R (McNally) v Secretary of State for Education and Employment

The Secretary of State may intervene under the Education Act 1996 only where the statutory conditions for intervention are established on the evidence. A statutory entitlement to attend disciplinary deliberations is not an obligation to attend. The decision-maker must first determine whether the person sought to exercise that entitlement and was prevented from doing so.

Statutory rights of attendance are subject to natural justice. Where an official has acted in substance as a prosecutor, fairness may prevent private participation in deciding whether the alleged misconduct occurred. The requirements depend on the nature of the advice and the circumstances of the case.

The appellant, a teacher, successfully challenged a disciplinary panel’s finding that allegations of serious misconduct were not proved. The Secretary of State later directed a rehearing under sections 496 and 497 of the Education Act 1996, concluding that the panel had unlawfully excluded the Chief Education Officer from its private deliberations.

Langley J dismissed the appellant’s judicial review claim. The appeal concerned whether the evidence established that the Chief Education Officer had sought to exercise his statutory entitlement to attend, whether the panel had acted unreasonably or breached a statutory duty, and whether private participation would have been compatible with natural justice.

1. Appeal allowed. The Secretary of State’s decision of 1 March 1999 was quashed and the disciplinary panel’s decision of 28 June 1996 restored. The Secretary of State was ordered to pay the costs below and in the Court of Appeal.
2. The disciplinary proceedings were proceedings relating to a determination under paragraph 8 of Schedule 3 to the Education Reform Act 1988. The Chief Education Officer therefore had a statutory entitlement to attend for the purpose of giving advice, but the entitlement did not impose an obligation to attend.
3. The Secretary of State could not properly conclude that the governing body had prevented the Chief Education Officer from exercising his entitlement. The evidence left unresolved whether he had indicated that he wished to remain. Without proof that the entitlement had been asserted and denied, there was no proper basis for intervention under sections 496 or 497 of the Education Act 1996.
4. Per Kennedy LJ and Dyson LJ in their respective reasoning, the statutory entitlement did not create an unfettered right to participate in private deliberations. Natural justice could require advice concerning whether the alleged misconduct occurred to be given in the employee’s presence, particularly where the official had assumed a quasi-prosecutorial role. The Master of the Rolls regarded such private participation as manifestly contrary to natural justice on these facts, but considered that the issue did not arise for decision because the factual foundation for intervention was absent.
5. The court declined to decide in detail whether a rehearing would have been an appropriate discretionary remedy. It also considered that the Secretary of State had not addressed convincingly whether any advice could realistically have changed the panel’s conclusion.

• Court of Appeal: Appeal from Langley J allowed. The order dismissing the judicial review claim was quashed, the Secretary of State’s decision was quashed, and the disciplinary panel’s decision was restored.
• High Court: Langley J dismissed the appellant’s application for judicial review and refused permission to appeal.