Parents for Legal Action Ltd, R (on the application of) v Northumberl County Council

These are judicial review proceedings which arise out of the wish of the defendant local education authority to change the system of state education in Northumberland. At present state schools in Northumberland are organised on a three-tier basis: first schools (ages 4-9), middle schools (9-13) and high schools (13-19). The defendant proposes to substitute a two-tier system: primary schools (ages 4-11) and secondary schools (11-19). This plan is opposed by various people, representing a variety of different interests. Certain parents who oppose the defendant’s plans have banded themselves together into the claimant organisation, which challenges the legality of what the defendant has done.

I emphasise at the outset that I am not concerned in any way with the merits – whether the educational, social, economic or organisational merits – of the competing educational systems. Those are matters on which, as a judge, I have and can have no view. My concern is simply with the question of whether the defendant has or has not acted in a lawful manner.

The claimant’s attack is on a decision taken by the defendant in full Council on 19 April 2005. The council had before it three documents which are particularly significant for present purposes. The first document was the report of the Director of Children’s Services, ‘The Outcomes of the Stage One Consultation Process,’ prepared in April 2005. Appendix 8A to the Director’s report set out ‘Indicative Comparative Costs (Both Models).’ These showed that the total indicative cost of a two-tier scheme was £425 million whilst the total indicative cost of a revised three-tier scheme was £461 million. The second document, which had been included as Appendix 4 to Part A of the Director’s earlier report, ‘A Strategic Plan for Education Provision in Northumberland,’ prepared in November 2004, was an Independent Evaluation report dated November 2004 which had been prepared by PriceWaterhouseCoopers. The third document was a further independent evaluation prepared by a Mr Alan Parker (see paragraphs [51]-[52] below).

Having “noted”:

“the outcomes of the Stage 1 consultation process and the concerns of those opposed to the Council’s preferred framework” – that is, a two-tier system,

the council resolved that:

“the preferred framework be adopted as the basis for Stage 2 consultations … with flexibility to meet geographic and demographic local circumstances.”

I will explain in due course what is meant by the Stage 1 and Stage 2 consultation processes. For the moment I merely note that the Council rejected, by a substantial majority, a proposed amendment which would have prevented a change to a two-tier system in places “where the majority of the community are opposed to change.”

The substantive relief sought by the claimant is identified as being (i) a declaration that the decision of 19 April 2005 (described in the Form N461 as the decision “to proceed to Stage 2 consultation … on basis of two tier preference”) is unlawful, (ii) an order quashing that decision and (iii) an order requiring the defendant to obtain and consider independent evaluation of the financial viability of the results of Stage 1 consultation prior to deciding on what basis to proceed to Stage 2 consultations.

The claimant makes three complaints. It is convenient if I take them in turn. The first two complaints were identified in the original Form N461. Jackson J gave permission on 25 August 2005. The third matter of complaint was ventilated only a matter of days before the final hearing (see below). I gave permission on 10 February 2006.

The first complaint arises in this way. The defendant decided to adopt a three-stage process of consultation:

The defendant acknowledges that at the conclusion of each stage a decision is made which “focusses the future consultation, which has become progressively more detailed and more localised.” Consistently with this the defendant also acknowledges that the first two phases of Stage 2 “are based on several possible organisational structures on a two-tier model” (emphasis added), the justification for this being that “in the absence of a preliminary county-wide decision on whether to adopt a two-tier structure” there is potential for the process “leading to a patchwork quilt of two-tier and three-tier education structures throughout the county.” At the conclusion of the second phase of Stage 2 the defendant will decide on “a single preferred structure for the particular school partnership”. The final, third, phase of Stage 2 will consist of local consultation on that preferred structure.

Amongst the first school partnerships involved in Stage 2 consultations is the Cramlington Partnership, whose schools include Southlands Middle School and Brockwell Middle School.

The general nature of the Stage 1 consultation is clear enough from a Powerpoint presentation put together by the defendant for showing at public meetings. Although it gave illustrations of how two-tier models and revised three-tier models might work for Alnwick, the key slide – “What Would Happen Next?” – made clear that the Stage 1 consultation was “on” what was described as “principle”, “strategy” and “general ideas within the models”. The final slide – “Conclusion” – said that “Detailed process would start after April”, that is, as part of Stage 2.

Further insight into the nature of the Stage 1 consultation is gained from the minutes of the defendant’s Area Committee for Blyth Valley held on 19 January 2005. The meeting, at which approximately 80 members of the public were present, was addressed by Mr Trevor Doughty, the defendant’s Director of Children’s Services. The minutes include the following passage:

“Questions were raised about current year groups in specific schools and about what schools children should [be] sent to for the first time. Mr Doughty advised that, at this stage, only illustrative models were available. Detailed analysis would come out at stage 2.”

That the Stage 1 consultation was intended to be confined to discussion of general principles and was not intended to embrace consideration of the implications for individual schools is also apparent not merely from the contents of the ‘Putting the Learner First’ literature issued by the defendant in January 2005 for the purposes of the Stage 1 consultation but also from the detailed descriptions of the Stage 1 consultation process which were given by the Director of Children’s Services in Part 6 and Appendix 1 of his report ‘The Outcomes of the Stage One Consultation Process” prepared in April 2005.

A letter dated 24 June 2005 by the defendant’s Chief Executive makes clear the defendant’s view of the scope of the Stage 2 consultation. Having referred to the resolution passed by the Council on 19 April 2005 he continued (emphasis added):

“It was therefore clear to all, including opponents of the decision, on what basis the County Council would proceed to Stage 2 Consultation. Any ‘alternative models’ to those proposed in Part B of the ‘Strategic Plan for Provision of Education in Northumberland’, published in November 2004, would be discussed within the context of a primary/secondary structure, and this has been the case in Stage 2 (Step 1) consultation in the first three partnerships to undergo re-organisation.”

He went on (emphasis added):

“all requests for partnership re-organisation to the Schools Organisation Committee over the coming years will be on the basis of a primary/secondary structure”.

The same point emerges with equal clarity from paragraphs 5.3 and 6.3 of the report of the Director of Children’s Services ‘The Outcomes of the Stage 2 (Step Three) Consultation Process with the Cramlington Partnership” prepared in January 2006 for the meetings of the defendant’s Executive on 16 January 2006. In paragraph 5.3 the Director recorded how:

“A meeting was held at each Partnership School in Cramlington … The meetings were offered three models for consideration.”

Each was in fact a model of a two-tier structure. In paragraph 6.3 he said:

“The meetings were reminded that, although this consultation was not about revisiting the three tier / two tier argument individuals would have an opportunity to object to any final model on the grounds that it was a two tier option following the publication of Statutory Notices.”

Specific illustrations of the process are provided by what happened at a Stage 2 (Step 2) meeting at Southlands Middle School on 20 September 2005 and at a Stage 2 (Step 3) meeting at Brockwell Middle School in November 2005.

The meeting at Southlands Middle School was addressed by Frank Jordan, the defendant’s Director of Strategy, Planning and Performance in the Children’s Services Directorate. The minutes of the meeting record him making the following comments (emphasis added):

“Frank Jordan explained that Southlands Middle School would close as a Middle School under the two-tier education system. However, decisions had not been made yet as to what the school site would be used for …

Frank Jordan explained that the meeting was to discuss the proposed models for the Cramlington Partnership and not to discuss the decision made by NCC to move to a two-tier education system …

He said that all models were to close Middle Schools … ”

The meeting at Brockwell Middle School was addressed by Mr Doughty, the Director of Children’s Services. I have been shown his Powerpoint presentation and what appear to be his speaking notes. Right at the outset of the meeting the speaking notes accompanying his first slide include this (emphasis added):

“At this point it is important to emphasise that at the beginning of this year we had a public, countywide consultation on the challenges we face and the Council’s preference for a primary secondary system of education. The Council decision on this is now made.

The focus of this stage of consultation is on discussing how we can move to a primary/secondary system in Cramlington.”

I can summarise the effect of the evidence very simply. Stages 0 and 1 of the consultation process involved county-wide consultation on the general principle of whether or not to adopt a two-tier model. There was no consultation on the implications for specific school partnerships, let alone specific schools. Stage 2 of the consultation process does focus on specific school partnerships and specific schools but is confined to consideration of different two-tier models. In other words, at no stage during the consultation process has there been any consultation on whether or not specific school partnerships, let alone specific schools, should adopt a two-tier model.

The claimant’s first complaint is that in these circumstances the decision on 19 April 2005 is unlawful because the consultation which it is based on and contemplates is, as a matter of law, defective.

The relevant statutory framework is to be found in sections 28 and 29 of the School Standards and Framework Act 1998. Section 28 provides in material part:

“(1)

Where a local education authority propose –

(a)

to establish a new community or foundation school, or

…

(b)

to make any prescribed alteration to a community school, or

(c)

to make any prescribed alteration to a foundation school consisting of an enlargement of the premises of the school, …

the authority shall publish their proposals under this section.

…

(3)

Proposals under this section shall –

(a)

contain such information, and

(b)

be published in such manner,

as may be prescribed.

…

(5)

Before publishing any proposals under this section, the relevant body or promoters shall consult such persons as appear to them to be appropriate; and in discharging their duty under this subsection the relevant body or promoters shall have regard to any guidance given from time to time by the Secretary of State.

…

(8)

Schedule 6 has effect … in relation to … the procedure for dealing with proposals under this section and their implementation …

…

(10)

In this section “the relevant body … ” means the local education authority …

(11)

In this Part –

(a)

“alteration”, in the context of a prescribed alteration to a maintained school, means an alteration of whatever nature, including the transfer of the school to a new site but excluding any change –

(i)

in the religious character of the school, or

(ii)

whereby the school would acquire or lose a religious character … ”

Section 29 provides in material part:

“(1)

Where a local education authority propose to discontinue –

(a)

a community, foundation or voluntary school, or

(b)

a maintained nursery school,

the authority shall publish their proposals under this section.

…

(3)

Proposals under this section shall –

(a)

contain such information, and

(b)

be published in such manner,

as may be prescribed.

(4)

Before publishing any proposals under this section, the relevant body shall consult such persons as appear to them to be appropriate; and in discharging their duty under this subsection the relevant body shall have regard to any guidance given from time to time by the Secretary of State.

…

(7)

Schedule 6 has effect … in relation to the procedure for dealing with proposals under this section and their implementation.

…

(9)

In this section “the relevant body” means the local education authority … mentioned in subsection (1) … ”

It will be seen that section 28 and section 29 are in substance identical save that section 28 applies to proposals to “establish” or to make an “alteration” in a school while section 29 applies to a proposal to “discontinue” a school.

So far as relevant for present purposes, Part I of Schedule 6 provides as follows:

“1(1) This Part of this Schedule applies to proposals published under section 28 [or] 29 … which relate to a school or proposed school in England.

(2)

In this Part of this Schedule “the relevant committee” means the school organisation committee for the area of the local education authority who maintain the school …

2(1) Any person may make objections to, or comments on, any proposals published under section 28[or] 29 …

(2)

Where the proposals were published by a local education authority –

(a)

any objections or comments under this paragraph shall be sent to the authority within such period as may be prescribed (“the representation period”); and

(b)

within such period as may be prescribed the authority shall send to the relevant committee copies of all objections or comments made (and not withdrawn in writing) within the representation period, together with the authority’s observations on them.

…

3(1) Proposals published under section 28 [or] 29 … require approval under this paragraph if –

(a)

the proposals were published by a local education authority and either –

(i)

objections to the proposals have been made in accordance with paragraph 2 and any of them have not been withdrawn in writing within the representation period; …

…

(2)

Where any proposals require approval under this paragraph, they shall be considered in the first instance by the relevant committee, who may –

(a)

reject the proposals,

(b)

approve them without modification, . . .

(c)

approve them with such modifications as the committee think desirable after consulting such persons or bodies as may be prescribed, or

(d)

if the committee think it appropriate to do so, and subject to regulations, refer them to the adjudicator.

…

(7)

Where any proposals are referred to the adjudicator under this paragraph –

(a)

he shall consider the proposals afresh; and

(b)

sub-paragraphs (2) to (4) (other than sub-paragraph (2)(d)) shall apply to him in connection with his decision on the proposals as they apply to the committee.”

It can be seen, therefore, that the statutory scheme envisages a number of stages: first, consultation in accordance with section 28(5) or 29(4); next the publication by the local authority of proposals in accordance with section 28(1) or 29(1); next the making of objections under Schedule 6, paragraph 2; and then the consideration of the proposals by the school organisation committee in accordance with Schedule 6, paragraph 3(2), or, if the committee think it appropriate, by the adjudicator in accordance with Schedule 6, paragraph 3(7).

The crucial point for present purposes is that the statute requires there to be consultation – sections 28(5) and 29(4) use the word “shall” – “before” the local authority publishes its proposals.

It will be noticed that the Act does not lay down any prescribed form of consultation for the purposes of sections 28(5) and 29(4), beyond the requirement that the local authority is to “have regard to” any guidance given by the Secretary of State. There appear to be two relevant sets of guidance in force at the relevant times, one entitled ‘School Organisation: Making Changes’ and the other ‘Proposers Guidance: Mainstream Schools.’ (They have been replaced with effect from 1 January 2006 by a new Handbook, ‘School Organisation: Making Changes (Mainstream).’

So far as material for present purposes, ‘School Organisation: Making Changes’ provided as follows:

“Those who are considering bringing forward statutory proposals (ie the “proposers”) must consult all interested parties, and in doing so must have regard to this guidance. The proposers should allow adequate time, and provide sufficient information, for those being consulted to form a considered view on the proposals, and should make clear how consultees’ views can be made known. The conduct of consultation is not prescribed in regulations and it is for proposers to determine the nature of their consultation including whether to hold public meetings and to whom they will issue letters.

Proposers must be able to demonstrate how they have taken into account the views expressed during consultation in reaching a decision on the publication of proposals. Where, in the course of consultation, a new option emerges which the proposers wish to consider, proposers should consult afresh on this option before proceeding to publish proposals.

It is important that proposers consider carefully who might have an interest in proposals and must, therefore, be consulted. The Secretary of State considers that the interested parties who should be consulted by proposers include:

•

any school which is the subject of proposals;

•

…

•

parents and teachers in the area who may be affected by the proposals …

[I omit the remainder of the list since nothing turns on it]

Proposals should be published within a reasonable timeframe after conclusion of consultation so that the proposals are informed by up to date feedback. The Department considers that consultation should have taken place not longer than 12 months before the proposals are published.”

So far as material for present purposes, ‘Proposers Guidance: Mainstream Schools’ provided as follows:

“The [School Organisation Committee] and schools adjudicator (if proposals are passed to them) will consider first whether adequate consultation has been carried out in accordance with legislation. The consultation process should take place well in advance of the actual publication. It is vital that proposers consult all interested parties.

It may be appropriate for a number of options to be considered before a final decision is made, but proposers should ensure that in the course of the consultation the emerging choice is sufficiently identified to enable those being consulted to focus on it. Where an entirely new option emerges from the consultation process the Secretary of State generally expects proposers to broaden the consultations to take account of that option.

In order that proposals are informed by up-to-date feedback, the Secretary of State would normally expect consultation to have taken place not longer than 12 months before the proposals are published.”

It is common ground between Ms Gemma White, who appeared before me on behalf of the claimant, and Mr Mathew Purchase, who appeared on behalf of the defendant, that in these circumstances the consultation required by section 28(5) and 29(4) has to comply with the well-known principles to be found in such cases as R v Brent London Borough Council ex p Gunning (1985) 84 LGR 168, R (Wainwright) v Richmond upon Thames London Borough Council [2001] EWCA Civ 2062, [2001] All ER (D) 422, and R (Montpeliers and Trevors Association) v City of Westminster [2005] EWHC 16 (Admin), [2005] All ER (D) 60 (Jan). Those principles can be summarised as follows: Consultation must be undertaken when proposals are still at a formative stage, must give sufficient reasons to permit the consultee to make a meaningful response, must allow adequate time for consideration and response, and the results of the consultation must be conscientiously taken into account in finalising any statutory proposals.

Moreover, says Ms White, consultation must, in the light of sections 28(5) and 29(4), meet the requirements of the Ministerial guidance.

Furthermore, says Ms White, and this must be correct bearing in mind the way in which sections 28 and 29 are structured and their focus – see the language of sections 28(1) and 29(1) – on the particular school which is to be the subject of the local authority’s proposals, that process of consultation must be a process of proper consultation in relation to each school.

The claimant’s case is very simple. Ms White submits that, by structuring the consultation process as it has and, in particular, by proceeding as it has in the wake of what she calls a broad structural decision on 19 April 2005, the defendant has prevented itself from complying with its statutory obligation to consult on individual school closures and alterations.

In substance I agree with Ms White. I repeat my analysis of the consultation process. Stages 0 and 1 of the consultation process involved county-wide consultation on the general principle of whether or not to adopt a two-tier model. There was no consultation on the implications for specific school partnerships, let alone specific schools. Stage 2 of the consultation process does focus on specific school partnerships and specific schools but is confined to consideration of different two-tier models. In other words, and this as it seems to me is the crucial point, at no stage during the consultation process has there been any consultation on whether or not specific school partnerships, let alone specific schools, should adopt a two-tier model.

There was, let me emphasise, no objection to the defendant adopting a phased consultation process. And I am quite content to accept, as Mr Purchase urges, that the entire consultation process – Stages 0, 1 and 2 – is properly to be viewed as one long consultation process. Nor, I should add, was there any objection to the defendant taking a preliminary or provisional decision, or decision in general principle, at the end of Stage 1 that its preferred model, county-wide, was the two-tier model: see Nichol and others v Gateshead Metropolitan Borough Council (1988) 87 LGR 435. There was, therefore, in my judgment, no legal defect in the way in which Stages 0 and 1 of the consultation process were structured and implemented. Nor, in my judgment, was there – so far as concerns this head of complaint – any legal defect in the defendant deciding, as it did, on 19 April 2005, that the “preferred framework” was to be the two-tier model. And I agree with Mr Purchase that there is not, as such, any objection to the defendant consulting on the basis of a preference for a two-tier model.

The defendant’s error was in treating that decision as precluding any public discussion during Stage 2 of the consultation process of anything other than two-tier models. Given what had gone before and given, in particular, that down to 19 April 2005 there had been no consultation on the implications for specific school partnerships, let alone specific schools, of the defendant’s proposals, the vice here lies in the fact that the decision of 19 April 2005 has been understood as confining the subsequent Stage 2 consultations in relation to specific school partnerships and specific schools to consideration of different two-tier models, when what is now required as part of the Stage 2 consultations, given that this opportunity was not afforded earlier as part of the Stage 0 and 1 consultations, is meaningful consultation, for example, on whether Southlands Middle School and Brockwell Middle School should be part of a two-tier system or remain as part of a three-tier system.

In these circumstances, as Ms White correctly says, the Stage 2 consultations – the only consultations relating to specific school partnerships and specific schools – are taking place at a time when the proposals are in truth no longer at a formative stage. The proposals are now no longer at a formative stage because the defendant’s decision on 19 April 2005 is being treated by it as precluding any public discussion during Stage 2 of anything other than two-tier models. The consequence, as Ms White points out, is that consultees have been denied any opportunity – let alone any meaningful opportunity – to express their views as to whether, for example, Southlands Middle School and Brockwell Middle School should be part of a two-tier system or remain as part of a three-tier system. As Ms White puts it, and I agree, the consultation process has been operated in such a way that objectors have never been given a real opportunity to present their case against closure of particular middle schools. For this reason, in my judgment, neither the consultation process taken as a whole, nor the Stage 2 consultation on its own, is adequate.

On that short ground alone, as it seems to me, the claimant is entitled to relief. In my judgment there has been a failure to consult properly and in accordance with the law.

Ms White puts the same point in a slightly different way, relying for this purpose on what Maurice Kay J said in R (Medway Council and others) v Secretary of State for Transport [2002] EWHC 2516 (Admin) at para [32]:

“It is common ground that the issue of Gatwick will probably re-emerge, if only as a proffered alternative solution. The question really becomes this: knowing that the Claimants will probably and legitimately wish to advocate Gatwick as an alternative solution at a later stage in the decision-making process, is it procedurally unfair of the Secretary of State to operate the consultation process in such a way that the Claimants lose their only real opportunity to present their case on Gatwick without there being in place a Government policy which, realistically, will present them with an insurmountable hurdle? In my judgment, when one considers the decision-making process as a whole, the answer is that to operate the consultation process in that way is indeed procedurally unfair. Accordingly, this ground of challenge succeeds.”

I accept that this alternative complaint of unfairness is also made out. Fairness requires, in my judgment, a consultation process in which those being consulted can express their views on the fundamental question of whether, for example, Southlands Middle School and Brockwell Middle School should be part of a two-tier system or remain as part of a three-tier system. Given that that had been excluded from consideration – even if lawfully excluded from consideration – at the Stage 0 and Stage 1 consultations, fairness requires that it now forms part of the Stage 2 consultation process. The constraint on the Stage 2 process so as arbitrarily to exclude this fundamental issue makes the Stage 2 process unlawful not merely because it is a process which fails to meet the requirements imposed by sections 28 and 29 but also because it is unfair.

There is one final point. If it is to be said that, in some way, the consultation on the general issue which took place as part of Stages 0 and 1 is sufficient to overcome the limitations of Stage 2 – and for the reasons I have given I do not see how it can – then another problem arises. The Ministerial guidance requires the consultation process normally to last no more than a year, yet as we have seen the final Stage 2 consultations are unlikely to take place before about 2020 or 2021, notwithstanding that the Stage 1 consultation closed in March 2005.

Mr Purchase placed much reliance on Nichol and others v Gateshead Metropolitan Borough Council (1988) 87 LGR 435. Plainly at a certain level that case has various similarities with the present case and in that case the challenge failed. Furthermore, I can accept Mr Purchase’s submission that Nichol precludes any submission that the defendant was acting unlawfully merely because it was proceeding on the basis of a preferred framework. But that, as I have already indicated, is not the essential vice in the present case. In the light of events down to 19 April 2005, the vice, as I have said, lies in the defendant’s erroneous decision to treat that decision as precluding any public discussion, during Stage 2 of the consultation process, of anything other than two-tier models. The complaint, in other words, goes directly to the way in which the consultation is being undertaken. In contrast, in Nichol the argument seems to have proceeded on a narrower basis: see per Sir George Waller at pages 462-463.

At the end of the day, all these cases proceed on their own particular facts. The principles are clear. The question is how they fall to be applied in the particular case. In Nichol the answer went one way. In the present case it goes the other. I see no inconsistency between the decision in Nichol and my decision in the present case.

Mr Purchase also sought to rely upon Maurice Kay J’s observation in the Medway case at para [26] that:

“Other things being equal, it was permissible for [the Secretary of State] to narrow the range of options within which he would consult and eventually decide. Consultation is not negotiation. It is a process within which a decision-maker, at a formative stage in the decision-making process, invites representations on one or more possible courses of action.”

That does not assist the defendant in the present case. In the first place, sections 28(5) and 29(4), read in conjunction with (respectively) sections 28(1) and 29(1), require consultation on any proposal, as the case may be, to alter or close a particular school. That very specific statutory requirement, in my judgment, would preclude the kind of narrowing of options which the defendant would have to establish if it is to justify as adequate the consultation process which has in fact been offered here. Moreover, and as I have already noted, the actual decision in the Medway case was against the Secretary of State, for by narrowing the options the Secretary of State was found to have acted unfairly and therefore unlawfully.

Finally, Mr Purchase sought to rely upon my own observations in R (Beale and Carty) v London Borough of Camden [2004] EWHC 6 (Admin) at paras [17] and [19], summarised in my comment at para [19] that:

“there is nothing here [in R v North and East Devon Health Authority ex p Coughlan [2001] QB 213] to suggest that consultation involves as a legal requirement an articulation of both sides of the argument. Proper consultation requires sufficient reasons to be given for the particular proposals to enable those consulted to give intelligent consideration and an intelligent response to the proposals. But it is not said that consultation requires sufficient information to be given about any objections to the proposals to enable those consulted to give intelligent consideration and an intelligent response to the objections.”

But that, with respect to Mr Purchase, goes to a different point and one which is not being taken by the claimant.

Mr Purchase invites me to consider whether the consultation process looked at as a whole is fair in all the circumstances. He invites me to say that it is. In my judgment it is not. It is unfair because, to repeat, consultees have been denied any meaningful opportunity to express their views as to whether, for example, Southlands Middle School and Brockwell Middle School should be part of a two-tier system or remain as part of a three-tier system. The consultation process has been operated in such a way that objectors have never been given a real opportunity to present their case against closure of particular middle schools.

I should add that it is nothing to the point that objectors may be able to ventilate the issue as part of the process of statutory objection after the defendant has published its proposals. The statute provides for both a process of consultation under sections 28(5) or 29(4) and a right to make objections, at a later stage, under Schedule 6, paragraph 2. The fact that an objector can later make objections after the defendant has published its proposals does not justify an unfair and unlawful consultation at the earlier stage. The whole purpose of consultation is to inform the process before the public body formulates and publishes its final processes. That, after all, is why consultation must be undertaken when proposals are still at a formative stage and why, as the authorities which I have referred to make clear, the results of the consultation must be conscientiously taken into account in finalising any statutory proposals.

For these reasons, and to this extent, I uphold the claimant’s first complaint.

The claimant’s second complaint arises in this way. It relates to the decision-making process following the Stage 1 consultation.

On 30 November 2004 the defendant’s Executive met and resolved to recommend to the County Council meeting on 8 December 2004 that, inter alia, the Director’s report, ‘A Strategic Plan for Education Provision,’ was a suitable document in scope and content as a basis for general consultation until 1 March 2005. (In the event the document was issued to the public in January 2005.) On 2 December 2004 this recommendation was considered by the defendant’s Scrutiny Committee: Services (Education). The Scrutiny Committee resolved that the decision of the Executive on 30 November 2004 be endorsed, subject to a number of recommendations to the County Council. The one which is important for present purposes (for convenience I adopt the different numbering subsequently used at the meeting of the Council on 8 December 2004) is number (5), that “evaluation of the financial and educational viability of the results of the consultation be undertaken by Independent Evaluators.” This recommendation seems to have emerged as a result of concerns expressed to the meeting by one of the campaigners that PriceWaterhouseCoopers, who as we have seen had previously been advising the defendant, were not totally independent. Similar views were expressed in a letter to councillors dated 6 December 2004 from another campaigning group.

At the meeting of the County Council on 8 December 2004 there was much debate, in particular about the Scrutiny Committee’s recommendation (5). Councillor Weightman moved the Scrutiny Committee’s recommendations. Councillor Hillman moved an amendment “that all the Scrutiny recommendations be noted, but Scrutiny Recommendation 5 is not supported,” but after further discussion withdrew it. Councillor Davey then moved an amendment to Councillor Weightman’s original motion:

“In order to reach a compromise, the Scrutiny Recommendations be accepted with the caveat that, in Recommendation 5, the Independent Evaluators will be agreed by the three Party Group Leaders, and all the Scrutiny recommendation are subject to anything subsequently decided when the substantive reports are considered later on in the agenda.”

The amendment was carried by a large majority. It was then put to the vote as the substantive motion and carried. The meeting “further” resolved that ‘Putting the Learner First, A Strategic Plan for Education Provision’ was a suitable document in scope and content as a basis for general consultation until 1 March 2005.

What happened next is explained in a witness statement by Frank Jordan, the defendant’s Director of Strategy, Planning and Performance in the Children’s Services Directorate:

“the brief and scope of the second independent evaluation was clarified and agreed with the Elected Members that had recommended this resolution. On the 23^rd February a meeting was held with Cllr Jim Wright” – he, as I understand it, was representing Councillor Davey, the Labour Leader of the Council – “Cllr John Carlin (Executive Members for Children’s Services), Cllr Scott Weightman” – the leader of the Liberal Democrat group – “Cllr Michael Jeans” – the leader of the Conservative group – “Jackie Strong, Neville Gaukroger and Alan Parker. Following this meeting it was clear that members did not want to revisit the full independent evaluation … At the meeting the brief for the Second Evaluation was agreed and this was to involve scrutiny and examination of the whole process of consultation but specifically … Given this clarification at the meeting with the Elected members the financial evaluation was not included. Alan Parker was appointed to undertake this second independent evaluation.”

It is accepted by Mr Purchase that the “independent evaluation” prepared by Mr Parker did not meet the criteria laid down by the Scrutiny Committee in its recommendation number (5) and by the full Council on 8 December 2004.

The matter came back before the Executive on 11 April 2005, the Scrutiny Committee on 12 April 2005 and the full Council on 19 April 2005. The Scrutiny Committee sought and was given confirmation that their recommendations at the meeting on 2 December 2004 had been “taken into account” in the report of the independent evaluators. The matter seems not to have been the subject of any particular discussion or specific decision on 19 April 2005, but the decision by the full Council to adopt the “preferred framework” can only have been taken in the full knowledge that the only evaluation was that carried out by Mr Parker. That would have appeared clearly enough from the papers put before the meeting, which included his evaluation.

The claimant contends that in these circumstances the decision taken on 19 April 2005 was unlawful on the following grounds:

In my judgment there is no substance in either of these complaints.

The starting point is that there is, as a matter of general principle, no statutory or other legal obligation on the defendant to obtain such an independent evaluation. The only obligation was that which the defendant imposed upon itself by its decision on 8 December 2004. That was a decision which the defendant could lawfully take, but it was equally a decision which, if it chose, as in my judgment it subsequently did, the defendant could lawfully reverse.

As Mr Purchase correctly submits, the crucial principle is that set out by Laws LJ in R (Khatun) v Newham London Borough Council [2004] EWCA Civ 55, [2005] QB 37, at para [35]. Having referred to CREEDNZ Inc v Governor General [1981] 1 NZLR 172 and In re Findlay [1985] AC 318, Laws LJ continued:

“In my judgment the CREEDNZ Inc case (via the decision in In re Findlay) does not only support the proposition that where a statute conferring discretionary power provides no lexicon of the matters to be treated as relevant by the decision-maker, then it is for the decision-maker and not the court to conclude what is relevant subject only to Wednesbury review. By extension it gives authority also for a different but closely related proposition, namely that it is for the decision-maker and not the court, subject again to Wednesbury review, to decide upon the manner and intensity of inquiry to be undertaken into any relevant factor accepted or demonstrated as such. This view is I think supported by the judgment of Schiemann J in R v Nottingham City Council ex p Costello (1989) 21 HLR 301, to which Mr Luba referred us. That case concerned the degree of inquiry which an authority was obliged to undertake into issues of priority need and intentional homelessness. Schiemann J said, at p 309:

“In my view the court should establish what material was before the authority and should only strike down a decision by the authority not to make further inquiries if no reasonable council possessed of that material could suppose that the inquiries they had made were sufficient.”

This approach is lent authoritative support by the decision of this court in R v Kensington and Chelsea Royal London Borough Council ex p Bayani (1990) 22 HLR 406, which was concerned with the authority’s duty of inquiry in a homelessness case. Neill LJ said, at p 415:

“The court should not intervene merely because it considers that further inquiries would have been sensible or desirable. It should intervene only if no reasonable housing authority could have been satisfied on the basis of the inquiries made.””

Ms White seeks to escape from the obvious difficulties that this presents her by asserting that the claimant is not asking the court to decide what is relevant; the claimant, she says, is simply asking the court to give effect to the defendant’s own decision on 8 December 2004 that an independent evaluation was a relevant factor to be taken into account. That, I am afraid, will not do, for it overlooks the defendant’s subsequent decision to dispense with the independent evaluation for which it had previously called. That decision was perfectly lawful. The defendant had not bound itself not to reconsider its previous decision. Indeed, it would probably have been acting unlawfully if it had purported to do so. Its subsequent decision cannot possibly be characterised as Wednesbury unreasonable, any more than one can characterise as Wednesbury unreasonable the decision the defendant took on 19 April 2005 to adopt the “preferred framework” without having obtained an independent evaluation of the kind it had had in mind the previous December. In my judgment, the defendant was fully entitled to decide as it did on 19 April 2005 notwithstanding that it had not obtained and did not have the independent evaluation for which it had previously called.

I agree with Mr Purchase when he submits that the issue for the court is whether it was irrational for the defendant to proceed on 19 April 2005 as it did, just as I agree with him when he submits that it is obvious from the minutes of the meeting and the report of the Director of Children’s Services, ‘The Outcomes of the Stage One Consultation Process’ (which was before the meeting) that the defendant had full regard to both educational and financial factors. To Mr Purchase’s question there can in my judgment be only one answer. The defendant was perfectly entitled to decide as it did, on the basis of the materials it had before it and without requiring an independent evaluation.

I should add that nothing turns on the question of whether the operative decision was that taken by those present at the meeting on 23 February 2005 or that taken by the full Council itself at the meeting on 19 April 2005. Ms White suggests that authority may have been lacking for what was done on 23 February 2005. Even if that is so, the fact remains that the full Council decided on 19 April 2005 to proceed as it did in the knowledge that the only evaluation was that prepared by Mr Parker. There was nothing unreasonable, let alone irrational, in that decision. It was, as Laws LJ put it, for the defendant on 19 April 2005 to decide upon the manner and intensity of inquiry to be undertaken into any relevant factor accepted as such, and nothing it had previously decided could prevent it considering that matter afresh.

Nor, in my judgment, is there any substance in the submission that the previous decision was itself a material consideration which had to be taken into account and that the defendant, if it intended to depart from it, ought to have provided good reason for doing so. Ms White says that the defendant’s failure to do so amounts to an error of law. In support of this proposition she refers to R (Saunders) v Tendring District Council [2003] EWHC 2977 (Admin) at para [62], where Sullivan J said:

“the defendant's safety/evacuation and environmental capacity reasons for refusing planning permission in February 2003 were material considerations which the committee should have taken into account in June 2003. In so concluding, I do not suggest that members were bound to reach the same conclusion in June as their predecessors had in February, nor do I suggest that officers should not have set out their own professional judgment. However, the members in June should have been given a proper opportunity to consider whether or not they adhered to the objections made in February, and if not why not. They were not given that opportunity.”

That was a very different case and one moreover where, as Sullivan J pointed out (see at para [67]), the way in which the matter had been presented to councillors was “seriously misleading and unfair.” It does not assist the claimant here. There was, in my judgment, no error of law by the defendant.

Nor, in my judgment, is there any more substance in the claimant’s complaint of a breach by the defendant of a legitimate expectation.

The claimant’s case is that there was a breach of its legitimate expectation that an independent evaluation in accordance with the defendant’s resolution of 8 December 2004 would be carried out prior to any decision as to the basis upon which the defendant would proceed to Stage 2 of the consultation. Put shortly, the claimant’s case is that, properly construed, the resolution of 8 December 2004 provided a clear and unambiguous representation that the defendant would obtain an independent evaluation of the financial and educational viability of the results of the Stage 1 consultation before reaching a decision on the basis on which to proceed to Stage 2. So, it is said, the claimant and its members were legitimately entitled to expect that the defendant would proceed in this way. There is nothing, Ms White says, to relieve the defendant from honouring the legitimate expectation created by its resolution. She relies upon my decision in R (Montpeliers and Trevors Association) v City of Westminster [2005] EWHC 16 (Admin), [2005] All ER (D) 60 (Jan), at paras [40]-[45].

I do not need to go through the well-known authorities explaining the doctrine of legitimate expectation. It is enough for me merely to identify the three authorities to which Mr Purchase referred me: R v North and East Devon Health Authority ex p Coughlan [2001] QB 213, R (Bibi) v Newham London Borough Council [2001] EWCA Civ 607, [2002] 1 WLR 237 and Rowland v Environment Agency [2003] EWCA Civ 1885, [2005] Ch 1.

Mr Purchase puts forward a number of reasons as to why, as he would have it, there has been no breach of any legitimate expectation. I need not take up time considering his submission that the resolution of 8 December 2004 was too vague to give rise to a legitimate expectation of anything in particular. I am prepared to assume in favour of the claimant, though without deciding, that the resolution was sufficiently clear for this purpose. But I agree with his two main arguments as to why there has been no breach of any legitimate expectation.

The first is fundamental. Mr Purchase submits by reference in particular to Coughlan, and I agree, that a legitimate expectation arises, and arises only, in relation to some benefit, procedural or substantive, to a claimant and in relation to some promise made to him or at least applying to him. As he puts it, and I agree, legitimate expectations do not arise from decisions made by public authorities purely for their own purposes. This, as he points out, is why reliance, even if not essential in every case, is so significant: it shows that the claimant had an expectation that something would apply to him. In the present case, as Mr Purchase observes, the resolution of 8 December 2004 was not a promise to the claimant (or, for that matter, to consultees generally) nor was it something which conferred, or could confer, any benefit on the claimant or its members (or on consultees generally). As he points out, even on the claimant’s own analysis of the meaning of the resolution – which he does not necessarily accept – the independent evaluation was to take place after closure of Stage 1 of the consultation. It was not, therefore, related to any part of the process in which the claimant or its members had any involvement.

I agree with this analysis, which also serves to explain why the Montpeliers case is of no assistance to the claimant. The legitimate expectation which I there found to be established (see at para [40]) was that residents would be allowed to make representations before any decision was reached – it was, in effect, based on a representation to residents that they would be properly consulted. The alleged representation in the present case was of an entirely different nature and, in my judgment, not such as to give rise – indeed, not such as to be capable of giving rise – to any legitimate expectation.

Mr Purchase’s other submission is equally compelling. Let it be assumed that in some way the resolution of 8 December 2004 did give rise to some legitimate expectation. It cannot be said, he submits, that the defendant has treated the claimant or its members so unfairly as to amount to an abuse of power. And that, he says, referring for this purpose to Rowland at para [67] (“so unfair as to constitute an abuse of power”), is now accepted as being the overriding test. I agree with Mr Purchase, and essentially for the reasons he gives. There was nothing unfair, no abuse of power, in the decision of the defendant to proceed on 19 April 2005 notwithstanding that there had not been the independent evaluation contemplated by the resolution of 8 December 2004. The defendant, as I have already said, was, in my judgment, perfectly entitled to decide as it did on 19 April 2005, on the basis of the materials it had before it and without requiring an independent evaluation. Its decision was entirely reasonable. It was entirely fair. It involved no abuse of power. It involved no breach of any legitimate expectation.

For all these reasons I reject the claimant’s second complaint.

The claimant’s third matter of complaint arises in this way. It relates to the figures in Appendix 8A to the Director’s report, ‘The Outcomes of the Stage One Consultation Process,’ put before the council on 19 April 2005. The claimant draws attention to what was said by the Director about his strategy generally and about these figures in particular in paragraph 9.2 of his report:

“An element of the Putting the Learner First strategy is to address these fundamental building issues so that modern fit for purpose facilities that inspire and promote improved educational standards can be provided to all learners.

The indicative capital costings … show a baseline capital requirement of £425 million across the estate to bring it up to the required standard under a [two-tier] system. This figure compares to £461 million for a revised three tier educational system (emphasis added).”

The claimant also draws attention to what the Director said in a briefing paper for councillors:

“The total capital costs include the cost to effect the age of transfer as well as those costs required in the short term to address urgent health and safety issues and the capital required to bring the estate up to the required DfES Building Bulletins. This is therefore a strategic business case for the modernisation and transformation and not a simple comparison of costs for reorganisation (emphasis added).”

The claimant asserts that in fact, as other documents produced by the defendant show,

The significance of this difference is illustrated by the claimant’s analysis of the costs for the Cramlington Partnership. Of the defendant’s figure of £425 million, £24.23 million was attributed to the Cramlington Partnership. According to the claimant, the cost required to bring the Cramlington Partnership estate up to the DfES Building Bulletins standard is actually £21.63 million higher.

The claimant’s case is very simple. It asserts that the Director’s report was misleading in the way it presented this information, that this resulted in the defendant taking its decision on 19 April 2005 on a mistaken basis as to the capital costs of the project and that the decision should therefore be quashed. The claimant further asserts that although financial arguments were not presented as the overriding reason for moving to a two-tier system it is clear that the funding of the project was a key consideration. Reliance is placed on R (Saunders) v Tendring District Council [2003] EWHC 2977 (Admin), especially at paras [62]-[67]. In that case, as we have seen, the “seriously misleading and unfair” way in which material was presented to councillors in a report led to their decision being quashed. I was also referred to Georgiou v London Borough of Enfield [2004] EWHC 779 (Admin), especially at paras [78] and [85], another case where a decision was quashed because a report to councillors was “materially deficient and misleading”.

Ms White submits that, given the way in which the material was presented in the Director’s report, there are two key questions that have to be addressed:

The defendant says that these passages relied upon by the claimant have to be read in context. It is pointed out, for example, that in paragraph 9.1 of his report the Director, having referred to:

“a significant need to invest in Northumberland schools to bring them up to the required minimum standards as outlined by DfES guidance,”

quantified the total backlog of repairs as amounting to £52.78 million before going on to point out that a further £26 million was need to address the needs of mechanical and electrical installations and a further £7.3 million to ensure Disability Discrimination Act compliance. He continued in paragraph 9.2:

“The figures highlighted above relate to costs required to bring school buildings up to the required standard … What these figures do not indicate is that many school buildings also have fundamental suitability issues … This therefore limits the ability to deliver a modern curriculum.”

This reflected earlier observations contained in the Director’s report, ‘A Strategic Plan for Education Provision,’ of December 2004. Paragraph 2.6 of the Executive Summary identified that:

“the Council needs to invest an extremely large amount of capital resources in addressing the large backlog of condition and suitability needs of Northumberland’s schools.”

Paragraph 4.3 of Part A of the main report was pretty blunt:

“the majority of the buildings have reached the end of their service life, with some offering an increased health and safety risk. There is therefore a clear need to modernise the education estate … Given … that the majority of the buildings have reached the end of their life it would not represent best value to start to invest in the current building stock. There is essentially a need to rebuild the entire estate.”

Mr Purchase makes three broad submissions. First, and fundamentally, he disputes that councillors were misled or would have misunderstood what was being said. He submits that the figures provided to councillors did represent, albeit on an indicative, unfixed basis, what was required to ensure that the school estate provides facilities fit for modern educational requirements and which meet DfES requirements, namely to provide modern education in buildings which meet modern standards. He submits that this is what councillors would have understood – correctly understood – and that they were never misled into thinking that the figures provided to them represented the costs of providing uniformly ‘top of the range’ buildings, let alone providing an entire school estate of new buildings. What the figures showed, he says, and what councillors would have understood them to show, was the cost of producing schools under a revised organisation which met the required standards of the DfES, both in terms of suitability of layout and design and of condition; not the cost of producing deluxe schools with advanced and upgraded facilities. This, he says, is apparent, for example, from what the Director said in the paragraphs from section 9 of his report which I have set out in paragraph [75] above. Thus it can be seen that paragraphs 9.1 and 9.2 clearly distinguish between the costs involved in bringing the school estate up to “the required minimum standards as outlined by DfES guidance” (emphasis added) and the additional costs that would be required to address what were referred to as “fundamental suitability issues”.

Mr Purchase’s second submission is that, in any event, this ground of challenge can succeed only if the claimant is able to show that the defendant either failed to take into account a material consideration or acted irrationally. He accepts that the standard of school buildings contemplated by the indicative figures was a material consideration, just as he accepts that the Director’s report, together with the other materials given to councillors, is relevant in determining whether it was in fact taken into account. He asserts that the Director’s report clearly dealt with the issue – as, indeed, it plainly did. So, he says, the defendant – the Council – did take these highly relevant matters into account. But, he submits, the manner in which they were taken into account was for the defendant – the Council – subject only to normal Wednesbury review. It is not, he says, for the court to determine what conclusion the Director’s report or the Council ought to have reached on disputed issues or issues which are in truth matters for evaluation and judgment. It is not for the court, he says, to depart from the usual approach to public law challenges and make its own assessment of the ‘accuracy’ of the report, in the sense of determining for itself the standard of works represented by the indicative costs and deciding whether the report’s language matches that standard. Nor, he says, should the court examine in minute detail the indicative figures themselves.

The question, he says, is whether – looking at the Directors’ report and the other information given to councillors – the defendant failed to take into account a material consideration. And to this question, he says, there can be only one answer. The defendant – the Council – had all the relevant matters before it and took them into account. Mr Purchase submits that Saunders and Georgiou do not assist the claimant. The reports in those cases, he says, were misleading because they omitted material information. Here, in contrast, the Director’s report and the other materials which councillors had, contained all the relevant information and it was for the defendant – councillors – and not the court to evaluate it and decide what to make of it.

Mr Purchase’s third and final submission is that, even if there is any substance in the claimant’s complaint – which of course he says there is not – it would not have had any impact on the decision. Both sets of indicative figures – those for the two-tier solution and those for the three-tier solution – were based on the same formulae and the same standards. So if the figures for the two-tier proposals were understated, then the figures for the three-tier alternative must have been correspondingly understated. Any misunderstanding would therefore have applied to both sets of figures and the difference (whatever it was) would have been proportionately the same. As the clamant accepts, to ‘do nothing’ was not a realistic option for the defendant. There was no question of leaving the school estate as it was. The indicative figures showed, as we have seen, that the costs of adopting the two-tier model were significantly smaller than the costs of retaining the three-tier alternative. There is no suggestion that this would not also have been the case had the figures been calculated on the more expensive basis. So irrespective of what precise standard of works the figures represented, and irrespective of whether the ‘correct’ figure for the costs was £X, £Y or £Z – and it has to be remembered that these were only ever stated to be indicative costs and were likely to change as the programme developed –, the fundamental point would have remained the same: insofar as there was an economic case for choosing one model over the other that case favoured the two-tier solution over the retention of the three-tier system.

Essentially for the reasons given by Mr Purchase I reject the claimant’s third complaint.

I have been taken to much material bearing on the fundamental issue. The evidence is substantial. The very helpful skeleton arguments are detailed. The material which councillors had available to them in April 2005 was voluminous (the Director’s report is a very long document indeed). It is quite impracticable for me to rehearse all the evidence and all the detailed arguments I have heard. I can only say that, having regard to all this material, I am satisfied that the claimant has failed to make good its case. I accept Mr Purchase’s characterisation of the material as I have summarised it in paragraph [76] above. There is, at the end of the day, nothing to show either that the material put before the Council was misleading or that it was misunderstood (or likely to have been misunderstood) by councillors.

On this ground alone the claimant’s complaint must fail. But I should make it clear that I would in any event have rejected it on each of the other two grounds put forward by Mr Purchase.

The claimant has therefore succeeded in part in relation to its first complaint but has failed in relation to the two other complaints. I invite counsel to agree the appropriate form of order. It will be appreciated that the basis of my finding that the claimant’s first complaint has been made good does not entitle the claimant either to a declaration that the decision on 19 April 2005 was unlawful or to a quashing order. What the claimant is in principle entitled to is appropriate declaratory relief as to the form the Stage 2 consultation should take.

Before leaving the case I should say a word or two about the history of the litigation. The claimant’s Form N461 was dated 5 July 2005. It was supported by a forty page statement of facts. An acknowledgement of service and summary grounds of resistance were served. Permission was granted by Jackson J on 25 August 2005. By the time the case on for hearing before me on 10 February 2006 the claimant’s two bundles of documents ran to some 1,240 pages. In addition there were two defendant’s bundles (albeit contained in a single lever arch file) running to in excess of a further 400 pages. There was also a so-called core bundle, which did not in fact contain most of the documents to which I was referred.

On 2 February 2006 the claimant applied for permission to rely on additional grounds. This application was supported by a further statement – the third – from the claimant’s solicitor, to which was exhibited a bundle of documents running to a further 120 pages. On 8 February 2006 the claimant’s solicitor wrote to the court – the letter was received the next day, the day before the hearing – saying it was assumed the application to amend would be dealt with at the start of the hearing; asking if this could be borne in mind when listing the start time for the time; and suggesting that an “early start” would assist. Given, as the claimant’s solicitor had known since at least mid-January 2006, that the case had been listed for hearing on 10 February 2006 with a time estimate of one day it is not altogether clear to me what she had in mind.

Be that as it may, pre-existing commitments made it impossible for me to sit early or to extend the hearing very far into the following day. It was quite obvious that I would not be able to finish the hearing, not least because the defendant understandably needed time to respond properly to the claimant’s new case. The only other alternative being to take the case out of the list altogether and re-fix it, the parties agreed that we should get as far as we could and then adjourn part-heard. I was able to conclude the hearing of the submissions on the issues for which Jackson J had granted permission. There remained for argument the new issue, in relation to which I granted the claimant permission to amend and to apply for judicial review. The parties agreed (this being embodied in a consent order I made) that the remaining issue would be dealt with by written submissions. In accordance with the directions I had made, both parties filed further evidence, the claimant, in reply to the defendant’s evidence, producing an exhibit running to a further 219 pages.

By the time the final submissions had been lodged, the papers (excluding a substantial bundle of authorities) extended over no fewer than four lever arch files and a further two, albeit slimmer, files. The vast preponderance of this material was never referred to. The material I was either invited to pre-read or was taken to during the course of argument would all have fitted into a single lever arch file. As it was, it was scattered through no fewer than five files. More thought than seems to have been evident here needs to go into the preparation of bundles for use in the Administrative Court. In particular, a properly constructed Core Bundle would have been of inestimable advantage to me.