Education not recognised as a “civil right” under Convention due process rules

29 March 2010 by Rosalind English

R (on the application of LG) (Appellant) v Independent Appeal Panel for Tom Hood School (Respondent) & Secretary of State for the Department for Children, Schools and Families (Interested Party) [2010] EWCA Civ 142

(Read judgment here)

CA (Civ Div) (Rix LJ, Wilson LJ, Sir Scott Baker) February 26 2010

An exclusion hearing by a school does not engage the pupil’s Article 6 of the Convention since there is no “civil right” to education recognized as such either by the Convention or by domestic law.

Summary

The appellant pupil (VG) had been involved in a fight at the school. He was accused of having a knife, which he denied. The school permanently excluded VG and he appealed. The panel, in accordance with the Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002 reg.7A, found on the balance of probabilities that he had carried a knife, and upheld his exclusion. VG appealed against a decision ((2009) EWHC 369 (Admin), (2009) BLGR 691) to refuse his application for judicial review of the decision of the respondent panel to uphold a decision to permanently exclude him from a school. He argued that his right to a fair hearing under Article 6 was engaged, either on the basis that the panel had determined his civil right not to be excluded from the school without good reason, or on the basis that the panel had determined a criminal charge against him, and that right had been infringed by the decision to exclude him having been based on allegations established against him on the balance of probabilities rather than on the criminal standard of proof. He also contended that regulation 7A(c), although purportedly made pursuant to the Education Act 2002 s.52, was ultra vires in that a rule about standard of proof was one of evidence and not procedure as permitted by s.52(3)(d).

Held:

Appeal dismissed. VG lacked a civil right to be educated at the school, and so the panel had not determined such a right. Athough the Strasbourg Courg had established that the concept of civil rights was autonomous, and not solely defined by signatory countries (Konig v Germany (No1) (A/27) (1979-80) 2 EHRR 170 ECHR), nevertheless Article 6 could only apply to civil rights that were arguably recognised under domestic law ( as established by the House of Lords in Matthews v Ministry of Defence (2003) UKHL 4, (2003) 1 AC 1163 applied). Although other Convention rights, such as the right to education, could also qualify as recognised under domestic law by virtue of the Human Rights Act 1998 s.6, that could not be relied on because the right to education did not guarantee education at a particular institution: Ali v Lord Grey School Governors (2006) UKHL 14, (2006) 2 AC 363. The requirement in the Education (Pupil Registration) (England) Regulations 2006 reg.8 only to delete a pupil’s name from a register on specified grounds did not establish a right of a registered pupil to continue to be educated at that school. That would elevate the significance of a school’s requisite attention to its paperwork to “an astonishing level”: R (on the application of S (A Child)) v Brent LBC (2002) EWCA Civ 693, (2002) ELR 556). In deciding whether the panel had determined a criminal charge against VG, the focus had to be on the nature of the offence and the degree of severity of the penalty he risked, (Engel v Netherlands (A/22) (1979-80) 1 EHRR 647 ECHR). The case had been disciplinary and fell into the ordinary rule in such cases that they did not give rise to a criminal charge, and the sanction of VG’s permanent exclusion from the school was insufficiently severe to render the charge against him criminal. As far as the argument concerning Regulation 7A(c) was concerned, the Court considered it to be intra vires s.52(3)(d). The procedure on appeals was synonymous with the processing of appeals, and when a panel took the step at which it determined a question of whether a fact was established, a necessary part of its processing of that part of the appeal was to apply a particular standard of proof in reaching an answer.

COMMENT (March 2010)

The appellant’s argument on the civil rights point was constructed as follows: no Convention state can withdraw from the purview of the Convention a range of interests by referring to the absence of recognition in domestic law. The concept of “Civil rights” for the purposes of Article 6 is autonomous. However, it is established that article 6(1) of the Convention applies only to civil rights which can be said on arguable grounds to be recognised under domestic law” (Matthews, per Lord Bingham, at [3]). Rights under the Convention are recognised even though they are not to be found in pre-Human Rights Act common or statute law; so for example private and family life is recognised as a right even though it was not in itself a civil right before the HRA transformed its position (In re S (Minors) (Care Order: Implementation of Care Plan) [2002] UKHL 10). Although concept of a “civil right” in article 6 was originally intended to apply only to private rights, not rights arising in public law, that distinction has long been abandoned and the concept of the determination of a civil right extended to many questions arising in public law. Though there is no right to education recognised as such, it is at least arguable that the right not to be permanently excluded from school without good reason as a civil right for article 6 purposes.

In order to buttress this “arguability” feature into a full blown civil right, the appellant relied on a decision by the Strasbourg Court (Araç v. Turkey, application No 9907/02, 23.9.08.) where it upheld a student’s challenge to the admissions panel of the Universtiy of Ankara to turn down her application on the grounds that she was wearing a headscarf in her ID photograph in contravention of the state’s secular regulations. In that case it was held that the public law aspect of her rights did not preclude their being civil, in particular because the university had not been acting in the exercise of a discretion. There was once a time in Strasbourg jurisprudence that if a right was found to be “squarely within the domain of public law, having no private law analogy and no repercussions on private rights or obligations”, that would be fatal to the claim to a civil right under Article 6 (Simpson v. UK (1989) 64 DR 188). Now the public/private distinction had fallen away, it was contended, a civil right must be recognized.

In the end however the Court of Appeal did not find this line of argument persuasive, particularly Araç case; Wilson LJ observed that they were “not concerned with the correctness of the ECtHR’s appraisal of Turkish law.” UK law is clear that the general right to education does not extend to education in any particular institution.

In the light of Wilson LJ’s conclusion that article 6 did not apply to the hearing before the panel, the consideration over whether the panel would have been required to apply the criminal standard of proof is strictly obiter and it is somewhat surprising that some twenty lengthy paragraphs of the judgment are given over to this  issue, particularly when it was acknowledged that VG’s case on that point would not have succeeded in any event. Article 6 said nothing about the required standard of proof. Further, the decision in R (on the application of S) v YP School (2003) EWCA Civ 1306, (2004) ELR 37 that the appropriate standard in deciding to uphold an exclusion was the criminal one was not robust authority in relation to the requirements of Article 6, and was also inconsistent with House of Lords authority, R(S), B (Children) (Sexual Abuse: Standard of Proof), Re (2008) UKHL 35, (2009) 1 AC 11, and D, Re (2008) UKHL 33, (2008) 1 WLR 1499.