Ali (FC) (Respondent) v. Headteacher and Governors of Lord Grey School (Appellants)
40. But what conclusion does one draw from this? How does a precautionary exclusion of this kind fit into the statutory code? One possibility is that the departmental guidance misconstrued the statute and that a pupil can be excluded "on disciplinary grounds", permanently or for a fixed period according to the code, even though he cannot be proved to have committed any disciplinary offence. For my part, I think that the departmental construction was right. A case like this cannot be shoehorned into section 64 of the 1998 Act. The school does not want to exclude the pupil for any particular fixed period and certainly does not want to exclude him permanently. If he is found to be innocent, it is likely to want him back. The school needs to exclude him for the necessarily indeterminate period which must elapse until the investigation or prosecution is completed. Section 64 provides no way of doing this except by the artificial method of a succession of periods fixed by reference to a guess as to when the investigation is likely to finish, continuing until the 45 day maximum is reached, or by permanent exclusion on some understanding that an application for readmission will be considered after an acquittal.
41. If section 64 has no application to precautionary exclusions, how can they be legally justified? Circular 10/99 gave no guidance. It made no mention of precautionary exclusion. In the Department's new Guidance, issued in 2004 after the decision of Stanley Burnton J in this case, it recognizes the problem and seems to take the view that statutory authority must be found outside the code. It suggests (in para 23) that in the case of a pupil awaiting trial he should, with the agreement of the parents, be given authorized leave of absence, or if that cannot be agreed, the head teacher should be delegated the power of the governing body under section 29(3) of the Education Act 2002 to require the pupil to "attend at any place outside the school premises for the purposes of receiving any instruction or training included in the secular curriculum for the school." Under this power, he could presumably be sent off to a Pupil Referral Unit. On the other hand, in the case of another form of precautionary exclusion, namely when a pupil poses a risk to the health of other pupils and staff (eg by reason of a communicable disease) the Guidance does not suggest any statutory authority but says, perhaps optimistically, that "this is not an exclusion."
42. Another possibility is that the school has, as part of its general powers of management, the right to exclude a pupil on precautionary grounds, limited only by the need that it should be reasonably exercised. It is true that section 64(3) says that a pupil may not be excluded from a maintained school
But this means only that section 64 is the sole power for exclusion as defined in the section, namely, on disciplinary grounds. It does not exclude the possibility of exclusion in the ordinary sense of that word on other grounds.
43. Although these questions do not have to be decided for the purposes of this appeal, I have discussed them because they explain the practical difficulty which the school had in applying the section 64 code and the departmental guidance then available. It may be that, as the new Guidance suggests, the problems could now be solved by the use of section 29(3) of the 2002 Act. On the other hand, the Department may wish to consider whether the question of precautionary exclusion needs further clarification.
(b) Applying the code
44. As I have said, this case has been argued on the basis that exclusion could be justified only in accordance with the section 64 code. The judge found that in several respects the school had failed to comply with its provisions. Although it had been reasonable to exclude the respondent until the prosecution had been terminated and a reintegration meeting could be held, the school had not adhered to the code. The initial exclusion was not for a "fixed period" but "until we know what is going to happen". The head teacher did not notify the parents of the matters listed in section 65(1) or the governors and LEA of the matters listed in section 65(4). The governors did not consider the matter in accordance with section 66. The judge said, at para 93, that "[t]hese defaults flowed to some extent from the failure of the [deputy-head] to appreciate that an exclusion was involved" and the failure of the head teacher to address the same issue. I can only say that, given the state of the legislation and the departmental guidance, I am not surprised.
45. There followed periods of fixed term exclusion by which it was extended until the abortive meeting on 13 July. Here, for similar reasons, the notices were defective and the governors did not review the case as required by section 66. The judge found that this would have made no difference. On 6 June the maximum period of 45 days ran out and thereafter, if the code applied, the school had either to readmit the respondent or to decide to exclude him permanently. That the school should have been faced with these wholly impractical alternatives also shows how difficult it was to apply the code to the circumstances of the case. But the school did neither and accordingly the exclusion after 6 June could not be justified under the code.
46. The judge found that the respondent's exclusion after 13 July was not only unlawful in terms of the code but also unreasonable. I find this latter conclusion difficult to reconcile with the judge's other findings. He said that it was reasonable for the school to await formal notice of the discontinuance of the prosecution. He went on to say, at para 97, that the head teacher:
47. Accordingly, it was reasonable to exclude the respondent until such a meeting had been held. But no such meeting took place and the reason, as the judge found, was that the claimant's parents (who were being advised by a solicitor) had decided without good reason that they would not attend. The judge criticized the head teacher for not seeking an explanation for the non-attendance, but in the light of his finding that no credible explanation had been given at the trial, it is unlikely that in July 2001 the head teacher would have received one which was truthful or satisfactory.
48. Be that as it may, the exclusion of the respondent was at all times unlawful under the code. It is however conceded that this did not give rise to any cause of action against the school or the LEA for breach of statutory duty. These duties exist only in public law and do not create private law rights of action: see R (B) v Head Teacher of Alperton Community School  ELR 359, 380-381.
49. On 27 August 2002 the respondent started an action for damages against the school in the Milton Keynes County Court. He claimed that, contrary to section 6 of the Human Rights Act 1998, the school had acted in a way incompatible with a Convention right. The right relied upon was article 2 of the First Protocol: "No person shall be denied the right to education". In essence his claim was that because his exclusion from the school had been unlawful in terms of domestic law, he had been denied the right to education.
50. Stanley Burnton J, who heard the case on transfer to the High Court, rejected the claim:  4 All ER 1317. He said, at para 83:
51. Applying these principles, the judge said that after 13 July the LEA assumed responsibility for the respondent's education in the Pupil Referral Unit but their services had been declined. It could not therefore be said that the respondent had been denied the right to education. It remained available.
52. The Court of Appeal, in a judgment given by Sedley LJ (Clarke LJ and Dame Elizabeth Sloss P concurring) reversed this decision. The reasoning of Sedley LJ involved three stages. The first was contained in the following sentence ( QB 1231, 1251, at para 45:
53. Secondly, he said that until the end of the 45 day period the exclusion was unlawful but for reasons which were not material to the fact of exclusion. The school could lawfully have excluded the respondent and if there had been compliance with the requirements of sections 65 and 66 he would still have been excluded. After the 45 day period expired on 6 June, the illegality was of a different quality because he could have been excluded only by a decision to exclude him permanently. After the withdrawal of the prosecution on 19 June there would have been no grounds for permanent exclusion. He was therefore being denied a right to education under domestic law and it followed that he was denied his right under the Convention.
54. Thirdly, Sedley LJ said (at p. 1256, para 68,) that the existence of the LEA's "fallback duty" under section 19 of the 1996 Act did not relieve the school of liability. The school had the "primary duty to educate a child who had been accepted into their school, and, as a corollary, not to exclude him except as authorised by law."
55. I respectfully disagree with this reasoning and in particular with the first stage. The "necessary corollary" to which Sedley LJ referred simply does not follow. The principle, as stated by the European Court in the Belgian Linguistic Case (No 2) (1968) 1 EHRR 252, 281, is that art 2 of the First Protocol does not confer a right to an education which the domestic system does not provide:
56. This does not however guarantee access to any particular educational institution the domestic system does provide: see Simpson v United Kingdom (1989) 64 DR 188. Nor is there a right to remain in any particular institution. Everyone is no doubt entitled to be educated to a minimum standard (R (Holub) v Secretary of State for the Home Department  1 WLR 1359, 1367) but the right under article 2 extends no further.
57. Except in cases in which the applicant has been wholly excluded from some sector of the domestic educational system, the European Court's jurisprudence on article 2 of the First Protocol has never shown any interest in the procedures by which the applicant was denied entry to or expelled from a particular educational establishment. Such procedures may be relevant to rights under other articles, such as article 6 or 14, but article 2 of the First Protocol is concerned only with results: was the applicant denied the basic minimum of education available under the domestic system? For this purpose it is necessary to look at the domestic system as a whole. Thus in Yasanik v Turkey (1993) 74 DR 14, where the applicant had been expelled from a military academy, the Commission said that there was no denial of the right to education because the Turkish education system also included civilian establishments in which he could enrol.
58. I think that by parity of reasoning, the availability of teaching at the Pupil Referral Unit meant that the respondent had not been denied the right to education. As the necessary minimum of education was available, the Strasbourg court would not in my opinion concern itself with whether the fact that the respondent was obliged to attend the Pupil Referral Unit rather than the Lord Grey School was in accordance with domestic law or not. I think that Stanley Burnton J summarized the European jurisprudence accurately when he said, in the passage which I have quoted in para 50 above, that if suitable and adequate alternative arrangements are available but the pupil's parents decide that the child should not use them, neither the school nor the LEA will have acted inconsistently with the child's rights under article 2 of the First Protocol, and (at  4 All ER 1337, para 84), that "this is the position whether or not the expulsion from the school is lawful under domestic law."
59. I do not think that the cases of Timishev v Russia (15 December 2005), upon which Miss Booth QC for the respondent relied, and Eren v Turkey (Application No 60856/00) (unreported) (7 February 2006), which was drawn to the attention of the House after the conclusion of the argument, support a contrary view. In the Timishev case the applicant's children were excluded from school because he was not registered as resident in the area. His appeal to the domestic courts was dismissed, although the Government subsequently conceded that the exclusion was unlawful by Russian law. There was no suggestion that any alternative education had been available. The court said, at p 15, para 66:
60. In my opinion this does not mean that the failure to provide education was a breach of the Convention because in it was in breach of domestic law. It was a breach of the Convention because it was a failure to provide education. The court's reference to domestic law was to rebut an argument that such a failure could be justified, in accordance with the Belgian Linguistic Case (No 2) (1968) 1 EHRR 252, as being part of the Russian domestic educational system. Likewise, in the Eren case the applicant was wholly excluded from the Turkish university system on grounds which the European Court found to be arbitrary and lacking "a legal and rational basis."
61. In the present case, where the respondent was not excluded from school education, he would in my opinion have had no claim at Strasbourg. And if no claim can be made in Strasbourg, it follows that there cannot have been an infringement of a Convention right giving rise to a claim under section 6 of the Human Rights Act 1998: see R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs  3 WLR 837. It is in my view illegitimate to promote the public law duty of the school, not giving rise to a private right of action, to a duty under section 6 of the 1998 remediable by a claim for damages, by saying that in domestic law the school bore the "primary duty to educate the child". The correct approach is first to ask whether there was a denial of a Convention right. In the case of article 2 of the First Protocol, that would have required a systemic failure of the educational system which resulted in the respondent not having access to a minimum level of education. As there was no such failure, that is the end of the matter. It is only if a denial of a Convention right is established that one examines domestic law in order to discover which public authority, if any, is liable under article 6. This is an inquiry which can sometimes give rise to difficult questions of causation and which can make it necessary to ask which public authority bore the primary duty to act in accordance with the Convention. But no such question arises in this case.
62. For these reasons and those given by my noble and learned friend Lord Bingham of Cornhill, I would allow the appeal and restore the decision of Stanley Burnton J.
LORD SCOTT OF FOSCOTE
63. I have had the advantage of reading in advance the opinions of my noble and learned friends Lord Bingham of Cornhill and Lord Hoffmann and am in complete accordance with their reasons for concluding that this appeal should be allowed. The appeal has, however, been argued before the House on the footing that Abdul Hakum Ali's exclusion from the school while the proposed criminal proceedings for arson against him and the other two boys were pending was unlawful under domestic law. Stanley Burnton J so found and the Court of Appeal agreed. Nonetheless they concluded that his exclusion during this period did not bring about a breach of his right to education under article 2 of the First Protocol to the Convention. The reason was that during the period in question the school had made appropriate arrangements for Abdul Hakim to do schoolwork at home. The Court of Appeal took the view that Abdul Hakim's exclusion from the school after the criminal proceedings had been discontinued was not only unlawful under domestic law but also, differing from Stanley Burnton J, a breach of his article 2 of the First Protocol rights. Your Lordships have concluded that there was no such breach and that the appeal must therefore be allowed. In these circumstances the correctness of the judge's and the Court of Appeal's conclusion that Abdul Hakim's exclusion from the school was unlawful under domestic law, a conclusion not challenged before your Lordships, might seem a matter of no relevance. And it is indeed a matter that is not essential to the result of this appeal. But it is, I imagine, a matter of some importance to the school, and particularly to Ms Pavlou and Mrs Telfer. So I want, briefly, to explain why I think the conclusion, the premise on which the case has been argued before the House, to be wrong.
64. Stanley Burnton J expressed the opinion that the decision to keep Abdul Hakim away from the school while the criminal proceedings were pending, a decision taken initially by Mrs Telfer, the deputy head teacher, and confirmed and continued by Ms Pavlou, the head teacher, was a sensible and reasonable decision for the reasons he set out in paras 90 and 92 of his judgment. He found, nonetheless, that the decision was unlawful. Here, my Lords, is a puzzling paradox. The head teacher, to whom is entrusted the day-to-day management of the school, and her deputy take a sensible and reasonable decision to deal with an awkward situation, not of their making. Three boys had been charged with arson, with having started a fire in a school classroom. Other pupils at the school were potential witnesses. None of the staff of the school had been eyewitnesses to what had occurred. Ms Pavlou had been advised by the police not to question the boys about the fire. It was not possible, therefore, for her to satisfy herself of their responsibility for the fire, or, the converse, that one or other bore no responsibility. So what was she to do? Her decision to keep them away from the school while the criminal proceedings were pending and to make arrangements for schoolwork to be provided for them to do at home was obviously reasonable and dictated by common sense. So Stanley Burnton J held and he was plainly right to do so.
65. The paradoxical conclusion that to send the boys home and keep them away from the school until the criminal proceedings were resolved had been unlawful was attributable to the assumption that their exclusion from the school was an exclusion to which sections 64 to 68 of the School Standards and Framework Act 1998 applied. It was common ground that the school had not complied with the statutory requirements of a section 64 exclusion. But the assumption that the exclusion of the boys from the school was an exclusion to which section 64 applied was, in my opinion, mistaken.
66. Section 64 gives to a head teacher of a maintained school power to exclude a pupil from the school either for a fixed period or permanently (sub-section (1)). Fixed period exclusions may not exceed 45 days in any one school year (sub-section (2)). And sub-section (3) says that
But sub-section (4) says that :
The provisions of section 65 ("Exclusion of pupils: duty to inform parents, etc."), section 66 ("Functions of governing body in relation to excluded pupils"), section 67 ("Appeals against exclusion of pupils") and section 68 ("Exclusion of pupils: guidance") apply to exclusions on disciplinary grounds. The provisions have no application to exclusions which are not on disciplinary grounds. Nor does section 64(3) bar an exclusion which is not on disciplinary grounds.
67. The need for a strict approach to and control of the exclusion of pupils from school on disciplinary grounds is clear. The exclusion of a pupil from school on disciplinary grounds, whether for a fixed term or permanently, has a penal character. It is a sanction imposed for a disciplinary offence. It should not be imposed unless there is a fair certainty that the pupil is guilty of the offence. Provision for the pupil to appeal to the school governing body (section 66) and from the governing body to an appeal panel (section 67) underlines the character of the sanction.
68. I am unable to understand on what basis it was thought that the three boys had been kept away from the school "on disciplinary grounds". The head teacher had not concluded, and was not in a position in which she could have concluded, that any of them was responsible for the fire or guilty of any disciplinary offence. Their enforced absence from the school was a management decision. At the time the decision was taken there was nothing for which any of the boys could fairly have been disciplined.
69. It seems to me clear that the management powers of a head teacher enable him or her to keep a pupil temporarily away from the school for reasons that have nothing to do with discipline. An obvious example is that of a pupil who arrives at school one day suffering from some infectious disease. It may be necessary, in order to safeguard the health of the other pupils and the school staff, for the pupil to be sent home until he or she is not longer infectious. It is to be hoped that the pupil's parents or guardians would agree with this course. But if they did not, the head teacher (or, in the head teacher's absence, his or her deputy) would, in my opinion, have power to impose it. The situation that confronted Mrs Telfer on 8 March 2001 and Ms Pavlou shortly thereafter is, in my opinion, another example where sensible and responsible management of a school may require a pupil to be kept temporarily away from the school. It would, in my opinion, be lamentable if, by an application of sections 64 to 68 to situations to which they could never have been intended to apply, managers of schools found themselves placed in a statutory straitjacket and prevented from taking sensible decisions to deal with unusual situations.
70. For these reasons, my Lords, the exclusion of Abdul Hakim from the Lord Grey School during the pendancy of the criminal proceedings against him was, in my opinion, at no stage unlawful under domestic law. Thereafter the school did all that was reasonable to try to convene a meeting with his parents at which arrangements for his return to the school could be made. The parents did not respond to Ms Pavlou's letters of 3 July 2001 and 4 July 2001 and did not attend the meeting arranged for 13 July 2001. Ms Pavlou was given to understand by the LEA, who had been trying to make arrangements for him to have access to education at a Pupil Referral Unit, that he was in Bangladesh. In the circumstances it was understandable that Ms Pavlou concluded that they did not intend him to return to the school and that his name should be removed from the school roll.
71. While, therefore, agreeing with my noble and learned friends that for all the reasons they have given this appeal should be allowed, I would, for my part, exonerate Mrs Telfer and Ms Pavlou from the stigma of the finding of the courts below that they acted unlawfully in the decisions they took regarding Abdul Hakim. Their actions and decisions were, in my opinion, not only sensible and reasonable but also lawful.
BARONESS HALE OF RICHMOND
72. I wish that I found this case as plain as your lordships have done. Education plays an indispensable and fundamental role in a democratic society: see Sahin v Turkey, (Application No 44774/98) 10 November 2005, para 137. Without it, children will not grow up to play their part in the adult world, to exercise their rights but also to meet their responsibilities. That is why children must not be denied their right to the education which the state provides for them. On the plain facts of this case, Abdul Hakim Ali was denied the education which ought to have been provided for him under our national educational system from 13 July 2001 until he started at his new school in January 2002. No-one has suggested that this was his fault.