When public authorities clash ~ Nicholas Dobson, THE LAW SOCIETY GAZETTE, 19 September 2016.
In the more robust days of yore (at least mine) teachers or parents would threaten bickering pupils or siblings with knocking their heads together. While this was sometimes metaphorical, more often than not a painfully practical demonstration ensued. This usually brought short sharp cessation to the dispute.
Two public authorities recently had their heads knocked together – albeit only via judicial criticism in the High Court. For there, on 6 July 2016, Holman J in R (Essex County Council) v Secretary of State for Education  EWHC 1724 (Admin) wondered why, in a ‘long saga’ lasting over five and a half years, no attempt at compromise had been made between the parties. More of this below, but first to the substantive dispute.
The dispute surrounded the decision of the new government in 2010 to cut back on the former government’s Sure Start Early Years Children Grant (the EYC scheme). This was introduced in November 2007 and was to run for a three-year period from April 2008 to March 2011. As the court noted, the grants were offered to all 152 English local authorities under discretionary powers in section 14 of the Education Act 2002. Their essential purpose was ‘to improve the quality and availability of, and access to, early years learning for children (including babies) below the age of compulsory full-time education’. Although the grants comprised both revenue and capital elements, the dispute concerned the capital element.
The secretary of state (SoS) decided that necessary savings to the EYC scheme were to be made by permitting carry forward of capital funding only when that funding was ‘committed’. This was applied as meaning that before a specified cut-off date (in the case of Essex, 29 July 2010) ‘a binding building contract had been entered into by a local authority for new build nurseries and similar EYC provision, or a binding contract had been entered into, for instance, to purchase an existing building for EYC provision’. Holman J noted that this ‘policy and decision was… applied uniformly and consistently to all local authorities’.
However, as the court noted, the ‘essential dispute’ between the parties was ‘as to whether funds which had already been promised to providers before the cut-off date should be regarded as “committed”, or only those funds in reliance upon which the provider had in turn already entered into a binding contract before that date to build or purchase’. The council’s argument was that ‘even though by the cut-off date a provider may not have entered into a binding contract with a third party such as a builder, Essex had nevertheless entered into binding contracts with their providers…’. The council therefore considered that it was already ‘committed’ within the secretary of state’s policy decision.
On 12 May 2012, Mitting J rejected the following two out of three heads of a judicial review challenge brought by the council: lack of consultation and irrationality in the choice of criteria. The council, however, succeeded on its third ground, namely ‘failure to fulfil statutory duties under the equality legislation’.
Mitting J said that since ‘there was no reference in any of the contemporaneous documents to any consideration, whether by the SoS or by his officials, of the statutory equality duties upon the secretary of state’, the decision was ‘flawed but flawed in that respect and for that reason only’. He therefore decided to quash the decision and order that it be retaken, ‘…but only to give effect to the secretary of state’s obligation under… the 2010 Equality Act’. The SoS ‘need not reopen or reconsider any other issue, save to the extent that consideration of his duties under the 2010 act requires him to do so’.
Following this decision, the SoS invited the council to make representations without limitation which he ‘will take into account when reconsidering whether and, if so, how much carry forward the council should have been permitted in 2010/11’. The council consequently submitted a substantial 30-page submission signed by assistant county solicitor Shirley Jarlett, which Holman J found to be ‘very thorough, detailed and impressive’.
The secretary of state’s revised decision was issued on 25 July 2013, which was essentially to confirm the original decision of November 2010, save for a minor and immaterial exception. This was the subject of the second judicial review, which was determined by Holman J on 6 July 2016. There the council contended that: (i) the SoS had adopted an unlawful and irrational approach to the funding cut criteria; (ii) he had adopted an unlawful and unfair approach to making exceptions; (iii) his decision was inadequately reasoned; and (iv) did not comply with his duty under section 149 of the Equality Act 2010.
Holman J rejected all these contentions. As to (i) he found (among other things) that there ‘was nothing irrational in the decision of the minister on reconsideration that he should adhere to, and apply, the same criterion or approach which he had applied to all other local authorities in 2010, namely whether or not the funding was contractually committed by the cut-off date’. This was consistent and fair and ‘an entirely rational and lawful approach’.
Regarding (ii) (unlawful approach to making exceptions), ‘it was effectively taken as read that those projects should remain funded, not as reasoned exceptions to the essential criterion of whether there was a contractual commitment by the cut-off date, but simply because the secretary of state was not now going to resile from what he had previously agreed to pay.’ (Emphasis added).
Regarding reasons, Holman J noted Lord Brown’s famous comment in South Bucks District Council and another v Porter (No 2)  UKHL 33,  where he said (among other things) that ‘… reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision’.
In the view of Holman J, the reasons given met the test of lawfulness, since (among other things) the SoS made ‘… the essential reasons perfectly clear to the informed reader, namely that the same criterion should be applied to Essex as was applied to all other local authorities’.
The Equality Act challenge also failed since ‘the minister did avowedly, demonstrably and conscientiously consider and discharge his duties under section 149 of the act in his reconsideration’.
In his landmark song, Like a Rolling Stone, Bob Dylan told ‘Miss Lonely’ that while she’d said she’d ‘never compromise’ with the ‘mystery tramp’, eventually, after staring ‘into the vacuum of his eyes’, she asked him whether he wanted ‘to make a deal’.
But as Holman J noted, there had been no such compromise between the instant parties. For although he spoke only as ‘an intermittent judge of the Administrative Court’, he nevertheless wished to stress ‘that there is no reason at all why mediation or other forms of ADR should not have a significant role in the field of judicial review, at any rate in cases which do not raise important questions of law, principle or policy’. For, as he pungently pointed out, the ‘power of talk should be at its strongest between arms of government’.