School Re-organisation: Sixth-forms and Foundation Schools

March 15th, 2011

March 15, by Clive Lewis Q.C.
Foundation schools and voluntary aided schools have a considerable amount of autonomy. Local education authorities have no specific statutory powers to make prescribed alterations consisting of removing sixth forms. Within Wales, the Governing Body may make such a prescribed alteration and the Welsh Ministers also have statutory powers to do so.

The local education authority for Blaenau Gwent wished to consult and make proposals for the re-organisation of sixth-form education within the county generally, both for maintained schools and for Brynmawr Foundation School. As the authority had no specific statutory power to make proposals for a foundation school, it asked, and the Welsh Ministers agreed, to enter into an arrangement whereby the authority exercised the functions of consulting upon and making proposals for re-organisation of the sixth-form at Brynmawr School. The Welsh Ministers have power under section 83 of the Government of Wales Act 2006 (“GOWA”) to make such arrangements with any public authority. In R (Governors of Brynmawr School) v The Welsh Ministers and Blaenau Gwent [2011] EWCH 519 (Admin), the Governors of Brynmawr School challenged this contending that the Welsh Ministers had no power to delegate to a local authority the function of consulting and making proposals for re-organising sixth-form provision at foundation schools. They contended that the statutory scheme precluded local authorities from having such an involvement. They contended that as a matter of statutory interpretation, a general power, such as that conferred by section 83 of GOWA, was not intended to apply to a situation governed by other, specific statutory provisions such as those which governed foundation schools. The School also contended that the outcome of the consultation by the authority was predetermined and that the process failed to comply with guidance on the timing of the consultation.

The Administrative Court held that the Welsh Ministers did have power to enter into an arrangement whereby a local education authority would exercise the Welsh Ministers’ functions in relation to sixth-form re-organisation at foundation and voluntary aided schools. The power in section 83 of GOWA was a wide one and applied to any function (save for certain specified functions). That power was broad enough to encompass the Welsh Ministers’ function of consulting upon and making proposals for altering a sixth-form at a foundation school. Furthermore, the Administrative Court held that GOWA was a statute having constitutional status. Restrictions on the scope of the powers conferred by such constitutional statutes should not be imposed in the absence of clear words and the powersr should not be subject to implied limitations said to be derived form the provisions of other, non-constitutional statutes.

The Administrative Court also rejected the claim that the outcome of the consultation process was pre-determined. The authority had not consulted on the option put forward by the School but instead consulted its preferred option and explained why it did not support the option put orward by the School. That, it was claimed, amounted to pre-determination. However, the consultation document set out its preferred option, it explained the reasons for favouring that option and not favouring others and it invited consultees to put forward alternatives and those alternatives were then considered by the authority. In the circumstances, the outcome of the consultation process was not predetermined. The consultees had not been denied any meaningful opportunity to put forward their views. Indeed, giving sufficient information on the reasons for the preferred proposal was consistent with the obligation to consult required the provision of sufficient reasons to enable the consultees to make a meaningful response and there should be a candid disclosure of the reasons for what was proposed. The Administrative Court rejected an argument that the consultation process failed to comply with the guidance that it should take place predominantly in term time; 32 days of the consultation took place in term and 28 days took place during school holidays. That complied with the guidance and, in any event, the Court would not have considered it appropriate to set aside the consultation and subsequent decisions on this ground particularly given the delay in advancing it. Other grounds of challenge were rejected or permission to advance such grounds was refused because of the delay in raising them.

Clive Lewis Q.C.

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