Building schools for the future

The legal challenge by six local authorities over the decision to stop funding for the £55bn Building Schools 
for the Future programme has succeeded.

by Cathy Hayward

10 March 2011

The High Court decided last month that the Secretary of State, Michael Gove, reached his decision unlawfully and will have to think again. Although there is no guarantee that the building projects will now continue, the judge said that Gove must now look at the position of particular projects with an open mind.
Building Schools for the Future was set up in 2004 by then Prime Minister Tony Blair to rebuild or refurbish every secondary school in England over a 15-20 year period.

Calling a halt
Gove’s decision taken last July effectively stopped the building of around hundreds of millions of pounds worth of new schools around the country. By that stage, 185 schools had received their investment. Luton Borough Council, Nottingham City Council, London Borough of Waltham Forest, London Borough of Newham, Kent County Council and Sandwell Metropolitan Borough Council started legal action against the education secretary, arguing that he had not properly consulted the councils on the decision to stop the school building programme and had not taken into account the effect of the decision on equal opportunities.

The court decided that the original decision to stop funding for the six authorities which went to court was unlawful because “the way in which the Secretary of State abruptly stopped the projects ...without any prior consultation ... [was] so unfair as to amount to an abuse of power”.
Mr Justice Holman ordered Gove to reconsider the decision after properly consulting the councils: The Secretary of State “must now, after giving each of them a reasonable opportunity to make representations, reconsider his decision insofar as it affects the claimants and each of the projects in relation to which they have claimed, with an open mind, paying due regard to any representations they may make.”

The court also found that Mr Gove had failed to have any regard at all to his statutory duties to consider the equal opportunities implications of his decision, and criticised the government’s evidence about this issue as “highly unconvincing”.

Robert Glassford, partner in the commercial litigation team at Ward Hadaway, which represented Nottingham City Council, said the case was one of national interest and one of the most significant judicial reviews in recent times, 
as it was a test of the government’s decision-making process in regard to its Spending Review and cost cuts to the public sector.
“It has always been the position of Nottingham City Council that the way in which this decision was reached without any consultation with the council and with no regard to the decision’s impact on equality issues was entirely wrong and this has been borne out in this judgment.”
Glassford acknowledged that the ruling does not guarantee that the school building plan will go ahead as originally planned, but said that it does mean that the councils will have the chance to be heard and to put their case for continuing the Building Schools for the Future programme directly to the education secretary.

Waltham Forest Council Leader, Chris Robbins, said the borough stood to lose £275m of investment as a result of the scheme scrappage. “We have significant levels of deprivation in our borough and Building Schools for the Future was a once in a lifetime opportunity to raise the aspirations of our entire population,” he said. “That chance has been snatched away from future generations and will have a devastating impact for years 
to come.

“We know that the economic situation means tough decisions 
are required, but we need to come to a better arrangement than a total withdrawal. We have a growing student population and will need 500 extra places in the next few years. Our schools simply won’t be able to cope without major investment,” he concluded.

“This case sends a signal to all public bodies making difficult decisions about cuts,” added Emily Heard, partner at Bevan Brittan, acting for Sandwell Metropolitan Borough Council. “They must actively consider the impact of those cuts on the people affected by them, and consult with those people where necessary.”

Legal experts have said the ruling in the case means that other groups affected by spending cuts could now be encouraged to apply for a judicial review if they believe they have not been adequately consulted.

A Department for 
Education spokesperson 
added: “We are delighted that the judge did not call into question 
the decision to end the wasteful 
and bureaucratic Building 
Schools for the Future 
programme. On the substantive points he concluded that it was a rational decision and that the authorities involved had no expectation of being allowed 
to proceed with their projects.”