Mr Justice Holman, on Friday 11 February, handed down the judgment in the Building Schools for the Future (BSF) Judicial Review proceedings brought by Luton Borough Council and Nottingham City Council, Waltham Forest London Borough Council, Newham London Borough Council, Kent County Council and Sandwell Metropolitan Borough Council.
The judge said that he was ‘absolutely clear that the decision is not open to legal challenge on a discrete ground of irrationality, however that argument is developed or put’; and he agreed that nothing which the Department for Education or Partnerships for Schools had done in respect of these local authorities went ‘so far as to create a substantive legitimate expectation that any given project would definitely proceed’.
These were the substantive points in this case and I am delighted that the judge ruled in my favour.
There were further, procedural, grounds on which the claimants made their case, in particular on a duty to consult; and on the duty to have due regard to equalities considerations. On these procedural grounds, the judge has ruled in favour of the claimants.
The judge has not ordered a reinstatement of funding for any BSF project, nor has he ordered me to pay compensation to any of the claimants. Instead, he concluded that I:
must now, after giving each of them a reasonable opportunity to make representations, reconsider [my] 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, and rigorously discharging [my] equalities duties.
Officials have, today, written to the six claimant local authorities to begin a process of consultation on their affected BSF projects.
I have requested that the six local authorities provide me with any and all information about the BSF projects in their area which they consider is necessary for me to take into account when making a fresh decision with respect to those projects.
I will not be making contact directly with the affected schools. Local authorities will want to engage with the schools concerned and will provide the school-level information that they consider is necessary for me to have in mind when making my decision. Local authorities are in the best position to give an overview of the local issues affecting the school estate in their areas.
I have suggested that the local authorities may wish to include information on building condition, basic need pressures, contractual liabilities, equalities impact and any school reorganisation proposals for each school within their claim. In addition, I have suggested that they highlight the particular circumstances of the schools which are covered by their claims and how these differ from schools which have either already received or are due to receive BSF investment as a result of inclusion in an earlier wave; and schools which are not due to receive any BSF funding at all. They may also wish to include information about costs that the councils have incurred by taking part in the repeat wave of the BSF.
During the consultation period, new general equalities duties may come into effect. As a result, in order to rigorously discharge my duty in relation to all protected characteristics, in addition to disability, race and gender characteristics, I will consider the protected characteristics of gender reassignment, pregnancy and maternity, religion or belief, marriage and civil partnership and sexual orientation.
The local authorities have been given a deadline of 11 April 2011 to return their representations to the Department.
Partnerships for Schools (PfS) has been commissioned to conduct site surveys of the schools in the consultation and their reports will be sent to the local authorities concerned.
I will consider carefully the information that the local authorities provide. Local authority officers and relevant elected members and members of parliament will be invited to attend a meeting at the Department. These meetings will allow the local authorities to discuss the information they have provided in more depth and allow them to make further representations on issues that they consider need particular attention. The purpose of the meetings will be to allow local authorities the opportunity to fully present their case and is a further part of the information gathering phase. No decision will be made at the meetings.
At the next stage a letter detailing my provisional or ‘minded to’ decision will be sent to the local authorities and they will be given the opportunity to make further representations.
After that, I will make a decision on each of the projects, having considered, with an open mind, all of the information gathered over the consultation period and with due regard to my equalities duties. As the judge made clear, ‘the final decision on any given school or project still rests with [me]’, and that I ‘may save all, some, a few or none’. He concluded by saying that ‘no one should gain false hope from this decision’.
I have written to all relevant members of parliament and local authority elected members to inform them of the consultation process. All schools within the consultation process have also been copied the letter sent to the local authority to ensure they are informed of the process. I have also placed in the House library copies of the letters sent by my officials to the relevant local authority chief executives.
Michael Gove MP