The European Court of Human Rights has handed down judgment in Ali v United Kingdom (Application no. 40385/06, 11 January 2011). The decision is the final instalment of the litigation which culminated at the domestic level in the judgment of the House of Lords in Ali v Lord Grey School  UKHL 14.
Perhaps unsurprisingly, the ECtHR has upheld the conclusion of the HoL (Baroness Hale dissenting in part) that no violation of the A2P1 right to education occurred. However, in certain significant respects the reasoning of the ECtHR diverges from that of the HoL. In particular, it provides important guidance on: (i) the circumstances in which school exclusions are compatible with A2P1 rights; and (ii) the content of the right to education.
The applicant was suspected, having been spotted in the vicinity, of setting fire to a bin on school premises and became the subject of a police investigation. The school determined that he must be excluded until the investigation was complete.
There were various procedural defects in the exclusion process. Amongst other things, in breach of statutory requirements, the applicant was not initially informed of the term of his exclusion. This is perhaps unsurprising, as the school could not predict when the police investigation would be complete. The exclusion resulted in the applicant being absent from school in the run up to important exams, albeit that he was allowed to return to school to take the tests.
The school made efforts to provide alternative educational support during the exclusion, but this was not taken up. The school also tried to bring the applicant back to school at the earliest possible opportunity (as soon as the police investigation was complete). However, the applicant and his parents did not cooperate, failing to attend a scheduled meeting. Ultimately, the applicant was removed from the roll at Lord Grey and later transferred to another school.
The HRA 1998 and the right to education: money, money, money…
The applicant initiated a damages claim under the Human Rights Act 1998 relying on the A2P1 right to education. The school had breached his A2P1 rights during the course of his exclusion, so it was said. Monetary compensation was asserted to be the appropriate remedy. The claim enjoyed some success before the Court of Appeal, but was unanimously rejected by the HoL.
Off to Strasbourg
As is now the norm for unsuccessful HRA claimants, the claimant promptly sought a more advantageous, and lucrative, outcome from the European Court of Human Rights in Strasbourg.
The ECtHR accepted that disciplinary measures such as suspension or expulsion are inherent in any system of organised schooling and that such arrangements allow schools to achieve the very object for which they exist: educating their students. However, the rules concerning exclusions, and the manner in which they are imposed, must be foreseeable (reasonably clear and certain) and proportionate to the aim pursued.
The exclusion in this case pursued a valid legitimate aim – facilitating the criminal investigation. Moreover, the term of the exclusion was foreseeable. The applicant was told at the outset that he could not return until the investigation was complete and, objectively, it was reasonably apparent that the process was unlikely to be concluded before the end of the school term.
In assessing the proportionality of an exclusion the ECtHR will consider a number of factors: (i) extent of applicable procedural safeguards; (ii) duration of the exclusion; (iii) extent of applicants co-operation with any re-integration efforts; (iv) steps taken to minimise the effect of the exclusion; (v) adequacy of any alternative education provided; and (vi) extent to which the rights of third parties are engaged. The last two factors will be given particular weight.
In a nutshell, as is so often the case with the Strasbourg Court, judicial scrutiny will be highly fact sensitive. Maximum flexibility is reserved to the reviewing court, albeit at a regrettable cost to legal certainty. To a very considerable extent, each case will turn on its own facts.
Applying its analysis to the facts, the ECtHR had no difficulty in dismissing the claim. The head teacher had attempted to bring the applicant back at the earliest possible opportunity, but the applicant and his parents did not cooperate. The school offered alternate educational arrangements but these were ignored. It was true that there had been procedural shortcomings but these must be viewed in light of the exceptionally difficult circumstances which the police investigation created. For these reasons, the exclusion was proportionate.
The multi-factorial approach adopted by the ECtHR may provide some encouragement to HRA damages claimants, as it signals that a sufficiently ‘strong’ set of facts may found a successful claim. However, this is offset by the Court’s treatment of the application. The ECtHR’s approach is commendably pragmatic, and not insensitive to the invidious position in which the school was placed by the police investigation. Notably, the Court rejected an overly fastidious approach in its review of the various procedural defects during the course of the exclusion process.
Provided schools reserve exclusion for serious cases in which less intrusive measures are inadequate, restrict the removal to as short a period as possible and make sensible efforts to provide alternative educational support, they should find themselves on sound legal footing.
It should also be noted that the Court accepted that A2P1 does not require that students have access to the entirety of the national curriculum during temporary exclusions (this is most immediately relevant to the pupil referral unit, where the full national curriculum is not available). However, the ECtHR gave a strong indication that the position would differ in respect of permanent expulsions.
The judgment is also of wider interest as regards the content of the A2P1 right to education. It has long been debated (see the previous blog posts by Peter Oldham QC and Ed Capewell covering the 2010 decisions of the Supreme Court in A v Essex CC and JR 17) whether the content of the right which A2P1 protects is fixed by reference to the standard of education guaranteed by law in the domestic legal system or, rather, is restricted to some (lower) objective minimum standard. The ECtHR, without detailed reasoning or reference to authority, now appears to have departed from its previous case-law and to have accepted the former formulation. Consequently, in principle, it would seem that a student might be able to pursue an HRA damages claim if educational provision to which he is legally entitled under domestic law is not forthcoming e.g. consider certain legal rights to SEN provision. It can be expected that this argument will be further explored in the domestic courts in the near future.