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The Liverpool Law Review

A Journal of Contemporary Legal Issues

Vol. XX no.1 (1998)

Special Issue:

EDUCATION LAW: NEW STRUCTURES, NEW RIGHTS, NEW REMEDIES

FOREWORD

Cherie Booth Q.C.

The publication of the Education Law issue of the Liverpool Law Review is both timely and welcome. It is timely, because in the twenty years that I have been practising law, Education Law has developed from nothing into a major part of the daily work of all public lawyers and, since the decision in E (a minor) v. Dorset County Council ([1995] 2 A.C. 633) of those who practise in the field of negligence as well.

This has been the result of the convergence of a number of factors. First, following the changes in procedure which resulted in the replacement of the old prerogative writs of certiorari, mandamus and prohibition with the procedure for applying for judicial review under Order 53 of the Rules of the Supreme Court, there has been a massive expansion in the work of the Crown Office. Secondly, there is the extension of Legal Aid in this area caused by the simple fact that as the applicant is the child the financial eligibility for legal aid is based on her resources which are usually nil. Thirdly, we have the change in society whereby the citizen is no longer willing blindly to accept the decision of a public body but is prepared to challenge the decision taker. This shift in the social welfare field, reflecting as it does the more individually orientated and rights based society that has evolved in the latter part of the twentieth century, has in turn impacted upon the courts.

This collection of essays addresses the main areas in which Education Law has thrived. The source of most public law challenges has been the Education Acts. It is surely a comment on what was happening in society that following the passing of the Education Act 1944 there were few changes in the basic structure of state education for over thirty years. Even the major educational change, the emergence of comprehensive education in the 1960s and 1970s, was not reflected in any major statutory change. Then, in the 1980s, starting with the revolution in special education needs arising from the Education Act 1981, through to the Education Reform Act 1988 which introduced, amongst other things, local management of schools and grant-maintained schools, and continuing with the changes in further and higher education in the 1990s, there was not an area of education which was not examined and changed. Given that the process was not always welcomed by the local education authorities or the professionals in the field, it is not surprising that a huge amount of hotly contested litigation ensued. And now, when practitioners in the area were finally presented with a consolidation statute in the Education Act 1996, the whole process has begun again with the change of government. As Professor Harris rightly points out in his contribution it is becoming apparent that "choice" is no panacea when it comes to social welfare rights when one person's "choice" may be another person's detriment and thus questions of quality for all rather than choice for the few become relevant. It will be interesting to see how this concept of quality for all interrelates with the rights based approach of the European Convention on Human Rights which will have an important impact on this area of the law.

It is in these areas that we have much to learn from the Canadian and Australian experience discussed in the papers by Doug Stewart and Professor Andy Khan. Laura Lundy reminds us that even closer to home in Northern Ireland different solutions to common problems can be found. Today there are new questions to be asked about the proper role for local democracy and the LEAs, which are discussed by Paul Meredith in his contribution.

It is not only in the area of public law, however, that the law of education has developed. Once upon a time, negligence in schools concerned playground accidents and personal injuries in the gym and playing fields. Following the decision in the Dorset, Hampshire and Bromley cases (supra), in which I tried in vain to persuade their Lordships that to allow LEAs to be sued for negligent advice would open the floodgates to litigation, there has indeed been an expansion in this area. I read with interest Jonathan Robinson's discussion of this case and of my subsequent victory on behalf of the plaintiff in Phelps v. London Borough of Hillingdon ([1998] E.L.R 38) the appeal in which is due to be heard this autumn by the Court of Appeal. I myself still feel that there are good policy arguments why injuries which arise out of the failure of social welfare rights such as the right to education are not satisfactorily resolved by the award of damages many years later in a court of law, especially when those damages simply deplete an already overstretched education budget. Quick, efficient and cost effective public law remedies at the time are surely better than post mortems long after the event.

The fascination of Education Law is that it raises all these issues of public policy and individual hardship and disappointment combined with a chance to extend the boundaries of the Common Law. I never cease to be fascinated by the subject and count my self lucky to be involved in so many cases which shape our law today; and I look forward to using many of the arguments and ideas outlined in this issue of the Liverpool Law Review in my cases in the future.

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