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Welsh school closure quashed after “hopelessly confused” consultation

DATE: 16 Aug 2016

A controversial decision by Denbighshire County Council to close a small Welsh-language primary school in the village of Pentrecelyn, Ruthin has been quashed by the Divisional Court: R (Aron Wyn Jones) v. Denbighshire County Council [2016] EWHC 2074 (Admin). It is the first time that a court has quashed a decision by a local education authority due to a failure to assess the impact on the Welsh language properly.

In 2015, the Council announced plans to close Ysgol Pentrecelyn, a small village school for some 56 Welsh-speaking pupils, and merge it with a larger bilingual school in the same area, Ysgol Llanfair Dyffryn Clwyd, in a new building on a different site. The new school would be a bilingual school, not a Welsh-medium school. In a small rural school, this means that a single teacher alternates between Welsh and English throughout the day to cater for the two “language streams” within the same class.

The Welsh Government’s School Organisation Code requires such school closure proposals to be accompanied by a Welsh Language and Community Impact Assessment (“WLCIA”). In this case, instead of assessing the language and community impact of the Council’s proposal to open a new school on a new site, the WLCIA carried out by the Council only assessed the impact of an ‘interim’ proposal to ‘merge’ the two schools formally for 1 year, but with the pupils to remain on the two existing sites during that period, with no material change in how lessons are delivered. Unsurprisingly, the WLCIA concluded that there would only be very modest language and community impacts from this ‘interim’ proposal.

Ymgyrch Pentrecelyn (the Pentrecelyn Campaign), led by a representative claimant, argued that the Council’s decision to implement the ‘interim’ proposal without considering the language and community impacts of the ultimate plan to merge the two schools on a single site was unlawful. They also argued that the Council was unclear and inconsistent about the scope of its consultation, and therefore failed to meet the minimum standards for a lawful consultation.

The matter came before Hickinbottom J and HHJ Milwyn Jarman Q.C., sitting in the Divisional Court in Mold in June 2016. They have now given judgment, allowing the claim for judicial review and quashing the Council’s decision. The court criticized the Council’s decision-making in unusually strong terms. Key extracts from the judgment, available in English and in Welsh include:

“64. It was curious and artificial for the Council in considering whether to implement the temporary arrangements of Phase 1, to have ignored the permanent arrangement that would follow Phase 2. In our judgment, impact on the language and community of the permanent arrangement was clearly relevant to the decision as to whether to take the first step in the form of Phase 1. To have taken the first step along a proposed route without some appreciation of the risks in terms of adverse language and community impact that may lie ahead was, in our view, unlawful as well as unwise.”

“72. […] The Council had clearly decided upon its preferred option – the course it wished and intended to pursue – with regard to the future of primary school education in Llanfair Dyffryn Clwyd and Pentrecelyn.  However, unfortunately, we do not consider that clarity was replicated in the Consultation Document.  That document has to be looked at as a whole; and, when looked at thus, we agree with Mr Lewis – it is hopelessly confused.”

“76. [..] Given that the Welsh language has official status in Wales […], it is to say the least highly regrettable that there were significant differences between the two language versions of these documents. A person reading such a document in either language is entitled to expect that there are no significant differences between the two language versions.”

The litigation is historically significant as it is only the second time, since the High Court was established in 1875, that a party has presented its case to the court in the Welsh language.

The judgment of the court has been heavily covered in the Welsh media since it was handed down, including on The BBCITV and Wales Online

Gwion Lewis acted for the successful local campaign group, Ymgyrc