IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW v (1) LvJ [2001] EWCA Civ 1199

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE HENRIQUES
MR JUSTICE RICHARDS
[2001] EWCA Civ 1199Case No C/2001/0984Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Tuesday 24 July 2001
Between
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW(1) LvJ(2) WvB
Before
Lord Justice ThorpeLord Justice ClarkeLord Justice Laws(1) NICHOLAS BOWEN (instructed by Messrs Teacher Stern Selby of London WC1R 4JH) appeared on behalf of the applicant.(1) MRS JANE OLDHAM (instructed by Messrs Winckworth Sherwood of London EC4V 5AA) appeared on behalf of the respondent.(2) TIM KERR QC and DEBORAH HAY (instructed by Fisher Meredith of London SW2 6TA) appeared on behalf of the applicant.NIGEL GIFFIN (instructed by Messrs Winckworth Sherwood of London EC4V 5AA) appeared on behalf of the respondent.Date 24 July 2001
[1]LAWS LJ: INTRODUCTORY Before us there are two matters falling for the court's decision. The first is an appeal, brought with permission granted by the judge below, against a decision of Richards J given in the Administrative Court on 2 November 2000. Richards J dismissed an application for judicial review against the Governors of B School brought by the appellant W, a girl aged 15 at the time of the first instance judgment. The second matter in form consisted in an application for permission to appeal against an order made by Henriques J in the Administrative Court on 26 April 2001, when he dismissed an application for judicial review against the Governors of J School brought by L, a boy aged 16 who was a pupil at the school.[2]As I shall show, the issues in W have been rendered moot or academic as between the parties by force of supervening events. But these issues are to some extent common with those arising in L's case; and to the extent that they are common they are of considerable public importance. For my part I was much assisted by submissions put forward on behalf of W by Mr Kerr QC. However the course I propose to take is to outline the facts in W relatively briefly, and to address the issues of substance in the context of the case of L. As I shall show, Henriques J in L largely adopted Richards J's reasoning in W. We granted permission to appeal to L at the outset of the hearing, which then proceeded as the substantive hearing of both appeals. THE OUTLINE FACTS IN W's CASE[3]W had been the subject of an initial decision by the principal of B school to the effect that she be excluded for a week. However the principal thereafter proceeded to recommend to the Board of Governors that the exclusion be made permanent. These initiatives by the principal followed a serious and violent incident at the school on 4 February 2000. The Board of Governors confirmed the principal's recommendation of permanent exclusion. W's parents appealed to an independent appeal panel pursuant to s.67 of the School Standards and Framework Act 1998. I shall set out the relevant legislation shortly. Their appeal was allowed by a decision communicated on 14 April 2000, to the effect that W be excluded for a fixed period ending on 2 May 2000, when she should be reinstated.[4]However, when W returned to the school the staff refused to teach her. Representatives of the three teaching unions (NUT, NASUWT and ATL) informed the principal that their members were unwilling to do so. Industrial action was threatened should steps be taken to compel them. During the first week of the term, the principal tried to persuade them otherwise; to no avail. In the result, W worked in the mornings on her own in a room outside the principal's study. In the afternoon from about half way through the summer term, she went to a pupil support centre outside the school. The Secretary of State declined to use his statutory powers to intervene in the matter. So it was that the parents, nominally W herself, sought judicial review against the Governors, asserting that W had not been reinstated in accordance with the decision of the appeal panel: alternatively that the discretion as to the manner in which she had been reinstated had not been lawfully exercised. The thrust of the challenge was to the effect that there had been a capitulation to the exertion of illegal or improper pressure by the trade unions. Richards J dismissed the claim but, as I have said, granted permission to appeal.[5]However since the first instance judgment in November 2000, events have significantly moved forward. There were further negotiations with staff and unions. At length a programme of reintegration for W was agreed, to commence in the latter part of the Christmas Term 2000. Then from 9 January 2001 W has been successfully reintegrated into mainstream classes at the school. She has pursued or continued to pursue her GCSE curriculum: she sits the GCSE exams this summer; by the date of our judgments' delivery I imagine she will have sat them.[6]The appeal in W would reiterate the points taken below. Essentially the question is whether W was lawfully reinstated in the school following the appeal panel's decision, within the meaning of the relevant provisions of the Act of 1998. As I have foreshadowed, I do not propose to go into that issue on the facts of W's case. For all I know, anything said in this court about the merits might be distinctly less than helpful in the context of the balances that have plainly been struck in getting an agreed solution for W's continued education at the school. I take this view with no misgivings, since any public interest which this court may serve in determining issues arising under the material provisions of the Act of 1998 can be fulfilled by our decision in the other case of L. THE LEGISLATION[7]Before turning to the facts in L which I will have to address in somewhat greater detail, it is convenient to set out the relevant statutory provisions.[8]The School Standards and F ramework Act 1998 so far as material provides as follows:
"38(1) Subject to any other statutory provision, the conduct of a maintained school shall be under the direction of the school's governing body. (2) The governing body shall conduct the school with a view to promoting high standards of educational achievement at the school... 64(1) The head teacher of a maintained school may exclude a pupil from the school for a fixed period or permanently. (2) The head teacher may not exercise the power to exclude a pupil from the school for one or more fixed periods such that the pupil is so excluded for more than 45 school days in any one school year.... (4) In this Act 'exclude', in relation to the exclusion of a child from a school, means exclude on disciplinary grounds (and 'exclusion' shall be construed accordingly). 65(1) Where the head teacher of a maintained school excludes any pupil, the head teacher shall (without delay) take reasonable steps to inform the relevant person of the following matters- (a) the period of the exclusion (or, if the pupil is being permanently excluded, that he is being so excluded); (b) the reasons for the exclusion; (c) that he may make representations about the exclusion to the governing body, and (d) the means by which such representations may be made. (2) Where the head teacher decides that any exclusion of a pupil for a fixed period should be made permanent, he shall (without delay) take reasonable steps to inform the relevant person of- (a) his decision, and (b) the matters specified in paragraphs (b) to (d) of subsection (1). (3) Subsection (4) applies where the head teacher- (a) excludes any pupil in circumstances where the pupil would, as a result of the exclusion- (i) be excluded from the school for a total of more than five school days in any one term, or (ii) lose an opportunity to take any public examination, (b) excludes a pupil permanently, or (c) decides that any exclusion of a pupil should be made permanent. (4) Where this subsection applies, the head teacher shall (without delay) inform the local education authority and the governing body of the following matters- (a) the period of exclusion (or, if the pupil is being permanently excluded, that he is being so excluded), or (b) his decision that any exclusion of a pupil for a fixed period should be made permanent; and (in either case) of the reasons for it. (5) In this section and in sections 66 and 67 'the relevant person' means; (a) in relation to a pupil under the age of 18, a parent of his; (b) in relation to a pupil who has attained that age, the pupil himself..... 66(1) Subsections (2) to (6) apply where the governing body of a maintained school are informed under section 65(4) of any exclusion or decision to which that provision applies. (2) The governing body shall in any such case- (a) consider the circumstances in which the pupil was excluded; (b) consider any representations about the exclusion made to the to the governing body- (i) by the relevant person in pursuance of section 65(1)(c) or (2)(b), or (ii) by the local education authority; (c) allow each of the following, namely- (i) the relevant person, and (ii) an officer of the local education authority nominated by the authority, to attend a meeting of the governing body and to make oral representations about the exclusion; and (d) consider any oral representations so made. (3) 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. (4) If the governing body decide that the pupil should be reinstated, they shall forthwith- (a) give the appropriate direction to the head teacher, and (b) inform the relevant person and the local education authority of their decision. (5) The head teacher shall comply with any direction of the governing body for the reinstatement of a pupil who has been excluded from the school. (6) If the governing body decide that the pupil should not be reinstated, they shall forthwith- (a) inform the relevant person, the head teacher and local education authority of their decision, and (b) in addition, in the case of a pupil who is permanently excluded, give the relevant person notice in writing referring to that decision and stating the following matters- (i) the reasons for the decision, (ii) his right to appeal against the decision, (iii) the person to whom he should give any notice of appeal; (iv) that any notice of appeal must contain the grounds of appeal, and (v) the last date on which an appeal may be made.... 67(1) A local education authority shall make arrangements for enabling the relevant person to appeal against any decision of the governing body under section 66 not to reinstate a pupil who has been permanently excluded from a school maintained by the authority. (2) Schedule 18 has effect in relation to the making and hearing of appeals pursuant to arrangements made under subsection (1); and in subsections (3) and (4) 'appeal panel' mans an appeal panel constituted in accordance with paragraph 2 of that Schedule. (3) The decision of an appeal panel on an appeal pursuant to arrangements made under subsection (1) shall be binding on the relevant person, the governing body, the head teacher and the local education authority. (4) Where on such an appeal the appeal panel determines that the pupil in question should be reinstated, the panel shall either- (a) direct that he is to be reinstated immediately, or (b) direct that he is to be reinstated by a date specified in the direction."
THE FACTS IN L's CASE[9]Now I may turn to the facts in L's case. I can do no better than begin with paragraphs 4-9 of the judgment of Henriques J. "4 The claimant's exclusion arose from an incident which occurred on 22 January of this year in the boys' toilets at the school, which resulted in a serious physical assault on another pupil. The victim was punched, kicked and stamped upon by several pupils. L admitted being present whilst the attack took place and further admitted aiming a kick which he said had missed. 5 The allegation made against him and communicated to his parents by the head teacher in a letter dated 23 January was that he had kicked the victim several times. In that letter the head teacher stated that L's parents may wish to make an appointment to see him. 6 By letter dated 24 January the claimant's father wrote stating that his son did not make any contact with the victim during the assault. He complained that he had been unfairly singled out and he had been permanently excluded on a false factual premise. In fact six pupils in due course were excluded in all. Three of the six appealed to the Appeals Panel who ordered reinstatement in respect of those three. 7 The governors confirmed the permanent exclusion and L's parents appealed to a independent appeal panel who sat on 9 March 2001. They allowed the appeal and directed the immediate reinstatement of the claimant at the school. In the decision letter the panel specifically found that the head teacher had a difficult task, but that his investigation significantly deviated from safe investigative procedures set out in the Local Education Authority's guidelines and that this had affected the exclusion decision. However, the panel concluded on the balance of probabilities that the claimant was not guilty of the specific behaviour alleged against him. 8 Four days later the head teacher wrote to L's parents saying that L's name would be restored to the school roll and that he would like to meet the parents to discuss the most appropriate way in which the school can provide for L's education. 9 On 20 March a meeting did take place between L's father, the head teacher and one of the defendants. It became clear that the teachers were refusing to teach L. Proposals for reinstatement were not discussed. The only options discussed were L staying at home or going to an education support centre…"[10]The head teacher, had informed members of the school staff of the appeal panel's decision on the day he received it, 14 March 2001. The three main teaching unions (again the NASUWT, NUT and ATL) acted swiftly. They held separate meetings with regional officials the next day, 15 March, in order to discuss the possibility of industrial action. In paragraph 9 of his first statement The Head explains what followed:
"I was subsequently informed by the three school union representatives... that there was overwhelming feeling of support for industrial action on the basis of a refusal to teach or supervise [L]. I offered to show the appeal panel decision letter to union representatives but was informed by a teacher member [of NASUWT] that the three regional officials had specifically said they did not need to see it because of the unanimity of staff and the strength of their belief that an injustice had occurred."
[11]A little later the unions balloted their members at the school. By way of example the ATL ballot result (which was sent to the head teacher on 30 March 2001) indicated that of nine ballot papers distributed, eight were returned in favour of refusing to teach or supervise L. The head discussed the situation with the Chairman of the Governors. He informed the Governors (who are of course the defendants in the judicial review proceedings) of his belief that were he to direct staff to teach or supervise L, industrial action would follow, which would put in jeopardy the prospects of all pupils at the school who were about to take examinations. That was confirmed in writing to the chairman of the Governors on 28 March. She approved the practical course which the head teacher proposed to take, and which I will describe in further detail shortly.[12]In light of the submissions made to us it is convenient next to elucidate the head teacher's own attitude to L's case, by reference to the major part of paragraphs 28 and 29 of his second witness statement made on 23 April 2001:
"28 … I continue to believe that [L] acted violently towards [S] and that the permanent exclusion was justified. My belief is based on my evaluation of the evidence presented me by the boys I spoke to and my discussions with my senior management teams. I'm quite clear that some pupils did not disclose the truth of what happened on 22 January either because of fears of the consequences for themselves or because of a fear of reprisals from other pupils if they gave evidence against them, a fear no doubt supported by the violence of the incident itself. My assessment of the credibility of the evidence was based on my knowledge of the pupils and their demeanour during questioning. Obviously the Appeal Panel took a different view as set out in their decision letter. Whilst I have accepted my duty to reinstate [L] and will do all I can in the circumstances to reintegrate him, my view of [L's] involvement in the incident has not changed. 29 In the light of the union ballots and the effect any industrial action would have on the rest of the year group, I cannot direct staff to teach or supervise [L] until public examinations are completed although I am trying to reach agreement with them on terms on which they are prepared to teach and/or supervise him…"
[13]The meeting of 20 March 2001 (to which Henriques J referred) had been held with the head teacher and chairman of the Governors to discuss L's prospective reinstatement following the decision of the appeal panel. It was documented in a note prepared by L's father. I set out paragraphs 9 and 15 of the note in part:
"9 [The Head] told me that I would have to accept that [L] had kicked [S] many times. I answered that one consistent issue has always been that [L] continued to deny that he kicked him, and over the past eight weeks even at the bleakest times he has not changed his recollection of the event. The Appeal Committee had heard all of the evidence and did not conclude that [L] kicked him. 15 [The Head] proceeded to tell me that everything the School was telling me was correct, and everything that I was saying was wrong, and that I would have to accept it. The School had taken their own advice on reinstatement and did not have to accept the Appeal's verdict."
However a somewhat different light is thrown on this meeting by the terms of a letter from the head teacher to L's solicitors dated 22 March:
"I am sorry if Mr and Mrs [H] misunderstood the meeting on 20 March to discuss [L]'s continuing education. The School understands its obligations under s.67 of the School Standards and Framework Act 1998. I made it clear to Mr and Mrs [H] that [L] had been reinstated on the school roll and that the School was now responsible for his continuing education. At no time did the School advise Mr and Mrs [H] that [L] would not be reinstated. The purpose of the meeting was to discuss with Mr and Mrs [H] how the School proposed to discharge both its obligations to L and its obligations to other students and members of staff…"
[14]On 23 March 2001 the head teacher wrote an important letter to L's parents:
"Further to our discussion of Tuesday 20 March, I am writing to provide details of [L's] reinstatement into the [J] 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 form 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."
[15]On 26 March 2001, the head teacher signed the following document:
"Requirements Relating to the Conduct of [L] Upon his Return to [J]. 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."
[16]L returned to school on Monday, 26 March 2001. The head says that he told L that he personally believed that he had been responsible for assaulting S. That seems to me a surprising thing to do. He handed L a document, which I take to be the one I have just set out. The school broke up for the Easter holidays on 6 April. On 23 April the new summer term began. Year 11 GCSE pupils, including L, were to be in school until 18 May and thereafter on study leave, coming in to take their exams as required. On 23 April the head held meetings with school and regional union representatives. It was plain that members of staff would not teach L in class or with other pupils. That position was unchanged by the time of a further meeting on 11 May.[17]It is important to notice what educational provision has in fact been made for L since he returned to school. The head's first witness statement was made during the Easter holiday. He said (paragraph 22) that L was having work set for him in all subject areas, and was being supervised by a highly experienced teacher, who retired from the school two years ago after twenty-seven years service. Apparently "[L]'s teachers consider that he is working better under these arrangements than he has done at any time during his GCSE courses". According to the head, any problems with his progress have been related to his poor behaviour and lack of commitment before his exclusion. Since the start of the new term he has, on the respondent's case, received appropriate instructions for revision and preparation for the GCSE exams: although that has been disputed on his behalf. THE JUDGMENTS OF HENRIQUES J AND RICHARDS J[18]The first submission for the claimant, in W's case and L's case alike, was that "reinstatement" and its cognates in ss.66 and 67 of the Act of 1998 refer to a state of affairs in which the pupil in question is restored, or to be restored, to the status quo ante : thus a pupil who before his exclusion had fully participated in his classwork, and otherwise in the life of the school, is entitled to be fully reintegrated to the same conditions. If this is right, then plainly on the facts of his case L was not reinstated, and thus it was submitted there was a failure (presumably by the governing body and the head teacher) to comply with s.67(3) and (4) of the Act. The argument the other way was that reinstatement is simply the opposite of exclusion. Richards J in W recorded Mr Giffin's submission for the Governors thus [2001] ELR 285, 294:
"The statutory duty is complied with by restoring the pupil to a state where he or she is not excluded. Only to that extent does it involve the restoration of the status quo . What one has to ask oneself is whether the regime applied on the pupil's return itself amounts to exclusion; if not, then there has been reinstatement." "
Reinstatement" is not defined in the statute. Richards J preferred Mr Giffin's submission. He said (p294):
"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. 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…"
[19]Having so directed himself, Richards J held that there had been no failure to reinstate on the facts of W's case. He proceeded to consider a second issue, which is also very much to the fore in L's case: whether the Governors had lawfully exercised their discretion as to the conditions in which W was reinstated. In summary the question was whether, or in what manner and to what extent, it was lawful for the Governors (or, more accurately perhaps, the school principal with the Governors' blessing) to take account of trade union pressure and threats of industrial action in deciding what arrangements to make for the reinstated pupil. Richards J cited (p.9) an obiter dictum of Lord Bridge of Harwich in Ex p. Singh [1986] 1 WLR 910 , 919H:
"Extraneous threats to instigate industrial action could only exert an improper pressure on the Secretary of State and if he allowed himself to be influenced by them, he would be taking into account wholly irrelevant considerations."
Richards J also cited (p.9) this passage from the judgment of Simon Brown LJ in Ex p. Phoenix Aviation [1995] 3 AER 37, 62E-F:
"One thread runs consistently throughout all the case law: the recognition that public authorities must beware of surrendering to the dictates of unlawful pressure groups [in that case, animal rights protesters]. The implications of such surrender for the rule of law can hardly be exaggerated. Of course, on occasion, a variation or even short term suspension of services may be justified. As suggested in certain of the authorities, that may be a lawful response. But it is one thing to respond to unlawful threats, quite another to submit to them. The difference, although perhaps difficult to define, will generally be easy to recognise. Tempting though it may sometimes be for public authorities to yield too readily to threats of disruption, they must expect the courts to review any such decision with particular rigour; this is not an area where they can be permitted a wide measure of discretion. As when fundamental rights are in play, the courts will adopt a more interventionist role."
Then Richards J proceeded thus (pp.9-10):
"I cannot accept that the governing body of the school is automatically precluded from taking into account the threat of strike action in the exercise of its discretionary powers, on the ground that such a factor is incapable of amounting to a relevant consideration or that to take it into account would necessarily defeat the rule of law. The obiter dictum of Lord Bridge in Ex p. Singh was directed to a very different statutory context and did not purport to be of universal application. The observations of Simon Brown LJ in Ex p. Phoenix Aviation were likewise directed towards a very different situation when he talked about surrender to the actions of unlawful pressure groups, something which is, to my mind, far removed from union backed industrial action by teachers. Even in the context of unlawful pressure groups Simon Brown LJ drew the distinction between submitting to unlawful threats and responding to them. If it is permissible to respond to them then they must be a relevant consideration. In any event, absent clear and binding authority, I would be very reluctant to hold that the governing body is precluded, as a matter of law, from taking into account a threat of industrial action by teachers in deciding on the appropriate course of action to adopt. That is all the more important when one bears in mind that the governing body has to consider the interests of all the pupils at the school. If, for example, the circumstances were such that a particular course of action would inevitably lead to the effective closure of the school, with none of the pupils being taught, and their examination prospects being prejudiced in consequence, it would be very surprising if that consideration could not lawfully affect the governing body's decision whether or not to take that course of action."
[20]In L's case Henriques J (paragraph 27) expressly stated that he agreed with the whole of Richards J's reasoning on both points. In consequence he held (paragraph 31) that L was "no longer being excluded from his school". If Richards J and Henriques J are right as to the meaning of "reinstatement", then in my judgment this conclusion on the facts is beyond the possibility of sensible challenge. Henriques J also held that the discretion as to the conditions of L's reinstatement was being lawfully exercised (paragraph 31):
"I am satisfied that they [the Governors] have 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 defendants have not acted with a view to defeating the appeal panel's decision on the basis that they were mistaken. I detect no improper purpose…"
[21]There were further arguments advanced for L before Henriques J:(1) there was no power to dictate L's mode of transport to school;(2) there was no power to prohibit L from associating with others at school – Articles 10 and 11 of the European Convention on Human Rights and Fundamental Freedoms ("ECHR") were relied on;(3) there was a breach of the school's duty to consult the parents as to the mode and conditions of L's reinstatement;(4) the decision as to those conditions – see the head's letter of 23 March 2001 – was taken "in breach of relevancy", a Delphic expression used by Mr Bowen to connote a state of affairs in which a decision is taken upon a demonstrably false or impermissible premise, here that L was in fact guilty of the assault of which the appeal panel had acquitted him;(5) there was a breach of a legitimate expectation in that the Governors failed to honour their own published policy to the effect that sanctions against pupils would be applied fairly and consistently. Henriques J rejected all these further arguments. I will not set out his short reasons for doing so. In the judicial review grounds a reasons challenge was also put forward. It rather appears that the judge did not find it necessary to deal with it. In the event, then, L's application for relief by way of judicial review was as I have said dismissed. THE DEBATE IN THIS COURT[22]In this court the argument as to the correct meaning to be attributed to "reinstatement" in the statute was renewed. But when he came to deal with the issue as to the exercise of the Governors' discretion, Mr Kerr QC for W (whose submissions were adopted by Mr Bowen, so far as they might be applicable in L's case) eschewed the line taken below: that is to say, he made no submission to the effect that threats of industrial action were at law an irrelevant consideration for the purposes of a public authority's exercise of discretionary powers or responsibilities. Rather he urged that the quality of review which the court should bring to bear on decisions such as were made here, in the face of such threats, should be intense: closer to a review of the merits than would be involved in the traditional Wednesbury ( [1948] 1 KB 223 ) approach. This submission was grounded, first, in the obvious importance to the individual pupil of his right to education; but secondly, Mr Kerr pointed to the difficulty in practice of applying the distinction drawn by Simon Brown LJ in Phoenix Aviation between responding to threats and submitting to them. He said that this difficulty created a heightened risk that the invocation of industrial action might cloak what is in truth an unwillingness on the part of the public authority in question to carry out its statutory duty. Such an intense review would, for example, require the court to be satisfied that the authority had addressed its mind to the question whether the threatened industrial action would be lawful within the trade dispute legislation.[23]Building on Mr Kerr's approach, Mr Bowen sought to apply it to the facts of L's case, and submitted that the actions of the head teacher amounted to nothing short of capitulation to unlawful union pressure. He referred in particular to the letter to the parents of 23 March 2001, the document signed by the head containing six numbered points and apparently handed to L on his return to school on 26 March, and paragraph 28 of the head's second statement, all of which I have set out. He said that the decision to isolate L, expressed in the letter of 23 March, was not taken for any educational reason whatever. It had been accepted at first instance that but for the position taken by the unions L would have been reintegrated in the classroom environment. In relation to the conditions under which L returned to school, Mr Bowen had a particular submission to the effect that the judge had misunderstood the evidence and held (paragraph 20) that L was receiving face-to-face teaching, whereas that was only true in maths. This was a bad point: it is plain that the judge appreciated that L was having work set for him, and was being supervised by the highly experienced retired teacher.[24]Mr Bowen re-deployed his other points, which I have enumerated at (1) to (5) in paragraph 21 above. Mr Giffin, for the Governors in W's case, repeated his submissions made before Richards J as to the meaning of "reinstatement". He conceded (obviously rightly) that the Governors and head teacher were bound by the appeal panel's decision, having regard to the terms of s.67(3) of the Act, at least to the extent that it would be unlawful for them to take action based on any belief entertained by them that the appeal panel had reached the wrong result. Mr Giffin also submitted that the threatened union action would be lawful in the sense that the unions would enjoy the statutory immunity from suit in tort conferred by s.219 of the Trade Union and Labour Relations (Consolidation) Act 1992, given the definition of "trade dispute" in s.244. He referred to the decision of this court in P v NASUWT (9 May 2001), to which I shall have to return. Finally Mr Giffin responded to Mr Kerr's argument as to intensity of review, submitting (amongst other arguments) that there is no violation of any fundamental right to education if on the evidence the pupil's education is in fact continuing.[25]Mrs Oldham for the Governors in L adopted Mr Giffin's argument on "reinstatement". But the main focus of her submissions was to urge that on the facts there had been no supine capitulation to pressure. They were faced with the stark fact that the staff would not teach or supervise L. The head could not without dereliction of duty ignore the interests of other pupils, not least those also due to sit the GCSE exams, and has made arrangements to reintegrate L so far as possible, consistently with these other interests. In addition Mrs Oldham responded to Mr Bowen's miscellaneous points. CONCLUSIONS (1) REINSTATEMENT[26]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 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. (2) DISCRETION AND THE INTENSITY OF REVIEW[27]In my view the true debate in this case concerns the decisions of the head teacher (supported by the Governors, who take responsibility: s.38 of the Act) as to the conditions of L's reintegration in the school. It is important to recognise that the pressures created by the position taken by the teaching unions are by no means logically dependent on the statutory process of exclusion followed by reinstatement. One may envisage without difficulty a state of affairs in which the unions vociferously object to their members being required to teach or supervise a particular pupil on grounds of his behaviour or perceived behaviour, though he has not been excluded at all: indeed they may bitterly complain that the head teacher should have excluded him. In such a case, where the procedures of the Act of 1998 have never been brought into play, the head and the Governors may face the very same acute dilemmas as faced them in this case.[28]That being so, and given my conclusion as to the meaning of "reinstatement", it is apparent that the exercise of discretionary power involved in this case is not a distinct discretion arising under s.67 of the Act of 1998, as to the appropriate mode of response to the appeal panel's decision, but rather the general discretion of the head teacher, and behind him the Governors, as to the running of the school. On this approach the trade unions' threats of industrial action if their members were to be directed to teach or supervise L is not merely a relevant consideration to be taken into account, but, in a reasonable world, a mandatory one. I cannot see how the head or the Governors, owing duties as plainly they do to all the school's pupils, could fail to reflect and decide what would be a responsible position to take in light of the unions' attitude. If the unions' insistence that their members will not teach or supervise the particular child is wholly intransigent, such a responsible position might be reduced at least in the short term to something close to a damage limitation exercise, however melancholy that would be. At all events the head and the Governors have to strike a balance between the interests of the reinstated pupil and the interests of all the others. What, categorically, they must not do (as Mr Giffin readily accepted) is to base any action or decision on a view of the merits of the reinstated pupil's case which is at variance with the conclusions of the appeal panel; that would be the plainest affront to the rule of law. I shall consider their actions on the facts shortly.[29]I do not accept that this is a case where a markedly intense form of review is called for, if that means that the court's task is to be approximated to the making of a judgment as to what is on the merits required. It is to be noted, as Mr Giffin submitted, that the defendants to the judicial review – the Governors – are not themselves the party performing or withholding the teaching services in question: they, of course, are the union members at the school. However, it seems to me that such a judicial review as this should proceed on the basis that the head and the Governors are required to act proportionately to any threat of industrial action. That is, they should consider what is the least derogation from the pupil's full reintegration into the school that must be conceded so as to secure the protection of the other pupils' interests. In my judgment that follows from the provision made in s.67(3). What constitutes such minimal derogation is for their primary judgment; the court exercises a secondary judgment on judicial review. (3) THE POSITION OF THE TRADE UNIONS[30]None of the teaching unions has appeared or been represented in these proceedings. In those circumstances it would be unfair to make any finding which condemned actions or decisions taken by them: nothing could be more elementary. That was not the position in P v NASUWT , in which the union was itself the defendant in proceedings brought by a school pupil (by his mother as next friend) under s.235A of the Trade Union and Labour Relations (Consolidation) Act 1992 seeking an order, in effect, to stop the union impeding his access to full teaching services at his school. Like L, P had been excluded by the head teacher. But the Governors decided that he should be reinstated. The unions conducted ballots among their relevant members. The result was that industrial action would be taken if members of staff were instructed to teach P. S.235A enables an individual, in some circumstances, to obtain relief against a trade union in the High Court upon showing that the union has done an unlawful act to induce industrial action which adversely affects the provision of services to the claimant. But no such claim runs if, in relation to the action contemplated, the union enjoys the statutory immunity from suit in tort conferred by the Act in circumstances where the action in question would be done in contemplation or furtherance of a trade dispute as defined in s.244(1). The definition includes "a dispute between workers and their employer which relates wholly or mainly to… terms and conditions of employment". Waller LJ, with whom Hale LJ and Sir Philip Otton agreed, held (paragraph 45) that the teachers' working conditions were engaged in the dispute which, accordingly, related to the terms and conditions of their employment; on this and other grounds, therefore, it was held that P had no case under s.235A.[31]It seems to me likely beyond the possibility of sensible argument that the unions' position in the present case would also attract the statutory immunity. There is no issue as to the validity of the ballots or anything of that kind. The contrary result might I suppose be arrived at if it could be said that Waller LJ was wrong to equate the teachers' "working conditions" with "the terms and conditions of their employment". But such a distinction has not been argued before us and may be extremely insubstantial; and in these proceedings I certainly would not espouse it even were I entitled to do so.[32]All that said, the position of the unions in this case troubles me. But for their stance, I am sure these proceedings would have been unnecessary and uncontemplated. I mean no levity, therefore, if I say that their absence makes the case look like Hamlet without the Prince. I make it plain there is no conceivable blame to be attached to them; they were obviously not obliged to seek to intervene. I make it plain also that in what follows I express no concluded view whatever, either on the law or the facts. But I have been exercised by two things in particular.[33]The first is on the facts. I have in mind the evidence in paragraph 9 of the head teacher's first statement, to the effect that:
"I was informed by [a teacher member] [of NASUWT] that the three regional officials had specifically said they did not need to see it [viz. the appeal panel's decision letter] because of the unanimity of staff and the strength of their belief that an injustice had occurred."
I am driven to say that if this evidence is true (and without hearing the union I make no distinct finding that it is) I am astonished and dismayed by it. Do responsible trade unions hold statutory decision-makers, authorised and required by Parliament to go into the facts of cases like this, in such seeming blatant contempt? There may be, I hope there is, a benign explanation. In the framework of this present litigation I can say no more about it.[34]The second is on the law. In P v NASUWT , once it was shown that the union enjoyed the statutory immunity, there was an end of the case under s.235A. But there may be a further question. If a trade union may fall to be treated as a public body amenable to the judicial review jurisdiction, then even though on particular facts it enjoys immunity from private suit in tort, nevertheless if it takes a position designed in terms to frustrate the lawful decision of Parliament's delegate – here, the appeal panel – that might be vulnerable as a matter of public law, as being calculated to undermine the rule of law. I express no concluded view whatever. (4) DISCRETION AND THE FACTS[35]In a sense this is the most important area of debate in the whole case, and I hope I may be forgiven for dealing with it in a sentence. While I have scant regard for the head teacher's personal protestations that the appeal panel got it wrong, and even less regard for his having told L as much, it is in my view entirely plain that he did his best to reintegrate L in the school while taking account of the difficulties posed by the unions' position. I have already set out the facts. I reject Mr Bowen's submission that he was actuated by his disagreement with the panel's decision. In my judgment he acted consistently with his obligations in these difficult circumstances, as I have earlier described them. So did the Governors. (5) MR BOWEN'S FURTHER ARGUMENTS[36]All these arguments are bad for the reasons given by Henriques J. ***[37]I would dismiss these appeals. CLARKE LJ:[38]I agree that these appeals should be dismissed for the reasons given by Laws LJ.[39]I would, however, express my reservations with regard to two aspects of his judgment. The first is in the penultimate sentence in paragraph 28. While I entirely agree that the Governors (and indeed the head) must comply with the decision of the panel, I am not at present persuaded that they must not base any action or decision on a view of the merits which is at variance with the conclusions of the panel if by that is meant all the reasoning of the panel. There is no statutory provision to that effect. Section 67(3) of the 1998 Act expressly provides that "the decision" of the panel shall be binding on (among others) the Governors and the head, but goes no further.[40]I agree that, as between the school and the pupil who is reinstated pursuant to a decision of the panel, the school would be expected to honour the reasoning of the panel. However, as Laws LJ has explained in the remainder of paragraph 28 of his judgment, the decision of the Governors and the head as to how to implement a panel decision that the pupil be reinstated may depend upon a number of considerations including the unions' attitude, which may itself be based on a different view of the incident which led to the original exclusion from that taken by the panel. In such circumstances the Governors and the head are entitled to take all the circumstances into account in deciding how best to proceed in the interests of the school, which of course includes the interest of all the pupils, whether previously excluded or not.[41]The second aspect relates to the position of the teaching unions. I entirely agree with the views expressed in paragraphs 30 and 31 of Laws LJ's judgment. My reservations relate only to the views expressed in paragraphs 33 and 34. I do not think that it necessarily follows from the fact that a teaching union or its members take a different view of the facts of an incident from that taken by a panel, or from the further fact that it expresses that view by asserting that an injustice has occurred, that it holds the panel in contempt, let alone in seemingly blatant contempt. I would prefer to express no view upon such matters unless and until it is necessary to do so. Equally I express no view one way or the other on the point raised in paragraph 34 of Laws LJ's judgment.[42]Neither of those reservations affects my agreement with the reasons given by Laws LJ for dismissing these appeals. …. THORPE LJ[43]I also agree.

ORDER

Appeal dismissed with costs. (Order does not form part of approved Judgment)

Cited in 1 later judgment