PLC Public Sector reports:
The decision of the High Court in R (Kilroy) v Governing Body, Parrs Wood High School is a useful reminder of the statutory framework governing the suspension of a school governor and the importance of complying with the procedure.
In this post, PLC Public Sector outlines the law that applies to any motion to suspend a school governor and highlights the key point arising from this case, that the technical requirements of the law must be fully observed.
Background
The claimant, who was elected a parent governor of the school with effect from March 2011, was a member of the appointments committee set up to appoint a permanent head for the school. One of the shortlisted applicants for the headship was an individual who, having received an anonymous letter containing details of the selection process that could only have been known by the members of the appointments committee, subsequently withdrew his application. Following his withdrawal from the selection process, the vice chair of governors, who suspected the claimant of writing the letter, convened a meeting of the appointments committee on 4 April 2011 to identify who had sent the letter and what steps should be taken. At the meeting, each member of the committee was interviewed and six committee members indicated that they considered the claimant had sent the letter. Contemporaneous minutes of that meeting indicate that the vice chair purported to suspend the claimant with immediate effect. However, as became apparent to the school the following day, he did not have power to immediately suspend and therefore an e-mail was sent two days later to the claimant and to every other member of the governing body convening a meeting of the governing body on 13 April. The e-mail attached an agenda, which contained details of the vice-chair’s motion to suspend a governor for:
- Breach of confidentiality to the school and staff.
- Acting in a way that brought or was likely to bring the school, the governing body and their office into disrepute.
On the same day, the claimant received an e-mail notification that, at the meeting on 13 April, he would be named as the governor in question but that he would be given the opportunity to make a statement in response to the reasons that would be given to the governing body for the proposal to suspend. The claimant maintained that he was asked to leave halfway through his representations, following which the governing body voted 11 to 1 in favour of suspending the claimant.
The claimant therefore issued judicial review proceedings for an order quashing the governing body’s decision.
The statutory framework
The relevant regulations of the School Governance Procedures (England) Regulations 2003 (the 2003 regulations) are regulations 11 and 15.
Regulation 11(4) provides that, when convening meetings of the governing body, written notice of the meeting, a copy of the agenda for the meeting and any reports and other papers have to be provided at least seven clear days in advance to each governor. Although the chair may prescribe a shorter notice period on the basis that there are matters that demand urgent consideration, regulation 11(5)(b) specifically prohibits him from doing so in relation to any meeting where a governor’s suspension is to be considered.
Under regulation 15 (1), a governing body may suspend a governor by resolution for all or any meetings of the governing body or a committee for a fixed period of up to six months on specified grounds, including the two grounds that were relied on by the school in this case. However, such a resolution does not have effect unless it is specified as an item of business on the agenda for the meeting of which notice has been given (see regulation 15(2)). Before the governing body vote on the resolution, the governor proposing the resolution has to state his reasons for the resolution and the governor who is the subject of the resolution has to be given the opportunity to make a statement in response (regulation 15(3)).
Decision of the High Court
What was apparent from the facts of this case, was that the claimant only received six clear days’ notice of the resolution. Although this was the key procedural point in the case, interestingly the claimant only raised it for the first time at the outset of the court hearing but he was given permission by the court to amend his claim form. In finding for the claimant on this issue, the High Court was satisfied that regulation 11(4), which requires a minimum period of seven clear days’ notice, when read in conjunction with regulation 15 as a whole emphasises in the clearest terms that strict compliance with regulation 11(4) is required if a resolution to suspend a governor is to have effect. As the claimant had been given insufficient notice of the meeting, the High Court declared that the decision on 13 April 2011 to suspend him from office was of no effect.
Given its finding, the High Court dealt very briefly in rejecting the claimant’s other submissions. In particular, the claimant had contended that:
- The meeting on 13 April 2011 was a violation of his rights under Article 6 of the European Convention on Human Rights. Although there is no decision that is squarely on point, the High Court considered that the reasoning behind the position consistently adopted by the European Court of Human Rights and the Courts of England and Wales that Article 6 has no application in school exclusions and does not apply to disciplinary hearings, since these do not determine private law civil rights and obligations, provided support for its view that the outcome of the decision did not impact on any private right between the claimant and another person. For more information on the determination of a party’s civil rights and obligations under Article 6, see Practice note, Article 6 of the ECHR: right to a fair hearing.
- Those governors who had attended the meeting on 4 April ought to have been disqualified from voting at the meeting on 13 April. The High Court however found that this contention could not be sustained. The claimant accepted that the other governors at the 4 April meeting had participated in an investigation process and it was the vice chair alone who had purported to suspend him.
- He was prevented from completing his representations at the meeting on 13 April before being asked to leave. The requirement in regulation 15(3) is that the governor whose suspension is sought is given the opportunity to “make a statement in response”. The High Court was satisfied, from the minutes of the meeting, that the claimant had been given the opportunity to address the meeting and that he had taken full opportunity to do so. In accordance with the common law rules of fairness, the claimant had been given the opportunity to make effective representations.
What the decision demonstrates is the importance of correctly following any statutory procedure, particularly in relation to the giving of the appropriate period of notice. For more information on how to avoid a substantive challenge through defective decision-making, see Practice note, Decision-making by public bodies: avoiding legal challenge.