Edwards, R (on the application of) v Flintshire County Council

A court reviewing statutory school-reorganisation proposals supervises the legality of the procedure, rather than making the educational decision itself. Where the statutory scheme and the Code on School Organisation require consultation, mandatory requirements must be followed, but the decision-maker may retain judgment about which persons or schools are affected and what arrangements are suitable. That judgment is reviewable on ordinary public-law grounds, including Wednesbury unreasonableness. Consultation must be proper and meaningful, but the court should be slow to enlarge the burden imposed by the democratically accountable decision-maker. A requirement to highlight children’s views may be met through accompanying material that records those views and is available to the decision-makers.

The claimant sought permission to bring judicial review proceedings against the Council’s decision of 15 September 2015 to change the age range of John Summer High School from 11–18 to 11–16 and then close it. The challenge concerned the Council’s compliance with section 38(4) of the Schools Standards and Organisation (Wales) Act 2013 and the Welsh Ministers’ Code on School Organisation.

The claimant alleged that the consultation failed to include certain schools and school councils, and failed to highlight the views of children and young people. Permission had previously been refused on the papers by Dove J. The renewed application was heard by Hickinbottom J.

1. Application refused. None of the proposed grounds was arguable and the claim was not permitted to proceed.
2. The statutory scheme allocated decisions about school organisation to local education authorities and the Welsh Ministers. The court’s role was limited to supervising the legality of the procedure. It could intervene where the procedure was materially unlawful, but not substitute its educational judgment for that of the assigned decision-maker.
3. Under section 38(4) of the Schools Standards and Organisation (Wales) Act 2013, mandatory requirements in the Code had to be followed, while guidelines had to be taken into account. The Code nevertheless left the authority judgment about whether a school was affected and what constituted suitable arrangements for consultation. That judgment was reviewable on public-law grounds, including Wednesbury unreasonableness.
4. The common law authorities on consultation did not make the court the primary decision-maker as to every detail of a statutory consultation. R (Moseley) v Haringey London Borough Council [2014] UKSC 56 and R (BAPIO Action Limited) v Secretary of State for the Home Department [2007] EWCA Civ 1139 confirmed that there was no general common-law duty to consult, although a statutory duty or fairness obligation could arise. The content of consultation was fact-specific.
5. The Council was entitled to conclude that Elfed High School was not an affected school for the purposes of paragraph 3.3 of the Code. The arrangements made for other affected schools, including circulation of consultation documents and the involvement of governing bodies, were sufficient. The Code required governing bodies to facilitate consultation with school councils; it did not require the Council itself to engage directly with every school council.
6. The requirement in paragraph 3.5 to highlight children’s views was met because the correspondence report recorded the views received from children and was before the decision-makers. The GCSE concern was also recorded in the relevant minutes and reports. The later opportunity for schools to comment was not needed to cure a defect, because the original consultation had been adequate.

Permission to proceed was refused on the papers by Dove J on 21 January 2016. The claimant renewed the application before Hickinbottom J, who refused it.