Court dismisses
judicial review of Camden Academy
The High Court has dismissed two judicial reviews regarding the proposed establishment
of an Academy in Camden.
The challenges brought by a Camden parent concerned the Council’s decision to promote
an academy sponsored by University College London (UCL). It was argued that the
Council should have held an open competition to decide the type of school to be
built.
The decision to dismiss the judicial reviews will come as a relief to the Government,
Academy Sponsors and to many local authorities involved in the Building
Schools for the Future programme. A successful challenge may have caused delays to the Academy
programme, and would have involved Academy sponsors in long and drawn out processes
to determine whether the Academy should proceed, and which sponsor should be chosen.
It may also have encouraged further litigation over the choice of Academy sponsors.
Opponents of the Academies programme will be disappointed, and will seize upon the
judgement as an example of the lack of public consultation and due process which
applies to the setting up of new Academies.
The Facts
On 21 November 2007 the London Borough of Camden approved
a proposal for a new academy to be built in the Borough. The Council also approved
UCL as the preferred academy sponsor. On 29 February 2008 the Secretary of State
approved UCL’s formal Expression of Interest for the academy proposal.
Two judicial reviews were brought by parent Gillian Chandler to challenge the promotion
of the Academy. Judicial Review One (JR1) brought against the Council maintained
that an open competition should have been held to decide the type of Secondary School
to be built in the area. Judicial Review Two (JR2) was brought against the Secretary
of State challenging the decision to approve UCL’s Expression of Interest.
The grounds argued for JR1 included flawed consultation, appearance of bias and
predetermination, improper purpose, failure to give effect to guidance, decision
taken for party political gain, prejudice against the involvement of the Church
of England and general public law principles. The grounds agued for JR2 were failure
to comply with EU/Domestic procurement regime, failure to give effect to ministerial
guidance, amendment of the BSF guidance, exercise of power for improper purpose
and public law obligations.
The Decision
During the proceedings the Court considered the statutory framework concerning the
establishment of new schools. The Court noted that the legislation states that maintained
schools can only be established by a competition under S.7 of The Education and
Inspections Act 2006 (“S.7 procedure”). Academies can be set up under the S.7 procedure
too, however, unlike maintained schools Academies can also be established via a
funding agreement between a sponsor and the Secretary of State under S.482 of the
Education Act (“EA”). Under S.482(3) the Secretary of State is obliged to consult
the LEA before entering into the funding agreement, but there is no requirement
for a wider public consultation. S.482 EA does not require a competition as required
by the S.7 procedure. The Court noted that the legislation does not dictate a preference
as to which statutory route an Academy is established under.
Upon consideration of the statutory framework the Court dismissed all grounds of
review under both JR1 and JR2. The Court stressed that the S.7 procedure and the
S.482 procedure are entirely independent methods of setting up an Academy. The LEA
was consequently entitled not to exercise its discretion to hold a competition under
S.7. The Court accepted that the Council’s decision to hold a competition would
have created uncertainty and delay and would have left the Council with less control. It was
found that the Council had acted rationally by opting for an academy sponsored
by UCL.
The Claimant’s contention that the Public Procurement Regulations 2006 and the EC
Treaty provisions had been breached by the Secretary of State was dismissed. The
Court noting that the Claimant did not have the required standing to bring the claim
by way of judicial review, furthermore even with the required standing there is
no defined market for setting up academies – a fundamental requirement of the legislation.
The Court also considered that there was no suggestion of bias, or that the decision
was taken for political gain or of bias against the Church of England.
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For More Information Contact:
Graham Burns
TPP Law Limited
53 Great Suffolk Street
London SE1 ODB
t 020 7620 0888
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e info@tpplaw.co.uk
Email:
Graham
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