Thomas Ogg looks at the lessons to be learned from the first judicial review under the new regime for school exclusions.
The case of R(CR) v Independent Review Panel of the London Borough of Lambeth  EWHC 2461 (Admin) (available only on Lexis Nexis currently) is the first judicial review of a case arising from the new school exclusions regime introduced by the Education Act 2011. The facts of the case are not of particular note in themselves – as Collins J noted, it was “in many ways a most unfortunate case (indeed all exclusion cases are)” (para 2). However, the judge makes a number of useful observations on the practice and procedure relating to the new exclusions regime.
Grounds of judicial review that may be considered by an IRP
An Independent Review Panel (“IRP”) has the power to review the decision of a ‘responsible body’ to uphold a head teacher’s decision to permanently exclude a pupil (‘responsible body’ usually means a school’s governing body). The IRP’s powers of review are set out by section 51A(4) of the Education Act 2002:
(4) On an application by virtue of subsection (3)(c), the review panel may—
(a) uphold the decision of the responsible body,
(b) recommend that the responsible body reconsiders the matter, or
(c) if it considers that the decision of the responsible body was flawed when considered in the light of the principles applicable on an application for judicial review, quash the decision of the responsible body and direct the responsible body to reconsider the matter.
The requirement that the IRP apply “the principles applicable on an application for judicial review” has caused headaches for schools, local authorities and excluded pupils up and down the country. What does it really mean in practice? Does an IRP seriously have to consider all possible grounds of judicial review, as the High Court does? In CR, Collins J provides some guidance.
The Judge began his consideration of the new exclusions regime by reference to the guidance issued by the Secretary of State pursuant to section 51A(8)(b) of the Education Act 2002 (the “Exclusions Guidance”). Paragraphs 28 and 29 of CR concern the way in which an IRP may consider evidence that was not before the responsible body (i.e. new evidence). The Judge explained that the Exclusions Guidance states that an IRP can only consider whether a school’s decision was flawed (and so should be quashed by means of a direction) by reference to the evidence that was or ought to have been available to the IRP if it had acted reasonably. However, the IRP may consider new evidence for the purposes of considering whether to recommend (rather than direct) that the school reconsider its decision. Collins J then commented at paragraphs 30 and 31:
"So far as it goes, that is a statement of the requirements of judicial review which is often given in text books, but it is not necessarily entirely up to date because there are circumstances where error of fact can give rise to a judicial review remedy. The precise circumstances in which that can occur are not always easy to spell out as a general principle. Much depends upon the facts of an individual case.
"Nevertheless, the approach in the guidance is one that is not prima facie unlawful, but it may be that it is less than entirely appropriate if every eventuality was to be covered."
In other words, it appears that a material error of fact giving rise to unfairness (see E v Secretary of State for the Home Department  EWCA Civ 49) is a ground on which an IRP may quash the decision of a responsible body (and other similar grounds surely also lie). Not every eventuality is covered by the Exclusions Guidance. Collins J then commented at paragraph 32 of the judgment:
"I am bound to say that it is difficult to see that it is entirely satisfactory for what is a lay body to be required to apply judicial review principles in the decision that they have to make. However, that is what Parliament has required and that is what has, so far as possible, to be applied."
The Judge then sets out paragraphs 148 to 150 of the Exclusions Guidance, which provides what might be termed a ‘super-concise guide’ to the substantive grounds of judicial review. The grounds of illegality, irrationality and procedural impropriety are surveyed over some 216 words. By way of contrast, the leading text book on judicial review (co-authored by Jonathan Moffett and Andrew Sharland of 11KBW) is some 1056 pages in length. Is the 216 words enough for the IRP to consider, or will the 1056 pages potentially be relevant? Collins J provides further clues at paragraph 34 of the judgment in his commentary on the ‘super-concise guide’ to judicial review principles set out in the Exclusions Guidance:
"So far as irrationality is concerned, the guidance omits that part of irrationality, which is not a very good word to govern this particular aspect: namely, a failure to have regard to material consideration, or having regard to an immaterial consideration. That is, as I say, an ingredient of what is regarded as irrationality in judicial review terms."
The answer, it would seem, is that “the principles applicable on judicial review” (s.51A(4)(c)) means exactly what it says: all the grounds of review are in play at the IRP stage, in the same way as they are before the High Court. It does not matter that a particular ground of judicial review is not explicitly set out in the Exclusions Guidance. As the Judge puts it later in the judgment at paragraph 71, so far as the IRP’s powers of review are concerned, “the normal rules of judicial review will apply”. This is, perhaps, not surprising given the wording of the statute, but in setting it out in such stark terms it lays bare the challenge of the job that Parliament has given to IRPs.
I should emphasise that strictly speaking, Collins J’s comments are obiter. He did not have to consider whether IRPs must consider grounds of review not explicitly referred to the Exclusions Guidance. There are, furthermore, aspects of the judgment that may provide wriggle-room for the courts in future cases, such as the words “that is what has, so far as possible, to be applied” (paragraph 32 of the judgment) and see further the below (“slightly different situation”). Nevertheless, it would seem sensible for all those involved in exclusions to assume that all grounds of judicial review may be relied upon before the IRP.
The Judge in CR also makes a number of useful observations as to the applicable procedure for IRPs and responsible bodies.
First, the Judge dealt with a submission by the local authority that the second appeal approach should be applied to judicial reviews of IRP decisions – i.e. that a decision of an IRP could only be reviewed by the High Court on the grounds that there was an important point of principle or practice or some other compelling reason for the IRP’s decision to be reviewed. Collins J held as follows:
"There was a suggestion made in the skeleton argument produced by Mr Auburn that since this was judicial review of a body, which itself was acting on judicial review terms, as it were, then the approach deemed correct in R v (Cart) v Upper Tribunal  1 AC 663 is to be applied in that the second appeal approach should be adopted. That I have no hesitation in rejecting. This is not a Legal Tribunal, in the sense of a Tribunal of Appeal which is set up such as, for example, the First‑tier Tribunal in the Tribunal system. It is a lay body.
"True, Parliament, in its wisdom, had decided its powers on appeal should be limited, but that does not make it the sort of body that is appropriate to be regarded as an appeal body, so that any further judicial review is limited to the principles applicable to a second appeal. It is not anything like that.
"The normal rules of judicial review will apply, although of course whether the panel has acted unlawfully will depend upon whether it has gone wrong in the manner in which it has exercised the powers that Parliament has bestowed upon it. To that extent, this is a slightly different situation than is appropriate, or a straightforward judicial review of bodies which have a full general power."
It is unclear, however, if or in what way the fact that the IRP is in “a slightly different situation” to other public bodies will make a difference to the High Court’s approach to a judicial review of an IRP’s decision.
Second, the Judge considered a submission by counsel for the claimant that the principle tentatively set out in Calvin v Carr  AC 574 should apply to the new IRP system. In other words, because the IRP does not undertake a full merits review, it cannot cure defects in the decision-making at the first stage (by the responsible body). The Judge rejected that submission. In doing so, he made observations at paragraphs 76 to 77 as to the duty of the responsible body following a recommendation by an IRP (as opposed to a direction) to reconsider a permanent exclusion:
"…it would, in my judgment, take very strong case for the governing body to refuse to reconsider.
"It would be, I am bound to say, difficult to conceive of a situation where that would be appropriate. It may well be that on reconsideration they would reach the same conclusion in any given case. But, faced with a recommendation based on full hearing, and often no doubt upon fresh material which was before the panel and considered by the panel, it would, as I say, be a bold step for the governing body to fail to follow that recommendation."
IRPs face a very difficult task in reviewing a decision to permanently exclude a child. An in-depth knowledge of public law is, it appears, essential for both applicants for review (as to which see the Matrix/City Exclusions Project which I helped to set up) and IRPs themselves.
Many thanks to Alex Line of 3PB chambers for bringing the judgment to 11KBW's attention. Alex appeared pro bono for the claimant in this case.