England and Wales High Court (Administrative Court) Decisions

QUEEN v. HEAD TEACHER OF ALPERTON COMMUNITY SCHOOL; GOVERNING BODY OF ALPERTON COMMUNITY SCHOOL; INDEPENDENT APPEAL COMMITTEE OF ALPERTON COMMUNITY SCHOOL and SECRETARY OF STATE FOR EDUCATION AND EMPLOYMENT AT SUIT OF "B" (THROUGH HIS MOTHER AND LITIGATION FRIEND "V R") AND [2001] EWHC Admin 229 (27th March, 2001)

Neutral Citation Number: [2001] EWHC Admin 229

IN THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

Case No CO/1471/2000

CO/2212/2000

and CO/2694/2000

Tuesday 27^th March 2001

B E T W E E N

Defendants

Claimant

B E T W E E N

Defendants

Claimant

B E T W E E N

Defendants

Claimants

MR JUSTICE NEWMAN:

1. There are three applications for judicial review before the court. In ex parte C ("C") the claim is made in connection with the non-admission of the first claimant (an ll year old boy) to the Cardinal Newman Roman Catholic School. His father is the second claimant.

In ex parte B, ("B") the claim is made by a l5 year old boy in connection with his permanent exclusion from Alperton Community School on 2 July 1999.

In ex parte T ("T") the claim is made by a l2 year old boy in connection with his permanent exclusion, for a second time, from Wembley High School on 28 January 2000.

2. Each of the claimants assert that certain provisions of the School Standards and Framework Act 1998 ("the 1998 Act") contravene certain Articles of the ECHR and that the court should make a declaration of incompatibility under the Human Rights Act 1998 (HRA). Each claimant raises discrete grounds of challenge otherwise than under the HRA. These arguments have been advanced by Mr Rawlings. Miss Mountfield has advanced the HRA arguments. Mr Hyams appeared for the first to third defendants in "B" and the first to fourth defendants in "T". Mr Coppel appeared for the first and second defendants in "C". Mr Clive Lewis appeared for the Secretary of State on each of the applications.

"C" - THE FACTS

3. Mr C filled out a Year 7 Application Form on l4 October 1999, for the entry of his son to the Cardinal Newman Catholic Secondary School. At the time the form was filled out he had a copy of the Admissions Policy of the school, which accorded priority to:

"1. Catholic children (for whom this school is first choice) whose application has been supported by a Priest's signature.

Within this category, priority to be given:

(a) to pupils currently attending our partner Junior Schools in the Luton/Dunstable area who have a brother or sister currently on roll at Cardinal Newman School;

(b) to pupils currently attending our partner Junior Schools in the Luton/Dunstable area whose brother or sister previously attended Cardinal Newman School, (with priority to most recent);

(c) to other pupils currently attending our partner Catholic Junior Schools in the Luton/Dunstable area;

(d) to pupils currently attending other Junior Schools in the Luton/Dunstable area who have a brother or sister currently on roll at Cardinal Newman School;

(e) to pupils currently attending other Junior Schools in the Luton/Dunstable area whose brother or sister previously attended Cardinal Newman School (with priority to most recent);

(f) to other pupils currently attending other Junior Schools in the Luton/Dunstable area;

(g) to pupils currently attending Catholic Junior Schools outside the Luton/Dunstable area;

(h) to pupils currently attending other Junior Schools outside the Luton/Dunstable area.

Within this category, if a child attends a specialist SEN school or unit but would otherwise have attended one of our partner Junior Schools if such SEN provision had been available, then that child shall be deemed entitled to be considered equally according to the above criteria.

Within each of the above sub-sections priority will be given to those with more regular attendance at Sunday Mass and active participation in Parish life.

(2) Catholic children for whom this school is first choice whose families are not known to be practising their religion. A copy of the child's Baptismal Certificate must be provided. An interview with a member of the Governing Body or Senior Management staff may be required to establish that parents and children do subscribe fully to the school's Catholic ethos. Within this category, priority to be given in the same order as (a) to (h) above."

Part 2 of the Application Formed contained the following statement, set out in a box, at the commencement of the section:

It is important to complete this section as fully as possible. It will be passed to the named Priest/Minister for signature. If you are unable to identify a Priest/Minister who knows you - don't worry - your application will be considered according to the criteria set out in the Admissions Policy. Please remember, whether your child is currently attending a Catholic Junior School in Luton or not, you must complete and return an application if you want a place for your child at this school.

Beneath the box, after a request for certain particulars, the following appears:

"Name of Priest/Minister in that Parish who knows you:

How long have you attended that parish?

How often does your child attend Saturday Evening/Sunday School?

Weekly 2/3 times a month Once a month

6 times a year Once a year Never

In that group of questions the box "Once a year" was ticked; no other information was given.

4. The application was refused by letter dated 3l January 2000. It stated that:

"All of the places available for September 2000 have been allocated according to the criteria set out in that policy. Although our standard number for entry is 242, the Admissions Committee have offered 249 children places for September. Your application did not meet fully the crtieria in the first category ..."

The letter offered an opportunity to be placed on a shortlist and gave notice of the right of appeal.

5. The application did not meet the criteria because it was not supported by a priest's signature. The combined effect of the terms of the Admissions Policy and the section on the application form in connection with attendance at Mass is, that the priest's confirmation of the regularity of attendance is required, despite the terms of the box on the form which contains the words: " ... If you are unable to identify a Priest/Minister who knows you - don't worry - your application will be considered according to the criteria set out in the Admissions Policy. The identity of the priest does not matter if the parish church is identified. If the parish is not identified the parish of the pupil's existing school will be taken to be the relevant one." C's form was sent to the Rev Thomas Kenny of St Joseph's Church, Luton, but he did not complete Part 3 of the form. Although the position could have been stated with greater clarity the discernible meaning is, that regularity of attendance at Mass is to be disclosed. A priest's confirmation of the attendance will be required but ignorance of the priest's identity does not create a problem because the school can usually ascertain the identity from surrounding circumstances.

6. There was an appeal to an Independent Appeal Panel (IAP) pursuant to Section 94 of the l998 Act. The appeal was heard and determined, between 28 and 30 March 2000, in conjunction with 4l other appeals. By the time of the hearing:

(1) Rev Fr Kenny had written a letter (a reference) requesting " ... that C be admitted to Cardinal Newman in September 2000". The letter also recorded that Mr C had not realised ".... that regular attendance at mass or being actively involved in the Catholic community would be a condition for entry". It referred to certain promises for the future and stated: "I accept his sincere resolution to make amends and to undo any spiritual neglect on his (sic) to ......C". The disclosed regularity of attendance, once a year, obviously called for no confirmation but the application was, by then, supported by a priest's signature.

(2) The school admission number had not been made up because l4 of the 249 offers which had been made had not been taken up. Therefore, only 235 places had been filled against the standard number of 242.

7. The procedure adopted for hearing the 42 appeals is set out in the witness statement of Ronald Geoffrey Dean, who chaired the panel. So far as material to the issues before the court the following facts appear:

* The clerk, Nicholas Powley, advised the panel about the law and in particular "the two stage test" which it had to adopt.

* The appeals were heard individually and the procedure was explained before each hearing began. Parents (including Mr C), were told that there were 40 or more appeals and that the panel would probably not ask the head teacher a lot of questions because the panel would have had an opportunity from earlier appeals of hearing the head teacher's case. C's appeal was heard on the second of the three days.

* The panel were told by the head teacher that 249 places were allocated as against a standard number of 242. The panel were not told at any time that l4 offers had been rejected and that the standard number had not been reached, although, according to Mr Dean the panel specifically asked whether all places had been taken up. Further, Mr Dean records that Mr C asked the head teacher whether all the places allocated by the Admissions Committee had been taken up and was told that "to his knowledge all had accepted".

* After all the appeals had been heard the panel commenced considering each appeal. Mr Dean states:

"We accepted the evidence of the head teacher that to allow any of the appeals would cause prejudice to the efficient education at the Cardinal Newman school".

The panel therefore turned to consider whether in any of the individual appeals "the prejudice to the ... school was nevertheless outweighed by the particular circumstances as it had been presented to us".

* The panel allowed appeals where there appeared to have been an error in the original process, "i.e. where the priest had failed to recognise a pupil who did in fact regularly attend mass. There were l3 such appeals, in each of which it was considered the prejudice to the school was outweighed by the circumstances. In this the panel were influenced by the fact that 7 above the standard number had been admitted by the school.

* Eleven other appeals were allowed because, in some, the pupil had been attending Mass regularly, although at the original consideration there was no supporting evidence to that effect, others because there were extenuating circumstances accepted as making it impractical for the child to attend mass regularly.

* All the other appeals were dismissed. This included all appeals where, at the time of the application, the child had not been attending mass regularly but by the time of the appeal was doing so. On that ground the personal circumstances were held not to outweigh the prejudice to the school.

8. Mr Rawlings submitted that:

(1) the panel had been misled as to the number of pupils admitted to the school;

(2) since the admission number had not been reached, prejudice could not be claimed (see Section 86(5) 1998 Act);

(3) the panel unfairly took into account evidence of prejudice from the head teacher which it had heard in other appeals, which evidence was not disclosed to Mr C. Consequently it adopted the wrong procedure for hearing multiple appeals;

(4) the panel should have concluded that C was in category l(a) at the time of the hearing and therefore entitled to a place;

(5) it was apparent from the panel's decision letter that they had erred in law.

9. Mr Coppel was originally minded to contest the reliability of the claim that the panel had not been told l4 parents had rejected offers (see Skeleton Argument page 7 note l9) but he did not press the point. I can see no basis for doubting the claim that the panel was not informed. Alternatively, he submitted that, since the total number of appellants meant that the number of applicants was well in excess of the maximum number, there was obviously prejudice to the school. Consequently the fact that the panel had been misinformed made no difference. In my judgment the matter is more complicated than Mr Coppel was minded to concede.

10. Section 86(5) of the 1998 Act provides:

"No prejudice shall, however, be taken to arise for the purposes of subsection 3(a) from the admission to a maintained school in a school year of a number of pupils in a relevant group which does not exceed -

(a) the relevant standard number, or

(b) ................ "

11. The two stage test which the panel had to apply requires:

(1) a factual determination that prejudice would arise were the child to be admitted; and

(2) a balancing stage at which the panel exercises its discretion, balancing between the degree of prejudice and the weight of the parental factors, before arriving at a decision. (Code of Practice, paragraph 4.56)

Paragraphs 4.62 - 4.67 of the Code of Practice stipulate for multiple appeals. In paragraph 4.66 the following appears:

"Whether the multiple appeals are heard on a grouped or individual basis, the appeal panel must first decide whether the prejudice would arise from the children's admission. If the panel decides that further children could be admitted without prejudice to the school, it must then decide how many could be admitted and allow appeals up to that number, having regard to the admissions criteria and the other factors in the parents' cases. If prejudice is found, and where there are remaining appellants, the panel must move to the second stage of the appeal."

12. In my judgment it follows:

(1) that until the panel had admitted 7 children according to its application of the admissions criteria, it could not find prejudice;

(2) that the panel did not follow the Code of Practice;

(3) that in its consideration of the two stage test, in each and every case the "degree of prejudice" which it put into the balance was not based upon the true facts.

Further:

(4) since the panel admitted a total of 273 by the two stage test and refused the appeals of some 20 parents by applying the two stage test, one cannot discern how the panel would have dealt with up to 7 of the 20 dismissed appeals had the prejudice been different from that which the panel believed it to be.

13. Despite the valiant efforts of Mr Coppel to persuade me otherwise I have concluded that, on this ground alone, the panel decision must be quashed and the parents' claim for remission must be considered. Consequently the arguments advanced under the HRA arise in connection with the claim, although it has to be observed, that no formal amendment to the grounds has been required because of the joinder of the application with claims where the issues have been formally raised.

14. The other arguments advanced by Mr Rawlings call for the following comment:

(1) The panel should either have heard the admissions' authority's case on prejudice in the presence of all the parents or repeatedly in each case. It appears to have chosen to hear it repeatedly but not always to the same effect. In doing so it ran the danger of unfairness occurring. Having regard to the ambit of the material on prejudice, the case for unfairness having occurred is not cogent and I would not have quashed on this ground alone.

(2) By the date of the panel hearing the application was supported by a priest's signature. The absence of a priest's signature to attendance, "once a year" was neither here nor there. Further, the proposed pattern of regularity and practice of the faith by the family in the future was supported by a priest's signature. The length and regularity of attendance or opportunity for attendance at Mass since the refusal of admission was a matter for the panel to assess and weigh.

(3) C was a catholic child, for whom the school was first choice, whose application had been supported by a priest's signature. He had a brother currently at the school and thus fell into category l(a), but his priority stood to be tested by the criterion of " ... regular attendance at Sunday Mass and active participation in Parish life". The panel were entitled to conclude that such attendance as may have occurred between the date of the refusal by the admissions authority and the hearing of the appeal did not constitute "regular attendance". It was for the panel to decide what weight should be attached to any attendance which took place after refusal and before the appeal. In assessing such attendance the panel were entitled to consider whether it represented a commitment to the catholic faith or a commitment to gain entry to the school. The purpose of the criterion is not to establish a commitment to join the school but the existence of a commitment to the faith.

(4) I reject the submission that the reference to "qualifying measure" in the reasons demonstrates that the panel applied the wrong test. On all the material before the court, allowing for semantic deviations, the correct tests were applied.

Other issues in the case of C

15. Whether C has been properly joined as a claimant?

It is accepted that the question is governed by the statement of Kennedy LJ in JC (CA Transcript 3l July 2000). He stated:

"As to the first issue - of identity - I am satisfied that where a parent wishes to challenge a local education authority or an appeals committee in relation to the handling of a parent's expression of preference as to the school at which his or her child should attend it is the parent and not the child who should mount the challenge. I accept that the child may have a sufficient interest to mount a challenge, and in some exceptional cases it may be appropriate for the child to make the application for permission to apply for judicial review, but normally, as it seems to me, the only reason why the application is made in the name of the child is to obtain legal aid, and to enable the parents to protect themselves in relation to costs. That I regard as an abuse. Our legal system works upon the basis that those who seek a remedy should expose themselves in relation to costs. If the device is used in future, permission to apply for judicial review may well be refused on that ground.

The "exceptional circumstances" relied on by Mr Rawlings were:

(1) the age of C.

(2) his preference for the school.

In my judgment neither are "exceptional" within the meaning of the judgment of Kennedy LJ. He accepted that a child may have a sufficient interest, to which both Mr Rawlings' points go, but the rationale of the judgment is that it is the parents' legal right and its enforcement by the parents is sufficient to protect the child's interest. Exceptional circumstances will arise where the child's interest is not protected by the action of the parents. The application should not have been issued in the name of C. Mr C was joined by amendment in September 2000.

16. There is now an application to re-amend the grounds to add claims by C under the HRA. The Article 6 ECHR arguments depend upon the assertion of the existence of a Convention right exercisable by C, the protection of which is capable of being enjoyed by Mr C in connection with the panel proceedings which were at his suit. The merits of the arguments will have to be considered but the fact that the arguments have been advanced confers some legitimacy upon the joinder of C as a claimant. Since the same arguments were being advanced in the other cases no formal amendment to C's case occurred.

B - THE FACTS

17. The claimant is a l5 year old boy with special educational needs. He was permanently excluded from Alperton Community School ("the school") by the head teacher on 2 July l999. The ground for his exclusion was the alleged assault of another child in the school playground. The decision was upheld by the Governing Body on 2 December 1999 and by the IAP by a letter dated l February 2000.

18. Mr Rawlings challenges the decision to exclude B on two grounds. First, on the ground that the decision and the decision-making process were unfair, irrational and or unlawful. Secondly, on the ground that the panel was not duly constituted in accordance with the 1998 Act and consequently had no jurisdiction to act as an IAP. B now attends another school, is happy and doing well, without any problems and does not desire to be reinstated. He brings these proceedings to "clear his name" because he regards the decision as a "slur for the rest of his educational career". It is submitted that his reputation should be protected by the quashing of the decisions. Alternatively, if the matter is to be remitted, the compatibility of the panel and the Convention must be determined according to the requirements of the HRA. I shall deal with the jurisdiction point first.

19. The panel hearing took place on 2 December 1999. Schedule 18, of the 1998 Act, came into force on l September 1999. The clerk to the panel mistakenly believed that since the Governing Body's decision to exclude ante-dated the coming into force of Schedule l8, the panel hearing was governed by the earlier provisions. As a result the Chairman of the Governing Body of the school, Mr Mehta, purported to act as a member of the panel. Paragraph 2(7) of Schedule 18, of the 1998 Act, provides:

"The following persons are disqualified for membership of an appeal panel -

(a) any member of the authority or of the governing body of the school in question;

(b) any person employed by the authority or the governing body;

(c) any person who has, or at any time has had, any connection with:

(i) the authority or the school or any person within paragraph (b) or

(ii) the pupil in question or the incident leading to his exclusion, of a kind which might reasonably be taken to raise doubts about his ability to act impartially in relation to the Authority, the school or the pupil in question."

20. Mr Hyams submitted that although Mr Mehta was disqualified by statute from being on the panel, the claimant, through the action of his lawyers and mother, acquiesced in his appointment, alternatively waived any right to object, alternatively the court should exercise its discretion to refuse relief by way of judicial review.

21. The facts relied upon by Mr Hyams can be stated shortly. The claimant's legal advisors were informed, in advance of the hearing, that Mr Mehta would be a member of the panel because, although Chairman of the Governing Body, it was believed paragraph 2(7) of Schedule l8 of the 1998 Act did not apply. According to the provisions, which the clerk believed applied, a member of a governing body was empowered to be a member of the panel. Those advising the claimant could have ascertained the correct legal position but obviously failed to do so. According to the claimant's mother some consideration was given to objecting to Mr Mehta when the hearing commenced, but she did not wish to cause delay. It is not entirely clear what the basis for objection would have been. It seems likely to have been on the ground of Mr Mehta's "proximity" to the school rather than his statutory disqualification. An objection based solely on his membership of the governing body would have had little chance of success because the former provisions empowered him to be on the panel.

22. It is submitted that in the event there has been no prejudice. Subject to the panel proceedings being compatible with the Convention, no case of bias lack of impartiality or independence can be made out. Further, he submitted that the principle that a right to challenge for bias can be waived is well established. Yet further, Mr Hyams submitted there is some indication that a statutory disqualification is capable of being waived. He relied upon a reference in De Smith Woolf & Jowell, Judicial Review of Administrative Action (1995 5 Ed) at paragraph 12-036:

"Where the disqualification is statutory, it may be waived if it is merely declaratory of a common law disqualification. In what circumstances a new statutory disqualification is capable of being waived is not entirely clear, but even if the decision is to be regarded as void the court, in deciding whether to grant the particular remedy sought, may be entitled in the discretion to take account of the delay, acquiescence or misconduct of the party impugning the decision."

The note to the text cites R v Williams ex parte Phillips [1914] 1 KB 608. Mr Hyams submitted that the ratio of the case covered the facts of the instant case. Mr Williams was one of the justices of the peace who convicted Mr Phillips of an offence under S.4 Bread Act 1836. Section 15 of the Bread Act provided that no person who " ... shall be concerned in the business of .... a baker shall be capable or shall be allowed to act as a justice of the peace under the Act". Any baker who did so committed an offence. The court held that the affidavit in support of certorari did not state that at the date of the hearing the applicant was without knowledge of the facts alleged to disqualify one of the justices. As a result he was not entitled to claim relief as of right (ex debito justitiae). In my judgment two important distinctions between it and the instant case have to be noted.

(1) the objection to Mr Williams was a special objection to his participation in that particular case on the ground provided by statute. The objection did not affect the validity of Mr Williams' appointment and status as a justice of the peace.

(2) in the instant case neither the claimant nor his advisors knew that Mr Mehta was ineligible.

23. In my judgment the argument fails to demonstrate that conduct amounting to acquiescence can confer legal status on a person to act as a member of a statutory body. The panel, being "a creature of statute", is without jurisdiction unless it has been duly constituted in accordance with the statute. No alternative character can be found for the "panel" based upon the consent of the parties, for neither the claimant nor the Governing Body submitted to the jurisdiction of "the panel" as a non-statutory body, but in the mistaken belief that it comprised a statutory IAP. In my judgment no question of discretion arises. The claimant is entitled to relief as of right. If it had required discretion I would unhesitatingly have granted it, for I would not have visited the error of the lawyers upon the claimant.

24. Mr Rawlings has submitted that it would be appropriate for the court to remit the hearing to a panel duly constituted under the 1998 Act. As a result he submitted the court should rule upon the compatibility of IAP proceedings with the ECHR. I have heard extensive submissions from Miss Mountfield on the HRA points. I have already pointed out that B does not wish to be reinstated and thus does not require the panel to decide whether or not he should be reinstated. It could only be if B was entitled to "clear his name" and the proceedings of the panel were apt to achieve that end that a basis for remitting the matter would exist.

Unfairness, Irrationality and Illegality

25. B was initially excluded for five days but thereafter was permanently excluded from 5 July 1999. The exclusion was said to be for a "continuous pattern" of bullying and physical violence directed at others" and "refusal to accept being wrong despite persistent breaches of the school's behaviour code". Mr Rawlings submitted that the charges or allegations were imprecise and as a result the claimant and his mother were not in a position to understand whether he was being excluded for participating in the incident on 23 June or "following a review of his file and past incidents".

26. In developing the submissions Mr Rawlings submitted:

(1) there had been a failure to call witnesses, and

(2) the wrong standard of proof had been applied.

The head teacher wrote (2.7.99) stating:

"Following a review of .... (the) file and a further consideration of the incident ... I have taken the decision to exclude him permanently ... (he) is being permanently excluded because of a continuing pattern ... evident from his file .... "

The previous letter (24.6.99) had given notice of the alleged attack on 24.6.99. Statements were requested and were supplied. Two pupils gave a statement to the effect that C was involved in the attack. B, a boy who admitted striking the victim, gave evidence to the effect that the claimant was not involved. As to that the Governing Body concluded that "taking his evidence at face value" it "was not persuaded by it". Secondly, that "on balance of probabilities" the claimant "was guilty of striking the blow to the victim's mouth". The Governing Body also considered the past record. It is suggested that since no specific opportunity was given to the claimant to submit that the last event was not in itself sufficiently serious to warrant exclusion unfairness occurred. I disagree. The nature of the case was clear and the Governing Body reached its conclusion because it was satisfied, having regard to the incident and the record, that permanent exclusion was an "inevitable" but proper response.

27. The IAP decision is challenged on the grounds that the inconsistency between witnesses and the confession of B did not leave it open to them to conclude that the claimant participated in the attack. The record shows that counsel for the parents (Ms Weston) made extensive representations, including submissions about the witnesses and the evidence. The IAP concluded that it believed, on the evidence before it, that the claimant was involved in the reported incident and that the incident was properly investigated. There was no requirement to call the victim and considerations which pointed against it. I doubt that had he been called the alleged mistaken identification by him of the claimant would have been advanced or clarified. The evidence of B exculpating the claimant was not ignored and was capable of being treated with reserve.

28. Mr Hyams submitted that the mere reference by the Governing Body to the "balance of probabilities" was not, in itself, sufficient to demonstrate that the correct standard had not been applied. He submitted that the required standard, "distinctly more probable", was only a variant of the balance of probabilities test. It is not contended that the IAP hearing is flawed on a similar ground. In my judgment there was sufficient evidence (as the appeal panel found) to conclude that it was distinctly more probable that the claimant was involved but for the reason I have given, the appeal hearing must be quashed. The question remains whether the Governing Body's decision should be allowed to stand. It has to be said that there is nothing to indicate that the Governing Body did have in mind the precise terms of the standard of proof to be applied and I would have expected it to have referred to the distinction between the "ordinary" balance of probabilities test and the higher standard of "distinctly more probable", had they been instructed to apply the correct test. Having regard to the inconsistencies and points which can be made about the witnesses, I do not consider it would be right for this court to assume the Governing Body would have been bound to come to the same conclusion. Since there is no IAP decision which can stand to cure the position, in my judgment, the Governing Body's decision should be quashed.

T - THE FACTS

29. T was excluded from school following a warning for misbehaviour on 5 December 1999 and for misconduct on 24 January 2000 in that it was alleged that he had attempted to attack a fellow pupil and had punched and pulled the hair of a teacher who had intervened in the situation. Two other teachers were present for all or part of the incident, as were the pupils. The pupil alleged to have been attacked by the claimant was a pupil who had special needs and no statement was taken from that pupil, but statements were taken from the teachers and from other pupils and from the claimant. It is not in dispute that very serious misconduct being in case, the standard of proof which was required was not that of the ordinary balance of probabilities. It had to be shown that it was distinctly more probable than not that the claimant was involved in the incident (see Brooke LJ in R v Headteacher and Independent Appeal Committee of Dunraven School ex parte B (2000) ELR 156.

30. Mr Rawlings submitted that fairness required that the claimant's mother should have been given an opportunity to question the teacher, whom it is said the claimant attacked, or the other two teachers who gave witness evidence on the basis of which the claimant was permanently excluded from the school. The claimant's case involved the contention that he had been provoked by the alleged victim and it was submitted that inadequate scrutiny had been given to this aspect of the case.

31. It is not the law that in all cases where the facts underlying an exclusion from a school are disputed it is necessary to call the witnesses of fact so as to enable the excluded pupil's representative to question those witnesses. The fundamental principle which was upheld in the case of Dunraven was that the pupil, through his or her parent, had a right to be heard. For that to be worthwhile the parent had to be supplied with the material and statements, not that the witnesses themselves should be available to be questioned. It is to be noted that the Department of Education and Employment Guidance (Circular l0/99) does not require the calling of witnesses. All the relevant information was disclosed to the claimant's mother before the hearing and no particular feature of the case has been drawn to my attention which compels one to the conclusion that it was necessary in the interest of fairness for the IAP to permit cross examination of the teachers involved. The IAP had before them an evidential basis for concluding as it did, and I am simply not persuaded that any unfairness appears.

Other Issues

32. Submissions have been made under Section l9 of the Education Act l996 (as amended) and under the ECHR and Article 2 of Protocol l to the Convention. Further, it has been submitted that Section 87 of the l998 Act is incompatible with the claimant's rights under Article 2 Protocol l and the Convention.

The HRA arguments as they affect each of the cases

33. In C's case it is alleged that the provisions governing admissions appeals in the 1998 Act create actual or apparent bias or unfairness because the Governing Body or LEA appoint, train and pay panel members, and they have no security of tenure. There is a request for declaratory relief to the effect that the appeal panel is not "an independent and impartial tribunal" as required by Article 6 of ECHR. Article 6 is said to be applicable because there is a civil right in English law to receive an education suitable to one's needs and/or a right to education is a Convention right. In the cases of B and T, other arguments are advanced for the applicability of Article 6. In each it is said, there having been an exclusion on the ground of conduct amounting to an allegation of a criminal offence, a civil right to a reputation and/or a criminal charge are involved and therefore Article 6 applies. In the case of B, whilst it is submitted that the right to an education suitable to one's needs exists, it is accepted that B is receiving an education suitable to his needs. To the contrary, in the case of T, it is submitted that

* since he is only receiving ten hours home tuition each week, he is not receiving an education which is suitable to his needs;

* that the LEA is in breach of its duty under Section l9 of the Education Act;

* that his Convention right to an education has been breached;

* that Article l4 of the Convention has been contravened by reason of discrimination against him on grounds of race; and

* that Section 87 of the 1998 Act contravenes the Convention.

34. At the request of counsel for the claimants (Miss Mountfield) and for the Secretary of State, the court has been asked to rule upon the detailed arguments which have been advanced under the HRA and in particular in relation to the incompatibility of the admissions and exclusion proceedings provided for in the 1998 Act, even if the court was minded not to grant relief by way of remission, which would be the event giving rise to the direct applicability of the HRA to these events. Plainly if the provisions governing the admissions and exclusion panel proceedings in the 1998 Act are, as alleged, incompatible with the Convention, no order for remission could be made without the court giving full consideration as to how the future operation of the Act can be provided for. I must therefore deal with all the principal arguments which have been raised.

35. It will be convenient to list them and thereafter deal with them in turn:

(1) Whether an IAP must comply with Article 6 of the Convention and if so whether the procedures set out in Schedule l8 of the 1998 Act comply with Article 6.

(2) Consideration of (1) requires the court to determine whether a right to education is a civil right in English law (applicable to the three cases); whether the IAP determines a civil right to a reputation (relevant to case of B and case of T); whether the IAP proceedings in respect of the case of B and T involved proceedings in connection with a criminal charge.

(3) If either a civil right or a criminal charge are in issue, whether the IAP has the requisite level of institutional independence and impartiality to satisfy Article 6 of the Convention.

(4) If it does not, whether the lack of independence or impartiality can be cured by way of judicial review.

(5) If not, whether the court can resolve the position other than by making a declaration of incompatibility.

In the case of T:

(6) Whether Section 19 of the Education Act 1996 has been breached. This is an interpretation argument to be carried out having regard to Sections 2 and 3 of the Human Rights Act.

(7) Whether the provisions of Section 87 of the 1998 Act contravene the Convention.

Civil right to receive an education

The Statutory Framework

36. The Education Act 1996 ("EA") provides the framework for state education. The Secretary of State is under a duty to promote education (Section l0 EA) and to exercise his powers relating to bodies in receipt of public funds and which have responsibility for securing school provision "for the purpose of promoting primary, secondary and further education" (Section ll EA). A local education authority (LEA) is to contribute to the development of the community by "securing that sufficient primary education, secondary education and further education are available to meet the needs of the population of their area" (Section 13 EA). It also has a duty to secure that "sufficient schools" for providing such education "are available for their area" (see Section 14 EA). Section l9 of the EA provides that a LEA shall make arrangements for the provision of suitable education at school or otherwise than at school for children of compulsory school age who by reason of illness, exclusion from school or otherwise, may not receive suitable education unless such arrangements were made. Suitable education is defined as "efficient education having regard to his age, ability and aptitude and to any special educational needs that he may have" (Section 19(6) EA).

The 1998 Act

37. Part 3 of the 1998 Act sets out the provisions for school admissions.

Section 84 provides that the Secretary of State has the power to and has issued a code of practice in respect of admission arrangements.

Section 86(1) provides:

"A local education authority shall make arrangements for enabling the parent of a child in the area of the authority -

(a) to express a preference as to the school at which he wishes education to be provided for his child in the exercise of the authority's functions, and

(b) to give reasons for his preference.

(2) Subject to sub-sections (3) and (6) and Section 87 (children excluded from two or more schools), a local education authority and the governing body of a maintained school shall comply with any preference expressed in accordance with arrangements made under sub-section (1)."

Section 87(1) provides:

"The duty imposed by Section 86(2) does not apply in the case of a child to whom sub-section (2) below applies.

Sub-section (2) states:

"Where a child has been permanently excluded from two or more schools, this sub-section applies to him during the period of two years beginning with the date on which the latest of those exclusions took effect.

Section 94 deals with admission appeals. Sub-sections (1) and (2) provide:

(1) "A local education authority shall make arrangements for enabling the parents of a child to appeal against -

(a) any decision made by or on behalf of the authority as to the school at which education is to be provided for the child in the exercise of the authority's functions, other than a decision leading to or embodied in the Direction under Section 96 (Directions for Admission), and

(b) in the case of a community or voluntary controlled school maintained by the authority, any decision made by or on behalf of the governing body refusing the child admission to the school.

(2) The governing body of a foundation or voluntary aided school shall make arrangements for enabling the parents of a child to appeal against any decision made by or on behalf of the governing body refusing the child admission to the school."

38. Section 94(5) provides that Schedule 24 shall have effect in relation to the making and hearing of appeals. In its material part Schedule 24 provides that:

(1) The appeal panel is to consist of three or five members appointed by the authority from persons who are eligible to be lay members and persons who have experience in education.

(2) Certain persons are disqualified from membership, i.e.

(i) any member of whichever of the LEA or the governing body is the admission body of the school in question;

(ii) any person employed by the authority or the governing body (other than a person employed as a teacher);

(iii) "any person who has, or at any time has had, any connection with the authority or the school .... of a kind which might reasonably be taken to raise doubts about his ability to act impartially in relation to the authority or the school";

(iv) any person who took the decision or participated in the discussion;

(v) any person who is a teacher at the school.

(3) The procedure and the grounds upon which an appeal may be allowed are set out in paragraphs 8 and 12 of Schedule 24.

(4) Appellants are to be allowed the opportunity to appear and make oral representations and to be represented or assisted by a friend.

(5) Paragraph 4 provides for the payment of allowances to panel members.

39. Although the duty in Section 86(2) does not apply where a child has been the subject of two permanent exclusions, in such circumstances a child may be admitted to a school, if the appropriate authority agrees, or the LEA direct that a maintained school admit a child who has been refused or excluded from all the schools within a reasonable distance (Section 96), or the LEA may provide education otherwise than at a school under Section l9 of EA.

Exclusions

40. Section 61 confers powers on the governing body and the head teacher of maintained schools to regulate discipline within the school. Sub-section 4 provides:

"The head teacher shall determine measures (which may include the making of rules and provision for enforcing them) to be taken with a view to -

(a) promoting, among pupils, self discipline and proper regard for authority;

(b) encouraging good behaviour and respect for others on the part of pupils and, in particular, preventing all forms of bullying among pupils;

(c) securing that the standard of behaviour of pupils is acceptable; and

(d) otherwise regulating the conduct of pupils."

Sub-section 6 provides:

"The standard of behaviour which is to be regarded as acceptable at the school shall be determined by the head teacher, so far as it is not determined by the governing body".

Section 67 provides that:

"A local authority shall make arrangements for enabling the relevant person to appeal against any decision of the governing body under Section 66 not to reinstate a pupil who has been permanently excluded from a school maintained by the authority."

41. Schedule 18 to the Act provides for the making or hearing of appeals and so far as material provides:

"(1) the appeal panel is to consist of three or five members appointed by the authority from persons who are eligible to be lay members and persons who have experience in education;

(2) certain persons are disqualified from membership, i.e.

(i) any member of the authority or the governing body of the school in question;

(ii) any person employed by the authority or the governing body (other than a person employed as a teacher);

(iii) any person who has, or at any time has had, any connection with ... (1) the authority or the school ... or (2) the pupil in question or the incident leading to his exclusion of a kind which might reasonably be taken to raise doubts about his ability to act impartially in relation to the authority, the school or the pupil in question.

(3) Appellants are to be allowed the opportunity to appear and make oral representations and to be represented or assisted by a friend. The governing body may also be represented and may make written and oral representations.

(4) The head teacher and the local education authority may make written representations and a local education authority officer may appear and make representations.

(5) Paragraph 3 of the schedule provides for the payment of allowances to panel members.

Submissions

42. Miss Mountfield submitted that the combined effect of EA 1996 and the 1998 Act is to create a civil right in English law to receive an education suitable to one's needs. Recognising that the statutory provisions upon which she relied had the hallmark of a public law right, as opposed to a civil law right, she submitted that in this instance there was an overlap and that a civil right and a public law right existed simultaneously. Further, insofar as it might be argued that the provisions upon which she relied set up a framework of a disciplinary code and gave rise to disciplinary charges and matters, this was not conclusive, because disciplinary matters and disciplinary charges can determine civil rights. She cited Gaygusuz v Austria 1996 23 EHRR 364 and Le Compte v Belgium 1983 5 EHRR 533. The cases demonstrate that in the determination of questions not directly involving a civil right, a civil right or a Convention right may nevertheless be engaged. In Gaygusuz the right to emergency assistance provided for in legislation was held to be "a pecuniary right for the purposes of Article l of Protocol No l". In Le Compte the suspensions ordered by a disciplinary body were held to deprive the doctors of "their right to practise medicine". In each case it was concluded that the result of the determination was directly decisive for the right in question.

43. Miss Mountfield submitted, relying upon Phelps v Hillingdon LBC [2000] 3 WLR 776, that since schools can be sued in tort for the negligent failure to identify and provide for educational needs, it must now be taken that an underlying private law right to education exists because that must have been the right being enforced. I disagree. The right held by the House of Lords to be capable of enforcement in Phelps was the common law right to sue for damages where, according to common law, a nexus existed sufficient to give rise to the existence of a duty of care on the part of a provider of professional educational services, even though the provision of services had occurred in the course of the performance of statutory duty. The statute was held not to give rise to a private or civil law right (see Lord Slynn 289 G-H), but the facts gave rise to a duty of care at common law. I regard Phelps as authority against the submission that a private law right to an education exists in English law. In R v Richmond Borough Council ex parte JC (CA 31 July 2000) the court had to consider, whether a father's right to express a preference as to the school at which his son attended, was a civil right. Putting aside the difficulty that the right belonged to the father and not the child, Kennedy LJ stated, citing Simpson v United Kingdom (1989) 64 DR 188, that the parents' rights were not "civil rights". Contrary to the submission of Miss Mountfield, that in the light of the case of Phelps the case of ex parte JC, must be regarded as wrong, I have no doubt the decision is correct.

44. I must now examine the argument based upon Article 2 Protocol l of the Convention in accordance with Section 2 HRA. Miss Mountfield went to a number of cases to illuminate the Convention jurisprudence, including:

Belgian Linguistics No.2 (1968) 1 EHRR 252

Yanasik v Turkey (1993) 74 DR 14

Simpson v UK (1989) 64 DR 188

Hanuman v UK [2000] ELR 685

She submitted that the picture which emerged was unclear. She submitted that the jurisprudence could be regarded as "out of date" and behind the advances made in English law on the recognition of "rights", for example in Phelps, and in Fitzpatrick v Sterling Housing Association [1999] 3 WLR 1113 where a stable gay partnership had been recognised as a family relationship. As I read Fitzpatrick the House of Lords held that the words "tenant's family" in paragraph 3(1) of Schedule l to the Rent Act l977 had to be interpreted having regard to changes in social habits, opinions and associations. The meaning of "spouse" in paragraph 2(2) was not susceptible to the wider interpretation sought. I do not regard it as a decision which extends "rights" to persons but a decision which extends the benefits of statutory protection in the social sphere where the words of the statute are apt to be interpreted in the light of current social conditions.

45. Simpson is flatly against Article 2 of Protocol l being in the nature of a civil right. The Commission held:

"Although the notion of a civil right under this provision is autonomous of any domestic law definitions, the Commission consider that for the purposes of the domestic law in question and the Convention, the right not to be denied elementary education falls, in the circumstances of the present case, squarely within the domain of public law, having no private law analogy and no repercussions on private rights or obligations."

The circumstances of the case were an allegation that the special educational needs of a handicapped child had not been met. The Decision also set out the three questions to which the complaint gave rise, being:

" - whether the case gives rise to a "contestation" (dispute) concerning a right;

- if so, whether the right at issue is civil in character;

- if so, whether there has been compliance with Article 6 para l of the Convention."

It answered the first question yes, and the second no.

46. Although Miss Mountfield suggested the authority of Simpson was weakened by age, it has to be said that it followed the Belgian Linguistics judgment given in July l968 upon which Miss Mountfield placed considerable weight. She submitted that the Belgian Linguistics case showed that education is a positive right, despite negative formulation in the Protocol. But it is not enough for her to establish that Article 2 of the Protocol enshrines a right, for it undoubtedly does, but to establish the content of the right as being engaged by the complaint made in this case. As I read the judgment in Belgian Linguistics, the court characterised the right as giving rise to the requirement on the part of the Contracting Parties to the Protocol to establish a right of access to educational institutions existing at any given time, but excluded from its content a right to education of any particular type or to any particular level. The rationale for the content of the right being so defined is that the scope and content of such education as is available, is for the State to determine. In Belgian Linguistics certain children had by a legislative measure been precluded from access to French speaking schools, solely upon the basis of the residence of their parents. As a result, it was held there had been discrimination, which had led to a failure to secure the right to education which was enshrined in Article 2 of the Protocol. In my judgment the question, whether the right so enshrined was a civil right or not, was not before the court, the court's definition of its content leads to the conclusion than that it fell, as the Commission held in Simpson, within the domain of public law. As the argument in this case demonstrates the desired goal of the claimant is to establish that the type of education being provided is not suitable. That is the very area, which in accordance with public law principle, has been held to be for the Contracting Parties to determine and to be outside the scope of the Convention right.

47. Yanasik v Turkey (1993) 74 DR 14, although concerned with advanced education, clearly points in the same direction. The Commission held:

" ... the Commission considers that in principle the right to education cannot be allowed to impinge on the State's right to regulate education ... and that this right does not exclude all disciplinary penalties. It would not be contrary to Article 2 of Protocol No.l for pupils to be suspended or expelled, provided that the national regulations did not prevent them from enrolling in another establishment in order to further their studies."

The more recent case of Hanuman v UK 2000 DR 685, is briefly reported and its exact reasoning cannot be discerned, but it was held that the claimants' rejection by the Academic Appeal Committee of the University of East Anglia did not involve the determination of a civil right or of a criminal charge.

48. It follows that I reject the submission that there exists in English law a civil right to an education suitable to one's needs.

Right to Reputation

49. It is submitted that the fact of expulsion affects the reputation of a child for the remainder of the child's school career. In the case of B and T serious allegations amounting to criminal conduct were alleged and found to be proved. In R v Headteacher and Independent Appeal Committee of Dunraven School ex parte B [2000] ELR 156 at 208, Brooke LJ observed:

"I can understand the reasons why schools wish to proceed with exclusion proceedings in serious cases of theft without waiting for the outcome of police inquiries. But if they do, it is incumbent on them to follow the rules of fair process prescribed by the courts before they taint a pupil with the stigma of a finding of theft and the potentially devastating consequences of a permanent exclusion for theft."

In E v Governors of the London Oratory School ex parte Regis (1989) 19 Fam Law 67, McCullough J observed:

"It is as much a blot on one's record to have been expelled from school as to have been sent down from University."

I agree with both observations; a finding of misconduct amounting to a serious breach of discipline affects the reputation of a child, but the issue is whether an IAP, hearing an exclusion appeal, determines the civil right to a reputation. The argument requires a little refinement. To speak of "a right to a reputation" or a "right to a fair reputation" is not apt to reflect the content of the right. A person's reputation is not to be diminished wrongfully or unfairly, and to achieve that end the law must provide adequate protection.. In a free and democratic society, a reputation may be affected and be diminished in a number of different ways. The content of the right is to be found in the remedies available to protect reputation. In disciplinary proceedings which can diminish reputation in the manner described by Brooke LJ and McCullough LJ, the protection is provided by the level of procedural fairness which must be adopted in the proceedings. Where reputation is publicly and wrongfully attacked, there is the right to sue for damages for defamation.

50. The Convention jurisprudence is exemplified by

Helmers v Sweden (1993) 15 EHRR 285

Golder v UK (1975) 1 EHRR 524

Fayed v UK (1994) 18 EHRR 393

One can start with Golder. A prisoner accused of participating in a serious disturbance at a prison was refused permission to consult a solicitor with a view to instituting libel proceedings against the prison officer who made the accusation. It was held that the hindrance violated Article 6 of the Convention which included, as part of its basic content, the right of access to the court. The right identified as being a "civil right", was the applicant's right to take action before an English court in connection with his reputation.

51. In Helmers, the applicant complained of not having been selected for an academic post at a university. A report was made which the applicant considered summarised his complaints in a way which was defamatory. He took proceedings for defamation. At first instance he lost. In the Court of Appeal he was denied an oral hearing. The ECHR held that the "civil character of the right to enjoy a good reputation was not disputed before the Court and follows from established case law". The court said no more but referred to the case of Golder. In my judgment the reference to " ... the right to enjoy a good reputation" is significant and apt. If reflects the content as being based on the provision of legal remedies for its enjoyment. The denial of an oral hearing was a clear denial of adequate protection. The right in play was the right to take action to protect a reputation and thus to secure its enjoyment. In Helmers the denial was in the course of proceedings before a court whose determination was decisive of the right whether such reputation to which he was entitled could be enjoyed.

52. Fayed arose out of a report by Inspectors appointed to investigate the affairs of the House of Fraser and to report on the allegations of serious misconduct against the Fayeds. The Inspectors made findings of dishonesty. The UK Government did not dispute the existence and "civil" character of the right under English law to a good reputation (see paragraph 58) but argued that the findings were not dispositive of anything. It accepted that the findings damaged the Fayeds' reputations. The ECHR held that:

(1) defamation proceedings against the Observer would not have protected them against the findings of the Inspectors who, in any action against them could claim either absolute or qualified privilege;

(2) although a civil right was in issue, in order for entitlement under Article 6(1) to be available the "result of the proceedings must be directly decisive of such right or obligation, and merely tenuous connections or remote consequences were insufficient to bring the Article into play".

53. Miss Mountfield submitted that it was apparent from the judgment that the public interest in the results of an investigative tribunal being available to the public, weighed heavily with the ECHR and she suggested that the instant cases did not raise an equivalent public interest factor. In my judgment the tension between the public interest in informing the public of the results of the investigation and the damage caused to the reputation of the Fayeds illustrates the working out of a fundamental aspect of the right, namely the extent of protection to be accorded to reputation will vary according to the weight which has to be given to countervailing interests.

The court stated:

"62. The applicants alleged that the making and publication of the Inspectors' report on their takeover of HOF had a severely damaging effect on their good reputation. They claimed that the Inspectors effectively determined their civil right to honour and reputation without any of the procedural guarantees of Article 6(l) of the Convention being respected.

...........

80. The applicants pointed out that the Inspectors' report containing findings of dishonesty was published, with the benefit of protection from liability in defamation, even though the authorities decided that there was no cause for instituting either criminal or civil proceedings. The Court has also taken note of the evidence submitted by the applicants showing that there is a body of informed opinion in the United Kingdom which believes that these consequences of the system enacted by Parliament in the Companies Act l985 are not desirable.

81. It is not, however, for the Court to substitute its own view for that of the national legislature as to what would be the most appropriate policy in this regard. The risk of some uncompensated damage to reputation is inevitable if independent investigators in circumstances such as those of the present case are to have the necessary freedom to report without fear, not only to the authorities but also in the final resort to the public. It is in the first place for the national authorities to determine the extent to which the individual's interest in full protection of his or her reputation should yield to the requirements of the community's interest in independent investigation of the affairs of large public companies. The applicants' argument would amount to reading into Article 6(1) an entitlement to have a report such as the one in the present case not published until after a full judicial hearing repeating, doubtless over a longer time-scale, the same fact-finding exercise as that already carried out by the Inspectors. Such an entitlement could effectively destroy the utility of informing the public of the results of the administrative investigations provided for under section 432(2) of the Companies Act l985. Having found the aim of not only making but also publishing Inspectors' reports to be legitimate, the Court cannot apply the test of proportionality in such a way as to render publication impracticable."

The ECHR did not accept that Article 6(1) will be engaged because damage to reputation is sustained in the course of a process of investigation which is not concerned to determine reputation. Secondly, it regarded the consequences of applying Article 6(1) to be unacceptable, if the legitimate aims of the process in the course of which reputation is damaged, will be thwarted by the application of the Article.

54. Mr Lewis did not define the right according to the terms of the concession made by the UK Government in Fayed. He submitted that the domestic law right was the right to sue for damages for defamation. He also submitted that the IAP decision was concerned to deal with whether reinstatement should occur and was not concerned to adjudicate upon any right to reputation. Further, that findings of misconduct amounting to breaches of discipline were no more "decisive" of any private right relating to reputation than the Inspectors' findings in Fayed.

55. It is not necessary to attempt to establish an authoritative definition of the civil right which exists in connection with reputation, because the issues in this case go to its content rather than its definition. That said, I regard the content as more accurately described by the definition: the right to enjoy a fair reputation (see Helmers). I prefer "fair" to "good" because a person who has lost a "good" reputation is entitled to protection against its wrongful diminution. In my judgment the substantive content of the right is reflected in the requirement that adequate measures for its protection should be available. It is not fully reflected in the right to sue for damages because, as the dicta of Brooke LJ and McCullough J acknowledge, reputation can be damaged in the course of disciplinary proceedings when no meaningful right to sue in defamation will arise. However, given that there is a legitimate need for disciplinary proceedings and that their purport is not to determine issues of reputation, but to determine the due consequence of a breach of discipline, such damage as may be done to reputation attracts the protection of the requirements of natural justice and fairness and, further, the proceedings are subject to judicial review. The thrust of Brooke LJ's observation was directed to the quality of protection to which a child was entitled because of the potentiality for damage to reputation. The fact that damage has occurred cannot in itself infringe the right if the right has been accorded appropriate protection.

56. Mr Lewis submitted that had the content of the right to reputation been as Miss Mountfield submitted, the Convention jurisprudence in disciplinary cases would have been decided otherwise. I agree. In Albert and Le Compte v Belgium (l983_EHRR 533 the doctors had been suspended from practising medicine for two years following allegations of professional misconduct. In my judgment the court would not have concluded that " .... disciplinary proceedings do not ordinarily lead to a contestation (dispute) over `civil rights and obligations'"; if damaging allegations of misconduct engaged Article 6(1). Again, the court held that disciplinary proceedings as such cannot be characterised as `criminal' merely because allegations of misconduct have been advanced in the proceedings. I am satisfied that if Miss Mountfield's argument was correct it would not have been necessary for the decision to be founded on the right to practise medicine. (See also König v Federal Republic of Germany (1978) 170 2 EHRR 170.

57. In my judgment Article 6(1) is not applicable to IAP exclusion proceedings because

(1) The civil law right to the enjoyment of reputation is not infringed in the course of proceedings (a) not directly decisive of reputation and (b) where the potentiality for damage has been recognised by proper procedural protection being accorded in those proceedings.

(2) An IAP is concerned to determine whether reinstatement should be ordered. The governing provisions are contained within a statutory disciplinary code applicable to schools, having the object of regulating, in the public interest, the proper and efficient provision of education.

Does an IAP determine a criminal charge?

58. Miss Mountfield can point to (1) allegations of misconduct constituting the commission of a criminal offence and (2) the penalty of exclusion. I have already cited the judgment of the court in Albert v Le Compte, which states the general position. The approach in Convention jurisprudence is clearly stated in Engel v Netherlands (1976) l EHRR 647. Although expulsion is significant it does not lead to a denial of access to the educational system, nor does it constitute the determination of a criminal charge. The applicable classification under English law is that the proceedings are disciplinary, being intended to regulate the provision of education in schools and apply to pupils at the school in question. The provisions are not part of the general law applicable to persons generally. The sanction is not criminal and although serious, not disproportionate to the disciplinarian objective it exists to achieve. In my judgment the determination of allegations by an IAP does not involve a criminal charge and Article 6 is not applicable on this basis.

Do the provisions of Section 87 1998 Act contravene the ECHR?

59. This issue only arises in the case of T. Article 2 of the First Protocol provides:

"No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious convictions."

Miss Mountfield submitted as follows:

(1) Section 87 removes the duty upon a school to conform to the parents' preference of school for a child (save in stated circumstances) where the child has been permanently excluded from two or more schools during the period of two years beginning with the date on which the latest of the exclusions took place. Further, in consequence, the parents' right to challenge a refusal is unavailable in this period.

(2) The above effect is an unreasonable and disproportionate infringement of the right to education and/or access to a fair hearing of a child and violates Article 2 of Protocol l and/or Article 6 of the Convention.

(3) The provision operates so as to constitute a violation of Article l4 of ECHR read with Article 2 Protocol l, because it has a disproportionately greater effect on black Caribbean children than on white pupils.

(4) As a result, if all or one of her submissions is upheld, the claimant is entitled to a declaration of incompatibility under HRA.

60. I have already drawn attention to the character of the right enshrined in Article 2 Protocol l, drawing upon the judgment of the court in Belgian Linguistics. The degree of regulation by the State can vary according to the needs and resources of the State (see UK's reservation entered in connection with Article 2 Protocol l) and the power to regulate includes the power to take reasonable disciplinary measures providing that those measures do not conflict with the right to education. The guidance issued in connection with the operation of the 1998 Act indicates that exclusion is appropriate only in response to serious breaches of discipline, where alternative strategies have been tried and failed and "if allowing the pupil to remain in the school would seriously harm the education or welfare of the pupil or of others in the school" (Paragraph 6 Circular l0/99).

61. The loss of parental preference does not mean that a child has no access to educational instruction either in school or otherwise. The duty under Section 19 EA subsists notwithstanding the loss of parental choice. Again, the guidance urges the quick re-integration of pupils into mainstream schools. Access to a school may be secured by agreement with a school (as in B's case) or the local education authority has a power to direct a school to admit a child (Section 96 of the 1998 Act). The local education authority must provide suitable education for the child otherwise than at school.

62. In my judgment section 87 does not constitute a breach of Article 2 of the First Protocol because:

(1) the section does not remove the obligation of a LEA to ensure the provision of suitable education for a child; it removes the obligation to comply with the parents' preference;

(2) the removal of the duty is a consequence and part of the regulation of the right to access to education;

(3) the child will be educated.

Discrimination

63. The factual basis for this contention is no more than paragraph 3.6 of Circular l0/99, which notes that the rates of exclusion among black Caribbean boys is higher than among other pupils. The purpose of the paragraph is to exhort head teachers and schools to ensure that their powers are not being exercised in a discriminatory manner. If discrimination occurs (as to which there is no evidence) it occurs when head teachers and governing bodies exclude. It does not arise from the provision of the Act which exists so as to apply to all persons in a particular factual situation (see Stubbings v UK (1996) 23 EHRR 213). The provision is reasonable and proportionate to the needs of maintaining discipline in schools. I unhesitatingly reject the submission.

Breach of Section 19 EA and Article 8 ECHR

64. This argument arises out of a late amendment to Ground J of the Grounds of the claimant T. T was excluded on 28 January 2000 (the second occasion) and has since then received education at home. He currently receives 10 hours home tuition each week.

65. The steps in the argument are as follows:

(1) The word "suitable" in S 19 EA, by virtue of Section 3 HRA must be interpreted so as to give effect to Article 8 of ECHR.

(2) Article 8(1) ECHR includes the right to develop a personality in conjunction with others; see Niemietz v Germany (1982) 16 EHRR 97 at para 29. Further, Article 8 creates positive obligations on public authorities to take such steps as are necessary to afford respect to Convention rights: see Stubbings.

(3) The education currently being provided to T is manifestly not suitable and does not enable him to develop his personality in conjunction with others. Reliance is placed upon a report by a child and educational psychologist, John T Hall. In this regard it is submitted that there has been no adequate assessment of T by the LEA and no legitimate objective has been shown to be met by the deprivation which has occurred.

66. Miss Mountfield relied upon Niemietz as authority for her submission that the content of the right to private life included the right to develop a personality in conjunction with others. But Niemietz involved consideration of the scope of Article 8, namely whether the seizure of documents from a lawyer's office engaged Article 8. The court examined the "notion" of "private life". The issue was whether activities of a professional or business nature fell outside the notion. The court was concerned not to treat the line between "private life" and professional activities as definitive because " .... especially in the case of a person exercising a liberal profession, his work in that context may form part and parcel of his life to such a degree that it becomes impossible to know in what capacity he is acting at a given moment of time". The object and purpose of Article 8 is to protect individuals against arbitrary interference by public authorities and since "private life" obviously extends to establishing and developing relationships with other human beings it was consonant with the purpose to include within its scope professional and business activities, because these activities involved relationships with human beings and were not susceptible of being exclusively labelled as professional or business activities. In my judgment neither the reasoning of the court nor the precise words relied upon have the effect asserted for them. The precise words were:

"Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings" (Emphasis added)

67. In my judgment these considerations do not provide authority for the existence of a discrete "right to develop a personality", which the State is guaranteed to protect in the field of education. The case demonstrates that where a claim for infringement of Article 8 is advanced it will not be defeated because activities comprising private life have been pursued in a professional or business context. The principal rationale appears to have been the difficulty of unravelling distinctions between "private" and "business" or "professional" activities when at so many levels of activity the distinction has no significance to the inherent character of the activity. Miss Mountfield could point to the fact that Article 8 can be engaged in the field of education (see Belgian Linguistics). Further, an unjustifiable disturbance in family life by an arbitrary separation of child and parents would engage Article 8. But these instances demonstrate the clear content of Article 8 and do not assist her in her effort to identify the inclusion of "a right to develop a personality in conjunction with others". Her adoption of the terms of the judgment in Niemietz is fully understood but whereas it is apt to describe the scope or reach of Article 8, if adopted as part of the content of the right, it is uncertain and unworkable. For example, T is not being denied the opportunity to develop his personality in conjunction with others simply because he is not in mainstream school.

68. I should add that if these difficulties could be overcome it is plain that Article 8(2) would present an insuperable hurdle. The protection of the rights and freedoms of others is an integral aspect of the provision of education.

69. Before passing from this head of argument it has to be observed that the fact that T has been excluded from school and has not been re-integrated within mainstream schooling for a prolonged period, gives cause for concern. That said, it would be wrong for this court to pass upon the quality of the education being provided to T on the basis of the evidence in court. I am not prepared to give detailed consideration to the "suitability" of the education being provided to T. It is true that one passage in Mr Hall's report does suggest that there is a pressing need for him to be re-integrated. Other parts of the report reflect the difficulties in assessing what is in the best interests of the child. I reject the invitation to conclude that any particular assessment of T is, as a matter of law, required. I am not in a position to do so. I have no doubt that, if an up-to-date assessment of his needs has not been made, one will be carried out promptly. Plainly all avenues which may be open to achieve his re-integration in mainstream education should be explored.

Independence and Impartiality of IAPs

70. Since I have concluded that Article 6 is not applicable to these claimants' cases, it is unnecessary for me to determine the issues of independence and impartiality which have been argued, but out of deference to the help counsel provided I propose to summarise my conclusions and thereby to reflect the central issues. I shall limit myself to the issues of independence and impartiality because consideration of issues (4) and (5) in paragraph 35 above would involve too great a degree of hypothetical discussion.

71. The complaint is threefold: (1) that the members are appointed, paid and trained by the LEA, (2) that the LEA has the opportunity to make representations to the appeal panel, and (3) that there is no security of tenure. From the tenor of her argument Miss Mountfield was not minded to place great weight upon the appointment by the executive, for she recognised that in the absence of the evidence of some improper practice it is permissible and normal (see Campbell v Fell 1984 7 EHRR 165; Belios v Switzerland 1988 466. I can see no threat to impartiality from formal training and nor does payment amounting to compensation for loss suffered as a result of attendance and travelling and subsistence allowances give rise to any realistic prospect of compromise. The statutory framework ensures that persons with a possible interest which might give rise to the appearance of bias are excluded from membership (paragraph 2(7) of Schedule l8 to the 1998 Act). As to security of tenure, it is but one aspect to be considered. The critical factor in the case of Starrs and Chalmers v The Procurator Fiscal (2000) UKHRR 78 was that a one year appointment was a probationary period and thus an observer might reasonably believe that the judge was influenced by the desire of re-appointment. In this instance the members of the IAP are acting out of public duty. There is no career structure and no remuneration and there is no real risk of them being influenced by factors such as reappointment in the discharge of their duties. They are appointed and deal with individual appeals, and they cannot be removed during the currency of appeals.

72. As to the right of the LEA to make representations, the position is not so clear. In the case of T, a specific representation was made on behalf of the LEA in support of the order by way of permanent exclusion. Had Article 6 applied, the ability to make representations and the nature of the representation in the case of T would have given rise to an issue affecting the independence and impartiality of an IAP which required clarification. The rationale for the LEA to have a right to make representations, if regarded as being limited to informing the panel of the approach taken in other schools to conduct of a like nature, or breaches of discipline of a similar nature, given with a view to achieving consistency in the schools within the jurisdiction of the LEA or otherwise informing the panel on a relevant factor, can give rise to no difficulty. But if an uninformed observer, which could include a parent, saw the LEA apparently underwriting the merits of the decision of the governing body and the head teacher, and not informing the panel as to matters directed towards consistency, it is likely there would be an appearance of the scales being tilted against the pupil. An informed observer would know that the IAP was dealing with the question of exclusion from school, because of an alleged failure to meet the appropriate standards of behaviour. Someone familiar with the guidance for the panel would know that it makes it plain that the panel must decide (i) did the pupil do the act concerned, and (ii) whether exclusion is reasonable. The panel must also consider whether the breach of discipline was serious, whether alternative strategies could work and whether allowing the pupil to remain in school would seriously damage the education or welfare of the pupil or others in the school. I accept that an LEA, as the authority responsible for making arrangements for education, is an obvious source of information as to what alternative strategies there may be. In such circumstances the LEA is not a witness or offering testimony as to whether the accused committed the offence. Obviously any submissions on the facts as to whether or not the misconduct had occurred would be outside the right of representation accorded to the LEA. The cases of Findlay v UK 1997 24 EHRR 221 and Belios demonstrate that where there are close links between the members of the appeal panel and those engaged in making representations before it, difficulties can arise. In my judgment the LEA is not in any real sense a party before an IAP and I accept the submission that a finding that the fact of appointment by the LEA, coupled with the fact that a duly appointed officer can make representations to the panel, should mean that the arrangements are in breach of Article 6, would be to adopt "an undue formalism - or even something approaching a neurotic distrust" (per Laws LJ in R v Army Prosecuting Authority ex parte Spear and Hastie, January 15th 2001, but I so conclude on the basis that:

(1) LEAs do not regard the right to make representations as extending to the facts surrounding the misconduct in issue; and

(2) are seen to be making representations on issues falling within the category of the provision of relevant information for the IAP.

Consideration should be given to the role played by LEAs on appeals and

be fully explained and elaborated upon in the material circulated in connection with appeals.

73. Conclusions

(1) The decision of the IAP in the case of C is quashed. It being an appropriate case for remission for a fresh hearing I shall hear counsel on any directions necessary in connection with remission.

(2) The decision of the IAP and the Governing Body in the case of B are quashed. I decline to exercise my discretion to order remission to the Governing Body because there is no issue for them to determine.

(3) The application for judicial review in the case of T is refused.

(4) I am indebted to all counsel for their full and able submissions. The court could not have asked for more help on the many questions raised under the HRA, which despite their total lack of success, merited attention.