Brynmawr Foundation School, R (on the application of) v Welsh Ministers & Anor (Rev 1)

Section 83 of the Government of Wales Act 2006 permits the Welsh Ministers to arrange for a local authority to exercise their statutory functions, including functions concerning sixth-form alterations at foundation schools, unless the function falls within an express exclusion.

The constitutional status of the 2006 Act weighs against implying limitations from earlier, non-constitutional education legislation. The education statutes did not occupy the entire field, and the arrangement was not an unlawful frustration of their policy. A consultation may identify a preferred proposal, provided consultees have a meaningful opportunity to respond and propose alternatives. Delay in raising procedural objections may justify refusing permission or declining relief.

The governors of Brynmawr Foundation School sought judicial review of an arrangement under section 83 of the Government of Wales Act 2006 by which the Welsh Ministers authorised Blaenau Gwent County Borough Council to consult on and make proposals concerning the school’s sixth form.

The governors also challenged the Council’s consultation and subsequent decision-making on grounds of bias, predetermination and consultation timing. The central issues were whether the delegation was lawful, whether the consultation was predetermined or procedurally defective, and whether the bias complaint should be entertained despite delay.

1. Delegation. The claim challenging the section 83 arrangement was dismissed. Section 83(1)(b) permits arrangements for any function of the Welsh Ministers to be exercised by members of staff of a relevant authority, and section 83(4) expressly includes any local authority within that expression. The statutory exclusion in section 83(3) concerns functions of making, confirming or approving subordinate legislation and did not apply.
2. The power under section 113A of the Learning and Skills Act 2000 was a function of the Welsh Ministers. The transfer of that function under section 162 and Schedule 11 to the Government of Wales Act 2006 formed part of the statutory framework governing its exercise. The 2006 Act was a constitutional statute and its machinery for devolved government should not, absent clear words, be circumvented by relying on earlier education legislation.
3. Section 33 of the School Standards and Framework Act 1998 did not prohibit the arrangement. It contemplated alterations being made pursuant to proposals falling to be implemented under any enactment. The education legislation therefore did not occupy the entire field, and the arrangement did not frustrate its policy or objects within the Padfield principle.
4. The arrangement did not produce an improper or Wednesbury unreasonable consultation. The Council was required to consult appropriate persons under regulation 4 of the School Organisation (Proposals by the National Assembly of Wales) Regulations 2004, and the Welsh Ministers retained the statutory decision-making function.
5. Bias and conduct. Permission was refused on the bias and Model Code of Conduct grounds. The Council leader’s letter linking the treatment of his grandson with the sixth-form dispute was exceptionally ill-advised and would have made further involvement inappropriate, but the complaint was raised only after substantial delay, causing prejudice to the Council. Permission was therefore refused.
6. Predetermination. Permission was granted but the claim was dismissed. The Council’s preferred proposal did not establish predetermination. Consultees were given reasons, the Brynmawr alternative was addressed, and they were invited to suggest alternatives which the Council would consider. The consultation therefore afforded a meaningful opportunity to respond.
7. Timing. Permission was granted but the claim was dismissed. The consultation could begin in relation to the wider reorganisation before the section 83 arrangement was signed, and the period was subsequently extended to provide two months after the arrangement. The consultation was not predominantly conducted during school holidays. In any event, delay would have justified refusing relief.
8. The claim was dismissed. The Welsh Ministers were awarded their costs. The Council was awarded costs only in relation to the additional grounds raised from 22 October 2010.

First-instance judicial review proceedings. The court refused permission on the bias and Model Code of Conduct grounds, granted permission on the predetermination and timing grounds, and dismissed the claim on all grounds pursued.