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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> McNally, R (on the application of) v Secretary Of State For Education & Employment [2000] EWHC Admin 380 (27 July 2000)
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Cite as: [2000] EWHC Admin 380
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QUEEN and SECRETARY OF STATE FOR EDUCATION AND EMPLOYMENT Ex Parte ANTHONY JOHN McNALLY [2000] EWHC Admin 380 (27th July, 2000)
CO/2182/1999
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 27th July 2000
THE HON MR JUSTICE LANGLEY
Between:
THE
QUEEN |
Respondent | |
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Ms E. Grey (instructed by The Treasury Solicitor for the Respondent)
Mr T. Straker QC (instructed by Messrs Stanley Monaghan for the Metropolitan Borough of Bury)
Miss. A. Weston (instructed by Messrs Thompsons for the Applicant)
As Approved by the Court
Crown Copyright
INTRODUCTION
This is a difficult case which has rightly given rise to serious concern on the part of the Applicant, a teacher, the Governors of the School (Woodhey High School) at which he worked, the local Education Authority, the Metropolitan Borough of Bury in which the School is situated and the Respondent Secretary of State.
The Applicant has taught at the School for several years. In 1995 an allegation of "inappropriate touching" was made against him by a parent of a boy at the school. The complaint was made on March 3 and the Applicant was suspended from teaching duties at the School. Although the matter was also reported to the police no charges resulted. In May 1995 the Area Child Protection Committee (ACPC) of the local authority commissioned an independent report from an experienced officer of the NSPCC into the allegation and two other similar allegations which had by then been made. The report was dated October 17, 1995. It recommended that disciplinary proceedings should be commenced against the Applicant. The ACPC itself was established in accordance with departmental guidance given to all local authorities exercising social security functions to ensure the establishment of a Committee involving all the main agencies and professionals responsible for helping to protect children from abuse and neglect.
A Special Meeting of the Governors of the School was held on June 19, 1996. The Meeting resolved "to establish in accordance with the Education (School Government) Regulations 1989, Part III, Paragraph 26(5) a panel of three [named] Governors to hear the case against" the Applicant. It also resolved that there should be an Appeals Panel of three other named Governors if required. The reference to Paragraph 26(5) was to the delegation by the Governors to a committee of three of the functions of the governing body under paragraph 8 of Schedule 3 to the Education Reform Act 1988 (The 1988 Act) relating to the dismissal of staff and in particular to a committee "established to take any initial or preliminary decision as to the dismissal of any member of staff".
The hearing before the comittee took place on June 25 and 28 1996. In attendance at the hearing were the Clerk to the Governing body, the Acting Chief Education Officer of the Borough (Mr Talbot) and a solicitor in the Legal Services Division of the Borough who, it seems, was asked to leave after giving some advice on the standard of proof and hearsay evidence. Mr Talbot was also one of the Borough Education Authority representatives on the ACPC and had attended a number of its meetings in 1995 and the first half of 1996.
The case against the Applicant was presented by another solicitor in the Legal Services Division. The Head of Personnel Services at the Education Department gave evidence, as did the Vice-Chair of the ACPC. The author of the NSPCC Report was the main witness. The Report itself was before the Committee. The Applicant was represented by an officer of his trade union. He gave evidence as did 2 teachers and 2 former pupils of the School on his behalf. His case was that the allegations were untrue or exaggerated and there had been a conspiracy against him orchestrated by a particular parent.
There is some dispute as to what happened at the conclusion of the hearing on June 28, 1996. There is no doubt that the committee considered its decision on its own with no one else present and then announced a unanimous decision that no misconduct was found against the Applicant. No reasons were given for that conclusion. Mr Talbot's recollection (first stated in his letter dated July 23, 1997 to an officer at the Department for Education and Employment) is that he was asked to leave when the committee wished to consider its decision, questioned whether it was correct for him to do so but was told his presence was not wanted.
In a recent statement, the Governor who chaired the committee (who is also and was at the time a qualified solicitor) agrees that at the conclusion of the hearing she "asked everyone to leave" so that the committee could "consider the evidence and make their decision". She refers to the belief, based on the printed procedure provided by the local education authority, that the committee were supposed to consider their decision in private. She says Mr Talbot did not object but simply got up and left and had he protested they might have sought advice about his position.
After taking legal advice, the Borough , in letters signed by Mr Talbot, referred the matter to the Secretary of State in August 1996 seeking her intervention under Sections 68 and 99 of the Education Act 1944 (now Sections 496 and 497 of the Education Act 1996). Before he could return to the School, the Applicant was re-suspended from teaching duties and has remained so ever since. Part of the Borough's complaint was that in requiring Mr Talbot to leave while the committee considered its decision, the governing body had acted in breach of paragraph 8 (9) of Schedule 3 to the 1988 Act.
On April 8, 1998, the Department for Education and Employment wrote to the Borough's (new) Chief Education Officer stating 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". The reasons given were that the procedure (that is the exclusion of Mr Talbot from the committee's deliberations) would only have been defective if Mr Talbot had actually wanted to attend and not been allowed to do so whereas the evidence was unclear on what had occurred, and that intervention under the Education Act required the action complained of to be so unreasonable that no sensible governing body acting with due appreciation of its responsibilities would have chosen to take it and on the evidence supplied it was again not possible to reach such a clear view of the matter.
In June 1998 the Borough sought leave to apply for judicial review of this decision of the Secretary of State. The grounds of the application were two-fold. First that paragraph 8(9) of Schedule 3 to the 1988 Act entitled Mr Talbot as acting Chief Education Officer to be present, did not depend on his wish to be so, and the committee was under a duty to consider his advice in reaching their decision. The second ground was that the Secretary of State ought to have taken steps to enable him to evaluate whether the decision was one which no reasonable governing body could have reached.
The Department took advice. It was advised that Mr Talbot had been unlawfully excluded from the committee's deliberations and that the Secretary of State did therefore have power to intervene under Section 496 of the 1996 Act. By letters dated July 21, 1998 the Borough, the Applicant and the Governing Body were informed of that decision and that the Secretary of State would now consider whether or not to exercise the power. Detailed representations on that issue were then invited and received from the Applicant, the Governors and the Borough.
The Secretary of State's decision letter, which gave rise to the present application, is dated March 1, 1999. A copy is annexed to this judgment. In summary, the Secretary of State decided that:
(1) There was power to intervene under both Sections 496 and 497 because Mr Talbot had been asked to leave and "no reasonable governing body, properly appraising itself of the statutory scheme, would have excluded" him,
(2) The power should be exercised to direct the Governing Body to hold a disciplinary hearing before Governors not previously involved in the case, to consider afresh the allegations made against the Applicant.
The reasons for that decision, again in summary, were:
(1) The failure to permit Mr Talbot to stay and advise the committee was a serious breach of the statutory scheme.
(2) The conclusion of the committee on the merits of the case was not one which no reasonable Governing Body could reach. But there were other rational conclusions open to the committee and the committee was deprived of Mr Talbot's advice about them. The letter refers to a number of specific evidential matters on which Mr Talbot's advice would have been "particularly valuable" but stresses that the point is a general one.
(3) Further, the unsatisfactory position at the School in which the Governing Body and the Borough as Local Education Authority had such different views was unlikely to be resolved without a fresh hearing carried out in compliance with the statutory procedures.
(4) Consideration had been given to "two important arguments" put forward by the Applicant, delay and double jeopardy. But the importance of investigating the matter thoroughly and the advantages of a properly conducted fresh hearing meant that it was in the best interests of all parties for such a hearing to take place.
The present application was posted to the Crown Office on May 28, 1999. It seeks orders quashing both the decision that the Secretary of State had power to intervene and the decision to direct a disciplinary re-hearing. Of course in relation to the first of these decisions (made in July 1998) the application is considerably out of time. Nonetheless until (on March 1, 1999) the Secretary of State also decided to exercise the power it can, I think, be said that any application would have been premature and in any event the second decision also raises the same issues. Insofar as necessary, and neither the Secretary of State nor the Borough has pressed any objection, I would grant the Applicant an extension of time to enable him to pursue both matters.
The grounds of the application, in summary, are that the Secretary of State misdirected himself in law as to the effect of paragraph 8(9) of Schedule 3 to the 1988 Act and the decision that the committee had acted unreasonably was one that no reasonable Secretary of State could have reached.
THE EDUCATION ACTS 1944 and 1996
The relevant powers of the Secretary of State are to be found in Sections 496 and 497 of the 1996 Act (a Consolidating Act) which were in force at the time of the relevant decisions. The predecessor sections were Sections 68 and 99 of the 1944 Act. The sections of the 1996 Act provide:
Section 496. Power to prevent unreasonable exercise of functions. (1) 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. General default powers. (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) ...
(b) giving such directions for the purpose of enforcing the performance of the duty as appears to him to be expedient.
The Governing Body of the School is a "body" to which both Sections apply.
The School had a "delegated budget" at the time. In consequence, by Section 44 of the 1988 Act, the procedures for the appointment and dismissal of staff were "subject to Schedule 3" to the Act. In simple terms the effect was that such matters were the immediate responsibility of the Governing Body rather than the local Education Authority. The current provisions (in substance in the same terms) are to be found in paragraphs 23 to 26 of Schedule 14 to the 1996 Act.
Schedule 3
Paragraph 8 provided that:
(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 ....
(7) the governing body of such a school shall make arrangements for affording to any person in respect of whom they propose to make any determination under sub-paragraph (1) above an opportunity of making representations with respect to the action they propose to take including (if he so wishes) oral representations to such person or persons as the governing body may appoint for the purpose ....
(8) The governing body shall also make arrangements for affording to any person in respect of whom they have made such a determination an opportunity of appealing against it ....
(9) The head teacher (except where he is the person concerned) and the chief education officer 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.(my emphases).
The governing body was, as I have stated above, entitled to delegate its functions under paragraph 8 to a committee of three and did so under Paragraph 25(3) and 26(5) of the Education (School Government) Regulations SI 1989 No 1503.
Although Miss Weston submitted that sub-paragraph (9) had no application to the proceedings of the committee because the concern of the committee was only to find whether or not misconduct was established against the applicant and not to dismiss him, that submission is, I think, misconceived. 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.
The wording of sub-paragraph (9) of paragraph 8 to Schedule 3 to the 1988 Act is in broad terms. The chief education officer is entitled to attend all proceedings and the governing body (which must, I think, include its delegate committee) shall consider his advice before making any determination. In the course of submissions the question arose whether the entitlement to be present to give advice was one to be exercised only in the presence of the Applicant so that he or those representing him could have an opportunity to deal with any advice which might be given. Nonetheless I cannot construe the words themselves as imposing such a limitation. Indeed I think the intention was that whilst any determination must be a matter for the decision of the committee the members of it were to be bound to consider the advice of the chief education officer at all stages of their proceedings before arriving at a conclusion. That is not surprising. Not only is the Borough the paymaster (as Miss Weston submitted) but the Chief Education Officer (like the headteacher) may be expected to have valuable experience and concerns which the members of the committee might not. Further it is plainly desirable that the Governing Body and the local Education Authority should, if possible, work in harmony and agreement. Nor do I think this conclusion is affected by submissions that the provision must be construed in accordance with natural justice or Article 6(1) of the European Convention on Human Rights. In the event that any matter arose in the absence of the person the subject of the hearing on which the committee considered he should be given an opportunity to comment it would be open to them to re-convene in his presence and there can be no doubt that the decision itself is the sole responsibility of the committee.
It follows (subject to points about waiver and bias raised by Miss Weston) that in my judgment Mr Talbot was entitled to be present at the deliberations of the committee and it was under a concomitant obligation to consider any advice he might give.
Finally I should record that the Borough Education Authority published a Management Handbook (revised in October 1995) which set out disciplinary procedures for staff "designed to assist Governing Bodies to carry out their duties" under the 1988 Act. It was to this that the Governor who chaired the committee referred in her recent statement. Appendix 2 set out the procedure to be followed at a disciplinary (or appeal) sub-committee. Sub-paragraph (iii) of the Introduction to the Appendix expressly referred to paragraph 8(9) of Schedule 3 to the 1988 Act and the entitlement of the Head Teacher and Chief Education Officer "to attend all procedures for the purpose of giving advice". Paragraph 6 stated:
6(i) At the conclusion of the hearing the Head Teacher ... and the employee ... shall withdraw.
(ii) the persons hearing the case shall deliberate in private ....
The Appendix appears to have been drafted on the basis that it would be the Head Teacher who was presenting the case against the employee. The wording is also, I think, open to confusion which paragraph 8(9) is not.
There are two questions which arise:
(1) Did the Secretary of State have power to intervene under either (or both of) Section 496 and 497 of the 1996 Act.
(2) If he did, was the decision to intervene by ordering a further hearing before a new committee, "irrational" in the recognised sense: see Lord Diplock in Secretary of State for Education v Tameside Metropolitan Borough Council [1977] AC 1014 at page 1064E to 1065B.
In stating the issues in this way I have not overlooked an oral submission made to me by Miss Weston that it was for this court to form its own view on the reasonableness of the decision of the disciplinary committee rather than to review the decision of the Secretary of State on that question.
Whilst I have no difficulty in accepting that where a power depends on the existence of matters of fact it is for the court to decide whether that factual basis for its exercise has been established, expressed in the general terms it was, Miss Weston's submission is in my judgment misconceived. It was for the Secretary of State to be "satisfied" of the matters referred to in Sections 496 and 497.
I have already set out my views on the construction of Paragraph 8(9) of Schedule 3 to the 1988 Act. The Secretary of State, in the decision letter, referred to the "difference in recollection" as to the circumstances in which Mr Talbot came to be excluded from the committee's deliberations but concluded that it was likely that the Chair of the committee asked everyone, including Mr Talbot, to leave and that made it impossible for the sub-Paragraph to be fulfilled. As the factual basis for the conclusion that this gave rise to the powers in section 496 and 497 in my judgment it is unimpeachable. Indeed it reflects what is really common ground.
It does, however, give rise to Miss Weston's submission that by not protesting at the time and directing the committee's attention to the sub-Paragraph, Mr Talbot waived his right to be present. In my judgment that is unrealistic and wrong. The committee had made it plain everyone was to leave. The language of the sub-Paragraph is mandatory. It was not complied with in any way. Compliance, in the opinion of the Secretary of State, is important. That is a rational view on the language of the provision itself apart from the wider considerations which also support it. Even had Mr Talbot had the legislative provisions at his fingertips it would have been a bold step to have made an instant protest. The mere fact that he did as asked cannot in my judgment be properly treated as the waiver of an express statutory right. The circumstances are very different from those which led to a finding of acquiescence in Thomas v University of Bradford (No 2) [1992] 1 All ER 964 (see in particular at page 979).
Miss Weston further submitted that either as a matter of construction of Paragraph 8(9) or generally the Secretary of State should have had in mind that Mr Talbot was "biased" against the Applicant. This submission, as articulated, was put forward as material to both questions but it is convenient to address it here. It was based on the fact that Mr Talbot was a representative of the Education Authority on the ACPC and had attended its meetings prior to the decision to take disciplinary proceedings against the Applicant and also on the tenor of Mr Talbot's letters raising the Borough's concerns with the Secretary of State following the decision of the disciplinary committee. The tenor was said to show him to be committed to the dismissal of the Applicant and to be partisan.
I reject this submission. As Miss Grey submitted, the appropriate redress in the event of bias, if it had been raised and established at the time, would have been to exclude Mr Talbot and permit a substitute to represent the Chief Education Officer. If it had been established after he had attended the committee's deliberations and the outcome had been unfavourable to the applicant then the likelihood must be that the Applicant's remedy would have been an order for a re-hearing. At the time the Secretary of State reached his decision Mr Talbot was in fact no longer employed by the Borough and if the Secretary of State had addressed the matter I cannot see how it could have affected his decision to order a re-hearing. Moreover at the time of the decision the Secretary of State was not in fact aware that Mr Talbot was a representative on the ACPC nor, despite Miss Weston's submissions, do I think there was any reason for him to enquire into the position particularly so as it had not been raised in any of the extensive representations made to him.
I should add that it should not be assumed, nor is it the case, that I think it would have been right to conclude that Mr Talbot was "biased" in any material sense. That he held strong views about the quality of the evidence against the Applicant and the needs of the School in that context is, I think, apparent. But there is nothing at all to suggest that those views were the result of any personal commitment or animosity towards the Applicant rather than a professional objective judgment which he was capable of expressing sensibly and reasonably. I think the Act entitled the Chief Education Officer to be present to give advice on such matters. The committee could accept or reject his advice. The evidence suggests this committee was unlikely to be overborne. Nor do I think Mr Talbot's role as a representative on the ACPC such that it should of itself have led to his exclusion from the deliberations of the committee. Child welfare is an important part of the role of a Chief Education Officer.
There can be and is no doubt that the decision was a difficult one. The factors which the decision letter make it clear were considered by the Secretary of State I have sought to paraphrase under the four numbered sub-paragraphs on page 6 of this judgment.
Unsurprisingly, Miss Weston submitted that factors (1) (2) and (3) had been given greater weight than they merited and factor (4) insufficient weight. Points can certainly be made on each. The utility and likely impact of any advice Mr Talbot could have given can be challenged. There is material from which it could be thought the impasse between Governors and Authority will persist come what may. The delay and double jeopardy for the Applicant are serious. This is not a case, as Miss Weston accepted, where any specific prejudice is asserted by way of missing documentary or oral evidence (or failures of recollection) but unquestionably there is general prejudice to any Applicant who finds himself in the position of this one.
It is not for this court to seek to reach its own conclusion on the balance of those factors. It is not suggested, or Miss Weston has failed to substantiate, that any material factors were left out of consideration or that any of those considered were not proper for consideration. In my judgment there is no basis for contending that the decision, difficult as it was, was irrational. It was reached after obviously anxious consideration of the extensive representations which were made. This ground of attack therefore also fails.
In my judgment therefore this application must be refused and I will hear the parties on any consequent orders they may seek.
© 2000 Crown Copyright