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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.

For More Information Contact:
Graham Burns
TPP Law Limited
53 Great Suffolk Street
London SE1 ODB

t 020 7620 0888
f 020 7620 0778
e info@tpplaw.co.uk

Email: Graham

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Friday, 30 July 2010