Judgments - In re L (a minor by his father and litigation friend) (Appellant)

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    50. Accordingly I would dismiss this appeal.

LORD SCOTT OF FOSCOTE

My Lords,

    51. I have had the advantage of reading the opinion prepared by my noble and learned friend Lord Bingham of Cornhill and gratefully adopt his recital of the facts that have given rise to this litigation, the issues that have arisen and the statutory provisions relevant to those issues.

    52. It is convenient, however, to rehearse very briefly how and why the issue between L and the school arose. It was believed by the school authorities that L had been an active participant in a violent assault that a number of the boys of the school had committed on a fellow pupil. The assault took place on 22 January 2001. On the following day the school's head teacher, having investigated the incident, decided to impose on L the sanction of permanent exclusion from the school (see section 64(1) of the School Standards and Framework Act 1998). In the language of yesteryear, L was expelled. The head teacher, as he was bound by the Act to do, informed L's parents, the school governors and the local education authority of the expulsion (section 65). The governors, after considering representations from, among others, L's parents, confirmed the expulsion. They could, if they had thought it right to do so, have directed L to be "re-instated", either immediately or by a specified date (see section 66(3)). If the governors had directed L's re-instatement, the head teacher would have come under an express statutory obligation to comply with the direction (subsection (5)).

    53. L's expulsion having been confirmed by the school governors, L's parents exercised the right given them by section 67 of the Act to appeal against the governors' decision not to direct L's re-instatement. An appeal panel's options on hearing such an appeal are very limited. They can, of course, dismiss the appeal. But if the appeal is to be allowed they must direct either an immediate re-instatement or a re-instatement by some specified date (subsection (4)). The appeal panel cannot impose conditions on a pupil as part of a re-instatement direction nor can they substitute for the expulsion some lesser sanction.

    54. The appeal was heard on 9 March 2001. It succeeded. The appeal panel directed that L be re-instated immediately. Lord Bingham, in paragraph 2 of his opinion, has referred to the panel's reasons for allowing the appeal.

    55. Section 67 of the Act does not contain any express provision, comparable to section 66(5), requiring the head teacher to comply with the appeal panel's re-instatement direction. It is plain, nonetheless, and no one has suggested the contrary, that the head teacher must have an implied statutory obligation to comply. The issue in this case is whether the head teacher of the J School was in breach of the appeal panel's direction that L be re-instated.

    56. The word "re-instated", where it appears in sections 66 and 67 of the Act, is not a term of art. It has no defined statutory meaning. It is an ordinary word in the English language capable, like most words, of various nuances of meaning and whose precise meaning must depend upon the context in which it finds itself. As to its meaning in sections 66 and 67, two extremes were discussed in argument before your Lordships. One was that the pupil must be restored to the status quo ante in all respects. The other, on the opposite side of the spectrum, was that all that would be needed would be a formal re-acceptance by the school of responsibility for the pupil, by, for example, replacing his name on the school roll. My Lords, I would reject both of these extremes. As to the formal re-acceptance by the school of responsibility, that acceptance would certainly be necessary but would not be sufficient. The formal re-acceptance would have to be accompanied by treatment of the pupil that was consistent with his or her status as a pupil of the school. Otherwise the re-acceptance would be meaningless.

    57. As to the comprehensive restoration of the status quo ante as a requisite of section 66 or section 67 re-instatement, the proposition seems to me to overlook the nature of a school. When the head of the statue of Lady Thatcher was knocked off with a broom handle, re-instatement might require nothing more than fixing the head back on the statue. But a school is not like a statue. It is an organic structure with a number of constituent parts. There are the individual pupils as well as the body of pupils as a whole. There are the individual teachers as well as the body of teachers as a whole. There is the head teacher. There are the non-teaching staff, caretakers, dinner ladies and so on. The "re-instatement" of an expelled pupil as a member of an organic body such a school may require the relationship of the pupil with each of these constituent parts and the expected or likely interaction between them to be taken into account.

    58. The head teacher is the person responsible for the general management and conduct of the school. His statutory obligation to comply with a re-instatement direction given by an appeal panel, or for that matter given by the governors, is not his only obligation. He has statutory obligations in relation to good behaviour and discipline (section 61 of the Act). He has obligations to try and secure that the pupils in his school receive the education to which they are entitled and, as part of that obligation, to try to create and maintain an environment within the school conducive to learning. He has authority over, and consequently obligations and responsibilities towards, teachers.

    59. When faced with giving effect to the appeal panel's direction that L be re-instated, the head teacher of the J School had to try to comply with that direction in a manner consistent with his other obligations in the school. He was faced by a threat of industrial action from the teaching staff who had indicated their unwillingness to have L back in their classrooms. He had to have in mind the need to keep L from any possibility of contact with the victim of the assault. And the decision as to how to manage L's re-instatement was being taken at a time, the end of March, when GCSE examinations for his year were imminent and when active teaching, as opposed to supervised revision, was coming to an end.

    60. There is no doubt but that the first step necessary to comply with the direction that L be re-instated was taken. The school did resume responsibility for L as a pupil at the school. But did it then treat him in a manner consistent with that status? In my opinion, it did. A room in the school was made available for his studies. Arrangements were made for a teacher to be present in the room to supervise him. The teacher provided him with tuition in maths. Other teachers, although they did not provide face to face tuition in their respective subjects, set him work to do and marked it. Arrangements were made for his travel to and from the school.

    61. Miss Booth, his counsel, submitted that this treatment of L was not sufficient to constitute re-instatement. She pointed, in particular, to the absence of any social contact between L and the other pupils. I would readily agree that social interaction between pupils is a highly important aspect of school life. Social skills cannot very well be measured in a scale against educational skills but I do not think anyone would deny their importance or the part school life has to play in enabling them to be acquired. But Miss Booth's submission seems to me to lose its force when considered in the context of the facts of this case. The end of the school year was approaching. The time was imminent for pupils in L's year to concentrate on the forthcoming GCSE exams. L's loss of social contact with other pupils at the school for a relatively short period had to be measured against the possible disruption to the teaching of the other pupils in the school, and particularly those who, like L, were approaching important exams, that might have followed if the head teacher had insisted on L rejoining normal classes, and had to be measured also against the possible effect on the unfortunate victim of the assault if one of the believed perpetrators of the assault had been permitted to resume social contact at the school with the other pupils.

    62. It seems to me plain that the need to "re-instate" L required the head teacher to balance a number of factors, pulling in different directions. His decision to subject L to the regime described in Lord Bingham's opinion may or may not have been the best practical solution to the problem. But at least, in my opinion, particularly in view of the short time the regime was to last, his adoption of it was a permissible response to the problem and one that was consistent with treating L as a pupil at the school.

    63. This conclusion can be tested by considering what the position would have been if the head teacher, following the assault on 22 January, had decided not to impose the sanction of expulsion on L but, instead, to isolate him from the rest of the pupils for, say, the remainder of the Lent term by imposing on him the regime that was in the event imposed at the end of March. L could have challenged the lawfulness of such a decision by commencing judicial review proceedings. Whether such a decision would or would not have been lawful would have depended on exactly the same considerations as those on which the present appeal depends. If it would have been lawful, as a response to the difficulties resulting from the assault, his participation (or believed participation) in the assault, the staff's threat of industrial action, the need to protect the victim of the assault and need to make continuing provision for L's education for a period of six weeks or so, to prescribe for L the regime in question, it must follow that it cannot be contended that, following the expulsion and the successful appeal, the prescription of the regime constituted a failure to reinstate L. On this view of the case the real issue is not as to the precise meaning to be attributed to the word "reinstate" in sections 66 and 67 but as to the lawfulness of the head teacher's response to the difficulties confronting him. In my opinion, his response cannot be characterised as unreasonable and disproportionate and, accordingly, was lawful.

    64. For these reasons, and those contained in the opinion of my noble and learned friends, Lord Hobhouse of Woodborough and Lord Walker of Gestingthorpe, I would dismiss the appeal.

    LORD WALKER OF GESTINGTHORPE

My Lords,

    65. Under the School Standards and Framework Act 1998 ("the Act") a head teacher has power to exclude a pupil from school, either temporarily or permanently, on disciplinary grounds. This power is necessary as regrettably some pupils' behaviour is so bad that any other response would be inadequate. As several recent cases illustrate, pupils (especially boys at secondary schools) may engage in physical violence to fellow-pupils or teachers, bullying and intimidation, persistent disruption, disobedience and defiance of authority. Such behaviour can be extremely damaging to the morale and well-being of the school community as a whole (including pupils, teachers, administrators and other support staff). It may become so intolerable that the exclusion of one or more pupils is called for in the interests of the whole school community.

    66. But there is of course another side to the problem. As it is put in the official publication Social Inclusion: Pupil Support (circular number 10/99, first issued in July 1999 as guidance under section 68 of the Act - "the circular") many pupils excluded from school never get back into education, and risk exclusion from mainstream society later in life. Any decision to exclude a pupil permanently is therefore a momentous decision not to be taken lightly or in haste. The appeal machinery provided by the Act - first automatic review by the discipline committee of the school governors, and then an appeal to an independent appeal panel - emphasises that. Government policy (as explained in the circular) is that permanent exclusion should be a last resort (although draft amendments to the circular issued for consultation in January 2002 propose new and more detailed qualifications to that general principle).

    67. The material facts and statutory provisions are set out in the speech of my noble and learned friend Lord Bingham of Cornhill, to which I gratefully refer. The first issue on the appeal is on its face a short point of statutory construction, that is the meaning to be given to the single word "reinstate" (and its cognate "reinstatement") in sections 66 and 67 of the Act. Despite the fairly extensive argument developed by Miss Booth QC I consider that it is indeed a fairly short point, and that Henriques J and the Court of Appeal (following Richards J in R (C) v Governors of B School [2001] ELR 285) were right in their conclusion that it means simply that a pupil ceases to be excluded from the school in question.

    68. Miss Booth submitted that a pupil could not be reinstated at school merely by restoring his or her name to the school roll. That would, she said, be far too narrow and legalistic an approach. So it would be, if the entry of a name on a school roll were no more than a formality. But it is not a mere formality. It is in this context a symbolic act with very important legal consequences. It restores the legal relationship (discontinued by permanent exclusion) between the school community and the individual pupil and it brings back into force the web of statutory and common law obligations which the school owes to all its pupils, including the reinstated pupil. The more difficult issue, to my mind, is whether the governors' decision, conveyed to the appellant's parents by the head teacher's letter of 23 March 2001 (and challenged by the appellant in his judicial review proceedings) did adequately recognise and give effect to those obligations. Miss Booth's submissions on that point call for much fuller consideration.

    69. On the short point of statutory construction, I attach particular weight to the almost complete absence of any power for either the governors (under section 66 of the Act) or the independent appeal panel (under section 67) to attach conditions or ancillary directions to any decision for reinstatement. (The only qualifications to this are a discretion as to the timing of reinstatement, and the reference to practicality in section 66 (3), which seems to be directed largely to timing). That is to my mind a powerful indication that the appeal process is concerned only with the bare decision whether or not the pupil should be permanently excluded, and not in any way with how the pupil's reinstatement should be managed (otherwise than as a matter of timing). Yet the appeal may be (in a rough analogy) an appeal against conviction or an appeal against sentence (or both). Moreover a successful appeal against "conviction" may amount to anything from a complete exoneration (for example, because of a mistaken identification) to a borderline decision based on procedural irregularity. Yet the terms of a direction for reinstatement must be (except as regards timing) entirely neutral. Any special arrangements to be made for a pupil after reinstatement are a matter for the head teacher and the governors. Their joint role in the organisation, management and control of a maintained school is central to the statutory scheme: see section 38 of the Act and regulations 4 to 7 of the Education (School Government) (Terms of Reference) (England) Regulations 2000 (SI 2000/2122).

    70. That indicates that any guidance as to the treatment of a reinstated pupil is to be found elsewhere. There are various sanctions short of exclusion which are referred to in paras 4.11 and 4.12 of the circular:

    "Sanctions should be applied fairly and consistently to all pupils, taking account of all circumstances including the child's age, and within a context of positive reinforcement of good behaviour. Sanctions might include:

*removal from the group (in class);
*withdrawal of break or lunchtime privileges;

*detention;

*withholding participation in any school trips or sports events that are not an essential part of the curriculum;

*withdrawal from, for example, a particular lesson or peer group;

*completion of assigned work or extra written work;

*carrying out a useful task in the school.

    Punishments that are humiliating or degrading should not be used."

    71. The circular also makes clear that partially segregated "learning support units" within schools can be used for pupils at risk of exclusion: see paras 4.13 to 4.19 of the circular. Para 4.17 notes that in-school centres can help disaffected pupils remain at school and follow broadly the same curriculum as their peers, while minimising disruption in class; the school's pastoral responsibility is not affected. A case study appended to para 4.19 actually refers to one such unit as a "in-school exclusion centre" but makes clear that this regime is not regarded as exclusion, but as a means of avoiding exclusion.

    72. On the point of statutory construction the most powerful argument the other way (although one which was barely touched on in the course of counsel's submissions) is that sections 66 and 67 of (and Schedule 18 to) the Act use the words "reinstate" and "reinstatement" in relation to temporary as well as permanent exclusion (that is clear from, for instance, section 66 (6)). The same is true of the earlier provisions in the Education (No 2) Act 1986, the Education Act 1993 (which stopped exclusion for an indefinite period, an option previously available) and the Education Act 1996. Exclusion of a pupil for a fixed period (say 10 school days) does not put an end to the relationship between school and pupil, and so reinstatement (after say 5 days) does not bring it into being again. The circular recognises (see paras 6.5 and 6.7) that the school's responsibility continues during temporary exclusion, and that work should be set and marked when any pupil is excluded for more than one day.

    73. This argument calls for serious consideration. It is not answered simply by pointing out that successful appeals against temporary exclusions must in practice be very rare. Nevertheless I do not find the argument so powerful as to be determinative. Section 64 (3) of the Act provides:

    "A pupil may not be excluded from a maintained school (whether by suspension, expulsion or otherwise) except by the head teacher in accordance with this section".

    Temporary exclusion is suspension by another name, and it does not put an end to the continuing responsibility of school to pupil. Permanent exclusion is expulsion by another name, and it does put an end to the relationship between school and pupil. It might have been better if Parliament had used those other names, and had used different expressions to mark the difference between curtailing a suspension and reversing an expulsion. But the fact that reinstatement must have a different meaning in relation to temporary exclusion cannot in my view alter its natural meaning in the provisions of the Act relating to permanent exclusion.

    74. It was suggested in the course of argument that the conditions imposed on the appellant's return amounted to subjecting him to "a correspondence course in a prison" and might be seen as constructive exclusion (on a parallel with constructive dismissal in employment law, or constructive desertion under the old law of matrimonial causes). Miss Booth submitted that the conditions set out in the memorandum signed on 26 March 2001 by the head teacher and the appellant had the effect of making him a social and educational pariah, and that although the head teacher had a wide discretion, the conditions went beyond what was reasonable or proportionate. She relied in particular on the fact that the appellant received face to face tuition in only one subject (mathematics); that he took no part in sports or games; and that he did not associate with his fellow pupils at any other times, including mealtimes and acts of worship.

    75. Any judgment as to the lawfulness of the conditions has to take account of the teachers' clear threat of industrial action, backed by appropriate statutory notices and the ballot procedure prescribed by the Trade Union and Labour Relations (Consolidation) Act 1992. This is a further important element in the appeal. It is noteworthy that there are respectable arguments that the threat of industrial action reinforces any assertion of the lawfulness of the governors' action, and that there are also respectable arguments that it has the opposite effect, of undermining the lawfulness of their action. The argument one way is that the head teacher and the governors, faced with the threat of industrial action, had no realistic alternative but to impose on the appellant a regime which might otherwise have been considered too extreme. The argument the other way is that by giving in to the threat of industrial action they were capitulating to coercion and failing to observe the rule of law (compare the fairly extreme case of R v Coventry City Council, Ex p Phoenix Aviation [1995] 3 All ER 37); and that the exercise of their discretion was therefore flawed.

    76. The agreed statement of facts and issues records (in para 29) the common ground that but for the teachers' decision to refuse to teach or supervise the appellant, he would have been reintegrated into ordinary classroom life. Your Lordships have to accept this agreed fact at face value, but I have to say that I find it surprising and rather disturbing, at any rate if it means that the appellant would have returned to an entirely unchanged school regime. I would have thought that the pressing need to protect the victim against further stress (while he prepared for his GCSE exams), would have necessitated some restrictions on the appellant's freedom of association during the short final period of his career at the school. Partly for that reason, and partly because of the ambivalent significance of the teachers' threat, I find it useful to start by considering whether the regime of strict segregation and very limited face to face teaching imposed on the appellant would, in the absence of any threat of industrial action, have been unlawful.

    77. The regime imposed on the appellant was undoubtedly severe, and for my part I think its severity was ill-advised. But I would reject the suggestion (made by Miss Booth when she read para 4.12 of the circular, but not developed) that it was humiliating or degrading. The room in which the appellant was required to work was the school parlour, a room normally used for receiving visitors. The teacher who supervised the appellant was a very experienced teacher who had recently retired and was re-engaged for the sole purpose of supervising the appellant (and the other reinstated pupil who joined him, so that the appellant's segregation, although severe, was not total). It appears that apart from the supervising teacher five (out of eleven) of the appellant's regular teachers visited him. There is a dispute as to whether the appellant's performance in his GCSE exams was worse or better as a result of his being placed in segregation to study on his own. Since he had been away from school from 23 January until 26 March 2001 it would in any case be extremely difficult to distinguish between that absence, and any later lack of ordinary classroom tuition, as causative of relatively poor results.

    78. The duration of the segregated regime seems to have been (as was predictable from the start) 30 days, 10 at the end of term before Easter, and 20 before the GCSE students were released on study leave. It was a time in their school careers when they were largely concerned with study and revision. The victim of these assaults would not in any event have been in the appellant's class (or rather in the same sets) but there must have been grounds for taking steps to ensure that the appellant and the victim did not meet at the beginning or end of the school day, or during breaks. The victim had suffered serious violence in an incident in which the appellant had, on his own admission, participated.

    79. No attack has been made on the good faith of either the head teacher or the governors. They had the responsibility, on the appellant's reinstatement, of managing his return to the school in the interests of the appellant, the other pupils, and the whole school community. Having regard to all the factors which I have mentioned, I consider that their decision, although ill-advised in depriving the appellant of any normal contact with his fellow-pupils, was not so extreme or so disproportionate as to go beyond the limits of their managerial and pastoral discretion. I would take that view even if the teachers had not made their threat of industrial action.

    80. It is accepted on behalf of the appellant that the threat of industrial action was not an irrelevant consideration. I think that it was a most regrettable event, especially when coupled with the teachers' refusal even to consider the contents of the independent appeal panel's decision. The teachers' reaction was irresponsible and unprofessional, however exasperated they were at the turn of events. Nevertheless it is common ground that there was a trade dispute within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992 and a regular ballot on industrial action was held. The teachers' action was deplorable but it cannot to my mind detract from the lawfulness of the governors' decision.

    81. Were it not for the agreed position in para 29 of the statement of facts and issues, I would be reluctant to say that the threat of industrial action significantly improved the quality of the governors' decision. The teachers at the school owed loyalties in many directions—to the governors, to the head teacher, to their fellow teachers, to the appellant and to all the other pupils in the school. There was no obvious hierarchy for choosing between those loyalties. By putting pressure on the governors and the head teacher the teachers sought to interfere in the statutory arrangements for the governance of the school in a way that threatened to frustrate the decision of the independent appeal panel. Nevertheless their action was in itself lawful. It may have come close to putting the governors and the head teacher in breach of their duties (consider, for instance, what would have been the position if no suitable retired teacher had been willing and able to come out of retirement in order to teach and supervise the appellant). It was a risky and irresponsible course. But in the event it did not, in my view, lead to unlawful action by the governors or the head teacher.

    

 
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