Kilroy, R (on the application of) v Parrs Wood High School [2011] EWHC 3489 (Admin)

Case No CO/6636/2011

[2011] EWHC 3489 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Civil Justice Centre

Venue Manchester

Date 22 nd December 2011

Date Hand Down Date:5 th January 2012

M60 9DJ

Before

HIS HONOUR JUDGE PELLING QC

SITTING AS A JUDGE OF THE HIGH COURT

Between

RClaimant

on the application ofClaimant

FERGUS KILROYClaimant

GOVERNING BODY, PARRS WOOD HIGH SCHOOLDefendant

The Claimant appeared in person for in person

Mr Simon Forshaw (instructed by Manchester City Council) for Defendant

Hearing Hearing dates: 7 th December 2011

Judgment

HH Judge Pelling QC:

Introduction

[1]This is the hearing of a Judicial review claim for an order quashing a decision of the Defendant taken on 13th April 2011 to suspend the Claimant from his office as a governor of Parrs Wood High School (“the School”) for a period of 6 months, for an order directing that his period in office as a Governor be extended by the period of his suspension (6 months ending on the 13th October 2011) and for an Order that any further attempt to suspend the Claimant be determined by an independent governing body. Permission to continue these proceedings was granted by me following an oral hearing that took place on 30th September 2011 subject to the qualification that the Defendant was entitled to rely on its contention that these proceedings had not been commenced promptly as required by CPR 54.5.

Factual Background

[2]The Claimant was elected a parent governor of the School on 13th December 2010 with effect from 5th March 2011. He holds office for a fixed period of 4 years from the date of his election – see Regulation 22(1) of the School Governance (Constitution) (England) Regulations 2007 (“the 2007 Regulations”).

[3]There is a history of difficulty in relation to the School which it is not necessary to rehearse in any detail. Suffice to say that there was at one stage a proposal that the School should combine with another or other schools in the locality in order to form a jointly managed federation. The Claimant was opposed to that course. That led to significant differences between the Claimant and other members of the Governing Body. By September 2010 the school was led by an acting head teacher. This meant that a permanent head had to be appointed. An Appointment Committee was formed by the Governing Body which consisted of 9 people and was chaired by the Vice Chair of Governors Mr Bradford. The membership of the Appointment Committee included the Claimant and Ms Reeves, the Chair of the Governing Body.

[4]By March 2011, the applicants had been reduced to a shortlist of 5 candidates including Mr Francis Power. On 28th March 2011, a meeting of the Appointments Committee was held at which the details for the conduct of the appointment process were discussed and agreed. On either that day or the 29th March 2011 an anonymous letter was sent to Mr Power. The letter contained details of the proposed selection process that had been agreed only at the meeting on the 28th March and could have been known only to those who attended the meeting. The fact that Mr Power was a candidate and his postal address was known only to members of the Appointments Committee and to the School’s Head of Administration. The Defendant contends that on 31st March 2011, Mr Power informed the School by email of the receipt by him of the letter and that he wished to withdraw from the process both because of the receipt by him of the letter and because he had received an alternative offer from his current employer that he wished to accept. The Claimant maintains that Mr Power withdrew from the process on 31st March and by an email received on 1st April informed the school of the receipt by him of the letter. These factual differences are immaterial for present purposes.

[5]A meeting of the Appointments Committee took place on the 4th April 2011 chaired by Mr Bradford. The business of the meeting was to discuss the receipt by Mr Power of the anonymous letter referred to above, to identify who was responsible for sending it and to decide what steps ought to be taken as a result. It is common ground that each member of the committee was interviewed by Mr Bradford together with Ms Mary Arnold, an independent observer appointed by the LEA, Manchester City Council (“the LEA”). In the second of the two interviews, Mr Bradford asked each member of the committee two questions the second of which was “Do you have any view of who did [write the letter]?” Six members indicated that they considered the author to be the Claimant. The Claimant has always denied that he is the author of the letter.

[6]There is a difference of evidence as to what happened thereafter. The Defendant’s case, based apparently on what Mr Bradford says in a note he prepared on 2nd October 2011, was that he informed the Claimant that he was “… invoking suspension proceedings on the balance of probability that he had written the letter …” The Claimant’s case is that Mr Bradford purported to suspend him with immediate effect. He maintains that it was only when it became apparent the next day that (as is now common ground) Mr Bradford had no power to take this step that the focus changed to that of commencing suspension proceedings. The Defendant’s pleaded case is that this did not happen. However after much delay some minutes of the meeting kept by Mr Bradford and by Ms Arnold have been obtained and disclosed by the Defendant. Mr Bradford’s notes are contemporaneous with events and purport to record him saying (presumably to the Claimant) “Suspend while full investigation is carried out …”. Mr Forshaw submitted that this was ambiguous. If and to the extent that is so, the same cannot be said for Ms Arnold’s notes. They record that:

“When all the interviews had been completed and the evidence from members had been considered, the Vice Chair of the Governing Body, Mr D Bradford, made the decision to suspend Mr Kilroy from the Governing Body. Mr Bradford was of the opinion that in the balance of probability Mr Kilroy was responsible for writing and sending the letter to F Power.”

On this factual issue I conclude and proceed hereafter on the basis that what occurred at the end of the meeting on the 4th April 2011 was as described by Ms. Arnold in her note.

[7]It is common ground that on the 6th April 2011, an email was sent to the Claimant and to every other member of the Governing Body convening a meeting of the Governing Body to take place on 13th April 2011 and attaching an agenda, the material part of which provided:

“2. Motion to suspend a governor – proposed by Dave Bradford, Vice-Chair - Breach of confidentiality to the school and staff - Acting in a way that has brought, or is likely to bring, the school, the Governing Body and/or his or her office into disrepute”

On the same day, and probably after the agenda had been sent out to him, the Claimant received a further email from Mrs Lowe of the Governor Support Team, by which the Claimant was informed that at the meeting on the 13th April he would be named as the governor in question and then saying:

“as per the rules of governance, at next week’s meeting the reasons for the proposal to suspend will be given to the governors present and you will be given the opportunity to make a statement in response”. - Breach of confidentiality to the school and staff - Acting in a way that has brought, or is likely to bring, the school, the Governing Body and/or his or her office into disrepute”

[8]On 13th April 2011, a meeting of the Governing Body took place. The Claimant sought to assert that those members of the Governing Body who had been present at the meeting of the Appointments Committee ought not to be permitted to vote on the ground that they had a conflict of interest. This objection was not accepted or, possibly, considered. Mr Bradford then presented the case as to why the Claimant ought to be suspended. The Claimant maintains that he was half way through his representations when he was prevented from completing them and asked to leave. A vote was then taken and the Governing Body (excluding Mr Bradford, who left the meeting at the same time as the Claimant) voted 11 to 1 in favour of suspending the Claimant.

The Statutory Framework

[9]The suspension of a governor is regulated by the School Governance (Procedures (England) Regulations 2003 (“the 2003 Regulations”). The material provisions for present purposes are Regulations 11 and 15 which in so far as is material provide as follows:

“11.— Convening meetings of the governing body ... (4) The clerk shall give written notice of the meeting, a copy of the agenda for the meeting and any reports or other papers to be considered at the meeting at least seven clear days in advance to– (a) each governor; (b) the head teacher (whether or not he is a governor); (c) any associate member; and (d) the local education authority, where an agenda item for the meeting involves consideration of a change of school category; provided that where the chair so determines, on the ground that there are matters demanding urgent consideration, it shall be sufficient if the written notice of the meeting states that fact and the notice, copy of the agenda, reports and other papers to be considered are given within such shorter period as he directs. (5) The power of the chair to direct that a meeting be held within a shorter period shall not apply in relation to any meeting at which– … (b) the suspension of any governor, ... is to be considered. 15.— Suspension of governors (1) Subject to paragraphs (2), (3) and (4), the governing body may by resolution suspend a governor for all or any meetings of the governing body, or of a committee, for a fixed period of up to 6 months on one or more of the following grounds– … (c) that the governor has acted in a way that is inconsistent with the ethos or with the religious character of the school and has brought or is likely to bring the school or the governing body or his office into disrepute; or (d) that the governor is in breach of his duty of confidentiality to the school or to any member of staff or to any pupil at the school. (2) A resolution to suspend a governor from office shall not have effect unless the matter is specified as an item of business on the agenda for the meeting of which notice has been given in accordance with regulation 11(4). (3) Before a vote is taken on a resolution to suspend a governor, the governor proposing the resolution shall at the meeting state his reasons for doing so, and the governor who is the subject of the resolution shall be given the opportunity to make a statement in response before withdrawing from the meeting in accordance with paragraph 2(2) of the Schedule. (4) Nothing in this regulation shall be read as affecting the right of a governor who has been suspended to receive notices of, and agendas and reports or other papers, for meetings of the governing body during the period of his suspension. …”

Amendment of the Claim Form

[10]At the outset of the hearing, the Claimant (who appears in person) sought to amend the claim form so as to raise for the first time a point that had not in terms had not been raised by him previously. As will be apparent from Regulations 15(2) and 11(4) a resolution to suspend is not to have effect unless the matter had been specified as an item of business in an agenda for a meeting of the Governing Body in respect of which a minimum of 7 clear days notice had been given. It is common ground that only 6 clear days notice had been given. Thus, the Claimant contends that his purported suspension could not and did not have any effect and in consequence it was unlawful for the Governing Body to have given effect to it.

[11]I gave permission to amend because the point is obviously arguable (the contrary was not suggested), the point is one that arises from the Defendant’s own pleaded case at Paragraph 3 of the AoS and the only prejudice of which complaint was made was the suggestion that the Defendant would not be able to respond properly to the point at the hearing. This last point was one that I was able to address by giving directions for the filing of written submissions limited to that point by the Defendant within 7 days of the completion of the hearing and by giving directions for the filing of any reply submissions by the Claimant by no later than 3 days thereafter. It was this factor which led to the delay between the end of the hearing and the circulation of this judgment in draft.

The Parties’ Cases

[12]The Claimant’s case is essentially procedural in nature. Aside from the point raised by way of amendment mentioned above, the Claimant’s case is that(a) the decision to purportedly suspend him at the meeting on the 4th April 2011 was without legal effect and was unlawful (something that is not disputed by the Defendant),

(b) that those who attended the meeting on 4th April were conflicted and ought to have disqualified themselves from sitting in judgment on him at the meeting on the 13th April 2011 and that had they done so, then there would have been an insufficient number of Governors able to vote to suspend him,

(d) further or in the alternative to each of the matters so far mentioned, the meeting was conducted in a manner that constituted a violation of what the Claimant contends are his rights under

Article 6 of the European Convention on Human Rights

(“ECHR”).

[13]The Defendants’ case is that(a) even if Mr Bradford purported to suspend the Claimant at the meeting on the 4th April 2011, that is irrelevant because the only decision acted upon was that taken on the 13th April which was in all respects regular and lawful,

(b) if and to the extent the Claimant has any grounds for complaint concerning the decision taken on the 13th April then he has an alternative remedy available to him – a point which was in effect abandoned by the Defendant in the course of the submissions made on its behalf –

(d) none of the Governors that participated in the meeting on the 13th April were disqualified from voting by reason or any actual or apparent bias or conflict of interest save possibly Mr Bradford who did not vote in any event and

(e) on a proper construction of the regulations as a whole, strict compliance with the timing provision within Regulation 11(4) was not required if a decision to suspend was to be validly passed.

[14]In any event, it is submitted that the proceedings were not brought promptly (but were brought within the 3 month period referred to in CPR 54.5) and, therefore either the claim ought to be dismissed or the court should decline to grant the Claimant a substantive remedy.

[15]Finally it is said that the proceedings are academic because the period of suspension has now run its course.

Discussion

[16]Preliminary Considerations There are some issues that can be disposed of without difficulty. First, although it was contended that there was an alternative remedy available to the Claimant, I am satisfied that the position is sufficiently uncertain for that point to be discarded as an answer to this claim. Reliance was placed by the Defendant on ss.496-497 of the Education Act 1996. As counsel for the Defendant conceded (entirely correctly and fairly) there is a doubt as to the applicability of these provisions. Both sections are concerned with situations where the body has either failed to act or has acted unreasonably “… with respect to the exercise of any power conferred or the performance of any duty imposed by or under this Act …” (emphasis supplied).

[17]The power of a Governing Body to suspend, and the conduct of meetings at which such decisions are considered, are not, and are not derived from, duties imposed by the 2003 Act. It was pointed out by counsel that the Claimant had sought to invoke these provisions, that the Department had initially rejected his complaint made pursuant to them and had then re-opened and stayed further consideration of the Claimant’s complaint made pursuant to these provisions pending the resolution of this claim. Counsel reminded me that at no stage had the Department suggested it did not have power to intervene because of the jurisdictional point to which I have referred.

[18]I am not in a position to decide this issue one way or another – the point has not been fully or comprehensively argued before me by the Claimant and the Defendant’s counsel is sufficiently uncertain of the point to have presented this element of the Defendant’s case with the circumspection that I have described. In these circumstances, it would be unsafe and unsound to proceed on the basis that the Claimant has an alternative remedy. If the Defendant wished to argue this point then they could have attempted to eliminate the point I am now considering but they did not. In those circumstances I leave this issue out of account.

[19]The submission made by the Defendant that these proceedings are now academic is one that needs to be approached with some circumspection. Whilst I accept that this factor may be relevant if and when the point is reached when it is necessary to consider what if any remedy ought to be granted, I do not consider it relevant to the issue of whether the Claimant should be permitted to maintain a claim. If the Claimant has been treated unlawfully, then the fact that the consequences of what on this hypothesis would be unlawful conduct had played themselves out by the time the claim for judicial review comes to court, does not entitle a Defendant who has acted unlawfully to avoid a finding to that effect. That is particularly the case where any unlawful suspension of the Claimant might have an effect on the validity of business conducted by the Defendant.

[20]The other issue that can be deposed of immediately is the reliance by the Claimant upon

ECHR Article 6

. I say this because Article 6 applies to the “… determination of [a party’s] civil rights and obligations …”.This point is emphasised in the case law that the Claimant relies on cited by him in Paragraph 18 of his skeleton submissions. In consequence it has been consistently held that Article 6 does not apply to disciplinary hearings which do not determine private law civil rights and obligations. The relevant jurisprudence is conveniently collected at Paragraph 7-035 in De Smith on Judicial Review, 6th ed., page 373. In the circumstances of this case the outcome of the decision does not impact on any private right between the Claimant and any other person nor does it have any impact on the proprietary, commercial or professional rights or privileges of the Claimant. So far as I am aware there is no decision which is squarely on point either by the ECtHR or by the higher courts in England and Wales. However, in my judgment the reasoning that underlies the position consistently adopted by the ECtHR and the Courts of England and Wales that Article 6 is of no application to school exclusions provides some support by analogy for the view that I have come to on this issue.

[21]The Sufficiency of Notice Point As the Defendant’s counsel observes in his supplemental closing submissions, the facts relevant to this issue are not in dispute. Regulation 11(4) of the 2003 Regulations requires that 7 clear days notice of a meeting of the Governing Body is required to be given. The Chair of the Body is given discretion to authorise the calling of a meeting at shorter notice to consider matters requiring urgent consideration but by Regulation 11(5) that power is expressly excluded in relation to any meeting at which the suspension of any governor is to be considered. Regulation 15(2) provides that a resolution to suspend “… shall not have effect …” unless it appears of the agenda for the meeting “… of which notice has been given in accordance with regulation 11(4)”.

[22]It was submitted on behalf of the Defendant that the question whether a statutory provision renders an act done purportedly in compliance with that statutory provision a nullity is a question of statutory construction. I agree. It was submitted that the correct approach was that identified in such cases as Soneji

[2006] 1 AC 340

which requires a court considering whether a failure to comply with a time limit renders invalid an action taken outside the relevant time limit to ask itself “… whether Parliament can fairly be taken to have intended total invalidity …” – see the opinion of Lord Steyn at Paragraph 23. In coming to this conclusion Lord Steyn was following an earlier decision of the Australian High Court (referred to in Paragraph 21 of Lord Steyn’s opinion) where the test was formulated as requiring a court to “… ask whether it was a purpose of the legislation that an act done in breach of the provision would be invalid …”. I accept that this now represents the modern approach to validity questions but in my judgment where the statute or statutory instrument expressly provides an answer to the invalidity question then either this approach is one that it is not necessary to embark upon or if does have to be embarked upon then posing the question leads to a forgone conclusion. This point is emphasised by the part of the judgment cited by Mr Forshaw in Paragraph 13 of his supplemental submissions from London & Clydesdale Estates Limited v. Aberdeen District Council

[1980] 1 WLR 182

to this effect:

“When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest detail. But what the courts have to decide in a particular case is the legal consequence of non-compliance on the rights of the subject viewed in the light of a concrete state of facts and a continuing chain of events.”

The point that arises from this is an obvious one – the courts do not have to decide on the legal consequences of non-compliance where the statute or statutory instrument expressly provides what those consequences are to be. Precisely the same point arises from the part of the judgment in R v. SSHD ex parte Jeyeanthan

[2000] 1 WLR 354

cited by Mr Forshaw in Paragraph 12 of his supplemental submissions. Thus the inclination of the courts to avoid a conclusion that non-compliance leads to invalidity where the point that is taken is one of mere technicality does not or cannot arise where the statute or statutory instrument expressly provides for what are to be the consequences of non-compliance.

[23]I now turn to the regulations relevant to this case. Regulation 15(2) provides in terms that a resolution to suspend a governor “… shall not have effect …” unless the resolution appears as an item of business on the agenda for the meeting at which the resolution was purportedly passed “… of which notice had been given in accordance with Regulation 11(4)”.

[24]In my judgment it is plain that the purpose of the legislation was to preclude suspension from taking effect unless the requirements of the Regulations were strictly complied with. The power to suspend contained in Regulation 15(1) is expressly made subject to “… paragraphs (2), (3) and (4) …” Thus the power to suspend cannot arise unless Regulation 15(2) is complied with. Regulation 15(2) expressly provides that a resolution to suspend is not to have effect unless both of the two conditions precedent identified in that paragraph are complied with – that is that that the resolution appears as an agenda item in the agenda for the meeting at which the relevant resolution is purportedly passed and that notice of that meeting has been given in accordance with Regulation 11(4).

[25]Regulation 11(4) requires a minimum period of notice to be given (“… at least seven clear days …”) and, critically, the power of the Chair of the Governing Body, contained in the proviso to Regulation 11(4), to permit derogation from the minimum notice requirement is expressly excluded by Regulation 11(5) “… in relation to any meeting at which … (b) the suspension of any governor … is to be considered”. In my judgment this provision when read in conjunction with Regulation 15 as a whole emphasises in the clearest terms that strict compliance with Regulation 11(4) is required if a resolution to suspend a governor was to have effect.

[26]Once that conclusion has been reached points concerning the degree to which it at all the Claimant has been prejudiced by non compliance and the potentially adverse effects on the Defendant is a merely technical objection is permitted cease to have any relevance.

[27]The contention that a different approach is to be adopted where the issue is whether the proposed suspension appears in the agenda rather than whether the minimum period of notice has been given is unarguable in my judgment. Whilst this point might be arguable if only the terms of Regulation 15(2) are considered, the point becomes unarguable in my view when the whole of Regulations 11 and 15 are considered together and account is taken of Regulation 11(5) in arriving at a conclusion. Had it been intended to make non compliance with one but not the other an omission that deprived a purported resolution of effect then that could easily have been provided for. There is no such provision. Indeed if that had been the intention, then Regulation 11(2) would have ended “…for the meeting at which that resolution is passed …” as opposed to the language actually used namely “” … for the meeting of which notice has been given in accordance with Regulation 11(4).

[28]The Other Procedural Issues Given the conclusions I have so far reached I can address these issues shortly. In my judgment there is in the end no substance to any of the other matters on which the Claimant seeks to rely. At the heart of the Claimant’s assertion that those governors who attended the meeting on 4th April ought to have been disqualified from voting at the meeting on the 13th lies the assertion that each decided that the Claimant should be disqualified at that meeting. However it became clear in the course of the hearing that factually this proposition was not and could not be maintained. The Claimant accepted in the course of his oral submissions that it was just Mr Bradford who purported to suspend the Claimant at the meeting on the 4th April with the assistance of Ms Arnold who however was not a governor and did not vote at the meeting on 13th April. Although she was present at the meeting she did not and was not entitled to vote on the resolution before the Defendant. The remaining governors present at the earlier meeting had participated in a process of investigation. They had not participated in the (clearly erroneous) decision to purport to suspend the Claimant at the earlier meeting. That was a decision taken by Mr Bradford alone. There is a clear distinction between investigation of an allegation and the imposition of the penalty. Here those governors present at the earlier meeting only participated in a decision to suspend when they attended the meeting on the 13th April. As long as the Claimant was given a proper opportunity to respond to the allegations made against him no complaint could realistically be made about the procedure that was adopted. Mr Bradford withdrew from the meeting on 13th April after he had made his presentation as to why he considered that the Claimant ought to be suspended. He did not participate in the voting process.

[29]The remaining issue concerns the conduct of the meeting itself. Here the complaint made by the Claimant is that he was prevented from completing his representations to the Defendant before he was asked to leave. Regulation 15(3) requires that the Governor whose suspension is being sought should be “… given the opportunity to make a statement in response …” It is clear from the meeting minutes that the Claimant was given an opportunity to address the meeting and that he took full advantage of it. It is also clear that the governors or some of them considered some of the points that were being made by the Claimant to be irrelevant. The common law rules of fairness require that a person be given an effective opportunity to make representations before a decision is made. The regulations are not to be construed as having been intended to give any greater rights in this regard that the common law requires. The Claimant was plainly given an effective opportunity to make representations and he did so.

The Timing Issue

[30]These proceedings were commenced one day prior to the expiry of the 3 month period referred to CPR 54.5. This is common ground between the parties. The Defendant maintains however that the claim was not brought promptly and that in those circumstances, either the claim ought to be dismissed or relief refused. In support of that submission the Defendant maintains that there is no good reason offered for the Claimant’s delay in commencing proceedings and the Defendant has been prejudiced or good administration is prejudiced because the period of the Claimant’s suspension has now elapsed and there is no public interest in extending time.

[31]I am not able to accept these submissions. First, an adequate explanation has been provided by the Claimant as to why judicial review proceedings were not commenced immediately. He chose to pursue his concerns with the Ministry of Education in the manner described earlier in this judgment namely by reference to ss.496-497 of the Education Act 1996. Whilst this may have been erroneous it cannot be said that the Claimant was simply ignoring matters. I do not accept that the Defendants have been prejudiced in the way alleged. It is true to say that the Claimant’s period of suspension has now expired but I do not accept that if proceedings had been commenced shortly after the 13th April they would have been concluded by 13th October 2011, even allowing for the fact that the Administrative Court sits throughout August and September in Manchester and that the process has taken about 5 months to complete (ignoring the time taken up by the need for supplemental submissions and the preparation of a judgment). It is unrealistic to suppose that the Claimant could have commenced proceedings immediately following the 13th April. Had they been started a month after the decision to suspend had been taken, and had the proceedings taken only 5 months to complete, they would still not have been completed before the expiry of the Claimant’s suspension.

[32]There is no assertion of any prejudice other than that the period of suspension has now expired. In my judgment there is a public interest to be served by these proceedings. I have no means of knowing what business has been conducted by the Defendant at meetings from which the Claimant was excluded or whether, had the Claimant attended, it would have made any difference. However, I do not consider it desirable that the issue of the validity of the suspension of the Claimant should be left to be resolved in other proceedings that may arise out of decisions taken by the Defendant during the period of the Claimant’s wrongful suspension. For the reasons that I have identified I consider the Claimant’s suspension to have been without effect and I consider that position ought to be unequivocally stated in proceedings in which the issue most naturally arises.

Remedy

[33]In my judgment the Claimant is entitled to a declaration to the effect that the decision to suspend him from office as a governor on 13th April 2011 was of no effect.

Cited in 1 later judgment

McCormack, R (on the application of) v St Edmund Campion Catholic School & Ors 2012