(no subject)
http://www.bbc.co.uk/news/education-12429152
The government has been defeated in the High Court over its decision to scrap England's school building programme.
Six councils claimed Education Secretary Michael Gove's decision to scrap Buildings Schools for the Future projects in six local authority areas was unfair and unlawful.
Mr Gove will now look have to look again at his decisions in these six areas.
So far, so normal - judicial review sought, judicial review won. Note that this doesn't re-instate the programmes, simply quashes their removal. The re-review can (potentially) come to the same conclusion - although if that's done arbitrarily, that can be quashed too.
The interesting part? Last paragraph: A set of general principles was applied to decide which projects were to be scrapped, but Mr Gove did not consider it "practicable or appropriate" for him to arbitrate between the claims of a large number of different authorities, or an even larger number of individual schools.
Jesus Christ.
a) Which civil servant allowed him to do this?
b) Which lawyer thought that this was a sensible thing to say to a judge?
You might as well just give up.
My favourite case on this issue is British Oxygen v Minister of Technology (1971) AC 610.
But let's assume that Michael Gove hasn't read that. What he and his department should have read is JOYS - the Judge Over Your Shoulder. This is a surprisingly readable Treasury document, which explains how judicial review works. In its section on 'Having a "Policy"', it opines:
the Minister (or more likely his officials) will probably develop a standard way of dealing with such cases: they will try to apply the same criteria, attaching the same weight in each case. They will, in short, develop a "policy" for dealing with cases.
2.32 However a very important theme runs through administrative law, that, where statute confers a discretion on an individual, he must not surrender or abdicate that discretion - to another person, or to a set of rules, or to a "policy". He must keep an open mind and consider each case on its own merits: otherwise he is failing to exercise his discretion. The Court has held that it is lawful for the Minister to have a policy as to the way in which discretion should be exercised - indeed, to achieve consistency in decision-making (which is a virtue), it is essential that he should have a policy - but that he should nevertheless direct his mind to the facts of the particular case and be prepared to make exceptions.
That is, if you have the power to make a decision - and especially if you're the final decision-maker, from where there isn't an appeal - you cannot:
This is incredibly basic judicial review law. What the hell is going on in Michael Gove's department?
The government has been defeated in the High Court over its decision to scrap England's school building programme.
Six councils claimed Education Secretary Michael Gove's decision to scrap Buildings Schools for the Future projects in six local authority areas was unfair and unlawful.
Mr Gove will now look have to look again at his decisions in these six areas.
So far, so normal - judicial review sought, judicial review won. Note that this doesn't re-instate the programmes, simply quashes their removal. The re-review can (potentially) come to the same conclusion - although if that's done arbitrarily, that can be quashed too.
The interesting part? Last paragraph: A set of general principles was applied to decide which projects were to be scrapped, but Mr Gove did not consider it "practicable or appropriate" for him to arbitrate between the claims of a large number of different authorities, or an even larger number of individual schools.
Jesus Christ.
a) Which civil servant allowed him to do this?
b) Which lawyer thought that this was a sensible thing to say to a judge?
You might as well just give up.
My favourite case on this issue is British Oxygen v Minister of Technology (1971) AC 610.
But let's assume that Michael Gove hasn't read that. What he and his department should have read is JOYS - the Judge Over Your Shoulder. This is a surprisingly readable Treasury document, which explains how judicial review works. In its section on 'Having a "Policy"', it opines:
the Minister (or more likely his officials) will probably develop a standard way of dealing with such cases: they will try to apply the same criteria, attaching the same weight in each case. They will, in short, develop a "policy" for dealing with cases.
2.32 However a very important theme runs through administrative law, that, where statute confers a discretion on an individual, he must not surrender or abdicate that discretion - to another person, or to a set of rules, or to a "policy". He must keep an open mind and consider each case on its own merits: otherwise he is failing to exercise his discretion. The Court has held that it is lawful for the Minister to have a policy as to the way in which discretion should be exercised - indeed, to achieve consistency in decision-making (which is a virtue), it is essential that he should have a policy - but that he should nevertheless direct his mind to the facts of the particular case and be prepared to make exceptions.
That is, if you have the power to make a decision - and especially if you're the final decision-maker, from where there isn't an appeal - you cannot:
- follow a ticklist and spit out an answer
- tell the schools that the computer says 'No'.
This is incredibly basic judicial review law. What the hell is going on in Michael Gove's department?