The rights and wrongs of suspension

The Supreme Court recently found that there was no breach of a pupil’s right to education, where he was unlawfully suspended from school but was provided with work to do and home tutoring. Isabel McArdle examines the ruling.

In JR17 for Judicial Review (Northern Ireland) [2010] UKSC 27, a pupil was suspended from school after a complaint from a female pupil about the pupil’s alleged misconduct in school.

His school fell within the area of the North Eastern Education and Library Board. The Board had prepared a scheme governing the suspension and expulsion of pupils. It had done so pursuant to the requirement of the Education and Libraries (NI) Order 1986. The principal purported to suspend the pupil in accordance with the scheme but in fact failed to comply with its requirements.

The pupil brought proceedings for judicial review, claiming that the suspension was unlawful and breached his right to education pursuant to Article 2 of the First Protocol of the European Convention on Human Rights, which the Human Rights Act 1998 protects. The Article provides that “no person shall be denied the right to education”.

The Court of Appeal made a finding that, although the scheme had not been complied with, the principal had lawfully exercised a common law power to suspend the appellant. The Supreme Court found that there was no such common law power but that the pupil’s right to education had not been breached by the suspension. During his suspension, work was provided to the boy to do at home and home tuition was arranged.

Sir John Dyson considered there to be four questions raised by the appeal:

1. On what ground did the principal suspend the pupil?
2. Did he have the power to suspend the pupil on that ground?
3. If he did have the power to suspend the pupil, did he exercise that power lawfully?
4. Was there a breach of Article 2 of the First Protocol of the European Convention on Human Rights?

The grounds for suspension

The scheme provided for suspension from school only on disciplinary grounds. Both lower courts found that the suspension was for precautionary rather than disciplinary reasons. Sir John Dyson found that the pupil was suspended upon disciplinary grounds. However, Lord Phillips stated: “I do not think that the principal was purporting to impose a disciplinary sanction. Rather his action was ‘precautionary’ in that it was provisional suspension in order to give further consideration to the allegations of misconduct made against the appellant and the consequential risk posed by his behaviour.” Lord Roger and Lord Brown were of the same view, while Lady Hale thought the distinction between “disciplinary” and “precautionary” was unhelpful.

Was there a power to suspend the pupil on these grounds?

There was no dispute that the principal could suspend on disciplinary grounds. However, the majority found that the suspension was made on precautionary grounds. Lord Phillips considered that because the principal purported to follow the scheme’s procedure, which does not allow for suspension on precautionary grounds, there was necessarily a failure to comply.

Was the suspension lawful?

The suspension was unlawful in any event for breaching the procedure set out in the scheme. The scheme provides that “the investigation should include an opportunity for the pupil to be interviewed and his or her version of events given before the decision to suspend”.

There had been no opportunity for the pupil to respond to the allegations as he was not given the details of what was alleged, because the principal wished to protect the confidence of the female pupil who made the allegations.

The scheme also required the parents of the pupil to be notified immediately of the reason for the suspension. Although the pupil’s grandparents were written to (and presumably were acting as his guardians), the true reason for the suspension was not disclosed to them in the letter.

Lord Phillips considered that although the scheme does not govern all circumstances where a pupil can be denied access to a school, as the circumstances of this suspension fell within the scheme, the failure to comply with it rendered the suspension unlawful.

Was the pupil’s right to education breached?

Sir John Dyson explained the substance of this right at paragraph 59 by quoting from Lord Bingham in A v Head Teacher and Governors of Lord Grey School [2006] UKHL 14, paragraph 24: “[The right to education] was intended to guarantee fair and non-discriminatory access to that system by those within the jurisdiction of the respective states ... But the guarantee is, in comparison with most other Convention guarantees, a weak one, and deliberately so. There is no right to education of a particular kind or quality, other than that prevailing in the state. There is no Convention guarantee of compliance with domestic law. There is no Convention guarantee of education at or by a particular institution. There is no Convention objection to the expulsion of a pupil from an educational institution on disciplinary grounds, unless (in the ordinary way) there is no alternative source of state education open to the pupil... The test, as always under the Convention, is a highly pragmatic one, to be applied to the specific facts of the case: have the authorities of the state acted so as to deny to a pupil effective access to such educational facilities as the state provides for such pupils?”

The pupil argued that his suspension was a restriction of his right to education and was a disproportionate response to the allegations against him. Alternatives could have been explored and the suspension occurred during his GCSE year, a crucial time in his education.

Sir John Dyson found that there was no restriction on the pupil’s right to education so no question of proportionality arose: “The state, therefore, provides educational facilities for pupils who are suspended from school and the appellant was not denied access to those facilities in this case. The fact that the standard or quality of the education provided may have been low is not material. What matters is that the appellant was given access to the alternative facilities provided for pupils who have been suspended.”

Lord Brown considered: “As to the article 2 question, there is really nothing I want to add to Sir John’s analysis. The appellant’s suspension from school, unlawful though it was under domestic law, does not translate into a denial of the right to education. As Lord Hoffmann made clear in the Lord Grey School case (para 61), the breach of such a public law duty, not giving rise to a private right of action, cannot be promoted to a breach of duty under section 6 of the Human Rights Act 1998 remediable by a claim for damages.”

Lady Hale commented at paragraph 103: “Left to myself, I might have thought that three months out of school in the run-up to important public examinations was indeed to deny him effective access to the educational facilities which the state provides for year 12 pupils... The only purpose of finding a violation of his Convention rights would be to pursue a claim for damages, which could only succeed if the court were satisfied that an award were necessary to afford him just satisfaction: see Human Rights Act 1998, s 8(3)... I see no point, therefore, in pressing my doubts to a dissent but, as a declaration is a discretionary matter, I would prefer to make no declaration at all on this issue, the appellant having achieved just satisfaction from his declaration on the first.”

As the pupil was given access to the educational materials and support provided by the state to other suspended pupils, his right to education under the ECHR was not violated, despite the fact that such access may have provided him with a low quality of education. Therefore, although the Court found that the suspension was unlawful, there was no breach of the pupil’s right to education under ECHR.

Isabel McArdle is a barrister at 1 Crown Office Row. This article first appeared on the UK Human Rights Blog (http://ukhumanrightsblog.com) run by the chambers.