As publicfinance.co.uk reported last week, Education Secretary Michael Gove has been told to reconsider his decision to cancel Building Schools for the Future projects in six local authority areas.
No one welcomes being told their funding is to be cut. No minister can be under any illusion that any decision to reduce funding is, sooner or later, going to be subject to legal scrutiny. Given this, and the number and gravity of cuts being announced, you would expect ministers to be at the top of their game. All of which makes Gove's defeat in the case look even more inexplicable.
The case concerned Gove's decision to withdraw funding from essentially all BSF projects that had not reached financial close on 5 July 2010. Short of coming with an explicit health warning printed on it, it is hard to imagine a decision more obviously likely to provoke challenge.
The sums of money involved were large. Authorities were being denied funding that they had anticipated for some time, and in some cases were close to starting work. The subject was emotive. And there were many authorities in the same boat, so there was every chance a challenger would not have to go it alone.
The six councils alleged that the decision to cut funding was irrational, was a breach of binding promises, and was unfairly arrived at. They concluded with an allegation that the secretary of state had not had ‘due regard’ to the impact on groups protected by equality legislation.
On the bulk of the challenges, the case went well for Gove. In particular Mr Justice Holman took the opportunity to restate in the firmest terms that the courts have no business ruling on ‘social and economic controversy’ and that they must not usurp a ‘political role’.
This is very welcome. If the legal process is to continue to enjoy respect and support, it has to keep itself within its proper bounds, and not express opinions on matters it is not well qualified to judge. This is more, not less important at times of political controversy.
However, when it came to the equality challenge, the secretary of state failed miserably. The duties here are not new: the first one came into force ten years ago, and there have been a series of high-profile cases since. The requirements are (or should be) well known. Theresa May, the equalities minister as well as home secretary, had specifically reminded the Cabinet of their equality duties less than a month before the decision to end BSF.
Nor are the duties hard to get right: broadly, thinking about possible impacts on protected groups, and asking if there are ways to mitigate any harm gets you most of the way there.
And yet, as the judge found, Gove had not considered these issues at all, let alone adequately. The result was his decision had to be quashed, at least as regards the six authorities that took him to court. He will now have to reconsider, taking account of any effect on the protected groups. The end result is a red face, legal fees, and maybe or maybe not, a change of heart.
The lesson for the government, and any other public sector body making cuts is a simple one. Making cuts isn't just about matching budgets to resources. Hard times don't mean you can ignore legal duties.
Stephen Hocking is a public law partner at law firm Beachcroft
