An Inconvenient Judgment

I’m not entirely happy with Burton J’s Administrative Court judgment in Dimmock v Secretary of State for Education, in which he criticised Al Gore’s film, An Inconvenient Truth. I think the judgment is an unfortunate exercise in micromanagement of education policy and teaching, and slack in its legal reasoning.

Mr. Dimmock was arguing that the minister’s decision to send the film out to schools was unlawful, because it would cause LEAs and schools to breach their duties under sections 406 and 407 of the Education Act 1996 to forbid the promotion of partisan political views in their teaching; and to take steps to make sure that where political issues arise in school, pupils are offered a balanced presentation of opposing views.

Burton J concluded that the decision was unlawful for this reason, but that if guidance to teachers accompanying the film was redrafted and made available in hard copy – not on a website – then showing the film would not be unlawful, and need not be stopped.

Hm. It isn’t the minister, but LEAs, governers and heads who are under the statutory duties in question; I reckon Burton J has wrongly elided the question whether they would have breached their duties by allowing teachers at their schools to show the film (and indeed the question whether individual teachers would be promoting or presenting partisan or unbalanced views, which again is not the same as whether LEAS and heads have fulfilled their duties) with the question whether it was lawful for ministers simply to send the film out to schools when they weren’t obliged to show it at all, and had flexibility about the context in which they’d show it.

Secondly I think he’s paid far too much attention to the detailed form and wording of the guidance, seeing the legal position as turning entirely on them. The guidance in effect seems to have been redrafted by lawyers outside court – a ludicrous situation. And can it really be all that decisive, these days, whether the guidance was in hard copy or available on the web?

Unfortunately I fear, this case will lead to a small outbreak of partisan challenges like this – based on detailed attacks on the wording of guidance. And I doubt DCFS will bother with an appeal, given that the film can still be shown.