In rejecting a judicial review challenge to the Secretary of State’s decision that Downhills Primary School in Haringey should become an academy a High Court judge has reached conclusions about the consultation obligation under the Academies Act 2010 which will have consequences which many will find surprising.
The judge was considering an application for permission to bring a judicial review, so his judgment does not have any formal precedent effect, but his conclusions are nonetheless notable.
The legal background
Section 3(1) of the Academies Act 2010 allows the governing body of a maintained school to apply to the Secretary of State to make an “academy order”.
By section 6(1) of the Act, such an order, if made, has the effect of converting the school into an academy when the Secretary of State enters into “academy arrangements” (i.e. generally a “funding agreement”) which sets up the academy in question. There is no legal obligation for the school to consult parents or others before making an application for an academy order, and there is no legal obligation on the Secretary of State to consult parents or others before making the order as requested.
Governing bodies have thus generally (perhaps always?) regarded the step of applying (and the consequential making of an order by the Secretary of State) as simply being the first step in the process. Most have explained it to themselves and others as being no more than an expression of interest, not committing the school to conversion, and with an intention of making the real decision on whether to become an academy later, following consultation.
The consultation they have in mind is that under section 5(1) of the 2010 Act.
Section 5(1) requires that there should be consultation on the question of whether the school should become an academy.
Unless the school is ‘eligible for intervention‘, it is, by section 5(4) of the 2010 Act, for the governing body to undertake the consultation.
It has generally been assumed that the governors could then decide, in the light of what parents and others have said, whether to continue.
And, having thus sought the views of parents and others, governing bodies have (in my experience at least) only then made what they think is the actual decision about whether or not to press on with conversion.
Some decide not to do so. They assume that will mean the conversion will not proceed.
So what now?
In rejecting the application for permission in the Downhills case (where, as it happens, an IEB was acting as the governing body), the judge has concluded that section 5 of the 2010 Act does not require, or even allow, the governing body to make a decision on the question of whether conversion should take place, let alone does any decision they “purport to take” have any legal effect.
That would have quite profound effects for the way most governing bodies have proceeded with their consideration of the conversion option.
That is because section 5(3) of the 2010 Act makes clear that the consultation can take place before or after an application for an academy order, or even an order itself, has been made.
What it would mean is that, if governors proceed with the application for an order before undertaking the section 5 consultation, they are then powerless to stop the process going ahead if, having heard the views of parents, they then get cold feet about the idea.
In effect: the only decision for governors to take would be whether or not to apply for an academy order.
Once they have done so, the process would be entirely in the hands of the Secretary of State.
So even if the overwhelming view of parents (responding the subsequent consultation) and then that of the governors (in the light of the parental views) is that the school should remain as a maintained school, there is nothing they could then do to stop the Secretary of State proceeding with the conversion against their wishes.
So governing bodies contemplating the possibility of conversion would be well advised not any more to treat the making of an application for an order as a relatively tentative step (as a mere ‘expression of interest’). It could be the only decision they actually get to make. So they may want to take it rather more seriously (including potentially undertaking full and proper consultation with parents and others before applying for an academy order) than many have done so far.