Chandler v London Borough of Camden

Parliament created two separate statutory routes for establishing an Academy: a funding agreement under Education Act 1996, section 482, and a competition under Education and Inspections Act 2006, section 7. An education authority may rationally choose between them. The legislation expresses no preference for competition and does not convert the section 7 discretion into a duty merely because an Academy proposal is controversial. A local authority may consult on a preferred option, provided the consultation is undertaken fairly and its results are conscientiously considered. Councillors may hold political views and legitimate predispositions, but must keep their minds open until the decision is made. Academy sponsorship is not the procurement of educational services in a relevant market. The EU procurement regime therefore did not apply to the establishment of the Academy, and the claimant lacked standing to invoke it.

The claimant challenged two decisions concerning a proposed Academy in Camden sponsored by University College London. In the first claim, she challenged the Council’s decision of 21 November 2007 to support the preferred-sponsor route rather than hold a section 7 competition. In the second, she challenged the Secretary of State’s decision of 29 February 2008 to approve UCL’s Expression of Interest and release feasibility funding.

The challenges alleged defective consultation, bias and predetermination, improper purpose, failure to follow ministerial guidance, political motivation, prejudice against Church of England involvement, breach of EU and domestic procurement law, and wider public law unlawfulness.

1. JR1 dismissed. The Council lawfully chose between two distinct statutory routes. Under section 482 of the Education Act 1996, the Secretary of State could enter a funding agreement with a sponsor. Under section 7 of the Education and Inspections Act 2006, the Council could invite proposals through a competition. Parliament had expressed no preference between these routes. The Council was therefore entitled not to exercise the section 7 power and to support UCL’s Academy proposal.
2. The Council’s consultations were lawful. There was no duty to consult on a UCL proposal before that proposal existed, and the Council was entitled to consult on a preferred option after its indicative decision. The consultation material and subsequent reports enabled representations to be made, and the Council conscientiously considered them.
3. The appearance-of-bias and predetermination challenge failed. Councillors were entitled to have political views, policy preferences and a provisional opinion. The relevant question was whether they had finally closed their minds before the decision. The evidence showed that they considered the competing arguments, reports, representations and consultation responses with open minds.
4. The Council’s reasons were lawful and rational. It was entitled to consider UCL’s educational offer, the expected benefits, certainty, control over the process, and the risk of delay and uncertainty associated with a competition. Political representatives may hope that lawful decisions made for a public purpose will commend themselves to electors; that does not establish an improper electoral purpose.
5. The ministerial guidance did not require a competition whenever an Academy proposal lacked unanimous local support. Read with the legislation, it contemplated that a competition would not be required where the authority supported an Academy and there was a willing sponsor. The Council’s interpretation was not irrational, and it had in any event good reasons for choosing the Academy route.
6. JR2 dismissed. The claimant lacked sufficient interest to invoke the EU procurement regime and was not an economic operator under the Public Contracts Regulations 2006. In any event, the procurement rules concerned markets and economic activity. Establishing the governing entity of a state school through an Academy funding agreement was a public educational function, not the purchase of educational services in a relevant market. The Secretary of State therefore acted lawfully in approving UCL’s Expression of Interest. Permission was refused on all JR2 grounds except Ground 1, which was dismissed. Both claims were dismissed.

First-instance judicial review decision. The judgment determined two rolled-up claims concerning the Council’s November 2007 decision and the Secretary of State’s February 2008 decision. Both claims were dismissed.