Barking & Dagenham College, R (on the application of) v The Office for Students

Section 12 of the Human Rights Act 1998 (‘HRA’), headed ‘Freedom of expression’, provides as follows:

Prior to the hearing I invited Counsel to consider whether the relief sought in this case might affect the exercise of the right of members of the public to receive information and so engage s. 12(3). Ms Carss-Frisk submitted that the answer was ‘Yes’. Ms Morris accepted that relief of the kind sought here could in principle engage s. 12(3) in this way, but, on the facts, there were no individuals whose right to receive information was engaged.

For reasons which I explain in more detail below, I consider that the relief sought would affect the right of members of the public – in particular, existing and potential students of the College – to receive information which OfS wishes to communicate to them in the exercise of its statutory functions. For that reason, I consider that s. 12(3) applies. That means that I have no power to grant relief unless satisfied that the College is ‘likely’ to establish at trial that publication should not be allowed. In this context, ‘likely’ usually means ‘more likely than not’, but may mean something less than that, for example in a case where the consequences of publication would be very severe: Cream Holdings v Banerjee [2005] 1 AC 253, [22] (Lord Nicholls).

If I were otherwise minded to grant interim relief, I would have had to consider carefully whether the College was likely to establish that publication should not be allowed. However, for reasons which will appear, it has not been necessary for me to decide that question. I have instead approached the application for interim relief on the assumption most favourable to the College – i.e. assuming, without deciding, that the claim is more likely than not to succeed and so surmounts the highest threshold that s. 12(3) HRA could impose.

There is an established line of authority addressing the test to be applied when considering an application for interim relief to restrain the publication by a public authority of a report adverse to the Claimant. The principles were summarised recently by Nicklin J in Taveta Investments Ltd v Financial Reporting Council [2018] EWHC 1662 (Admin) at [95], as follows:

In the Vernons case, Laws J explained why the analogy with defamation was apposite. He said this:

At [97]-[98] of his judgement in Taveta, Nicklin J expressed reservations about the decision of Laws J in Vernons and the analogy he drew with private law defamation proceedings. One of the reasons for these reservations was the presumptive priority he thought Laws J had given to the right of freedom of expression (now protected by Article 10 ECHR) over the right to respect for private life, including reputation (now protected by Article 8 ECHR). Nicklin J noted that such priority had been said not to be justifiable in subsequent high authority: Douglas v Hello! Ltd[2001] QB 967[133], [135] (Sedley LJ), approved inCampbell v MGN Ltd[2004] 2 AC 457[55] (Lord Nicholls), [111] (Lord Hope); [138]-[139] (Baroness Hale); andIn re S (A Child)[2005] 1 AC 593, [17] (Lord Steyn). Nonetheless, at [98] of his judgment in Taveta, Nicklin J noted that Laws J’s decision in Vernons had been repeatedly applied in public law cases since and was so well-established that he was bound to follow it.

Like Nicklin J, I consider that I am bound to follow the line of authority summarised by him in the passage I have set out from [95] of his judgment in Taveta. Unlike him, I have no reservations in doing so. The position adopted by the common law authorities seems to me to be fully in conformity with the analysis required by the ECHR. In In re S (A Child), Lord Steyn made clear at [17] that ‘neither article [10 or 8] has as such precedence over the other’ (emphasis in original). But, as he went on to explain, this meant only that ‘where the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary’. Furthermore, ‘the justifications for interfering with or restricting each right must be taken into account’. Where a public authority has the function of publishing a report, that function will often be conferred for the benefit of a specific section of the public. Ofsted’s reporting powers are conferred primarily for the benefit of pupils and parents (existing and prospective) of the inspected schools. The Advertising Standards Authority’s powers are conferred primarily for the benefit of consumers (existing and potential) of the products or services advertised. In each case there is a specific section of the public with an interest in receiving the information in question. This interest is protected by Article 10 ECHR, which confers the right not only to express but also to receive information. The right of a section of the public to receive information which a public authority wishes to communicate to them in what it regards as their interest must carry very substantial weight in the balancing exercise.

On the other side of the scales, the weight of the Claimant’s and any third party’s interest relied upon to oppose publication will vary. Sometimes, the interest relied upon to restrain publication is limited to the private interest of a corporate entity. In other cases – and Ms Morris says this is one of them – damage to third party or public interests is also relied upon. But even so, it is important not to lose sight of the fact that, if interim relief is refused and the Decision is published, those to whom it is published can be told that the Decision is the subject of legal challenge. Laws J made this point in Vernons. I accept that there will be some who will not be prepared to suspend judgement pending the resolution of the claim, but a fair-minded observer learning of a decision critical of the Claimant would factor in the existence of a pending challenge before reacting to it.

In these circumstances, and other things being equal, the authorities rightly impose a high hurdle (‘pressing grounds’, ‘the most compelling reasons’ or ‘exceptional circumstances’) for the grant of interim relief to restrain publication of a report by a public authority. The high hurdle is consistent with, and indeed flows from, the ‘intense focus on the comparative importance of the specific rights being claimed’.

Ms Morris rightly drew attention to the decision of Stuart-Smith J in R (Interim Executive Board of X School) v Ofsted [2017] EMLR 5. In that case – uniquely among those cited by counsel – interim relief was granted to restrain publication of a report by Ofsted about a school whose teaching arrangements were said to give rise to unlawful sex discrimination. However, in that case there was a constellation of unusual factors. There was a discrepancy between the challenged report and previous reports produced by the same regulator in the recent past under the same regulatory regime, which the Judge said was ‘extraordinary’; the challenged report was ‘frankly inconsistent’ with previous ones: [40]. There was ‘clear evidence of antagonistic behaviour’ by inspectors during the inspection which had given rise to the challenged report, corroborated by a contemporaneous complaint: [41]. Overall, the evidence gave rise to an arguable case that the process which led to the challenged report was ‘infected by a pre-determined mindset or prejudice that would be quite alien to the proper and independent inspection process upon which the education system and the public at large rightly depends’: [45]. There was also compelling evidence that the effect of publication could be both ‘extremely adverse and irreparable’ including in terms of social and community cohesion: [46]. Finally, the Judge rejected the submission that the school could effectively mitigate the damage by communicating the fact that the report was under challenge. On the particular facts, the school’s ability to muster a coherent communication strategy would be hampered by the fact that publication was due on the last day before the summer holidays: [49].

The X School case is also of interest for another reason. In the passage noted above from

The College’s application for interim relief was supported by detailed witness statements from Yvonne Kelly, its Principal and Chief Executive Officer; Brendan James, who leads the College’s higher education provision; Darren Rodwell, Leader of Barking & Dagenham Council; and Stuart Fraser, a Governor of the College with extensive and impressive experience in the construction. On 5 October 2019, the College served a second witness statement of Darren Rodwell. Ms Carss-Frisk objected to the admission of this second witness statement, for which no provision had been made in the directions given by Sir Duncan Ouseley and which, she said, was too late to allow any meaningful response. Having regard to its contents, however, I decided to admit that statement and have taken it into account, together with the other witness statements filed on behalf of the College, in reaching my decision. I have also considered the witness statement of Susan Lapworth, Director of Competition and Registration at the OfS, in response.

Ms Morris for the College submits that the OfS is under no statutory duty to publish decisions not to register providers of higher education. She contrasts the position with other aspects of the OfS’s statutory functions, where there is an express duty to publish: see e.g. ss. 3(9), 11, 16(3), 18(7) and 22(7) HERA. Ms Morris adds that the purpose of ensuring that students are not offered what is judged by the OfS to be inadequate provision is adequately served by the taking of the decision. From this, she invites the conclusion that ‘there is no statutory obligation of publication, and no purpose to publication’.

Ms Morris characterises the flaws she has identified in the Decision – in particular, ‘privileging the application of the newly-devised algorithms over the statements of principle in its Regulatory Framework and over the social context in which an institution operates’ – as going ‘to the heart of the way in which the OfS is proposing to exercise its new functions’ – as therefore as constituting the type of error that could ground interim relief even given the heightened test applicable where such relief is sought against a public authority.

Ms Morris QC says that the reputational damage that would be caused by publication would be ‘widespread and irreparable’. Publication would lead students, employers and partners to lose confidence in the College. This would be damaging not just to the College itself but also to the local community. In this regard, Ms Morris notes that the College is ‘deeply embedded within the wider strategy of the Council for regeneration of an area of very substantial deprivation’. The effect on the reputation of the College will be particularly keenly felt because the College is being launched this autumn as an Institute

Insofar as the OfS relies on the fact that the Decision relates only to certain regulated higher education courses, Ms Morris complains that this fails to have proper regard to the likely audience, many of whom will not appreciate the fine distinctions between courses regulated by the OfS and other courses and will accordingly take the Decision as ‘an indictment of the whole of its educational offering’.

In response to the suggestion that restraining publication would deny existing and potential students information that it relevant to them, Ms Morris made the following submissions in her supplementary note:

Finally, Ms Morris submitted that any interim relief could be granted for a limited period only. She suggested that, if permission were granted, a substantive hearing could be expedited so that the claim could be dealt with in a matter of weeks.

In my judgment, the matters relied upon by Ms Morris fall far short of the ‘compelling grounds’, ‘most compelling reasons’ or ‘exceptional circumstances’ required to justify interim relief to restrain the OfS from publishing its decision. I have reached that conclusion for seven reasons.

First, as I have said at [39] above, I see no reason why an application to restrain publication pursuant to a power should as a matter of principle be easier to sustain than an application to restrain publication pursuant to a duty. Even if the distinction might in some cases be relevant, I do not see how it could avail the College here. Section 2(1)(g) imposes on the OfS a duty to have regard to the principle that regulatory activities should be transparent. The OfS’s decision to publish, even though not mandated by statute, was taken by a public authority mandated by statute to have regard to have regard to that important principle. Moreover, s. 3(9) – one of the provisions with which Ms Morris invites comparison – requires the OfS to make the information contained in the register public. If the register is required to be public, it is a short step to the principle that regulatory decisions about which institutions should be entered in the register should also be public unless there is a compelling reason why not.

Second, I am not persuaded by the argument that existing students do not ‘need to know’ that the application has been refused. The just over 30 existing students studying for courses affected by the Decision have an important practical interest (which, as I have indicated, is protected by Article 10 ECHR) in knowing that, because of the refusal of the application for registration, their continued eligibility to receive student loans is now contingent on the success of the College’s application to the OfS to ‘teach out’ their courses. Some of them may know that the College has an application for registration that has not yet been determined; some may be assuming that the application would in due course succeed. If it had, there would be no need for the ‘teach out’ application. As it is, their continued eligibility for student loans in the future has become somewhat more precarious than it was before. I accept that some of these students, on hearing that the application has been refused, may suffer some anxiety. But I find it difficult to conceive of a case where it would be appropriate to use the coercive powers of the Court to shield members of the public from information that could affect them on the ground that it might make them anxious. The present, certainly, is not such a case.

Third, those considering applying to study at the College have an equally strong interest in knowing that the College’s application for registration has been refused. I accept that the College will be unable to accept new students on to courses regulated by the OfS unless and until it is registered by the OfS. But Ms Morris’s supplementary note indicates that the College hopes to recruit students for regulated courses starting in January and September 2020. Even if such courses are not currently being offered on the College’s website, there may be students intending to enrol in courses at the College if the registration application is successful. They are entitled to know that it has not been successful, so that they can consider whether they should make alternative plans.

Fourth, I accept that some of those who learn of the Decision will inevitably see it, as Ms Morris put it, as an indictment of the whole of the College’s educational offering, rather than as directly relevant only to the College’s regulated higher education courses. But the fact that information published by a public authority may be misconstrued by some of those who receive it is not in general a good reason for restraining publication. The College is of course free to offer its own explanation – if it considers that such an explanation is required – of the significance of the Decision, its flaws (as the College sees it) and the fact that it is under challenge (and, in due course, the progress and outcome of the challenge). It would be wrong to assume that those affected will not understand the significance of the fact that the College considers the Decision to be legally flawed and is challenging it in judicial review proceedings. Students who are following or considering following a course of higher education should be assumed to have the intelligence and maturity to make rational decisions for themselves, based on all the available and relevant information. The Court should be slow to deprive them of part of that information.

Fifth, I accept that Ms Kelly is sincere when she says at paragraph 72 of her witness statement that publication of the Decision would cause ‘considerable reputational harm’.

Sixth, without reaching any view about the arguability or merits of the claim, it is right to note that the grounds of challenge do not raise any allegation that the OfS’s decision was tainted by pre-determination or prejudice (or any other kind of bad faith). This is one important respect in which the decision in X School is distinguishable. I do not doubt that the errors which the College says the OfS has made are capable, if made out, of vitiating the OfS’s decision. But the College’s grounds of challenge are well within the mainstream for judicial review pleadings. There is nothing exceptional about them.

Seventh, I accept Ms Morris’s submission that, if interim relief were granted, expedition may make it possible for that relief to be of relatively short duration, though I think the particular timescale Ms Morris suggested (a substantive hearing within weeks allowing the decision to be retaken and the College to recruit students for regulated courses starting in January 2020) was probably too optimistic. But the fact that expedition would make it possible for the claim to be resolved within a relatively short time cuts both ways. As well as shortening the period during which existing and potential students would be kept in the dark, expedition would shorten the period during which the Decision could cause reputational damage prior to a judgment by the court that could, if it is in the College’s favour, substantially mitigate the damage.

For these reasons, I refuse the application for interim relief. As I indicated at the hearing, I shall hear the parties as to whether any further directions are appropriate for the future management of the claim.