Law Report: Boys' school closure was lawful: Regina v Northampton County Council and another, Ex parte K Queen's Bench Division (Mr Justice Hutchison), 21 July 1993

Although a local education authority, when proposing to close a single-sex school, had not complied with its statutory obligation in relation to sex discrimination, its proposal was lawful since the school was not educationally viable.

Mr Justice Hutchison dismissed an application by K, a pupil at Kettering Boys' School, for judicial review of Northamptonshire County Council's proposal to cease to maintain the school with effect from 31 August 1993, of the decision of the Secretary of State for Education approving the council's proposal and of the council's decision to cease to maintain the school.

The school, which could trace its origins to 1577, enjoyed a high reputation. In 1976 it became a comprehensive school. Because of falling rolls, the council proposed to close the school, even though that would leave no access to a single-sex boys' school in the Kettering area. The council made the proposal on the basis that it did not have to take into account under the Sex Discrimination Act 1975 the provision made for a single-sex girls' school by Southfields Girls' School, a grant-maintained school.

The Secretary of State, who did take into account the position under the Sex Discrimination Act, approved the council's proposal for the school's closure. The council decided to implement the proposal. The applicant applied for judicial review.

When the council received notice of the application for judicial review, it informed the applicant that although the school's closure would be in breach of the Sex Discrimination Act, it was under a duty to implement any proposal that had been approved by the Secretary of State. The applicant argued that since the proposal was unlawful, the Secretary of State's approval was not valid, and the council was therefore not under any duty to implement it.

Khawar Qureshi (Clarke & Co, Kettering) for the applicant; Cherie Booth (Council Solicitor) for the council; David Pannick QC (Treasury Solicitor) for the Secretary of State for Education.

MR JUSTICE HUTCHISON said that R v Birmingham City Council, Ex parte The Equal Opportunities Commission (No 2) (1992) 90 LGR 492 established that a local authority must take account, in considering whether it was discharging its duties under the Education Act 1944 and the Sex Discrimination Act 1975, the provision of single-sex schooling at a grant-maintained school. It was common ground that the council would be in breach of its duty in relation to the equal treatment of boys in the matter of provision of single- sex education in Kettering.

In R v Secretary of State for Education and Science, Ex p Keating 84 LGR 469, Mr Justice Taylor said that if the court declined in its discretion to grant relief simply on the grounds of good motives or resultant administrative inconvenience, the bite of the 1975 Act would be seriously impaired.

However, the council's proposal was not unlawful. If the school were to remain open it would not be educationally viable. That meant that the local education authority could not properly perform its statutory duties under the 1944 Act and the 1975 Act by reference to educational opportunities at such a school.

It was fallacious to argue that the mere fact that it was recognised that there was an overwhelming probability that once the school was closed the council would be vulnerable to a charge of sex discrimination, meant that it must keep the school open.

The council's proposal was a lawful one - it was, on the evidence, the only proposal it could sensibly make, given that it was not practicable to continue the school which would no longer be viable. It followed that the approval of the Secretary of State was also valid and there was no ground for impugning it.

Therefore the applicant was not entitled to a declaration or substantive relief. A declaration that the council was under a duty to comply with its statutory obligations in relation to sex discrimination would be otiose. Since the proposal to close the school and the approval of the proposal were not unlawful, the applicant was not entitled to a declaration in that regard or to substantive relief.