“In detailed grounds of resistance filed on or about 25 April 2022, the council relied on a further witness statement of Ms Crowhurst, her third, to support its contention that Approved Judgment R (RhAG) v. Neath Port Talbot CBC the council had lawfully formed the view, and stood by the view, that no Welshmedium school was affected by the proposals, even if, contrary to the council’s primary contention, it were in principle possible for the Code to apply where the proposals only related to English-medium schools.
75. The rest of the detailed grounds broadly followed the same pattern as the summary grounds, as well as adding an assertion that the claimant has no standing to bring the claim; a contention not pursued before me (the claimant having by then obtained a costs capping order).
76. In her third witness statement made on 25 April 2022, Ms Crowhurst sought to address the position on the footing that the Code could, after all, apply where the proposals were to close or open only English-medium schools. I infer that the council had begun to accept that this may be so, contrary to its earlier understanding. She explained that she had drafted the consultation document with help from colleagues.
77. Ms Crowhurst said that in considering whether any schools were “involved or affected” she had been guided by the bullet points in paragraph 3.4 of the Code under the sub-heading “Details of affected schools”. She explained that she asked herself, whether the proposal would “directly affect the pupil roll of the school …” or “directly affect the capacity at the school”. These bullet points are the provisions determining what information about schools should be provided, but she maintained that they were relevant to what schools if any were “affected” for the purpose of the WLIA requirement later in paragraph 3.4.
78. Ms Crowhurst then added evidence in tabulated form not drawn up at the time but “which is for explanatory purposes in this claim”. In the table she posed the questions corresponding to the bullet points that guided her; most importantly for present purposes, “[w]ill the proposal directly affect the pupil roll of the school at the time of the proposed implementation and the 5 year projected pupil numbers?” The table states “unlikely” as the answer, supplemented by further reasoning, in the case of both YGG Trebannws and YGG Pontardawe.
79. Ms Crowhurst went on to produce detailed statistics by way of explaining that in the past loss of pupils had not materialised in the case of other school reorganisations, by way of comparison. This was a point made in some of the documents at the time, but the reasoning in the third witness statement supplements the reasoning deployed during and after the consultation process.
80. Ms Crowhurst said council officers had found no precedent for “an example of an EM school reorganisation in Wales which involved a consultation document with a WLIA”, despite internet searches. (In argument, the claimant disputed that this was correct and claimed to have found such a case, possibly postdating the consultation exercise in this case.) No browsing history documents evidencing these internet searches were produced. There is no evidence of when the searches were carried out, nor what search terms were used.
81. Ms Crowhurst went on to explain that the decision to commission the WLIA was for reasons unrelated to the terms of the Code. It is obvious from the correspondence at the time that the Welsh Government was insisting on a WLIA. As the proposed joint funder of the project, it was in a position to insist on one. Ms Crowhurst’s third witness statement says also that the WLIA was commissioned because it was recognised that the three schools and the new school (all English-medium) were “located in an area of linguistic sensitivity”.
82. That did not mean, Ms Crowhurst insists in her third witness statement, that the council thought there would be impacts on Welsh-medium schools or education. She did not accept much of the content of the Welsh Government report; for example, she deprecated the use of a term such as “super” school to describe the new school. The revised WLIA referring to new proposed “mitigating actions” was, however, put before cabinet; it was appropriate that cabinet should be aware of the Welsh Government’s thinking about the proposals.”
High Court 24/10/2022