John Hall and David Moore find the Hackney Downs case isn't what it appeared. In an important judgment delivered before Christmas, the Court of Appeal upheld the decision of the Secretary of State for Education and Employment to close Hackney Downs School, as a school deemed to be failing under the provisions of the Education Act 1993.
Earlier in December, two pupils in their GCSE year had joined forces with the parents of two other pupils in attempting to prevent the school's closure by having the Secretary of State's decision judicially reviewed.
Their most potent line of attack was that the Secretary of State had not allowed for sufficient consultation with interested parties. Mr Justice Popplewell, who heard their application with commendable speed on December 12, disagreed. He held that the Secretary of State was under no obligation whatsoever to consult with anyone prior to her decision to discontinue the school, and so her closure decision stood.
The pupils and parents immediately appealed, but on December 21 their appeal was decisively rejected by the Court of Appeal (Regina versus Secretary of State for Education and Employment and North East London Education Association, ex-parte Morris and Ors).
On the face of it, this was an open and shut case with seemingly no lessons to be learnt - yet another example of the formidable armoury of powers which Parliament has made available to the Secretary of State. However, if we look more closely at the Court of Appeal's judgment, given by Lord Justice Simon Brown, a very different picture emerges which offers an interesting insight into the Court of Appeal's approach to ministerial powers.
Although the Court of Appeal allowed the decision of the Secretary of State to stand, it did so for reasons which differed fundamentally from those on which Mr Justice Popplewell based his earlier judgment. According to the Court of Appeal, the Secretary of State was most certainly under a duty to consult in the case of Hackney Downs. Lord Justice Simon Brown stated that, despite the "striking omission of any requirement for . . . consultation" in the 1993 Act and the "urgency likely to attend the exercise of this power", he could not "accept that no duty of consultation whatever arises". His reasoning was that pupils at the school enjoyed an "existing benefit and advantage . . . which gives rise to a legitimate expectation that it will not be withdrawn (ie the school will not be closed) without their being told why and given and opportunity to comment."
Lord Justice Simon Brown took great care in emphasising that the requirements of consultation had to be applied sensibly to the circumstances of each case, and that a "mechanistic approach" should be avoided. Thus, he concluded that in the case of Hackney Downs School the obligation to consult was implied "in common fairness" but that there was no rigid consultation procedure which had to be followed (a marvellous example of how flexible our system of common law can be in plugging gaps).
The urgency of the closure decision was another factor which was highly relevant - the school was a failing one and its pupils were being "short-changed" in terms of their educational needs; action had to be taken with a minimum of delay. The Court of Appeal also attached great weight to the fact that there had been no less than five separate consultation periods from October 1994, when the LEA decided to consider the School's future, to November 1995, when the Secretary of State granted a final consultation period of ten days to parents, staff and other interested parties.
In the Court's opinion, every possible argument as to why the school should remain open had been, or should have been, received by the time the Secretary of State announced her decision, on November 14, that the school would close mid-year.
The judgment of the Court of Appeal demonstrates the muscular approach of the courts in relation to the exercise by ministers of discretionary powers granted under statute. Lord Justice Simon Brown was emphatic in his opinion - if the Secretary of State had not granted any consultation period, it is likely that the case would have been decided differently. Further, without earlier consultations, the final consultation period of ten days would probably have been insufficient.
In the concluding episode of the story of Hackney Downs School, we clearly see lines of engagement drawn up between, on the one hand, the Secretary of State with her armoury of discretionary powers, and on the other, the courts proclaiming the importance of the rule of law in ensuring that such powers are used properly. The Secretary of State was, of course, entitled to close the school; but before doing so, she had to consider all the evidence, and, in particular, the opinions of those whom the decision would effect most.
John Hall is head of the education law department and David Moore an assistant at Eversheds, the solicitors who acted for the North East London Education Association.