Ming and Coleman v Commissioner of Education and Minister of Education
| Jurisdiction | Bermuda |
| Judge | Kawaley, C.J. |
| Judgment Date | 01 August 2012 |
| Court | Supreme Court (Bermuda) |
| Docket Number | 178 of 2012 |
| Date | 01 August 2012 |
Supreme Court
Kawaley, C.J.
178 of 2012
Mr. Eugene Johnston, J2 Chambers, for the applicants
Mr. Martin Johnson, Attorney-General's Chambers, for the respondents
Judicial Review - Legitimate expectation — Certiorari — Whether applicants had legitimate expectation of consultation before decision made.
The primary relief which the 1st applicant (“TNT PTA”) and the 2nd applicant (“VS PTA”) seek in the present judicial review proceedings is an order of certiorari quashing the March 14th, 2012 decisions of the 1st respondent (“COE”) involuntarily moving the principals of the respective schools with effect from September 1st, 2012. The applicants sought leave to seek judicial review by Notice dated May 16th, 2012, having exhausted attempts to obtain redress for their grievances through extrajudicial means.
On May 22nd, 2012 at an ex-parte hearing, I granted leave to pursue the present application but refused to grant an interim stay of the decisions. Following an application for an interim stay at which Mr. Johnson very properly undertook on behalf of the respondents not to rely upon any restructuring steps which occurred after May 22nd, 2012, the Court directed an expedited hearing of the present application so that the parties could know where they stood as far in advance of September 1st, 2012 as possible. Those directions included a requirement to file and exchange skeleton arguments seven days before the hearing, directions which were honoured by the respondents, counsel but which were blissfully ignored by the applicants, counsel (At my prompting, the Registrar contacted counsel over the weekend and obtained a copy of the applicants, written submissions on Saturday afternoon preceding the hearing. See paragraph 48 where the possible costs consequences of this conduct are mentioned.). In the event, the skeleton argument produced was a model of cogency, clarity and proportionality.
What appeared to me to be the main ground of complaint advanced at the hearing was that the applicants enjoyed as a matter of public law a legitimate expectation that they would be consulted by the COE before she decided to transfer the principals in question. This arose from the importance of the decisions in questions combined with the status of the PTAs as stakeholders in the educational system, by virtue of the scheme of the Education Act 1996 as read with recent educational policy pronouncements made by or on behalf of the respondents (It is doubtful whether it was strictly necessary to name the 1st respondent, a public officer, as a respondent even though she formally made the impugned decisions. It would have sufficed to name the Minister, the titular and political head of the Ministry as sole respondent even though she had no evident personal involvement in the decisions. Public officers, save for those holding a few constitutional offices, ought generally to be shielded from being joined as parties to judicial review proceedings or any other proceedings against the Crown (i.e. the Executive branch of Government.). Subsidiary grounds of complaint were that transferring the principals otherwise than because their schools were underperforming was unlawful and that the decisions were in any event irrational. It is common ground that no consultation took place.
The applicants, case was based on colourfully elevated principles extracted from the Hopkins Report and the Educational Blueprint for 2010–2015, underpinned by modern notions of the democratic accountability owed by public institutions to citizens utilizing public services. The respondents, case, in stark contrast, seemed to be more inspired by stifling defensive motivations rather than by any countervailing high-level public policy rationales. The central controversy was whether or not the legal and policy context gave rise to a legitimate expectation as a matter of public law that the applicants would be consulted before the impugned decisions were made.
The present application requires attention to the context in which the decisions were taken, the legislative scheme, the promises or representations relied upon and the common law principles governing the doctrine of legitimate expectation.
By letter dated December 15th, 2012, each Principal was advised of the “possibility of being transferred to another school site” based on the following criteria:
“1. For the purpose of promoting professional learning for continuous improvement;
2. Site renewal; and
3. To maximize instructional leadership to improve student achievement.”
On March 14th, 2012, each Principal was advised that “the Commissioner of Education reserves the right to effect involuntary administrative transfers based on established criteria” and confirmed transfers to new schools with effect from September 1st, 2012. The reasons stated for the transfer decisions were as follows:
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(a) TN Tatem Principal:
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• Built a strong community and made solid connections with corporate partners;
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• Made solid decisions about teaching and learning;
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• Have a deep understanding of Middle School;
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(b) Victor Scott Principal:
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• You will be joining a zone rich in success with strong instructional leadership–
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• You will be able to grow skills and contribute your strength of building community.
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The TNT PTA and the VS PTA were not consulted prior to these decisions being made and vigorously protested through petitions and a march before resorting to legal proceedings to challenge them.
The Act has no express provisions creating a role for PTAs in Bermuda's education system, unlike the position under the United Kingdom 1996 Act to which Mr. Johnson for the respondents referred. Section 4 provides for an advisory Board of Education; section 5 provides that the Department of Education under the direction of the Minister, the supervision of the Permanent Secretary and headed by the Commissioner of Education shall, in effect, have operational control of the education system. Section 5(2B)(k) charges the Commissioner with negotiating with unions, lending some support to Mr. Johnson's submission that transfer issues were purely a contractual affair.
In addition it is noteworthy that section 3(1) of the Act, in defining the composition of the Education Board provides for:
“(e) 2 persons who are representatives of parents or the education community, appointed after consultation with any national parent-teacher associations.”
However Mr. Johnston referred to, inter alia, the following provisions as signifying that, at a minimum, the legitimate expectation contended for was not inconsistent with the statutory scheme:
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(a) section 8(2) (ef) of the Act empowers the Minister to make rules “with respect to the responsibilities of a parent in relation to the school at which a student is enrolled and in relation to the student”. Breach of such rules constitutes a summary offence (section 8(2B));
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(b) both schools are “maintained” schools under the Act. Although these provisions have not been implemented, section 18 (1) of the Act provides: “There shall be a board of governors of every maintained school.” Schedule 2 paragraph 2(b) provides that such boards should be comprised of “at least one…parent”;
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(c) Section 5(2B) (d) mandates that the Commissioner shall “liaise with the boards of governors and facilitate communication and cooperation among them, and between them and the Department”;
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(d) section 19(1) (d) of the Act lists amongst the functions of such boards “to consider and make recommendations in respect of the appointment of all teachers, including the principal, at the school”;
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(e) section 42(1) provides: “It shall be the duty of the parent of every child of compulsory school age to cause him to receive suitable education…” This was contended to imply the need for interaction with the education authorities because the suitability of education for each child was a matter ultimately to be decided by the Minister under section 2(1).
The second main ground of the present application, which I indicated in the course of the hearing did not appear to me to be very plausible as a free-standing ground for invalidating the decisions, was based on section 25C(3) of the Act. What this provision clearly demonstrates is not that principals may only be compulsorily transferred if their schools are failing; rather, it merely highlights that this is the only ground for such a transfer which is expressly mentioned in the Act. The scheme of the Act to this extent supports in a general way the applicants, central thesis that the decision to move apparently successful principals is a momentous decision as to which they as persons directly affected would reasonably expect to be consulted on in advance. Section 25C (3) provides:
“LOW PERFORMING SCHOOLS
25C (1) The Commissioner of Education, in consultation with the Board, shall design and implement a procedure to identify low performing schools on an annual basis.
(2) Where a school has been identified as a low performing school, the manager of the school, in consultation with the principal and teachers of the school, shall prepare and implement a plan for improvement of the school, and the plan shall be submitted to the Commissioner of Education for the Commissioner's approval.
(3) Where a school has been identified as a low performing school for two consecutive school years, the Commissioner of Education shall take measures aimed at the improvement of student performance at the school. Measures may include provision of additional resources, adoption of new programs or changes in the principal or teaching staff.
(4) For the purposes of this section, a “low performing school” in any...
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