Jack's story

A boy called Jack got into trouble at school. Of an age where boundaries get pushed, he went a bit too far one day, along with some of his friends. His head teacher was pretty unimpressed and excluded him from his school for good. Jack’s friends were also excluded, but only for a week. They made allegations about Jack’s behaviour which seemed to mark him out as the ringleader. Jack had no chance to respond to these. There was no discussion with him about the possibilities of returning to school, even if he met certain conditions.

Jack was coming to the end of third year and in the middle of his standard grade courses. He was doing well at school, according to his teachers. Because he felt he had been treated unfairly, Jack wanted to try to get the exclusion overturned. The outreach teaching team who were giving him course work while he was out of school said there was really no point in trying to appeal because exclusions did not usually get overturned. They said he would be better to carry on with his studies and apply to be placed in another school.

This still did not seem fair to Jack. He did not like the idea of trying to get into another school where he knew no one. Besides, he felt that his current guidance teacher really understood some things about him which would be difficult to tell someone new. Jack’s mum was very supportive and tried to get him a lawyer to help appeal against the exclusion. She had real trouble finding one. Legal aid was not available for an appeal like this and she couldn’t find a lawyer who knew enough about exclusions and would do the appeal for free. That is, until she was put in touch with an outreach law centre who specialise in helping children and young people.

The law centre lawyers said they would come and talk to Jack and try to help him if they could. Jack liked this idea. He did not have to go and see a lawyer in an office. They came out to him, to a café to start with and then at his home a couple of times. They got all the papers from the school dealing with the exclusion and lodged an appeal for him. The appeal went to the local council, because they run the education appeal committee who hear and decide appeals against exclusion. Strange – they were the same council that the appeal had to be taken against, since they ran the school from which Jack had been excluded.

The council said they could not take an appeal from a 14 year old – it had to come from his mum. Jack really wanted to make the appeal himself. It made him feel there was something he could do to sort things out himself. Luckily, Jack’s lawyers knew that the law said the council should accept an appeal by a 14 year old, and they insisted that the council take the appeal. Finally they did and a date was fixed for the hearing. It was getting really close to the start of term and Jack was anxious that things might not be sorted out before term started.

“Why all these questions?”

On the morning of the appeal, Jack, his mum and his representatives from the law centre turned up at a very imposing building run by the council. It is used for weddings and other ceremonies. Because of this, Jack and his group had to go up a back stair. It all felt pretty scary. They turned up at 9.45 as they had been told. They were not allowed into the room where the committee would hear the appeal, and had to wait in a side room for some time. While they were there, someone from the council’s education department and then Jack’s head teacher appeared in the same room. This was really uncomfortable for Jack who left the room with his mum until it was time for the appeal to start. His lawyers stayed in the side room and, eventually, they were all told to go into the room with the committee.

There was already a lawyer in there – the council lawyer. The same lawyer who advised the council was there to advise the committee on legal issues which might arise during the appeal. It did not feel like a very impartial procedure. There was a lady who chaired the committee and two men, one on either side of her. Jack and his team were asked to sit down across the table from the committee. The head teacher and a lady from the education department were also sitting there.

Jack’s representatives were still sitting down and getting out their papers and pens when the chair of the committee asked the head teacher to give an account of events which led up to the exclusion. Unfortunately, that meant that Jack’s representative from the law centre had to interrupt to make a preliminary point. The council had said in their papers before the committee that the appeal was made by Jack’s mum. This was not true and it was really important that they knew that Jack was making the appeal himself. His mum was very supportive of him but he was the one appealing.

The head teacher gave his account and Jack’s representative then started to ask him some questions. She was asking her second question when she was interrupted by one of the committee members, who asked what the point was of asking these questions since the head teacher had given his account. This was the first of several interruptions from a man who later said that he was nominated by “the church” (he did not say which church), and could not see that there was anything to be said against the decision to exclude without limit of time. Let’s call him Mr A.

Against the odds and not without some tenacity, Jack’s representative was allowed to complete her questioning of the head teacher. Mr A declared himself surprised that so many questions were asked, saying that, as a committee member, he was not used to hearing this sort of cross examination.

The chair then asked Jack what he thought of what he had done. He gave a brief but clear reply and the chair asked his representative if that was that. She seemed surprised to hear that the representative had some questions to ask him and his mum and would then be summing up in support of the appeal.

Hearing one out

Then there was a five minute break. When everyone was back in the room, Jack’s representative carried on with her questions. There were lots of interruptions by the committee members and even by the head teacher. The third member (Mr B), who said he was a parent member, asked Jack to explain what he had done. When Jack tried to explain, Mr B said: “I see you have decided to adopt the ‘idiot’ defence.”

It felt like Jack was being bullied. His representatives complained about his treatment. The chair told Mr B to stop and asked Jack’s representative to carry on with her questions. Mr B closed his eyes and seemed to fall asleep.

Time was marching on and there were some mutterings from members of the committee about how long this was all taking. During Jack’s representative’s summing up, at around 12.30, Mr A said out loud that he had now missed his lunch date. Jack’s representative told the committee how important the appeal was to Jack and how much his future depended on it.

The summing up was frequently interrupted by the head teacher who tried to argue with the points being put forward in support of Jack’s appeal. Finally, and not without some sense of relief on the part of Jack and his team, the hearing finished about 12.45 pm. At least Jack felt that all of his points had been put across to the committee and that he himself had done what he could. However, his team were not too hopeful that the appeal would succeed. The council lawyer stayed with the committee to give them advice on the law. She would certainly have understood how unfairly Jack had been treated, even if Mr A and Mr B did not.

Imagine Jack’s delight when, a couple of hours later, his lawyer phoned him to say that the appeal had succeeded. The committee said that he had not been treated fairly during the exclusion process. He could start the new term the following week and did not have to worry about trying to get into a new school, making new friends and all of that. Jack lived happily ever after… we hope.

Shared concerns

This is not a fairy story. This happened in Scotland in 2008. The committee members seemed unfamiliar with the concept of natural justice, let alone the idea that human rights might have a part to play in the process. One is left wondering whether any training had been given at all, never mind its content.

The procedures of education appeal committees have long been a source of complaint and concern. As far back as June 2000, a special report by the Scottish Committee of the Council on Tribunals was laid before the Scottish Parliament, making a number of recommendations in respect of:

• the venues used for hearings
• the lack of training – both general and human rights – available to committee members
• the problems of the unrepresented appellant
• the deliberative stage of the hearing
• the COSLA Code of Practice (see www.council-on-tribunals.gov.uk/ scottish/76.htm).
• The report raised serious concerns about such issues as lack of independence and integrity, lack of training, inequality of arms and inconsistency of procedure.

Membership of education appeal committees is regulated by the Education (Scotland) Act 1980, sched A1. Briefly, members are drawn from: (a) members of the local authority or any committee advising on or discharging the authority’s education functions, which will include three church representatives on any such committee (see Local Government (Scotland) Act 1973, s 124 as amended); (b) parents of children of school age; (c) persons with experience in education; and (d) persons acquainted with the educational conditions in the local authority area. Such selection criteria appear outdated and not necessarily likely to ensure the independence and impartiality of the committees. Focusing on individuals’ attributes, experience and training, rather than on membership of any particular sector of society, would be more likely to produce a system of appeal committees which is fit for purpose in the 21st century.

Overhaul overdue

The Leggatt Report on Review of Tribunals, from March 2001, which looked at tribunals in England and those operating across the United Kingdom, raises a number of interesting issues which have some application to education appeal committees in Scotland, although the report itself is not concerned with those tribunals. Leaving the operation of the human rights legislation to one side, “users are in any event entitled at common law to a fair hearing by an independent and impartial tribunal” (see Leggatt Report, “An Overview”, para 3, at www.tribunals-review.org.uk/leggatthtm/leg-ov.htm).

There have been other calls in Scotland for an overhaul of the current system. Janys Scott, Education Law in Scotland (2003), in chapter 15 concludes:

“The system of education appeal committees is a source of serious concern. They are not independent. There is an appearance of partiality inherent in the structure. There may be difficulties both at common law, and to some degree under the European Convention on Human Rights. Criticism of the practices of education authorities in respect of appeal committees has been voiced at the highest level, through the Council of Tribunals. The conclusions of the Leggatt Report indicate the extent to which the system falls short. Appeal committees require urgent and fundamental reconsideration.”

To date, very little has been done to address these concerns, which affect some of our most vulnerable citizens who run the risk of long term marginalisation without adequate safeguards being in place.

Jack’s tale is true. It is disturbing and no doubt, sadly, not unique. He was lucky. He had representation. How many students like him do not have someone to speak up for them and have to navigate a difficult, intimidating and, in many ways, unfair procedure? A radical overhaul of the present system of education appeal committees is long overdue.