Judge rules cancellation of school building programme an 'abuse of power'
A high court judge has ordered the education secretary, Michael Gove, to reconsider his decision to cancel scores of multimillion-pound school rebuilding projects.
Mr Justice Holman said Gove's actions over the scrapping of the Building Schools for the Future (BSF) initiative last year had been "so unfair as to amount to an abuse of power".
Under the £55bn scheme introduced by Labour, every secondary school in England was to be either rebuilt or refurbished. More than 700 schools' building projects were cancelled when the scheme was scrapped in July.
Justice Holman told the high court in London that the education secretary had acted unlawfully in failing to consult local authorities over the decision and had broken the law by failing to give "due regard" to equality legislation.
The result is a major embarrassment for Gove and may result in the government paying compensation costs to six councils who had taken the case to the high court claiming that the cancellation of the school building projects had been "arbitrary and legally flawed".
The councils – Waltham Forest, Luton borough council, Nottingham city council, Sandwell, Kent county council and Newham – claimed victory and said they had their "fingers crossed" that the decision to cancel their building projects would be overturned. The leader of Sandwell council, in the west Midlands, said he intended to apply for a costs order against Gove.
The leader of Waltham Forest council, in north-east London, said the ruling was a "victory for common sense and fair play".
The judge found in favour of Gove on three out of five points. He disagreed with Nigel Giffin, counsel for the local authorities, who had claimed Gove's decision to scrap BSF had been "irrational". Nothing the Department for Education had said gave councils a "legitimate expectation that any given project would definitely proceed", Justice Holman said.
However, Gove should have consulted the councils over his decision to scrap the projects and must now "reconsider his decision insofar as it affects the claimants and each of the projects ... with an open mind," he added. However, he said the final decision on any project "still rests with [Gove] and ... no one should gain false hope from this decision".
Councils said they feared they may have to honour contracts – despite the fact that their projects had been cancelled – and still need to pay out millions of pounds. The situation was compounded when the Department for Education made several errors in a published list of BSF projects that were being scrapped. It later transpired that several more councils should have been on the list.
"In my view, the way in which the secretary of state abruptly stopped the projects ... without any prior consultation ... must be characterised as being so unfair as to amount to an abuse of power."
Lawyers for the government said it had not been appropriate to discuss the decision with a large number of councils and schools.
In a written ministerial statement to the Commons, Gove said he was happy to reconsider his decision and that his department would shortly make contact with the local authorities that brought the case to set out a process "through which they can make their representations to me".
Darren Cooper, leader of Sandwell council, said he felt "at the very least ... vindicated for bringing the action". "Now we have to wait to see whether the government accepts it was too hasty in scrapping the scheme. We have just got to wait with fingers crossed. This was never about us, the government or Michael Gove. It was about the generations of schoolchildren who would have had their futures damaged by the scrapping of this vital scheme."
Waltham Forest, in north-east London, has said it spent £17m on plans to update classrooms, only to have the funds turned down. The decision to withdraw the money would have a "catastrophic effect" on its pupils, Chris Robbins, leader of the council said. He described the ruling as a "victory for common sense and fair play".
David Mellen, Nottingham city council portfolio holder for children's services, said he hoped Gove would now "do the right thing and give our schools and their pupils the funding they deserve and were fully expecting to receive".
"The decision is now up to him."
Some 79 local authorities and 735 schools had projects stopped as part of the cancellation of the BSF programme. The judge said the total cost of the capital grants "saved" on all the stopped projects was about £7.5bn.
James Goudie QC, representing Gove, said the councils would receive a total of nearly £1bn. Luton will receive £150m, Nottingham £179m, Waltham Forest £68m, Newham £186m, Kent £213m and Sandwell £189m. "These proceedings are about whether they must get even more," he told the court.
The government has commissioned a review into how much should be spent on school building projects, which will report in the spring.
Ty Goddard, director of the British Council for School Environments, said much of the school estate was "beyond its design life and pupil numbers are growing".
A school which burnt to the ground more than a year ago, forcing its pupils to attend lessons in Portakabins, was one of hundreds that had its rebuilding plans halted.
Campsmount technology college in Doncaster was devastated to discover its rebuilding plans would not be going ahead. It is now being rebuilt under a different scheme.
An electrical fault in December sparked a blaze which gutted all but the gym, the library and one block of classrooms. Pupils' work was lost as classrooms and halls were razed to the ground. It took 60 firefighters to battle the 100ft flames and vast black smoke plume that engulfed the site.