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The High Court has rejected a legal challenge to a Welsh council’s plans to close a secondary school. James Goudie QC explains why.
The School Standards and Organisation (Wales) Act 2013 sets out the process for establishing, altering and discontinuing schools in Wales.
The case of R (Edwards) v Flintshire County Council [2016] EWHC 459 (Admin) was an unsuccessful judicial review challenge of a decision by the defendant local education authority to issue statutory notices under Section 48 of that Act to close a High School.
The ground of challenge was that the council failed, in its consultation process, to comply with its obligation under section 38(4) of the Act to act in accordance with the Welsh Ministers’ Code of School Organisation. The Act requires the Welsh Ministers to issue a code on school organisation. It may contain requirements and/or guidelines.
By Section 38(4), those who exercise functions in relation to school organisation in Wales, including local education authorities, must, when exercising those functions, act in accordance with any relevant requirements contained in the Code, and have regard to any relevant guidelines contained in it. Section 48 requires a proposer for change to publish the proposals, consult and publish a report on the consultation, all in accordance with the published code. In April 2013, the Welsh Ministers published a Code on School Organisation. It came into force on 1 October 2013.
Hickinbottom J observed, at paragraph 16, that whilst the Code requires a proposer of change to take certain steps in respect of consultation, the statutory scheme allows the proposer a certain amount of discretion or judgment as to when these duties are triggered and, if the duty is triggered, how it is to be performed. For example, although it must consult with pupils from, not just the school that is the subject of the proposals, but also “any affected school”, (i) the relevant authority has to exercise judgment as to whether a particular school would or would not be affected by the proposals, and (ii) the duty is “to make suitable arrangements” to consult such pupils. There are many ways in which an authority might, perfectly appropriately and lawfully, consult with pupils. “Suitable” has inherent within it an exercise of judgment.
Hickinbottom J further observed, at paragraph 20, that, where a duty to consult arises, not as a result of common law obligations to be fair, but out of a statutory scheme, it is clearly open to the scheme to give the decision-maker a discretion or area of judgment as to who should be consulted and how such consultation may be done, so long as it satisfies the basic requirements of a proper and meaningful consultation.
Hickinbottom J, at paragraph 23, agreed with the thrust of the council’s submissions that what the Code requires is consultation with schools likely to be significantly affected by proposals It does not require every school where there is merely a possibility of some indirect or less than significant effects to be treated as such. That would mean a potentially huge range of schools would have to be consulted.
Hickinbottom J rejected an argument that the council erred in not consulting the School Council of schools other than the school itself. The consultation was adequate and effective and in accordance with the Code.
James Goudie QC is a barrister at 11KBW. He can be contacted on 020 7632 8500 or This email address is being protected from spambots. You need JavaScript enabled to view it.. This article first appeared on the set's Education Law Blog.
