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Councils win BSF High Court challenge

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Six councils have won their High Court challenge over the government’s decision to scrap a number of school building projects in different parts of the country.

The axe fell last July when Labour’s Building Schools for the Future (BSF) programme was drastically curtailed after the coalition took power.

BSF was among the first education schemes in England to be cut back by education secretary Michael Gove.

Today Mr Justice Holman, sitting in London, allowed the challenges by the councils, declaring Mr Gove had unlawfully failed to consult them before imposing the cuts.

In five of the cases the failure was “so unfair as to amount to an abuse of power”, said the judge.

The victorious authorities include Waltham Forest LBC, Luton BC, Nottingham City Council, Sandwell MBC, Kent CC and Newham LBC.

The judge said: “However pressing the economic problems, there was no overriding public interest which precluded consultation or justifies the lack of any consultation.”

Mr Gove’s decision-making process was also unlawful “because of his failure to discharge relevant statutory equality duties under the Sex Discrimination Act, Race Relations Act and Disability Discrimination Act.”

In relation to the authorities taking action he commented “any other authorities would now be far too late to apply for judicial review. I do not mean to trivialise so important an issue, but it may be said that fortune has favoured the brave”.


As part of BSF, every secondary school in England was due to be rebuilt or refurbished over a 15-20 year period at an estimated cost of £55bn.

Mr Gove said the programme had been beset by “massive overspends, tragic delays, botched construction projects and needless bureaucracy”.

He also described it as “a dysfunctional process” before making the cuts.

A Department for Education spokesman said: “We are delighted that the judge did not call into question the decision to end the wasteful and bureaucratic Building Schools for the Future programme.

“On the substantive points he concluded that it was a rational decision and that the authorities involved had no expectation of being allowed to proceed with their projects.”

Mr Gove will now look again at his decision with regard to these authorities with an open mind, taking representations from them, he said.

The education secretary’s lawyers said the six councils seeking judicial review would in any event receive in total “well in excess of £1bn in BSF funding”, and the case was about “whether they must get even more”.

Urging the judge to dismiss the challenge, they argued that the decisions made by Mr Gove involved “value judgments and invidious choices” which were essentially political in nature and were not amenable to judicial review.


The leaders of the councils involved called on Mr Gove to reconsider his decision.

Waltham Forest leader Chris Robbins (Lab) said: “The government now has to go back and reconsider how the devastating decision to cancel BSF projects in Waltham Forest was made. It is a victory for common sense and fair play.

“They must now make a decision on our funding based on the real evidence about the difficulties our schools face.

“We have said all along that we want to sit down and have an amicable discussion with the government about the difficulties our schools face.

“Whilst we are disappointed that we had to pursue a judicial review to get the government to reconsider their decision, we are hopeful that this judgment will now open the door to a real and constructive conversation about improving schools for Waltham Forest’s young people.”

Sandwell leader Darren Cooper (Lab) said: “At the very least, we have been vindicated for bringing the action. Now we have to wait to see whether the government accepts it was too hasty in scrapping the scheme. We have just got to wait with fingers crossed.”

Nottingham’s portfolio holder for children’s services, David Mellen said: “It’s quite clear from the ruling that the way Michael Gove acted to stop the BSF funding for some schools in Nottingham was unlawful”,” he said. “We hope he will now do the right thing and give our schools and their pupils the funding they deserve and were fully expecting to receive. The decision is now up to him”.


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Readers' comments (1)

  • It is unlikely the BSF programme will be reinstated but this strengthens the case for authorities who have been spent their own money to be repaid - hope this happens

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