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Judgments - Ali (FC) (Respondent) v. Headteacher and Governors of Lord Grey School (Appellants)

HOUSE OF LORDS

SESSION 2005-06

[2006] UKHL 14

on appeal from[2004] EWCA Civ 382

 

 

OPINIONS

OF THE LORDS OF APPEAL

for judgment IN THE CAUSE

 

Ali (FC) (Respondent)

v.

Headteacher and Governors of Lord Grey School (Appellants)

 

 

Appellate Committee

 

Lord Bingham of Cornhill

Lord Nicholls of Birkenhead

Lord Hoffmann

Lord Scott of Foscote

Baroness Hale of Richmond

 

Counsel

Appellants:

Edward Faulks QC

Andrew Warnock

Jonathan Moffett

(Instructed by Barlow Lyde & Gilbert)

Respondents:

Cherie Booth QC

Carolyn Hamilton

Lisa Busch

(Instructed by The Children's Legal Centre

London agents: Sharpe Pritchard)

 

 

Hearing dates:

6 and 7 February 2006

 

on

WEDNESDAY 22 MARCH 2006

 

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Ali (FC) (Respondent) v. Headteacher and Governors of Lord Grey School (Appellants)

[2006] UKHL 14

LORD BINGHAM OF CORNHILL

My Lords,

    1.  Mr Ali, the respondent, is now a university student aged 18. The events giving rise to these proceedings took place in 2001-2002, when he was aged 13-14, and of compulsory school age. The issue for decision is whether his rights under article 2 of the First Protocol to the European Convention on Human Rights were infringed by the appellants between 7 June 2001 and 20 January 2002.

The agreed facts

    2.  In March 2001 the respondent was a pupil at The Lord Grey School ("the school"), a maintained secondary foundation school at Bletchley, where the local education authority is the Milton Keynes Council. On 8 March 2001 a fire was discovered in a classroom at the school. The fire brigade, who were summoned, considered that the fire had been started deliberately. The police were called in. The respondent was one of three pupils seen leaving the classroom before the fire was discovered. He admitted to the police that he had been present, although he attributed the blame to another. The three pupils were cautioned by the police, taken to the police station and released on bail. On 29 March 2001 they were charged with arson.

    3.  The school authorities judged that the respondent should not attend the school while the criminal investigation and the ensuing prosecution were in train, and he was excluded from the school for successive periods from 9 March until 6 June 2001. Since no issue in the appeal relates to his exclusion during this period, it is unnecessary to recite the detailed facts. But certain points should be noted. First, the procedures laid down by statute and regulations to govern exclusions were not followed by the school authorities. Thus the exclusion of the respondent during this period, although obviously sensible, was not (it is agreed) lawful under the domestic education law of England and Wales. Secondly, until 14 May 2001 the school sent work, largely revision, for the respondent to do at home. His form teacher discussed this work with him on several occasions, and was concerned to ensure that he had enough work to do. Thirdly, the respondent was allowed to return to the school to sit his Standard Assessment Tests between 8 and 14 May 2001, and he did rather better than expected. Fourthly, the school told the respondent's parents on 25 May that it would continue to set work for the respondent as appropriate and asked them to make contact with the school to arrange to collect it, but they never did and no work was sent after 14 May. Fifthly, the school referred the respondent to the LEA for the provision of education otherwise than at school: the referral form, although finalised earlier, was not received by the LEA until 8 June. Reference to the Access Panel was requested by the school, but it was willing to negotiate the reintegration of the respondent if he was acquitted. Provision of materials, supervision and advice was suggested by the school as appropriate support for the respondent, described as an able student, pending his court appearance. Sixthly, the 45 day cap on the aggregate of periodic exclusions within a school year expired on 6 June 2001 (although this may not at the time have been appreciated by the school authorities). That is why 7 June 2001 (para 1 above) is a significant date. Any further exclusion after that date would, to be lawful, have had to be permanent. The school did not exclude the respondent permanently on 6 June, nor did it seek to do so, since it was awaiting the outcome of the criminal proceedings.

    4.  On 18 June 2001 the Crown Prosecution Service informed the respondent's solicitors (but not the school) that the prosecution would be discontinued for want of evidence, and this discontinuance was formally effected on the following day. The respondent and his brother then went to the school, which they told of this outcome, and they asked that the respondent be allowed to return to school immediately. The head teacher of the school told the brother that she would arrange for the respondent's re-entry to the school as soon as she received official notification of the discontinuance of the prosecution. She received a fax to this effect from the court on 22 June, and on 3 July received official notification from the police.

    5.  Meanwhile, ignorant that the prosecution had been discontinued, the LEA Access Panel met on 19 June. It recommended that the respondent be provided with tuition by the Pupil Referral Unit ("the PRU") at its Manor Road Centre while the prosecution continued and pending a decision on the respondent's future at the school. The Manor Road Centre was informed of this recommendation on 27 June and was to provide tuition until the end of term on 20 July in the first instance. The LEA also informed the respondent's parents of this recommendation and told them that the PRU would contact them to arrange a meeting. The school was told that the PRU had assumed responsibility for the respondent's education. In early July the PRU contacted the respondent's family, but they declined the offer of tuition by the PRU.

    6.  On 3 July 2001, having received notification from the police that the prosecution had been discontinued, the head teacher of the school wrote to the respondent's parents inviting them to a meeting with the school on 13 July "to discuss the way forward". She wrote again, repeating the invitation, on 4 July and in this letter said:

    "I am mindful of the fact that [the respondent] has been out of school for some considerable time and am therefore keen that he should return as soon as possible."

All the staff who would be involved in the reintegration of the respondent into the school were to attend the meeting, and this was the earliest date on which they could all be present. It was envisaged that the three pupils would redecorate the fire-damaged room under the supervision of a painter and decorator as part of the school's citizenship programme.

    7.  Neither the respondent nor his family attended the proposed meeting on 13 July. The family chose not to attend for (as the trial judge found) no good reason. One of the other two boys did attend, and was admitted back into the school. The respondent's family did not attempt to contact the school again until 6 November. On 13 July the head teacher wrote to the respondent's parents:

    "Following your failure to appear at the meeting organised this morning at The Lord Grey School, I am removing [the respondent] from our school roll and am writing to confirm to the Access Panel that other provision should now be made for [his] educational provision.

    I will not be pursuing a civil action against you regarding the arson offence, but your failure to attend the meeting confirms to me that it would be entirely unsuitable for [the respondent] to continue further at this school."

The parents were given the names and telephone numbers of those they should contact at the Manor Road Centre if they wished further clarification or wished to discuss future educational provision. The trial judge held that this letter excluded the respondent permanently from the school, although his name was not removed from the school roll until mid-October. There was no reply to the head teacher's letter.

    8.  When the September term began the LEA thought, and told the school, that the respondent was in Bangladesh, but this was not so, and neither made proper enquiry. The family did not contact the LEA until mid-October. At a meeting between the respondent's father and the LEA's representative on 18 October the father was unsure whether the family wanted the respondent to return to the school. This prompted the LEA to write to the father on 22 October:

    "Following our meeting on 18 October, I would like to confirm the following points:

    1.  I will ask Marilyn Barby, Team Leader - Pupil Support, to provide tuition for [the respondent] as soon after 29 October as possible.

    2.  In your search for a school place, be it The Lord Grey or another school, the following contact numbers may be useful to you for advice and support …

    I would advise you to decide quickly whether you wish [the respondent] to return to The Lord Grey School and arrange an interview there or at another school as soon as possible so that he can resume his education on a full time basis."

A letter was also written to Ms Barby on the same day, pointing out:

    "We need to provide tuition for [the respondent] as he has been out of school for a considerable time. This should be for a short period whilst he is supported back into school …

    I have advised the family that we will try to provide tuition as soon as possible after half term and given them the telephone numbers of the Education Welfare Service and Parent Partnership to help support admission back into Lord Grey or another secondary school."

The respondent and his family remained uncertain until early November whether they wanted him to return to the school but, on 6 November, the respondent's father wrote to the head teacher, seeking his son's reinstatement. He gave a reason for not attending the 13 July meeting which the trial judge, after investigation, found to be false. He pointed out that this was a very important year for his son, who had already missed ten (actually, eight) months of schooling. The school replied to the father that, having heard nothing from him, it had allocated the respondent's place to another pupil, his year group was now over-subscribed and it could not take the respondent back onto the school roll. The father was advised to contact the nearest secondary school or the LEA for a school place.

    9.  It appears that the father followed this advice. On 21 January 2002 the respondent began to attend another school. This explains the terminal date in para 1 above.

Article 2 of the First Protocol

    10.  Article 2 of the First Protocol provides:

    "Right to education

    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 and philosophical convictions."

The article was adopted after some years of debate, during which some states, including the United Kingdom, resisted the imposition of a positive obligation. Clayton and Tomlinson (The Law of Human Rights, (2000), para 19.36) attribute the relative paucity of Strasbourg authority on the right to education to its limited scope.

    11.  The leading Strasbourg authority on the content of the article remains the Belgian Linguistic Case (No 2) (1968) 1 EHRR 252. The case arose from the wish of French-speaking Belgian parents that their children should be taught in French, and the facts are in no way analogous with those here. But the court explored the meaning of the article in terms that remain highly pertinent (paras 2-5 of the judgment, pp 280-282, footnote omitted):

    "2.  The Court will address itself first to Article 2 of the Protocol because the Contracting States made express provision with reference to the right to education in this Article.

    3.  By the terms of the first sentence of this Article, 'no person shall be denied the right to education'.

    In spite of its negative formulation, this provision uses the term 'right' and speaks of a 'right to education'. Likewise the preamble to the Protocol specifies that the object of the Protocol lies in the collective enforcement of 'rights and freedoms'. There is therefore no doubt that Article 2 does enshrine a right.

    It remains however to determine the content of this right and the scope of the obligation which is thereby placed upon States.

    The negative formulation indicates, as is confirmed by the preparatory work, that the Contracting Parties do not recognise such a right to education as would require them to establish at their own expense, or to subsidise, education of any particular type or at any particular level. However, it cannot be concluded from this that the State has no positive obligation to ensure respect for such a right as is protected by Article 2 of the Protocol. As a 'right' does exist, it is secured, by virtue of Article 1 of the Convention, to everyone within the jurisdiction of a Contracting State.

    To determine the scope of the 'right to education', within the meaning of the first sentence of Article 2 of the Protocol, the Court must bear in mind the aim of this provision. It notes in this context that all member States of the Council of Europe possessed, at the time of the opening of the Protocol to their signature, and still do possess, a general and official educational system. There neither was, nor is now, therefore, any question of requiring each State to establish such a system, but merely of guaranteeing to persons subject to the jurisdiction of the Contracting Parties the right, in principle, to avail themselves of the means of instruction existing at a given time.

    The Convention lays down no specific obligations concerning the extent of these means and the manner of their organisation or subsidisation. In particular, the first sentence of Article 2 does not specify the language in which education must be conducted in order that the right to education should be respected. It does not contain precise provisions similar to those which appear in Articles 5(2) and 6(3)(a) and (e). However, the right to education would be meaningless if it did not imply, in favour of its beneficiaries, the right to be educated in the national language or in one of the national languages, as the case may be.

    4.  The first sentence of Article 2 of the Protocol consequently guarantees, in the first place, a right of access to educational institutions existing at a given time, but such access constitutes only a part of the right to education. For the 'right to education' to be effective, it is further necessary that, inter alia, the individual who is the beneficiary should have the possibility of drawing profit from the education received, that is to say, the right to obtain, in conformity with the rules in force in each State, and in one form or another, official recognition of the studies which he has completed. The Court will deal with this matter in greater detail when it examines the last of the six specific questions listed in the submissions of those who appeared before it.

    5.  The right to education guaranteed by the first sentence of Article 2 of the Protocol by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals. It goes without saying that such regulation must never injure the substance of the right to education nor conflict with other rights enshrined in the Convention.

    The Court considers that the general aim set for themselves by the Contracting Parties through the medium of the European Convention on Human Rights was to provide effective protection of fundamental human rights, and this, without doubt, not only because of the historical context in which the Convention was concluded, but also of the social and technical developments in our age which offer to States considerable possibilities for regulating the exercise of these rights. The Convention therefore implies a just balance between the protection of the general interest of the community and the respect due to fundamental human rights while attaching particular importance to the latter."

In applying this reasoning to the facts before it, the court added (para 7, p 292):

    "The first sentence of Article 2 contains in itself no linguistic requirement. It guarantees the right of access to educational establishments existing at a given time and the right to obtain, in conformity with the rules in force in each State and in one form or another, the official recognition of studies which have been completed, this last right not being relevant to the point which is being dealt with here."

    12.  The court's judgment in the Belgian Linguistics (No. 2) case has been cited and relied on in a number of later decisions such as Kjeldsen, Busk, Madsen and Pedersen v Denmark (1976) 1 EHRR 711, Campbell and Cosans v United Kingdom (1982) 4 EHRR 293, Sahin v Turkey (Application No 44774/98, Grand Chamber, 10 November 2005, unreported) and Timishev v Russia (Application Nos 55762/00 and 55974/00, 13 December 2005, unreported). In later decisions the reasoning in that case has been followed but elaborated. It has been held that article 2 is dominated by its first sentence (Kjeldsen, above, para 52; Campbell and Cosans, above, para 40) but the article must be read as a whole (Kjeldsen, above, para 52), and given the indispensable and fundamental role of education in a democratic society a restrictive interpretation of the first sentence would not be consistent with the aim or purpose of that provision (Sahin, above, para 137; Timishev, above, para 64). But the right to education is not absolute (Sahin, above, para 154): it is subject to regulation by the state, but that regulation must not impair the essence of the right or deprive it of effectiveness (Campbell and Cosans, above, para 41; Sahin, above, para 154). It is not contrary to article 2 for pupils to be suspended or expelled, provided that national regulations do not prevent them enrolling in another establishment to pursue their studies (Yanasik v Turkey (1993) 74 DR 14), but even this qualification is not absolute (Sulak v Turkey (1996) 84 - A DR 98). The imposition of disciplinary penalties is an integral part of the process whereby a school seeks to achieve the object for which it was established, including the development and moulding of the character and mental powers of its pupils (Sahin, above, para 156).

    13.  In Coster v United Kingdom (2001) 33 EHRR 479, para 136, Her Majesty's Government submitted that article 2 did not confer a right to be educated at a particular school. The court did not expressly accept or reject this submission. Such an interpretation was, however, adopted by the Court of Appeal in S, T and P v London Borough of Brent [2002] EWCA Civ 693, [2002] ELR 556, para 9.

The domestic legislative background

 
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