Kilroy, R (on the application of) v Parrs Wood High School

A statutory power to suspend a school governor is ineffective where the governing body fails to comply with an express statutory condition governing the suspension resolution. Where the legislation expressly states that a resolution shall not have effect unless specified requirements are met, the court need not undertake an open-ended inquiry into whether Parliament intended invalidity. Strict compliance is required. The common law requires an effective opportunity to make representations, but regulations should not be construed as conferring more extensive procedural rights unless their language requires it. A claim is not academic merely because the suspension period has expired where a declaration may clarify the validity of decisions taken during that period.

The claimant was elected as a parent governor of the defendant school. On 13 April 2011 the governing body resolved to suspend him for six months under the School Governance (Procedures) (England) Regulations 2003. He sought judicial review, contending that the resolution was invalid because only six clear days’ notice had been given, rather than the required seven, and alleging conflict of interest, inadequate opportunity to respond and breach of Article 6 of the European Convention on Human Rights.

Permission had been granted subject to the defendant’s contention that the claim was not brought promptly. By the time of the hearing, the suspension period had expired. The central issues were whether the resolution had legal effect and whether relief should nevertheless be granted.

1. Declaration granted. The resolution suspending the claimant on 13 April 2011 was of no effect.
2. Regulation 11(4) of the School Governance (Procedures) (England) Regulations 2003 required at least seven clear days’ notice of the meeting. The power to shorten that period for urgent business was expressly excluded by regulation 11(5) where suspension of a governor was to be considered.
3. Regulation 15(2) expressly provided that a suspension resolution should not have effect unless the matter appeared on the agenda for a meeting of which notice had been given in accordance with regulation 11(4). Read with regulation 15 as a whole, these provisions made strict compliance a condition precedent to the exercise of the power. The fact that the claimant suffered no additional prejudice, or that the objection might otherwise appear technical, was therefore immaterial.
4. The modern approach described in [2006] 1 AC 340 was accepted, but it was unnecessary to speculate about legislative intention where the statutory instrument itself specified the consequence of non-compliance. The reasoning in [1980] 1 WLR 182 and [2000] 1 WLR 354 supported the same conclusion.
5. The other procedural objections failed. The governors who had participated in the earlier investigation had not themselves imposed the suspension and were not disqualified from voting. The claimant had been given an effective opportunity to make representations, as required by regulation 15(3), even though he was not permitted to address matters regarded as irrelevant.
6. Article 6 did not apply because the decision did not determine private-law civil rights or obligations. The claim was not academic merely because the suspension had expired. There was a public interest in declaring whether the suspension had been valid, particularly given possible consequences for business conducted during the claimant’s exclusion.
7. The claim had been brought within the three-month period in CPR 54.5. The explanation for the delay was adequate, and no relevant prejudice beyond expiry of the suspension had been shown.