(back to preceding text)

    14.  For the last 60 years the responsibility for ensuring the secondary education of children in this country has rested on what Lord Wilberforce called "a fourfold foundation": Secretary of State for Education and Science v Thameside Metropolitan Borough Council [1977] AC 1014, 1046; and see 1063. While the legislation and much else has changed, that fourfold foundation has so far survived.

    15.  The first of the four elements identified in the Education Act 1996, which governs this case, is the parents of a child of compulsory school age. By section 7 the parents are under a duty to cause every such child to receive efficient and suitable full-time education "either by regular attendance at school or otherwise". The serious character of this duty is reflected in the criminal penalty attaching to unjustified breach of it. The second element is the Secretary of State, charged by section 10 of the Act to promote the education of the people of England and Wales. The third element is the LEA, required by section 13(1) of the Act to secure that efficient secondary education is available to meet the needs of the population of their area. The LEA is also required, by section 19(1), to

"make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them."

A school established and maintained by the LEA which is specially organised to provide education for such children is known as a pupil referral unit: section 19(2). The fourth element consists of the maintained schools themselves. Each such school is under the direction of its governing body who must conduct the school with a view to promoting high standards of educational achievement at their school: School Standards and Framework Act 1998, section 38. The responsibility for discipline within a school is shared between the governing body and the head teacher, the former responsible for formulating policies, the latter for applying them. One available sanction is exclusion, a power which may only be exercised on disciplinary grounds: 1998 Act, section 64(4). Only the head teacher may exclude a pupil, which may be for a fixed period or periods (not exceeding a total of 45 days in a school year) or permanently: 1998 Act, section 64 (1) and (2). A pupil may not be otherwise suspended or expelled: 1998 Act, section 64(3). Where a pupil is excluded the head teacher has a duty to give certain information to a parent or the pupil (section 65), the governing body has a duty in certain cases to consider the matter (section 66) and the LEA must make arrangements for an effective right of appeal by the pupil in some cases (section 67). The head teacher, the governing body and the LEA must have regard to guidance given on exclusion by the Secretary of State from time to time (section 68).

    16.  This fourfold foundation has endured over a long period because it has, I think, certain inherent strengths. First, it recognises that the party with the keenest personal interest in securing the best available education for a child ordinarily is, or ought to be, the parent of the child. Depending on age, maturity and family background, the child may or not share that interest. But the parent has a statutory duty. Secondly, the regime recognises that for any child attending school it is that school through which the education provided by the state is in practice delivered. The relationship between school and pupil is close and personal: hence the restrictions on its interruption or termination. It is a relationship resembling, but for the want of consideration, a contractual relationship. But, thirdly, the regime recognises the need for a safety net or longstop to ensure that the education is not neglected of those who for any reason (whether "illness, exclusion from school or otherwise") are not being educated at school in the ordinary way. It is plainly intended that every child of compulsory school age should receive appropriate education in one way if not another, and that responsibility rests in the last resort with the LEA.

    17.  The respondent issued these proceedings against the appellants on 27 August 2002. He complained that he had been unlawfully excluded from the school from 21 March 2001 until January 2002, in breach of his Convention right under article 2 of the First Protocol, and claimed damages not exceeding £30,000. As often happens when cases progress through the hierarchy of courts, the basis of his claim has been somewhat modified. Stanley Burnton J, at first instance, found the respondent's exclusion from 8 March until 13 July 2001 to have been unlawful, because non-compliant with mandatory requirements of domestic law, but sensible and reasonable and involving no violation of article 2: [2003] EWHC 1533 (QB); [2003] 4 All ER 1317, paras 89, 92-94, 106. In the Court of Appeal, Sedley LJ held, with the concurrence of Butler-Sloss P and Clarke LJ, that the respondent's exclusion until 6 June 2001, although unlawful, was not in breach of article 2 because, during that period, he was afforded appropriate education: [2004] EWCA Civ 382, [2004] QB 1231, paras 56-57, 70, 71. This is an analysis which the respondent now accepts, and little more need be said about it.

    18.  The judge held that the school was not the cause of the respondent's lack of suitable education between 13 July and the end of the summer term on 20 July because his family declined the LEA's offer of tuition: para 108. The cause of the respondent's lack of schooling or education during the autumn of 2001 was more complex to ascertain (para 109), but it was the LEA's responsibility to provide suitable education and there were educational facilities available to him (paras 110-111). Thus although the decisions to exclude the respondent and to remove him from the roll were unlawful in domestic law, and could have been challenged by judicial review, they did not give rise to a liability in damages for breach of his rights under article 2 (para 114). The Court of Appeal took a different view. It held that the respondent's right to education was denied between 7 June and 13 July, notwithstanding that the school was still offering to provide him with substitute work to do at home, a matter held to be relevant only to damages (para 61). In relation to the last phase of the respondent's exclusion, from 14 July 2001 - 20 January 2002, the Court of Appeal regarded removal of the respondent's name from the school roll as improper, although giving rise to no separate legal consequences (paras 62 and 63). But the respondent's exclusion during this period was, as the judge held, unlawful and unreasonable (para 63). In para 64 of the judgment the Court of Appeal concluded:

"So characterised, the exclusion of [the respondent] from 14 July until he was finally placed in a new school amounts, in my judgment, to a further denial of his Convention right to education. It was complete and it was prolonged. It was not terminated by the deletion of [the respondent's] name from the school roll because there was no lawful ground for deletion. To the extent that it may nevertheless have been acquiesced in, the damage may be mitigated. But this is not our present concern, and it will require (if the case goes that far) a factual inquiry into a number of things including the family's state of knowledge and understanding."

The court did not accept (para 68) the school's

"… further and fundamental argument that the bare existence of the education authority's fallback duty, together with [the respondent's] right to seek to enforce it, relieves the school either of its obligations or of the legal consequences of failing to discharge them. On the contrary, it is on the two public authorities who are the present respondents (or put more realistically, the school) that the state has chosen to devolve the material elements of the obligation which it has undertaken to provide universal secondary education. It is the head teacher and the governing body who in law bear the primary duty to educate a child who has been accepted in their school and, as a corollary, not to exclude him except as authorised by law."

Thus the appeal was allowed in relation to the period from 7 June 2001 to 20 January 2002, and the case was remitted to the court below for the assessment of damages.

    19.  In his admirably succinct and pertinent argument for the school Mr Edward Faulks QC did not challenge the conclusion reached by both the judge and the Court of Appeal that the school authorities had acted unlawfully in excluding the respondent permanently and removing his name from the roll without following the procedures required by domestic law. But he criticised the Court of Appeal's conclusion that there had at any time been a breach of article 2. The Convention did not, he submitted, confer on anyone a right to be educated at a particular school. It conferred a right not to be denied access, in a non-discriminatory manner, to the general level of educational provision available in the member state. In the present case there had been no such denial. When asked by the school on 25 May to collect work for the respondent to do, his parents had failed to do so. When tuition was offered by the PRU in early July, the offer had been declined. When a meeting was arranged on 13 July to discuss the respondent's return to the school, neither he nor his family had attended, for no good reason. Had they done so, and sought his re-admission, there was no reason to doubt that he would have been re-admitted, as was the other boy who did attend the meeting. When the parents were offered the opportunity to approach the Manor Road Centre on 13 July, they did not reply and did not approach the Centre. When the LEA met the father on 18 October and wrote to him on 22 October, seeking the respondent's return to full-time education at school, there was uncertainty whether his return to the school was sought by the father or not. When at last, in early November, reinstatement at the school was sought and found to be impracticable, steps were taken by the LEA to find him a place at another school, which was achieved with reasonable promptness. On these facts, it was submitted, it could not be said that the respondent had been denied access, least of all by the school, to the general level of educational provision available in this country.

    20.  Ms Cherie Booth QC, for the respondent, laid emphasis on the extent to which the school had departed from the requirements of domestic law in excluding the respondent and removing his name from the school roll. She challenged the school's interpretation of article 2 and argued that its effect is to give the individual pupil and parent a right, not merely to the general level of educational provision available in a member state, but to compliance with the domestic educational regime and thus to education in and by the school of which a child is registered as a pupil unless and until the relationship between school and pupil is lawfully ended. During the period from 8 March to 6 June there had been no breach of article 2 for the reason given by the Court of Appeal, that the school had given the respondent work to do. But it had not done so after 6 June, and therefore had denied the respondent's right to education and violated article 2.

    21.  For purposes of this appeal I am content to accept the proposition, accepted by both courts below and agreed between counsel, that the school excluded the respondent in breach of domestic law from 8 March onwards. But I must register some unease at this conclusion. The immense damage done to vulnerable children by indefinite, unnecessary or improperly-motivated exclusions from state schools is well-known, and none could doubt the need for tight control of the exercise of this important power. But the 1998 Act and the guidance issued under it seem to me singularly inapt to regulate the problem which confronted the school in this case and which must confront other schools in comparable cases.

    22.  As already noted, in the 1998 Act "exclude" means exclude on disciplinary grounds; an exclusion must be for a fixed period or permanent; and schools must have regard to guidance given by the Secretary of State. The guidance effective at the relevant time was DfEE Circular 10/99, July 1999, Social Inclusion: Pupil Support. This provided, in chapter 6, on "The use of exclusion":

"A decision to exclude a child for a fixed period or permanently should be taken only:

•  once a range of alternative strategies, including those in Section 4, have been tried and have failed; and

•  if allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or of others in the school."

This was repeated in para 6.2, and para 6.3 continued:

"6.3  Before reaching a decision, the head teacher should:

Permanent exclusion was described (para 6.6) as "an acknowledgement by the school that it can no longer cope with the child". The Secretary of State did not expect a head teacher normally to exclude a pupil permanently for a one-off or first offence.

    23.  The fire on 8 March, if started deliberately or recklessly, involved a serious crime. The respondent, rightly or wrongly, was suspected of participation. Some of his fellow-pupils were similarly suspected. Other pupils, and perhaps members of the staff, were potential witnesses. The police began to investigate. Respect for the respondent and for the integrity of the criminal justice process in my opinion required that he should not attend the school until the matter was cleared up; that he should not be interrogated by the school about matters which were the subject of police investigation followed by prosecution; and that he should not be punished for something he was not shown to have done. But even if exclusion in such circumstances would be on disciplinary grounds, the school could not set fixed periods when the duration of the investigation was inherently indefinite, and the case was plainly not covered by the paragraph quoted above. It appears to have been agreed that on expiry of the 45 day period the school had no choice but to re-admit the respondent or exclude him permanently. But re-admission, with a criminal prosecution in train, was inappropriate. So, too, was permanent exclusion, since the school had no wish to expel the respondent; if he was cleared they wished him to return. There was no question of acknowledging inability to cope with a pupil whose disciplinary record had always been good. If, as has been found and agreed, the school acted inconsistently with the requirements of domestic law, the inadequacy of the law contributed to that result.

    24.  The Strasbourg jurisprudence, summarised above in paras 11-13, makes clear how article 2 should be interpreted. The underlying premise of the article was that all existing member states of the Council of Europe had, and all future member states would have, an established system of state education. It was intended to guarantee fair and non-discriminatory access to that system by those within the jurisdiction of the respective states. The fundamental importance of education in a modern democratic state was recognised to require no less. But the guarantee is, in comparison with most other Convention guarantees, a weak one, and deliberately so. There is no right to education of a particular kind or quality, other than that prevailing in the state. There is no Convention guarantee of compliance with domestic law. There is no Convention guarantee of education at or by a particular institution. There is no Convention objection to the expulsion of a pupil from an educational institution on disciplinary grounds, unless (in the ordinary way) there is no alternative source of state education open to the pupil (as in Eren v Turkey, Application No 60856/00 (unreported), 7 February 2006, unreported). The test, as always under the Convention, is a highly pragmatic one, to be applied to the specific facts of the case: have the authorities of the state acted so as to deny to a pupil effective access to such educational facilities as the state provides for such pupils? In this case, attention must be focused on the school, as the only public authority the respondent sued, and (for reasons already given) on the period from 7 June 2001 to 20 January 2002.

    25.  The question, therefore, is whether between those dates the school denied the respondent effective access to such educational facilities as this country provides. In my opinion, the facts compel the conclusion that it did not. It invited the respondent's parents to collect work, which they did not. It referred the respondent to the LEA's Access Panel, which referred him to the PRU, an education provider; the PRU's offer of tuition was declined. The school arranged a meeting to discuss the respondent's re-admission, which the respondent's family chose not to attend. The head teacher's reaction to this non-attendance was criticised in the courts below as over-hasty. Perhaps so. But I am not altogether surprised that she treated this unjustified non-attendance as a repudiation by the family of the pupil-school relationship. She again gave the parents contact details at the PRU. The LEA's attempts during the autumn to secure the respondent's readmission to the school or admission to another school were thwarted by the family's uncertainty what they wanted. As soon as they made up their minds, a place (although not at the school) was promptly found. The retention of the respondent's name on the roll of the school in July, and its removal in October, although much relied on in argument, were events unknown to the respondent and his family at the time, and had no causal effect or legal consequence. It is a matter for regret when any pupil, not least an able pupil like the respondent, loses months of schooling. But that is not a result which can, in this case, be laid at the door of the school.

    26.  For these reasons, and those given by my noble and learned friend Lord Hoffmann, I would allow the appeal and dismiss the claim. I would invite written submissions on costs within 14 days.

    27.  I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Bingham of Cornhill and Lord Hoffmann. For the reasons they give, with which I agree, I too would allow this appeal.

LORD HOFFMANN

My Lords,

The Story

    28.  On Thursday 8 March 2001 there was a fire in an empty class room at the Lord Grey School at Milton Keynes. The fire brigade said that it has been started deliberately and suspicion fell upon three boys who had been seen running away. One of these was the respondent Abdul Hakim Ali. After an investigation by the police, the boys were charged with arson.

    29.  These events created a difficult situation for the school. Arson in schools is a serious problem. In 2001 the damage to schools caused by arson attacks was estimated at £65m, without taking into account the cost of disruption to the schools and the resources of the police and fire brigades. The school could not allow the boys to carry on as if nothing had happened. For one thing, it was highly undesirable that they should be in daily contact with children who might be giving evidence against them. On the other hand, their guilt had not been established and the investigation was in the hands of the police. It would have been inappropriate for the school to conduct a parallel investigation with a view to deciding whether there were grounds to discipline them.

    30.  The school told the boys to stay away until the police investigation had been completed. The school sent work to the respondent's home and his form teacher kept in touch with him. It was hoped that the matter would quickly be resolved but things dragged on into May. The respondent was allowed into the school to write his SAT examination and did better than had been predicted before the fire incident. On 25 May, with the examinations over and the investigation not yet completed, the school referred the respondent to the Local Education Authority for the provision of education otherwise than at school. The LEA has a statutory duty under section 19 of the Education Act 1996 to provide education for children who, by reason of exclusion from their schools, need special arrangements to be made. The Milton Keynes LEA provides a "Pupil Referral Unit" for such children.

    31.  On 19 June the LEA Access Panel met and recommended that the respondent be provided with tuition at the Pupil Referral Unit. That very day, however, the Crown Prosecution Service decided to discontinue the prosecution against the three boys and he was discharged by the magistrates. The respondent's elder brother went to the head teacher and told her that he had been acquitted and should return to school. The head teacher said she would arrange this as soon as she received official notification of the court decision. So the respondent did not go to the Pupil Referral Unit.

    32.  On 29 June the police officially notified the head teacher that the prosecution had been discontinued. She then wrote two letters to the respondent's parents, dated 3 and 4 July, inviting them to a meeting at the school on 13 July to discuss "the way forward". She proposed that the three boys should repaint the damaged room and said that she was keen that the respondent should return as soon as possible. The parents of the other two boys received similar letters.

    33.  The respondent and his parents did not turn up to the meeting. The judge later found that they had offered no credible explanation and had chosen not to attend. One of the other boys also stayed away. The third came to the meeting and was reinstated. The head teacher was irritated: she thought that the reason was that the respondent did not want to help repaint the room. She wrote to the parents to say that the respondent's name would be removed from the roll and she would confirm to the Access Panel that other arrangements should be made for his education. The letter gave the names and telephone numbers of Mr Read, the LEA's Alternative Education Manager and his assistant. A week later, on 20 July, the summer holidays began.

    34.  When term began in early September, the respondent made no attempt to get in touch and in mid-October his name was removed from the roll. Nor did he or his family make contact with the Pupil Referral Unit or the LEA until about the same time, when the respondent's brother spoke to Mr Read, who went round and spoke to the respondent's father. The family appeared uncertain about whether they wanted the respondent to go back to the Lord Grey School or to another school. In early November they decided that they wanted the respondent to go back to the Lord Grey School. But the school said that they were now oversubscribed. The respondent was accepted at a different school at the beginning of the following January.

    Domestic law

    (a)  The exclusion code

    35.  Sections 64 to 67 of the School Standards and Framework Act 1998 contained a code dealing with the exclusion of pupils "on disciplinary grounds". It provided that a head teacher could exclude a pupil permanently or for a fixed period or periods, but not so that the fixed periods added up to more than 45 school days in a school year: section 64(1) and (2). Parents, governors and the LEA had to be informed (section 65); the governors had a duty to consider whether the pupil should be reinstated (section 66) and there was a right of appeal from the governors (section 67). Since the events in this case, sections 64 to 67 have been repealed and replaced by section 52 of the Education Act 2002, which provides in subsection (1) that the head teacher of a maintained school "may exclude a pupil from the school for a fixed period or permanently". "Exclude" is still defined to mean "exclude on disciplinary grounds" (subsection (10)) but the 2002 Act leaves the other matters which limit and regulate the exercise of the power to be provided by regulations: see the Education (Pupil Exclusions and Appeals)(Maintained Schools)(England) Regulations 2002 SI 2002 No 3178.

    36.  The statutory code was well adapted to the use of exclusion as a punishment for a serious disciplinary offence, imposed in the interests of the education and welfare of the pupil and others in the school. It is far less suitable for dealing with a case like this, in which the pupil was excluded on precautionary rather than penal grounds.

    37.  Although the point was not argued and I am content to assume that any exclusion had to comply with the provisions of the code, I must express doubt about whether it had any application to the facts of this case. The respondent was not being excluded "on disciplinary grounds" except in the broad sense that it was thought necessary to exclude him while an allegation of a disciplinary offence was being investigated. But section 64(1), which says that the exclusion must be for a fixed period or permanently, suggests that Parliament contemplated that it would be used only when a disciplinary offence has actually been established and an appropriate "sentence" must be imposed. That was certainly the view of the (then) Department for Education and Employment when, pursuant to section 68(2), it issued the statutory guidance (Circular 10/99) on exclusion which was in force at the time of these events. Chapter 6 emphasised in bold type that —

"A decision to exclude a child … should be taken only:

    38.  Likewise, para 6.3 of the Circular said:

"Before reaching a decision, the head teacher should consider all the relevant facts and firm evidence to support the allegations made, and take into account the school's policy on equal opportunities. If there is doubt that the pupil actually did what is alleged, the head teacher should not exclude the pupil."

    39.  It was presumably on the basis of this guidance that an appeal panel in R v Independent Appeal Panel of Sheffield City Council, Ex p N [2000] ELR 700 decided, in the case of a pupil excluded pending a prosecution for sexually assaulting another pupil, that the exclusion could be justified only if the panel found, in advance of the trial, that the excluded pupil was guilty of the offence. I entirely agree with Moses J that this cannot possibly be the law. The school can only decide, as he suggested, whether —

"it is in the best interests of the school, all the pupils, the other pupil particularly concerned and of course the pupil who is charged, for that pupil to be excluded, bearing in mind that the truth or otherwise of the accusation cannot be determined until the criminal proceedings."