs, it was reasonable to have the level of representation that they had on that date. It has been submitted that they had no experience of judicial review, that the council is the second smallest local authority in Wales and accordingly some of the seven points which Mr Kerr made against the use of external solicitors and counsel do not apply. That is a matter for detailed examination by a costs judge.
112. MR WILLIAMS: Would your Lordship consider an application for payment on account of the costs incurred after 22 October?
113. MR KERR: That is news to me.
114. MR JUSTICE BEATSON: We are at almost 10 to 11. I think your application shows your zeal as an advocate. I am fifteen minutes into my next case, and I have the wrong counsel in court. If an application can be made for payment on account and the claimant can consider it, it can be brought back. But I suggest if it is brought back it should be referred with submissions to me, reserved to me, and dealt with on paper so all you busy people do not have to gather here.
115. MR WILLIAMS: I am grateful.
116. MR KERR: I am grateful.
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