Competence powers and school exclusions

‘Under new management’ signs are festooned across the variegated organs of government, from Whitehall to town hall. The new coalition government has not been slow in charting new ground.

Quick to receive summary sentence of death were Standards for England, the Comprehensive Area Assessment, and the widely reviled home information packs. Other measures announced in the 25 May Queen’s speech (through the Decentralisation and Localism Bill) included: the abolition of the Infrastructure Planning Commission; measures to make public bodies publish online the job titles of all staff, together with senior employee salaries and expenses; and the much anticipated general local government power of competence.

As I write, the shape of the competence power is unknown, as indeed is whether the measure will replace (or form a civil partnership with) the well-being power in part 1 of the Local Government Act 2000.

If ‘competence’ is to be a separate measure, the government could do worse than take as its starting point the Local Government Association’s (LGA) Draft Local Government (Power of General Competence) Bill, issued in March 2010. This would give a principal local authority power to do anything it considers likely to benefit (directly or indirectly) the whole or any part of its area, or all or any persons resident or present there.

While the draft includes some restrictions (for example, there are no powers to make laws or to raise money by taxation or precepts), it was nevertheless expressed to be ­‘overarching’ and exercisable either on its own or together with other powers. Adopting a model similar to the Human Rights Act 1998, as far as possible, primary and subordinate legislation would be read and effected compatibly with the competence power. Local government and other lawyers who have not seen the draft can do so at www.lga.gov.uk.

Finally, and even before the forthcoming budget, the dreaded ‘c’ word (cuts) was uttered on 10 June. Eric Pickles, communities and local government secretary, announced that local government would have to contribute £1.166bn to overall savings. However, he did say that no ‘individual local authority will face a reduction in their revenue grant of more than two per cent’. Nevertheless, this is likely to be the mere overture to a long opera of lacerating cuts.

Article 6 and school exclusionsWhere do authorities stand on article 6 of the European Convention on Human Rights and school exclusions? And what about the standard of proof? Is this civil or criminal?

These were issues that the Court of Appeal had to get to grips with on 26 February when giving judgment in R (LG) v Independent Appeal Panel for Tom Hood School [2010] EWCA Civ 142.

The appellant was the mother of a pupil (VG) of Tom Hood School (the school) who appealed against a refusal by Mr Justice Silber to grant her judicial review of a determination of the school’s Independent Appeal Panel to uphold a decision permanently to exclude VG from the school. The ­exclusion was on the basis that VG had been in possession of a knife and had threatened the teacher with it. The decision as notified to the appellant was that: ‘Based on the evidence presented by both parties, including the witness statements, the panel decided unanimously, that on the balance of probabilities, [VG] committed the offence as alleged, i.e. that it was more probable than not that [he] had carried an offensive weapon and had threatened a member of staff…

‘The panel concluded that the school’s decision permanently to exclude was appropriate in the ­circumstances of the case and ­proportionate to the offence in ­question and therefore it was not appropriate to reinstate [VG]. The panel felt it was not in the pupil’s best interest nor that of the whole school community.’

As is well known, article 6 (among other things) provides that in ‘...the determination of his civil rights and obligations, or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’.

In the appeal court, Lord Justice Wilson gave the lead judgment with which Lord Justice Rix and Sir Scott Baker agreed. The court identified the primary issue as being: when a decision-maker has to determine whether a child should be permanently excluded from his school by reference to disputed allegations, which if true would amount to a criminal offence:

(a) Does he have a right to a fair hearing before the decision-maker under article 6 of the European Convention on Human Rights and Fundamental Freedoms 1950 and, if so;

(b) Is his right infringed by a decision that he should be permanently excluded, which is made in consequence of a finding that the allegations against him are established on the balance of probabilities (as opposed to a finding that they are established beyond reasonable doubt)?

Wilson LJ noted regulation 7A of the Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002 (S.I. 2002 No. 3178), made under section 52 of the Education Act 2002. This is entitled ‘Exclusions – standard of proof’ and provides that, where it falls to a head teacher, governing body or appeal panel ‘to establish any fact, any question as to whether that fact is established shall be decided on a ­balance of probabilities’.

The court also noted the observations of Lord Bingham in A v Head Teacher and Governors of Lord Grey School [2006] UKHL 14 that: ‘There is no convention guarantee of education at or by a particular institution’ nor any ‘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... ’

Wilson LJ also considered the leading decision of the European Court of Human Rights in Engel v The Netherlands [1976] 1 EHRR 647, where the court contrasted disciplinary and criminal proceedings and suggested the following approach to the line of division between them (the Engel criteria):

1. As a starting point, it needs to be established whether the provision(s) defining the offence charged belongs, according to the domestic legal system, to criminal law, disciplinary law or both concurrently;

2. The very nature of the offence is a factor of greater import;

3. The degree of severity of the penalty that the person concerned risks incurring. In a society subscribing to the rule of law, deprivations of liberty liable to be imposed as a punishment belong to the ‘criminal’ sphere, except those which, by their nature, duration or manner of execution, cannot be appreciably detrimental.

In the instant circumstances, Wilson LJ noted that, since under domestic law the exclusion proceedings are ‘labelled non-criminal’, the court’s focus must be upon the second and third Engel criteria. After a review of case law, he concluded that the ‘appeal panel did not determine a criminal charge against VG’.

The court accepted submissions from the secretary of state for children, schools and families, in particular that the sanction of VG’s permanent exclusion from one particular school was insufficiently severe to render the charge against him criminal.

As to the standard of proof, since the court had found that article 6 did not apply to the proceedings, the question was academic. However, Wilson LJ indicated that, even if the appellant had persuaded him that the Appeal Panel had been determining VG’s civil rights within the meaning of article 6, he would not have persuaded him that article 6 required the panel to apply the criminal standard of proof. Wilson LJ was also clear that regulation 7A(c) of the 2002 regulations was intra vires section 52 of the 2002 act.

Following VG (and so long as the decision stands) those conducting school exclusions should less often find themselves burdened with complex legal arguments on specific requirements of article 6 and the correct standard of proof. For (other considerations apart) the domestic regulations were given the judicial seal of approval. But those determining exclusion issues should ensure the process is scrupulously fair. For, in addition to domestic law requirements of fairness, as Lord Justice Simon Brown (cited in VG) pointed out in International Transport Roth GmbH v SSHD [2002] EWCA Civ 158: ‘... the classification of proceedings between criminal and civil is secondary to the more directly relevant question of just what protections are required for a fair trial’.

Cutting to the chaseShakespeare’s Polonius advised that ‘brevity is the soul of wit’. But while Polonius didn’t always follow his own counsel to ‘cut to the chase’, his advice was nevertheless sound. And those failing to heed this in legal proceedings run the risk of sharp ­judicial criticism.

Such was very clear from comments of the Court of Appeal on 10 February in a case concerning an international contract dispute. This was Midgulf International Limited v Groupe Chimique Tunisien [2010] EWCA Civ 66. The leading judgment was given by Lord Justice Toulson with which Lords Justices Mummery and Patten agreed.

In the closing part of his judgment, Toulson LJ expressed strong disapproval of the volume of papers presented to the court by the appellant. There were apparently 15 lever-arch files, including five volumes of authorities and three files of documents, in addition to the core bundle to which apparently almost no reference had been made. It also seems that the skeleton argument was somewhat misnamed, since it ran to a ‘big-boned’ 132 pages.

Toulson LJ described the case as ‘a grotesque example of a tendency to burden the court with documents of grossly disproportionate quantity and length’. This was ‘a practice which must stop’ for, far from assisting the court, it makes its job ‘infinitely harder’. And in the ­particular case, the central issue was ‘very short’, turning on the effect of a small number of inter-party communications.

This decision may well be useful to local government lawyers who find themselves pestered by senior internal clients to place before the court each micro-particle of every ­sliver of their case in the deluded belief that judges will find this helpful. But burdening the court with voluminous extraneous material is only likely (as Mummery LJ put it in Tombstone Limited v Raja [2008] EWCA Civ 1444) to prompt a negative judicial reaction. And while there may be many winning litigation strategies, irritating the court is unlikely to be among them.

Dr Nicholas Dobson is a lawyer specialising in local and public law. He is also ­communications officer for the Association of Council Secretaries and Solicitors