The education secretary got his knuckles rapped for bad-temperedly tearing up the BSF rule book. But it won’t stop him getting his way

Michael Gove MP; Building Schools for the future (BSF); cancelled school building works. That’s a combination that has got the pulse of our building industry racing. Niggled isn’t the word. There are a lot of very angry people, enough for Gove, as secretary of state for education, to be hauled into court. His job as a member of Her Majesty’s government (the “executive”) is to keep to the law made by the legislature (parliament) and it is the judiciary that keeps a beady eye on the executive going outside our laws. Gove has.

Michael Gove is wholly fed up with the needless rigmarole, the number of ’meta-stages’ and ‘sub-stages’, the bureaucratic grind going on before you can build

This BSF programme is, was, gigantic. The Labour government decided in 2005 to rebuild or refurbish every secondary school in England. That’s 3,500 schools. That’s a whole lot of work for you and your bricklayers and carpenters between 2005 and 2020. The latest estimate of the bill was £50bn. Then came May 2010, the Labour lot were ousted for a new lot. The newly appointed secretary of state immediately announced that BSF was a mess, “a dysfunctional process” and would come to an end. By then 181 schools had benefited from BSF funding of which 98 were new builds. A further 735 were at an advanced stage but not under way yet.

Let me tell you what has really got Gove’s goat - not your building work, not your behaviour, not quality, nor price, nor time keeping. No, it’s none of all that stuff. He is wholly fed up with the needless rigmarole, the number of “meta-stages” and “sub-stages”, the bureaucratic grind going on before you can build. He said in the recent court case: “It can take almost three years to negotiate the bureaucratic process of BSF before a single builder is engaged or a brick laid.” Hmmm. Some local authorities entered the BSF process six years ago and have only just started building new schools. And from what I have read in the trial for judicial review of Gove’s decisions, I too would have had a rant about all this idiotic and expensive delay. Snag now is that the Treasury has snaffled all those billions to go into the cuts pot.

Six councils had the wit to challenge Gove’s decisions as unlawful: Luton, Nottingham, Waltham Forest, Newham, Kent and Sandwell. Mind you, the pulled plug has not left these folk penniless. Luton, for example, will still receive £150m for its schools. This is not the end of capital investment. Their challenge boils down to the notion that in using his powers as a minister he has acted irrationally or unlawfully in stopping BSF. Gove says that because he is critical of the current system, he has established a review team (the James review) “to look at every area of departmental capital spending to ensure that we can drive down costs, get buildings more quickly and any future capital commitments will have to wait until the conclusion of the review”.

’Well,’ said the judge, ‘I have in front of me 7,500 pages of documents, 70 previous judgments.’ but he said he would consider the wood not the trees

He assured the court that contractual commitments will be honoured. Also, for those schools where “financial close” has been reached in a local education partnership, the projects will go ahead. But those schemes in the bureaucratic grind go out of the window. The local authorities said, “Oh no you don’t”.

The lawyers got to work. Judicial review is a specialist business. They argued that Gove had adopted a “rules based” approach and “fettered his discretion”, had been irrational, breached the substantive expectations of the claimant, failed procedural expectations of consultation, and breached his statutory duties under equality legislation. In short, the secretary of state broke two sheet anchor laws: he was out of order and bang out of order at that. Well, said the senior judge, I have in front of me 7,500 pages of documents, 70 previous judgments; but went on to indicate he would consider the wood rather than the trees. “I propose to consider this case in a relatively impressionistic way, without over-immersion in or reference to the mass of detail in both the facts and argument which have been advanced.”

The view he then took was that the secretary of state had failed to properly consult these local authorities. So that meant he had behaved unlawfully. Gove will now have to travel the ground again and consult. As the judge said: “Provided Gove discharges that duty, the final decision on any given school or project still rests with him. He may save all, some or none. No one should gain false hope from this decision.”

Tony Bingham is a barrister and arbitrator at 3 Paper Buildings Temple