| SPOTLIGHT |
The High Court has granted permission for a claimant to challenge the lack of legal aid for appeals before an Independent Review Panel (IRP), the independent body that reviews the lawfulness of permanent exclusions.
The application for permission, supported by the Equality and Human Rights Commission, was heard by Mr Justice Morris at an oral hearing in the High Court last week (21 November).
The claimant argued that the legal aid safety net, Exceptional Case Funding (‘ECF’), must apply in appeals where there is an allegation that a permanent exclusion is discriminatory, “as Article 6 ECHR (the right to a fair hearing) and/or Article 8 ECHR (the right to a private and family life) are engaged”, according to barristers' chambers Garden Court Chambers.
It added: “If the claimant can establish that those rights are engaged, it follows that there is a risk that those rights will be breached without ECF being granted for legal advice and representation to enable her, and others, to challenge discriminatory school exclusions.”
At the oral hearing, the Director of Legal Aid Casework and the Lord Chancellor accepted “in principle” that the right not to be discriminated against in the sphere of education was a civil right that attracted protection under Article 6 ECHR.
Following the hearing, the High Court will hear full argument on whether Articles 6 and/or 8 ECHR are engaged in IRP appeals concerning discrimination.
Garden Court Chambers said the claimant will “continue to press for further amendments to the Lord Chancellor’s guidance”.
Commenting on the case, Baroness Kishwer Falkner, Chairwoman of the Equality and Human Rights Commission, said: “We welcome this decision by the High Court to grant permission to challenge the lack of legal aid for appeals before the Independent Review Panel.
“Justice and equality are vital in education. School exclusions can impact the life chances of a person throughout later life, and we believe clarification of the law in this area is vital, hence our involvement.
“The outcome of this case will play a crucial role in establishing the possibility of providing legal aid and representation for children during hearings, enabling them to challenge discriminatory decisions effectively."
Stephanie Harrison KC, lead counsel for the claimant and Joint Head of Garden Court Chambers, said: “Establishing the right to public legal funding in school exclusion appeals is the number one priority for the School Inclusion Project.
“This case has the potential to establish that ECF should be granted in IRP appeals that concern discrimination. Access to justice in IRP hearings could be transformative in holding schools to account and in addressing the systemic discrimination in school exclusions.”
Lottie Winson
