England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR JUSTICE LANGLEY

		Royal Courts of Justice Strand, London, WC2A 2LL Monday 12th March 2001

LORD JUSTICE KENNEDY :

1. This is an appeal from a decision of Langley J who, on 27th July 2000 dismissed the appellant's application for judicial review of a decision of the Secretary of State dated 1st March 1999, and refused permission to appeal. Permission to appeal was granted by this court on 13th February, and we then continued to hear the appeal.

Background

2. The factual background is important, and I am conscious that we have not had access to all of the material which was before the Secretary of State when he made the decision under challenge, but at the hearing before us all parties were represented by experienced solicitors and counsel, and I have no reason to think that we have not seen anything which we needed to see in order to decide this appeal. After the hearing Ms. Grey, for the respondent, supplied us with copies of some letters to which she had referred and I take those letters into account.
3. The appellant is a teacher who from 1979 to 1995 taught at Woodhey School, Ramsbottom, Bury. In March 1995 it was alleged that he had touched inappropriately a fifteen year boy at that school. He was suspended, the police were informed and decided to take no action, and on 19th June 1996, after a report had been obtained by the Area Child Protection Committee (ACPC) from Mr Rush, an officer of the NSPCC, a special meeting of the governors resolved to establish, in accordance with the Education (School Government) Regulations 1989 S.I. 1503 Part III paragraph 26(5), a panel of three governors to hear the case against the appellant. The members of the panel were identified, as were the members of an appeal panel, should such a body be required. The Metropolitan Borough of Bury was the local education authority, and it was represented at the meeting on 19th June 1996 by Mr Nelson. .

The Hearing - June 1996.

4. The hearing before the Disciplinary Panel took place on 25th and 28th June 1996. The members of the panel consisted of Councillor Longworth (a solicitor practising in criminal and family law, a former teacher and a parent of four children), Mr Baby (commercial director of a management consultancy and a former employee relations manager for the Co-operative Bank: a governor for 9 years, and a parent of two children in the school) and Mr Richardson (a company director employing over 30 staff who previously worked for the Inland Revenue, a school governor for two years and a parent of two children currently at the school). There is an issue as to whether Mr Richardson's children had been taught by the appellant. Mr Richardson it seems thought that they had been, but subsequent enquiries, including the appellant's letter of 1st October 1998, have suggested otherwise. However, on any view, the governors had selected an impressive and highly qualified panel.
5. The case against the appellant was presented, on behalf of the local education authority, by an in-house solicitor who relied on a statement from Mr Rush, together with his oral evidence, and upon evidence from Helen Humphries (a child protection officer from Bury Social Services Department) and evidence from Mr Nelson. No child complainant was called to give evidence, and the panel was not given access to any video recording there may have been of any interview with any complainant. Furthermore, it seems that initially the complainants were not identified, although their identities do seem to have emerged, at least to some extent, during the course of the hearing.
6. The appellant, who was represented by his trade union official, gave evidence and called as witnesses a former pupil, allegedly a complainant, and other members of the teaching staff. The head teacher, Mr Bennett, did not give evidence on either side.
7. It is common ground that after closing submissions had been completed Councillor Longworth , who chaired the panel, asked everyone to leave so that the panel could consider the evidence and make its decision. There is an issue as to whether Mr Talbot, the acting Chief Education Officer of the local authority expressed any desire to remain, and that is an important underlying issue in this case.
8. After considering the evidence the panel concluded that there had been no misconduct by the appellant. He was so advised, and the Chairman of the Governors recommended that his suspension be lifted.

Invocation of Secretary of State

9. The Local Education Authority was not satisfied with the decision of the Disciplinary Panel, and on 27th August 1996 Mr Talbot wrote to the Secretary of State seeking intervention by the Secretary of State under section 68 and/or 99 of the Education Act 1944. Those sections enabled the Secretary of State to intervene to prevent an unreasonable exercise of its functions by a governing body (section 68) or where a governing body was in default (section 99), and the material part of Mr Talbot's letter reads -

"All the details are contained in the report which accompanies this letter.

In summary the LEA believes that the decision made by the Disciplinary Sub-Committee of the Governing Body was an unreasonable one, given the evidence placed before them.

In addition, the requirement by the Disciplinary Sub-Committee for the Chief Education Officer's representative to leave while the evidence was considered by them was, in law, a failure to discharge a duty, and prevented them from receiving appropriate advice."

Presumably the report there referred to was the NSPCC report, which we have not seen. Some correspondence ensued of which we have only a letter dated 25th June 1997 from Mr Graham, for the Bury Solicitor and Secretary, to the Secretary of State in which he says -

"Firstly I can confirm that Mr Talbot did not request that he be present once he had been asked to leave. Secondly, the headteacher did not attend to advise the sub-committee as he was also a witness in the hearing and there was clearly a conflict of interest."

As will become apparent, the council has offered different answers at different times in relation to the first point, and as to the second point, contrary to what is said in the letter, so far as I can ascertain the headteacher was not a witness at the hearing.

10. On 9th July 1997 the Disciplinary Panel re-convened. Mr Talbot had been invited to attend but decided not to do so, and belatedly advised that the meeting should not take place. The members of the panel then set out in minutes which we have seen their joint recollection of the hearing in June 1996 and copies of those minutes were supplied to the Secretary of State.
11. On 11th July 1997 the Secretary of State wrote to Mr Talbot seeking confirmation that he wished to exercise his entitlement to attend the sub-committee's consideration of the evidence so that he could give advice " and that the sub-committee did not allow you to do so". As to irrationality the letter said -

"The difficulty that we have is that we have only seen the written evidence. The governing body heard Mr McNally give evidence and be cross-examined. The Chairman of the sub-committee has given a very cogent explanation of the sub-committee's decision. In the circumstances it is difficult for the Secretary of State to say that in deciding that there was no misconduct the governing body reached a decision which no reasonable governing body could have made."

Mr Talbot responded in a letter dated the 23rd July 1997 in which he said -

"When the panel announced their wish to consider the matter totally alone I queried this as being correct and was told in no uncertain terms that they did not want me to be present. I left the room at that point."

The contrast between that passage and what had been said by Mr Graham in his letter of 25th June 1997 is obvious.

12. On 25th July 1997 Mr Graham wrote to the Secretary of State setting out the LEA's comments on the Disciplinary Panel's minutes. Mostly the letter is simply an argument in favour of accepting the case against the appellant but it does provide helpful confirmation that the case against him was as I have indicated above, and when dealing with hearsay the writer says -

"There is no rule against hearsay in disciplinary hearings. The standard of proof is so low "reasonable suspicion amounting to a belief in the guilt of the employee" (BHS v Burchill [1978]) that in disciplinary hearings one can expect to encounter a great deal of it. Indeed in most organisations the evidence to be heard in disciplinary hearings will consist of little more than a report by a supervisor supported by statements by any other employees who have been asked to give accounts of the alleged misconduct. The Board were advised of the standard of proof. The Board appeared to have dismissed the hearsay out of hand on this basis alone. They have misdirected themselves: it is their responsibility to describe the weight they attached to hearsay evidence and the reasons for so judging. The Board have failed to properly consider the evidence presented to them."

That paragraph is written in response to the simple observation in the minutes that "there was a substantial amount of hearsay", and it does disclose some misconceptions. Whilst I accept that there is no rule against hearsay in disciplinary proceedings (and nothing in the minutes suggests otherwise) it is well established law that in a case of suspected misconduct a dismissal will only be fair if the employer, having investigated the matter reasonably, genuinely believes on reasonable grounds in the employee's guilt. (see Halsbury's Laws of England 4th Edition Re-issue Volume 16 paragraph 491). In this case the Disciplinary Panel was cast in the role of the employer, and had to bear in mind the gravity of the allegations. Where, as here, the evidence was contested the members of the panel could not simply accept the case advanced by the LEA. They had to evaluate the evidence, and decide for themselves whether they genuinely believed on reasonable grounds in the appellant's guilt. In considering the rationality of their conclusion the test to be applied by the Secretary of State could not be the same as the test to be used by an Employment Tribunal in relation to an employer's decision to dismiss on credible evidence, hearsay or otherwise, and the letter writer seems to equate the two. The letter also promised to send to the Secretary of State "typed versions of the contemporaneous hand-written notes taken by Mrs Hammond and Mr Nelson (employer's side) during the disciplinary hearing." We have been told that the notes were furnished. We have not seen them.

First Decision Letter - 8th April 1998

13. On 8th April 1998 the Secretary of State wrote to Mr Williams, Bury's new Chief Education Officer to say that "on the evidence supplied it is not clear that there is any scope for the Secretary of State to exercise his powers of intervention in this case."
14. As to the alleged procedural defect the Secretary of State said -

"From all the information supplied by the local authority and the governing body of Woodhey School it is not possible to reach a clear understanding of the circumstances in which Mr Talbot retired from the governing body's disciplinary proceedings against Mr McNally. Mr Talbot's assertion in his letter of 23rd July 1997 that he queried as being correct the panel's wish to consider the matter alone is contradicted by the governing body. In the governing body's representations to the Department it is claimed that Mr Talbot did not express a wish to remain with the sub-committee and made no comment when asked to leave."

Turning to the question of rationality the Secretary of State pointed out that to justify intervention the action complained of had to be an action -

"So unreasonable that no sensible governing body acting with due appreciation of its responsibilities would have chosen to take."

Before us that was accepted on all sides, in my judgment rightly, to be the correct test (See Secretary of State for Education and Science v Tameside MBC [1977] AC 1014). The letter continues -

"The difficulty that we have is that we have only seen the written evidence. The governing body heard Mr McNally give evidence and be cross examined. In the circumstances it is difficult for the Secretary of State to say that in deciding that there was no misconduct the governing body reached a decision that no reasonable governing body could have made.........."

The First Judicial Review

15. On 9th June 1998 the LEA commenced proceedings for judicial review of the decision of the Secretary of State to which I have just referred. We have not seen any of the papers related to that application, but on 21st July 1998 the Treasury Solicitor wrote to the appellant to advise him that having considered the matter further the Secretary of State had concluded that he had power pursuant to section 496 of the Education Act 1996 to intervene. That section replaced section 68 of the 1944 Act. Section 496(1) so far as material reads -

"If the Secretary of State is satisfied .... that a body to which this section applies have acted .... unreasonably with respect to the exercise of any power conferred or the performance of any duty imposed by or under this Act, he may give such directions as to the exercise of the power or the performance of the duty as appear to him to be expedient ....."

Section 497 of the 1996 Act replaced section 99 of the 1944 Act. It was not referred to in the letter of 21st July 1998, but so far as material it reads -

"(1) If the Secretary of State is satisfied ... that a body to which this section applies have failed to discharge any duty imposed on them by or for the purposes of this Act, he may make an order -

(a) declaring the body to be in default in respect of that duty, and

(b) giving such directions for the purpose of enforcing the performance of the duty as appear to him to be expedient."

After the First Application for Judicial Review

16. The proceedings for judicial review were withdrawn, and the Secretary of State in a letter to the appellant's solicitors of 23rd September 1998 professed himself unable to come to a decision whether or not to intervene or to order a re-hearing. Submissions were invited during late 1998 and on 1st November 1998 the Chairman of the Governors submitted the Disciplinary Panel's response to Bury's letter of 25th July 1997. It is a powerful document from which I need only quote a few paragraphs.

"14. The panel considered the standard of proof. From the experience of members of the panel, including a practising solicitor and a member of Industrial Tribunals, we were well aware of the standard of proof and the admissibility of hearsay. The LEA fail to grasp that hearsay and anonymous evidence inevitably carries less weight than direct evidence. They chose not to bring the direct evidence.

15. In respect of the standard of proof, we were aware that we were considering serious allegations of criminal misconduct against an employee of many years standing. Whilst we agree that it may be reasonable for an employer to act on a low standard, we are not aware that it is compulsory. We considered that in this instance a higher standard might be appropriate. In fact we considered all standards including reasonable suspicion. Applying that standard we were not persuaded of the guilt of the employee and we could not move honestly to dismissal.

16. The LEA assumed that we were required to accept evidence rather than judge evidence, and therein lies their error."

The Local Authority in its letter of 25th July 1997 had gone so far as to say that it inferred bias because one member of the Disciplinary Panel had two children in the school who had been successfully taught by the appellant. That surprising proposition is dealt with in paragraph 20 of the Disciplinary Panel's response where the panel says -

"It is inevitable in a school in which parents are governors that some governors will have direct knowledge of members of staff. It would be astonishing if they did not. We were not advised of the circumstances in which any member should withdraw. We do not feel that the members of the governing body should not be able to bring their knowledge and experience of the school to the decision. We did not approach the decision in a biased way but as concerned employers. It is often inevitable in matters of employment law that decisions are taken by persons who have direct knowledge of the person in respect of whom the decision is made. This is not improper but is common place, as tribunals could not otherwise be conducted."

Second Decision letter - 1st March 1999

17. On 1st March 1999 the Secretary of State wrote the letter setting out the decision which is challenged in these proceedings. Having referred to his earlier decision that he had power to intervene pursuant to section 496 he continues -

"The Local Education Authority's primary complaint was that the disciplinary panel of the governing body had acted unreasonably in not permitting the representative of the Chief Education Officer to remain with the panel throughout its deliberations, and, as a result, not considering any advice he might have given. The Authority pointed to the requirements on governing bodies now set out in paragraphs 23 and 26 of schedule 14 to the 1996 Act.

That formulation of irrationality is noticably different from that advanced by Mr Talbot in his letter of 27th August 1996. The decision letter continues -

The Secretary of State concluded that that complaint was well founded. Although there is some difference in recollection as to the circumstances in which Mr Talbot, the representative of the Chief Education Officer, came to be excluded from the panel's deliberations, it is common ground that he took no part in them. The Secretary of State has concluded on the facts that it is likely that the Chairman of the Panel asked everyone to leave, including in that request Mr Talbot.

The outcome contemplated by paragraphs 23 and 26 (and their predecessors) is that the Chief Education Officer should be present to advise the governing body throughout. The actions of the panel in this case made that impossible. It is the Secretary of State's view that no reasonable governing body, properly appraising itself of the statutory scheme, would have excluded Mr Talbot.

The Secretary of State has also concluded that this action of the governing body amounts to a breach of duty imposed by the statutory scheme to permit the Chief Education Officer to attend and give advice to the Governing Body, and on the Governing Body to consider his advice. He has therefore also decided that he has power to intervene under section 497."

The letter goes on to refer to the representations received and states that the Secretary of State has decided to give directions under section 496. Had he not so decided he would have made an order under section 497.

18. When giving his reasons the Secretary of State recognises the evidence as to the guidance offered to the Disciplinary Panel, including written guidance to which I will later refer, and the dispute as to the circumstances in which Mr Talbot came to withdraw, but the letter continues -

"Nevertheless the Secretary of State regards the Governing Body's failure to permit Mr Talbot to stay and advise them during their deliberations as a serious breach of the scheme provided for by the statute."

The letter then recognises that the conclusion of the Disciplinary Panel on the merits was one which a reasonable disciplinary panel could reach, and that "the governing body's approach to the standard of proof, to the weight to be given to hearsay evidence and to the function of the decision-maker in cases such as this were all perfectly proper." The letter then continues -

"It will, however, often be the case that there are two or more perfectly proper and rational conclusions open to a decision-maker on any issue. Had he been present, Mr Talbot would have been able to point out the alternatives available to the panel in this case. His absence meant that the governing body were deprived of the benefit of such advice.

That observation is of general application. But the Secretary of State is of the view that Mr Talbot's advice would have been particularly valuable on the following questions. First, as to the nature and degree of connection between the alleged victims and Mr McNally. Second, as to the alleged omissions from the NSPCC report. Third, as to the extent which the witnesses called by Mr McNally were able to corroborate his account. Fourth, as to the proper approach to the allegations made by a former pupil who was interviewed by the authors of the NSPCC report but whose identity was not revealed to Mr McNally.

On that ground alone, the Secretary of State would regard it as right to direct a re-hearing. "

The letter then goes on to consider other arguments for and against a re-hearing which for the purposes of this judgment I do not find it necessary to quote.

This application for Judicial Review

19. This application for judicial review was then commenced. In November 1999 Popplewell J gave permission to apply and a series of witness statements were then made which, for the most part, are of little assistance in relation to the issues with which we are concerned. Two points are however worth noting, namely -

(1) in his first witness statement of 24th January 2000 Mr Williams says in paragraph 5 -

" Mr Talbot no longer works for the Authority but I understand from him and believe that he was not present at any of the meetings of the ACPC held prior to the disciplinary hearing for the very reason that he would be expected to give advice to the panel. Consequently he did not attend or participate in meetings held before 25th June 1996."

In a second statement dated 13th June 2000 Mr Williams says of that earlier assertion -

" I believed that this was the position having relied on information passed to me by one of the members attending the committee at that time. However, having been referred to the minutes of the meetings it appears that Mr Talbot did attend a number of meetings held prior to the disciplinary hearing. The minutes record that in 1996 he attended meetings of the Executive Sub-Group on 5th February 1996, 13th March 1996, 13 May 1996 and 12 June 1996, a meeting of the Training Sub-Group held on 9th May 1996 and that he attended the full meetings of the ACPC on 13 March 1996 and 12 June 1996. He also attended a number of meetings held in 1995."

It is not explained how on the earlier occasion Mr Williams came to "understand from him" (i.e. Mr Talbot) that which Mr Williams set out.

In her statement of 8th June 2000 Councillor Longworth states that prior to the first session of the disciplinary panel on 25th June 1996 -

"we received photocopied sheets from the authority's adviser detailing the procedures that we were to follow."

Those sheets were, it is agreed, copies of appendix 2 of the LEA's management handbook which sets out "procedure to be followed at a disciplinary or appeal sub-committee"

In the introduction paragraph iii reads -

"In accordance with section 8(9) of schedule 3 to the Education Reform Act 1988 the Head Teacher (except where he/she is the person concerned) and the Chief Education Officer are entitled to attend all meetings for the purpose of giving advice."

Sections 1 to 5 of appendix 2 deal with the conduct of the hearing, then under the heading "Consideration of the case" section 6, so far as material reads -

"(i) At the conclusion of the hearing the Head Teacher or his/her representative and the employee and his/her representative shall withdraw.

(ii) The person(s) hearing the case shall deliberate in private. ......"

In paragraph 11 of her witness statement Councillor Longworth says -

"Mr Talbot did not object when I asked everyone to leave. He simply got up like everybody else and left the room. If he had asked to stay on the basis that he was entitled to remain during our deliberations we may have taken advice. The printed procedure provided by the LEA clearly stated that the panel were to deliberate in private."

Statutory Materials

20. Section 44(3) of the Education Reform Act 1988 provided that the appointment, suspension and dismissal of staff at a school such as Woodhey School and the application to staff of disciplinary rules and procedures was to be subject to schedule III to that Act. Within schedule III paragraph 6 is concerned with discipline, paragraph 7 is concerned with suspension, and paragraph 8 is concerned with "dismissals, etc.". Within that paragraph the material paragraphs are -

"(1) where the governing body of any school to which section 44 of this Act for the time being applies determine -

(a) that any person employed to work at the school should cease to work there; ....

they shall notify the local education authority concerned in writing of the determination and the reason for it.

(9) The head teacher (except where he is the person concerned) and the chief education officer of the authority shall be entitled to attend, for the purpose of giving advice, all proceedings of the governing body relating to any determination under sub-paragraph (1) above; and the governing body shall consider any advice given by a person entitled to attend such proceedings under this sub-paragraph before making any such determination."

To discover the power of the governing body to delegate to the disciplinary panel its power to act under schedule III it is necessary to turn to the Education (School Government) Regulations 1989 S.I. 1503. Part II of those Regulations deals with proceedings of governing bodies of schools, and within that part Regulation 11(1) provides -

"A head teacher of a school who is not a governor thereof shall be entitled to attend any meeting of the governing body of the school subject, however, to regulation 14(2)."

Regulation 14(2) and the schedule to the Regulations to which it refers, deal with occasions when a member of the governing body, a head teacher or other person present may be required to withdraw, and take no part in a meeting. Much of the schedule is concerned with pecuniary interests and personal relationships, but paragraph 5, so far as relevant, provides -

"(1) subject to sub-paragraph (2), if a person -

(c) having made allegations .... is present at a meeting at which, arising out of those allegations..... disciplinary action ..... against a person employed as a teacher ..... at the school is the subject of consideration

he shall withdraw from the meeting during the discussion or consideration of the matter ....

(2) the provisions of sub-paragraph (1) relating to withdrawal during the discussion or consideration of the matter referred to in sub-paragraph 1(c) shall not have effect -

(a) in relation to the chief education officer or the representative of that officer, where he is such a person as is mentioned above by reason only of sub-paragraph (1)(c); or

(b) in relation to the head teacher where he is exercising his right of attendance under paragraph 8(9) of schedule III to the 1988 Act (which relates to the dismissal of staff);

But they shall not vote on any question with respect to the matter."

Returning to the main body of the Regulations, Regulation 19(2) provides -

"Every member of the governing body of a school, head teacher (if he is not a member of the governing body) and the chief education officer of the local education authority by whom the school is maintained shall be given, at least seven clear days before the date of a meeting -

(a) written notice thereof .... "

Regulation 21 provides -

"Any question whether any person who is not -

(a) a member of the governing body of the school;

(b) a head teacher entitled under regulation 11 to attend meetings of the governing body of the school; or

(c) the clerk to the governing body of the school; should be allowed to attend a meeting of the governing body of the school, shall be determined by that body."

Part III of the regulations deals with delegation of functions and establishment of committees, and within that part Regulation 25(3) provides -

"The functions of the governing body of the school under paragraph 8 schedule III to the 1988 Act (which relates to the dismissal of staff) shall not be delegated to an individual, but may (subject to Regulation 26(5)) be delegated to a committee."

Regulation 26(5)(a) provides -

"A committee to which any functions are delegated under regulation 25(3) shall include not less than three members of the governing body and, where a committee is established to take any initial or preliminary decision as to the dismissal of any member of staff (referred to below in this paragraph as a 'first committee'), no member of that committee shall take part in the proceedings of any committee established to consider any appeal against that decision (referred to below in this paragraph as an 'appeal committee');"

Regulation 26(8) provides -

" a head teacher of a school, whether or not he is a governor thereof shall be entitled to attend any meeting of any committee of the governing body thereof subject, to, however, Regulation 14(2) as applied by paragraph (7) "

Paragraph 7 deals with the case where the teacher's own position is under consideration.

21. Clearly despite the wide words of paragraph 8(9) of schedule III to the 1988 Act there were some circumstances in which either the Chief Education Officer or the Head Teacher could not be merely invited but required to withdraw. If there was any issue about that then, so far as the Chief Education Officer was concerned, that was to be resolved by the governing body. Neither the statute nor the regulations seek to deal in detail with what procedural fairness and the rules of natural justice may require in any given case, which no doubt explains why the appendix to the local education authority handbook went somewhat further.

Was the Disciplinary Panel acting pursuant to paragraph 8?

22. Mr Blake QC, appearing for the appellant before us, submitted that in June 1996 what the panel was required to do and what it did was decide whether the appellant was shown to have committed one or more acts of gross misconduct connected with his employment. Only if he had been shown to have committed such acts would any question of dismissal have arisen, and at that later stage paragraph 8 of schedule 3 to the 1988 Act would have become relevant. That would be when the governing body, or the panel on its behalf, reached the stage of proposing to dismiss. Consequently, he submits, the need to have regard to the provisions of paragraph 8(9) had not yet arisen. Langley J dealt with that point at page 9 of the transcript saying -

"It is apparent both from the resolution which established the committee and the terms of the 1989 regulations that it was established to take an initial decision as to dismissal and to enable the applicant to make representations in that context. In the event the finding that misconduct was not established precluded a decision to dismiss. But it was dismissal that was at stake."

23. I agree with that analysis. It seems clear that if there was no answer to the allegations in the NSPCC report then the governing body would have felt constrained to decide, pursuant to paragraph 8(1), that the appellant should cease to work at the school. So the governing body, pursuant to paragraph 8(7), made arrangements to give the appellant an opportunity to make representations to the disciplinary panel. The proceedings were therefore of the type contemplated by paragraph 8(9).

What was the purpose and effect of paragraph 8(9)?

24. As the judge said, and as was submitted to us, both by Ms. Grey for the respondent and by Mr Straker QC for the LEA, the object of paragraph 8(9) clearly was not only to promote a partnership between the governing body (as the employer) and the LEA (as the paymaster) but also to give the governing body, when confronted with a serious issue such as dismissal, the benefit of potentially valuable advice from two knowledgeable sources, namely the headteacher and the Chief Education Officer. But, that said, it is important to recognise that paragraph 8(9) does no more than state that the headteacher and the chief education officer "shall be entitled to attend for the purpose of giving advice all proceedings of the governing body related to any determination under sub-paragraph (1)". A person entitled to attend is not required to attend, and the circumstances of a particular case may render it unnecessary or even inappropriate for him to do so. As I have already noted, the 1989 Regulations identify occasions when a headteacher or a chief education officer (amongst others) may be required to withdraw, and should there be a problem by regulation 21 those regulations give to the governing body jurisdiction to decide who should be allowed to attend at a meeting of that body. Of course in exercising that jurisdiction the governing body must take account of the provisions of paragraph 8(9), but the result is that even if one looks no further than the statute and the regulations it becomes clear that the headteacher and the chief education officer do not have in every case an unfettered right to be present throughout. If they do not choose to exercise their entitlement, or if for good reason they are excluded, the proceedings remain valid.
25. In the court below it was suggested that the entitlement to be present to give advice was one to be exercised only in the presence of the appellant, but, like the judge, I cannot construe the words of paragraph 8(9) as imposing such a limitation, and it is important to bear in mind they apply to a wide variety of determinations, some of which may be a lot less formal than the procedure with which in this case we are concerned.

Was the appellant deprived of his entitlement?

26. As the Secretary of State recognises, there is a dispute as to the circumstances in which Mr Talbot withdrew. If, as the disciplinary panel has consistently asserted, Councillor Longworth simply asked everyone to leave and Mr Talbot left then, as it seems to me, it is impossible to say that he ever sought to exercise his entitlement to remain. Even if the panel had been alive to the provisions of paragraph 8(9) they may well have concluded that in the circumstances he thought it better to go out with everyone else, or that he had no advice he wished to offer. I reject as untenable the assertion in the second decision letter that by asking everyone to leave the panel made the outcome contemplated by paragraph 8(9) impossible, and indeed it might be thought that Mr Talbot by implication concedes as much by the way in which he has responded when asked more than once over the years what he did when asked to leave. If as he said in his letter of 23rd July 1997 he queried the panel's indication that they wanted to consider the matter alone (even if he did not expressly assert his statutory right to remain) and was told "in no uncertain terms" that the panel did not want him to be present, then at least it could be said that his entitlement to remain was put in issue, but, as the Secretary of State recognises, the version of events set out in that letter is inconsistent with the evidence to the contrary of the disciplinary panel, and the Secretary of State understandably feels in no position to choose between them.
27. It seems that before Langley J the fundamental point may have been to some extent obscured by an argument in relation to waiver. In my judgment that issue never arose, but if I am right in my conclusion that on the evidence it was impossible for the Secretary of State to conclude that the right given to Mr Talbot by paragraph 8(9) was even put in issue, it follows that there was no justification for intervention under either section 496 or 497 of the 1996 Act, and this appeal must therefore succeed.

Natural Justice

28. Even if the Secretary of State could have been satisfied when writing his second decision letter that Mr Talbot did assert his entitlement to remain, or was put in a position where that right was clearly being denied, that would not of itself enable the Secretary of State to conclude, pursuant to section 496(1), that the panel acted unreasonably or, pursuant to section 497, that they failed to discharge a duty imposed on them. As I have already indicated, the panel, as representatives of the governing body, had statutory power in certain circumstances to require the Chief Education Officer or the headteacher to withdraw, and in addition it seems clear to me that in certain circumstances natural justice may make it so inappropriate for the chief education officer or the headteacher to remain that if he does remain and the panel find the misconduct to be proved then an employment tribunal may find any resultant dismissal to have been unfair.
29. I accept that, as both Ms. Grey and Mr Straker submitted we should not impose on employers, especially small employers, the general duty of holding formal proceedings akin to a mini trial before deciding to dismiss. Those who have to take executive decisions very often know the employee concerned, and may even have been involved as a witness or in the investigation of the alleged misconduct (see Slater v Leicestershire A H A [1989] IRLR 16 and Sartor v P & O European Ferries (Felixstowe) Ltd [1992] IRLR 271). But where, as here, a relatively formal procedure is established to consider serious allegations, then, in my judgment, it is incompatible with the principles of natural justice for a local government official who the employee may reasonably regard as a member of the prosecution team, to be with the disciplinary panel when its members withdraw to discuss among themselves whether the misconduct alleged has been proved. If there was advice to be tendered it could have been tendered in the presence of the appellant and his representative by Mr Talbot, either directly or through the lawyer who was presenting the case on behalf of the local authority, and that is illustrated by the examples given by the Secretary of State in his decision letter as to what Mr Talbot might have been able to say. If Mr Talbot had information as to the nature and degree of connection between the alleged victims and the appellant, or as to the alleged omissions from the NSPCC report, I find it difficult to envisage how such information could properly be imparted to the disciplinary panel without also making it available to the appellant and his representative so as to enable them to deal with it. As to the two other matters referred to by the Secretary of State, namely the extent to which the witnesses called by the appellant were able to corroborate his account and the proper approach to the allegations made by a former pupil who was interviewed by the authors of the NSPCC report but whose identity was not revealed to the appellant, it seems to me that those topics must have been fully canvassed by the local government lawyer in his final submissions, and it is difficult to envisage what more Mr Talbot might have been able to add without the requirements of natural justice triggering a right of reply.
30. I am not attempting in this judgment to lay down a universal rule, still less one which fails to give proper weight to the wording of paragraph 8(9) and the statutory purpose which that wording seeks to achieve. Cases coming within the scope of paragraph 8 will vary widely, but in each case natural justice is an important factor, as the local authority by appendix 2 to its management handbook helpfully recognised. In the present case it seems to me that the Secretary of State should have appreciated that the chief education officer had apparently no advice to offer which could not have been much better given in the presence of the appellant and his representative. In those circumstances, despite his entitlement as set out in paragraph 8(9) it was clearly appropriate for the panel to comply with paragraph 6(2) of appendix 2 and "deliberate in private". A responsible chief education officer would not have suggested otherwise.
31. Before Langley J there was some consideration of the possibility of bias. That does not seem to me to be the right approach. Unlike the judge I read appendix 2 to the handbook as an important document, not to be set aside on the basis that the wording is confused or in conflict with the statutory provisions in paragraph 8(9). One of the reasons it is important is that it was given to the members of the panel. Even if it could be shown that Mr Talbot did seek to exercise his entitlement and was prevented by the panel from doing so because they overlooked or misunderstood the requirements of paragraph 8(9), can it really be said that this panel which had been specifically instructed in writing to deliberate in private was acting unreasonably in the sense that it was adopting a course of conduct which no sensible panel acting with due appreciation of its responsibilities would have decided to adopt? For present purposes I do not need to offer a definitive answer to that question, but I find it difficult to accept that failure to comply with a statutory obligation, however excusable, constitutes irrationality for the purposes of section 496 although I accept that it might constitute a failure to discharge a duty for the purposes of section 497.
32. As to Mr Talbot's membership of ACPC I agree with Ms Grey that it is not directly relevant to our consideration of the decision of the Secretary of State because it is not something which the Secretary of State at the relevant time knew or had any reason to discover, but he did know from his correspondence the strength of Mr Talbot's commitments to the view that the disciplinary panel had reached the wrong conclusion. Mr Talbot was of course entitled to his point of view. For all I know he may be right, but fairness does seem to me to dictate that he should not be allowed, not simply to offer professional advice, but in reality to argue in favour of his view on the merits behind closed doors.
33. Our attention was invited by Ms Grey to the decision of Maurice Kay J in R v Hertfordshire County Council ex parte A 10th November 2000 unreported. The case concerned dismissal proceedings against a head teacher following an allegation of indecent assault. In the Administrative Court objection was taken to the disciplinary panel having with them not only a representative of the local authority's Department of Education but also a solicitor from the County Secretary's Department. It was not clear whether any objection was raised before the panel, but the judge held that in any event no unfairness ensued. That well have been right on the facts of that case, but it does not affect my decision as what the Secretary of State ought to have concluded in the case with which we are concerned. In the Hertfordshire case the judge expressed serious doubts as to whether Article 6 of the European Convention on Human Rights has any application to internal disciplinary proceedings. I share those doubts, and although Mr Blake did invite our attention to the Convention that aspect of his argument was curtailed, and I need say no more about it.

Effect of Chief Education Officer's advice?

34. If, contrary to my belief, the Secretary of State was entitled to intervene, either under section 496 or section 497, on the basis that the disciplinary panel had deprived the Chief Education Officer of his entitlement to offer advice which it would have been appropriate for him to offer in private, the question must then have arisen whether it was appropriate for the Secretary of State to exercise his own discretionary powers. It could not be appropriate for him to do so if, as he found, the panel conducted itself properly in every other respect unless there was a realistic possibility that advice properly tendered by the Chief Education Officer would have made a difference. As to that the Secretary of State said -

"It will, however often be the case that there are two or more perfectly proper and rational conclusions open to a decision-maker on any issue. Had he been present, Mr Talbot would have been able to point out the alternatives available to the panel in this case. His absence meant that the Governing Body were deprived of the benefit of such advice."

That is all very well as far as it goes, but it does not really address the issue, and I find it difficult to envisage how any advice offered by Mr Talbot could, in reality, have persuaded this well-qualified panel produce a different result.

Conclusion

35. For all those reasons I would allow the appeal and grant the relief sought. I would quash the decision of 1st March 1999 and restore the panel's decision of 28th June 1996. My conclusions as to the propriety of intervention by the Secretary of State make it unnecessary for me to consider in any detail whether having regard to the delay and other factors it was appropriate to order a re-hearing.

LORD JUSTICE DYSON :

36. I agree that this appeal should be allowed for the reasons given by Kennedy LJ at paragraphs 26 and 27 of his judgment. The Secretary of State was right when he said in his first decision letter of 8 April 1998 that it was not possible to reach a clear understanding of the circumstances in which Mr Talbot retired from the meeting of the governing body. In other words, it was not possible to decide whether, if he had an entitlement to continue to participate in the deliberations of the governors after they had withdrawn to consider the case in private, Mr Talbot had indicated to the governors that he wished to exercise that entitlement. Paragraph 8(9) of Schedule 3 to the Education Act 1988 ("the Act") gave him an entitlement or a right to attend; it did not impose on him an obligation to do so. Unless Mr Talbot had indicated that he wished to attend, it was not open to the Secretary of State to decide (as he impliedy did in his second decision letter) that the governing body prevented him from exercising his entitlement. That is sufficient to dispose of this appeal. But we heard full argument on the question whether paragraph 8(9) did in fact entitle Mr Talbot to retire with the governors to assist them in their determination. It is to that question that I now turn.
37. On the face of it, the language of paragraph 8(9) is plain and unqualified:

"the head teacher….and the chief education officer of the authority shall be entitled to attend, for the purpose of giving advice, all proceedings of the governing body relating to any determination under sub-paragraph (1) above; and the governing body shall consider any advice given by a person entitled to attend such proceedings under this sub-paragraph before making any such determination" (emphasis added).

38. The argument advanced on behalf of the Secretary of State and the authority is quite simple: these words should be given their clear and unambiguous meaning. But as Lord Browne-Wilkinson stated in R v Secretary of State for the Home Department ex parte Pierson [1998] AC 539, 573G, there is a principle of construction which requires the court, in certain cases, to construe general words contained in a statute as being impliedly limited. He said:

"I consider first whether there is any principle of construction which requires the court, in certain cases, to construe general words contained in the statute as being impliedly limited. In my judgment there is such a principle. It is well established that Parliament does not legislate in a vacuum: statutes are drafted on the basis that the ordinary rules and principles of the common law will apply to the express statutory provisions: see Cross on Statutory Interpretation, 3^rd ed. (1995), pp 165-166; Bennion, Statutory Interpretation, 2^nd ed. (1992) p 727, and Maxwell on Interpretation of Statutes, 12^th ed (1969) p 116. As a result, Parliament is presumed not to have intended to change the common law unless it has clearly indicated such intention either expressly or by necessary implication: Cross on Statutory Interpretation, p 166; Bennion, Statutory Interpretation, p 718, and Maxwell on Interpretation of Statutes, p 116. This presumption has been applied in many different fields including the construction of statutory provisions conferring wide powers on the executive.

Where wide powers of decision-making are conferred by statute, it is presumed that Parliament implicitly requires the decision to be made in accordance with the rules of natural justice: Bennion on Statutory Interpretation, p 737. However widely the power is expressed in the statute, it does not authorise that power to be exercised otherwise than in accordance with the rules of natural justice."

39. It is true that many of the cases in which this principle has been applied have been concerned with the exercise of an apparently unlimited statutory power. But the principle is of general application, and in my view it applies equally to an apparently unlimited statutory right. The principle is that Parliament is to be taken not to intend to change the law unless the statutory language employed clearly shows that this is what it intends to do. The rules of natural justice are one of the most important pillars of the common law. There is no express indication in the language of paragraph 8(9) that Parliament intended to water down, still less to disapply altogether, the rules of natural justice in relation to dismissal proceedings, nor is any such intention shown by necessary implication.
40. Thus I would hold that, properly construed, the entitlement to attend given by paragraph 8(9) may only be exercised in accordance with the rules of natural justice. The rules of natural justice are, of course, founded on the principle of fairness. What they require will depend on the facts of the particular case, and the nature of the issue in relation to which the head teacher or chief education officer wishes to give advice and participate in the deliberations of the governing body. In many instances, it will be possible for the chief education officer or head teacher to give private advice to the governing body on issues arising in disciplinary proceedings without infringing the rules of natural justice. Suppose, for example, that an employee admits the alleged act of misconduct, and that he has been given full opportunity to put his case to the governing body as to why he should not be dismissed. In such circumstances, it seems to me that a head teacher or chief education officer would clearly be entitled under paragraph 8(9) to give private advice to the governors as to whether he should be dismissed. But where, for example, the advice that the head teacher or chief education officer wishes to give relates to the question whether the employee has in fact committed the disciplinary offence which, if proved, might lead to his dismissal, then in my view the rules of natural justice require that such advice is given in the presence of the employee.
41. On the facts of this case, the governing body was required to make findings of fact on allegations of a most serious nature, and the chief education officer had assumed the role of a quasi-prosecutor. In these circumstances, the rules of justice required that all advice given by Mr Talbot on the question whether the allegations of fact were proved had to be given in the presence of the appellant. He could not retire with the members of the panel to give advice on that matter in private.
42. I would, therefore, hold that Mr Talbot had no entitlement to attend the proceedings of the governing body in the absence of the appellant to give advice to the governors on the question whether he had been guilty of gross misconduct. I reach this conclusion simply by construing paragraph 8(9) as being subject to the implied limitation that I have described, and without reference to the Education (School Government) Regulations 1989 ("the Regulations"), which in any event post-date the Act. I accept that the Regulations and the Act should, if possible, be construed consistently with each other. I consider that they can be so construed, but for reasons that I shall explain briefly, I do not believe that the Regulations shed any light on the meaning of paragraph 8(9). I should add that none of the counsel who appeared before us based any argument on the regulations.
43. Regulation 14(2) provides that:

"Subject to paragraphs (3) and (4), the provisions of the Schedule hereto shall have effect for the purpose of prescribing the only circumstances and cases in which a member of a governing body, head teacher or other person present at a meeting thereof shall be required to—(a) withdraw from the meeting".

44. Paragraphs (3) and (4) are immaterial for present purposes. Paragraph 5 of the schedule is relevant. So far as material, it provides:

"5(1) Subject to sub-paragraph (2), if a person—

(c) having made allegations…is present at a meeting at which, arising out of those allegations…disciplinary action against…a person employed as a teacher…at the school is the subject of consideration…

he shall withdraw from the meeting during the discussion or consideration of the matter in question and shall not vote on any question with respect thereto.

(2) The provisions of sub-paragraph (1) relating to withdrawal during the discussion or consideration of the matter referred to in sub-paragraph (1)(c) shall not have effect—

(a) in relation to the chief education officer…where he is such a person as is mentioned above by reason only of sub-paragraph (1)(c); or

(b) in relation to the head teacher where he is exercising his right of attendance under paragraph 8(9) of Schedule 3 to the 1988 Act (which relates to the dismissal of staff);

but they shall not vote on any question with respect to the matter."

45. It is true that, as Kennedy LJ points out, regulation 21 provides that any question whether a person who is not a member of the governing body, a head teacher entitled to attend under regulation 11 or the clerk to the body shall be determined by that body. It is, however, clear that this power cannot be exercised so as to override the schedule, since regulation 14(2) states that the provisions of the schedule prescribe the only circumstances and cases in which a head teacher or other person present at a meeting shall be required to withdraw. Thus, the position under the regulations was that, unless Mr Talbot could be required to withdraw under the provisions of the schedule, the governing body was not empowered to require him to withdraw.
46. Paragraph 5(2) of the schedule makes clear that neither a chief education officer who has made allegations within the meaning of paragraph 5(1)(c) nor a head teacher where he is exercising his right of attendance under paragraph 8(9) of Schedule 3 to the Act may be required to withdraw from the meeting. On the face of it, therefore, the regulations did not permit the governing body to require Mr Talbot to withdraw from any part of its meeting, since he had, in effect, made allegations against the appellant in this case.
47. So is it possible to read paragraph 5(2) of the schedule consistently with what I have held to be the true construction of paragraph 8(9) of Schedule 3 to the Act? In my view, it is. A head teacher may not be required to withdraw if he is exercising his right of attendance under paragraph 8(9). Since for the reasons that I have given, he cannot exercise that right except in accordance with the rules of natural justice, paragraph 5(2) of the schedule cannot be relied on to permit a head teacher to attend if to do so would involve a breach of the rules of natural justice. Nor do I consider that paragraph 5(1) and (2) provide that a chief education officer who has made allegations which form the basis of possible disciplinary action is required to attend and participate in the discussions of the governing body where to do so would involve a breach of the rules of natural justice.
48. Thus construed, paragraph 5(2) of the schedule can and should be read consistently with paragraph 8(9) of Schedule 3 to the Act. But this can only be done by reading paragraph 5(2) as subject to an implied limitation which is co-extensive with the implied limitation to which paragraph 8(9) itself is subject. In my judgment, the two provisions should both be construed as subject to such a limitation, and for the same reasons. That is why I do not believe that the regulations shed any light on the meaning of paragraph 8(9).
49. I accept that there may be difficult cases where it is not clear whether the participation by a head teacher or a chief education officer in the private deliberations of the governing body will infringe the rules of natural justice. In such cases, a question will be raised which the body will have to determine under regulation 21.But the principle which the governing body will have to apply in every case is that the entitlement to attend may only be exercised in accordance with the rules of natural justice.
50. I would, therefore, also allow this appeal on the ground that Mr Talbot was not entitled under paragraph 8(9) of Schedule 3 to the Act to give private advice to the governing body on the matters on which he wished to give advice. These matters all went directly and exclusively to the question whether the appellant was guilty of the misconduct that had been alleged against him. The rules of natural justice required that what Mr Talbot had to say on that subject should be said in the presence of the appellant.
51. It follows that, even if (contrary to my view) he was right to conclude that Mr Talbot had sought to exercise his entitlement to attend under paragraph 8(9), the Secretary of State was wrong to exercise his power, whether under section 496 or 497 of the Education Act 1996, since, on the facts of this case, Mr Talbot had no such entitlement.

THE MASTER OF THE ROLLS:

52. I also agree that this appeal should be allowed for the reasons given by Kennedy L.J. in paragraphs 26 and 27 of his judgment. Paragraph 8 of Schedule 3 to the Education Act 1988 is concerned with the dismissal of staff. As such, it is understandable that, having regard to their respective special interests in this matter, both the Headmaster and the Chief Executive Officer should be given a statutory right to attend meetings of the governors concerned with dismissals for the purpose of giving advice. There will, however, be circumstances where it is manifestly inappropriate that the Chief Executive Officer or the Headmaster should take advantage of that right. This case provides an example of such circumstances.
53. The functions of the Disciplinary Sub-Committee of the Governing Body (the Panel) combined the judicial and the administrative. The judicial involved ruling on serious disciplinary charges brought against the appellant. An adverse decision in relation to those charges was likely not merely to result in the appellant's dismissal from his post at Woodhey School, but render it impossible for him to obtain employment as a teacher elsewhere. The administrative task of the Panel was to decide whether the appellant should be dismissed, having regard to their findings in relation to the disciplinary charges.
54. Had the panel found that the charges against the appellant were made out, and reconvened to consider the effect that this should have on the appellant's employment in the school, I would have seen no objection to the Chief Executive Officer being present at that stage. What would have been manifestly contrary to natural justice, having regard to the role he had played in prosecuting the charges against the appellant, would have been his participation in the private deliberations of the Panel as to whether those charges had been made out. On a strict construction, Article 8(9) and Regulation 14(2) of the Education (School Government) Regulations 1989 appeared to give the Chief Executive Officer an absolute right to be p[resent at those deliberations. It may well be, as Dyson L.J. has suggested, that that right must be impliedly restricted by the overriding requirements of natural justice. At all events, it is a right which manifestly the Chief Executive Officer should not have sought to exercise on the facts of this case, for the consequence of exercising it would have been to render an adverse decision of the Panel contrary to natural justice and a decision to dismiss the appellant based upon it unfair.
55. The short answer to this appeal is that the Secretary of State was not able to find that the Chief Executive Officer had asserted a right to retire with the Panel and take part in their deliberations. There was thus no basis for a finding that the Panel had refused to permit him to exercise that right. The issue of the legal implications if they had done so does not arise for decision on this appeal. I believe however, that the judgments in this case will provide adequate guidance as to the appropriate course to follow should similar circumstances arise again.
ORDER:
56. Appeal allowed with costs here and below to be paid by the Secretary of State.
57. Order of Langley J quashed.
(Order does not form part of approved Judgment)