Ali (FC) (Respondent) v. Headteacher and Governors of Lord Grey School (Appellants)

Article 2 of the First Protocol guarantees fair and non-discriminatory effective access to the educational system which the state provides. It does not guarantee education of a particular kind or quality, attendance at a particular institution, or compliance with every requirement of domestic education law.

The court must examine the educational system as a whole. A pupil is not denied the Convention right where suitable and adequate alternative education remains genuinely available, even if exclusion from a particular school was unlawful. A domestic public law duty cannot itself be converted into a damages claim under the Human Rights Act 1998. The court must first establish that a Convention right was infringed and only then identify the responsible public authority.

The respondent pupil was kept away from a maintained school while criminal proceedings concerning a classroom fire were pending. The prosecution was discontinued, but the pupil's family did not attend a proposed reintegration meeting. The school subsequently treated him as permanently excluded. Work at home and tuition through a pupil referral unit had been offered, but the offers were not taken up. He eventually entered another school.

Stanley Burnton J dismissed the claim for damages under article 2 of the First Protocol: [2003] EWHC 1533 (QB); [2003] 4 All ER 1317. The Court of Appeal allowed the pupil's appeal and remitted the claim for assessment of damages: [2004] EWCA Civ 382; [2004] QB 1231. The central issue before the House was whether the school had denied the pupil his Convention right to education between 7 June 2001 and 20 January 2002.

Appeal allowed unanimously; the claim was dismissed. Lords Bingham, Nicholls, Hoffmann and Scott held that article 2 of the First Protocol had not been infringed. Baroness Hale agreed that the appeal should be allowed, but considered that a breach had occurred and that damages were unnecessary.

1. Content of the right. Lord Bingham and Lord Hoffmann, with Lord Nicholls and Lord Scott agreeing, held that article 2 guarantees fair and non-discriminatory effective access to the educational system existing within the state. It does not confer a right to education of a particular kind or quality, or at a particular institution. Nor does it guarantee compliance with domestic education law. The approach in Belgian Linguistic Case (No 2) (1968) 1 EHRR 252 was applied.
2. Effective access. The practical question was whether the state authorities had denied the pupil effective access to the educational facilities which the national system provided. The system had to be considered as a whole. Work had been offered by the school, the pupil had been referred to a pupil referral unit, its offer of tuition had been declined, and the family had failed to attend the reintegration meeting or promptly decide what education they wanted. Suitable alternative education therefore remained available. The school had neither denied nor caused the loss of access.
3. Domestic illegality and Convention liability. The majority proceeded on the accepted assumption that the exclusion contravened domestic law, although Lord Scott considered it lawful. Domestic illegality did not establish a Convention violation. Lord Hoffmann held that the correct sequence was first to decide whether the Convention right had been denied and only then to identify any public authority responsible under section 6 of the Human Rights Act 1998. A statutory duty enforceable in public law could not be promoted into a damages claim without an underlying Convention breach.
4. Precautionary exclusion. Lord Bingham and Lord Hoffmann expressed concern that sections 64–68 of the School Standards and Framework Act 1998 were poorly adapted to precautionary exclusion pending criminal proceedings. Lord Hoffmann, in reasoning agreed by Lord Nicholls and Lord Scott, considered that the disciplinary code might not govern a reasonable, non-disciplinary management decision of that kind. The point was unnecessary to the disposition and was not formally decided in the leading speeches.
5. Separate opinion. Baroness Hale considered that the school's precipitate permanent exclusion following the missed reintegration meeting denied the education supplied by the established system. The pupil referral unit was not an adequate answer to that wrongful exclusion. She nevertheless concluded that damages were unnecessary for just satisfaction under section 8 of the Human Rights Act 1998. A declaration would have been appropriate, but none had been claimed.

The decision of Stanley Burnton J was restored and the damages claim dismissed. Written submissions on costs were invited.

1. House of Lords: The school’s appeal was allowed unanimously in [2006] UKHL 14 . A majority of four held that article 2 of the First Protocol had not been infringed. The first-instance decision was restored and the claim dismissed.
2. Court of Appeal: In [2004] EWCA Civ 382 ; [2004] QB 1231 , the court allowed the pupil’s appeal concerning the period from 7 June 2001 to 20 January 2002. It held that the prolonged unlawful exclusion denied his right to education and remitted the claim for assessment of damages.
3. High Court: Stanley Burnton J held in [2003] EWHC 1533 (QB); [2003] 4 All ER 1317 that the exclusion contravened domestic requirements but did not violate article 2 because suitable alternative education remained available. The damages claim was dismissed.