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Cuts to school building programme unlawful, court rules

11 February 2011

The decision by education secretary Michael Gove to cancel funding for the Building Schools for the Future programme was adopted unlawfully and should be reconsidered, the High Court has ruled.

“The way in which the secretary of state abruptly stopped the projects in relation to which [Outline Business Case] approval had already been given, without any prior consultation with the five claimants, must be characterised as being so unfair as to amount to an abuse of power,” Mr Justice Holman said in Luton Borough Council & Nottingham City Council & Ors v Secretary of State for Education [2011] EWHC 217 (Admin).

He added: “There was no ‘overriding public interest’ which precluded any consultation or justifies the lack of any consultation; and insofar as it affects the five claimants the decision making process was unlawful.”

The judge also found the secretary had failed to comply with the equality duties incumbent on government department.

He pointed to a letter by the women minister Theresa May in June 2010 reminding her colleagues of “the importance of considering the impact of reductions in public expenditure on different groups when identifying how departmental savings can be achieved”.

“This letter is to remind colleagues of the legal requirement to additionally consider how women, disabled people and ethnic minorities are affected,” May’s letter said, while also warning: “If there are no processes in place to show that equality issues have been taken into account in relation to particular decisions, there is a real risk of successful legal challenges.”

Picking up on this point, Holman J said: “I cannot find a single reference to disability, race or gender need/impact anywhere in them,” before adding: “I regret to say that in this case I regard the absence as glaring and very telling. I am simply not satisfied that any regard was had to the relevant duties at all, let alone rigorous regard.”

The local authorities that brought proceedings were: Luton Borough Council, Nottingham City Council, Waltham Forrest London Borough Council, Newham London Borough Council, Kent County Council, and Sandwell Metropolitan Borough Council.

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