Secretary of State for Education and Science v Tameside Metropolitan Borough Council

A statutory power permitting ministerial intervention where a local authority has acted or proposes to act “unreasonably” requires objective unreasonableness. Disagreement, mistake or a preference for another policy does not suffice. The conduct must be such that no sensible authority, properly appreciating its responsibilities, could adopt it.

Although a statute provides that the minister must be “satisfied”, the court may determine whether the necessary facts existed, whether relevant matters were considered and whether the minister asked the correct legal question. Under section 68 of the Education Act 1944, the Secretary of State could not use supervisory powers merely to impose his preferred educational policy upon an elected local authority possessing its own statutory discretion.

A newly elected local education authority decided not to implement fully its predecessor’s approved scheme for comprehensive secondary education. It proposed temporarily to retain five selective grammar schools while continuing the other elements of the reorganisation. The scheme approved under section 13 of the Education Act 1944 empowered, but did not oblige, the authority to implement it.

The Secretary of State considered that the revised arrangements would cause unacceptable disruption. Acting under section 68, he directed the authority to implement the former scheme. The Divisional Court granted mandamus, but the Court of Appeal discharged that order. The House heard the Secretary of State’s appeal under an expedited procedure.

The central issue was whether the authority’s proposed course was objectively unreasonable, so that the statutory power to issue the direction had arisen.

1. Appeal dismissed unanimously. All five Law Lords concluded that the Secretary of State’s direction exceeded the power conferred by section 68 of the Education Act 1944. The Court of Appeal had therefore correctly discharged the order of mandamus.

2. Per Lord Diplock, “unreasonable” in this public-law setting described conduct which no sensible authority, acting with due appreciation of its responsibilities, would decide to adopt. Viscount Dilhorne and Lord Salmon expressed the equivalent test as whether any reasonable local authority could act in the proposed way. A mistaken decision, or one with which the Secretary of State strongly disagreed, was not necessarily unreasonable.

3. Per Lord Wilberforce, the words “if the Secretary of State is satisfied” did not exclude judicial review. The evaluation of established facts belonged to the Secretary of State, but the court could inquire whether the necessary facts existed, whether they were considered, whether irrelevant matters entered the decision and whether there had been a proper self-direction. The statutory context was important because the Secretary of State was reviewing the discretionary choice of another elected public body.

4. Per Lord Diplock, the court could not substitute its own opinion for that of the Secretary of State. It could nevertheless determine whether he had asked the correct question and taken reasonable steps to obtain the information needed to answer it. His good faith was not disputed. The correspondence showed, however, that he had not addressed the decisive question: whether the authority acted unreasonably by persisting with its selection plan despite threatened non-cooperation by teachers.

5. Per Lord Wilberforce, section 68 did not permit the Secretary of State to make his preference for comprehensive education prevail over the authority’s lawful policy choice. Ordinary disruption resulting from a democratically authorised change of policy was insufficient. The Secretary of State had failed to give proper weight to the authority’s electoral mandate, parental choice and the limited scale of the proposed selection.

6. Viscount Dilhorne, Lord Salmon and Lord Russell of Killowen likewise found no valid factual basis for concluding that no reasonable authority could proceed. The proposed selection method was established and potentially workable within the available time. It was also reasonable to consider that responsible teachers might cooperate once ministerial intervention was removed. The additional grounds concerning staffing, curricula and buildings had no material substance.

7. Lord Russell emphasised that legality fell to be assessed as at the date of the direction. The difference between regarding a policy as wrong and regarding it as unreasonable was fundamental. The Secretary of State had failed to recognise the strength of the latter statutory standard.

1. House of Lords: Dismissed the Secretary of State’s appeal and upheld the Court of Appeal’s discharge of mandamus.

2. Court of Appeal: Allowed the local authority’s appeal on 26 July 1976 and discharged the order of mandamus. Leave to appeal was refused.

3. Divisional Court: Granted the Secretary of State an order of mandamus requiring compliance with the section 68 direction.