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High Court judge quashes decision of Welsh council to implement major school reorganisation

A High Court judge has quashed a decision by Rhondda Cynon Taf County Borough Council to implement proposals for a wide-ranging re-organisation of primary, secondary and sixth-form education in the Pontypridd area.

The claimant in Driver, R (On the Application Of) v Rhondda Cynon Taf County Borough Council [2020] EWHC 2071 (Admin) was part of a campaign group called "Our Children First – Ein Plant yn Gyntaf Group”. She is also a parent of four children, aged 14, 6, 3 and 2, who are educated at different schools affected by the changes to be imposed by the council.

The decision to implement the reorganisation was taken on 18 July 2019, the council having previously published three statutory notices on the proposals. A fourth statutory notice was referred by the council to the Welsh Ministers.

Amongst other things, the changes once implemented would have seen the area’s three schools with 6th forms – Cardinal Newman School, Pontypridd High and Hawthorn High – either cease to exist or close. The proposals would also have seen the establishment of two super-schools for pupils aged 3 to 16.

The claimant advanced her claim on four grounds:

1. The decision to re-organise sixth form education, as part of Proposals 2 and 3 (including proposals to close Pontypridd High School and Hawthorn High School respectively), was taken in breach of section 50 of the School Standards and Organisation (Wales) Act 2013 ("the 2013 Act");

2. The decision in relation to all four proposals was taken in breach of the Welsh Government's School Organisation Code 2013 ("the 2013 Code") in that the Council:

(i) Failed to take into consideration the response of Estyn [the independent education and training inspectorate for Wales] to the consultation process (Ground 2(d)). (“the Estyn Ground”).

(ii) Failed to consider suitable alternative proposals which were put forward as part of the consultation process (Ground 2(f)). (“the Alternative Proposals Ground”);

(iii) Failed to take into account a specific factor for proposals to reorganise secondary schools or remove sixth forms, namely how the proposals might affect the sustainability or enhancement of Welsh medium provision in the regional 14 – 19 network and wider area and promote access to availability of Welsh medium courses in post 16 education (Ground 2(g)). (“the Welsh Language Ground”).

Mr Justice Fraser concluded that the claimant had succeeded on grounds 1 and 2(g).

On ground 1, the judge had to consider the different submissions made by the claimant and the defendant council on the Welsh and English texts for the Act.

He said: “Given the Welsh text of the Act has equal status with the English, the texts of both have to be construed. The meaning must be consistent across the texts in both languages. I take account of the literal translation provided by counsel for all parties (following the oral explanation by Mr Williams QC, leading counsel for the claimant, of the English equivalent of the different groups of Welsh words).”

The judge found that the council's submissions “wholly ignore the Welsh text, then conclude (after construing the English text) that the Welsh text must have the same meaning, or does not matter. I do not consider that to be the correct approach to legislation passed in Wales, both in Welsh and in English, the text of each language having an equal status to the other.”

Mr Justice Fraser added: “The Claimant's contended for meaning is consistent both in the Welsh language and English language versions, and does not require one to read additional or further words into the introductory passage of section 50(2) that are not there. It is by far the preferable construction.”

The judge concluded that proposals in respect of Pontypridd High and Hawthorn High affected sixth form education and therefore required the approval of the Welsh Ministers pursuant to section 50 of the 2013 Act.

“The Council did not have such approval, have not referred those proposals to the Welsh Ministers in order to obtain it, and are therefore in breach of that statutory requirement,” he said.

On the Welsh Language Ground, Mr Justice Fraser said: “In so far as it may be necessary to confirm it in this judgment, it is plain and obvious that changes to Welsh medium primary education must inevitably have an impact upon Welsh medium secondary education.

“The fewer pupils who enjoy a Welsh medium primary education, the fewer are likely to attend Welsh medium secondary education. As Mr Williams for the Claimant put it, such pupils are ‘lost for ever’, which in terms of their living their lives in Wales through the use of Welsh, is probably correct; although it may be an emotive way of putting it. Certainly in terms of their being educated through the medium of Welsh, it will be correct. Children who leave Welsh medium primary education will be lost to Welsh medium secondary education.”

The judge said the council was in breach of paragraph 1.9 of the Code because it failed to consider how the closure of Ysgol Gynradd Gymraeg Pont Sion Norton and Heol y Celyn, and the establishment of a new Welsh medium primary school on the Heol y Celyn site would impact upon Welsh medium provision generally, and how the impact upon Welsh medium primary education would also impact upon Welsh medium secondary education for those in the local 14 – 19 network. "The Council failed to assess the impact of the proposals on the Welsh language in any meaningful way."

"Nor do I consider that this failure can, or should, be overlooked, or categorised (as the Council seemed to be contending for at one stage) as a mere technicality," he added. "The principles identified at [102] above make it clear how important the Welsh language is to life in Wales. If the Welsh language is to be treated no less favourably than the English language in Wales, and if people should be able to live their lives in Wales through the medium of Welsh if they choose, then this failure by the Council is an important one.

"Accordingly, I find that the Council is in breach of its duties under the 2013 Code in this respect as alleged by the Claimant, and the Claimant succeeds in her challenge on the Welsh Language Ground."

According to Wales Online, Rhodri Williams QC, who appeared for the claimant, said the ruling was a landmark one for the significance of Welsh legislation in Wales.

“Never again will it be sufficient to argue that the English language version of a statute dictates what the meaning of the law is. From now on, all those concerned with the proper implementation of legislation in Wales will need to bear in mind both language versions," he said.

“At long last, true equality before the law for Wales’ two languages has been established by the courts.”

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