What the High Court victory means for BSF

On Friday six local authorities took the government to court over its cancellation of the BSF programme.

They won a partial victory that means the £1bn of school building planned by the councils could yet go ahead. But what does it mean for the rest of the BSF programme?

The challenge was successful on two grounds:

• There was a failure to adequately consult the local authorities
• and there was a breach of duties regarding equalities legislation.

To understand what the consequences are for the authorities’ projects and the wider BSF programme it’s necessary to see what projects the government cancelled.

It stopped schemes that were the initial projects for the relevant Local Education Partnership (LEP) if they had not reached ’financial close’.

It stopped projects that were due to take place unless the Outline Business Case (OBC) for those projects had been approved by 1 January 2010.

The six authorities that challenged the government were among seven councils who had received (or were treated as having received) approval of their outline business case after 1 January 2010 - the Government’s cut off point.

This meant that that the Secretary of State could not lawfully change tack without some prior consultation

The court looked at how the process had been conducted prior to cancellation. It found there had been ’continuous and intense dialogue … over many years’, the authorities had acted and spent in reliance on their OBC approval letters, and the sums involved were very large.

This meant that that the Secretary of State could not lawfully change tack without prior consultation. The court considered that doing so was ’so unfair as to amount to an abuse of power’.

Disability, race and sex discrimination legislation required the Secretary of State to have regard to certain matters. In short, he was required to consider how his decision might affect the groups protected by that legislation, and the court found there was no evidence that he did.

The legal implications of the BSF judgement

The case will not have direct consequences for other authorities, except perhaps the two in the same position as the five that brought the claim.

It may be that some could use the decision as a basis for developing related arguments to fit their circumstances. The discrimination legislation issue is different and, it seems to me, ought to have general application to the decision in all cases.

The Judge highlighted the difficulty facing other authorities that wish to make a challenge. The action was one for judicial review. Generally, such actions must be brought promptly and within three months of the decision being complained of. The decision to scrap the BSF projects was made more than seven months ago.

The court can extend the three-month time limit and did so for one of the authorities in the case, but the prospects of others getting an extension at his late stage will be very limited.

Of course, the Government may choose to review the entire decision but your guess as to political decision making is as good as mine.

As for the projects involved in the case: Mr Gove must now consult properly and have due regard to his equality duties. As the judge said, that may result in all, some or none of the projects being saved.

With a value of £1bn pounds or more at stake, the outcome of those deliberations will be of huge importance to schools, their pupils and the construction industry.

Mark Clinton is a partner at Thomas Eggar