Bradbury and Others v London Borough of Enfield

[1967] 3 ALL ER 434
[1967] 1 WLR 1311
66 LGR 115

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(Judgment by: Lord Denning MR)

Bradbury and Others
vLondon Borough of Enfield

Court:

Judges:
Lord Denning MRDanckwerts LJ
Diplock LJ

Legislative References:
London Government Act 1963 - s 31; s 31(5)

Hearing date: 21, 22, 23 August 1967
Judgment date: 23 August 1967

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Judgment by:
Lord Denning MR

In this case the council of the London Borough of Enfield propose to change the system of education within the borough. Several ratepayers object and bring this action to restrain the council from acting on the proposals. Hitherto the system of education has been organised into primary education for junior pupils, that is children up to the age of eleven years plus some months; and secondary education for senior pupils, that is children from the age of twelve years to eighteen years. At the age of eleven plus, there has been a selection of junior pupils so as to allocate them to various schools for secondary education. They are separated into two groups. The best and brightest pupils are allocated to the grammar schools. These are often old foundations going back to the time of Edward Vi. The remaining pupils are allocated to secondary modern schools. These are usually new foundations. In 1965 the government decided to end selection at eleven-plus and to eliminate the system whereby children were separated into two groups. They decided that for all children there should be a comprehensive system of education, available to all and for all. The Secretary of State accordingly issued a circular dated 12 July 1965, requesting the local education authorities to prepare plans for re-organising secondary education in their areas on comprehensive lines. The circular concluded:

"The government are aware that the complete elimination of selection and separatism in secondary education will take time to achieve. They do not seek to impose destructive or precipitate change on existing schools; they recognise that the evolution of separate schools into a comprehensive system must be a constructive process requiring careful planning by local education authorities in consultation with all those concerned."

In response to this circular many of the local education authorities began to re-organise their system of secondary education. One of them was the council of the London Borough of Enfield. This is one of the new outer London boroughs. It comprises the former boroughs of Edmonton, Enfield and Southgate. Formerly the Middlesex County Council was the local education authority. The new Enfield council took over in April, 1965. They prepared a development plan for secondary education within the borough. On 1 March 1966, they decided to change over to a comprehensive system. They set a target date of September, 1967. They sent a circular to parents telling them of the proposal, saying:

"In September, 1967, there will be no selective admissions. All the children of the eleven-plus age group will enter comprehensive schools."

On 1 June 1966, the chief education officer submitted to the Department of Education detailed proposals covering some thirty existing schools. In several cases it was proposed to amalgamate two or three existing schools and turn them into a single comprehensive school, but using the existing buildings. In a few cases it was proposed to enlarge existing premises or build new premises so as to accommodate a single comprehensive school. On 13 December 1966, the department replied. They said that, in regard to several schools, the proposals were satisfactory and suitable for early implementation. In regard to four schools, the proposals would require further examination. In regard to nine of the schools, however, they said that the proposals "are not acceptable to the Secretary of State in their present form". On receipt of that letter of 13 December 1966, the council must have realised that their project was in peril, and that, unless the difficulties were resolved, they might not be able to put it into effect by September, 1967. They got quickly to work. In the next two or three weeks there were many discussions with the department. In the result they modified their proposals and on 18 January 1967, the chief education officer submitted revised proposals to the department. A week later, on 26 January 1967, the department replied indicating that the revised proposals were acceptable but giving a reminder to the council that, under the statute, public notices had to be given before the proposals could be officially approved. The important paragraph said:

"The Secretary of State has now considered these revised proposals and has reached the conclusion that they would, in principle, form an acceptable element in the authority's general scheme of re-organisation. The authority will, however, appreciate that any indication of his view at this stage must be without prejudice to his statutory decision under s. 13(4) of the Education Act, 1944, where the publication of notices is required under s. 13(3) of that Act (as amended)."

Now comes the important point. The council in January, 1967, duly issued public notices in regard to a number of the schools. Thereafter several persons objected and submitted their objections to the Secretary of State. He considered the objections. On 19 May 1967, he gave his official approval to the proposals for those schools; but in respect of eight of the schools, no public notices were given. The council say that they were advised by the Secretary of State that no notices were required in the case of these eight schools. Howsoever that may be, the advice of the Secretary of State is not law, and we have to consider whether in those eight schools notices should have been given. I pause to say that this is solely a question of law. We are not concerned in this court with the policy of the Secretary of State or of the education authority. Nor have we to consider whether it is a good thing to change from a selective system of education to a comprehensive system. We have to consider only whether the requirements of the law have been fulfilled. I turn, therefore, to the statutory requirements. I will state shortly their effect, only using the actual words of the statutes when they are important.

First: On 1 April 1965, when the council for the London Borough of Enfield took over responsibility for education, they came under a duty to "maintain" the existing schools, and not to "cease to maintain" them, except in accordance with s 13 of the Act of 1944. (See s 31(5) of the London Government Act 1963.)

Second: When the council intend to "establish a new" school or to "cease to maintain" an existing school, they are under a duty to submit their proposals to the Secretary of State; and forthwith to give public notice of the proposals in the prescribed manner. Thereupon any ten local government electors can, within two months, submit objections to the proposals. The Secretary of State must, I think, consider those objections. After considering them, he may approve the proposals. (See s 13(1), (3) and (4) of the Education Act, 1944.)

Third: A local education authority are not to do or undertake to do anything to implement their proposals until they have been approved by the Secretary of State (s. 13(5) of the Education Act, 1944). In particular they continue to be under a duty to maintain an existing school until their proposals to "cease to maintain it" have been approved by the Secretary of State (see the end of s 13(8)).

The crucial question is as to the meaning of the words "maintain" a "school" in these statutes. The definitions do not help much but, reading them in the light of the various sections, it appears to me that a "school" is an institution which exists independently of the buildings in which it is housed for the time being. Many a school retained its identity during the war even though it was evacuated to a place two hundred miles away. A school is an institution with a character of its own. If an education authority is under a duty to "maintain" a school, it must see that it retains its fundamental character. If the education authority makes a change of a fundamental nature, so much so that anyone would say it was a different school altogether, then it "ceases to maintain" the existing school and "establishes a new school". That is, I think, the effect of the decision of Wilford v West Riding of Yorkshire County Council . The question there arose under the Education Act, 1902, under which the local education authority was under a duty to "maintain" and keep efficient all public elementary schools within their area. There was at Garforth a public elementary school for children of all standards from one to seven. The county council gave a direction saying that it was to be confined to children in standards one to three. The result was that in future the school was to be turned into an infants school, and that the older children were to go elsewhere. Channell J held that the effect of the direction was "to alter the whole character of the school" ([1908] 1 KB at p 696), and that it was not legitimate for the authority to give such a direction. He said that ([1908] 1 KB at p 697):

"The result of the defendants' action is, however, a thing which I must look at, and that result seems to me clearly to be to alter the fundamental character of the school ... "

Applying this test, I do not think that the change in the curriculum of a school necessarily alters its fundamental character. Suppose a local education authority change the curriculum from a secondary modern curriculum to a comprehensive curriculum, or even from a grammar school curriculum to a comprehensive curriculum. There may be a difference in the range of subjects which are taught, and in the emphasis given to them, but those differences may not be so extensive as to alter the fundamental character of a school. Nor do I think that a change in the method of entry necessarily alters its fundamental character. Suppose a local education authority change the method from selection by examination to selection by interview, or allocate places to pupils according to the preferences of parents, they may get a different intake of pupils, but those differences may not be so extensive as to alter the fundamental character of a school. I do think, however, that a change in the age group of pupils may be a fundamental change, just as it was in Wilford v West Riding of Yorkshire County Council . A change from a senior school to an infants' school would alter its character altogether. So do I think a change from a boys' school to a girls' school would be a fundamental change. It would be a complete change in character. This brings me to consideration of the specific proposals in regard to these eight schools. The first proposal concerns two of the existing schools, the Enfield Grammar School for Boys (749 boys) and the Chace Secondary Modern School for Boys (426 boys). These two schools are over a mile apart. It is proposed to combine these two schools into a comprehensive school for boys, using the existing buildings. The premises at present used by the Enfield Grammar School are to house an Upper School for boys from fourteen to eighteen years with its own head teacher. The buildings of the Chace Modern Secondary School are to house a lower school for boys from eleven to fourteen years with its own head teacher. In my opinion the change in each case is of a fundamental character. It comes to this: the education authority intend to "cease to maintain" the existing Enfield Grammar School and to establish a new school in the existing buildings for senior boys; and they intend to "cease to maintain" the existing Chase Secondary Boys School and establish a new school there for junior boys.

The second proposal concerns three of the existing schools, namely, the Mandeville Mixed Secondary Modern (262 pupils), the Eldon Mixed Secondary Modern (267 pupils), and the Houndsfield Mixed Secondary Modern (261 pupils). It is proposed to combine these three schools into a mixed comprehensive school, using the existing buildings. One building is to house an upper school for pupils from fourteen to eighteen, with its own head teacher. The other buildings are to house two lower schools (pupils eleven to fourteen) each with its own head teacher. These changes are, in my opinion, of a fundamental character, so much so that the education authority intend to "cease to maintain" the existing secondary modern schools and establish new upper and lower schools. The third proposal concerns three more of the existing schools, namely, Higher Grade (Mixed Selection) (308 pupils), Hazelbury (Girls Secondary Morden) (347 girls), and Raynham (Mixed Secondary Modern) (259 pupils). It is proposed to combine these three schools into a mixed comprehensive school, using the existing buildings, with an upper school for fourteen to eighteen years and two lower schools for eleven to fourteen years. These changes are fundamental, just as in the previous cases, but with the addition of the change of Hazelbury from a girls school into a mixed school for boys and girls.

So much for the eight schools. I need not say anything about the other existing schools which are to be changed to comprehensive schools: because the education authority admits that in most cases their proposals mean that they will "cease to maintain" the existing schools and establish new schools. They have issued public notices accordingly; but I must say that I see no differences between these cases and the eight. They all fulfil the test of a "change in fundamental character". Take, for instance, the Albany Boys (Secondary Modern--469 boys), and the Albany Girls (Secondary Modern--460 girls). It is proposed to combine these into a mixed comprehensive school using the existing buildings with one head teacher. It is admitted that, on this being done, the council will "cease to maintain" the existing schools. I see no difference between such cases and the eight schools. The fact that there is one head teacher cannot make all the difference.

I hold, therefore, in agreement with the judge, that in regard to the eight schools, the council intend to "cease to maintain" them and "to establish new" schools within s 13 of the Act of 1944. They ought, therefore, to have given public notices of their proposals, so that people could object, On objections being lodged, the Secretary of State would have to consider them. Not till then could the Secretary of State give his approval. Counsel for the defendant counsel submitted to us that the Secretary of State's approval would be good, even though public notices were not served, nor objections considered. I cannot agree. It is implicit in s 13(3) and (4) that the Secretary of State cannot approve unless he has considered all objections submitted to him. Counsel also submitted that the Secretary of State could dispense with the public notices and so forth, by giving "leave" under s 13(5) of the Act of 1944. I do not think that he can do so. I think that s 13(5) must be read subject to the last part of s 13(8). The council were under a duty to "maintain" these eight schools: and they were not at liberty to "cease to maintain" them until the Secretary of State had given his approval under s 13(4); and that involves public notices and considering objections.

I hold, therefore, that the council have not fulfilled the statutory requirements of s 13(3) and (4) in regard to the eight schools. They must continue to maintain them and must not cease to maintain them until the statutory requirements are fulfilled.

I turn now to the second point. It concerns the standard of the buildings and accommodation in the new schools. This point concerns all the new schools, not merely the eight schools (where the public notices were not given) but also the remaining schools (where public notices were given, objections considered, and approval given). It is said that the education authority were not authorised "to establish a new school" unless it conformed to the regulations which prescribe the standards for school premises. This contention rests on s 13(6) and (7) of the Act of 1944. Those subsections show that, when an education authority propose to establish a new school, and have obtained (after public notice) the Secretary of State's approval to this proposal, they must submit to the Secretary of State specifications and plans of the school premises. If the Secretary of State is satisfied that they come up to the prescribed standards, he will approve them; and the education authority must then carry them out. Counsel for the plaintiffs submitted to us that, on the true construction of those sections, the council were not at liberty to proceed with the establishment of any of the new schools (even those which were to be established in existing buildings) unless the school premises had been brought up to the prescribed standards. He urged that there was a great deal of evidence that in many of these cases the premises did not come up to the prescribed standards. Counsel admitted that, if this failure had been due to shortage of labour or materials, the Secretary of State might have granted exemption from the duty to conform (see s 7(2)( b ) of the Education (Miscellaneous Provisions) Act, 1948). He said that there was no ground for exemption here, because there was no shortage of labour or materials, at most a shortage of money, which was no ground for exemption. Looking at the Acts of 1944 and of 1948, it seems to me that Parliament did intend that, before a new school was established, the local education authority should see that the school premises come up to the prescribed standards unless they were excused owing to shortage of labour or materials. But the question is: what is the remedy? Can those who are dissatisfied come to the courts and stop the new school being established? I think not. I think that the only remedy is to complain to the Secretary of State under s 99 of the Act of 1944. The Secretary of State can then give such directions as to the school premises as he thinks expedient. If he does not think it expedient to make the education authority conform to the prescribed standards, or if he thinks it expedient to grant them further time in which to conform, that is the end of the matter. The courts cannot compel him to act, any more than they could in Watt v Kesteven County Council . I am confirmed in this view by reference to s 13(4). That prohibits the education authority from doing anything until the Secretary of State has duly given his approval to the establishment of a new school. The courts of law can enforce that statutory prohibition; but once the public notices have been served and he has duly given his approval, the statutory prohibition ends, and the power of the court ceases. Thenceforward the duty in regard to the school premises is enforceable by the Secretary of State and not by the courts. It is for the Secretary of State to see that the new schools come up to the prescribed standards.

I come now to the last point. Ought an injunction to be granted against the council? It has been suggested by the chief education officer that, if an injunction is granted, chaos will supervene. All the arrangements have been made for the next term, the teachers appointed to the new comprehensive schools, the pupils allotted their places, and so forth. It would be next to imposible, he says, to reverse all these arrangements without complete chaos and damage to teachers, pupils and the public. I must say this: if a local authority does not fulfil the requirements of the law, this court will see that it does fulfil them. It will not listen readily to suggestions of "chaos". The department of education and the council are subject to the rule of law and must comply with it, just like everyone else. Even if chaos should result, still the law must be obeyed; but I do not think that chaos will result. The evidence convinces me that the "chaos" is much over-stated. If an injunction is granted now, there will be much less chaos than if it were sought to reverse the situation in a year or so. After all, the injunction will only go as to the eight schools, and not as to the remaining twenty or so schools in the borough. Moreover in regard to these eight schools, it will only affect the new intake coming in at the bottom forms. I see no reason why the position should not be restored, so that the eight schools retain their previous character until the statutory requirements are fulfilled. I can well see that there may be a considerable upset for a number of people, but I think it far more important to uphold the rule of law. Parliament has laid down these requirements so as to ensure that the electors can make their objections and have them properly considered. We must see that their rights are upheld. I have only to add this: It is still open to the council to fulfil the statutory requirements, that is, to give the public notice so that objections can be submitted to and considered by the Secretary of State. I will not venture to predict what the results will be, but that is the least that must be done in order that the law should be observed. I would therefore vary the judge's order and grant an injunction in respect of the eight schools.