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No Common Law Power for Principal to Exclude Pupil Says Supreme Court
07 July 2010 --
The question whether a school principal had any power to suspend pupils from
school on grounds other than those expressly provided for by the Education and
Library Board's scheme arose in the Supreme Court case Application by 'JR17' for
Judicial Review [2010] UKSC 27, [2010] All ER (D) 186 (Jun). Fearghal Shiels,
solicitor for Madden & Finucane who represented the applicant pupil, speaks to
Anne-Marie Forker about the judgment
A pupil was suspended from school after a complaint from a female pupil about
the pupil’s alleged misconduct in school. The Education and Library Board had
prepared a scheme governing the suspension and expulsion of pupils, pursuant to
the requirement of the Education and Libraries (Northern Ireland) Order 1986.
The principal purported to suspend the pupil in accordance with the Scheme but
in fact failed to comply with its requirements. The pupil brought proceedings
for judicial review, claiming that the suspension was unlawful and breached his
right to education pursuant to art 2 of the First Protocol of the European
Convention on Human Rights, which the Human Rights Act 1998 protects.
The Supreme Court determined by a majority that the principal's only power to
exclude was as provided for in the scheme, and that contrary to the decision of
the Court of Appeal, the principal did not have any common law management powers
which entitled him to exclude pupils. It is understood, Shiels states, that
“there has been a practice on the part of schools in Northern Ireland, of
suspending/excluding pupils on ‘non-disciplinary grounds’ thus denying pupils
the procedural safeguards provided for, and enabling school's to exclude pupils
for longer periods than would be permitted under the scheme. The most
significant impact of the system is to make it clear that the only lawful basis
for excluding pupils is provided for by the Board's scheme.” Shiels also points
out that there are a number of other “discrete legislative provisions which
provide for exclusion where there are issues in relation to public health or
cleanliness”.
Another element of the applicant's case, Shiels explains, was that “we had
consistently advanced the case that, whilst the suspension was being referred to
as precautionary, it was in fact disciplinary, because the alleged conduct
amounted to a breach of the school's disciplinary policy. Despite this the
applicant had not benefited from the procedural requirements of the scheme, the
right to know the case against him and to respond to any allegations made
against him.”
“Crucially the Court unanimously concluded that there had been a breach of the
Board's procedures and that the investigation into the allegation was unfair. A
number of their Lordships also noted that he had received a more severe
punishment than he would have received had the School complied with the
procedures and nonetheless found that he was engaged in misconduct.”
Is the decision significant? Shiels states it is: “The decision is significant
in terms of preventing schools from using informal procedures to avoid having to
comply with the procedural safeguards provided for by the Education and Library
Board's schemes, procedures which are essentially aimed at ensuring pupil's are
not excluded without a fair procedure. The only caveat that we would make is
that we consider that where a pupil is unlawfully excluded from school,
resulting in his being denied the level of education to which he would, under
domestic law be entitled, this amounts to a breach of his art 2, Protocol 1
rights. In that respect we would endorse Baroness Hale's judgment, albeit she
didn't push the issue to a dissent. Nonetheless it is acknowledged that the
Supreme Court was significantly limited in addressing this issue by the earlier
decision of the House of Lords in A v Lord Grey School and ultimately this issue
is likely to be addressed by the Strasbourg courts.”
Would the European Court of Human Rights have reached the same conclusion as the
Supreme Court? Shiels says the case-law on art 2, Protocol 1 in the European
Court has tended to focus on cases “where there has been a complete denial of
education and also where there has been a breach of art 2, Protocol 1 read in
conjunction with art 14”. The question as to whether unlawful exclusion can
result in a violation of art 2, Protocol 1 rights in circumstances where the
pupil is given access to education, albeit more limited than that to which he is
lawfully entitled “remains a live issue”, according to Shiels. Nonetheless, he
says, “there are cases which would tend to suggest that where the State's
conduct is disproportionate, as we would contend is the case here a violation of
art 2, Protocol 1 could be found - Sahin v Turkey (2007) 44 EHHR and Eren v
Turkey (2007) 44 EHRR 28.”
What are the implications for lawyers? “Inasmuch as schools are engaging in
informal suspensions it will be considerably easier to challenge such
decisions”, Shiels says.
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