Driver, R (On the Application Of) v Rhondda Cynon Taf County Borough Council

Factual and Procedural Background

An appeal arises from a decision of Judge Fraser in the Administrative Court in Wales, which quashed a decision by the Appellant, Company A (a County Borough Council), made on 18 July 2019. The decision involved the implementation of three proposals concerning the closure of certain schools and the establishment of new schools.

Company A had undertaken a programme of consultation and proposals to reorganise primary schools, secondary schools, and sixth form provision in a specific borough area. On 21 March 2019, Company A published four statutory notices proposing:

• The alteration of the age range at a Roman Catholic comprehensive school, removing sixth form provision (proposal 1).
• The closure of a high school and a primary school and the creation of a new school without sixth form provision (proposal 2).
• The closure of another high school and primary school and the creation of a new school without sixth form provision (proposal 3).
• The closure of two primary schools (one Welsh medium and one dual medium) and the opening of a new Welsh medium primary school (proposal 4).

On 18 July 2019, Company A decided to implement proposals 2 to 4. The judge granted judicial review on two grounds: (i) proposals 2 and 3 should have been referred to the Welsh Ministers for approval under the relevant statutory provisions, and (ii) Company A failed to comply with provisions of the School Organisation Code in relation to proposal 4. The judge quashed the decision to implement these proposals.

Company A was granted permission to appeal on grounds relating to the interpretation of the statutory provisions and compliance with the Code. The Welsh Language Commissioner and the Welsh Ministers were granted permission to intervene and make submissions.

Legal Issues Presented

1. What is the proper construction of section 50 of the 2013 Act/Deddf, enacted in both Welsh and English, concerning when proposals for school reorganisation affect sixth form education and require the approval of the Welsh Ministers?
2. Whether proposals to close schools providing sixth form education alongside other age groups require approval, or only those schools providing solely sixth form education.
3. Whether Company A failed to comply with paragraph 1.9 of the School Organisation Code in relation to proposal 4 concerning Welsh medium education.
4. Whether Company A failed to comply with paragraph 1.4 of the Code or failed to consider the impact of proposal 4 on Welsh medium education more generally.

Arguments of the Parties

Appellant's Arguments (Company A)

• Section 50(2) of the 2013 Act/Deddf provides an exhaustive list of proposals affecting sixth form education, limited to schools providing education solely to those above compulsory school age.
• The words "only" and "yn unig" in the English and Welsh texts respectively qualify the school provision, not the education, and cannot be redundant.
• Interpreting section 50(2)(a) more broadly would create uncertainty and increase referrals to the Welsh Ministers, contrary to the legislative intent to reduce referrals.
• Paragraph 1.9 of the Code applies only to secondary schools or sixth form colleges, not to primary schools such as those in proposal 4.
• Any alleged breach of paragraph 1.4 of the Code was not pleaded, depriving Company A of an opportunity to respond, constituting a procedural error.

Appellee's Arguments (Plaintiff)

• The judge correctly held that section 50(2) does not provide an exhaustive list of proposals affecting sixth form education.
• The words "only" and "yn unig" qualify the education provided, not the school, so proposals affecting schools that provide sixth form education alongside other education fall within the requirement for approval.
• The inclusion of "only" and "yn unig" emphasises the application to sixth form education but does not limit it to schools providing solely sixth form education.
• Paragraph 1.9 applies to proposal 4 because it is linked with proposals involving secondary schools and sixth forms.
• Company A failed to properly consider the impact of proposal 4 on Welsh medium education, breaching the Code.

Welsh Ministers' Arguments

• Section 50(2) provides an exhaustive definition requiring approval only for proposals affecting schools providing solely sixth form education.
• The word "only" and phrase "yn unig" are not redundant and indicate the legislative intent.
• Welsh Ministers have a statutory duty to secure proper facilities for education of persons aged 16 to 19, justifying their interest only in sixth form schools exclusively.
• The Explanatory Memorandum supports this interpretation.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed the interpretative challenge posed by bilingual legislation enacted in both Welsh and English, emphasizing equal standing of both texts as mandated by statute and the Welsh Language Measure 2011. The court adopted the Law Commission's recommended approach to interpret bilingual statutes by seeking legislative intention through the purposes and objects of the legislation rather than forcing a literal shared meaning if none exists.

Regarding section 50 of the 2013 Act/Deddf, the court analysed the English and Welsh texts and the statutory context. It found that section 50(2) provides a conditional and exhaustive definition of proposals affecting sixth form education requiring Welsh Ministers' approval. The use of "if" in the provision indicates a conditional requirement, not an illustrative or non-exhaustive list.

The court held that the words "only" and "yn unig" qualify the education provided by the school, not the school itself. They restrict the scope to schools providing education solely to persons above compulsory school age (i.e., sixth form only schools). The presence of these words is meaningful and not redundant.

The court rejected the judge's earlier interpretation that proposals affecting schools providing sixth form education alongside other education must be referred for approval. It reasoned that such an interpretation would frustrate the legislative purpose of reducing referrals to the Welsh Ministers.

The court further supported its interpretation by reference to related provisions (section 71) where the legislation explicitly refers to schools providing education to sixth formers "and no other," emphasizing the Welsh Ministers' interest in sixth form only schools.

Pre-legislative materials, including the White Paper and Explanatory Memorandum, were considered and found consistent with this interpretation. They reflected the legislative intent to focus Welsh Ministers' approval on proposals concerning sixth form only schools.

On the application of the School Organisation Code, the court determined that paragraph 1.9 applies only to proposals concerning secondary schools or sixth form colleges and does not apply to primary school proposals such as proposal 4. The judge was wrong to hold otherwise.

Regarding the alleged failure to comply with paragraph 1.4 of the Code and to consider the impact of proposal 4 on Welsh medium education, the court found no procedural unfairness in considering this ground. However, the judge had conflated the requirements of paragraph 1.9 with paragraph 1.4 incorrectly.

After reviewing the evidence, the court concluded that Company A had properly considered relevant factors under paragraph 1.4, including the availability of sufficient Welsh medium places, accessibility, and continuity of education through the medium of Welsh. The court also noted that findings by the Welsh Language Commissioner concerning consultation documents did not affect the lawfulness of the decision to implement proposal 4.

Holding and Implications

The court ALLOWED the appeal on grounds 1, 2, 3, 4(b), and 5.

The core holding is that proposals to establish or close a school require Welsh Ministers' approval under section 50(2)(a) of the 2013 Act/Deddf only if the school provides education solely to persons above compulsory school age (i.e., sixth form only schools). Proposals 2 and 3, involving schools providing sixth form education alongside other age groups, did not require such approval and thus Company A was entitled to implement them.

The court also held that paragraph 1.9 of the School Organisation Code does not apply to proposals concerning primary schools (proposal 4). Company A complied with paragraph 1.4 of the Code and lawfully considered the impact of proposal 4 on Welsh medium education.

No new precedent was established beyond the interpretation of bilingual statutory provisions and application of the School Organisation Code in this context. The decision clarifies the scope of Welsh Ministers' approval requirements and the application of the Code to school reorganisation proposals.