The question whether a school principal had any power to suspend pupils from school on grounds other than those expressly provided for by the Education and Library Board’s scheme arose in the Supreme Court case Application by ‘JR17’ for Judicial Review [2010] UKSC 27, [2010] All ER (D) 186 (Jun). Fearghal Shiels, solicitor for Madden & Finucane who represented the applicant pupil, speaks to Anne-Marie Forker about the judgment

A pupil was suspended from school after a complaint from a female pupil about the pupil’s alleged misconduct in school. The Education and Library Board had prepared a scheme governing the suspension and expulsion of pupils, pursuant to the requirement of the Education and Libraries (Northern Ireland) 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 art 2 of the First Protocol of the European Convention on Human Rights, which the Human Rights Act 1998 protects.

The Supreme Court determined by a majority that the principal’s only power to exclude was as provided for in the scheme, and that contrary to the decision of the Court of Appeal, the principal did not have any common law management powers which entitled him to exclude pupils. It is understood, Shiels states, that “there has been a practice on the part of schools in Northern Ireland, of suspending/excluding pupils on ‘non-disciplinary grounds’ thus denying pupils the procedural safeguards provided for, and enabling school’s to exclude pupils for longer periods than would be permitted under the scheme. The most significant impact of the system is to make it clear that the only lawful basis for excluding pupils is provided for by the Board’s scheme.” Shiels also points out that there are a number of other “discrete legislative provisions which provide for exclusion where there are issues in relation to public health or cleanliness”.

Another element of the applicant’s case, Shiels explains, was that “we had consistently advanced the case that, whilst the suspension was being referred to as precautionary, it was in fact disciplinary, because the alleged conduct amounted to a breach of the school’s disciplinary policy. Despite this the applicant had not benefited from the procedural requirements of the scheme, the right to know the case against him and to respond to any allegations made against him.”

“Crucially the Court unanimously concluded that there had been a breach of the Board’s procedures and that the investigation into the allegation was unfair. A number of their Lordships also noted that he had received a more severe punishment than he would have received had the School complied with the procedures and nonetheless found that he was engaged in misconduct.”

Is the decision significant? Shiels states it is: “The decision is significant in terms of preventing schools from using informal procedures to avoid having to comply with the procedural safeguards provided for by the Education and Library Board’s schemes, procedures which are essentially aimed at ensuring pupil’s are not excluded without a fair procedure. The only caveat that we would make is that we consider that where a pupil is unlawfully excluded from school, resulting in his being denied the level of education to which he would, under domestic law be entitled, this amounts to a breach of his art 2, Protocol 1 rights. In that respect we would endorse Baroness Hale’s judgment, albeit she didn’t push the issue to a dissent. Nonetheless it is acknowledged that the Supreme Court was significantly limited in addressing this issue by the earlier decision of the House of Lords in A v Lord Grey School and ultimately this issue is likely to be addressed by the Strasbourg courts.”

Would the European Court of Human Rights have reached the same conclusion as the Supreme Court? Shiels says the case-law on art 2, Protocol 1 in the European Court has tended to focus on cases “where there has been a complete denial of education and also where there has been a breach of art 2, Protocol 1 read in conjunction with art 14”. The question as to whether unlawful exclusion can result in a violation of art 2, Protocol 1 rights in circumstances where the pupil is given access to education, albeit more limited than that to which he is lawfully entitled “remains a live issue”, according to Shiels. Nonetheless, he says, “there are cases which would tend to suggest that where the State’s conduct is disproportionate, as we would contend is the case here a violation of art 2, Protocol 1 could be found – Sahin v Turkey (2007) 44 EHHR and Eren v Turkey (2007) 44 EHRR 28.”

What are the implications for lawyers? “Inasmuch as schools are engaging in informal suspensions it will be considerably easier to challenge such decisions”, Shiels says.