Mr Justice Hickinbottom :
Introduction
- This is the judgment of the court to which we have both contributed.
- In this claim, the Claimant challenges the decision of Denbighshire County Council ("the Council") on 27 October 2015 to implement its proposal to close two maintained primary schools in the Ruthin area, Ysgol Pentrecelyn and Ysgol Llanfair Dyffryn Clwyd ("Ysgol Llanfair DC"), on 31 August 2017; and for the Diocese of St Asaph to establish a new voluntary controlled primary school, initially operating from the two sites of the existing schools.
- Ysgol Pentrecelyn is a Welsh medium primary school, a category with the highest provision of teaching in the medium of Welsh. Ysgol Llanfair DC is a dual stream primary school, in which teaching in Welsh and in English exist side-by-side, with parents/pupils opting for either mainly Welsh medium or mainly English medium provision. It is proposed that the new school is dual stream.
- The Claimant is 19 years old. He is a former pupil of Ysgol Pentrecelyn, and he has two sisters and two brothers who are currently at the school. He is aggrieved at the proposal that the new school should have a Welsh-English bilingual teaching environment – a particularly controversial element in the proposal – and he is a member of a lobby group dedicated to opposing the proposed categorisation, namely Ymgyrch Pentrecelyn ("the Pentrecelyn Campaign").
- This court is of course not concerned with the merits of the decision, which are entirely for the Council, born out of its adopted education policy. However, this court is concerned with the lawfulness of that decision; and the Claimant contends that the decision was unlawful on a number of grounds, focusing on the impact assessments and consultation that preceded it.
- At the hearing, Gwion Lewis appeared for the Claimant and Rhodri Williams QC for the Defendant. We are grateful to them both for their helpful contribution to the debate.
- This is the second claim in the Administrative Court of which we are aware in which submissions have been made in the Welsh language, all core documents being lodged in Welsh, and Counsel using Welsh or English as they chose during the course of the hearing.
The Law
- The relevant statutory provisions relating to school organisation and reorganisation in Wales are found in Part 3 of the School Standards and Organisation (Wales) Act 2013 ("the 2013 Act").
- Maintained schools can be closed (section 40(3)) or subjected to "regulated alteration" (section 40(4)) only in accordance with Part 3 of the 2013 Act. "Regulated alteration" of a maintained school is defined in Part 1 of Schedule 2 to the Act to include "the transfer of a school to a new site or sites unless a main entrance of the school on its new site or sites would be within [one mile] of a main entrance of the school on its current site or sites."
- Section 38 requires the Welsh Ministers to issue a code on school organisation, which must include provision for the exercise of a local authority's functions as an education authority (section 38(2)(b)). By section 48, an authority making proposals to establish or terminate a school must publish the proposals and consult in accordance with the code; and there is a specific process to be followed to enable people to comment upon and object to published proposals (section 49). Some proposals specifically require a decision by the Welsh Ministers; but, in respect of many proposals (including the proposal in this case), the proposing authority itself has to decide whether to implement its own proposals (section 53).
- In accordance with their obligation under section 38, in July 2013, the Welsh Ministers published a School Organisation Code ("the Code"), which contained both compulsory requirements and guidelines to be followed unless there was justification for departure.
- Part 1 of the Code covers "Developing and considering proposals". For the purposes of this claim, the following provisions are particularly relevant:
i) Where proposals affect schools in which Welsh is used as a teaching medium, then the proposer should carry out an assessment of the impact of the proposal on the Welsh language (paragraph 1.4).
ii) Furthermore, where it is proposed to close a school, the proposer should "demonstrate that the impact of closing the school on the community has been assessed by drawing up an Assessment of the Impact on the Community, and demonstrate how any community facilities provided by the school at present could be maintained" (paragraph 1.7).
iii) Appendix D of the Code concerns "Assessments of the impact on the community and the impact on the Welsh language". It stresses that "the requirement to conduct assessments should not be too onerous and it does not consider that it is necessary to commission such work from external consultants."
- Part 3 of the Code relates to "Consultation". The following provisions are particularly relevant to this claim:
i) There is reference to the requirement, emphasised in case law (see, for example, the exposition of Hodgson J in R v Brent London Borough Council ex parte Gunning (1985) 84 LGR 168; and, more recently, R (Sterling) v London Borough of Haringey [2014] UKSC 56 at [25] per Lord Wilson), that the consultation process "should be undertaken when proposals are still at a formative stage" and "should include enough information and reasons for specific proposals to ensure intelligent discussion and response" (paragraph 3.1).
ii) By paragraph 3.2, the consultation document is required to include:
"a detailed description of the proposal or proposals (a proposer may consult on more than one possible proposal), the proposed timetable for statutory procedures and for implementing the proposals and any proposed interim arrangements that may need to be implemented…;
any risks associated with the proposals and any measures required to manage these;
a description of any alternatives considered and the reason why these have been discounted;
…
a form for submitting comments, including an opportunity for consultees to suggest alternative options to the proposals…;
…
When proposals include establishing a new school,… the new school's… location… [and] details of the proposed buildings and rooms, including a list of the proposed facilities;
When proposals include closing a school,…: the impact of proposals on the local community, particularly in rural areas…; [and] the likely impact on staff of schools named in proposals;
When any school that is part of a proposal or which is affected by a proposal teaches through the medium of Welsh,…: the effect of the proposals on the Welsh language…".
To an extent these requirements reflect the Gunning criteria as specifically adopted by the Code, in that they proceed on the basis that, in certain circumstances, an informed response to a consultation cannot be made without the consultees being privy to a relevant assessment of the impact of the proposal on the Welsh language and/or community.
Categorisation of Schools on the Basis of the Welsh Medium Provision
- The Welsh Ministers categorise schools on the basis of how much Welsh is used in teaching and learning, and in the day-to-day life of the school, as set out in a Welsh Assembly Government Information Document published in October 2007, "Defining schools according to Welsh medium provision". Whilst this categorisation has no statutory basis, there is a general consensus that it is helpful.
- Categories 1 and 2 are relevant in this claim. They are defined as follows:
"1. Welsh Medium Primary School
Curriculum - all Pupils in the Foundation Phase experience the areas of learning through the medium of Welsh. Welsh is the main medium of teaching in [Key Stage] 2 with at least 70% of the teaching through the medium of Welsh. English is introduced formally as a subject in Key Stage 2 and is taught through the medium of English, and English may occasionally be used for some aspects of some subjects.
Language of the School - Welsh is the language of the day-to-day business of the school. Welsh is used as the language of communication with the pupils and for the school's administration. The school communicates with the parents in both languages.
Outcomes - The normal expectation is that pupils, regardless of home language, will be able to transfer easily to a Welsh medium secondary provision and that by the end of Key Stage 2 will have reached a standard in English equivalent to that reached by pupils in predominantly English medium schools.
2. Dual Stream Primary School
Curriculum - Two types of provision exist side-by-side in these schools. Parents/pupils opt either for the mainly Welsh medium or mainly English medium provision which is usually delivered as in categories 1 and 5 respectively.
Language of the School - Both Welsh and English are used in the day-to-day business of the school. The language of communication with the pupils is determined by the nature of the curricular provision, but in some schools high priority is given to creating a Welsh-language ethos throughout the school. The school communicates with parents in both languages.
Outcomes - for pupils in the Welsh stream, normal expectations are as for category 1. For those pupils in the English medium stream, normal expectations are as for category 5."
Category 5 is "Predominantly English Medium Primary School", with less than 20% of the teaching through the medium of Welsh and English being the language of the day-to-day business of the school, with the normal expectation that pupils will transfer to an English medium secondary school.
- Ysgol Pentrecelyn is on the edge of the village of Pentrecelyn. It is designated as a Category 1 Welsh medium school. It has accommodation for 56 pupils aged 4-11 years, who are taught in two multi-aged classes. Virtually all teaching is in the medium of Welsh, which is also the language of the school administration and schoolyard.
- Ysgol Llanfair DC is in the centre of the eponymous village, about two miles from Ysgol Pentrecelyn. It has spaces for 113 pupils in the same age range, and is designated as a Category 2 dual stream school. Each class has pupils in each language stream who are taught in the same classroom albeit primarily through the language of their choice: in view of pupil numbers, it is impracticable to have separate classes for each stream. Both Welsh and English are used in school administration.
Factual Background
- In January 2009, the Council's Cabinet approved a Modernising Education Policy Framework, which provided a platform for the review of the provision of school education.
- On 20 November 2012, the Cabinet approved the commencement of a review of primary school provision in the Ruthin area, which included Ysgol Pentrecelyn and Ysgol Llanfair DC. The Ruthin review began with an informal consultation in February 2013, following which, on 25 June 2013, the Cabinet recommended that Ysgol Pentrecelyn and Ysgol Llanfair DC form a federation to be in place by no later than September 2014. However, that option was ruled out by a change in the policy of Welsh Ministers towards the federation of schools of different language provision categories.
- However, meetings between the Council and the governing bodies of the two schools continued to consider whether the schools could collaborate further. There was a general consensus that the two schools should be merged to create a new area school, designated as a voluntary controlled school recognised by the Church in Wales. However, there was disagreement regarding the new school's language category, as both governing bodies considered that the new school should be placed in the same category as their school: the governors of Ysgol Pentrecelyn believed that the new school should be a Welsh medium school, whilst the governors of Ysgol Llanfair DC believed that it should be a dual stream school. The opinions of parents and members of the public were similarly split.
- Following those discussions, the Council Cabinet appear to have formulated a plan of preferred action, subject of course to required procedures. It proposed to close both Ysgol Pentrecelyn and Ysgol Llanfair DC, replacing them with a single voluntary controlled school recognised by the Church in Wales. The plan was to close both schools and, initially, open the new school on the existing two sites; but it would be moved to new purpose-built school buildings on a site yet to be identified, somewhere that could provide primary school facilities for both villages. It was expected that the move to a single site would be within 12 months of the new school being formed, so that the school would occupy a split site for only one academic year. The closure of the two current schools and opening of a new school on both existing sites was generally referred to as "the First Phase" or "Phase 1"; and the subsequent move to a single site, "the Second Phase" or "Phase 2". We shall return to this plan after we have considered the remaining history (paragraphs 48-51 below).
- Prior to any formal consultation, and as required by the Code, the Council commissioned an internal Community and Welsh Language Impact Assessment ("the Impact Assessment") on the proposal upon which the Council intended to consult, namely:
"… a proposal to close Ysgol Llanfair DC and Ysgol Pentrecelyn and establish a new area school. Initially, the new school will operate from the sites of the two existing schools (the Current Proposal)…" (paragraph 1.1).
- The Impact Assessment expressly excluded any consideration of "a Second Phase" involving the subsequent move of the new school to a new build on a single site. In the English language version of paragraph 4.7 of the Impact Assessment, it is stated that the assessment considers the potential of what was said to be the current proposal "and expressly excludes any consideration of a Second Phase which is not the subject of this consultation". (We should say that, in the Welsh language version, to those words are added "yn benodol", the English translation of which is "specifically". We return to that anomaly when considering Ground 2 (see paragraph 75(i) below).)
- In the Impact Assessment, there was thus no consideration of the impact of moving the school to a single site. However, in her statement dated 28 April 2016, Ms Karen Evans (the Council's Head of Education & Children's Services) says that, had the Impact Assessment in fact taken into account Phase 2, in her view "not a great deal would change in the assessment"; by which, Mr Williams submits, she means the outcome of the assessment would not have been any different. We return to that proposition when we deal with Ground 1 (see paragraphs 55 and following below, especially at paragraph 67).
- In the Impact Assessment, six possible impacts of "the Current Proposal" were considered. The only area where the impact was considered to be negative or adverse was in relation to the language of the new school: as the new area school would be a dual stream school, the risk identified was that the use of the Welsh language outside the classroom would reduce, and the identity, ethos and policies of the new school may not be strongly Welsh. It was noted that the new temporary governing body, appointed from both the present governing bodies, would be required to establish these characteristics.
- In response to that potential negative impact, the Council identified mitigation measures (which, it is common ground, related solely to the proposed new two site school), as follows (paragraph 9.4):
"Should the proposal be implemented the temporary governing body, appointed from the existing governors from Ysgol Llanfair DC and Ysgol Pentrecelyn will have a role in transferring the current strong Welsh ethos to the new school. The temporary governing body will make key decisions on appointment of a Headteacher, establishing a new identity, scrutinising policies and creating an instrument of government. The temporary governing body will need to make sure its recruitment procedures ensure staff at the school, both teachers and support staff, have the required levels of fluency to maintain the current strong Welsh ethos. This should be addressed by ensuring all jobs are carefully classified as Welsh essential or Welsh desirable during the recruitment process. Any new Governing Body should ensure that progress against these actions is closely monitored. Similarly it will be important for Denbighshire as part of its overall monitoring role for the Welsh Education Strategic Plan to ensure that the current strong Welsh medium ethos is retained, and intervenes as appropriate should this be diluted."
The residual impact on the Welsh language, after taking into account such measures, was assessed as neutral.
- The impact of the proposal on education provision and standards was assessed as positive, as it was considered that a new area school "initially on split sites" would provide an opportunity to improve the education provision through a headteacher with more leadership and management time available, access to a greater range of facilities and access to a larger team of staff. The impacts on the remaining four areas, including access to Welsh medium education and use of Welsh within the community, were assessed as neutral.
- In respect of the impact of the "Current Proposal" on the relevant communities and the Welsh language respectively, the Impact Assessment concluded as follows:
"Initially the Current Proposal would have limited impact on families and the local communities when utilising the existing school sites based in both communities." (paragraph 12.3).
"Overall, the Current Proposal will be neutral in terms of its impact on the Welsh language. Even though the Current Proposal would reduce the amount of Category 1 places in the area, we believe that increasing the bilingual offer could ensure more pupils are educated in Welsh as well as English." (paragraph 10.3).
By the use of the word "initially", the assessment suggests that Phase 2 – outside the ambit of "the Current Proposal" – might have more than a limited community impact.
- On 13 January 2015, the Council Cabinet determined to consult formally regarding the implementation of a specific proposal, set out in a formal consultation document published, with the Impact Assessment, in February 2015 ("the Consultation Document"). The proposal was set out in paragraph 1.3, in bold, as follows:
"Denbighshire County Council would close Ysgol Llanfair Dyffryn Clwyd and Ysgol Pentrecelyn on the 31st August 2016; and the Church in Wales will establish a new Area School on the existing sites from the 1st September 2016."
- Part 2 of the Consultation Document, under the heading "Summary of proposal", continued as follows (all emphasis in the original):
"First Phase
2.1 This formal consultation relates to a proposal to create a New Area School to serve both Llanfair Dyffryn Clwyd and Pentrecelyn Communities. Throughout this document, this proposal is called the Current Proposal.
2.2 If the Current Proposal is agreed and implemented the first stage would see the existing Ysgol Llanfair DC and Ysgol Pentrecelyn close on 31st August 2016. The new Church in Wales Area School would open on 1st September 2016.
2.3 … It is proposed that the new area school be a Category 2 - Dual Stream Primary School where two types of provision exist side-by-side. Parents/pupils opt either for the mainly Welsh medium or mainly English medium provision. Both Welsh and English are used in the day-to-day business of the school. The language of communication with pupils is determined by the nature of the curricular provision, but in some schools high priority is given to creating a Welsh-language ethos throughout the school. The school communicates with the parents in both languages. The competency and confidence of pupils in both English and Welsh will be depending upon the ethos and policies of the school and the governing body….
2.4 It is proposed that the new area school would initially use the existing buildings in Llanfair and Pentrecelyn. The way in which the sites will be used will be a decision for the headteacher and the governing body to discuss and implement. Options that could be considered are keeping the pupils and staff as they are with increased opportunity for the 2 sites to come together for specific events. This will allow for a smoother transition into the new build for both pupils and staff. Throughout this document, the creation of the Dual Site Area School is called the First Phase.
Second Phase
2.5 The next phase would see the Area School consolidated on a new site in the Llanfair/Pentrecelyn area, subject to land availability and suitability. We propose that the new build will be ready by September 2017 therefore ensuring the split site will only be for one academic year. Councillors will consider whether the capital funding should be approved in February 2015.
2.6 Throughout this document the movement onto a new site is called the Second Phase."
- The Consultation Document is replete with references to the Council's firm intention to proceed to a single site school quickly – then, by September 2017 – the split site new school being an interim measure in the sense that it was a step towards that goal. For example, there were frequent references to "the Second Phase" that "will follow the completion of the current proposal" (see, e.g., paragraphs 2.5 and 12.2), and "the initial use of the existing buildings" (see, e.g. paragraphs 12.5). It was made clear that it was hoped and expected that the proposed split site arrangement would be for just one year before the school moved to a single site. For example, paragraph 12.10 read as follows:
"The intention of the Council, working in partnership with the Church in Wales, would be to consolidate provision on to a single site - Phase 2. The vision for the New Area School would be a 4-11 provision serving 140 pupils 0.6 form entry. We are proposing that the new build will be ready by September 2017 therefore ensuring the split will only be for one academic year. Councillors will consider approval for the capital funding in February 2015. The new school accommodation would be based on the existing facilities at both schools, it is not anticipated that any significant changes would occur to the accommodation prior to the building of the proposed new school."
- Part 3 of the Consultation Document, under the heading "Consultation Process", said this (paragraph 3.1):
"This formal consultation process relates to the Current Proposal and both the First and Second Phase. This formal consultation is being carried out to ensure that all relevant parties have an opportunity to contribute to this important subject."
In paragraph 3.4, it said:
"The formal consultation period in respect of the First Phase will take place between 3rd February 2015 until 16th March 2015."
There was no reference to any separate consultation period for the Second Phase.
- "Alternative options" were considered in Part 21 of the Consultation Document. It was said that careful consideration had been given to these "as part of the development of the Current Proposal"; but they were in fact potential alternatives to the whole plan, i.e. they were various options in respect of the ultimate resolution of the issues concerning primary schools in the Llanfair Dyffryn Clwyd/Pentrecelyn area. Option 1.1 was to maintain the status quo, i.e. the "do nothing" option. Option 1.2 was to extend Ysgol Llanfair DC. Option 1.3 was to extend Ysgol Llanfair DC on a new site, and close Ysgol Pentrecelyn. Option 1.4 was to "close both schools and establish new Dual site Area school on the existing sites" on a permanent basis. Option 1.5 was to "close both Schools and initially establish a dual site area school prior to building a new area school in Llanfair." Option 1.6 was to federate the schools which, for the reason we have explained, was impossible by this stage.
- There followed a table setting out relevant factors against each option with a cross or a tick or a question mark. Option 1.5 scored the most points, including one for the "critical success factor 5", namely "Support the increase in demand for Welsh medium education"; whereas a question mark was given for that factor against option 1.4. Accordingly, the table concluded that Option 1.5 was "preferred", Options 1.3 and 1.4 being categorised as "possible", and the other options discounted.
- It should be said that, immediately before the passage we have described above, paragraph 21.4 of the Consultation Document stated:
"The analysis of these options suggest that to meet the investment objective and critical success factors that the option of closing both schools and establishing a dual site area school should be considered as the preferred option."
However, insofar as that appears to suggest that Option 1.4 might have been preferred, it is wrong: in line with both preceding and subsequent documents, when looked at as a whole, the Consultation Document made clear that the Council's intention was to close both schools, initially establish a dual site area school and then build a new area school to accommodate all pupils from both sites to which the school would be promptly moved. That was, clearly, the Council's preferred option.
- Part 23 of the Consultation Document returns to the topic "Impact on the Community, the Welsh Language and Equality", referring to the Council's Impact Assessment regarding these matters, and fairly summarising and adopting the conclusion of that assessment:
"23.2 Overall, the Current Proposal will be neutral in terms of its impact on the Welsh language. Although the Current Proposal would reduce the amount of Category 1 places in the area, we believe that increasing the bilingual offer could ensure more pupils are educated in Welsh as well as English….
23.3 Initially the Current Proposal would have very little impact on families and the local communities when utilising the existing school sites based in both communities."
- At the same time as the Consultation Document, the Council published a children's version, which similarly emphasised the Council's plan to make Ysgol Pentrecelyn and Ysgol Llanfair DC into one school, initially dual site but then on one site as a new build:
"At first there would be one school but it would be in 2 places. One part would be where Ysgol Llanfair is now and the other would be where Ysgol Pentrecelyn in now.
This is until the proposed brand new school is ready for everyone to move into…
Long term we would like all pupils to be taught in a new school building. This idea for change will be the first step on this journey…".
- In June 2015, the Council published a Formal Consultation Report, analysing the responses to the Consultation Document ("the Consultation Report"). Of note are the following:
i) The Consultation Report confirmed the Council's plan to move quickly towards a new single site school, with the dual site school being an interim measure. For example, paragraph 1.3 of the Consultation Report said:
"The proposal is that the new Area school would initially use the existing buildings in Llanfair and Pentrecelyn until the new Area School is consolidated on one site in a new build. If the proposal is implemented, we intend the new build to be ready by September 2017."
Similarly, in response to comments made in the consultation by Estyn (the Office of HM Inspectorate for Education and Training in Wales), the Council said:
"During Phase 1 when the new area school will be utilising both sites we envisage staffing staying broadly the same but with changes to leadership and management only. When the school is on one site in the new build a new staffing structure will be in place. Work on this will begin immediately once the new headteacher and the temporary governing body are in place." (emphasis added)
ii) In section 5 of the Consultation Report, it was noted that the Standard Response Form in the back of the Formal Consultation Document had been designed to establish whether people were in favour of "the Proposals". There were two more references in the same paragraph to "the Proposals" in the plural.
iii) The consultation response of Estyn was discussed in Section 6, and Estyn's response in full was attached as Appendix H. Whilst the introduction to the response accurately sets out the proposal to close the two schools and set up a new school on the two sites for one year – when it would be replaced by a single new build school – later in the response there is reference to the Council's preferred option being "closing both schools and establishing a new dual site area school".
iv) In paragraph 7, the responses of two teacher trade unions (Undeb Cenedlaethol Athrawon Cymru ("UCAC")) and the National Union of Teachers Cymru) are considered. It was noted that "UCAC's concerns" included "the lack of assertiveness regarding Phase 2"; or, in the Welsh version, "Y diffyg pendantrwydd o ran Cam 2", perhaps better translated as "the lack of certainty regarding Phase 2". UCAC's full response was attached in Appendix I of the Report. In paragraph 4 of that response, UCAC referred to "the proposed two-stage scheme with an intention to implement the First Stage – namely creation of an Area School on a dual site in September 2016 – as only an interim solution to the crisis" (emphasis added).
v) The full response of the Governors of Ysgol Pentrecelyn was set out in Appendix K. Amongst other things, they expressed concern about the continuing use of the Welsh language in the schoolyard and otherwise socially, if the new school were to be dual stream.
vi) In Appendix B, the Consultation Report set out issues raised at various times during the consultation (e.g. at meetings), and the Council's response. The following are particularly relevant:
a) In response to a concern about pupil movement between the two sites of the new school, the Council said: "As the arrangement would be for 12 months we believe that this would be very unlikely…".
b) In response to a concern about the use of the Welsh language in social activities and on the playground, the Council said: "We understand your concerns. Initially the new school will be on the 2 sites and not much would change. When they move into a new school build, it is difficult to tell you at this stage what the offer would look like entirely; nothing is predetermined." A similar response is given to similar issues in Appendix G, which set out a summary of issues raised in the consultation and the Council's response. The Council there appear to accept, leaving aside any issue of linguistic competence – which, the Council considered, would not be impaired by the proposal to have a Category 2 school – there was a risk that, in practice, the use of Welsh, outside the classroom, might be impaired when the school came together on a single site.
- Having completed the consultation process, on 18 June 2015, the Council published a statutory notice under sections 41 and 43 of the 2013 Act, confirming that it proposed to close Ysgol Llanfair DC and Ysgol Pentrecelyn on 31 August 2016 and to "establish a new dual stream Category 2, Church in Wales Voluntary Controlled primary school…. The proposed new school will operate from the current two sites…" ("the Statutory Notice"). It was noted that objections to the proposal could be made in writing within 28 days of the date of publication of the notice. In an "Explanatory Note" at the end of the notice, amongst other things, the following was noted:
"This proposal is the first step for the development of the area school. The second phase would see the Area school consolidated on a new site in the Llanfair/Pentrecelyn area, subject to land availability and suitability. We are proposing that the new build will be ready by September 2017."
That again underscored that the changes that were the subject of the Statutory Notice were merely the first step in the development of an area school which the Council then proposed to build by September 2017.
- There were thirty objections to the Statutory Notice, the vast majority opposing the proposal that the new school should be Category 2 rather than Category 1. In accordance with section 49 of the 2013 Act, the Council prepared a summary of the objections and its response to them ("the Objections Report"). The Council's responses reiterated, to a considerable extent, the points it had already made in the consultation documents. In particular, the Council's response to Welsh language concerns was that, "Initially not much would change whilst the school remains on 2 sites" and "The Local Authority would advise that whilst the school is on the 2 existing sites things could stay as they are" (response to points 4 and 69).
- On 29 September 2015, the Council Cabinet resolved to consult with the Diocese of St Asaph and with the governing bodies of both schools on a proposed modification to the proposal to delay its implementation by twelve months (i.e. to close the two schools and open the new two site school on 31 August 2017, rather than 31 August 2016) and to obtain the consent of the Welsh Ministers to that modification. That was duly obtained.
- On 27 October 2015, the Cabinet met to consider the report on the objections to the Statutory Notice, and also a report from the Council's Head of Customer and Education Support. That latter report again expressed the reason for making the report that a decision was required on the proposal to open a new dual stream Category 2 school "initially" on the two current sites, but then referring to Phase 2 which would see the area school "consolidated on a new site in the Llanfair/Pentrecelyn area, subject to land availability and suitability". The debate focused on the language of the schools. It was noted that, in that year, 80 pupils at Ysgol Llanfair DC had received education through the medium of Welsh, 14% of which had transferred from receiving education through the medium of English. The view was expressed that designating the new school as Category 2 would help increase the overall number of Welsh learners and pupils leaving school fluent in both languages.
- The Leader of the Cabinet reported that he had met with Ysgol Pentrecelyn campaigners, who were supportive of a new Church in Wales school, but strongly opposed a Category 2 designation. He sought responses from officers as to a number of concerns raised by the campaigners, including whether enough consideration had been given to the pupils at that school, the fact that no meeting had taken place between the parents of pupils at both schools, and concerns regarding the language spoken in the school yard and the impact on culture.
- The officers' response included reference to the existing attendance figures which showed an insufficient demand for a Category 1 school and that, whilst the language of the school yard could not be stipulated, Welsh could be encouraged by the new governing body. The Leader acknowledged the difficult situation, with two strong, opposing views; but stressed the overriding consideration was to ensure the best education and language and cultural provision.
- The Cabinet ultimately approved the implementation of the proposal to close Ysgol Llanfair DC and Ysgol Pentrecelyn, and for the Diocese of St Asaph to establish a dual stream Category 2 Church in Wales voluntary controlled school, "to operate initially from the two existing sites", with the amended dates in 2017 ("the decision"). Of course, that is the decision which the Claimant now seeks to challenge.
- On 22 December 2015, a pre-action letter was sent on behalf of Ymgyrch Pentrecelyn to the Council, stating the campaign group's intention to apply for a judicial review of the decision. On 11 January 2016, the campaign's solicitors received the Council's response to the letter, refusing the relief sought.
- This claim was issued on 26 January 2016. On 22 March 2016, His Honour Judge Jarman QC granted permission to proceed; and, on 15 April 2016, he made an order granting a costs capping order, limiting the costs liability of the Claimant to £3,000 and that of the Council to £15,000.
The Council's Preferred Option
- From the evidence, the Council's intention and preferred option with regard to the future of primary school education in Llanfair Dyffryn Clwyd and Pentrecelyn was, and is, abundantly clear. Indeed, it is uncontroversial.
- It proposes to close both Ysgol Pentrecelyn and Ysgol Llanfair Dyffryn Clwyd, and to establish a new Church in Wales voluntary controlled school. Initially, that school is to be established on the same two school sites in September 2017 (Phase 1); but the Council proposes to build a new single site school to accommodate all the pupils from those sites, and move to that new school in September 2018 (Phase 2). No site for the new build school has yet been confirmed. The funding for the new build project appears to have been earmarked, but there is some risk that funding will not be made available. Despite those risks as to Phase 2, the Council is generally confident that Phase 2 will be implemented as it is proposed; and it wishes to proceed to implement Phase 1 in the meantime.
- Therefore, when Mr Williams submitted that "the establishment of a new school on the two existing school sites was not just an 'interim arrangement'", with respect, we consider that that does not convey a full or accurate picture. He focused on the Statutory Notice and the decision now under challenge, both of which were restricted in scope to the implementation of Phase 1; but Phase 1 is only part of the Council's preferred option. They propose to follow the establishment of the new school on two sites by moving the school to a new build on a single site.
- Subject to procedural safeguards, there is of course nothing wrong with a decision-maker having a preferred option.
The Grounds of Claim: Introduction
- Mr Lewis submits that the decision is unlawful on four grounds. One ground is that the Council failed to take into account a material consideration; the others contend that the consultation process was flawed in three distinct ways.
- The grounds are as follows.
Ground 1: Contrary to the general public law requirement to take into account all relevant matters, and contrary to the Code, in making the decision to implement the Phase 1 proposal to close the two schools and open a new school on the same two sites, the Council failed to take into account a material consideration, namely the language and community impact of the Council's preferred option, i.e. the creation of a new school ultimately on a single site. This failure is reflected in the Council's deliberate exclusion of consideration of Phase 2 in the Impact Assessment used for the purposes of the consultation and decision in respect of implementing Phase 1.
Ground 2: The Consultation Document was inconsistent and unclear about the scope of the consultation exercise, so that consultees could not respond intelligently to it.
Ground 3: The Consultation Document failed properly to explain what was meant by a "dual stream Category 2 school", which, it was proposed, the new school would be. Again, this meant that consultees did not have the information to make a proper response.
Ground 4: Contrary to the requirement of the Code, the response form in the Consultation Document did not give the consultees an opportunity to suggest alternative options to that which was proposed.
- We will deal with those grounds in turn.
Ground 1: Failure to take into account the language and community impact of the creation of a new single site school
- Mr Lewis submitted that, in determining to implement Phase 1, the Council erred in failing to take into account the language and community impact of Phase 2. In other words, in deciding to close the two schools and create a new school on both sites, it erred in failing to take into account the language and community impact of its proposal thereafter to transfer the school to a new build on a single site.
- There is no doubt that, in making the decision it did make, the Council did not take into account the language and community impact of Phase 2. Mr Williams did not suggest otherwise; but he submitted they were right not to do so. The challenged decision was to close the two schools in favour of a new school on the same two sites. The consultation and statutory notice were restricted to that proposal. No decision was made in relation to the transfer of the school to a new building on a single site. The move to a single site will be the subject of a separate decision which, Mr Williams accepted, would probably require a further community and language impact assessment – "probably", but not necessarily, because Ms Evans suggests that, even if Phase 2 had been included, the outcome of the assessment would not have changed (see paragraph 24 above). If it requires further consultation – it may not, if the new school is less than a mile away from either existing school (see paragraph 9 above) – then there will be a fresh consultation. If it requires a further statutory notice, then such a notice will be published. But, so far as Phase 1 is concerned, the Council was entitled to look at that discretely, and properly did so. Indeed, it would not have been possible to assess the impact of Phase 2, because the location of the new building had not been identified.
- Forcefully as Mr Williams argued the Council's case, we prefer the submissions of Mr Lewis. In doing so, we have particularly taken into account the following.
- Mr Lewis properly accepted that the Council was entitled to focus upon Phase 1 (i.e. the establishment of a two site school to take over from the two schools that are currently independent); and to consult upon, and issue a statutory notice and themselves make a decision in respect of the implementation of that single phase of their preferred option.
- However, in doing so, the Council could not ignore their proposed Phase 2.
- Paragraph 3.2 of the Code (quoted at paragraph 13(ii) above) requires the consultation document in respect of any proposal to include "a detailed description of the proposal or proposals..., the projected timetable for statutory procedures and for the implementation of the proposals and any proposed interim arrangements which might be necessary for their implementation…". The Council cannot defeat the purpose of the Code by categorising what is in substance an interim step towards a final proposed goal as a stand-alone proposal.
- In any event, in the circumstances of this case, even absent the Code, the language and community impact of Phase 2 of the Council's preferred option (the move from a two site school to a single site school) would clearly be a material consideration in any decision to implement Phase 1.
- The Council regarded Phase 1 as only one step towards their preferred option of a single site school. It was never intended to maintain the new school on a two site basis: the dual site school was only ever intended to be a temporary measure – lasting, it was hoped, no more than a year – whilst the new school was built.
- The impact on language and community of this temporary arrangement was of course potentially important; but it was always the case that the impact of the longer-term solution of a single site school would likely be the greater. The Council recognised that obvious fact. At paragraph 10.2 of the Consultation Document, the Council said that it appreciated that the Phase 2 proposal to move to a single-site new area school will result in "greater change than operating one school on two sites". As we have seen, the Council understandably considered that, for pupils, until the move to a single site, it would generally be "as you were" in buildings they already occupied: and the Council made that clear in response to concerns expressed by parents and others. The obvious challenge of moving to a new build single site school – and the Council's appreciation of that challenge – is echoed elsewhere in the documents.
- It was curious and artificial for the Council, in considering whether to implement the temporary arrangement of Phase 1, to have ignored the permanent arrangement that would follow Phase 2. In our judgment, impact on the language and community of the permanent arrangement was clearly relevant to the decision as to whether to take the first step in the form of Phase 1. To have taken the first step along a proposed route without some appreciation of the risks in terms of adverse language and community impact that may lie ahead was, in our view, unlawful as well as unwise.
- We are unimpressed by the argument that it was not practical to take that impact into account, because the precise location of the new build school had not been determined. Clearly, the new build school will be in the general area of the two existing schools which are approximately two miles apart; assessment of the impact on the Welsh language is unlikely to be dependent upon precise location; and we do not see why an assessment of the impact of Phase 2 on both language and community cannot be sensibly performed on the basis of a single site school in that general area. There is no evidence to suggest that it could not be performed. We accept that, when the site is identified, then some further assessment based upon its precise location may be necessary; but it is unlikely that that additional assessment would be at all burdensome. Indeed, the evidence of Ms Evans (who posits an opinion as to what an assessment of a single site school would be) suggests that none of the assessment over and above that already done would be at all onerous for the Council.
- We have therefore firmly concluded that the Council erred in failing to take into account the language and community impact of Phase 2 of their proposals for the reform of the primary schools in the Pentrecelyn/Llanfair Dyffryn Clwyd area when it considered implementing Phase 1 of those proposals. We do not consider that the decision in relation to implementing Phase 1 could properly be taken without taking into account the language and community impact of Phase 2.
- Furthermore, we cannot agree with Mr Williams' submission, based on Ms Evans' statement, that such an error of law was immaterial because, if the Council had taken those impacts into account, its decision would not have been different: it would still have decided to implement Phase 1. Ms Evans states that to be the case; but her assertion cannot replace the formal assessment required by the Code and, in any event, her view that "not a great deal would change in the assessment", insofar as that suggests that Phase 2 will certainly not involve any adverse impacts on language and communities, appears to us to be inconsistent with the evidence. As we have just indicated (paragraph 63 above), it seems that the Council well-understood that the Phase 2 proposal to move to a single-site new area school will result in greater change, and thus a greater challenge, than operating one school on two sites. The challenge of moving to a new single site school – and the Council's appreciation of that challenge – is echoed elsewhere in the documents. Moving to a single site category 2 school may not only adversely affect some communities – precisely which, we accept, possibly being dependent upon where the new single site school is located – but also language. "Use of the Welsh language" here includes not just the narrow issue of academic linguistic competence (which, the Council say, should not be adversely affected by dual streaming), but also the use of the Welsh language outside the classroom (which, as the Council appears to accept, may be adversely affected). The evidence is that there is a real risk that Phase 2 will result in such adverse effects.
- In the circumstances, we cannot be satisfied that there is a high likelihood that the assessment of the language and communities involved in Phase 2 would be such that the decision to implement Phase 1 would in any event be the same.
- For those reasons, we consider Ground 1 is made good.
Ground 2: Consultation: Inadequate Identification of the Proposal
- As we have described (see paragraph 13 above), the Code (reflecting the common law) requires that the consultation process should be undertaken when proposals are at a formative stage, and include sufficient reasons and information for particular proposals to enable intelligent consideration and response. Mr Lewis contends that the Consultation Document in this case was so inconsistent and unclear about the scope of the consultation exercise, that consultees could not respond intelligently to it.
- To the contrary, Mr Williams submitted that the proposal upon which the Council was consulting was clear and beyond any doubt. As we have described (see paragraph 29 above), in paragraph 1.3 on the Consultation Document, in a suitably emboldened paragraph, the proposal is defined as:
"Denbighshire County Council would close Ysgol Llanfair Dyffryn Clwyd and Ysgol Pentrecelyn on the 31st August 2016; and the Church in Wales will establish a new Area School on the existing sites from the 1st September 2016."
Under the heading "What is the proposed option?", that is in substance repeated in paragraph 12.1.
- As we have described (see paragraphs 48-51 above), by this time, the Council had clearly decided upon its preferred option – the course it wished and intended to pursue – with regard to the future of primary school education in Llanfair Dyffryn Clwyd and Pentrecelyn. However, unfortunately, we do not consider that clarity was replicated in the Consultation Document. That document has to be looked at as a whole; and, when looked at thus, we agree with Mr Lewis – it is hopelessly confused.
- Immediately after paragraph 1.3 (which appears to define the proposal so clearly when looked in isolation), paragraph 2 (quoted at paragraph 30 above) summarises the proposal, but in terms of both the First Phase (creation of a new area school on two sites) together with the Second Phase (consolidation of the school onto one new build site). Paragraph 3.1 then continues:
"This formal consultation process relates to the Current Proposal and both the First and the Second Phase. This formal consultation is being carried out to ensure that all relevant parties have an opportunity to contribute to this important subject."
On their face, paragraphs 2 and 3 are fundamentally inconsistent with the definition in paragraph 1.3. In our view, it is unsurprising that Estyn appear to have been somewhat confused as to the precise scope of the consultation that was in fact being conducted (see paragraph 38(iii) above)
- Mr Williams attempted, valiantly, to reconcile these passages. He submitted that, although the formal consultation process "related to" Phase 2 as well as Phase 1, the Consultation Document was clear that only Phase 1 ("the Current Proposal") was actually being consulted upon. We do not consider that that can explain the fundamental inconsistency between paragraph 1.3 and (say) paragraph 2; but, in any event, Mr Williams' explanation causes the Council's vessel to founder on another rock. If the consultation process was restricted to Phase 1, but "related to" Phase 2 (i.e. Phase 2 was a relevant factor), the consultees could not respond to it in an appropriately informed manner without having appropriate information about Phase 2, including an assessment of the adverse impact of Phase 2 on the language and communities. Given our findings in relation to Ground 1, it will come as no surprise that we consider consultees could not properly have responded to a consultation process restricted to Phase 1 without having information about that impact. We consider that that was a critical defect in the consultation process, such as to render that process (and the Council's subsequent decision based upon it) unlawful.
- In the circumstances, we need not deal in detail with Mr Lewis's further submissions to the effect that there were other inconsistencies within the four corners of the Consultation Document, compounded by significant differences between the English and Welsh language versions. However, by way of example of the latter:
i) As we have described (paragraph 23 above), the Welsh language version of paragraph 4.7 of the Impact Assessment, which informed the consultation document, added the words "yn benodol" ("specifically") to the phrase "and expressly excludes any consideration of a Second Phase which is not the subject of this consultation".
ii) In paragraph 12.12, the timetable for the proposal is set out. In the English language version, the final step is specified as the move to a new area school on two sites in September 2016; whereas in the Welsh language version is that pupils would move into a new school on one site in September 2017. In the former, there was a reference below the table to this step being anticipated "should investment be approved." Those latter words were omitted from the Welsh language version.
iii) In the same paragraph, "key points" were identified. The Welsh language version contained two points which the English language version did not, namely:
a) "Bydd yr ysgol yn ysgol Cyfrwng Cymraeg Categori 2" (i.e. "The school will be a Welsh medium Category 2 school).
b) "Byddai gan yr Ysgol Ardal Newydd (Cam 2) le ar gyfer 140 o ddisgyblion" (i.e. "The New Area School (Phase 2) would have space for 140 pupils".
Whilst we accept that the second omission from the English language version may be minor and innocuous, the reference to "a Welsh medium Category 2 school" in the former is unfortunate: there is no such concept, and it suggests (wrongly) that, in the new school, the Welsh language may be given more prominence than usual in Category 2 schools.
- Mr Lewis, whilst expressly stopping short of alleging any deliberate intent on the part of the Council, nevertheless submitted that these inconsistencies mean that in the Welsh versions of the Impact Assessment and Consultation Document, there is even greater uncertainty about whether only Phase 1 or both phases of the overall plan was being considered. We agree. Given that the Welsh language has official status in Wales (see section 1(1) of the Welsh Language (Wales) Measure 2011 (2011 nawm 1)), it is to say the least highly regrettable that there were significant differences between the two language versions of these documents. A person reading such a document in either language is entitled to expect that there are no significant differences between the two language versions.
- However, we consider that those differences, regrettable though they are, do not add substantially to our conclusions set out in paragraph 74 above.
Ground 3: Consultation: Failure to explain "Dual stream Category 2 school"
- Mr Lewis submitted that the Consultation Document failed to explain adequately what was meant by a "dual stream category school", and might have left the (false) impression that, following Phase 2, there would be separate classrooms for teaching through the medium of the Welsh language and the English language; whereas, given the pupil numbers, the only realistic way of providing dual stream education on one site would be teaching through both languages in the same classroom. There are references throughout the document to the two types of provision existing "side-by-side" which, Mr Lewis submitted, may reasonably be understood to mean in separate classrooms.
- Given our conclusions in relation to the need for an Impact Assessment in respect of Phase 2 in the consultation exercise, and the acceptance that teaching during Phase 1 is unlikely to change substantially, in our judgment the criticism under this ground does not add anything substantial to the criticisms which we have accepted under Grounds 1 and 2. The likely classroom provision and language of teaching should in our view form part of any assessment on the impact on the language and communities during Phase 2. Looking at Phase 1 alone, that would not in practice change.
- In the circumstances, we do not consider it necessary to hold that this ground too has been made good.
Ground 4: Consultation: Failure to give consultees an opportunity to suggest alternative options
- Section 3.2 of the Code requires the consultation document to contain a pro-forma for comments, "including an opportunity for consultees to suggest alternatives to the proposals…" (see paragraph 13(ii) above).
- There was a form in this case. It contained a box on two-thirds of a page, and an invitation to use and additional sheet if necessary for "any comments or views, positive or negative, that you have regarding the proposal", without expressly referring to the suggestion of alternatives. Mr Lewis submitted that this amounted to a breach of an important requirement of the code. Mr Williams submitted that the form did provide such an opportunity, and pointed out that a number of persons who responded took advantage of this opportunity to suggest alternatives, such as establishing a new Category 1 school in the Pwllglas area or joining the two schools respectively with other schools in the area.
- This was clearly not Mr Lewis's main ground; and we consider that it is difficult to assess it as a discrete ground because, whilst the Consultation Document intended to consult on Phase 1 only, the alternatives it suggested were not alternatives to the Phase 1 proposal, but to the whole proposal incorporating Phases 1 and 2.
- However, although we are not convinced that, if this had been the only ground of merit, it would have warranted any substantive relief, we are persuaded that Mr Lewis has made the ground good: in our view, the form did not provide an appropriate opportunity to consultees to suggest alternatives to the proposal, if only because it was unclear as to whether those alternatives were to Phase 1 alone or to Phase 1 and 2.
Standing and Delay
- Mr Williams maintained an objection to the standing of the Claimant, and also submitted that relief should be refused because of delay. We can deal with these points briefly. We consider they have no force.
- With regard to standing, we accept that the court has to be vigilant to ensure that any claimant has a "sufficient interest" to bring a claim as required by section 31(3) of the Senior Courts Act 1981. Whether a particular individual has such standing in a particular case is necessarily fact-specific.
- In this case, the Claimant is far from being a busybody. He is a member of the local community in Pentrecelyn. He attended Ysgol Pentrecelyn, and has siblings who are still there. He is a member of the campaign group, Ymgyrch Pentrecelyn. Whilst we accept that it may be an abuse of process if (e.g.) proceedings are brought in the name of a child rather than his or her parent for the purpose of obtaining public funding and protection against a possible costs order, clear evidence is needed to establish that that had occurred (see R (Boulton) v Leeds Organisation Committee [2002] EWHC 1927 at [37] per Scott Baker J). There is no such evidence here. As we understand it, the Claimant is an adult, who is not in receipt of public funding assistance. Whilst he has obtained some protection against a possible costs order, he remains exposed to the risk of paying up to £3,000 towards the costs of the Council. There is insufficient evidence to show that he has been used by others to avoid the risk of costs.
- On the evidence, we are satisfied that the Claimant has a sufficient interest, and that this claim is not abusive.
- With regard to delay, under CPR rule 54.5(1)(a) and (b), a claim for judicial review must be brought promptly and in any event not later than three months after the grounds to make the claim first arose; although the court has a discretion to extend those periods.
- Mr Williams submitted the claim essentially challenged the consultation, and ought to have been brought within three months of publishing of the Consultation Report in June 2015 or of the Statutory Notice on 18 June 2015. Alternatively, even if the relevant decision was that of the Council Cabinet on 27 October 2015 (and therefore it was brought within three months), he submitted that the claim was not brought promptly. Accordingly, he submitted that the court should exercise its discretion to refuse relief, on the basis that quashing that decision would be detrimental to the good administration of the Council's school reorganisation in the Ruthin area.
- However, we agree with Mr Lewis that such a challenge would have been premature prior to the decision of 27 October 2015. It is clear that, although there had been a resolution to publish the Statutory Notice in June 2015, that gave a further 28 days for objections to be lodged and there remained strongly held opposing views of members of the Council, informed by the responses to the Consultation Document and the objections to the notice. The decision at the heart of Ground 1 – and, in essence, the other three grounds too – is the substantive decision of the Council of 27 October 2015. That is how, properly, it has been pleaded. Given that there is no reliance upon any particular prejudice to the Council's wider plans, we do not consider that the timing of issue of this claim is such as possibly to justify the refusal of relief.
Conclusion
- For the reasons we have given, Grounds 1, 2 and 4 are made good. In the circumstances, although we shall consider submissions on the precise form of the order, we propose to allow the judicial review, and quash the decision of the Council through its Cabinet on 27 October 2015 to close Ysgol Pentrecelyn and Ysgol Llanfair DC, and establish a new school on the two sites of those schools, as from 1 September 2017.
- The Claimant and his supporters should, however, be under no misunderstanding. The effect of this judgment is limited. Although that decision of the Council is quashed, it has been quashed on procedural grounds and not of course on the merits. It is open to the Council to reconsider the matter, lawfully, in the light of the guidance in this judgment; and, of course, the decision the Council might reach on that reconsideration cannot be foretold.
