Ipsofactoj.com: International Cases [2003] Part 8 Case 4 [HL]


HOUSE OF LORDS

Coram

L

- vs -

Governors of J School

LORD BINGHAM OF CORNHILL

LORD HOFFMANN

LORD HOBHOUSE OF WOODBOROUGH

LORD SCOTT OF FOSCOTE

LORD WALKER OF GESTINGTHORPE

27 FEBRUARY 2003


Judgment

Lord Bingham of Cornhill

My Lords,

  1. This appeal concerns the meaning and effect of "reinstate" and "reinstated" in section 67 and related provisions of the School Standards and Framework Act 1998 ("the 1998 Act"). The issue raised is one of importance not only to individual pupils but also to local education authorities, school governing bodies, head teachers, teaching staff and parents.

  2. The effective appellant is L, who appears in these proceedings by his father and whose anonymity has been preserved by court order. L was aged just 16, and was embarking on the second term of his GCSE year, when on 22 January 2001 he was (to some extent) involved, with others, in a violent and injurious assault on a fellow pupil in the same year. The assault took place at the J School, which they all attended. On the following day L's head teacher excluded him permanently from the school. In a letter dated 23 January the head teacher notified L's parents of his decision and the reasons for it, stating that L had "kicked the victim several times". The governing body of the school (who are the respondents in these proceedings) reviewed the head teacher's decision at a hearing on 2 February 2001, when L's parents were heard, but the head teacher's decision was upheld and L's parents were promptly informed. They then appealed to an independent appeal panel which heard the appeal on 9 March 2001. The appeal panel allowed the appeal and directed that L should be reinstated immediately. As explained in a letter dated 12 March 2001 to L's parents, the decision to allow the appeal was based on several grounds: there had been significant deviations from recommended investigative procedures; there was concern that other pupils involved in the incident had not been permanently excluded, raising a question whether pupils had been treated equally; there were discrepancies and inconsistencies in the evidence; the evidence did not suggest that L had been involved to the same degree as other excluded pupils; on the balance of probabilities the appeal panel concluded that L had not been guilty of the specific behaviour of which he had been accused in the head teacher's letter (kicking the victim several times); permanent exclusion was not an appropriate response. During the hearing L told the appeal panel that he had aimed a kick at the victim, but had missed. He had no record of fixed term exclusions, and the head teacher believed him normally to be an honest pupil.

  3. A meeting was held between the head teacher, the chairman of the governing body and L's parents on 20 March 2001, when the head teacher told the parents that the teachers at the school were unwilling to teach or supervise L and were balloting on industrial action, but that L was reinstated on the school roll. The meeting ended prematurely when L's parents left. The parents understood the head teacher to have said at the meeting that L "would not be allowed to return to the school between now and his GCSEs later this year", and they instructed solicitors who wrote on 21 March threatening proceedings. The head teacher replied by return, saying that he had made it clear to L's parents that L had been reinstated on the school roll and the school was now responsible for his continuing education. The purpose of the meeting, he said, had been to discuss how the school proposed to discharge both its obligations to L and its obligations to other pupils and members of staff.

  4. On 23 March 2001 the head teacher wrote to L's parents in these terms [as anonymised]:

    Further to our discussion of Tuesday, 20 March, I am writing to provide details of [L's] reinstatement into the [....] School.

    Given the circumstances which I outlined to you at our meeting specific arrangements are being made to provide for [L's] education at the School.

    I have a duty to the health and safety of all children in the School and in the light of this I have arranged with the Local Education Authority that [L] has alternative provision made for his transport to and from School. For the week beginning 26 March this will comprise a dedicated taxi from your home to the School and back.

    [L] will be provided with work and a teacher in a room isolated from the mainstream of the School. He will not return to the classroom but will be taught privately. He will not be allowed to circulate with other pupils at any stage in the school day.

    [L] should report directly to the reception area of the School on Monday morning and on each morning thereafter. He must not mix with pupils or students at any point in the school day, including the start and finish of the school day.

    On L's return to school on Monday 26 March he was given a document bearing the name of the school and signed by the head teacher which, as anonymised, read:

    Requirements Relating to the Conduct of [L] Upon his Return to [school]

    (1)

    All work will be undertaken under supervision in the Parlour at the reception area of the school.

    (2)

    There will be no contact at all with other members of the school community at any time in the course of the school day or in the journey to and from school.

    (3)

    Morning breaks and lunch breaks will be spent in the Parlour. Provision will be made by the school for lunch.

    (4)

    The only toilet facilities to be used are in the reception area.

    (5)

    In the event of a fire drill [L] and his supervisor will go to the area outside the school chapel.

    (6)

    [L] is to report directly to the main reception area immediately upon arrival at the school. Other entrances may not be used.

    Failure to keep any of these requirements will be considered a serious breach of school discipline and will result in permanent exclusion.

    L did not rejoin mainstream classes at the school. He spent the school day in a room about 100 feet square, initially as the only pupil until he was joined by another pupil who had also been excluded over the same incident but whose appeal to the appeal panel had also succeeded. L was told that he must remain in the room (save for toilet breaks) throughout the day. He was not permitted to speak to or associate with any other pupil (until joined by the other pupil, and then only to and with him), or to staff members save for his supervisor and any other staff member who wished to visit him. He took his GCSEs in a different room from other pupils. He was not allowed to participate in communal acts of worship.

  5. A maths teacher who had taught at the school before retirement but was not a trade union member was engaged to supervise L (and, in due course, the other pupil) and also taught him (and the other pupil) maths. Otherwise L received no face to face tuition, although teachers in other subjects set work and marked it. Evidence from the school suggested that this regime had proved beneficial to L's educational performance, but this was a view strongly challenged on behalf of L.

  6. In a letter of 19 March 2001, the Association of Teachers and Lecturers (one of the trade unions with members among the teaching staff) told the school of its intention to hold a ballot on 27 March on industrial action in connection with the teaching and supervision of L. In a letter of 20 March a second union with members at the school, the National Association of School Masters/Union of Women Teachers, followed suit, giving notice of a ballot to be held on 28 March. Both ballots were duly held. Eight of the nine ATL members balloted by the ATL supported industrial action short of a strike, the only course of action on which the ballot was taken. Of twenty five NASUWT members, asked whether they were prepared to take part in either strike action or industrial action short of a strike in furtherance of the dispute concerning the head teacher's direction to teach L, only a minority favoured the former but all of the twenty four who responded favoured the latter course. The summer term was due to begin on 23 April 2001 and on that day the head teacher attended meetings first with the members of the staff who were union representatives, when it was indicated what members were and were not willing to do, and then with the chairman of the governing body and regional officers of the unions. It was indicated by the regional officers that the action balloted upon would be continued indefinitely. It was common ground in this case that, but for the decision of the teachers and the teaching unions to refuse to teach or supervise L, he would have been reintegrated into ordinary classroom life.

    THE STATUTORY AND REGULATORY FRAMEWORK

  7. The public educational system in England is underpinned by two reciprocal obligations. First, an obligation is placed on the parent of every child of compulsory school age to cause that child to receive efficient full-time education suitable to his age, ability and aptitude and to any special educational needs he may have, either by regular attendance at school or otherwise (Education Act 1996, "the 1996 Act", section 7). This obligation is complemented by an obligation placed on local education authorities to secure that there are enough schools in their area to provide primary and secondary education of sufficient variety for pupils of different ages, abilities and aptitudes (the 1996 Act, section 14). Local education authorities must also arrange for the provision of suitable education at school or elsewhere for school age children who have been excluded from school (the 1996 Act, section 19(1)) and schools established for this purpose are known as "pupil referral units" (the 1996 Act, section 19(2)).

  8. Local education authorities are required to exercise their functions with a view to securing the provision of a balanced and broadly based curriculum (the 1996 Act, section 351(1), (3)) and the implementation of the National Curriculum (the 1996 Act, section 357(1)(a)). These responsibilities are shared with the Secretary of State (the 1996 Act, section 351(2)), governing bodies (the 1996 Act, section 351(4); Education (School Government) (Terms of Reference) (England) Regulations 2000 (SI 2000/2122), "the 2000 Regulations", regulation 8(4)) and head teachers (the 1996 Act, section 351(4); the 2000 Regulations, regulation 8).

  9. The governing body is responsible for directing the conduct of a maintained school (the 1998 Act, section 38(1),(2)) and exercising a strategic role in the direction of the school (the 2000 Regulations, regulation 4(1),(2)). The head teacher is responsible for the internal organisation, management and control of the school and for implementing the governing body's strategic framework (the 2000 Regulations, regulation 5).

  10. In the field of discipline the governing body must ensure the pursuit of policies designed to promote good discipline (the 1998 Act, section 61(1)) and must make and review a written statement of disciplinary principles (the 1998 Act, section 61(2)). The governing body may not delegate these responsibilities (Education (School Government) (England) Regulations 1999 (SI 1999/2163), "the 1999 Regulations", regulation 42(1)(k)). But the governing body must establish and delegate to a pupil discipline sub-committee of the governing body the functions conferred on it in relation to the exclusion of pupils (the 1999 Regulations, regulation 42(3)), and provision is made for dealing with emergencies (the 1999 Regulations, regulation 48(3)). The head teacher is responsible, consistently with the governing body's statement of principles, for promoting and securing good standards of conduct and discipline and must make his disciplinary code known to pupils and parents (the 1998 Act, section 61(4)-(7). It is recognised that a head teacher may penalise breaches of disciplinary rules by the imposition of sanctions which may, where appropriate, 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.

    But humiliating and degrading punishments are impermissible. This is the effect of DfEE Circular 10/99 (July 1999), "Social Inclusion: Pupil Support", paragraphs 4.11-4.12, which was guidance issued by the Secretary of State under section 68 of the 1998 Act to which head teachers, governing bodies and local education authorities are required to have regard.

  11. The most severe sanction available to a head teacher is to exclude a pupil from the school, whether for a fixed period or permanently. This power, conferred by section 64(1) of the 1998 Act, may only be exercised by the head teacher, and it is a disciplinary power: section 64(3) and (4). Exercise of the power is closely regulated. The head teacher may not exercise the power to exclude a pupil from the school for one or more fixed periods amounting in total to more than 45 school days in any one school year: section 64(2). The head teacher must without delay take reasonable steps to inform the parent of a pupil aged under 18 of the decision: section 65(1),(2). If the head teacher excludes a pupil and the pupil, as a result, is excluded for a total of more than five school days in any one term or loses the opportunity to take a public examination, or if the head teacher excludes a pupil permanently or decides that a fixed-period exclusion should be permanent, the head teacher must inform not only the parent but also the local education authority and the governing body of his decision and his reasons for making it: section 65(3),(4).

  12. Where a governing body receives information pursuant to section 65(4) it must consider the circumstances of the exclusion and any representations made about it by the parent or the local education authority, convening a meeting at which the parent and the local education authority may make oral representations: section 66(1),(2). Section 66(3) provides:

    In a case where it would be practical for the governing body to give a direction to the head teacher requiring the reinstatement of a pupil, they shall in addition consider whether he should be reinstated immediately, reinstated by a particular date or not reinstated.

    If the governing body decides that the pupil should be reinstated, it must give a direction to the head teacher (section 66(4)), who is required to comply with it (section 66(5)). If the governing body decides that the pupil should not be reinstated, it must inform the parent, the head teacher and the local education authority of its decision (section 66(6)(a)) and, if the pupil is excluded permanently, give certain additional information (section 66(6)(b)).

  13. By section 67 of the 1998 Act, a local education authority must make arrangements to enable a parent to appeal against a decision of a governing body under section 66 of the Act not to reinstate a pupil. Schedule 18 of the Act governs the composition and procedure of independent panels constituted to hear such appeals. The decision of the appeal panel is binding on the parent, the governing body, the head teacher and the local education authority: section 67(3). The Secretary of State has no power to consider complaints against the decisions of independent appeal panels: Circular 10/99, Annex D, para 54. Where the appeal panel decides that a pupil should be reinstated, it must either direct that he is to be reinstated immediately or direct that he is to be reinstated by a date specified in the direction: section 67(4).

  14. In Chapter 6 of Circular 10/99 the Secretary of State gave guidance on the use of exclusion. It was stated (paragraph 6.5):

    The law allows head teachers to exclude a pupil for up to 45 days in a school year. However, individual exclusions should be for the shortest time necessary, bearing in mind that exclusions of more than a day or two make it more difficult for the pupil to re-integrate into the school ....

    It was recognised that a decision to exclude a child permanently was a serious one, and the Secretary of State did not expect a head teacher normally to exclude permanently a pupil for a one-off or first offence (paragraph 6.6).

  15. A broadly similar regime has been established to govern appeals against permanent exclusion from pupil referral units. These are not involved in the present case. It is however worthy of note that regulation 8 of the Education (Pupil Referral Units) (Appeals Against Permanent Exclusion) (England) Regulations 2002 (SI 2002/2550) provides:

    Where on an appeal pursuant to these Regulations an appeal panel determines that the pupil in question should not have been permanently excluded, the appeal panel shall either -

    (a)

    direct that he is to be reinstated (either immediately or by a date specified in the direction); or

    (b)

    in cases where it would not be practical to give a direction requiring his reinstatement, determine that it would otherwise have been appropriate to give such a direction.

    THE PROCEEDINGS

  16. L sought judicial review of the J School's decision communicated to him in the head teacher's letter of 23 March 2001 quoted in paragraph 4 above. His complaint, simply put, was that the regime described in that letter did not amount to reinstatement and so did not give effect to the appeal panel's decision that he be reinstated. L's application came before Henriques J who on 26 April 2001 gave judgment dismissing it: [2001] EWHC Admin 318. In doing so the judge relied on the decision of Richards J in R (C) v Governors of B School [2001] ELR 285, where a similar question arose. Addressing the meaning of reinstatement, Richards J said (at page 294):

    [34]

    ... In my judgment reinstatement is not to be given any elaborate meaning; what is intended to be achieved is the removal of the exclusion. It does not follow that everything has to be put back exactly as it was before the exclusion. What matters is that the regime applied to the pupil after the date for reinstatement is a regime that does not involve the continuing exclusion of the pupil from the school. It does not have to be an identical regime to that which prevailed before the pupil was excluded.

    [35]

    I do not think that reinstatement necessarily entails full reintegration into the classroom even where that was the previous state of affairs. Full reintegration may be wholly inappropriate after a long absence - I have already referred to the fact that the principal thought that some phased reintroduction would be required after C's 45-day absence, leaving aside the problems created by the stance taken by the staff. Mr. McManus's suggestion that any such phasing, or dealing with other practical problems, has to take place before the reinstatement date seems to me to be unrealistic, not least because it may depend upon agreement between school and parents in circumstances where parental co-operation may well not be forthcoming. I do not think that the statute is to be read in such a way as to require that approach.

    Henriques J followed C because he agreed with the reasoning behind it and was attracted by the consequences of accepting it (paragraph 27 of his judgment). The Court of Appeal (Thorpe, Clarke and Laws LJJ) agreed: [2001] LGR 561; [2001] EWCA Civ 1199. In a leading judgment with which the other members of the court concurred, Laws LJ said (in paragraph 26):

    [26]

    Like Henriques J, I consider that Richards J's approach to the sense to be given to 'reinstatement' in the 1998 Act is correct. A pupil is reinstated if he is no longer excluded. The notion of reinstatement cannot in my judgment demand a precise, or even approximate, restoration of the conditions in which the pupil's life at school was carried on before his exclusion. There may be all manner of factors which will require different conditions. If the pupil breaks a leg while he is excluded, he cannot at once be restored to his former participation in sports; if he suffers real and objective psychological difficulties, perhaps occasioned by the circumstances of his exclusion, the conditions of his education will have to be tailored accordingly, at least in the short term; if there is a family bereavement, he may have to be away from school, although reinstated. The reality is that once he is reinstated, his exclusion is cancelled, and he is to be treated like any other pupil; and in respect of any pupil, special or particular measures or initiatives may be required at any time.

    RE-INSTATEMENT

  17. To reinstate is, as defined in the Oxford English Dictionary, "to reinstall or re-establish (a person or thing) in a place, station, condition, etc; to restore to or in a proper state, to replace". This is the sense in which the expression has long been understood in the courts of both Scotland and England. In William Dixon Ltd v Patterson 1943 SC(J)78 at 85 Lord Cooper stated:

    The natural and primary meaning of 'to reinstate' as applied to a man who has been dismissed (ex hypothesi without justification) is to replace him in the position from which he was dismissed, and so to restore the status quo ante the dismissal.

    Tucker J in Hodge v Ultra Electric Ltd [1943] KB 462 at 466 spoke to similar effect:

    It appears to me that reinstatement involves putting the specified person back, in law and in fact, in the same position as he occupied in the undertaking before the employer terminated his employment.

    In a provision first enacted in section 69(2) of the Employment Protection (Consolidation) Act 1978, an order of re-instatement is now defined in section 114 of the Employment Rights Act 1996 to mean an order that "the employer shall treat the complainant in all respects as if he had not been dismissed".

  18. Exclusion is a severe disciplinary sanction. Its object and effect are to shut out the pupil from the premises and the life of the school. So long as the pupil is excluded (which may only be at lunchtime: Circular 10/99, Annex D, paragraph 2) he is denied access to the school and its facilities enjoyed by other pupils. It prohibits his physical presence within the school and participation in any of its activities. But in the case of a fixed term exclusion that is all it does. The pupil does not cease to be a member of the school, and the school does not cease to be responsible for him. This is made plain by paragraph 6.7 of Circular 10/99 which provides:

    A head teacher considering excluding a pupil for a single block of more than 15 school days in a term must plan:

    to enable the pupil to continue their education;

    how to use the time to address the pupil's problems;

    with the LEA, what educational arrangements will best help the pupil to reintegrate into the school at the end of the exclusion. The school will usually be expected to meet some of the costs for this but the exact arrangements will need to be agreed with the LEA.

    Where the exclusion is permanent the prohibition of physical entry by the pupil into the school is supplemented by a final severing of the relationship between the school and the pupil, and the pupil's name is no doubt removed from the school roll.

  19. What, then, is required of a school where, as here, the appeal of a permanently excluded pupil has been allowed and his reinstatement ordered by an appeal panel in a decision binding on the governing body, the head teacher and the local education authority under section 67(3) of the 1998 Act? The answer is in my opinion clear. He must (subject to what is said in paragraph 22 below) be put back in substantially the same position as he was in before he was excluded. Nothing less will deliver what the statute promises and requires.

  20. I cannot accept that the requirement of reinstatement is met merely by restoration of a formal relationship between school and pupil or by the school's formal resumption of responsibility for the education of the pupil. This is to take an unrealistic and legalistic view of a practical educational situation. What has to be reinstated is a pupil, not a legal relationship.

  21. That reinstatement in this context means substantial restoration of the status quo before the exclusion so far as practicable is clear not only from the meaning and legal usage of this expression, considered above, but also from the disciplinary scheme of which exclusion forms part. Reference has already been made (paragraph 14 above) to the guidance given in paragraph 6.5 of Circular 10/99 concerning re-integration after fixed term exclusions. Reintegration is also envisaged where an appeal against permanent exclusion is allowed. Thus in Annex D of Circular 10/99, paragraph 13, the Secretary of State's guidance provides:

    If the [governing body's] Discipline Committee decide to direct reinstatement it should discuss with the LEA whether extra short term support would help to ensure successful re-integration

    In the case of an appeal panel, the guidance provides (Annex D, paragraph 46):

    An appeal panel may direct immediate reinstatement at some future date. But the date of reinstatement should not normally be more than five school days from the decision date. The appeal panel cannot attach conditions to the re-instalment of a pupil.

    If all that had to be reinstated was a formal relationship, it is hard to see why that could not always take effect immediately. The possible need for delay arises from the need, which may exist, to plan for the re-integration of the excluded pupil. But the delay must be short, because it is recognised that the longer the period during which the pupil has been excluded from participation in the ordinary routines of school life the harder the process of reintegrating the pupil is likely to be. It is noteworthy that even when a pupil is permanently excluded from a school, speedy reintegration into another mainstream school is envisaged as the norm. Thus Chapter 7 of Circular 10/99, "Re-integration", opens in this way:

    Integrating an excluded pupil successfully into a new school is a challenge both for schools and pupils. Intensive support from the LEA, including extra funding for the school, can help prevent a further exclusion.

    7.1  Excluded pupils should only be educated outside mainstream schools where there are significant problems that are better addressed in a different environment. Ideally many permanently excluded pupils should rejoin a mainstream or special school within days or weeks. The longer a young person is out of school the more difficult it can be for them to re-integrate.

    As noted in paragraph 15 above, even pupils at a pupil referral unit, if successful in an appeal to the panel against permanent exclusion, are entitled either to a direction that they be reinstated or (if practicality precludes such a direction) to a determination that it would otherwise have been appropriate to give such a direction.

  22. The question whether a pupil has been reinstated must be approached as one of substance and not of form. Depending on the nature of the incident giving rise to the exclusion, it might well be prudent, for example, to adjust the composition of classes or the teaching timetable to avoid confrontation, allay justified fears and prevent repetition. It might be necessary to phase the pupil's reintegration over a short period. If a pupil were found to have committed serious acts of unlawful violence when playing football, it would not be objectionable if he were denied the opportunity to take part in that sport. It would be absurd and impracticable to insist that a pupil's regime after reinstatement should be identical to that before exclusion in every minute particular. But the pupil must be substantially reintegrated in the social and educational life of the school and nothing short of that will do.

  23. The regime imposed upon L denied him access to any part of the school save the single room in which he was confined, any access to the facilities of the school, any contact with any other pupil (save, after a time, his sole companion) and any face-to-face teaching by any member of the current teaching staff of the school. This was not the regime to which he had been subject before he was excluded. It was not reinstatement. It is true that the room in which he was confined was within the school, and to that extent he was not physically excluded, but his exclusion from the communal and educational life of the school was all but complete and the room could have been anywhere. It is not helpful to ask whether, exclusion apart, the head teacher could have imposed this regime on L in exercise of his ordinary disciplinary powers. I would certainly not accept that he could, but whether he could or not it is clear that L was not subject to this regime before he was excluded and the direction was that he be reinstated. Nor do I find persuasive the examples given by Laws LJ in paragraph 26 of his judgment (see paragraph 16 above). There are, of course, many physical and emotional reasons why a pupil may be excused certain school activities in which other pupils take part. But L suffered from no physical or emotional disability which prevented his reintegration. His head teacher accepted as much. In his second witness statement made on 23 April 2001 he said (in paragraph 29):

    .... I accept that the current arrangements cannot continue if [L] enters the Sixth Form. [L] must be fully reintegrated into the School and I will discuss how this is to be achieved with the unions and Governors.

    As already noted (paragraph 6 above), it is common ground that but for the decision of the teachers and the teaching unions not to teach or supervise L, he would have been reintegrated into ordinary classroom life. As it was, he was not reintegrated and because he was not effect was not given to the binding decision of the panel that he be reinstated.

  24. Both Henriques J and the Court of Appeal concluded that the head teacher and the governing body made the best arrangements they could, given the unwillingness of the teachers to teach any class of which L was a member and the threat thereby posed to the education not only of L but also of all the other GCSE candidates in his year, whose interests had to be considered and given weight. This may no doubt be a sound conclusion, but it does not affect the issue of reinstatement. L was either reinstated or he was not. There is no room for a conclusion that he was reinstated to the greatest extent possible in the circumstances.

  25. Some argument was addressed to the question whether, and to what extent, the head teacher and the governing body properly had regard to the views of the teachers. It was, however, a somewhat hobbled argument, since the answer was likely to depend on whether the action of the teachers and the teaching unions was actionable, a question which could not be explored in the absence of the teaching unions (which were not parties to the application) but which the House has now addressed in the parallel case, heard at the same time, of P v National Association of School Masters/Union of Women Teachers [2003] UKHL 8[a]. In the light of that decision, I do not think it useful to discuss this question further.

  26. It was argued on behalf of L that his treatment following his return to school on 26 March 2001 infringed the requirement in the first sentence of article 2 of the First Protocol to the European Convention on Human Rights that "No person shall be denied the right to education". It is however plain that there are situations in which educational regimes may have to be adapted to meet particular circumstances (for example, where a child of compulsory school age is in hospital or in custody), and the House was referred to no case in which it has been held that the convention right to education is violated in a case such as this. To the extent that L was treated differently from others it was because the teachers refused to teach him and did not refuse to teach others. I would not uphold this claim.

  27. L is now 18, and has left school, so there can be no question of effective reinstatement. But I would for my part make a declaration that the arrangements communicated in the head teacher's letter of 23 March 2001 did not amount to reinstatement of L as a pupil at the J School in accordance with the decision of the appeal panel made on 12 March 2001.

    Lord Hoffmann

    My Lords,

  28. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill. I agree with it and for the reasons which he gives, I would allow the appeal.

  29. The opinions of the majority will enable the scheme of Chapter V of the School Standards and Framework Act 1998, which gives an appeal panel the power to require that an excluded pupil should be reinstated, to continue in uneasy co-existence with the right of the teachers, as declared in today's decision of your Lordships in P v National Association of School Masters/Union of Women Teachers [2003] UKHL 8, to take industrial action to prevent that from happening. The majority decision achieves this result by deeming the pupil to have been reinstated even though he remains entirely excluded from the school community. On the one hand, the school is treated as having complied with the direction of the appeal panel and on the other hand none of the teachers are required to teach him or supervise him in or out of the classroom.

  30. It may be said that the decision avoids the school being in breach of its statutory duty in a case in which industrial action has prevented it from complying with the panel's direction. But I think that this papers over a real problem which ought to be addressed. The Act does not say that industrial action should be force majeure which excuses the school from complying with a direction to reinstate. Perhaps it should. That would be openly to acknowledge that whatever might be the views of an independent panel, it is not in the end practical to force people to teach a pupil whom they consider is preventing them from fulfilling their professional obligations to the other children in the class. The alternative would be to ban industrial action inconsistent with a decision by the governors or appeal panel to reinstate, thereby reversing your Lordships' decision in P v National Association of School Masters/Union of Women Teachers. The objections to this course of action are too obvious to need stating and I doubt whether it could even be contemplated without a change in the appeal process which gave the teaching staff a greater participation than they have now.

  31. It is not for your Lordships in your judicial capacity to express any views about what might be done to resolve the present conflict that exists between the scheme of the 1998 Act and the right of teachers to take industrial action. But conflict there is; and I do not think it is helpful to wish it away by an interpretation of "reinstatement" which nearly empties that notion of practical content.

    Lord Hobhouse of Woodborough

    My Lords,

  32. This case raises a question under s.67 of the School Standards and Framework Act 1998 which provides for the parent of a pupil at a maintained school to be able to appeal against a decision of the governing body of the school not to reinstate a pupil who has been permanently excluded from the school by the head teacher to an independent appeal panel. The independent panel may determine that the pupil be reinstated, directing that he is to be reinstated immediately or by a specified date. The decision of the independent panel on such an appeal is to be "binding on .... the governing body [and] the head teacher ...." The case of the appellant 'L' is that the governors and the head teacher of 'J' school were in breach of this provision because they failed to "reinstate" 'L' after an independent panel had directed that he be reinstated.

  33. Some observations need to be made at the outset about s.67. It applies only to permanent exclusion cases. The head teacher has under s.64(1) the power to exclude a pupil from the school either for a fixed period or permanently. Neither power can be exercised save by the head teacher (s.64(3)) and there is a limit upon the cumulative length of time for which a pupil can be excluded short of permanent exclusion (s.64(2)). The words "exclude" and "exclusion" are limited to exclusion from the school on disciplinary grounds (s.64(4)); beyond this they are undefined. "Reinstate" is not defined. Whilst s.67 is limited to permanent exclusion, ss.65 and 66 apply to both limited and permanent exclusion from the school and s.66 requires the governing body to review any exclusion and gives them the power to direct reinstatement and the head teacher is obliged to comply with their direction. Whereas the power of the governing body to direct reinstatement is expressly limited to cases where it would be practical (s.66(3)), the power of the independent panel is not so qualified (67(4)).

  34. The issue on this appeal turns on the application of the statutory requirement of s.67(3) and (4) to the facts of this case, the salient features of which I will have to identify. It is a practical problem which needs to be put in its context. A school is a complex organic entity. Its function is to provide education. To succeed in fulfilling this function it is essential that the various human beings involved work successfully together as an educational entity. The relationships are not one-to-one as with a tutor and a solitary student. The teaching of the pupils has to be a collective activity in which the teachers and pupils interact successfully and individual pupils do not obstruct or imperil the education of others. It is a truism that one or two disruptive pupils can prevent the remainder from enjoying their right to a proper education; the assertion of a liberty by one may involve, for others, the denial of their rights. Similarly each pupil has the right to a safe environment; the assertion of a liberty by one or more pupils to socialise with and inflict violence on or to victimise or bully another will involve a denial of the rights of that other. The responsibility of teachers and the head teacher are owed to the body of pupils as a whole not merely to an individual pupil in isolation. The duties, including the duty to educate and to preserve safety, are underpinned by the more basic duty to maintain discipline. This is a duty of each teacher within his sphere of activity and of the head teacher overall. Part of the duties of the head teacher is punishment in support of the maintenance of discipline.

  35. But the practical considerations do not stop there. The head teacher's freedom of action is circumscribed by the limitations upon the resources he has at his disposal. Constraints may arise from the school premises he is provided with, the number and quality of teachers, his ability to incur additional expenditure, the demands of the curriculum, the timing of examinations. Further, he is dependent upon the cooperation of the teaching staff. If a particular course of action is going to lose him that essential cooperation, he is going to have to make difficult choices balancing his responsibilities towards the pupil body as a whole and his own belief in that particular course of action. The duty of the head teacher in such cases is to draw upon his own professional skills and experience and make the responsible decisions within the constraints to which he is subject.

  36. Permanent exclusion from the school is the ultimate disciplinary sanction. It illustrates the logic of what I have said since, more often than not, it prefers the interests of the school, i.e. the education of the pupil body, over those of the excluded individual. Typically it is, so far as the school is concerned, tantamount to an admission of defeat and, so far as the undisciplined pupil is concerned, merely an aggravation of his problems. It involves a final termination of the school-pupil relationship. The pupil is no longer part of the school and the school no longer has any responsibility for the pupil or obligations towards him. In s.67 the word reinstatement is clearly used in the sense of the reversal of that termination. The school-pupil relationship has to be reinstated and the responsibilities and obligations of the school towards the pupil resumed. How well those responsibilities and duties are thereafter performed by the school is a separate question unless the resumption can be shown to have been a sham or to be so nugatory as to evince an intention not in truth to resume them at all. The test is stringent and is directed to the realities not mere formalities. But anything less than this is a failure in the performance of those duties not a failure to reinstate. The real complaint of the appellant was, to quote the words used by those acting on his behalf, a failure, after he returned to the school, to "reintegrate him fully into the social life of the school" which they say was an important part of his education. I will return to whether in the circumstances there was any breach of any kind of duty owed to him but, on any view, the quoted complaint demonstrates that the complaint is not about reinstatement but about the quality of the education which he was receiving after he had been reinstated. His complaint would be exactly the same if, instead of being excluded, he had from the start been made subject to the special remedial measures subsequently adopted.

    THE FACTS

  37. The school is a voluntarily aided secondary school run on comprehensive lines with an intake of over 200 pupils. L was at the time 16 years old. During the lunch break of Monday 22 January 2001, L was part of a group of boys who took part in a concerted and vicious attack upon another boy, 'A', from the same school year. It took place when they had cornered A in the lavatories. Besides being very severely frightened, A was repeatedly stamped on and kicked and suffered substantial injuries. The extreme seriousness of the incident has never been in dispute. What has been disputed by the appellant L is what physical acts he personally committed during the assault. Having investigated the incident close to the time it occurred and taking account of his knowledge of the school and its pupils, the head master concluded that L had kicked A several times while A lay on the ground. During the hearing before the independent panel, L told its members that he had aimed a kick at A but had missed. The panel in its decision letter of 12th March 2001 concluded that on the balance of probabilities L had not kicked A a number of times.

  38. After his investigation, the head master, on 23rd January exercised his power under s.64 to exclude L permanently. The school governors considered the exclusion in accordance with s.66 and decided that L should not be reinstated. L exercised his right under s.67 to appeal against the permanent exclusion to the independent panel which, after a hearing at which the head master gave evidence but otherwise had no right to attend, determined that L should be reinstated. This decision was communicated to the school by the letter dated 12th March. The ground of their decision was that the panel did not consider that permanent exclusion had been appropriate having regard to the view they took of the evidence. It appears that they may also have been influenced by the complaints of L's father about the handling of the matter by the head master.

  39. The panel's decision was with immediate effect and was, as previously stated, binding upon the governors and the head master. After a further unhappy meeting between L's parents and the head master on 20th March, the head master by a letter dated 22nd March specifically reaffirmed in writing that L has "been reinstated on the school roll and that the school [is] now responsible for his continuing education" in accordance with its obligations under s.67.

  40. The head master was however encountering problems both with the teaching staff and with making arrangements which adequately recognised his own duties towards other pupils, their education and their safety. The solution which the head master found to these problems was to institute a special regime for L which involved teaching him separately from the rest of the pupils making use of a specially engaged teacher and segregating him socially from the other pupils. The details have been set out in the Opinion of my noble and learned friend Lord Bingham of Cornhill. Counsel for the appellant did not suggest that the head master acted otherwise than in good faith. It was further accepted that the special regime was drawn up not as a punishment but as a practical response to the educational and disciplinary needs of the school overall. L returned to the school on 26th March. It is an agreed fact that but for the refusal of the existing teaching staff to teach or supervise L, L would have been reintegrated into ordinary classroom life. But, in the circumstances, that further step was not one which was open to the head master. Whether the special regime probably led to L doing better or worse in his exams than he otherwise would have done given his two months absence is apparently something upon which opinions differ. The school believes that the special regime led to an improved performance.

  41. By 26th March there were only some 10 days left before 6th April which was the end of that term. The following term began on 23rd April. On 18th May, full teaching of L's year stopped and study leave began in order to enable the pupils to prepare for their GCSE examinations later that month and in June. The head master continued his efforts to obtain greater cooperation from the regular teaching staff but he was not successful and the special regime was continued until the pupils left to revise.

    THE PROCEEDINGS

  42. These proceedings were started by way of judicial review on 3rd April 2001. The decision objected to was described as the "decision communicated in a letter dated 23rd March to reinstate" L. The letter of 23rd March followed on that of the previous day from which I have already quoted. The letter of the 23rd was the letter in which the head master first filled out for L's parents the specific arrangements which were "being made to provide for [L's] education at the school". He reminded L's parents that he, the head master, had a duty to have regard to the health and safety of all the children in the school and then went on to explain what was involved.

    .... [L] will be provided with work and a teacher in a room isolated from the mainstream of the school. He will not return to the classroom but will be taught privately. He will not be allowed to circulate with other pupils at any stage in the school day ....

    This letter led to the response dated 27th March from the appellant's solicitors (effectively their letter before action) which said:

    .... Your failure properly to reintegrate [L] into the school is not a proper compliance with your duties to [L]. Unless we hear from you that he will properly be integrated and not ostracised in the way the school is proposing, and at the risk to his GCSEs, we are instructed to proceed.

    Thus it can be commented that at the start the actual complaint was not about reinstatement or non-reinstatement but about reintegration into the general life of the school and what would be the effect upon his GCSE results of the quality of the education which he would receive.

  43. The application for judicial review was argued before Henriques J. The argument raised the primary issue whether or not L had been reinstated. There was also a secondary argument whether the head master could take into account to any extent a threat of industrial action by the teaching staff. About six months before the present case came on before Henriques J, a judgment had been given by Richards J in ex parte C [2001] ELR 285 upon the same questions. Henriques J stated that he agreed with Richards J and followed his decision. He concluded that if Richards J was right the regime in the present case "most certainly" did amount to reinstatement. On the facts, Henriques J found -

    the head teacher and the governing body have done everything within their power, from the moment of communication of the panel's decision, to reinstate L within the restraints imposed by the threat of industrial action and the necessity to have regard to the interests of the pupils as a whole.

    ....

    In all the circumstances I am satisfied .... that L is no longer being excluded from the school .... I am satisfied that [the school has] had regard to the relevant interests of both excluded pupils and the other pupils and have done everything in their power to try to achieve a balance between the competing interests, and above all, that the [school] have not acted with a view to defeating the appeal panel's decision on the basis that they were mistaken.

  44. The Court of Appeal heard the appeal at the same time as that in ex parte C. They upheld the judgment of Richards J and dismissed the appeal in the present case. Laws LJ giving the leading judgment said, echoing words of Richards J:

    Like Henriques J, I consider that Richards J's approach to the sense to be given to 'reinstatement' in the Act of 1998 is correct. A pupil is reinstated if he is no longer excluded. The notion of reinstatement cannot in my judgment demand a precise, or even an approximate, restoration of the conditions in which the pupil's life at school was carried on before his exclusion. There may be all manner of factors which will require different conditions .... The reality is that once he is reinstated, his exclusion is cancelled and he is to be treated like any other pupil; and in respect of any pupil, special or particular measures or initiatives may be required at any time.

    On this approach, the Court of Appeal found that the conclusion of Henriques J that L was no longer being excluded from his school was, on the facts, "beyond the possibility of serious challenge".

  45. The further question of the relevance of a strike threat by the teaching staff (which was common to both ex parte C and the present case) was also considered. They rejected the submission that any unlawfulness of the strike threat would itself make any exercise of discretion which took the threat into account also unlawful. The headmaster's and the governor's discretion has to take all the circumstances into account in deciding how best to discharge their duty towards all the pupils in the school including the one in question.

    DISCUSSION

  46. The jurisdiction of the independent panel solely relates to the exercise of the power of permanent exclusion and its sole power is to require that the pupil be reinstated. In so deciding, the panel can be basing itself on, for example, the fact that proper procedures were not followed or that the disciplinary offence, although as stated by the school, did not justify permanent exclusion or that the evidence adduced before the panel did not sufficiently prove the school's factual conclusions. Any such decision therefore may leave untouched the basic problem which gave rise to the pupil's permanent exclusion in the first place. If the pupil had not been permanently excluded his indiscipline, the damage which it did to the functioning of the school and the risks which it disclosed would have had to be dealt with in some other way. To require the school to treat the incident as if it had never happened and to treat the pupil as if he had never offended is not merely wholly impractical but gives the decision of the independent panel a content beyond that authorised by the statute.

  47. I agree with all the judges in the present case, following the lead give by Richards J, that the essence of the order of reinstatement is the reinstatement of the pupil-school relationship. It is this relationship which was terminated by the permanent exclusion and which must be reinstated. Reinstatement like exclusion is not a mere formality. It is not a mere matter of adding a name to a list or striking it out. It is the resumption of a relationship and status which carries with it duties and rights. It is therefore always necessary to start by asking whether the school is acting in good faith or whether the purported reinstatement is a sham. But the present case, by common consent and the unchallenged finding of fact of Henriques J, raises no such question. The factual conclusion that L was reinstated is, as the Court of Appeal in effect said, inescapable. That is fatal to this appeal.

  48. The appellant's complaint is, as I have already observed, about the special regime for L which the school adopted in good faith and having regard to the interests and, it may be said, rights of the pupil body as a whole. This was a matter of making educational and managerial choices which is a matter for the school and lies wholly outside the jurisdiction of the independent panel and the scope of its decision. It is wrong to treat a requirement of reinstatement as involving a judgment on the quality of the educational and managerial decisions which the school makes after resuming its relationship with the pupil. It is obvious that a pupil who has committed a serious disciplinary offence for which he was thought to merit permanent exclusion, may, when that solution is found to be not available, still have to receive special treatment. Trust may have been destroyed; the capacity and inclination to disrupt may be undiminished; the risk of physical injury to others may still exist. Factors such as these may not unreasonably lead to responses from the teaching staff which, unless accommodated, put at risk the education of some or all of the other pupils in the school. The introduction of a suitable regime to address appropriately these concerns when no permanent exclusion is proposed is wholly outside the scope of the scheme in ss. 64 to 67 of the Act. The same applies when, after reinstatement, the school judges it right to introduce such a regime for the reinstated pupil.

  49. If it is to be said that the special regime for L was not in fact good enough to be consistent with reinstatement, there are two answers to be given to this argument.

    • Firstly it is contrary to the concurrent findings of fact of the courts below and no basis has been provided for substituting a different finding, nor is it the function of a court on judicial review to substitute its own view for that of the person chosen by statute to make the relevant decision.

    • Secondly, the evidence does not cross the line into showing that the reinstatement was no more than a fiction.

      Inconsistency is not in this context a qualitative criterion or a matter of degree. It is not enough to say that L did not enjoy all the same privileges and liberties exactly as the other pupils. That would rule out any special regime for the reinstated pupil and deprive the head master and the governors of their right and duty to manage the school. One can also test it this way. If the headmaster had decided at the outset to do no more than introduce the special regime for L, could it be said that he had exercised his power under s.64 to "exclude" L from the school? Obviously not. It would be a misuse of that word as used in s.64. It follows that if the regime can be introduced beforehand without thereby excluding the pupil it can be introduced afterwards without creating any inconsistency.

    CONCLUSION

  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 yester-year, 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.

  82. I would therefore dismiss this appeal.


Cases

R (C) v Governors of B School [2001] ELR 285; William Dixon Ltd v Patterson 1943 SC(J) 78; Hodge v Ultra Electric Ltd [1943] KB 462; P v National Association of School Masters/Union of Women Teachers [2003] UKHL 8; R v Coventry City Council, Ex p Phoenix Aviation [1995] 3 All ER 37

Legislations

School Standards and Framework Act 1998: s.64, s.65, s.66, s.67

Education Act 1996: s.7, s.14, s.19, s.351, s.357

Education (School Government) (England) Regulations 1999 (SI 1999/2163)

Education (Pupil Referral Units) (Appeals Against Permanent Exclusion) (England) Regulations 2002 (SI 2002/2550): Reg.8

Employment Protection (Consolidation) Act 1978: s.69(2)

First Protocol to the European Convention on Human Rights: Art.2

Authors and other references

DfEE Circular 10/99 (July 1999), "Social Inclusion: Pupil Support."

Notes:-

[a] See P v NASUWT @www.ipsofactoj.com/international/index.htm [2003] Part 7 Case 3 [HL]


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