Law Report / No disclosure of 'in-house' advice: Regina v Secretary of State for Education, Ex parte S - Court of Appeal (Lord Justice Russell, Lord Justice Beldam and Lord Justice Peter Gibson), 15 July 1994

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A minister who had to make a decision as part of an appellate process would necessarily consult with officials in his department and obtain their expertise and advice, and unless that consultative exercise involved a new point with which the interested parties had had no opportunity of dealing, the minister was under no duty to disclose material resulting from the consultative process.

The Court of Appeal allowed the Secretary of State's appeal against the quashing by Mr Justice Sedley on 21 December 1993 of the Secretary of State's decision's relating to E's educational needs.

E's parents were concerned about E's learning ability. Essex County Council, the local education authority, prepared a statement of his special educational needs. It set out the special educational provision for E by which he was to receive specialist support within the state system. His parents had placed E in a fee- paying school where he could be provided with a regime recommended by an advisor to the Dyslexia Institute.

The parents appealed against the council's decision to the Secretary of State, who received evidential material of over 400 pages. The Secretary of State told the parents that he was seeking specialist advice. By his decision letter, which did not mention the advice he had received, he stated that E's difficulties were addressed by the special educational provision in the council's statment and that his difficulties could be catered for within a mainstream school.

The parents applied for judicial review of the Secretary of State's decision on the ground, among others, that he should have disclosed the advice received and invited further comment. Mr Justice Sedley quashed the decision.

Stephen Richards and David Hart (Treasury Solicitor) for the Secretary of State; John Friel (A E Smith & Son, Stroud) for the parents.

LORD JUSTICE RUSSELL said that the advice received had come from an educational psychologist, seconded to the Department of Education and Science and so was 'in house'. The Secretary of State submitted that the process of government necessarily involved civil servants engaging in a host of consultative exercises inter se, applying their individual expertise and experience to the given problem.

The ultimate decision of the minister in a case where there had been such consultation was a matter of judgment for the decision-maker. How he reached his decision was essentially a matter for him.

It might involve extensive 'in-house' consultation, but provided the process had not involved a new point with which the interested parties had had no opportunity of dealing, there was no duty to disclose material which was the product of the consultative process.

Those submissions were accepted. They were supported by Bushell v Secretary of State for the Environment (1981) AC 75, 101, where Lord Diplock said: 'No one could reasonably suggest that as part of the decision making process . . . the minister ought not to consult with the officials of his department and obtain from them the best informed advice he could . . . or that he was bound to communicate the departmental advice . . .'

The parents were given every opportunity of adequately stating their case in the initial stages and through the appellate procedures.

The advice received by the Secretary of State was no more than a critical analysis of the quality of the evidence as well as its content. The Secretary of State was plainly entitled to have regard to that in reaching his conclusion. It was material he was under no obligation to disclose.

LORD JUSTICE PETER GIBSON said that the practical reality was that the Secretary of State would call on the considerable expertise within his department to assist him in making up his mind. There was simply no basis in law or in fact for dividing the decision-making process on an appeal to the Secretary of State as consisting of an earlier stage in the course of which the expert provided his appraisal and a final stage in which the Secretary of State made up his mind. The advice given within the Department for Education to the Secretary of State did not differ qualitatively from the departmental advice in the Bushell case.

The advice received was an integral part of the decision- making process. It was not necessary in the interests of fairness to require the disclosure of departmental advice unless the Secretary of State was minded to take into account a new point on which the parties had had no opportunity to make representations.

Although the Secretary of State in his decision letter did not simply endorse either the authority's view or the parents' view, he was fully entitled to come to a different view of his own on matters on which both parties had had the opportunity to make representations.