S & Anor, R (on the application of) v Independent Appeal Panel of Birmingham City Council

MR JUSTICE BEATSON: This judicial review is a challenge to decisions by the defendant's Independent Appeal Panel made on 7th and 21st February 2006 dismissing the appeals of the parents of the claimants, "S" and "B", against the decision of the governing body of their school, a school maintained by Birmingham City Council, to exclude them permanently from the school. S and B are now aged 16 and 15 and are due to take their GCSE exams during the forthcoming academic year. Their school has a zero-tolerance drugs policy and their exclusion resulted from an incident in which they and others sought to experiment with a substance they believed to be cannabis.

Proceedings were launched by S on 25th April. B initially sought to resolve his complaint by taking it to the Local Government Ombudsman. Proceedings were launched by him on 19th May, when it was considered that the ombudsman process would not resolve the complaint quickly enough for a boy in his GCSE year. On 24th May Sullivan J granted permission and ordered that the cases be listed together and expedited.

The case involves the interrelation of the school's drugs policy and the Secretary of State's statutory guidance on exclusion of pupils in the context of what, at the hearing, was accepted to be a "one off" incident by pupils with good academic and disciplinary records. It also involves the substantive and procedural legitimacy of having separate hearings before differently constituted appeal panels in respect of pupils involved together in a single incident, and of the disparity in the outcomes in the cases of the claimants and one of the other boys involved.

Before turning to the submissions made by Miss Mountfield, on behalf of the claimants, and Mr Oldham, on behalf of the defendant, I set out the facts and the statutory and regulatory regime.

The incident leading to the exclusions occurred on 22nd November 2005. S and B were members of a group of boys who planned to experiment with a substance they believed to be cannabis. They planned to do so in a park away from school premises at a time when they were supposed to be attending a games period. One or more roll-ups were acquired and the experimentation took place. The matter initially came to light in early December, when the head of their year was checking attendance at games. S, B, K, and another boy, admitted what they had been up to. S said that he contributed £2 to the kitty and held the roll-up but did not smoke. B said he puffed the roll-up twice but did not inhale, and he did not contribute to the kitty.

The school's zero-tolerance drugs policy states:

The Secretary of State's guidance, entitled "Improving Behaviour and Attendance: Guidance on Exclusion from Schools and Pupil Referral Units", was issued in October 2004. In its introduction it states that:

Paragraph 3 states that effective policies, procedures and training minimise the number of pupils at risk of exclusion.

Paragraph 7 deals with a number of alternatives to exclusions.

Paragraphs 9 to 14 deal with the decision to exclude. They state:

Paragraphs 17 to 19 deal with the factors to consider before making a decision to exclude.

The position of Independent Appeal Panels is dealt with in part 5. Paragraphs 100 and 101 deal with the role of the clerk. It suffices for present purposes to say that by paragraph 100 "The clerk provides an independent source of advice on procedure for all parties", and by paragraph 101 "Clerks should receive training and will need to keep up to date with developments in case law and changes in legislation and guidance".

Paragraphs 121-123 deal with the approach recommended to appeal panels:

It will be seen that whereas the school's policy on drugs treats all cases of involvement in drugs as rendering a pupil liable to permanent exclusion, the guidance, including the provisions on drug-related exclusions in paragraphs 15 and 16, have a more nuanced or open textured approach.

I return to the facts. On 13th December 2005 the head teacher temporarily excluded S, B and the three others pursuant to the school's policy, and on 19th December he excluded them permanently. Pursuant to the requirements of section 52 of the Education Act and regulation 4 of the Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations, SI 2002 No 3178, he informed their parents, the school's governing body and the local authority of this and of the reasons for the exclusions.

The statute and regulations require the school's governing body to consider whether the boys should be reinstated: see section 52(3)(b) and regulation 5. On 16th January 2006 the governing body did so and concluded that it should not. It did so by means of a committee chaired by Mr Tillotson. The other members were Mrs Carr and Mr Adams. The cases of all five pupils were thus heard by the same committee, but were heard separately.

In the case of a pupil who is permanently excluded, regulation 5(6) of the regulations provides that the governing body shall give the relevant person, that is the parents, notice in writing referring to the decision and stating the reasons for it, the right to appeal against the decision, and the person to whom any notice of appeal should be given. It also provides that any notice of appeal must contain grounds of appeal.

Appeals are held by appeal panels known as Independent Appeal Panels. Their constitution and procedure is set out in the schedule to the regulations. Regulation 6(2) provides that an appeal from a decision of the governing body lies to an appeal panel constituted in accordance with paragraph 2 of the schedule to the regulations. By subparagraph (2) of paragraph 2, they must consist of three or five members appointed by the local authority, and by subparagraphs (2), (3), (4) and (10) of paragraph 2, in the case of a three person panel, there must be one lay member without personal experience in the management of any school who chairs it, one member who is or has been a head teacher of a maintained school during the last five years, and one member who is or has been a governor of a maintained school. Members of the authority, the school's governing body and the head teacher of the school or anyone who has held the position within the previous five years are disqualified by subparagraph (7). In this way Parliament has, to use Schiemann LJ's words in the Brent case [2002] ELR 556 at paragraph 17, sought to create "an arm's length relationship between the LEA, the school and the panel".

By paragraph 6 of the schedule, the closing date for appeals means the fifteenth school day after the day on which the appeal is lodged. Paragraph 8 provides:

Paragraph 12 empowers the panel to combine two or more appeals. It provides:

I return to the guidance. Paragraph 94 of the guidance also deals with combined appeals and gives guidance on paragraph 12 of the schedule. It states:

Appeals lodged by S and B were received by the defendant on 20th and 23rd January 2006. An appeal lodged by one of the other boys, K, was received by the defendant on 24th January; the date on which, as it happens, the defendant's Committee Services Department set the dates for the hearings of the appeals by S and B (see Ms Hudson's statement).

Paragraph 14 of the schedule to the regulations states that:

In the case of these claimants, the decision letters were sent out on the day following the hearing. S's appeal was heard on 6th February by a panel which Mr Barnes chaired and of which Mrs Walters and Alderman Wright were members. The clerk of the panel was Mrs Hudson. The appeal was dismissed. In S's case, the letter, after stating that the panel had decided to uphold the exclusion summarising the account of the facts they heard, stated:

B's appeal was heard on 20th February by a panel which Mr Hands chaired, and of which Mr Gillard and Mr Henry were members. Mrs Hudson was also the clerk to this panel. The appeal was dismissed on 21st February. The decision letter in B's case stated:

K's appeal was heard on 21st February by a differently constituted panel, of which the clerk was Ms Williams. On 22nd February his appeal was allowed. The panel decided to direct K's reinstatement to the school with effect from the following Monday.

In all three appeals the panels heard from the parents of the relevant boy, the head teacher, a nominated member of the governing body and a representative of the local authority. The minutes of the appeals by S and B show that references were made to the Secretary of State's guidance, to the school's zero-tolerance drugs policy, and to the circumstances of the individual pupils. It has not been argued on behalf of the defendant that there are any material factual differences in the roles of S, B and K in the incident or in their school records.

Mr Oldham accepted that in K's case the panel took a different view as to whether the operation of the school's policy, in the circumstances of the case before it, justified what that panel regarded as departures from aspects of the Secretary of State's guidance. The decision letter dated 22nd February states in part:

One of the issues in these proceedings concerns the separate listing of these appeals before different panels and the decision not to list them before a similarly constituted panel or to consolidate the appeals. I set out the evidence as to consideration of consolidation of the appeals.

The evidence consisted of the witness statements of Mr B, Mrs S, Mrs H (the mother of one of the other boys), Mrs Hudson, who clerked the appeal panels in S and B's case and had been involved at an earlier stage, and Mr Storey, who was K's legal representative.

Mrs Hudson, in her statement, states that at the time of arranging B's appeal the head teacher asked her whether consideration had been given to combining the appeals, but did not express any preference as to how they should be heard. She then consulted the defendant's lawyers, and with them considered the statutory guidance and the implications of combining the appeals for the parties (see paragraphs 8 and 9 of her statement). She states that by that time it had become apparent that there could be five appeals and that none of the parties asked for the appeals to be combined (see paragraph 9).

In paragraph 17 she deals with a conversation with B's father which took place after consideration had been given as to whether to combine the appeals. Mr B's evidence (see paragraph 6 of his statement) is that he was told that the defendant would not normally have one hearing at the same time as another and that it would be impractical to have all the hearings at the same time. Mr B states that because of what Mrs Hudson told him, he did not make a written request for the hearings to take place at the same time as he understood that this would not happen. If he had been aware that this was an option, he would have done so (see paragraph 7). Mrs Hudson states (in paragraph 17) that B's parents did not make a specific request for the appeals to be combined and did not make her aware that any of the appellants had been talking to each other. In fact, it appears from Mr B's statement that his wife, Mrs S and Mrs H, had been doing this.

Mr B's statement also states that his wife had previously spoken to an unnamed person in the Birmingham LEA, requesting that B's hearing be held at the same time as S's, but was told that this does not normally happen and would be impractical (see paragraph 5). It was subsequent to that conversation that Mr B telephoned and was put through to Mrs Hudson.

Mrs S states (paragraph 6) that she contacted the LEA before the hearing to ask whether they could have all the hearings together. She could not recall to whom she spoke, but says it was possibly Tracy or Elaine, identified by Mrs Hudson as officers in the LEA's Exclusions Team. Mrs S states that she was told it had been decided that the hearings would be in front of different panels on different days and was given the impression there was no room for argument with that decision. Mrs H states that she made no request for the hearings to be combined. She had not been told this was possible. Had she known it was possible, she certainly would have wanted to have had all the hearings combined. She was present when Mrs B phoned the LEA to ask for a combined hearing.

Mr Storey states that he was initially concerned that there were appeals which were to be dealt with prior to K's, lest the panel in K's case was advised that they were unsuccessful and that this prejudiced K. He refers to the fact that had the matter been dealt with by a single panel, he would not have been happy with one panel hearing the appeal separately as he would not have heard what was said in the appeals of the other children about K. He also states that a combined hearing would have involved a large number of people, would have been likely to have lasted in excess of a day and would have been difficult to arrange (see paragraphs 4-6).

Mr Oldham's primary submission was that there is a conflict in the evidence as to whether there was any request for a combined hearing and that, in the absence of any request by the claimants to cross-examine Mrs Hudson, established principle requires the court to accept her statement. In argument, however, he accepted that although Mrs Hudson states that "none of the parties asked for the appeals to be combined" (paragraph 9), she had no contact with Mrs B or Mrs S, and that her statement that Mr B "did not make a specific request for the appeals to be combined" does not deny that during the conversation he had raised the issue of a combined hearing. It is clear from paragraph 17 of her statement that their discussion concerned the issue of combining the appeals. She states she informed him of the decision that had been made.

Mrs Hudson's statement (in paragraph 9) that none of the parties asked for the appeals to be combined may refer to the absence as of a formal request, as opposed to informal enquiry. Mr B's evidence that he made such an enquiry is not denied, nor is there evidence before the court contradicting Mrs S's evidence that she asked for the appeals to be combined.

The first hearing for the appeal in S's case had been arranged before Mrs Hudson was aware of the number of appellants. She was concerned that combining appeals would lead to delay and that there would be difficulties in terms of the practical arrangements of organising the hearing within the prescribed timescales, which are tight. Although there was a short time difference between the receipt of S's appeal and B's appeal, there is a considerable gap in the date of the hearing. This may reflect half term: the 15 day time limit is a 15 school day limit. Mrs Hudson states (see paragraph 13) that she also discussed with the lawyers whether one panel should hear the appeal separately. This, however, would have been difficult to operate as parents in one case might need to be given the opportunity to hear and comment on evidence relating to other cases raising issues of confidentiality. She states that she took account of the risk of inconsistent decisions being made, but considered, in the light of the advice from the lawyers, that the option which would best ensure correct procedures was for each of the parties to have different panels hearing their appeals.

I turn to the grounds of challenge. In summary, they are. Ground 1: illegality and procedural unfairness in the separate listing of the cases and the failure of the defendant to exercise its power under paragraph 12 of the schedule to the regulations to ensure that the same panel considered the appeals of all the boys involved in the incident on 22nd November. Miss Mountfield put this in three ways: first, ground 1A, the decision whether to consolidate the appeals lay with the independent appeal panel and not with its Committee Services Department so that there was unlawful delegation; secondly, ground 1B, the decision not to consolidate the appeals was procedurally unfair because it was taken without informing the claimants or other parties to the appeals of the existence of the discretion under paragraph 12; thirdly, ground 1C, the decision was irrational because it failed to take into account a relevant consideration, namely the views of the parties as to whether the appeals should have been listed before a single panel. She also submitted (ground 2) that unfairness and inconsistency has resulted from the disparity between the position of the claimants and that of K. Finally, Miss Mountfield submitted (ground 3) that the defendants failed properly to direct themselves as to the statutory guidance and to apply it or to take into account relevant departmental non-statutory guidance about drugs-related exclusions in a document, Drugs Guidance for Schools produced by the Department for Education and Skills in 2004. She relied on the decisions in ex parte Rixon [1997] ELR 66 and R(Munjaz) v Mersey Care NHS Trust [2005] UKHL 58, Miss Mountfield submitted that cogent reasons had to be given for departing from the guidance; and the guidance, I add, appears to have taken this view too because that is the phrase used in the introduction and which I have quoted.

On ground 1, Mr Oldham submitted that there is no requirement for all the appeals arising from the incident to be heard before a single appeal panel. The terms of paragraph 12 of the schedule to the regulation assume that each case will normally be dealt with by a separate panel, and even in cases where the appeals raise the same or connected issues, there is merely discretion to combine them. He also relied on a number of the practical matters taken into account by Mrs Hudson and referred to in Mr Storey's statement to show that the matter was properly considered and relevant factors taken into account, and that, in view of the disparate views of the families, the lack of objection by the claimants or others, the lack of request and the wish for a separate hearing by those representing K, it was difficult to criticise the defendant.

In respect of ground 1A, unlawful delegation, he relied on the decision of Lewisham Borough Council v Roberts [1949] 2 KB 608, as well as the practical difficulties of requiring the panel itself to make the decision as to combine appeals or have a single appeal panel.

In regard to ground 1B, he submitted there was no obligation to consult the claimants or to inform them of the discretion to combine the appeals contained in paragraph 12. There was no such requirement in either the regulations or the guidance. Paragraph 94 of the guidance only concerns consultation where the panel is deciding to combine the hearings.

As far as ground 1C is concerned, paragraph 31 of his written submissions states that since the relevant consideration is said to be the views of the parties, this is simply a re-statement of the "failure to consult" ground and adds nothing to the claim.

On ground 2, Mr Oldham submits that, if the first ground fails, this must too because, if separate hearings were lawful, it follows that there is a possibility of different decisions. He submitted that the cases were treated alike with regard to consistency of procedure. There was no need for consistency of outcome. He states in paragraph 33 of his written submissions that, as a freestanding issue, the disparity ground is misconceived because while a public body must not act capriciously between different parties whose circumstances are the same, the claimants have failed to recognise that different divisions of the same judicial or quasi-judicial entity can, and indeed must, exercise their own decision-making powers independently.

With respect to ground 3, Mr Oldham submitted that the panels had fulfilled their duty under the regulations to "have regard" to the statutory guidance. In the light of the references in the guidance to "have regard to the school's published behaviour policy" and the open textured nature of the guidance, the panels did not have expressly to state why individual paragraphs of the guidance were not controlling in a particular case. He argued that, provided their decisions broadly set out the thrust of their reasoning, that suffices. He submitted that the claimants are not assisted by Rixon and Munjaz because those cases concern more prescriptive statutory requirements, and he relied on the decision in S, T and P v Brent LBC [2002] ELR 556, in particular paragraph 15, where, in considering a statutory obligation to have regard, the Court of Appeal stated that:

When granting permission, Sullivan J stated that despite the detailed legal justification put forward in the defendant's summary grounds of resistance, he remained "troubled by the inconsistency with K's case, which is bound to give rise to an acute sense of unfairness". He stated that "the risk of inconsistent decisions was obvious" when the appeal panels were being constituted and he was not persuaded of the alleged disadvantages in one panel hearing all the appeals.

The particular circumstances of this case are important. The head teacher dealt with the exclusions on a single day. A single disciplinary committee of the governors reviewed his decisions at hearings, all of which occurred on 16th January 2006, although the hearings were separate. It is accepted by the defendant that all those excluded by the head teacher and the governing body were excluded as a result of joint participation in the same incident. There was no evidence of substantially different participation by individuals or of different mitigation available to them, although I note that in his statement Mr Storey does consider that K might have had some personal mitigation not available to the others. Mr Oldham did not, however, rely on this, and, when I put the point during the course of the argument, it was accepted that the case is not put on the basis of factual differences.

In these circumstances, I have concluded that it was incumbent on the defendant to consider whether to combine the appeals or to organise them so that the same members heard all four appeals. While Mr Oldham is correct to submit that in principle there is no requirement to combine the appeals or to organise them so that the same members heard them all, that does not justify the independent appeal panel not considering the matter. It is not argued that they did so themselves, but it is submitted by Mr Oldham that it was lawful for this to be done by the Committee Services Department. Mr Oldham relied on regulation 6(1) of the regulations, under which it is the LEA which has the obligation for making arrangements for enabling the relevant person to appeal against any decision not to reinstate a pupil who has been permanently excluded from a maintained school. He submits that "making arrangements" should include reaching a view on the issue of combination of appeals, and that common sense suggests that a view about consolidation must be taken before the defendant itself is seized of the appeal, because only after a decision about consolidation is taken can the defendant be set up to deal with the appeals. He relied, as I have stated, on the decision in Lewisham Metropolitan Borough v Roberts, a case in which a town clerk re-requisitioned a house to deal with the owner's refusal to allow access to the upper requisitioned floor after the lower floor had been de-requisitioned. The town clerk had applied to the minister for this to be done, and an official in the Ministry stated that the minister had directed him to say that he delegated to the clerk his functions under the Defence Regulations for the purposes of re-requisitioning the house. It was argued that the delegation by the minister of power to re-requisition the house was unlawful, but this was rejected on the ground that it was "an administrative and not a legislative act". The court relied on the well-known Carltona principle [1943] 2 All ER 560, entitling a minister entrusted with administrative functions to act by any authorised official in his department.

I am not assisted by this case. First, it concerned the powers given by statute to a minister and the Carltona principle. That principle gives central government departments the benefit of a special rule whereby officials may act in their minister's name without any formal delegation of authority. It applies only to departments of central government and not to local government authorities and other statutory bodies: see, for example, the discussion in Wade and Forsyth Administrative Law, 9th edition, pages 320-322. Secondly, the decision, and in particular the approach in which the characterisation of a function as administrative is seen as precluding legal control, predates the development of modern administrative law. The position in respect of local authorities is that there must be a delegation, and there must be a delegation which is authorised by statute. For example, in R v Secretary of State for the Environment, ex parte Hillingdon LBC [1986] 1 WLR 192, approved by the Court of Appeal, the court considered a statutory power in a council to delegate to a committee. It held that it was ultra vires to make provision for the council to delegate to the chairman of the relevant committee. See also Ex parte Gladbaum [1992] Admin LR 634, Ex parte Peacock [1993] COD 19, and Ex parte Khalique [1994] 26 HLR at 525 for the rationale of the rule, as stated by Sedley J (as he then was).

In the present case, paragraph 12 of the schedule to the regulation explicitly gives the power to combine appeals to the appeal panel. Mr Oldham argued that this did not preclude the local authority making the decision. He submitted the terms of paragraph 15 to the schedule, which states that the requirement that "all matters relating to the procedure on appeal shall be determined by the LEA" was subject to paragraphs 7-14, only meant that combining appeals did not have to be done by the LEA but could be done by the panel. I have concluded that in the context of the regulations, which seek to give effect to the legislative intention to create, as the Court of Appeal stated in the Brent case in respect of the earlier legislation, "an arm's length relationship" between the various actors in the process (see paragraphs 17 of the Brent case), this interpretation is unfounded. Whether to hear appeals in respect of joint participants in a single incident together or separately is, as Miss Mountfield argued in reply, a vital aspect of the substantive justice in determining the appeals.

For these reasons, I have concluded that the purported listing decision made by the Committee Services Department was ultra vires. There was no purported delegation by the defendant. For the reasons I have given, had there been one, it would have been without a legal basis.

In these circumstances, it is not necessary for me to consider whether the decision was also procedurally unfair because it was taken without informing the claimants of the existence of the discretion.

Although the listing decision was an interlocutory one and the principles of fair procedure or natural justice apply in an attenuated way to such decisions, in the circumstances of this case, as is seen from Mrs Hudson's evidence as to the discussions between her and the legal department, it was a significant decision. In these circumstances, I incline to the view, without deciding the matter, that the appellants, the head teacher, and the LEA should have been given the opportunity to make representations. On the particular facts of this case, in which it appears that Mrs S and Mr B raised the issue with the LEA, albeit without making a formal request, the provisions of paragraph 100 of the guidance indicate that, at any rate at that stage (I add, it may have been after the decision was made) they should have been told about the provision in paragraph 12 of the schedule. Paragraph 100, which I have early quoted, provides that the clerk provides an independent source of advice on procedure for all parties, i.e. including appellants.

I turn to ground 1C, that the listing decision was irrational because it failed to take account of the relevant consideration, that is the views of the parties. I accept Mr Oldham's submission that since the relevant consideration is said to be the views of the parties as to consolidation of listing, this is simply a re-statement of ground 1B and in the circumstances of this case takes matters no further.

I turn to ground 2, disparity. I have decided ground 1 on the basis that the defendant failed to consider combining appeals or having a single panel for the appeals arising out of this single incident. The defendant has argued that disparity is the consequence of having separate hearings and is the risk of an adjudicative system, whether it is courts or administrative tribunals, which has separate divisions. I have not decided that it would have been impossible for the defendant to conclude that, notwithstanding the nature of this incident and the similarity in the participation and mitigation available to the different boys involved, separate hearings should take place. I do, however, observe that I find it difficult to see how, in these circumstances of a single incident and joint participation, it would be right for the appeals to be heard by differently constituted panels. To do so runs the risk, exposed in the criminal context in the decision in Fawcett [1983] 5 Cr App R (S) 158, that a sentence perfectly correct in itself imposed might have to be reduced because of a much lower sentence imposed on another. In that case the lower sentence was imposed on a person in a worse position than those who had had the heavier sentence imposed. That was because the youth court had dealt more harshly with those who had pleaded guilty than the Crown Court had dealt with a defendant who was found guilty after a trial. One has to be careful about taking analogies from different contexts, but I accept Miss Mountfield's submission that it is an important principle of good public administration, common law, and administrative law that like cases be treated alike. In the criminal law context this has led to the conclusion that those charged in respect of a single incident should, save in very exceptional circumstances, be tried together and should be sentenced by the same sentencer.

If the practical reasons which Mr Oldham has put before me and which are referred to in Mrs Hudson's statement, had been carefully considered by the defendant, the defendant might have reached an unreviewable decision to have separate hearings. The defendant, however, would have then been under a duty to take practical steps to ensure that similarities or differences in the cases could be taken into account by the different panels considering the cases arising from the same incident.

Mr Oldham, responding in part to Sullivan J's suggestion that the individual circumstances could have been dealt with separately, pointed out, as K's legal adviser had said, that that might carry its own serious disadvantages. Nevertheless, if one is opening up a situation in which there can be a real risk, as Mrs Hudson recognised, of disparity, and a decision is made to court that risk, such steps must be taken. This would be a balancing exercise for the defendant. Only if that was done, in my judgment, could the defendant begin to meet the argument that, if there is disparity, then there is inconsistency with the principle of equal treatment.

In administrative law the arguments based on consistency are most commonly seen in the context of the principle of legitimate expectation. They sometimes relate to procedural consistency. Mr Oldham submitted this was provided here, although before differently constituted panels. The arguments do, however, sometimes relate to substantive consistency. More recently the examples have been mainly of situations in which an undertaking given or a policy is argued to create an expectation that substantively there should be no departure from that undertaking or policy. There have been examples, however, including the decision of the Court of Appeal in HTV v Price Commission [1976] ICR, in which the court has considered that inconsistency of result, there in the application of a statutory price policy in two different cases, was itself substantively unfair.

In conclusion on ground 2, the mere fact that there is a disparate result does not, in my judgment, render the decision unlawful, although, as Sullivan J said, and Mr Oldham accepted, it gives rise to a sense of unfairness. But there would have to be close scrutiny of why a situation which created the real risk of a disparate result was created. Only if the authority carefully justifies the way that it has reached a decision producing that risk, can it be argued that the principle that like cases should be treated alike does not mean that there is unfairness and public law illegality.

I turn to ground 3. In a sense, the issues raised in this ground are the most wide-ranging in this case because they concern the interplay between the local policy adopted in this school, but not, I note, in other local schools, and the national guidance.

Public law is replete with tensions between local decision-making and central decision-making. This guidance, unlike for example, that issued under the Licensing Act 2003 in relation to special cumulative impact policies, does not make express provisions as to the sort of local policies permitted, and how those local policies are to be construed and reconciled with general national guidance.

Miss Mountfield argued this primarily on what I call the Rixon and Munjaz point, that there was a duty on the panel to give reasons, "good reasons", or using one of the phrases in the cases "cogent reasons", for departing from the guidance.

Although there was no challenge in this case to the zero-tolerance policy, put this way, in effect her submission is not primarily one about a procedural point, breach of a duty to give reasons, but one of a substantive nature as to whether the defendant could depart from the guidance without having good reason to do so. Indeed that is what Rixon and Munjaz are about. Obviously if a body is unable to depart from guidance without having a good reason for doing so and does not give such a reason, that is going to lead the authority into public law error.

As to the applicability of Munjaz and Rixon, on this point, I accept Mr Oldham's argument. In Rixon section 7(1) of the Chronically Sick and Disabled Persons Act 1970 provided that the authority "shall act under the general guidance" of the Secretary of State. Miss Mountfield submits that this turns the duty into a target duty. Nevertheless, that is different and more prescriptive than "have regard to", which is the duty here. Miss Mountfield is right to emphasise that there was no express reference in the statute to what the hospital had to do regarding the code in the Munjaz case. It is, however, important to consider when Lord Bingham stated that the code does not have binding effect, why his Lordship stated the matters relied on by Mr Munjaz show that the guidance should be given great weight (paragraph 21), and "is guidance which any hospital should consider with great care, and from which it should depart only if it has cogent reasons for doing so". The context, detention of a detained patient held in seclusion, and when that detained person could be held in seclusion, is important, quite apart from any human rights considerations. The restriction of personal liberty was regarded by the courts in this country as a matter of great importance well before 2nd October 2000 when the Human Rights Act 1998 came into force. The structure of the speeches in Munjaz, as Miss Mountfield points out, does divide domestic law from human rights law, but the context remains important. Although there is no express reference to exactly this point in Lord Bingham's speech, Lord Hope at paragraph 68, dealing with the Code's status and asking what guidance means, states:

Accordingly, insofar as ground 3 is a substantive challenge, it has not been made out. The panels undoubtedly "had regard" to the guidance. Insofar as ground 3 contains a reasons challenge (and this is not clear from the grounds), I am not assisted by Munjaz and Rixon. What is important in the context of reasons is that an appellant, and in particular an unsuccessful appellant, knows broadly why his appeal has been unsuccessful: see, for example, Birmingham City Education Appeals Committee, ex parte B [1999] ELR 305, Scott Baker J (as he then was). Again, in a different context, in R (on the application of H) v Ashworth Hospital Authority [2002] 1 WLR 127, essentially what Stanley Burnton J stated, in a decision affirmed by the Court of Appeal, is that the reasons must enable the parties to understand why a decision-maker has reached his decision. In the words of Stanley Burnton J, "reasons should demonstrate that the tribunal grappled with the major issues".

It is submitted by Miss Mountfield that -- in my words, not hers -- the panels in S and B's cases have not shown the parents why, notwithstanding the references in paragraphs 9 and 11 of the guidance to permanent exclusion being a last resort and being very exceptional in the case of a single instance, it was appropriate to apply the local policy here. The reason given in the decision letters simply refers to the local policy. It may be, as Mr Oldham argued, that the reasons for applying it are to be found in the references to changing the community in which the children are in. Those references, however, come in the passages of the decision letters referring to the arguments put before the panel. The decision paragraphs only refer to the need to take into account the fact that the guidance states that the head teacher should have regard to the school's drugs policy. The way in which the minutes refer, in the context of a justifiable permanent exclusion for a one off offence to the fact that the guidance includes in its examples drugs offences, does not reflect that the example given in the guidance is the supply of drugs.

I am troubled by the failure to, in Stanley Burnton J's words, "grapple" with two issues. These are: permanent exclusion is normally a last resort and only in exceptional circumstances to be used for a "one off" offence. Albeit a lay tribunal, it is advised by a public official who does not necessarily have any legal qualifications, but should have had some expertise on these issues. But I am also very conscious of the need not to impose duties to give reasons which are unreal and do not reflect the composition of the bodies giving them, their caseload and other relevant circumstances. Ultimately, I have concluded that there has been a failure to grapple with those two aspects of the guidance. The reasons which give primacy to the local policy do not do so in a way that shows why, in the circumstances of the case, the local policy outweighs the considerations in the guidance.

On the argument of the defendant, it would suffice for a panel to refer to the statutory guidance but not to the specific provisions which indicate that permanent exclusion is not appropriate, and then simply to rely on the local school's zero-tolerance policy. Where, however, the interrelationship of the guidance and the local school policy has been an important issue at the hearing, as it was in the cases of S and B, the tension between the guidance and the local policy and the reason for preferring one needs to be addressed in the decision, albeit briefly.

In short, while rejecting the claimant's substantive point based on Rixon and Munjaz, I have concluded that to the extent that ground 3 contains a reasons challenge (and, as I have observed, this is not clear from the statement of grounds) it has been established. Thus, while it was open to the panels to decide that they wished to give primacy to the local policy, in the circumstances of these cases they needed to indicate why. They could, for example, have decided that the local policy prevailed over the indications in the guidance because of the needs of the particular school, the environment or other particular circumstances. The panels' decisions did, however, not do this. Their acceptance of the draconian nature of the policy is simply an indication of their awareness of its consequences.

I will hear any representations as to the form of relief in the light of what I have said.

MR JUSTICE BEATSON: In discussions beforehand, the order ought to be that the matter be remitted to the defendant to consider the hearing of the appeals by a differently constituted tribunal.

MISS MOUNTFIELD: By a differently constituted tribunal?

MR JUSTICE BEATSON: Not the same appeal panel as considered it the last time.

MISS MOUNTFIELD: Yes, my Lord.

MR JUSTICE BEATSON: The issue of whether the most practical way forward is going to be for the defendant to appoint a panel that heard K's case, which of course could come to a different conclusion about these two, or whether, in the light of what I have said in the judgment, the way forward is going to be for a completely new panel to be told about the background and what was said about consistency, subject to what you say, I say is for them at the moment.

MISS MOUNTFIELD: My Lord, I have heard what you have said on that, and I think in the light of the way you put your ground 2 on disparity, I would hope that they would use best endeavours to get the tribunal together but obviously that is a matter for them.

MR JUSTICE BEATSON: It must be a matter for them. There are limits -- I know we are told to case manage, but ...

Is there anything you wish to add, Mr Oldham?

MR OLDHAM: No, my Lord, I think your Lordship is absolutely right.

MISS MOUNTFIELD: My Lord, may I then ask for our costs of the application. In the skeleton argument I ask for them on an indemnity basis because we did put forward a part 36 offer that the matter be remitted by consent to another appeal panel which would consider the point, but I ask for our costs on whatever basis my Lord thinks is appropriate.

MR OLDHAM: My Lord, we accept that we have to pay costs, but this is not an indemnity case.

MR JUSTICE BEATSON: I do not think Miss Mountfield is pressing for indemnity costs.

MISS MOUNTFIELD: I am just drawing your Lordship's attention to the fact of our part 36 offer.

MR JUSTICE BEATSON: I had noticed that. This case has been hard fought at earlier stages, and no doubt that may have been just one aspect of it. I am grateful to both of you.

MISS MOUNTFIELD: My Lord, I should say that my clients are particularly grateful for having judgment so quickly.