McCormack, R (on the application of) v St Edmund Campion Catholic School & Ors [2012] EWHC 3928 (Admin)

Case No CO/9818/2011

[2012] EWHC 3928 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT SITTING AT BIRMINGHAM

Priory Courts

33 Bull Street

Venue Birmingham West Midlands

Date Tuesday, 11th December 2012

England

B4 6DS

B e f o r e:

MR JUSTICE BEATSON

Between

THE QUEEN ON THE APPLICATION OF MCCORMACKClaimant

Between

THE GOVERNING BODY OF ST EDMUND CAMPION CATHOLIC SCHOOL (1)Defendant

SECRETARY OF STATE FOR EDUCATION (2)Defendant

DIRECTOR OF SCHOOLS DIOCESAN SCHOOLS COMMISSION (3)Defendant

Tape Transcript of

WordWave International Limited

A Merrill Communications Company

165 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

The Claimant appeared in Person for in person

Mr Tindall (instructed by Birmingham City Council Legal Services Department) appeared for First Defendant

Miss Ward (instructed by the Treasury Solicitor) appeared for Second Defendant

for The Third Defendant did not appear and was not represented

Judgment

[1]MR JUSTICE BEATSON: This application for judicial review was lodged on 12 October 2011. The claimant, Mr Michael McCormack, formerly a teacher at the St Edmund Campion Catholic School and elected staff governor, has permission to challenge the decision of the first defendant, the governing body of the school, made on 5 October 2011, to suspend him from attending governors' meetings for a period of 6 months.

[2]At the core of this part of the challenge is the submission that the governing body's decision was of no effect because of non-compliance with the provisions of regulations 14(2) and (5) and 15(1) of the School Governance Procedures England Regulations 2003 SI 2003 No 1377 (hereafter "the 2003 Procedure Regulations").

[3]The claim as originally issued also challenged the failure of the second defendant, the Secretary of State for Education, to consider a complaint under section 497 of the Education Act 1996 ("the 1996 Act") in a reasonable time. On 8 February 2012 the second defendant made his decision on that matter. He decided not to make a direction to the governors under this section. The claimant amended his grounds and challenged that decision and has been given permission to challenge the decision not to make a direction.

[4]Section 497(1) of the 1996 Act provides that:

"(1)If the Secretary of State is satisfied (either on a complaint by any person interested or otherwise) that a body to which this section applies have failed to discharge any duty imposed on them by or for the purposes of this Act, he may make an order— ... (b)giving such directions for the purpose of enforcing the performance of the duty as appear to him to be expedient."

Section 496(1) gives a similar power where the Secretary of State is satisfied that a body to which the section applies has acted or is proposing to act unreasonably with respect to the exercise of any power conferred on it or the performance of any duty imposed on it by or under the 1996 Act. It is not in contention that the first defendant is a body to which the sections apply. I have referred to the fact that permission has been granted for those two grounds.

[5]His Honour Judge Cooke, who did so on 2 April 2012, refused the claimant permission to challenge the decision on a number of other grounds, including the one that I have mentioned: that the Secretary of State took an unreasonable time to determine the claimant's complaint. This was a variation of the original ground that challenged the failure to consider the complaint. The claimant has renewed his application on that ground and one other. The other ground concerns the governors, the first defendants. He maintains that they have no grounds to suspend him since they purported to do so because he was subject to disciplinary proceedings. He maintains that he was not so subject and accordingly they have no power to suspend him under Regulation 15(1)(a) of the 2003 Procedure Regulations.

[6]There is a considerable body of material before this court. It has been considered in detail over the last day and a half. The documents do not only concern the dispute about the claimant's suspension and the decision of the Secretary of State but also the background, much of the history between the claimant and the first defendant and the school and the proceedings he has brought in the Employment Tribunal. Some of those documents had been inserted into the bundle by one or other of the defendants. For example, the first defendant inserted the decision of the Tribunal refusing the claimant interim relief in his unfair dismissal action. But the bulk of the documents are there because the claimant has put them there.

[7]Many of the documents concerning the history, the general background and the employment dispute are not relevant to the challenges before this court. The claimant explained at the outset of the hearing that he considered it appropriate to have all the material before the court rather than to have less and be criticised for not putting relevant material in front of the court and that he had sought to arrange the material appropriately. The way he has done so is no doubt a consequence of the fact that he is not a lawyer, and has been representing himself. He has made commendable efforts to organise the documents. He has produced two paginated bundles, which these days one sometimes does not get in cases, where there are both solicitors and counsel. He has, however, arranged the documents not chronologically but under the headings "background milestones", "the instant claim" and "governor suspension proposals 5 and 6". There are then sections on the earlier suspensions and the evidence served by the second defendant including the statement of Penny Jones. She is the Deputy Director Independent Education in school governance whose responsibilities include advising the Secretary of State on the response to requests for interventions made under sections 496 and 497 of the 1996 Act where they relate to school governors' issues. Her statement is dated 26th October 2012.

[8]A second possible consequence of the fact that the claimant is a lay person is that much of his correspondence, in particular with the second defendant, has the characteristic of addressing the variety of issues at once. For example, he raised with the second defendant a number of matters about the management of the school by the governing body and concerning a complaint against him which he maintained was fabricated. His responses to invitations to comment on particular matters by the second defendant did not confine themselves to those matters. So, for example, when asked to comment about possible conflicts of interest by governors, he provided almost 100 pages including 14 pages of continuous tables in a small type font about the other governors and the matters which he regarded as raising conflicts of interest. He also included matters such as, for example, the absence of one of the governors, Mr Nielsen, from governing body meetings.

[9]I set this out in part because of the additional ground that is raised against the Secretary of State. That alleges delay, an unreasonable delay. But I also set it out because what I have been able to see from the material put before me is a very full picture of the story. It must also be said that, although that the claimant is not legally qualified, he was able to present his case effectively and moderately. He dealt with my questions, and he dealt with requests to keep to the point when he wandered off it. It is clear from all of this that he feels passionately about the issues that arose at this school where he was teaching and about the way that the Board of governors was run.

[10]There is also a volume of material which is not before me and of which I cannot comment, but clearly this was a troubled school. It had been in special measures and steps were being taken. The minutes of the meetings and the letters show a strength of feeling on all sides as relationships deteriorated over a period. What follows in this judgment is a thumbnail sketch of the background and a summary of the events that are relevant in the context of this judicial review.

[11]The claimant was employed as a science teacher at the school with effect from 5 January 2007. He was elected a staff governor on 11 May 2009. On 12 June 2009 he was suspended from his employment to enable investigations to take place in relation to an allegation of harassment made against him by another employee. The letter to him from the headteacher stated that "suspension is a neutral act" and "should not be viewed as disciplinary action". It also stated that should the outcome of the investigation lead to a disciplinary hearing it would be conducted under the school's disciplinary procedure and the conduct under investigation might be deemed to be gross misconduct. The claimant was told not to visit the school or contact anyone involved in the alleged misconduct without prior permission.

[12]In a letter dated 6 April 2011 from the headteacher, the claimant was informed there would be a further investigation into additional allegations against him. These were that he disclosed a confidential report to a journalist, he made serious and false allegations against school employees and local authority officers, that he had maliciously threatened employees and the chairman of the school's governing body and that he had provided unauthorised and a misleading reference on school headed note paper, giving the false impression that he had worked at the school with a person for whom he was writing. The letter stated that "the investigation is a fact-finding process but should the outcome of the investigation into the allegations lead to a disciplinary hearing, they may be deemed as potentially gross misconduct" It also stated that the previous terms of the claimant's suspension continued. Ultimately, the claimant was dismissed from his employment on 19 March 2012. He instituted unfair dismissal proceedings in the Employment Tribunal, alleging inter alia that his suspension was "maintained in breach of contract" and that he had been the victim of a continuous pattern of detrimental treatment and victimisation. He sought interim relief on the ground that the principal reason for his dismissal was for making a protected disclosure. On 16th April 2012 the Tribunal refused to grant him interim relief.

[13]Of course, the Tribunal was only considering interim relief. There will in due course be a hearing. The Tribunal judge stated that that hearing would extend over weeks and no doubt, as Mr Tindall observed during the course of the hearing, for that reason the hearing has not yet been listed. The outcome may be that the claimant will be reinstated or he may be vindicated but not reinstated. It is not relevant in this court to speculate about that. All that is relevant is to note that the effect of his dismissal, which will be effective until and unless it is set aside because it is a contractual matter, is, as far as his status as a governor is concerned, governed by Regulation 5 of the School Governor's Constitution Regulations 2007. That defines a staff governor and states in 5(4) that:

"Upon ceasing to work at the school a staff governor of the school is to be disqualified from continuing to hold office as such a governor."

[14]I shall first deal with the history of the claimant's suspensions as a member of the school's governing body. The first of those was on 8 July 2009. The most recent is that which is the subject of this challenge on 5 October 2011. As to the claimant's involvement with the Secretary of State and the Department, at this stage, I observe only, and only for the purpose of explaining some of the context in relation to the suspension from the governorship, that the claimant first contacted the Department for Education in an e-mail dated 15 January 2010, sent to a generic e-mail address. This did not get through to the relevant section of the Department. I was informed of this by Miss Ward during the course of her submissions. As far as I can see there is no evidence to this effect from Mrs Jones, but I proceed on that basis.

[15]The relevant section of the Department was headed by Miss Jones. She states that she first became aware of the claimant's complaint in emails dated 6 October 2010. The relevant official allocated to deal with the claimant's request to the Secretary of State for intervention, and I will return to the grounds upon which he sought intervention, was a Ms Hutchinson. The first e-mail dated 6 October 2010 made allegations against the management of the school by its governing body. They included a denial of information about a financial deficit, not allowing staff and parent complaints to be heard within a reasonable time and not investigating complaints. The letter requested that the Secretary of State intervened under his powers under the 1996 Act. There was express reference to sections 495, 496, 497A, 497AA and 498.

[16]I return to the history of the suspensions. On 8th July 2009 the governors suspended the claimant from attending meetings of the governing body for a period of 6 months. He had not been informed of the proposal to suspend him before the meeting and was informed of the suspension on 9 July. The grounds of the suspension were that it was alleged that he had violated the confidentiality of the governing body by disseminating to people who were not members of the governing body grievances and allegations against a number of people outside that body.

[17]I state instantly that it is now accepted by the first defendant, or at least by the officials in Birmingham City Council who advised the first defendant, that this did not comply with the regulations. Irrespective of whether it complied with the regulations to which I will return, it did not comply with the most basic principle of natural justice. Although latin is prohibited in this court now that prompted is audi alteram partem (give the other an opportunity to be heard).

[18]The claimant was suspended on three further occasions. The first of those arose as a result of his behaviour at a governing body meeting on 2 December 2009. The Chair of the governing body stated in an e-mail, after the Christmas break, to a representative of the council, that the claimant's confrontational behavioural inhibited the proper working of the governing body and that that he wanted to move to suspend him . The matter was considered at a meeting on 20 January 2010. The business at that meeting also included proposals by the claimant that two other governors be suspended and that the clerk be removed from her office.

[19]Mr Edmonds, Birmingham City Council's governor services manager, gave advice to the governors on the process to be followed in view of the number of challenges. He stated that, in his view, since the claimant was proposing resolutions to suspend two other governors from the governing body there was scope for further challenge, conflict and debate, should he be denied the opportunity to participate because his suspension was considered first, no vote should be taken until the governing body heard about all the suspensions it had agreed to consider. He also gave advice as to the order in which votes should be taken, noting that this also would provide scope for challenge, conflict, and debate. He suggested that it would be better if the three governors in question all left the meeting while a vote is taken on each resolution. He accepted that Regulation 15(3) of the 2003 Governors Procedure Regulations does not require the proposer to withdraw while a vote is taken. He accepted that it seemed unfair to exclude one of the other governors from voting on the resolution to suspend the claimant, but he stated he made the suggestion in order to make things easier, to take pressure off the governing body and the individuals concerned, and to avoid a revolving door scenario with individuals leaving and rejoining the meeting. The note prepared by Mr Edmonds refers to regulation 12 as well as to Regulation 15(3) but it does not refer to Regulation 14, which deals with conflict of interest and which is material to this challenge.

[20]At the meeting on 20 January the claimant was suspended. He was suspended on the ground that his behaviour was inconsistent with the school's ethos and likely to bring the governing body into disrepute.

[21]The third suspension took place on 24 November 2010. The claimant was suspended on this occasion on the ground that it was inappropriate for him to be present at meetings of the governing body because of his claim against the school in the Employment Tribunal. On 2 February 2011 he was suspended on the ground that he was subject to proceedings in a Tribunal, the outcome of which might be that he was disqualified from continuing to hold office as a governor - see Regulation 15(1) of the 2003 Procedures Regulations and paragraph 3.7B of the Department's statutory guidance on the Regulations. I interpose into the narrative account the claimant's submission that this was manifestly unauthorised and wrong because the Tribunal proceedings in which he was involved were not the sort that fell within this part of Regulation 15(1).

[22]On 23 March 2011 the claimant applied for permission to judicially review the fourth suspension made on the 2 February: this is CO/2672/2011. He also sought permission to judicially review a number of other decisions. Permission was refused on the papers by His Honour Judge Purle QC on 13 May 2011 and, following a hearing before His Honour Judge Oliver Jones QC on 24 August 2011, permission was refused again. The reasons for which permission was refused were that part of the claim was out of time, and such parts of the claim as related to periods of suspension which had expired were academic. The suspension decision on 2 February had expired on 1 August, so by the date of the hearing before His Honour Judge Oliver Jones the claimant was no longer suspended.

[23]The learned judge discussed the fact there was a pattern of suspensions, but he did not consider that this meant the claim relating to a period of suspension which had expired should go forward. He also considered that permission should be refused because the claimant was exercising an alternative remedy in his request to the Secretary of State to intervene, pursuant to powers under section 496 and 497 of the 1996 Act. As the claimant was pursuing an alternative remedy and because judicial review is a remedy of last resort, the learned judge stated that it seemed to him that it was an abuse of process to commence proceedings for judicial review when there were existing proceedings under the statutory power. The fact that the claimant was frustrated by the lack of progress in the matter before the Secretary of State, he said, was not a reason for permitting the judicial review to go forward. The learned judge certified that application as being "wholly without merit". Finally, it is appropriate to observe that in some of the documents before the judge, including one put before him by the first defendant, the procedure before the Secretary of State was referred to as ADR. It is not in fact ADR (Alternative Dispute Resolution) but an alternative remedy.

[24]In a letter dated 13th September 2011 the chairman of the governing body wrote to the claimant to inform him that, at the governing body meeting on 21 September, a resolution that he be suspended for a further period of 6 months would be proposed. The reason for the proposal was stated to be the same as that on 2 February: that the claimant was the subject of proceedings in a Tribunal, the outcome of which may be he was disqualified from continuing to hold office. This letter was received by the claimant on 16 September. Following correspondence, on 19 September, Andrew Lang, a solicitor in the Council's education team, informed the claimant the proposal that a vote be taken on the 21st would not be taken forward. The reason was that Regulation 11(4) provides that written notice of a meeting, a copy of the agenda and any reports should be provided "at least seven clear days in advance", subject an exception where the Chair determines that matters demand urgent consideration.

[25]Regulation 15(2) provides that 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). That provision was considered by this court in R (Kilroy) v Parrs Wood High School

[2011] EWHC 3489 (Admin)

, a decision to which I shall return. I observe only that this is another instance of where there was a failure to follow, perhaps because of unawareness, the requirements of the 2003 procedure regulations.

[26]On the same day, 19 September, the chairman of the governing body informed the claimant that the resolution would be proposed at a meeting on 5 October. On this occasion it was stated that the reason for the proposal was that the claimant "being a person paid to work at the school is subject to disciplinary proceedings in relation to [his employment]". This letter also stated that the resolution to suspend the claimant would be listed as an agenda item, that before a vote was taken the chairman would state the reasons for the proposal and the claimant would be given an opportunity to make a statement in response, after which he would be required to withdraw in accordance with Regulation 15(3) of the 2003 Procedure Regulations.

[27]The meeting on 5 October was due to start at 1900 hours (7.00 pm). An e-mail from the claimant, timed at 17.24 on that date, attached a letter to the chairman of the governing body about the proposal to suspend him. The letter referred to the acknowledgement on behalf of the first defendant that the first and third suspensions on 8 July 2009 and 24 November 2010 did not follow the correct procedure and were unlawful. That acknowledgement was in correspondence between the first and the second defendant. This was because, by then, Ms Hutchinson was investigating and putting to the first defendant matters raised by the claimant and matters which were not directly raised by him but which she considered arose out of his letter and the documentation submitted either at the time or later.

[28]Returning to the claimant's e-mail, that referred to procedural impropriety and an omission to discharge the obligations under Regulations 14(2)(b) and (5) of the 2003 Regulations to prohibit members from participating where there is a reasonable doubt as to their ability to act impartially. The claimant stated that he expected the statutory framework to be discharged correctly and that failure to do so would render any decision illegal. The letter also referred to what the claimant described as the first defendant's knowledge that the Secretary of State had indicated he was "intending to adjudicate matters" under the powers conferred on him by sections 496, 497 and 497A of the 1996 Act.

[29]I turn to what transpired at the meeting on 5 October 2011. I have before me two documents. One is a copy of the signed minutes of the meeting, in part an open document which no doubt was posted on the appropriate website in compliance with local government practice and the other headed "Confidential. For governing body only", a minute of what transpired in the part of the meeting that considered the proposal to suspend the claimant. The other is a transcript of the meeting, prepared by the claimant who had gone to the meeting with a recording device and recorded the proceedings and then transcribed them. The defendants have not had sight of the underlying recording material and there is no agreement by them as to the accuracy of the transcript. Nevertheless, for the purposes of a judicial review it is possible to look at both-- (The fire alarm was then activated)

MR JUSTICE BEATSON: I am going to rise. (Short Adjournment)

[31]MR JUSTICE BEATSON: I will have to do some sewing if there is a transcript of this, because I cannot remember exactly where I got to. I think I was explaining why I could rely on both the documents as everybody in court did.

[32]The following is an amalgam of points made on the relevant issue in the documents and indicate where the point is only made in one of them.

[33]The minutes state that the Charmain informed the governing body of the process and advised the claimant that he would be given a right to respond after the Chairman had stated the reason for the proposal to suspend him. The Charmain advised the claimant that he would be given 10 minutes or in the minutes "reasonable time" to respond. In the claimant's transcript there is only a reference to 10 minutes. There is also a reference to the claimant stating that he was entitled to as long as is necessary to allow for a fair hearing.

[34]The Charmain is recorded as having read out the following:

"The proposal is that Mr McCormack should be suspended from the governing body of St Edmund Campion School under Regulation 15(1)A of the School Governance Procedures England Regulations 2003, ie 'The governor being a person paid to work at the school is subject to disciplinary proceedings in relation to his employment.' Mr McCormack is the subject of disciplinary proceedings in relation to his employment. The independent investigator, George Smalling, found the allegations against Mr McCormack to be substantiated. The governing body has not been able to progress the disciplinary process, as Mr McCormack has made himself unavailable to appear before the governing body's Appeals Committee."

[35]The official minutes record that at that stage the claimant interrupted and stated that some of the governors had conflicts of interest and the Charmain said that he was about to make a statement about that to the governing body. The governors, who are said to have a conflict of interest, are not named in the claimant's transcript but on page 7 of the transcript he stated that all but two of those present had conflicts.

[36]There were a number of governors who are not alleged by the claimant to have conflicts who were not there. The Chairman then made the following statement:

"Each member of this governing body attending at this meeting must consider whether he/she has a conflict of interest and/or whether there is any reasonable doubt about his/her ability to act impartially in relation to the matter being considered in which case he/she should withdraw from the vote. This does not mean, he/she has to withdraw simply because Mr McCormack is alleging a conflict of interest and/or impartiality. What is required is that he/she considers the issue and thereafter make a decision as to whether or not he/she considers there to be a conflict or a reasonable doubt about his/her ability to act impartially ie it is open to each member to decide that there is no conflict of interest and/or reasonable doubt about his/her ability to act impartially and that there is therefore no need to withdraw from the vote."

[37]The claimant's transcript records that before reading this out the chairman stated that he was following what "the solicitor said". The claimant's transcript also records that he had earlier asked whether something the chairman had said was "what legal services told you to say".

[38]It is clear from both documents that there were interruptions during the Charmain's statement. There were interruptions by the claimant and there were statements by other governor's asking that a vote be taken - see pages 6, 9 and 10 of the transcript, the last of which states:

"Come on Chair, we don't need to listen to this. Let's just have a vote."

[39]The official minute also records that the Chairman stated that the claimant could not make the allegations without mentioning names and that the claimant stated that Mrs Steele, who is the headteacher and the Reverend Hill, who is the Chair of the governors, had approached Father Maguire and told him not to attend the meeting. It is also common ground that at that stage the Chairman asked the claimant to withdraw from the meeting to allow the vote to proceed but the claimant refused to do so and the Chairman said that the governors would vote in his presence if he did not leave.

[40]The vote was taken and it is recorded that 11 governors voted in favour of suspension and one abstained from voting. It is also recorded that the claimant voted against his own suspension. The claimant was then again asked to leave the meeting but did not. There was a suggestion that the meeting be adjourned and moved to a staff room. Matters degenerated and the police were called at about 7.25 pm. Two police officers arrived. After talking to the claimant the officers stated that they were not prepared to remove the claimant from the meeting or the premises because no crime had been committed and it was a civil matter. The official minutes record that the meeting was stopped at 8.55 pm.

[41]I now turn to the involvement of the second defendant. I have referred to the fact that the claimant's e-mail dated 15 January 2010 did not get to the relevant department and that Mrs Jones' department first became aware of the claimant's complaints on 6 October. Her statement sets out in paragraphs 4 - 9 how requests for intervention under sections 496 and 497 are dealt with. It suffices to set out paragraphs 6 - 8:

"6. In practice when a request for intervention under section 496 or 497 relating to school complaints or procedures is received in the department, it is referred to my team. By way of context the team deals with approximately 150 such requests for intervention each year, although a large number do not in fact make complaints falling within section 496 or 497, do not provide any evidence of any unreasonableness or failure to discharge a duty or raise matters falling within the jurisdiction of a court or Tribunal, or which would appropriately be dealt with through a local complaints procedure. 7. If a complaint does not fall into one of the above categories my team will determine whether further information is needed from the complainant and will write to the school informing them that the complaint has been made and asking for comments. Based on the information received they will then establish whether the procedures have been followed correctly, whether the school has acted reasonably and whether any education law duties have been breached. In most cases they are then able to make a recommendation to the Secretary of State as to how to respond to the complaint, although in other cases such as the presence further investigation will be required before a final view can be reached. 8.If the conclusion is there has been a failure to follow procedure, in breach of duty or other unreasonable behaviour the Secretary of State will be informed of this and of whether in the view of those who have considered the case it would be expedient to intervene. The Secretary of State is not required to intervene in every case and can only do so if he considers it to be expedient. If the recommendation is to issue a direction, and that recommendation is accepted a 'minded to direct' letter will be sent to the complainant and the school inviting comments within 7 days. A direction will only be issued after any comments have been considered."

[42]The e-mail dated 6 October did not refer to a breach of procedure under Regulation 14 of the 2003 Procedure Regulations although the documents attached to that e-mail did. There is a document headed "Public Disclosure Interest Act 1988 Disclosure No 64", containing 102 paragraphs. The copy in the bundle is undated and unsigned but paragraph 7C states that the Chairman of the governors was aware of:

"...my suspension from meetings of the governing body until 21 July 2010 on what materialised to be a pretence and without providing any specific reason."

[43]After consulting the first defendant, the second defendant considered that many of the claimant's complaints could be addressed and resolved locally - Ms Hutchinson informed the claimant of this in a letter dated 22 March 2011. She apologised for the delay in replying to the communications which started in October 2010 but stated that the claimant would appreciate that they had to contact the local authority and that he had sent them a considerable amount of information to work through.

[44]After referring to the matters which could be resolved locally or are part of the Employment Tribunal proceedings, Miss Hutchinson stated that she had written to Birmingham local authority for further information about the claimant's suspension from the governing body and the position of the Chair of governors and that she would write again once her investigation were complete. She e-mailed Birmingham on the same day, stating that the claimant had alleged that his four suspensions as a governor did not follow due process and referring to the procedure under Regulation 15.

[45]The Council's reply is contained in a letter from Mr Lang dated 9 May. The introduction to that states that:

"The unusual nature of this case is such that it has at times been extremely difficult to reconcile the generality of the Procedures Regulations with the particular facts of the case."

[46]It is common ground that it was this letter which accepted that there were failures to comply with the requirements of the regulation in respect of the first and third suspensions. As far as the second and fourth suspensions are concerned, Mr Lang stated that, with regard to the second, in the absence of a clearly defined procedure for circumstances where there were multiple resolutions for suspension, it was reasonable for the first defendant to give the advice that was given. He also referred to the fact that, had it been accepted that there was a conflict of interest in respect of the members of the governing body who the claimant alleged were so affected, the meeting would have been rendered in quorate. As far as the fourth suspension was concerned, it was accepted that documents had been withheld from the claimant in the past. The letter concluded that any failures to comply with the regulation were not intentional and represent evidence of the extreme demands which the claimant's conduct during the currency of his suspension from employment on disciplinary grounds had placed on the governing body.

[47]There was then further correspondence between the claimant and the second defendant. There are communications on 19 July, 25 August and 16 September. In a letter dated 27 October 2011, Ms Hutchinson wrote to the claimant, referring to the letter of 19th July, which had set out the findings of the department's investigation at that time and had invited the claimant to make brief comments on the conflict of interest point.

[48]The letter referred to the acceptance by the first defendant, that the first and third suspensions were unlawful. It then stated:

"The Department has concluded on the information held that on both occasions due process was not followed in accordance with Regulation 15 of the 2003 Procedures Regulations. However, in the circumstances, it does not appear to the Secretary of State that in relation to these suspensions there is any direction that it would be expedient for him to give."

The letter also stated that it is not clear from the information that the claimant provided what the basis for his complaint about the second and fourth suspensions was. The letter stated:

"On the available information the department is not satisfied that in respect of those two suspensions the governing body have acted unreasonably or have failed to discharge a duty imposed on them."

The letter then turned to the concerns raised by the claimant in respect of the suspension on 5th October. It stated that the Council did not accept the claimant's allegation that the suspension was unlawful, but stated that:

"However, it appears from the minutes of the meeting ... that you raised concerns that some governors present at that meeting had a conflict of interest"

You do not say what the conflict of interest is, nor do you provide any information in support of your allegations." Ms Hutchinson then asked for the claimant's brief comments on the alleged conflict of interest issue and any firm evidence that would support the allegation. It is this one that I referred to. At this stage Ms Hutchinson stated:

"I must ask you to restrict your comments to the matters surrounding your suspension as a staff governor on 5 October 2011 and not include information on other issues."

She did so because she stated that would assist the Department to make a determination quickly. In summary, the letter dated 27th October informed the claimant that no failure on the part of the first defendant had been found in relation to two of the occasions on which the claimant had been suspended, that the first defendant's initial failure to provide him with documents during the period of his suspensions had been rectified, and there was no expedient direction that the second defendant could give in relation to the proposal to suspend which had been withdrawn.

[49]In her statement Miss Jones stated that the numerous letters, emails and documents which the claimant sent to the department as a result of the request in the letter dated 27 October made it difficult to extract the information that the department needed and the department had to seek further information from the Council.

[50]Miss Jones' statement contained the following paragraph:

"24. Having considered all of the correspondence Ms Hutchinson formed the view that the only live issue is whether the most recent suspension of Mr McCormack from the governing body on 5 October 2011 was lawful and if not, what if any direction should be made by the Secretary of State. On completion of her investigations Ms Hutchinson prepared a submission for the Parliamentary under the Secretary of State for schools, Lord Hill, who is responsible for school governance and therefore for the exercise of the power of the the Secretary of State under section 497 of the 1996 Act in this case."

That submission is dated 24th January 2012. But before that there are two further communications from the claimant. The first, dated 4th November 2011, was to the Secretary of State, Mr Gove, sent to the e-mail address Ministers@education.gov.uk and attaching PDF correspondence starting with a letter and then tabulated information. It is not necessary to set out the details of this letter. It essentially complains about victimization against the claimant. The summary at the end of the letter refers to the Tribunal case, the conduct of the school, the headteacher and the governors, and to a concerted campaign to "front out and press counterclaims despite fundamental omissions and unfairness by the school." That letter does not concern the points that are raised in these proceedings. They were, however, raised in a letter dated 11 November 2011 from the claimant to Ms Hutchinson. The headings at the top of this letter are "Disclosure of information, complaint, suspension from meetings of governing body and disciplinary procedure". I only have to set out two extracts. The first, on the first page, is:

"The information disclosed tends to show that explicit procedural rules set out in the relevant statutory framework had been intentionally disregarded in order to interfere with the rights."

There is a section headed:

"Information - illegal governor suspension" which seeks to address Ms Hutchinson's point that she was not able to easily obtain the information she required from the previous communications sent by the claimant. This stated that the documents attached summarised the grounds for the illegality of all the procedures in question and that there was an overriding and common thread of illegality running through all procedures affecting the claimant and 70 or so staff departing from the school in the previous 3 years. That thread was the conflict of interest common to a considerable number of "its officers"

. It is not clear whether "it" is a reference to the Council or to the governors. The second extract is in the last paragraph. It states:

"I have no doubt that the most recent suspension was illegal for predominantly the same reason as before, conflicts of interest."

[51]I am referred to Ms Hutchinson's submission to the Minister, dated 24 January. The material parts of that are that paragraph 12 set out the Department's previous conclusions about the unlawfulness of suspensions 1 and 3 and its agreement that suspensions 2 and 4 were not unlawful. Paragraph 18 summarised the events leading up to the meeting of 5 October and what transpired during the meeting. The following paragraph set out the positions taken by the claimant and the Council and governors about that. Paragraph 27 referred to the previous conclusion that, what are now called "anomalies" in the process, in respect of suspensions 1, 3 and 5 did not lead to a conclusion that the Secretary of State should make a direction that the matters be rectified because they were in the past. It is important, in view of the reliance by the claimant on the term "anomalies" as somewhat downgrading what the department was finding, is to go back and to note that what paragraph 12 referred to is "lawful" and "unlawful". It is perhaps not helpful to describe a procedural defect that leads to what the Department has itself described as an unlawfulness as an "anomaly", but it shows that the Department was not making a sharp distinction between the two.

[52]Ms Hutchinson's submission stated that suspension 6 was current, "and although we are satisfied that due process has been followed in arranging the meeting, the conflict of interest issue has not been resolved."

[53]Paragraph 30 of the submission stated that despite the fact that the meeting became difficult to handle it was the writer's view:

"That the governing body should have considered the position of each person named by Mr McCormack individually and voted on each separately to determine whether they should withdraw from the meeting."

[54]Paragraph 32 stated that:

"It is not likely that matters surrounding the claimant's suspension as a member of staff and other matters that he has raised will be resolved in the near future and it is likely that it will be proposed he be suspended as a staff governor for a seventh time."

Paragraph 32 stated:

"By sending a 'minded to' letter we're providing a further opportunity for the school to object to our analysis. However, we are hoping that it will encourage the governing body to resolve the issue of the conflict of interest and bring the matter to a close."

In short, what was being recommended was that a "minded to direct" letter be issued. The draft letter to Mr Lang made it clear that the Minister was minded to direct that the governing body set aside the determination of 5 October 2011 that the claimant be suspended and that a further meeting should be held to reconsider the suspension.

[55]The Minister did not accept the submission. It is sometimes the case in these courts that it is said that Minister has rubber stamped a submission. The complaint then may be made that there has been an improper delegation or a non exercise of discretion. In this case Mr Jones' statement records in paragraph 26:

"That Lord Hill did not agree with the recommendation that a direction be made, a 'minded to direct' letter to be sent, although he accepted that Regulation 14(5) had not been complied with."

Mr Jones recorded that the Minister was particularly influenced by the following: (i) the fact that the claimant's suspension as a staff governor was that he was a person paid to work at the school and was subject to disciplinary proceedings in relation to his employment; (ii) at the point of the decision (8 February 2012) information was held that indicated that the staff disciplinary hearing had been part heard and was due to resume within 3 weeks; (iii) it was known that the outcome of the disciplinary hearing would resolve the matter regarding the claimant's suspension as a staff governor. This was because he would either be reinstated as a member of staff and the reason for his suspension would not be valid, or his employment would be terminated and he would no longer be eligible to be a staff governor. In those circumstances the Minister was not satisfied that it was expedient to issue a direction at that time.

[56]Miss Jones set out six reasons for the Minister's conclusion on expediency:(i) the procedural defect about conflict of interest did not mean that the decision to suspend the claimant was necessarily wrong in substance and the governing body would have to retake their decision;

(ii) the proximity of the disciplinary hearing which at the stage of the decision was thought to be 3 weeks away;

(iii) since a proposal to direct involved sending a 'minded to direct' letter, some of the time would have passed before any direction was made;

(iv) it would take at least a week to rearrange the meeting to reconsider the question of suspension. Therefore, at best, the claimant would be reinstated as a governor for around 2 weeks before the matter would otherwise be resolved and he might be re-suspended within that period. The witness statement states: "The benefit to him of issuing a direction would therefore be marginal and disproportionate to the burden imposed on the governing body. (vi) The School Governors Unit had drawn the correct procedures to the attention of the Council's legal service, who were advising the governing body so that it would be aware of the correct procedure to follow in considering any future suspension.

[57]There then followed the determination or decision in the letter dated 8 February 2012. The letter rehearsed the conclusions of the Department in relation to suspensions 1 and 3, ie that they were invalid. It stated that the Department had not considered further the validity of suspensions 2 and 4 as the period of the suspensions had expired and there was no "expedient direction that the Secretary of State could give as the matter is now passed". The same was true of suspensions 1 and 3. Suspension 5 did not proceed because the notification letter was withdrawn before any hearing. As for suspension 6, it was stated on page 4 of the letter that it was accepted that the claimant, having raised objections about certain individuals before Regulation 14(5) came into play and:

"The governing body should have considered the position of each person named by [the claimant] individually and voted on each separately to determine whether they should withdraw from the meeting."

[58]The Department did not make any finding on the alleged conflicts of interest because it considered that was a matter for the governing body to determine. The letter than stated:

"Although we have concluded that there was a procedural anomaly regarding the conflict of interest issue at the meeting of 5 October 2011, we do not consider that there is an expedient direction that the Secretary of State could make. We understand that your disciplinary hearing regarding your suspension as a teacher at the school is due to conclude at the end of this month, the outcome of which could be that you are reinstated to your post or otherwise. Your current 6 month suspension of the governor will end on 4 March 2012, shortly after the disciplinary hearing has concluded. Whatever the outcome of the disciplinary hearing it will determine your eligibility to continue as a staff governor and in these circumstances it would not be expedient for the department to make a direction at this point."

[59]Before turning to the grounds, submissions and my conclusions I should add one matter. During the course of the hearing I asked Mr Tindall what the first defendant had done as a result of the indications of the statements by the Department that procedures had not been followed, that some of the suspensions were invalid and that there were what the documentation from department referred to as "anomalies" in relation to others of them. Mr Tindall took instructions and he fairly pointed out that by the time the Department was making its decision, these proceedings were on foot and so a number of the communications were subject to legal professional privilege. He said that the decisions of the Secretary of State were passed on to the Chairman of the governors of the school and the Chairman said that he may have to consult the Council's legal department if the matters arose again. Mr Tindall then observed that the matter would not arise again because the claimant has now been dismissed.

[60]The claimant in his reply this morning stated that the Council had not made any general communications to governors about this sort of matter in general and the operation of Regulation 14.

[61]Before turning to the grounds and my decisions in this case, I make one observation. The saga that I have set out suggests that to some extent the position taken by the Council has been a reactive one rather than a proactive one. It may be, and it probably is, given the breakdown in relationships between the claimant and the various chairs of the governors, that the claimant was, to put it mildly, a thorn in their flesh. But the history does suggest a non- holistic view of how the regulations work. It is of course not for this court to micromanage a public authority in the performance of its duties. It may be that this problem is a problem that is confined to this school. But in view of the history there may be advantage in the first defendant learning from it and producing clear and simple guidance, tying that guidance to the regulations while recognising, as various communications do, that not everything can be slotted into the regulations in a sort of tick box way. One example of the last point is a situation where there are applications to suspend several governors.

[62]I set out the grounds which are now advanced on the claimant at the beginning of this judgment. The claimant set them out clearly in paragraph 1.2 of his skeleton argument. There are two grounds against the first defendant: the first is that the decision of 5 October 2011 is of no effect because of non-compliance with the 2003 Procedure Regulations. The second is that there was no power to suspend the claimant because the governing body purported to suspend him on the ground that he was subject to disciplinary proceedings, but he was not subject to such proceedings.

[63]As far as the second defendant is concerned, the first ground is that it was unreasonable in the public law sense, ie Wednesbury unreasonable, of the second defendant not to make a direction to the governors under section 497 in the circumstances of the case, as revealed in the facts that I have summarised, and in particular in view of the advice from his officials. The second strand is that there was an unreasonable delay in determining the claimant's complaint . The claimant submitted that, had that unreasonable delay not occurred, the supposed proximity of the disciplinary hearing would not have been a factor. Since that proximity was very largely the reason for not making a direction, the delay has seriously prejudiced him.

[64]As far as the case against the first defendant is concerned, it is common ground and it is not in issue, that there was no compliance with Regulations 14(2) and 14(5)A. Regulation 14(2) provides that:

"(b) a fair hearing is required and there is any reasonable doubt about a relevant person’s ability to act impartially in relation to any matter, that person, if present at a meeting of the school at which the matter is the subject of consideration, shall withdraw from the meeting and not vote on the matter in question."

Regulation 14(5) provided:

"Where there is any dispute as to whether a relevant person is required by this regulation, or by the Schedule to withdraw from a meeting of the school and not vote, that question shall be determined by the other governors present at the meeting."

[65]The claimant contended that the requirements of Regulation 14 were overarching and applied to all meetings. He maintained that they apply to all matters and not just the suspension of governors, which is the subject of Regulation 15. There are three strands in the Regulations. The first is a reasonable doubt raised on a conflict of interest point. The second is mandatory requirement, mandatory because it is provided that the person involved "shall withdraw" and shall not vote. The third is also mandatory: it is stated that the question is to be determined by "the other governors present".

[66]The claimant submitted that it cannot be the case the Charmain could choose whether to follow the Regulations. The history of non-compliance with the procedures laid down showed that it was important, even though things have moved on, for this court to grant him declaratory relief. He relied on the decision in Kilroy

[2011] EWHC 3489 (Admin)

. He also submitted, in the light for the reasons he had given for the importance of compliance, that substantial compliance with Regulation 14(2) and (5) was not enough. Although Kilroy was a case on Regulation 15(2), he also submitted that there had been no substantial compliance with the Regulations. This was because there was(a) no separate vote,

(b) no consideration of each person,

(d) the claimant was not able to make his statement.

[67]As far as the second ground for which permission has not been given, "the disciplinary proceedings" ground, the claimant relied on the terms of the letters suspending him and the neutrality of the statement that suspension was a neutral act. He submitted that decision in Mezey v Southwest London and St George's Mental NHS Trust

[2007] EWCA Civ 106

, upon which Mr Tindall relied, was distinguishable and irrelevant to the question here, which was whether the claimant was in fact subject to a disciplinary procedure. The letter had made it clear that he was not.

[68]I turn to the first defendant's submissions on this point. The first was that the questions are "academic" because the claimant's tenure as a governor had been automatically terminated by his dismissal. Even if the suspension was quashed, there would be no basis to remit the matter back to the defendant because the claimant was no longer entitled to the status from which he had been suspended. Mr Tindall submitted that the possibility that the claimant will be reinstated is such a theoretical possibility, that it does not make an otherwise academic claim un-academic, as things stand. Mr Tindall also relied on the fact that the second defendant had concluded that it was not expedient to make any direction. It would be entirely "academic" to make a mere declaration of unlawfulness that would have no impact whatever. Indeed, he maintained that even if, which was not accepted, there is a procedural defect, that did not mean that the decision was wrong in substance.

[69]The second point was that, on the basis of the well-known authorities, in particular, London and Clydeside v Aberdeen DC

[1981] WLR 182

and ex parte Jeyantham

[2000] 1 WLR 354

, substantial compliance was enough in this case and there had been such compliance. Those cases were referred to by His Honour Judge Pelling QC in the Kilroy case. Mr Tindall submitted that because the Kilroy case concerned Regulation 15(2), which expressly stated that a resolution to suspend a governor from office "shall not have effect" if insufficient notice was given, as required by Regulation 11(4), that was different. In this case there is no provision in Regulation 14 specifying such a consequence.

[70]As to the second defendant's finding that there was a procedural anomaly because they had not voted sequentially and considered each individual's position on its own, Mr Tindall accepted that would "clearly be best practice". However, he submitted this did not mean the absence of sequential voting in itself breached the Regulation. He in part elaborated on this by saying that sequential voting could not work when there was in effect a challenge to the quorum. He finally submitted that there was substantial compliance, because the Chair reminded governors of Regulation 14(2), asked each governor to consider his or her own position, and in the event of a dispute over a governor, it is the others governor's decision. He stated that this was done. However, it is difficult to see how the sort of factory door union meeting aspect of this counted. The whole reason for individual consideration to avoid a herd and group mentality. He also suggested there was an overwhelming vote against the claimant and that the first defendant was entitled to conclude that the alleged conflicts of interest were spurious and that the claimant had no real answer to the suspension vote.

[71]Finally, he submitted that the question of whether an individual should withdraw was decided by all the governors although there was no formal vote. No governor at all saw anything in the claimant's allegations and they all made it quite clear in the meeting, as can be seen from the reference from the claimant's transcript, from which I have quoted.

[72]The third element of Mr Tindall's submissions was that even if there was no substantial compliance with a Regulation 14(5), the consequence of non-compliance was not to invalidate the suspension. He again sought to distinguish Kilroy, concerned as it was with Regulation 15(2). He submitted that Parliament could not have intended such a far-reaching consequence. If it had, it would have said so, as it had in Regulation 15(2). Moreover, if invalidity was the consequence, that could undermine, not only the validity of the suspension vote itself but the subsequent business of the governors. He also maintained that, because issues of partiality and conflict of interest are more subjective and ill defined than issues such as whether there has been notice, it is unlikely that Parliament intended that the failure to vote to resolve them would invalidate the subsequent vote.

[73]Mr Tindall's the fourth submission is really a repetition of the second: that the claimant's position must be that the breach would invalidate any vote on any matter at the meeting thereafter, which Parliament could not have intended.

[74]Finally, but here overlapping with the third requirement, he submitted a requirement to consider something as subjective as conflict of interest, which entails issues of evaluative judgment, militates against a finding of invalidity. He relied on the decision of the Court of Appeal in Rochdale Borough Council v Dixon

[2012] HLR 6

at paragraphs 56 to 58. He also submitted that there was an opportunity for the claimant to make representations in accordance with Regulation 15(3). He had been given what His Honour Judge Pelling described as "an effective opportunity". He had raised concerns about the conflict of interest, he alleged invalidity of the disciplinary process and he had an effective opportunity to speak. He also submitted there was no breach of natural justice in any event because, as the claimant had been given this effective opportunity, given the attitude of the governors as manifested in the meeting, it was obvious that the majority of them would still have suspended him, just as they had on occasions beforehand.

[75]I turn to my conclusions as far as the first defendant is concerned. I am going to deal with the questions of substance first. I will then deal with the point that the questions are no longer live and in Mr Tindall's words "academic" or "pointless"; in the words of others: "moot".

[76]I first deal with the question of whether the claimant was subject to disciplinary proceedings. The claimant's position relies on the words of the letters to him and makes a formal distinction between the suspension during an investigation and the formal institution of disciplinary proceedings. When refusing permission on the papers His Honour Judge Cooke stated that the claimant was "clearly subject to disciplinary proceedings". The phrase "neutral" is used in employment context to underline the point that being suspended pending an investigation means that there has been no predetermination. But it is clear, not least from the decision in Mezey v Southwest London and St George's Mental Health Trust, to which I referred, that suspension is not a neutral act. Sedley LJ, with whom Dyson LJ and Sir Peter Gibson agreed stated:

"Suspension changes the status quo from work to no work, and it inevitably casts a shadow over the employee's competence."

In that case it was a competence issue. In this case suspension would cast a shadow over the claimant's fitness to be a teacher at the school because of what he claimed were protected disclosures and in respect of what the claimant claimed had been the alteration of a template provided by him to another teacher which she is said to have altered to make it appear it was a reference from him. That issue will be the subject of the Employment Tribunal proceedings.

[77]I reject the submission that the reference in Regulation 15(1)(a) is too the post-investigation formal disciplinary process and does not include the investigation. The consequence of accepting the claimant's submissions on this would be that a staff governor could remain a full governor throughout a lengthy period of suspension from employment, although the governors might have to consider matters concerning him. More generally, their construction suggested involves accepting that it is perfectly lawful to be suspended from the staff but that the governors have no power whatsoever to suspend a person as a governor, even though that person is only a governor because he is a member of staff. The construction for which Mr Tindall contended sits more comfortably with the status of a staff governor as there because of his job. On this issue I agree with His Honour Judge Cooke and I therefore refuse permission.

[78]What of the other points made by Mr Tindall? I do not accept that there has been substantial compliance with the requirements of Regulations 14(2) and (5). Matters were complicated by the fact that the allegations of conflict of interest related to governors identified in earlier documents, and possibly that the challenge was in reality to the quorum. But, it is clear that individual governors themselves considered whether they had a conflict and they were present and voted on the question. Others did not vote on the question of whether the individuals had a conflict.

[79]It is difficult to see what could be a more fundamental disregard of the procedure in Regulation 14. Regulation 14 concerns restrictions on persons taking part in proceedings. There was no restriction on any person taking part in the proceedings other than asking the individual to consider whether he or she had a conflict of interest. In view of my conclusion on that issue it is not necessary for me to resolve the difficult question of whether substantial compliance would satisfy the Regulations. But I do have to consider what the consequences of a failure to comply, or substantially comply with Regulation 14 is. Mr Tindall's submission with regard to the subjectivity of the issues of partiality and conflict may in part be well founded. But the issues here have not been about whether there was in fact a reasonable doubt about the ability of a particular person to act impartially. That question might be subjective and nuanced and open to interpretation. If that was the question, the fact that a particular conclusion has been reached does not render the subsequent decision invalid. Here the issues were whether the failure to follow the procedure have that effect. That is not an ill-defined question. It is not substantive. The issue is: do you vote on whether you have a conflict of interest? So although the first defendant and the Council appear to treat a number of the questions as ill defined, this one, in my judgment, was not.

[80]As to whether the claimant was given an effective opportunity to make representations: according to him 15 minutes in the situation where he had the opportunity and did submit written representations was, in my judgment, an effective opportunity. The meeting had begun to get rowdy. I make no comment about whose fault that was, although it would appear that the fault was not all on one side. But it is clear from the claimant's own transcript, that he raised about conflict of interest, alleged invalidity of the disciplinary process. That was not just having an opportunity, but taking the opportunity. For the same reason, I do not consider there was a breach of natural justice.

[81]But what of the non-compliance? Given what I have said about the non-compliance with Regulation 14 and my conclusion on failure to comply with it, I must return to the submissions on whether there is any utility in this court giving relief. If the term "academic" is meant to signify a category of decision which is not worthy of consideration by the court, I deprecate that use. There are many situations which have no immediate practical effect, such as the discovery of penicillin, which nevertheless are very useful. If the term is meant to refer to a situation in which a relief will not assist the claimant, that does not take account of the fact that while his private interests are clearly involved in this massive dispute with the first defendant, he was bringing forward concerns about the adherence by a public authority to regulations made by Parliament.

[82]Given the history of accepted non-compliance with the Procedural Rules in the 2003 Procedure Regulations, I agree with the view of His Honour Judge Pelling in Kilroy's case at paragraph 19, that the submission that the claim is now academic, because the period of suspension has now passed must be approached with circumspection. In that case it is true the period of suspension had ended but not the employment, whereas in this case at present there is no employment and therefore no status as a governor. But as I have stated, what the claimant has raised is an issue of non-compliance with the Regulations by the governors of this school. On more than one occasion it has been accepted that they have not complied with these Regulations. It may be that the point will be academic vis-a-vis this claimant. However, subject to one point, there would be utility in this court providing guidance to the first defendant and to the relevant authorities in Birmingham City Council about what their obligations are under the regulations.

[83]My caveat arises because of the involvement of the Secretary of State in all of this. The Secretary of State has concluded that there were procedural defects in the past which rendered decisions to suspend invalid. One of those was described as "an anomaly". The Secretary of State, in his letter dated 8 February, has found that on that occasion there was non-compliance with Regulation 14(5), although, as I have stated, the reference to a procedural anomaly, for the reasons I have given, is not altogether helpful.

[84]The Secretary of State has not made a formal direction to set aside the suspension but the clear implication of what is contained in the letter, dated 8 February, is that despite what might be called the weasel phrase "procedural anomaly" there was not compliance with the Regulation. It is unfortunate that the Secretary of State's letter to the Council is not before the court. I am assuming that a letter was written to the Council, and I will assume, having regard to the terms of the two drafts in the submission, that the letter fairly tracks the contents of the letter to the claimant. If that is not so; if it is not clear from the letter that was written to the Council, it should certainly be clear to the Council, from the letter written to the claimant, that, although for the reasons of expediency which I shall come to, no direction was made, there was a failure to comply with the Regulations. Given the background, it is, as I have said, for the Council to consider whether the way they have handled the consequences of this, either vis-a-vis this school's Board of governors or that of any other school in its area, where similar issues have arisen, is adequate.

[85]I therefore have concluded that it is only because of the involvement of the Secretary of State that there is no point in the court adding to the Secretary of State's decision its own formal declaration. That is because I have interpreted what the Secretary of State has concluded in the way that I have stated.

[86]I therefore turn to the case against the second defendant. There is common ground between the claimant and Miss Ward about the requirements of section 497. There has to be a complaint. There has to be a subject matter that is appropriate for investigation. The Secretary of State has to investigate. The Secretary of State must then decide, under section 497, whether there was a failure to discharge a duty, or under section 496, whether there was an unreasonable exercise of powers. Those two questions are threshold questions. If the threshold has been passed, the Secretary of State has to decide whether it is expedient to give directions.

[87]The claimant's submission is that the Secretary of State's decision is irrational in Wednesbury terms for a number of reasons. First of all, he argued that the Secretary of State relied on the state of his Employment Tribunal proceedings and his disciplinary proceedings. He regarded those as irrelevant private law matters. Secondly, as I have stated, the claimant maintained that had the Secretary of State not delayed, he would not have been able to rely on the proximity of the other proceedings. He argued that it was irrational to rely on a factor arising after the application of the Secretary of State. The claimant also relied on what in effect was a form of procedural unfairness. This was that, although the Secretary of State communicated with the first defendant before making the decision, none of the Secretary of State's official’s briefing points had been put to the claimant and he was not given an opportunity to comment on them.

[88]I have concluded that this part of the claim is not made out. The Wednesbury standard of reasonableness has a high threshold. Fordham's Judicial Review Handbook (5th edition at page 521) states:

"Many colourful phrases have been used to explain that only in a strong case will courts intervene on grounds of unreasonableness."

He refers to "high threshold epithets". He does also refer to dangers in setting the bar too high but the phrases used in the cases set out in paragraph 57.2 of his book show how high the threshold is: "perverse" Reid v Secretary of State for Scotland (1999); "outrageous defiance of logical morality", in GCHQ 1985; "taking leave of its senses", in ex parte Northamptonshire County Council, and "something overwhelming" in Wednesbury itself.

[89]I accept Miss Ward's submission that the claimant has not shown anything like this. Indeed although it may be a forensic point which should not really be taken against a self-represented party, in substance the claimant in 5.6 of his skeleton states:

"Although counsel may be right in concluding that the Minister acted rationally, it cannot meaningfully be argued that he exercised the discretion within the public law and public law restraints that were applicable."

Miss Ward argues, as I say perhaps unnecessarily, that the claimant has conceded that the decision is not irrational, it is just that he does not agree with it.

[90]Encouraged by the sort of questions I put during the hearing, the claimant reformulated his submissions on this in terms of a failure to take account of relevant factors. In effect he submitted that given the advice from the Secretary of State's officials, any departure from that advice was Wednesbury unreasonable or irrational. The difficulty with this is that, once the threshold of acting unreasonably or failing to discharge a duty has been met, the Secretary of State is given discretion. The discretion is given to make such directions as appear to him to be expedient. "Expediency" is a term which fits Mr Tindall's characterisation of subjective and not hard edged. A quick examination of dictionary definitions gives the following meanings "convenient and practical", "suitable or appropriate". The Oxford English Dictionary states:

"conducive to advantage in general or to a general purpose, suitable to the circumstances of the case."

There is also a more deprecative sense of "useful or politic as opposed to just or right" and also "something that helps forward or that conduces to an object". I concluded that it cannot be irrational to conclude that the suspension was not going to have effect for much longer and that the claimant's status as a governor was linked to his employment dispute and the outcome of it. It may be that the claimant is right and that he will be vindicated in the appropriate employment context. However, on the facts, as they stood at the time the Secretary of State made his decision and the prognosis as to when the disciplinary proceedings would be heard, it is not possible to say that he was irrational.

[91]As to the argument that it was wrong for the Secretary of State to take account of matters that had only arisen because of his own delay, at the time of the decision the Secretary of State must take things as they then are. The argument put can in fact cut both ways. If the claimant was right and things changed, so that the changed situation had helped the claimant's case, I dare say that the objection would have been that the Secretary of State was not entitled to ignore the real world and make a decision on the historical position.

[92]What is left then is the amended version of the original grounds. That is the delay in making the decision. It was because of this ground that I set out what Ms Jones' view was of the documentation found and my own impression of it. I accept Miss Ward's submission that the volume of correspondence did cause difficulties for the Department. As His Honour Judge Cooke observed, the allegations that an unreasonable time was taken to determine the reference is untenable in the light of the voluminous nature of the material and the arguments presented by the claimant.

[93]For these reasons I dismiss the claim against the second defendant in its entirety. On the point on which permission was given in respect of the first defendant, I have found that the claimant's submissions on what happened and the consequences of the non-compliance prevail, but I decline to give a remedy for the reasons given. This may be disappointing to the claimant but he will have the terms of my judgment to rely on should he wish to do so.

[94]MR TINDALL: My Lord can I rise very, very briefly on that last point. One of the concerns that we had is that were the claimant right, that that would have unravelled the proceedings subsequently in some way. It does not seem to me at least from your Lordship's judgment that would be your --

[95]MR JUSTICE BEATSON: I thought that you were crying wolf Mr Tindall and one reason I rejected your argument was that I did not think there was a wolf there.

[96]MR TINDALL: I am grateful for that confirmation of the absence of the wolf. Two learning points my Lord: first, on behalf of the Council, Miss Langsley has heard what has been said and heard very useful guidance, and I am very grateful to your Lordship for that. The second is, a learning point for myself: I will not use the word "academic" again when making that submission.

MR JUSTICE BEATSON: Not to me any way.

[98]MR TINDALL: I certainly will not to you my Lord.

MR JUSTICE BEATSON: You can use it to Laws LJ; he likes it.

[100]MR TINDALL: We are not going to apply for costs in the circumstances.

[101]MISS WARD: The Secretary of State however does ask for his costs in defending the claim. I am not sure whether your Lordship, the matter of principle simply the claim has been successfully defended, but on the issue on which permission was given and the application that was renewed, the Secretary of State was not aware of any attempt to renew (inaudible) the bundles and skeleton argument and whether --

MR JUSTICE BEATSON: You were £16,000 and the Council was £5,000.

[103]MISS WARD: On the issue of quantum, I was going to say firstly I am not sure --

[104]MR JUSTICE BEATSON: I think they did a lot more of the heavy lifting in this case. I am happy to hear from Mr McCormack as to what we do about this but...

[105]MISS WARD: There are various matters I appreciate arising out of the quantum and at the end of a two-day case may not be the time to deal with them.

[106]MR JUSTICE BEATSON: Why do you not sit down. Mr McCormack, there is an application that you pay costs. The Council is not applying, so it is only the Secretary of State. I am conscious that you have had a tough two days representing yourself. I am also conscious that, while it is normal for a person who loses to bear the costs as summarily assessed or as assessed after an examination, which costs more money, you may want to just think about what you want to say rather than me asking you to make submissions now. You can look in the books. You will see that Miss Ward is right about the basic rule. They have won and they would normally get their costs. I am happy to give you sometime. The problem is that we are coming to the end of term and Christmas. I am willing to give you some time to make short written submissions about costs. I suggest if you put them in writing because this building is going to be closed at half past 6 and as much as we have all enjoyed each other's company we do not want to be locked in here for the night or return tomorrow. I would ask you to put it in writing, send a copy to Miss Ward's instructing solicitors. If you could let me have something in writing by Friday and let her solicitors have something by Friday, then Miss Ward could respond by close of play on Monday and I will then make a determination about the costs.

[107]You need to think about what it is that I have done. You have got, you know, you have some way against the first defendant but I have rejected your argument against the second defendant. As to costs, I am happy to park that issue and give you time to think about it if that will help you.

[108]THE CLAIMANT: It might be simpler for the court to do that.

[109]MR JUSTICE BEATSON: Is there anything else? You applied for permission to appeal against my decision on the protected costs order and I am quite happy to defer an application for permission to appeal against my decision for a little bit. You have not a transcript of my decision. You told me you were fee exempt but you will not be able to get a transcript without paying a fee which is the problem. (Pause) There will be a transcript. I do not know how long it will take. Can we expedite it? I will order that it be expedited and then I give you seven days of receiving the transcript to make any application for permission to appeal, if you want to, but would you please let the court know what you are going to do. I am not encouraging you but I am granting an application. I am just trying to give you a fair chance to look at the judgment and decide. What will happen is that the transcript will be produced and then they will send it to me to be corrected. As I have read all this out, there will be corrections and we are coming up to Christmas... I do not think you will get it before the new year. You are disappointed but I hope that is a --

[110]THE CLAIMANT: I am not disappointed. I wanted to say for the record, from my perspective it is the first time the matters have been given due consideration and I am very grateful of that. So I am not automatically considering appealing. I can understand, all I wanted to consider really is the fact that the discussion you have given in regard to the first defendant and, if you like, the separation from the formal declaration. That is all I want to go away and consider. I am not automatically....

[111]MR JUSTICE BEATSON: No, I was not... So we will leave it like this. Can I ask somebody on your side, one of you two to draw up an order, leaving aside the issue of permission to appeal and setting submissions on costs in the timetable that I have suggested. Is that...?

[112]MISS WARD: Absolutely. I am being reminded from behind me that Mr McCormack indicated yesterday that he wished to apply to the Court of Appeal to appeal against your ruling on the protected cost order issue. The time for doing that would normally start running yesterday.

MR JUSTICE BEATSON: I better extend that time too.

[114]MISS WARD: If the order that was drawn up was to include a provision that time for appealing either against your judgment or the costs --

[115]MR JUSTICE BEATSON: I think, if I may say so, I think that is extremely fair. You see what is being said: if we had not done anything about yesterday's decision, time would be running.

[116]MR TINDALL: Yes my Lord.

McCormack, R (on the application of) v St Edmund Campion Catholic School & Ors [2012] EWHC 3928 (Admin)

MR JUSTICE BEATSON: I am going to rise. (Short Adjournment)

MR JUSTICE BEATSON: Not to me any way.

MR JUSTICE BEATSON: You can use it to Laws LJ; he likes it.

MR JUSTICE BEATSON: You were £16,000 and the Council was £5,000.

MR JUSTICE BEATSON: I better extend that time too.

MR JUSTICE BEATSON: Thank you all for your help.

Cited in 2 later judgments