judy.legal

Lord Wilberforce

my lords,

This appeal is concerned with secondary education in the Metropolitan Borough of Tameside. Tameside is a new unit of local government created under the Local Government Act 1972: it includes areas formerly in Cheshire and Lancashire. Its resources in secondary education included 16 secondary modern, five grammar and three purpose-built comprehensive schools under construction. Soon after its creation the Council, as local education authority, put forward a scheme for bringing all the schools in the area under the comprehensive principle—" comprehensive " in this con-text not bearing its normal meaning in English, or the meaning it bore in the Education Act 1944, but its meaning in modern political jargon of a system which, in theory, lets everyone in to any school without selection by aptitude or ability. Grammar schools, by contrast, allocate places by selection. This scheme was brought in and, as the law required, was laid before the Secretary of State for Education and Science on 10 March 1975 ;it was very detailed and would clearly take some time to implement.Briefly, it provided: (1) for setting up three new purpose-built comprehensive schools (those mentioned above); (2) for bringing the sixteen secondary modern schools into the comprehensive principle ; (3) for abolition of the five grammar schools by turning three of them into comprehensives, and two into six form colleges. These proposals in due course, on 11 November 1975,received the Secretary of State's approval, and the Council then became entitled to put them into effect: but, and this is important, the Secretary of State's approval imposed no duty on the Council to implement them.In fact, the Council did take some steps towards their initial implementation by the beginning of the school year in September 1976. These steps were of a rather hurried nature, and, the respondents now contend, premature, and made not without an eye upon the local government elections to beheld in May 1976. It is certainly fair to say that it was and is clear that necessary buildings for the changeover could not be completed, or in some cases more than just begun, by September 1976, and that if the new proposals were to start at that date there would be a good deal of improvisation and temporary disruption. There was some impressive evidence of this from a number of experienced teachers.

Local elections were held on 6th May 1976. The issues no doubt werenumerous and of varying importance, but the survival of the grammarschools as selective entry schools was one issue strongly fought, and onwhich the opposition party took its stand. A large number of parents hadsigned a petition against the 1975 proposals and no doubt supported theopposition. The opposition gained control of the Council, and they con-sidered themselves to have been given a mandate to reconsider their prede-cessors' education policy. They formulated their own proposals as notinvolving a total reversal of that policy. They set them out in a carefullythought out and moderate letter addressed to the Secretary of State on7 June 1976. They proposed to adopt what had already been done in thedirection of comprehensive education—the three new comprehensives wouldbe continued and completed " as a valuable nucleus of any future scheme ".The sixteen secondary moderns would be continued. But they did not pro-pose to implement at once the plans for conversion of the grammar schools.They proposed to postpone these plans and to continue the schools for atime so that the position could be reviewed, in the light, amongst otherthings, of the new Education Bill then before Parliament. Their policy was

to maintain the status quo with the least disturbance and disruption of the children's education pending any longer term, well thought out proposals .

The Secretary of State, and his Department, were greatly concerned with the difficulties likely to be brought about by a change in control of the Local Education Authority. Undoubtedly such changes are an administrator's nightmare. The Department had approved the "comprehensive " plan, andthey knew and approved that the Authority had planned to start introducing it in September 1976. A change of course only three months before the news school year was to start very naturally worried the officials. There was correspondence between the Department and the Authority in May and June in which the Authority was asked to explain its plans, particularly with regard to the selection of pupils ; there was a meeting in Whitehall on 9 June, which does not seem to have been amicable or conclusive. The Secretary of State remained of the opinion that it was too late to reverse the previous Council's plans and that the new Council was acting unreasonably in doing so. Soon 11 June 1976 he gave a direction to the Council to implement their predecessors' proposals, and on 18 June 1976 he asked for an order of mandamus that they should do so. This order was granted by the Divisional Court buton 26 July 1976, on appeal by the Authority, it was discharged by the Courtof Appeal, leave to appeal being refused. By an emergency procedure which started with an application for leave to appeal on 29 July and which phased into a full hearing of the appeal, your Lordships heard full, and I must say admirable arguments on a complete documentary record on 29-31 July.I would like to acknowledge the efforts and co-operation of those advising each side which enabled this exceptionally quick procedure to be carried out. The argument was concluded on 31 July, and on 2 August it was announced that their Lordships were of opinion, for reasons to be announced and now set forth, that the appeal failed.

I must now set the legal scene. The direction of 11 June 1976 was given under section 68 of the Education Act 1944. Education is still governed by this notable statute (as amended), and it is necessary to understand its structure. Under the Act responsibility for secondary education rests upon a four-fold foundation. The Minister (as he was then called); local authorities ;parental wishes ; and school managers and governors. All have their partto play. The primary responsibility rests on the Minister. He has to promotethe education of the people of England and to secure the effective execution by local authorities, under his control and direction, of the national policy for providing a varied and comprehensive (old meaning) educational service in every area, (s.l.) But local education authorities, which are elected,have their place defined. It is they who are responsible for providing secondary education in schools sufficient in number, character, and" equipment, to afford for all pupils opportunities for education offering such" variety of instruction and training as may be desirable in view of their"different ages, abilities, and aptitudes (s.8). Section 13 is an importantsection—it is that which was acted on in 1975. It enables local education authorities to make significant changes in the character of any schoolbut requires them to make proposals to that effect to the Secretary of State.So the initiative is theirs: ultimate control is with the Secretary of State:there is no obligation, before or after his approval, on the authority tocarry its proposals out. Section 68 must be quoted in full.

" If the Secretary of State is satisfied, either on complaint by any person or otherwise, that any local education authority or the managers or governers of any county or voluntary school have acted or are proposing to act unreasonably with respect to the exercise of any power conferred or the performance of any duty imposed by or under this Act, he may, notwithstanding any enactment rendering the exercise of the power or the performance of the duty contingent upon the opinion of the authority or of the managers or governors, give such" directions as to the exercise of the power or the performance of the duty as appear to him to be expedient."

This section does not say what the consequences of the giving of directions are to be, but I accept, for the purposes of the appeal, that the consequencesare to impose on the authority a statutory duty to comply with them whichcan be enforced by an order of mandamus.

Analysis of the section brings out three cardinal points.

(1) The matters with which the section is concerned are primarily matters of educational administration. The action, which the Secretary of State is entitled to stop, is unreasonable action with respect to theexercise of a power or the performance of a duty—the power and theduty of the authority are presupposed and cannot be interfered with.Local education authorities are entitled under the Act to have a policy,and this section does not enable the Secretary of State to require them toabandon or reverse a policy just because the Secretary of State disagreeswith it. Specifically, the Secretary of State cannot use thissection to impose a general policy of comprehensive education upon alocal education authority which does not agree with the policy. He can-not direct them to bring in a scheme for total comprehensive educationin their area, and if they have done so he cannot direct them to imple-ment it. If he tries to use a direction under section 68 for this purpose,his direction would be clearly invalid. A direction under section 68 mustbe justified on the ground of unreasonable action in doing what under theAct the local authority is entitled to do, and under the Act it has a free-dom of choice. I do not think that there is any controversy upon thesepropositions.

The critical question in this case, and it is not an easy one, is whether,on a matter which appears to be one of educational administration,namely whether the change of course proposed by the Council in May1976, would lead to educational chaos or undue disruption, the Secretaryof State's judgment can be challenged.

The section is framed in a " subjective " form—if the Secretary ofState " is satisfied ". This form of section is quite well known, and atfirst sight might seem to exclude judicial review. Sections in this formmay. no doubt, exclude judicial review on what is or has become a mat-ter of pure judgment. But I do not think that they go further than that.If a judgment requires, before it can be made, the existence of somefacts, then, although the evaluation of those facts is for the Secretary ofState alone, the court must enquire whether those facts exist, and havebeen taken into account, whether the judgment has been made upon aproper self direction as to those facts, whether the judgment has not beenmade upon other facts which ought not to have been taken intoaccount. If these requirements are not met, then the exercise of judg-ment, however bona fide it may be, becomes capable of challenge. (SeeSecretary of State for Employment v. Associated Society of LocomotiveEngineers and Firemen and Others (No. 2>. [1972] 2 Q.B. 455. 493per Lord Denning M.R.).

The section has to be considered within the structure of the Act.In many statutes a Minister or other authority is given a discretionarypower and in these cases the court's power to review any exercise of thediscretion, though still real, is limited. In these cases it is said that thecourts cannot substitute their opinion for that of the Minister: they caninterfere on such grounds as that the Minister has acted right outsidehis powers or outside the purpose of the Act, or unfairly, or upon anincorrect basis of fact. But there is no universal rule as to the principles on which the exerciseof a discretion may be reviewed: each statute or type of statute must beindividually looked at. This Act, of 1944, is quite different from those whichsimply create a ministerial discretion. The Secretary of State, under section68, is not merely exercising a discretion: he is reviewing the action of anotherpublic body which itself has discretionary powers and duties. He, bycontrast with the courts in the normal case, may substitute his opinion forthat of the authority: this is what the section allows, but he must take account

of what the authority, under the statute, is entitled to do. The authority,this is vital, is itself elected, and is given specific powers as to the kind ofschools it wants in its area. Therefore two situations may arise. One isthat there may be a difference of policy between the Secretary of State(under Parliament) and the local authority: the section gives no power tothe Secretary of State to make his policy prevail. The other is that, owingto the democratic process involving periodic elections, abrupt reversals ofpolicy may take place, particularly where there are only two parties andthe winner takes all. Any reversal of policy if at all substantial must causesome administrative disruption—this was as true of the 1975 proposals asof those of Tameside. So the mere possibility, or probability, of disruptioncannot be a ground for issuing a direction to abandon the policy. Whatthe Secretary of State is entitled, by a direction if necessary, to ensure isthat such disruptions are not " unreasonable ", i.e. greater than a body,elected to carry out a new programme, with which the Secretary of Statemay disagree, ought to impose upon those for whom it is responsible. Afterall, those who voted for the new programme, involving a change of course,must also be taken to have accepted some degree of disruption inimplementing it.

The ultimate question in this case, in my opinion, is whether the Secretaryof State has given sufficient, or any, weight to this particular factor in theexercise of his judgment.

I must now enquire what were the facts upon which the Secretary ofState expressed himself as satisfied that the Council were acting or proposingto act unreasonably. The Secretary of State did not give oral evidencein the courts, and the facts on which he acted must be taken from theDepartment's letters at the relevant time—i.e. on or about 11 June 1976—and from affidavits sworn by its officers. These documents are to be readfairly and in bonam partem. If reasons are given in general terms, thecourt should not exclude reasons which fairly fall within them: allowancemust be fairly made for difficulties in expression. The Secretary of Statemust be given credit for having the background to this actual situation wellin mind, and must be taken to be properly and professionally informed as toeducational practices used in the area, and as to resources available to thelocal education authority. His opinion, based as it must be, upon that of astrong and expert department, is not to be lightly overridden.

The first letter from the Department to the local education authority wasdated 26 May 1976. This refers to "a great deal of educational andadministrative planning" which had taken place since approval of the" comprehensive " plan in November 1975. Particular matters mentionedwithout details were: (i) allocation of children to schools ; (ii) progress instaffing arrangements including the offer and acceptance of contracts ; (iii)planning of curricula and courses ; (iv) some building work. Reference isalso made to the " continuing absence of any precise alternative plans ".Tameside answered this on 7 June 1976 in a long letter. I must summariseit at some length because argument has tended to become concentrated onone or two narrow points rather than upon a balance overall view of theCouncil's plans. I have already commented on the general character andtone of this letter, which is moderate, appreciative of the difficulties, andwhich shows at least an intention and purpose to reduce them to theminimum.

The letter begins with a narrative section stating that no comprehensivereorganisation in Tameside had yet taken place. The schools were notready for their changed roles ; building works were not completed, and not inmost cases begun. Implementation (sc. of the 1975 proposals) in September1976 would have caused grave disruption to the children's education. Aparticular case of this would be disruption of the education of sixteen-year-old pupils, who under the 1975 proposals would have been turned out of the6th forms of three grammar schools and transferred to two non-selective6th form colleges. I do not think that any of this is disputed. The Authority'sown plans were set out under ten points, which involved continuation of thefive grammar schools, continuation and completion of the three new purpose-

built comprehensives, and continuation of the remaining secondary schools.Their policy as regards allocation to schools is spelt out in five paragraphs.All allocations of pupils for the forthcoming year—about 3,000 in all-made by the old Council would be honoured subject to agreement by theparents concerned. Ashton and Hyde Grammar schools—by the old councildestined to become 6th form colleges—would remain grammar schools andwould be open to eleven-year-old entry, thus making 240 selective places avail-able. All parents of eleven-year-olds were to be given the right to apply forreallocation of their children, but if they were satisfied with the existingallocations those allocations would stand. Then—paragraph 7—it is said" If the number of applicants to the grammar schools exceeds the number" of places available, as is likely, then those pupils most suitable and most" likely to benefit from that type of education will be selected by a combin-" ation of reports, records and interviews. There will be no formal eleven-plus" examination ".

Finally, it was said that there would be a review of the first year entries,and a very flexible transfer system would be operated at the end of the firstyear, or earlier if required. I do not think that we need to consider thisproposal since there is plenty of time for it to be reconsidered.

The letter also stated that, apart from these immediate plans, longer termproposals would have to be worked out and would need to comply withwhatever terms might be contained in the pending Education Bill as andwhen enacted.

The proposals in this letter were explained, it is said, at a meeting heldat the Department on 9 June at the Ministry.

On 11 June, the direction under section 68 was given in a letter of thatdate. The letter stated that the Secretary of State was satisfied that theAuthority was proposing to act unreasonably according to the formula used insection 68 of the Act. A change of plan designed to come into effect inless than three months, must in the opinion of the Secretary of State, giverise to " considerable difficulties ". It pointed out that over 3,000 pupilstransferring from primary schools had already been allocated and allottedplaces. Then followed this paragraph (which I shall call " paragraph A ").

" The Authority's revised proposals confront the parents of children" due to transfer in September with the dilemma of either adhering to" secondary school allocations for their children which they may no" longer regard as appropriate, or else submitting to an improvised" selection procedure (the precise form of which, the Secretary of State" understands, has even now not been settled) carried out in circumstances" and under a time table which raise substantial doubts about its" educational validity ". (My emphasis)

A further objection was taken to the proposed possible reallocation duringor after the first year and final—I have commented on this above. The changeof plan at this time in the educational year threatened to give rise to practicaldifficulties in relation to the appointments of staff already made and theconstruction of buildings for the new comprehensive schools and to create adegree of confusion and uncertainty which could impair the efficient workingof the schools.

These arguments were re-stated and expanded in the affidavit sworn onbehalf of the Secretary of State in support of the application for mandamus.The affidavit stated three points.

Point (i): that 653 of the 802 transfers, promotions and other appointments(of teachers) required to implement the reorganisation had been made.

Point (ii): that contracts had been entered into for building work directlyrelated to the change in character of two of the schools and work had startedunder the contracts. In the case of a third school, the Authority had enteredinto commitments for such building work.

Point (iii): that preparations were made for courses on the basis that theproposals communicated to the Secretary of State would be put into effect.

These points (i), (ii) and (iii) were dealt with fully by the Authority and Ineed say no more about them than that they were completely exploded. Theywere held to have no substance in them by five of the six learned judgeswho have considered this matter: the sixth indicated general agreement with-out specific discussion and indeed point (ii) was criticised with some severityby one of the learned Lords Justices in the Court of Appeal.

Some attempt was made to rehabilitate these points in this House, butlearned counsel decided, no doubt wisely, to concentrate on the allocationissue. But these three points cannot just be discarded as if they had neverbeen made. They form part of a composite set of facts relied upon asshowing unreasonable conduct, and I am not at all sure that the disappear-ance of so many planks does not fatally weaken the stability of the platform.At the least—and I will give the Department the benefit of this assumption--the remaining factual basis would need to be strong and clear if it alonewere to be the basis for the Secretary of State's " satisfaction " as to unreason-able conduct.

So I come to the question of allocation, which was at the centre of thecase as argued and it can best be approached via " paragraph A " above,a paragraph which I regard as revealing. It shows a very strange attitudetoward the .decision taken by the Authority. After the electorate, includingno doubt a large number of parents, had voted the new Council into officeon the platform that some selective basis would be preserved, to say thatthis created " a dilemma " for the parents, with the undertone that this wassomething unreasonable, appears to me curious and paradoxical. Parentsdesired to have a chance of selective places. The new Council was givingit them. If they did not want selective places, they had no need and noobligation to apply for them. Unless the creation of freedom of choice,where no such freedom existed previously, is intrinsically an evil, it seemshard to understand how this so-called dilemma could be something unreason-ably created. The impression which it gives of upsetting 3,000 places isentirely a false one since over 90 per cent, of these would remain unaltered.Then, to refer to " submitting to an improvised selection procedure " hardlydoes justice to the Authority's plan. Some selection procedure was inherentin what the electorate had voted for, a choice which, if it meant anything,must involve some change in allocations for the forthcoming school yearand, unless exactly 240 parents applied for the 240 places, some selection.It would seem likely that in voting for this change in May 1976 the electorsmust have accepted, if not favoured, some degree of improvisation. Thewhole paragraph forces the conclusion that the Secretary of State wasoperating under a misconception as to what would be reasonable for anewly elected Council to do, and that he failed to take into account thatit was entitled—indeed in a sense bound—to carry' out the policy on whichit was elected, and failed to give weight to the fact that the limited degreeof selection (for 240 places out of some 3,000) which was involved, thoughless than perfect, was something which a reasonable authority might acceptand which the parents concerned clearly did accept.

What the Secretary of State was entitled to do, under his residual powers,was to say something to the effect: " the election has taken place ; the new" Authority may be entitled to postpone the comprehensive scheme: this" may involve some degree of selection and apparently the parents desire it." Nevertheless from an educational point of view, whatever some parents" may think, I am satisfied that in the time available this, or some part of it," cannot be carried out, and that no reasonable authority would attempt to" carry it out." Let us judge him by this test—though I do not think thatthis was the test he himself applied. Was the procedure to be followed forchoosing which of the applicants were to be allotted the 240 selective placessuch that no reasonable authority could adopt it? The Authority's letterof 7 June said that selection would be by " a combination of reports, records" and interviews". They had about three months in which to carry it out.The plan was lacking in specification, but it must have conveyed sufficientto the experts at the Department to enable them to understand what was

proposed. Selection by 11-plus examination was not the only selectionprocedure available. Lancashire, part of which was taken over by Tame-side, had evolved and operated a method of selection by head teacher recommendation, ranking of pupils, reports and records, and standardisedverbal reasoning tests. The Tameside Authority had set up in May a panelof selection to operate a procedure of this kind, the Chairman of which wasexperienced in the Lancashire method. He, as he deposed in an affidavitbefore the Court of Appeal, was of opinion that even though a verbalreasoning test might not be practicable in the time there would be nodifficulty in selecting the number of places required There were otheropinions, expressed with varying degrees of confidence by experts, and nodoubt the procedure could not be said to be perfect, but I do not think thatsuch defects as there were could possibly, in the circumstances, having regardto the comparatively small number of places involved, enable it to be saidthat the whole of the Authority's programme of which this was a part wassuch that no reasonable authority would carry it out.

But there is a further complication. The Authority's selection plans wereopposed by a number of the teachers' unions, and there was the likelihoodof non-co-operation by some of the head teachers in the primary schools inproduction of records and reports. The Department letters and affidavitsdo not rely upon this matter, for understandable reasons, but they must beassumed to have had it in mind. Is this a fact upon which the Secretaryof State might legitimately form the judgment that the Authority was actingunreasonably?

To rephrase the question: on 11 June 1976 (this is the date of the direction,and we are not entitled to see what happened thereafter) could it be saidthat the Authority was acting unreasonably in proceeding with a selectionprocedure which was otherwise workable, in face of the possibility ofpersistent opposition by teachers' unions and individual teachers, or wouldthe only (not " the more ") reasonable course have been for the Authorityto abandon its plans? This is I think the ultimate factual question inthe case. And I think that it must be answered in the negative—i.e. thatit could not be unreasonable, in June 1976, and assuming that the Secretaryof State did not interfere, for the Authority to put forward a plan to act onits approved procedure, The teachers, after all, are public servants, withresponsibility for their pupils. They were under a duty to produce reports.These reports and the records in the primary schools are public property.I do not think that it could be unreasonable (not " was unreasonable ") forthe Authority to take the view that, if the Secretary of State did not interveneunder his .statutory power, the teachers would co-operate in working theAuthority's procedure—a procedure which had. in similar form, been operatedin part of this very area.

On the whole case, I come to the conclusion that the Secretary of State,real though his difficulties were, fundamentally misconceived and misdirectedhimself as to the proper manner in which to regard the proposed actionof the Tameside Authority after the local election of May 1976: that if hehad exercised his judgment on the basis of the factual situation in whichthis newly elected Authority was placed—with a policy approved by itselectorate, and massively supported by the parents—there was no ground-however much he might disagree with the new policy, and regret suchadministrative dislocation as was brought about by the change—upon whichhe could find (hat the Authority was acting or proposing to act unreasonably.In my opinion the judgments in the Court of Appeal were right and theappeal must be dismissed.

Viscount Dilhorne

MY LORDS,

In this appeal the comparative merits of comprehensive education and thesystem it replaces have no relevance to the issues to be determined. All wehave to decide is whether the Secretary of State had power to direct the

Tameside Borough Council on the 11th June 1976 to implement the proposalswhich that Council, when it had a Labour majority, had submitted to himon the 19th March 1975 and which he had approved on the llth November1975 for the re-organisation of secondary education in their area.

Section 1 of the Education Act 1944 imposes on the Secretary of State theduty

"to promote the education of the people of England and Wales and" the progressive development of institutions devoted to that purpose," and to secure the effective execution by local authorities, under his" control and direction, of the national policy for providing a varied and" comprehensive educational service in every area."

Section 6(1) of that Act provides that the local education authority foreach county borough shall be the council of the county borough, and section8(1) imposes on every local education authority the duty, inter alia, to securethat there shall be available for their area sufficient schools

" for providing secondary education, that is to say, full-time education" suitable to the requirements of senior pupils, other than such full-time" education as may be provided for senior pupils in pursuance of a scheme" made under the provisions of this Act relating to further education;" and the schools available for an area shall not be deemed to be" sufficient unless they are sufficient in number, character, and equipment" to afford for all pupils opportunities for education offering such variety" of instruction and training as may be desirable in view of their different" ages, abilities, and aptitudes, and of the different periods for which" they may be expected to remain at school, including practical instruc-" tion and training appropriate to their respective needs."

In the discharge of this duty local education authorities are subject to thegeneral supervision of the Secretary of State. Their relationship is not thatof master and servant. He has to secure the effective execution of thenational policy. They have to carry it out in their areas and they enjoya considerable degree of autonomy. The Secretary of State is given powerby section 68 of the Act to secure that they do so. That section readsas follows: —

" If the Secretary of State is satisfied, either on complaint by any" person or otherwise, that any local education authority or the managers" or governors of any county or voluntary school have acted or are" proposing to act unreasonably with respect to the exercise of any" power conferred or the performance of any duty imposed by or" under this Act, he may . . . give such directions as to the exercise of" the power or the performance of the duty as appear to him to be" expedient."

Until the Secretary of State had approved the proposals submitted to himin August 1975, the Council had no power to give effect to them but thegiving of that approval, while it gave them power, did not, the Secretaryof State recognises, impose on them any duty to do so. Nevertheless, it ishis contention that in deciding not to implement them fully but to modifythem, the Council had acted unreasonably and so he had power to direct

them

" to give effect to the proposals which he approved on llth November" 1975 and accordingly to implement the arrangements previously made" for the allocation of pupils to secondary schools for the coming school" year on a non selective basis and to make such other provision relating" to the staffing of the schools, alteration to school premises and other" matters as is required to give effect to the proposals."

It is not for the courts to usurp the functions of the Secretary of State. Ifthe Council had acted or were proposing to act unreasonably, he was entitledto give them these directions or any other directions he thought necessaryin discharge of his duty under section 1 of the Act.

In this House it was common ground that the question whether a localauthority was acting or was proposing to act unreasonably had to be viewedobjectively. It did not suffice that in his opinion the conduct of the authoritywas unreasonable. For him to have power to give directions, the conducthad to be such that no reasonable authority would engage in it.

The proposals submitted on the 19th March 1975 and approved by theSecretary of State were as follows.

Three of the five grammar schools in the area were to be made compre-hensive and in the school year beginning on the 1st September 197611-year-old children from the primary schools would be admitted to themwithout being subjected to any test of their ability. So that year and forthe next four years the pupils at these schools would consist of selected andnon-selected children and it was only after that that these schools would befully comprehensive.

The remaining two grammar schools were to be converted into sixth formcolleges to which pupils would be admitted on the 1st September 1976.Those under 16 at this date would be transferred to comprehensive schools.

There was at this time one comprehensive school in existence and twoothers were being constructed.

The proposals submitted by the Tameside Council to the Department atthe Department's request on the 7th June 1976 were to continue the fivegrammar schools as "11-18 academic high schools", to continue andcomplete the three comprehensive schools which, they said, formed " a" valuable nucleus of any future scheme ", and to continue the remaining11-16 secondary schools.

They proposed that all allocations to schools for 11-year-olds made bytheir predecessors immediately before the local elections should be honouredand maintained subject to the continued agreement and acceptance by theparents concerned but that parents of 11-year-olds could apply for re-allocation if they were dissatisfied with their present allocation.

As the two grammar schools which were to become sixth form collegeswere to remain grammar schools and no allocations of 11-year-olds had beenmade to them under the approved proposals, there would be 240 schoolplaces in these schools to be filled ; and if the number of applicants for theseplaces exceeded the number of places available, they proposed that thepupils most suitable and most likely to benefit from that type of educationshould be selected in the light of " reports, records and interviews ".

So the new Tameside Council only proposed to disturb the allocation ona non-selective basis to secondary schools of the 3,200 or so 11-year-oldchildren leaving primary schools to the extent of selecting 240 from thosewho applied for admission to the two grammar schools which were not tobe made into sixth form colleges.

It was not disputed before us that whether the approved proposals shouldbe implemented was a major issue at the local government elections in 1976.Having gained control of the Council on the 6th May 1976, the Conservativescould claim to have obtained a mandate not to implement them in the sameway as a party which has won a general election can claim to have a mandateto carry out the proposals in its manifesto.

Shortly before polling day, the 6th May, and presumably because thequestion was a live issue, the Tameside Teachers Consultative Committeewhich consisted of representatives of the National Union of Teachers, theNational Association of Head Teachers, the National Association of School-masters, the Union of Women Teachers and the " Joint Four ", which Iunderstand is the name given to four small unions or associations consistingmainly of grammar school teachers, published the following statement: -

" It (the Committee) wishes it to be clearly known that in its wholly" professional opinion, one which is devoid of any political bias, it" considers the process of Secondary Re-organisation too far advanced" for any postponement or modification of the present plans."

In a letter dated the 4th June 1976 to the Department, this Committeestated that immediately after this anouncement the "Joint Four" had" declared its intention of supporting whatever new proposals might be made" as, indeed, did individual members within the other Associations ".

Five days after polling day, on the llth May a member of the Departmentwrote to the Tameside Council saying that he was directed by the Secretaryof State to ask whether it was the intention of the Council to implement theapproved proposals by the 1st September 1976 and if not, to ask that

" full details of the arrangements made or proposed for the transfer of" pupils to county secondary schools next September be forwarded . . ." as a matter of urgency."

On the 12th May solicitors acting for the National Association of HeadTeachers and the Tameside Head Teachers Association wrote to the Councilreferring to a resolution passed by those bodies in which it had been said thatif their members were instructed to implement selection procedures, theywould invoke " Collective Disputes Procedures " of which it was said that oneof the cardinal features was that no action should be taken to implement de-cisions relating to the dispute until those procedures had been fully imple-mented.

On the 19th May the National Association of Head Teachers, the NationalAssociation of Schoolmasters, the Union of Women Teachers and theNational Union of Teachers (hereinafter referred to as the Unions) declaredthe dispute to be official.

On the 26th May Mr. Jenkins of the Department wrote to the Councilsaying:—

" The Secretary of State is aware that since he approved the proposals" in November a great deal of educational and administrative planning" has taken place with the intention of putting them into effect in" September 1976. Children have been allocated to schools, considerable" progress has been made in staffing arrangements including, in many" cases, the offer and acceptance of contracts and teachers have been" planning curricula and courses for the new comprehensive schools." Some building work has also been put in hand.

" The Secretary of State is extremely concerned that the sudden" cessation of this planned and orderly development and the continuing" absence of any precise alternative plans is causing such uncertainty that" the education service as a whole, and the educational provision for the" age group about to transfer to secondary schools in particular, are be-" ing put in jeopardy. He has asked me, therefore, to request that the" authority should provide him with a precise and detailed statement of" the plans which it hopes to put into effect in September. This statement" should reach him not later than Friday 4 June.

" I am to add that if in the Secretary of State's judgment the authority's" revised proposals would involve unwarrantable disruption, he would" have to consider whether he should use his powers under Section 68 of" the Education Act 1944 to direct the authority to implement the original" proposals."

By letter dated the 4th June the Unions informed Mr. Jenkins of their atti-tude and commented on the Council's new proposals which had been com-municated to them. In the course of that letter it was said: —

" The cornerstone of our dispute would still be that, in the time avail-" able it is impossible to do justice to even a straightforward process of" assessment let alone one as complicated as this. Headteachers in par-" ticular would feel the burden of responsibility intolerable in what is" now such an emotive issue."

On the 7th June the Council wrote telling Mr. Jenkins what they proposed.They first drew attention to a number of matters which they felt had notreceived the consideration they deserved. They can be summarised asfollows: —

There was no question of a comprehensive re-organisation havingtaken place and being reversed. It had not yet taken place.

Even if the approved proposals met the wishes of the parents and theneeds of the children, the schools were not yet ready for their proposed roles,building works had not been completed and in most cases not even begunand thus " implementation in September 1976 would have caused greatdisruption to the childrens' education."

The planning that had gone on had been totally inadequate in thetime available and had the marks of being a rushed job for politicalreasons.

While they regretted the precipitate action of their predecessors inattempting to appoint teachers and make contracts with them before theschools were ready, they would honour the obligations entered into.

The approved proposals were not popular with the people of Tame-side and not considered to be in the best interests of the children. " We" must go back to the drawing board and try again with a more considered," well thought out scheme. At all costs the disruption in children's educa-" tion which would have been caused by the implementation of the present" proposals must be avoided in any future plan ".

Insufficient attention had been paid to the plight of the 16-year-olds.They would have been turned out of the 6th forms of three grammarschools and have been forced to move to one of the two non-selective 6thform colleges with dislocation of their work and have to work " in the far" less academic atmosphere of an open-entry 6th form college ".

The Council then said that their present plans might be described as being" the maintenance of the status quo with the least disturbance and disruption" of the children's education pending any longer term, well thought out pro-" posals."

In addition to the proposals to which I have already referred, theyproposed that 16-year-olds from both the five grammar schools and all othersecondary schools who applied and were accepted for " A " level coursesmight pursue them within the sixth forms of the five grammar schools and atthe Tameside College of Technology and they anticipated that whereverpossible pupils would wish to stay at their own school where it had a sixthform, but final choice would depend on the particular course chosen. Theyalso proposed that there should be a review of the first year entries andthat there would be a very flexible transfer system at the end of the firstyear (or earlier if required in certain circumstances) to assist pupils, followingconsultation and agreement with the parents and teachers concerned, totransfer to other schools within Tameside where the child's ability andaptitude during the course of the year has shown that the child would behappier and better suited to a school or course elsewhere. They did nothowever anticipate that widespread transfers would be necessary orrequested.

On the 9th June there was a meeting at the House of Commons betweenthe Secretary of State and his officials and Mr. Grantham, the Leader ofthe Council and Mr. Thorpe, the Chairman of the Education Committee ofthe Council. In affidavits Mr. Grantham and Mr. Thorpe said that at themeeting the Secretary of State appeared already to have made up his mind.Mr. Jenkins in an affidavit sworn on the 2nd July denied this and said thatat the meeting the Tameside representatives were

" apparently unable to offer any satisfactory detailed explanation of" how they proposed to assess, in a sound way from the educational" point of view and in the very limited time then remaining to them," the large number of children whose parents had by then requested" reallocation for the school term beginning in September 1976".

The large number was 783 applications by parents of 11-year-olds for the240 grammar school places in response to letters sent out to 3,200 parents.There were also 190 applications by 5th form pupils in secondary modernschools for grammar school places. Of these 178 had been provided by the30th June and Mr. Thorpe was confident that the remaining 12 applica-tions could be granted.

On the llth June Mr. Jenkins by letter conveyed to the Council theSecretary of State's decision to direct them to implement the proposals hehad approved. He said, repeating what had been said in the letter of the26th May, that since the proposals were approved on the llth November1975

" extensive preparations have been made to put the proposals into effect." Much progress has been made in the staffing of the proposed compre-" hensive schools ; teachers have been planning courses for them ; build-" ing work directly related to changes in the character of some schools" has been put in hand ; and over 3,000 children due to transfer from" primary schools this year have been allocated to secondary schools

......”.

The only interference with this allocation that the Council proposed wasthe filling of 240 grammar school places.

In the penultimate paragraph of the letter, Mr. Jenkins stated the reasonsfor the Secretary of State's decision. That paragraph began with thesentence

" The Secretary of State has given the most careful consideration to" the representations made to him."

There was no other reference to the matters mentioned at the beginningof the Council's letter of the 7th June to which reference has been made. TheCouncil were given no indication of the result of the most careful considera-tion of those matters.

The paragraph went on to say that the Secretary of State was satisfiedthat the Authority were proposing to act unreasonably with respect to theirstatutory powers and duties

" regarding the provision of secondary education for their area and in" particular . . . regarding the admission of pupils to secondary schools... at the beginning of the coining school year i.e. 1 September 1976."

This echoed what had been said in the letter of the 26th May though thenthe Secretary of Stale did not know as he did by the llth June, that theonly change the Council proposed to make in the allocations already madewas the selection of 240 11-year-old children for grammar school places.

The paragraph went on to say that a change of plan at that time of yearmust in his opinion give rise to very considerable difficulties, and that theAuthority's revised proposals

" confront the parents of children due to transfer in September with" the dilemma of either adhering to secondary school allocations for their" children which they may no longer regard as appropriate, or else" submitting to an improvised selection procedure . . . carried out in" circumstances and under a time table which raise substantial doubts" about its educational validity."

This is an interesting and curious paragraph. Giving parents the choiceof either adhering to the allocation already made or of applying for admis-sion to a grammar school is called confronting them with a dilemma.Implementation of the approved proposals in full meant that they would haveno such choice—and a choice which the result of the election might indicatea large number of parents wished to have.

It was not said that in the time available a selection of 11-year-olds tofill the 240 places could not be made, only that the selection procedure wouldbe of doubtful educational validity. It may strike some as curious that the

Secretary of State should be so concerned about the validity of the selectionprocedure adopted to fill 240 places when under the proposals he hadapproved there was to be no selection procedure at all.

The paragraph then went on to say that

" an abnormally high proportion of pupils might need to be re-allocated" to different secondary schools during, or at the end of, the educational" year beginning in September 1976 ".

No reasons were given for this opinion nor was it explained why thismight result from the filling of 240 grammar school places when the otherallocations of 11-year-olds was not affected.

Reference was then made to practical difficulties in relation to the appoint-ments of staff already made, and the construction of buildings for the newComprehensive schools.

In their letter of the 7th June the Council did not refer to the attitude ofthe Unions and no direct reference was made to that in the letters of the6th and 26th May and the llth June written by the Department though inargument in this House it was contended on behalf of the Secretary of Statethat the reference to the circumstances in which the selection was to bemade was a veiled reference to the attitude of the Unions. What is clearbeyond doubt is that the Secretary of State did not in the letter of the llthJune base his decision to give directions on the ground that the policy of non-co-operation by the Unions means that selection of the 240 could not beachieved. Indeed it was only in his second affidavit sworn on the 2nd Julyin reply to one sworn by Mr. Thorpe in which he referred to the Unions,that Mr. Jenkins mentioned them, exhibiting the letter of the 4th June whichthey had sent to the Department and saying that a formal dispute had beendeclared. He did not then assert that the Unions' attitude meant thatselection could not be made.

As the Council were not prepared to comply with the directions the Secre-tary of State applied for an order of mandamus. The Divisional Court (LordWidgery C.J., Cusack and May JJ.) granted his application giving judgmenton the 12th July.

Lord Widgery C.J. did not base his conclusion on anything other than theallocation of the 240 grammar school places. The Council's proposals withregard to the two grammar schools which were not to be converted intoSixth form colleges, were, he thought,

" of the utmost importance because they really seem to me to be the" core of the case against the local authority."

After referring to the contention that the Council had not put forwardany proper plan for the selection of pupils for these places, Lord Widgerysaid:

" To make matters worse—indeed really to clinch matters on this" point—there is a difference of opinion of a substantial character" between the new Tameside authority and the official organisation of" the teachers, and amongst the other results from that unhappy situation" is the fact that the teachers are not prepared to help in devising" some kind of selective entry test to take the place of the 11-plus" examination which never materialised and the provision of which, in" the view of anyone who accept that the entry should be selective, is" absolutely essential."

He said that his opinion had wavered from time to time but that his was" simply a conclusion that when the Secretary of State says there was" no time to get this " (the selection) " done by September, I think he" is right on that one point."

Cusack J. agreed entirely with Lord Widgery and May J. was of theopinion that shortness of time for the selection coupled with the lack ofco-operation from some of the teachers entitled the Secretary of State todecide as he did. He went on to say

" had the local authority had the co-operation of the teachers concerned," it would I think have been difficult for the Secretary of State to have" contended that there was then any relevant material before him upon" which he could have reached the necessary conclusion under section 68" of the 1944 Act."

So the Divisional Court's decision was based solely on the Unions' non-co-operation making it not possible to select 240 pupils for the grammarschool places by the 1st September—and that was not stated in the letterof the 11th June to be a reason for the Secretary of State's decision.

Before the hearing in the Court of Appeal further affidavits were filed.In his second affidavit Mr. Thorpe said that when the Unions made it clearthat they were not prepared to co-operate, the Council decided to appoint apanel of experienced teachers to carry out a selection procedure which hesaid was well known, based on head teachers' assessments, pupils' reportsa>nd records. By the end of May 20 senior grammar school teachers andone primary school teacher had said that they were willing to help in thisprocess and 20 teachers were appointed to a selection panel. Mr. Beardwho had served on the selection panel for Lancashire Division 24 since theearly 1960s described this selection procedure in detail and said that it hadbeen followed in that Division since that time. In his opinion a fair, feasibleand practical selection might be made by a panel of 20 teachers of childrento fill the 240 places in one week. Mr. Potts, who had many years' experienceof selection procedures, said that in the London Borough of Barnet 8 panelsof 3 heads would complete the selection of 850 pupils from approximately3,000 in 10 working days. He entirely agreed with Mr. Beard and so didMr. Gilyatt. They all disagreed with Mr. Milroy who had been ChiefEducation Officer of Gloucester whose view that such a selection procedurecould only operate in term time and would take 12 weeks to operate andthat even if the teachers had been prepared to co-operate, there would havebeen insufficient time before the 1st September to complete any properselection and allocation process.

This selection procedure, Mr. Thorpe said, had been that of which theyhad told the Secretary of State at their meeting on the 9th June. It isinconceivable that, operated as it had been for many years in different partsof the country, it was unknown to the Department.

It may be that views as to the efficacy of this procedure differ and that itis thought by some to be of doubtful " educational validity " but can it besaid that the Council before the llth June, for that is the vital date, wereacting in a way no reasonable council would, in deciding to operate this longestablished procedure? Were it not for the attitude of the Unions, I do notthink that that possibly could be said.

So the question to be determined comes down to this: —Should the Councilhave abandoned the policy for which they had a mandate within just over amonth from the election because of the Unions' attitude? Were they, theelected body responsible for the education in their area, acting in a way noreasonable council would in not submitting before the llth June to thepressure applied to them? In the course of his excellent argument for theSecretary of State Mr. Bingham conceded that there would have been timeto carry out proper tests if the teachers had been prepared to co-operate butit was his contention that before the llth June the Council knew or oughtto have known that on account of the Unions' attitude the procedure theyproposed would not work.

I see no grounds for saying that by the llth June the Council knew orought to have know that the selection procedures they proposed would notwork. They may have thought it possible that they could persuade theUnions to change their attitude and as not beyond the bounds of possibilitythat sufficient responsible teachers, recognising that the children might other-wise suffer, might co-operate. The Unions admitted that some of theirmembers did not agree with their policy. Once the Secretary of State had

given his directions, there was no possibility of the Unions reviewing theirpolicy but we have to consider the position not after those directions weregiven but before.

Further in the letter of the llth June it was not said that the selectioncould not be made, only that it was of doubtful " educational validity ". Ifthe Department was not then prepared to say that it would not work, whatwarrant was there for condemning the Council as acting unreasonably in notrecognising that it would not work and for seeking to carry out their policy?

In my opinion there is no ground for holding that because of the difficultiesin selecting pupils to fill 240 grammar school places, the Council had actedor were proposing to act prior to the llth June in a way no reasonablecouncil would in deciding not to implement the approved proposals and tomaintain the status quo for the time being.

I am inclined to think that too much importance has been attached to thisquestion of selection and insufficient to the disturbance and dislocation thatwould be caused by implementing the approved proposals by the 1stSeptember.

The major difference between those proposals and the Council's was thatthe two grammar schools would not be converted into sixth form colleges.The availability of the 240 places was a consequence of that.

One of the matters to which the Council drew attention in their letter ofthe 7th June was the plight of the 16-year-olds who would, they said, havebeen turned out of the sixth forms of three grammar schools and have hadto move to these colleges. Miss Mullenger, a school mistress for 20 yearsdeposed—and her affidavit sworn on the 30th June was supported by manyother teachers—that at one of the colleges only the footings for the necessaryextension had been put in hand and at the other the necessary extensionsand alterations had been delayed. She said it was within her knowledge

" that if the approved proposals take effect in September, pupils attending" the two sixth form colleges would only receive education on a" ' part-time' basis, that is to say that they would be able to attend" at the school premises only when they had lessons. For private study," there would be no room to work in classrooms and they would have" to work at home or in public libraries or wherever they could find" room to do so."

Miss Gabbat, a teacher at the Ashton Grammar School which was to beconverted into a sixth form college, in her affidavit sworn on the 20th Julysaid that the foundations of the extension proposed there had been laid butthat the building could not be completed by September 1976. The originallibrary had been demolished and many of the books would have to bestored in cardboard boxes. Adequate library facilities would not be availableuntil the gymnasium had been converted into a library and work on that hadnot been started.

In the light of this evidence there were valid grounds for the Councilthinking that implementation of the approved proposals by the 1st Septemberwould cause grave disruption of the childrens' education and they wereentitled not unreasonably to conclude that as the sixth form colleges wouldnot be ready for use by the 1st September, they should seek to maintain thestatus quo for the time being.

In all the circumstances it does not appear to me that on the llth Junethere were any valid grounds for concluding that the Council were actingor were proposing to act in a way no reasonable council would. Like LordDenning M.R. I do not find any evidence on which, applying the right test,the Secretary of State could properly have decided that the Council proposedto act unreasonably. Either in deciding that he was entitled to give direc-tions, he applied the wrong test—and the letter of the 11th June and thosethat preceded it show no indication that he applied the right one and thelanguage of that of the 11th is consistent with the application of the wrong

one—or if he applied the right test, he must have misdirected himself andthere is no indication that he attached any weight to the sixth form collegesnot being ready for use as such by the I st September.

In my opinion the Court of Appeal came to the right conclusion and forthe reasons I have stated this appeal should be dismissed.

Lord Diplock

MY LORDS,

The principal Act of Parliament which confers upon the Secretary ofState and the Tameside Council respectively the cognate powers which eachwas claiming to exercise in the period between the local government electionson May 6th and the direction given by the Secretary of State on June llth,1976, is the Education Act, 1944. It had been promoted by a coalitiongovernment in which all political parties were then represented and at a timewhen, as I recollect, the social purpose which the system of public educationwas designed to serve was not, as it has since become, a matter of acutepolitical controversy upon party lines. The minor amendments that havebeen made since 1944 do not affect the scheme of the Act.

The responsibility for carrying out the national policy for education isdistributed by the Act between the Minister ot Education (now the Secretaryof State) and local education authorities, " acting in partnership " as theLord Chief Justice aptly puts it, and also governors and managers of theindividual schools, with whose function this appeal is not concerned. Tothese three kinds of public authority concerned with education I would add,and not as junior partners only, the parents of children of school age uponwhom by S. 36 is placed the primary duly of causing their children to receiveefficient full-time education suitable to their ages, abilities and aptitudes.Parental wishes as to the school to be attended by the child (see S. 37) andwhat he is to be taught there, are to prevail so far as is compatible with theprovision of efficient instruction and training and the avoidance of unreason-able public expenditure (see S. 76).

Under the Act the actual provision of public education services in eachlocal government area is exclusively the function of the local educationauthority, i.e. the county or borough council representative of and electedby the inhabitants of the area served by the schools to be provided by theauthority. The functions of the Secretary of State, apart from contributingto the cost of the provision of educational services (see S. 100), are super-visory only. The execution by the local authorities of the national policyfor education is described in S. 1 as being under his control and direction ;but the extent to which the Secretary of Stale is empowered to fetter a localauthority's choice as to the method of implementing the national policywhich it considers to be best suited to its own area is limited by the provi-sions of the Act. The only question for your Lordships in the instant appealis whether in giving his direction of June llth, 1976, the Secretary of Statetrespassed beyond the statutory limits to his powers.

The Act does not leave the national policy for education to be determinedfrom time to time by successive Secretaries of State. The Act itself sayswhat the policy is. In S. 1 its purpose is described as being for " providing" a varied and comprehensive educational service in every area ". In thiscontext " comprehensive " bears its dictionary meaning and not the narrowerconnotation it has since acquired in the controversy between the rivaleducational and social merits of secondary schools to which entry is byselection according to ability and those to which it is not. What is to beprovided by way of secondary education in accordance with the nationalpolicy is expanded in S.8. The number, character and equipment of thesecondary schools provided by a local authority in its area must be such as" to afford for all pupils opportunities for education offering such variety of

" instruction and training as may be desirable in view of their different ages," abilities, and aptitudes . . . including practical instruction and training" appropriate to their respective needs ".

I pause here to draw attention to the underlying assumptions, as disclosedby the Act read as a whole, and in particular by Ss. 1, 7, 8 and 36; (a) thatthe contribution to be made by education towards " the spiritual moral," mental and physical development of the community " (see S. 7) is bydeveloping the particular abilities and aptitudes of the individual pupil; (b)that individual pupils differ from one another in ability and aptitude; and(c) that these differences will call for different methods of teaching for pupilsof differing ability or aptitude if the statutory policy for education is to becarried out.

The Act leaves to local education authorities a broad discretion to choosewhat in their judgment are the means best suited to their areas for providingthe variety of instruction called for by those provisions which I havementioned. It is not necessary to discuss here what were the respectiveresponsibilities of the Minister and local education authorities in the formula-tion of the original development plans for primary and secondary educationin each area under Section 11 of the Act. In Tameside, as elsewhere, thiswas all in the distant past. It is now common ground that in the spring of1976, as a result of the approval by the Secretary of State of the proposalsof the Tameside Council when controlled by a Labour majority, there weretwo courses lawfully open to the newly-elected council. One was to carryout their predecessor's proposals for making entry to all the secondaryschools non-selective ; the other was to leave the character of all the secondaryschools in the area the same as in the previous year, i.e. with selective entryto the five grammar schools according to the pupil's aptitude for academiclearning and with non-selective entry to the remaining schools. As betweenthese two courses the right to choose was prima facie that of the Councilalone. The Secretary of State's power to over-rule their choice by givingthem a direction under Section 68 to act in some other way that he himselfpreferred and they did not, was exercisable only if he had satisfied himselfthat the Council were proposing to act " unreasonably ".

My Lords, in public law " unreasonable " as descriptive of the way inwhich a public authority has purported to exercise a discretion vested in itby statute has become a term of legal art. To fall within this expression itmust be conduct which no sensible authority acting with due appreciationof its responsibilities would have decided to adopt.

The very concept of administrative discretion involves a right to choosebetween more than one possible course of action upon which there is roomfor reasonable people to hold differing opinions as to which is to be preferred.It has from beginning to end of these proceedings been properly concededby counsel for the Secretary of State that his own strong preference andthat of the Government of which he is a member for non-selective entry toall secondary schools, is not of itself a ground upon which he could besatisfied that the Tameside Council would be acting unreasonably if theygave effect to their contrary preference for the retention of selective entryto the five grammar schools in their area. What he had to consider waswhether the way in which they proposed to give effect to that preferencewould, in the light of the circumstances as they existed on llth June 1976,involve such interference with the provision of efficient instruction and train-ing in secondary schools in their area that no sensible authority acting withdue appreciation of its responsibilities under the Act could have decidedto adopt the course which the Tameside Council were then proposing.

It was for the Secretary of State to decide that. It is not for any courtof law to substitute its own opinion for his, but it is for a court of lawto determine whether it has been established that in reaching his decisionunfavourable to the Council he had directed himself properly in law andhad in consequence taken into consideration the matters which upon the trueconstruction of the Act he ought to have considered and excluded fromhis consideration matters that were irrelevant to what he had to consider;

see Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation[1948] 1 KB 223 at p. 229 per Lord Greene M.R. Or, put more com-pendiously, the question for the Court is, did the Secretary of State askhimself the right question and take reasonable steps to acquaint himself withthe relevant information to enable him to answer it correctly?

There has never been the least suggestion in this case that the Secretaryof State acted otherwise than in good faith. So one can take the reasonscontained in his letter of llth June as indicating with candour those matterswhich had influenced his mind in reaching his conclusion that the Councilproposed to act unreasonably. The material parts of that letter have beencited and the events to which it relates have been analysed in so manyjudgments in the courts below and in the speeches in this House that itwould be tedious for me to repeat them here. The references in the letterto staffing arrangements, planning of curricula and courses, and buildingwork have not been relied upon in the proceedings for mandamus as capableof justifying the Secretary of State's decision. It seems likely that he hadbeen inadequately informed of the facts. What is left then are his criticismsof the way in which the Council proposed to allocate to grammar schoolsthe pupils who would be leaving the primary schools in July, 1976, at theend of the summer term. There were two aspects of this. First, there werepupils whose abilities and aptitudes suited them for a grammar schooleducation, but who had been allocated to schools which were now to remainsecondary modern schools. Secondly, there were pupils who had alreadybeen allocated to three of the five grammar schools, but whose abilitiesand aptitudes made them more suitable for the less academic training providedin secondary modern schools. This second category has not bulked largein the arguments before the courts below or in this House. The evidencediscloses that in any system involving selective entry at the age of 11 plus,some misfits manifest themselves as the educational year progresses and aretransferred to more suitable schools. The Council proposed that misfitsresulting from the non-selective allocation of unsuitable pupils to grammarschools should be dealt with in this, the usual way, though there would nodoubt be more of them than if the original allocation had been selective.

The argument has largely turned upon the Council's proposals for allocatingpupils to the 240 places which would be available for entry to the lowerforms at Ashton and Hyde Grammar Schools. What was proposed by theCouncil for these places was selection by combination of reports, recordsand interviews. Selection based on reports and records obtained from thepupil's primary schools, together with the use of one of several alternativeaids for evaluating possible differences in the standards of assessment adoptedin reports from different primary schools, is a well-tried system of selectionwhich had been in use in areas as far apart as Lancashire and Barnet andhad been adopted in Tameside itself as the selection process in the precedingyear. A proposal to adopt it for the school year starting in September, 1976,in circumstances in which it could be carried out effectively could not be" unreasonable " in the sense required by S. 13.

It has not been seriously contended before your Lordships that the timeavailable between llth June and 1st September, when the new term atsecondary schools began, was insufficient to enable this method to be carriedout effectively, if reasonable co-operation were obtainable from head teachersat the primary schools. However, three of the teachers' trade unions, includingthose to which the majority of head teachers of primary schools belonged,had threatened to with-hold the co-operation of their members. So thequestion that the Secretary of State had to ask himself was; in faceof the trade unions' threat that their members would refuse to co-operate wasthe Council on llth June acting unreasonably in not having abandoned bythat date all plans for reintroducing selective entry to grammar schools intheir area.

The letter of 11th June contains no indication that the Secretary of Statedirected his mind to this question, let alone that he realised that it layat the heart of what he had to decide. In the passage dealing with selection,on which my noble and learned Friend, Lord Wilberforce, has already

commented, the Secretary of State, despite the weight which the Act itselfrequires him to attach to parental choice, refers to the opportunity to beafforded to parents of having some choice in the kind of secondary schooltheir children were to attend as confronting the parents with a dilemma.

The only passage capable of referring, even eliptically, to the unions' threatis the reference to the selection procedure being " carried out in circum-" stances and under a time-table which raised substantial doubts about its" educational validity ".

A relevant question to which the Secretary of State should have directedhis mind was the extent to which head teachers would be likely to persist in apolicy of non-co-operation if he himself was known to have declined to stopthe Council from proceeding with their plan. There is no suggestion in theletter, nor in either of the affidavits sworn on his behalf by Mr. Jenkinsthat the Secretary of State ever directed his mind to this particular questionor formed any view about it. Indeed, it is not until the second affidavitthat it is disclosed that the teachers' trade unions had been writing directlyto the Department on the matter at all. It is not for a court of law tospeculate as to how the Secretary of State would have answered that questionhad he directed his mind to it, though like others of your Lordships andmembers of the Court of Appeal, I find it difficult to believe that responsiblehead teachers, regardful of the interests of their pupils, would have persistedin a refusal to do their best to make the selection procedure work fairly andeffectively if the Secretary of State had made it clear to them by his decisionthat he was not prepared himself to interfere with the Council's proceedingwith its plans. Assuming, however, that he had formed the view thatco-operation by head teachers was likely to be only partial so that theselection process would be liable to greater possibility of error than where fullco-operation could be obtained, the Secretary of State would have to considerwhether the existence of such a degree of imperfection in the selection systemas he thought would be involved was so great as to make it unreasonableconduct for the Council to attempt to fulfil the mandate which they hadso recently received from the electors. Again, there is no indication that theSecretary of State weighed these two considerations against one another.

Like all your Lordships, I would dismiss this appeal, although I prefer toput it on the ground that, in my view, the respondents have succeeded inestablishing in these proceedings that the Secretary of State did not direct hismind to the right question ; and so, since his good faith is not in question, hecannot have directed himself properly in law.

Lord Salmon

MY LORDS,

In 1975 Tameside had five grammar schools, sixteen secondary modernschools, one completed comprehensive school and two others in the course ofconstruction. In March 1975 the local education authority, the MetropolitanBorough Council of Tameside (then under the control of the Labour Party),put forward proposals to the Secretary of State for Education under section 13of the Education Act 1944 for introducing an entirely comprehensive systemof education and abolishing all the grammar schools on 1st September 1976.The Secretary of State approved these proposals on the llth November 1975.This approval imposed no obligation on the Authority to implement theproposals. They were free to change their mind without obtaining the Secre-tary of State's permission. It was however unlikely that they would havedone so but for the result of the election held on 5th May 1976 when thecontrol of the local authority passed from the Labour Party to the Con-servative Party. One of the chief issues before the electorate of Tamesidehad been whether or not their grammar schools should be abolished. It isperhaps unfortunate that such an important educational question had becomea party political issue, about which feelings ran high and a great deal of heathad been engendered. Broadly, the Labour Party is for abolishing grammar

schools and the Conservative Party for preserving them. There are many im-pressive reasons which can be advanced by each side in favour of its ownpoint of view. Certainly it is completely outside the province of the courts orthis House in its judicial capacity to express any opinion upon the rights andwrongs of this dispute: Moreover, it has nothing whatever to do with the de-termination of this appeal.

The Conservative Party having won the election in Tameside on the 6thMay, the Authority rightly considered that they had a mandate from theelectors to preserve the Tameside grammar schools. The question as towhether or not the grammar schools were to be preserved had been one of thechief issues in the election. The Secretary of State not unnaturally foresawthat the local authority was likely to carry out their mandate and decide notto implement the proposals approved by him in the previous November. Onthe llth May 1976 (five days after the result of the election was announced)he caused a letter to be written to the authority asking that " full details of the" arrangements made or proposed for the transfer of pupils to the county" secondary schools next September be forwarded to the Department [of Edu-" cation] as a matter of urgency."

On the 26th May 1976 the Secretary of State caused another letter to bewritten to the Authority expressing his extreme concern that the proposalswhich he had approved were not being carried out and requesting the Au-thority to provide him with a " precise and detailed statement of the plans" which [the Authority] hopes to put into effect in September ". The letterends with a warning or threat that if the Authority's plans would, in the Sec-retary of State's view, involve " unwarrantable disruption ", the Secretary ofState would have to consider whether he should use his powers under section68 of the Education Act 1944 to direct the authority to implement the originalproposals.

In the meantime some of the Trade Unions concerned had advised theirmembers (comprising most of the teachers and staff in the Primary and Secon-dary Schools) not to co-operate with the Authority in putting into effect anyplans inconsistent with the 1975 proposals. If, as seems to me not improb-able, the teachers were apprised of the contents of the letter of the 26th Mayto which I have referred, this certainly would not have discouraged them fromcomplying with the advice which they had received from the Trade Unions.It must have appeared likely to them that when the Secretary of State cameto make his decision, he would decide (as he in fact did) to give the Authoritydirections to implement the original proposals and that any time or effortwhich, in the meantime, might have been spent on furthering the Authority'splans would have been wasted.

On the 7th June 1976 the Authority wrote what I regard as a most cour-teous, sensible, full, fair and well reasoned reply to the letter of 26th Mayin which they explained with precision their plans for the future. This is animportant letter and I am afraid that I must quote from it at some length:-". . .

" In detail these immediate plans are as follows: —

" 1. Continuation of the five grammar schools in Tameside as 11-18 academic high schools.

" 2. Continuation and completion of the three comprehensive" schools as already agreed and for which money has already been" spent. We believe that these purpose-built comprehensive schools" form a valuable nucleus of any future scheme.

" 3. Continuation of the remaining 11-16 secondary schools

" 4. All allocations to schools for 11 year olds made by our pre-" decessors immediately before the local elections to be honoured" and maintained subject to the continued agreement and acceptance" by the parents concerned.

" 5. Ashton and Hyde grammar schools now to be open for an" 11 year old entry. Since no 11 year old allocations to these two

" schools had been made by our predecessors, this creates approxi-" mately 240 selective school places in addition to those already" allocated.

" 6. All parents of 11 year olds transferring to secondary schools" have been invited to reapply for reallocation if they are dissatis-" fied with their present allocation. If they are satisfied, then of" course they need not apply and no reallocation will be made.

" 7. If the number of applicants to the grammar schools exceeds" the number of places available, as is likely, then those pupils most" suitable and most likely to benefit from that type of education will" be selected by a combination of reports, records and interviews." There will be no formal eleven-plus examination.

" 8. Those not applying for grammar school places, or those un-" successful in obtaining a grammar school place, will still be offered" a reallocation to one of the other secondary schools in Tameside" if the parent requests and provided the places are available. It is" not intended to follow any neighbourhood zoning.

" 9. 16 year olds from both the five grammar schools, and all" other secondary schools, who apply, and are accepted for, A level" courses may pursue these within the 6th forms of the five grammar" schools, or at Tameside College of Technology.

" It is anticipated that wherever possible pupils will wish to stay" at their own school where it has a 6th form, but final choice will" of course depend upon the particular courses chosen.

" 10. A review of the first year entries will be made and there will" be a very flexible transfer system at the end of the first year (or" earlier if required in certain circumstances) to assist pupils, fol-" lowing consultation and agreement with the parents and teachers" concerned, to transfer to other schools within Tameside where the" child's ability and aptitude during the course of the year has shown" that the child would be happier and better suited to a school or a" course elsewhere.

" It is not anticipated that widespread transfers will be necessary" or requested, but the facility to do so will be there.

" I apologise for the length of this letter but I think it important that" the Secretary of State should be fully informed of the present position" and of our concern for the welfare of Tameside children. For his" information I also enclose a copy of a letter which has been sent to" all parents in Tameside setting out the position and inviting those who" wish to, to reapply for secondary school allocation.

" Whilst we have been advised that we might take action over the" unreasonable behaviour of our predecessors in their precipitous action" taken only days before the elections, we do not propose to pursue" such a course. We believe that it would be in the best interests of" Tameside, and of the children, to concentrate on matters of education" and to work for the continuing, gentle, considered evolution of our" schools to meet parental demands and pupils needs."

On the 11 June 1976 the Secretary of State made his decision and com-municated it to the Authority by letter of that date. The letter stated thatthe Secretary of State

" is satisfied that the Authority are proposing to act unreasonably with" respect to the exercise of the powers conferred, and the performance" of the duties imposed, by ... the Education Acts 1944 to 1976 . . ." with respect to their . . . duties . . . under Sections 8 and 17 of the" Education Act 1944 regarding the admission of pupils to secondary" schools on transfer from primary schools at the beginning of the coming" school year i.e. on 1 September 1976."

It then sets out the grounds on which the Secretary of State is so satisfied(to which I shall refer later) and concludes:

" In the exercise of the powers conferred by Section 68 of the" Education Act 1944 and vested in him ... the Secretary of State" hereby directs the Authority to give effect to the proposals which" he approved on 11 November 1975 and accordingly to implement the" arrangements previously made for the allocation of pupils to secondary" schools for the coming school year on a non selective basis and to" make such other provision relating to the staffing of schools, altera-" tions to school premises and other matters as is required to give effect" to the proposals."

The question that arises in this appeal is one of considerable constitutionalimportance—was the Secretary of State acting lawfully or unlawfully whenon the 11 June 1976 he gave the Authority the directions which I haverecited? Under the Education Act 1944 the local education authoritieshave the duty imposed on them of securing the provision of primary andsecondary schools in their respective areas, and they are invested with thepowers necessary to carry out these duties—see sections 8 and 9. Theycannot however establish a new county school or close an established onewithout putting their proposals for doing so before the Secretary of Stateand obtaining his consent—see section 13. Hence the reason for the Tame-side Authority in 1975 putting the proposals for closing their grammarschools before the Secretary of State. His acceptance of these proposalsas I have already observed did not however of itself cast any obligationon the Authority to carry them out.

As the law stands at present, neither the Secretary of State nor any othermember of the Executive has any power, in ordinary circumstances, to orderlocal authorities to close down their grammar schools or convert them intocomprehensive schools. Accordingly the Secretary of State's directions givenon the 11 June are unlawful unless they can be brought within the powersconferred upon the Secretary of State by section 68 of the Act of 1944which reads as follows:

" If the Secretary of State is satisfied . . . that any local education" authority . . . have acted or are proposing to act unreasonably with" respect to the exercise of any power or the performance of any duty" imposed by ... this Act, he may, notwithstanding any enactment" rendering the exercise of the power or the performance of the duty" contingent upon the opinion of the authority . . . give such directions" as to the exercise of the power or the performance of the duty as" appear to him to be expedient."

In my opinion, section 68, on its true construction, means that before theSecretary of State could lawfully issue directions under it, he must satisfyhimself not only that he does not agree with the way in which the authorityhave acted or are proposing to act nor even that the authority is mistakenor wrong. The question he must ask himself is—Could any reasonablelocal authority act in the way in which this authority has acted or is pro-posing to act? If, but only if, he is satisfied on any material capable ofsatisfying a reasonable man that the answer to the crucial question isNo, he may lawfully issue directions under section 68 (ibid.). I would adoptwhat Lord Hailsham, L.C., said at p. 700 in In re W. (An Infant) [1971]A.C., p. 682: —

' Two reasonable [persons] can perfectly reasonably come to opposite" conclusions on the same set of facts without forfeiting their title to" be regarded as reasonable. . . . Not every reasonable exercise" of judgment is right, and not every mistaken exercise of judgment is" unreasonable."

There is certainly no evidence as to how the Minister construed section 68(ibid.) nor as to the questions he asked himself before deciding to issue hisdirections set out in the letter of 11 June. Neither of the affidavits swornby Mr. Jenkins, an Assistant Secretary in the Schools' Branch of the Depart-ment of Education and Science, throw any light upon this matter. It maybe that the Secretary of State misconstrued section 68, asked himself thewrong question (e.g. do I agree with the action proposed by the Authority?)

and therefore misdirected himself in law. On that assumption, the Secretaryof State's directions to the authority on the 11 June 1976 would have tobe overruled on the grounds of their illegality. Assuming however that heasked himself the right questions and decided that no reasonable authoritywould act as this authority now proposed to act, I cannot discern any validground upon which such a decision could be justified. The grounds uponwhich the Secretary of State purported to act under section 68 are set outin the letter of the 11 June; there were five of them. Four of these, whichI need not itemise, appeared to the Divisional Court and to the Court ofAppeal to have no substance in them. They were not pressed in this Houseand I do not consider that they lend any support to the Minister's case.Nor am I any more impressed by the fifth ground upon which the Secretaryof State succeeded in the Divisional Court and upon which he chiefly reliedthereafter. It was only hinted at in the letter of the 11 June. This wasthat no reasonable authority in the position of the Tameside Authoritycould have concluded that it had time between 11 June and 1 September1976 to make a fair and efficient selection on merit of 240 pupils out of the783 applicants for the 240 places which would be available in the grammarschools on the 1 September 1976. The Divisional Court with considerablehesitation decided this question in favour of the Secretary of State only, Ithink, because of an uncontradicted affidavit by a former Chief EducationOfficer of Gloucestershire filed at a late stage on the 2 July stating thatthe whole process of selection normally takes a full term of 12 weeks tocomplete and therefore there was no chance of the test being completedbefore 1 September.

The Authority's letter of the 7th June had pointed out (paragraph num-bered 7) that pupils most suitable and likely to benefit from the type ofeducation would be selected by a combination of reports, records and inter-views instead of by an 11+ examination. The evidence of a number ofdistinguished educationalists, produced without objection before the Court ofAppeal, showed that this alternative method of selection has been widelyused since the 1960s in areas as far separated as Lancashire Division 24close to Tameside and the London Borough of Barnet and that it had provedentirely satisfactory. With a selection panel of 20 teachers (10 couples) thewhole operation of making a fair and accurate selection of 240 from 783applications could have been comfortably carried out in Tameside withinone week. In the London Borough of Barnet for the period 1965-1970eight panels—each consisting of three teachers—yearly completed a fairselection of 850 pupils from about 3,000 in 10 working days.

It seems incredible to me that these facts were unknown to the Departmentof Education and not available to the Secretary of State on llth June 1976.It follows that if the Secretary of State before making his decision had askedhimself the right question—Could any reasonable authority in the position ofTameside have reasonably come to the conclusion that a fair selection couldhave been made to fill the 240 vacancies before the 1st September 1976?—the answer could only have been " yes ". It may be that some authoritiesmight have preferred the views of the expert witness upon whose evidencethe Secretary of State relied in the Divisional Court to the views of thewitnesses upon whose evidence the Tameside Authority relied in the Courtof Appeal. I find it impossible however to accept that any reasonable mancould be satisfied that no reasonable authority on the evidence could takethe view that a satisfactory selection of candidates for the 240 places in thegrammar schools could have been made between 11th June and 1st September1976. Therefore either the Secretary of State must have erred in law bymisconstruing section 68 and failing to ask himself the right question or heasked himself that question and answered it " no " without any valid groundfor doing so.

It has been argued that before llth June 1976 the majority of the teachershad refused to co-operate with the authority and that without their co-opera-tion no selection would have been possible. No doubt they were hoping andexpecting that the Secretary of State would give directions to the authorityto carry out the 1975 proposals—a hope and expectation which must have

been fortified by the warning or threat at the end of the letter of 26th Maywhich the Secretary of State caused to be sent to the Authority. Even so,20 of them were prepared to form a panel to carry out the selection underthe chairmanship of Mr. Beard, the very experienced formed headmaster ofa junior county school who had served on the Selection Panel for LancashireDivision 24 since this type of selection began in the early 1960's.

The facts deposed to in the affidavits of Mr. Beard and Mr. Potts, also amost experienced educationalist, make it plain that in their view the panelof 20 would have plenty of time even between 2nd August (the date whenyour Lordships' decision was announced) and the 1st September to make areasonably accurate selection from amongst the 783 applicants to fill the240 vacancies in the grammar schools for the beginning of next term. Onthe llth June they would have had ample time to make the most meticulousselection well before 1st September.

Towards the end of May 1976 the 49 head teachers of the primary schoolswere asked by the Authority to make their records, reports and writtenpersonal assessments of the 783 candidates for the 240 vacancies in thegrammar schools available to the selection panel appointed by the Authority.Only three agreed to do so. The remainder refused on the ground that theirtrade unions had advised them not to comply with the Authority's request.As I have already said, it is, in my view, a fair inference that the trade unionsand many of the teachers were hoping and expecting that the Secretary ofState would soon be giving the directions threatened in the letter of 26th Mayand which he in fact gave on the 11th June. On the other hand, any reason-able authority could reasonably expect, for the reasons stated in their letterof the 7th July that the Secretary of State would decide not to give thedirections which he did in fact give on the llth June or that, if he gavethem, they would be held by the courts to be unlawful either on the groundthat the Secretary of State in giving such directions had misdirected himselfin law or that there was no legal ground to support them.

If on the 11th June the Secretary of State had, as in my view he shouldhave done, decided, and announced his decision against giving any directionsunder section 68 and had allowed the Authority's plans for the grammarschools to go forward, I believe that the teachers would have changed theattitude which they had taken up when they were expecting a ministerialembargo. Like Geoffrey Lane L.J., I cannot believe that once they knewthat there was to be no ministerial embargo they would have continued tobe non-co-operative in an attempt to thwart the Authority in carrying outthe policy of preserving the grammar schools in Tameside in accordancewith the mandate which the Authority had been given by the inhabitants ofTameside in the recent democratically held election. I believe that the vastmajority of the teachers including all the head teachers in the primaryschools would have done their duty and loyally co-operated with theAuthority which employed them.

" The teachers no more than the Executive (as I am sure they both" recognised could lawfully impose a policy of abolishing Grammar" Schools, merely because they did not approve of the policy of preserving" them which the Authority had lawfully adopted."

I am convinced that there are no valid grounds for holding that theAuthority acted or were proposing to act unreasonably within the meaningof section 68. The directions given by the Secretary of State on llth June1976 were in my view unlawful. Accordingly, there is no necessity for meto express any opinion on the point taken by Mr. Anthony Lloyd undersection 99 of the Education Act 1944.

My Lords, I would dismiss the appeal.

25Lord Russell of Killowen

MY LORDS,

I would remark upon some matters introductory to consideration of thisappeal.

In my judicial capacity I must have no preference for a particularsystem of state supported education, whether mixed or comprehensive. In mypersonal capacity I have in fact no preference for any particular system:and this fact, while it may disable me from arriving at a conclusion that aparticular view is wrong, may assist me in arriving at a correct conclusionwhether a proposed course of action, motivated in whole or part by aparticular view, is " unreasonable". In this latter respect I may indeed,because of my very neutrality, or if you please indifference, be in a positionof relative advantage in concluding what may be considered unreasonable,while at the same time (though not paradoxically) being at a disadvantage inconcluding what system is the better.

There was no obligation whatever in law on the Local Authority toimplement its 1975 proposals, albeit they had been approved by the Secretaryof State. Prima facie the Local Authority was within its rights and dutiesto change its mind and continue the existing mixed system.

In concluding whether the Local Authority was truly proposing to actunreasonably, the Secretary of State was in a position of considerabledisadvantage. His duty in approaching the question was to adopt a postureof complete neutrality between the educational merits of the comprehensiveand the mixed systems: but he was committed in view to the former—I speakhere not at all of party politics—and his departmental advisers had deliberatedand worked for many months before approving the detailed 1975 proposalswhich the Local Authority now proposed at least to defer. It is in thatcontext that I have ventured to refer to a possible advantage, in reachinga true conclusion on the crucial question, of my own neutrality or indifference.

I leave those general considerations to address myself to the particularquestion in the case: whether there were grounds upon which the Secretaryof State on the 11th June could properly be satisfied that the Local Authoritywas then proposing to act unreasonably. It is, my Lords, no doubt a mostserious matter for the judiciary to overset a conclusion of a Minister withoverall responsibility in a field of such importance to the national welfare aseducation, when it is not suggested either that the conclusion was motivatedby party political considerations or that it involved bad faith. On the otherhand it is not my understanding that the mere expression by the Secretaryof State of his satisfaction that particular proposals are unreasonabledeprives the court of the ability to decide that there were no sufficientgrounds for that satisfaction and that consequently the Secretary of Statemust in some respect have misdirected himself in applying his mind to theproblem. Further I would observe that it is equally a most serious matter forthe organisation of education in an area, which is, under the Statute (withexceptions), the province of the local authority, to be taken out of its handsby the central government on the ground that the former is proposing to act" unreasonably "—which I take to mean that the course that is proposed isone that in the circumstances no reasonable local authority, with the interestsat heart of the education of the young in its area, would take

The details of the documents leading up to the letter written for theSecretary of State on the llth June 1976 have been set out by my noble andlearned Friends, and I do not repeat them ; nor do I rehearse in any detailthe facts of the case, for that would involve tedious repetition. The letterfrom the newly constituted Local Authority, whose new constitution wasbased at least in part upon acceptance by the electorate of proposals to deferimplementation of the 1975 scheme, cannot be said to bear the stamp ofirrationality or unreasonableness. It stated in sober fashion the objections toimplementation of the 1975 proposals in September 1976. It recognised theproblems involved in applying the brake to those proposals which of course

had acquired a degree of momentum. It arrived at a considered view onbalance of disadvantages. From a neutral standpoint on systems of stateeducation I find it quite impossible to conclude that this attitude was oneof an unreasonable education authority. I have no doubt that the Secretaryof State was satisfied that the Local Authority was wrong to put the brakeon the 1975 proposals. Equally I have no doubt that the reconstituted LocalAuthority was satisfied that the previously constituted Local Authority andthe Secretary of State were wrong to propose and approve the 1975 proposalsfor initial implementation in September 1976. But to my mind it is quiteunacceptable in either case to proceed from " wrong " to " unreasonable ". Ifby statute comprehensive education is introduced throughout there will nodoubt be many who will consider that it is wrong so to do: but it couldnot be objectively unreasonable, whatever the disruptions resulting fromintroduction into selected entry schools of non-selected entry primary schoolchildren, or the move of 16-year-old children to a different school, or anyother change. Equally I apprehend that if in an area a fully comprehensivesystem of education is established it would not be right to describe a proposedreversion to a mixed system as " unreasonable " as opposed to a view thatit would be " wrong". History is replete with genuine accusations ofunreasonableness when all that is involved is disagreement, perhaps passionate,between reasonable people. In summary, my Lords, " unreasonably " is avery strong word indeed, the strength of which may easily fail to berecognised, and which in my opinion has not been recognised in the instantcase by the Secretary of State.

I have, my Lords, referred to the reasonable letter from the Local Authority.I now refer in slightly more detail to the letter of decision of llth June1976. As indicating grounds of unreasonableness on the part of the LocalAuthority it appears to me to be unsatisfactory. It does not grapple withthe arguments or contentions of the Local Authority supporting its attitude:it refers only in general terms to consideration of points made. It statesthat a change of plan at this stage (11th June) " must give rise to considerable" difficulties ". It refers (as such difficulties) to a number of features noneof them very dogmatically stated as follows:

(i) Parents of children are presented with a dilemma: this must referto parents whose child has been allotted (under the 1975 proposals)to a comprehensive based school but who (under the new proposal) wouldlike the child to be considered for one of the 240 places available underthe 1976 proposals at the two now retained grammar schools which wereto become 6th Form schools: the dilemma is either to retain the allocationat a comprehensive or secondary modern or to try for one of the newlyavilable grammar school places. The dilemma suggested is that theparent (who ex hypothesi would prefer a grammar school placing ifpossible) would in pursuit of that aim risk an unthorough vetting for thevacancies. I do not find it easy to understand this so-called dilemma.Half a loaf is better than no bread for one who seeks bread.

(ii) The system of selection for the 240 grammar school places is to be" improvised " (the precise form of which has not been settled), " carried" out in circumstances and under a time table which raise substantial" doubts about its educational validity ". Assuming that this is a delicatereference (" circumstances ") to the fact that at that date a substantialnumber of teachers for various reasons were refusing to co-operate intests for the 240 grammar school places, I find it hard to believe that ifthe Secretary of State had held his hand on llth June (when there wasample time for a full vetting for the 240 grammar school places) therelevant teachers, who are after all professionals dedicated to the interestsof child education, would have refused to do their best for the childrenunder them. The Secretary of State certainly says nothing to the contrary.

(iii) The letter of 11th June referred next to paragraph 10 of the LocalAuthority's representations. That paragraph had recognised thatadherence to the non-selective allocations of the 3,000 odd primaryschool leavers, already made under the 1975 proposals on the assumptionthat all the secondary schools were ultimately to become fully compre-

hensive, might result in some square pegs in round holes under the revisedsystem: for example, a child unsuited to a grammar school might finditself at one of the three. But the paragraph showed that in the viewof the Local Authority a flexible system of interchange in such casescould be operated after or during the first term and that " widespread"transfers" would be unnecessary. The department's letter of 11thJune stressed that this " might" involve " an abnormally high proportion" of pupils" needing " to be re-allocated to different secondary" schools ". What is meant by " abnormally high " except more thanusual? This was recognised by the Local Authority in its letter. Andsupposing it to be so, how high is abnormal and what is its contributionto " unreasonably "?

In the end in argument the whole matter of " unreasonableness " camedown to the question of the reliability of selection procedures for 240grammar school places in the time available out of some 800 parentalapplications. This had to be considered on llth June by the Secretary ofState. Could it then have been described (as it was not by the letter of llthJune) as unreasonable on the part of the Local Authority to suppose that theteachers would not do their best for the children in this regard? I cannotthink so.

Accordingly, my Lords, I am of opinion that the Secretary of State in hisletter of 11 th June exceeded his powers and this appeal fails.

I would add this. The question whether the Secretary of State was justifiedin his conclusion that the proposals of the Local Authority were unreasonablefalls to be decided at the date of his conclusion—the llth June: that iscommon ground. I would not however subscribe to the view that factssubsequently brought forward as then existing can properly be relied uponas showing that the proposals were not unreasonable, unless those facts areof such a character that they can be taken to be within the knowledge of theDepartment.

SECRETARY OF STATE FOR EDUCATION AND SCIENCE V. TAMESIDE MBC

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SECRETARY OF STATE FOR EDUCATION AND SCIENCE V. TAMESIDE MBC

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