Secretary of State for Education and Science v Tameside MBC  3 All ER 665;  3 WLR 641
LORD WILBERFORCE: My Lords, this appeal is concerned with secondary education in the metropolitan borough of Tameside.... Its resources in secondary education included 16 secondary modern and five grammar schools and three purpose-built comprehensive schools under construction. Soon after its creation the council, as local education authority. put forward a scheme for bringing all the schools in the area under the comprehensive principle-" comprehensive " in this context not bearing its normal meaning in English, or the meaning it bore in the Education Act 1944. but its meaning in modem political jargon of a system which, in theory, lets everyone in to any school without selection by aptitude or ability. Grammar schools, by contrast, allocate places by selection. This scheme was brought in and, as the law required, was laid before the S of State for Education and Science on March. 10, 1975; it was very detailed and would clearly take some time to implement. Briefly. it provided (1) for setting up three new purpose-built comprehensive schools (those mentioned above) (2) for bringing the 16 secondary modern schools into the comprehensive principle (3) for abolition of the five grammar schools by turning three of them into comprehensives and two into sixth form colleges. These proposals... received the Secretary of State's approval, and the Council then became entitled to put them into effect: but - and this is important - the Secretary of State's approval imposed no duty on the council to implement them. In fact, the council did take some steps towards their initial implementation by the beginning of the school year in September 1976. These steps were of a rather hurried nature and, the respondents now contend, premature, and made not without an eye upon the local government elections to be held in May 1976...
Local elections were held on May 6, 1976. The issues no doubt were numerous and of varying importance, but the survival of the grammar schools as selective entry schools was one issue strongly fought, and on which the [Conservative] opposition party took its stand. A large number of parents had signed a petition against the 1975 proposals and no doubt supported the opposition. The opposition gained control of the council, and they considered themselves to have been given a mandate to reconsider their predecessors' education policy. They formulated their own proposals as not involving a total reversal of that policy. They set them out in a carefully thought out and moderate letter addressed to the Secretary of State on June 7, 1976. They proposed to adopt what had already been done in the direction of comprehensive education - the three new comprehensives would be continued and completed as "a valuable nucleus of any future scheme." The 16 secondary moderns would be continued. But they did not propose to implement at once the plans for conversion of the grammar schools. They proposed to postpone these plans and to continue the schools for a time so that the position could be reviewed, in the light, amongst other things, of the new Education Bill then before Parliament. Their policy was "the maintenance of the status quo with the least disturbance and disruption to the children's education pending any longer term, well thought out proposals."
The Secretary of State, and his department, were greatly concerned with the difficulties likely to be brought about by a change in control of the local education authority. Undoubtedly such changes are an administrator's nightmare. The department had approved the "comprehensive" plan, and they knew and approved that the authority had planned to start introducing it in September 1976. A change of course only three months before the new school year was to start very naturally worried the officials. There was correspondence between the department and the authority in May and June in which the authority was asked to explain its plans, particularly with regard to the selection of pupils; there was a meeting in Whitehall on June 9, which does not seem to have been amicable or conclusive. The Secretary of State remained of the opinion that it was too late to reverse the previous council's plans and that the new council was acting unreasonably in doing so. So on June 11, 1976, he gave a direction to the council to implement their predecessors' proposals, and on June 18, 1976, he asked for an order of mandamus that they should do so. This order was granted by the Divisional Court but on July 26, 1976, on appeal by the authority. It was discharged by the Court of Appeal....
I must now inquire what were the facts upon which the Secretary of State expressed himself as satisfied that the council were acting or proposing to act unreasonably....The Secretary of State must be given credit for having the background to this actual situation well in mind. and must be taken to be properly and professionally informed as to educational practices used in the area, and as to resources available to the local education authority. Its opinion, based as it must be. upon that of a strong and expert department, is not to be lightly overridden.
On June 11, the direction under section 68 was given in a letter of that date. The letter stated that the Secretary of State was satisfied that the authority was proposing to act unreasonably according to the formula used in section 68 of the Act. A change of plan designed to come into effect in less than three months must, in the opinion of the Secretary of State, give rise to "considerable difficulties." It pointed out that over 3,000 pupils transferring from primary schools had already been allocated and allotted places. Then followed this paragraph (which I shall call 'paragraph A').
"The authority's revised proposals confront the parents of children September with the dilemma of either adhering to allocations for their children which they may no appropriate, or else submitting to an improvised selection procedure (the precise form of which, the Secretary of State understands. has even now not been settled) carried out in circumstances and under a timetable which raise substantial doubts about its educational validity." (My emphasis.)
....The change of plan at this time in the educational year threatened to give rise to practical difficulties in relation to the appointments of staff already made and the construction of buildings for the new comprehensive schools and to create a degree of confusion and uncertainty which could impair the efficient working of the schools.
So I come to the question of allocation, which was at the centre of the case as argued, and it can best be approached via 'paragraph A' above. It shows a very strange attitude toward the decision taken by the authority. After the electorate, including no doubt a large number of parents, had voted the new council into office on the platform that some selective basis would be preserved, to say that this created "a dilemma" for the parents, with the undertone that this was something unreasonable, appears to me curious and paradoxical. Parents desired to have a chance of selective places. The new council was giving it to them. If they did not want selective places, they had no need and no obligation to apply for them. Unless the creation of freedom of choice, where no such freedom existed previously, is intrinsically an evil, it seems hard to understand how this so-called dilemma could be something unreasonably created. The impression which it gives of upsetting 3,000 places is entirely a false one since over 90 per cent of these would remain unaltered. Then, to refer to "submitting to an improvised selection procedure" hardly does justice to the authority's plan. Some selection procedure was inherent in what the electorate had voted for, a choice which, if it meant anything, must involve some change in allocations for the forthcoming school year and, unless exactly 240 parents applied for the 240 places, some selection. It would seem likely that in voting for this change in May 1976 the electors must have accepted, if not favoured, some degree of improvisation. The whole paragraph forces the conclusion that the Secretary of State was operating under a misconception as to what would be reasonable for a newly elected council to do. and that he failed to take into account that it was entitled - indeed in a sense bound - to carry out the policy on which it was elected, and failed to give weight to the fact that the limited degree of selection (for 240 places out of some 3,000) which was involved, though less than perfect. was something which a reasonable authority might accept and which the parents concerned clearly did accept.
What the Secretary of State was entitled to do, under his residual powers, was to say something to the effect: "the election has taken place; the new authority may be entitled to postpone the comprehensive scheme: this may involve some degree of selection and apparently the parents desire it. Nevertheless from an educational point of view, whatever some parents may think, I am satisfied that in the time available this, or some part of it, cannot be carried out, and that no reasonable authority would attempt to carry it out." Let us judge him by this test - though I do not think that this was the test he himself applied. Was the procedure to be followed for choosing which of the applicants were to be allotted the 240 selective places such that no reasonable authority could adopt it? The authority's letter of June 7 said that selection would be by "a combination of reports, records and interviews." They had about three months in which to carry it out. The plan was lacking in specification, but it must have conveyed sufficient to the experts at the department to enable them to understand what was proposed. Selection by 11-plus examination was not the only selection procedure available. Lancashire, part of which was taken over by Tameside, had evolved and operated a method of selection by head teacher recommendation, ranking of pupils, reports and records and standardised verbal reasoning tests. The Tameside authority had set up in May a panel of selection to operate a procedure of this kind, the chairman of which was experienced in the Lancashire method. He, as he deposed in an affidavit before the Court of Appeal, was of opinion that even though a verbal reasoning test might not be practicable in the time there would be no difficulty in selecting the number of places required.... [N]o doubt the procedure could not be said to be perfect, but I do not think that such defects as there were could possibly, in the circumstances, having regard to the comparatively small number of places involved, enable it to be said that the whole of the authority's programme of which this was a part was such that no reasonable authority would carry it out.
But there is a further complication. The authority's selection plans were opposed by a number of the teachers' unions, and there was the likelihood of non-cooperation by some of the head teachers in the primary schools in production of records and reports. The department letters and affidavits do not rely upon this matter, for understandable reasons, but they must be assumed to have had it in mind. Is this a fact upon which the Secretary of State might legitimately form the judgment that the authority was acting unreasonably?
To rephrase the question: on June 11, 1976 (this is the date of the direction, and we are not entitled to see what happened thereafter), could it be said that the authority was acting unreasonably in proceeding with a selection procedure which was otherwise workable in face of the possibility of persistent opposition by teachers' unions and individual teachers, or would the only (not "the more") reasonable course have been for the authority to abandon its plans? This is, I think, the ultimate factual question in the case. And 1 think that it must be answered in the negative -ie, that it could not be unreasonable, in June 1976, and assuming that the Secretary of State did not interfere. for the authority to put forward a plan to act on its approved procedure. The teachers, after all, are public servants, with responsibility for their pupils. They were under a duty to produce reports. These reports, and the records in the primary schools are public property. I do not think that it could be unreasonable (not "was unreasonable") for the authority to take the view that if the Secretary of State did not intervene under his statutory powers the teachers would cooperate in working the authority's procedure - a procedure which had, in similar form, been operated in part of this very area.
On the whole case, I come to the conclusion that the Secretary of State, real though his difficulties were, fundamentally misconceived and misdirected himself as to the proper manner in which to regard the proposed action of the Tameside authority after the local election of May 1976: that if he had exercised his judgment on the basis of the factual situation in which this newly elected authority was placed-with a policy approved by its electorate, and massively supported by the parents-there was no ground-however much he might disagree with the new policy, and regret such administrative dislocation as was brought about by the change upon which he could find that the authority was acting or proposing to act unreasonably. In my opinion the judgments in the Court of Appeal were right.
LORD DIPLOCK. My Lords, the principal Act of Parliament which confers upon the Secretary of State and the Tameside council respectively the cognate powers which each was claiming to exercise...is the Education Act 1944. it had been promoted by a coalition government in which all political parties were then represented and at a time when, as I recollect, the social purpose which the system of public education was designed to serve was not, as it has since become, a matter of acute political controversy upon party lines. The minor amendments that have been made since 1944 do not affect the scheme of the Act.
The responsibility for carrying out the national policy for education is distributed by the Act between the Minister of Education (now the Secretary of State) and local education authorities, acting in partnership...and also governors and managers of the individual schools, with whose function this appeal is not concerned. To these three kinds of public authority concerned with education I would add, and not as junior partners only, the parents of children of school age upon whom by section 36 is placed the primary duty of causing their children to receive efficient full-time education suitable to their ages, abilities and aptitudes
Parental wishes as to the school to be attended by the child (see section 37) and what he is to be taught there are to prevail so far as is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure (see section 76).
Under the Act the actual provision of public education services in each local government area is exclusively the function of the local education authority. i.e., the county or borough council representative of and elected by the inhabitants of the area served by the schools to be provided by the authority. The functions of the Secretary of State, apart from contributing to the cost of the provision of educational services (see section 100), are supervisory only. The execution by the local authorities of the national policy for education is described in section 1 as being under his control and direction; but the extent to which the Secretary of State is empowered to fetter a local authority's choice as to the method of implementing the national policy which it considers to be best suited to its own area is limited by the provisions of the Act. The only question for your Lordships in the instant appeal is whether in giving his direction of June 11, 1976, the Secretary of State trespassed beyond the statutory limits to his powers.
The Act does not leave the national policy for education to be determined from time to time by successive Secretaries of State. The Act itself says what the policy is. In section 1 its purpose is described as being for providing a varied and comprehensive educational service in every area." In this context "comprehensive" bears its dictionary meaning and not the narrower connotation it has since acquired in the controversy between the rival educational and social merits of secondary schools to which entry is by selection according to ability and those to which it is not. What is to be provided by way of secondary education in accordance with the national policy is expanded in section 8. The number, character and equipment of the secondary schools provided by a local authority in its area must be such as
"...to afford for all pupils opportunities for education offering such variety of instruction and training as may be desirable in view of their different ages, abilities, and aptitudes, . . . including practical instruction and training appropriate to their respective needs."
I pause here to draw attention to the underlying assumptions, as disclosed by the Act read as a whole, and in particular by sections 1, 7, 8 and 36, (a) that the contribution to be made by education towards " ...the spiritual, moral, mental, and physical development of the community..." (see section 7) is by developing the particular abilities and aptitudes of the individual pupil; (b) that individual pupils differ from one another in ability and aptitude; and (c) that these differences will call for different methods of teaching for pupils of differing ability or aptitude if the statutory policy for education is to be carried out.
The Act leaves to local education authorities a broad discretion to choose what in their judgment are the means best suited to their areas for providing the variety of instruction called for by those provisions which I have mentioned. It is not necessary to discuss here what were the respective responsibilities of the minister and local education authorities in the formulation of the original development plans for primary and secondary education in each area under section 11 of the Act. In Tameside, as elsewhere, this was all in the distant past. It is now common ground that in the spring of 1976, as a result of the approval by the Secretary of State of the proposals of the Tameside council when controlled by a Labour majority, there were two courses lawfully open to the newly elected council. One was to carry out their predecessor's proposals for making entry to all the secondary schools non-selective; the other was to leave the character of all the secondary schools in the area the same as in the previous year, i.e., with selective entry to the five grammar schools according to the pupil's aptitude for academic learning and with non-selective entry to the remaining schools. As between these two courses the right to choose was prima facie that of the council alone. The Secretary of State's power to overrule their choice by giving them a direction under section 68 to act in some other way that he himself preferred and they did not was exercisable only if he had satisfied himself that the council were proposing to act "unreasonably." My Lords, in public law "unreasonable" as descriptive of the way in which a public authority has purported to exercise a discretion vested in it by statute has become a term of legal art. To fall within this expression it must be conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt.
The very concept of administrative discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred. It has from beginning to end of these proceedings been properly conceded by counsel for the Secretary of State that his own strong preference and that of the government of which he is a member for non-selective entry to all secondary schools is not of itself a ground upon which he could be satisfied that the Tameside council would be acting unreasonably if they gave effect to their contrary preference for the retention of selective entry to the five grammar schools in their area. What he had to consider was whether the way in which they proposed to give effect to that preference would, in the light of the circumstances as they existed on June 11, 1976, involve such interference with the provision of efficient instruction and training in secondary schools in their area that no sensible authority acting with due appreciation of its responsibilities under the Act could have decided to adopt the course which the Tameside council were then proposing.
It was for the Secretary of State to decide that. It is not for any court of law to substitute its own opinion for his; but it is for a court of law to determine whether it has been established that in reaching his decision unfavourable to the council he had directed himself properly in law and had in consequence taken into consideration the matters which upon the true construction of the Act he ought to have considered and excluded from his consideration matters that were irrelevant to what he had to consider: see Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation.... Or, put more compendiously, the question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?
There has never been the least suggestion in this case that the Secretary of State acted otherwise than in good faith. So one can take the reasons contained in his letter of June 11 as indicating with candour those matters which had influenced his mind in reaching his conclusion that the council proposed to act unreasonably. The material parts of that letter have been cited and the events to which it relates have been analysed in so many judgments in the courts below and in the speeches in this House that it would be tedious for me to repeat them here. The references in the letter to staffing arrangements, planning of curricula and courses and building work have not been relied upon in the proceedings for mandamus as capable of justifying the Secretary of State's decision. It seems likely that he had been inadequately informed of the facts. What is left then are his criticisms of the way in which the council proposed to allocate to grammar schools the pupils who would be leaving the primary schools in July 1976, at the end of the summer term. There were two aspects of this. First, there were pupils whose abilities and aptitudes suited them for a grammar school education, but who had been allocated to schools which were now to remain secondary modem schools. Secondly, there were pupils who had already been allocated to three of the five grammar schools, but whose abilities and aptitudes made them more suitable for the less academic training provided in secondary modem schools. This second category has not bulked large in the arguments before the courts below or in this House. The evidence discloses that in any system involving selective entry at the age of 11 plus some misfits manifest themselves as the educational year progresses and are transferred to more suitable schools. The council proposed that misfits resulting from the non-selective allocation of unsuitable pupils to grammar schools should be dealt with in this, the usual way, though there would no doubt be more of them than if the original allocation had been selective.
The argument has largely turned upon the council's proposals for allocating pupils to the 240 places which would be available for entry to the lower forms at Ashton and Hyde Grammar Schools. What was proposed by the council for these places was selection by a combination of reports, records and interviews. Selection based on reports and records obtained from the pupils' primary schools. together with the use of one of several alternative aids for evaluating possible differences in the standards of assessment adopted in reports from different primary schools, is a well tried system of selection which had been in use in areas as far apart as Lancashire and Bamet and had been adopted in Tameside itself as the selection process in the preceding year. A proposal to adopt it for the school year starting in September 1976 in circumstances in which it could be carried out effectively could not be "unreasonable" in the sense required by section 13.
It has not been seriously contended before your Lordships that the time available between June 11 and September 1, when the new term at secondary schools began, was insufficient to enable this method to be carried out effectively, if reasonable cooperation were obtainable from head teachers at the primary schools. However, three of the teachers' trade unions, including those to which the majority of head teachers of primary schools belonged, had threatened to withhold the cooperation of their members. So the question that the Secretary of State had to ask himself was: in face of the trade unions' threat that their members would refuse to cooperate was the council...acting unreasonably in not having abandoned by that date all plans for reintroducing selective entry to grammar schools in their area?
The letter of June 11 contains no indication that the Secretary of State directed his mind to this question, let alone that he realised that it lay at the heart of what he had to decide. In the passage dealing with selection, on which my noble and learned friend, Lord Wilberforce, has already commented, the Secretary of State, despite the weight which the Act itself requires him to attach to parental choice, refers to the opportunity to be afforded to parents of having some choice in the kind of secondary school their children were to attend as confronting the parents with a dilemma.
The only passage capable of referring, even eliptically, to the unions' threat is the reference to the selection procedure being "...carrried out in circumstances and under a timetable which raise substantial doubt about its educational validity."
A relevant question to which the Secretary of State should have directed his mind was the extent to which head teachers would be likely to persist in a policy of non-cooperation if he himself was known to have declined to stop the council from proceeding with their plan. There is no suggestion...that the Secretary of State ever directed his mind to this particular question or formed any view about it. Indeed, it is not until the second affidavit that it is disclosed that the teachers' trade unions had been writing directly to the department on the matter at all. It is not for a court of law to speculate as to how the Secretary of State would have answered that question had he directed his mind to it, though like others of your Lordships and members of the Court of Appeal I find it difficult to believe that responsible head teachers, regardful of the interests of their pupils, would have persisted in a refusal to do their best to make the selection procedure work fairly and effectively if the Secretary of State had made it clear to them by his decision that he was not prepared himself to interfere with the council's proceeding with its plans. Assuming, however, that he had formed the view that cooperation by head teachers was likely to be only partial so that the selection process would be liable to greater possibility of error than where full cooperation could be obtained, the Secretary of State would have to consider whether the existence of such a degree of imperfection in the selection system as he thought would be involved was so great as to make it unreasonable conduct for the council to attempt to fulfil the mandate which they had so recently received from the electors. Again, there is no indication that the Secretary of State weighed these two considerations against one another.
Like all your Lordships, I would dismiss this appeal, although I prefer to put it on the ground that, in my view, the respondents have succeeded in establishing in these proceedings that the Secretary of State did not direct his mind to the right question; and so, since his good faith is not in question, he cannot have directed himself properly in law.