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Russell Gray v Marlborough College grabbed the public attention recently, concerning the compulsory removal of a pupil from one of the UK's most well known public schools. As Judge Anthony Thompson QC recognised in giving judgment, schools such as Marlborough are only "public" schools by a quirk of the English language. In reality they are anything but public, being reserved for those able to pay fees of around £24,000 per school year.
This distinction between private (including "public") and public sector schools can have important consequences for the rights of pupils and their parents. Local education authorities and state schools have statutory obligations to provide for the education of pupils, the expulsion and exclusion of whom are governed by detailed statutory rules and procedures and are subject to public law. In contrast, the obligations of private schools towards pupils and their parents arise pursuant to a contract and are governed by private law.
In Gray the pupil's father alleged that Marlborough had acted in breach of contract by requiring him to remove his son. The relevant clause entitled the school to require the removal of a pupil if in the headmaster's judgment the pupil was 'unable or unwilling to profit from the educational opportunities offered', which Marlborough argued was evidenced by the pupil's appalling disciplinary record and his equally appalling record as to academic effort.
The most interesting aspect of the case for public lawyers will be Gray's argument that Marlborough was in breach of its implied contractual duty to act procedurally fairly because it had not held a disciplinary hearing before requiring his son's removal. He sought to establish that Marlborough's contractual obligation to act fairly mirrored the obligations which would have been incumbent on Marlborough had it been a state school. Marlborough accepted that it had to act fairly, but argued that it had done so. The relevant clause provided that the pupil could only be removed after consulting the parent, which it had done, although the father had chosen not to engage fully with the process. The court accepted this argument, emphasising that the question was whether the college had acted in breach of contract, not whether it had complied with public law duties that might apply to state schools.
Undoubtedly there will be circumstances in which a court will be more inclined to find that a private school is bound by implied contractual obligations of fairness that are more extensive than the procedural steps that were found to be sufficient in Marlborough's case. As obligations of procedural fairness will depend upon the circumstances, the decision leaves scope for implying stronger public law equivalent duties in other cases.
Another area in which the issue of public law equivalent duties is likely to arise is the protection of human rights. Local education authorities and governing bodies of state schools are public authorities for the purposes of the Human Rights Act 1998 and are therefore liable under that act for breach of their pupils' convention rights. In contrast, despite the fact that the provision of education can reasonably be described as a public service and that private schools are subject to an increasing degree of regulation, it is highly unlikely that a private school would be considered to be a hybrid public authority for the purposes of that act.
In The Queen (SB) v Headteacher and Governors of Denbigh High School (2005) the Court of Appeal held that a Muslim pupil was unlawfully excluded from a state school for failing to comply with school uniform policy, which did not permit her to wear a jilbab. The school's action was found to be unlawful because it approached the matter in the wrong way. The school ought to have started from the premise that SB had a right under Article 9 of the European Convention on Human Rights, so that the onus lay upon the school to justify interference with this right. Instead, it started from the premise that its uniform policy was there to be obeyed and if SB did not like it she could go to a different school.
A private school pupil in SB's position could not bring a claim directly against the school under the Human Rights Act. However, the European Court of Human Rights has consistently held that the responsibility of the state is engaged if violation of one of the rights and freedoms defined in the convention is the result of non-observance by that state of its obligation to secure those rights and freedoms in its domestic law to everyone in its jurisdiction: see Costello-Roberts v the UK, in which the court held that corporal punishment inflicted by the headmaster of an independent school could engage the responsibility of the state if it proved to be incompatible with Articles 3 and/or 8.
The private school pupil might, therefore, bring a claim under the Human Rights Act against the state for failing to secure her Article 9 rights and freedoms. However, it is far from clear that such a claim would succeed. Giving judgment in SB, Lord Justice Mummery held that it was "irrelevant to the engagement of Article 9 that the claimant could have changed to a school which accommodated her religious beliefs about dress. Education at the school or another school was not a contractual choice. There was a statutory duty to provide education to the pupils." In contrast, education at a private school is a contractual choice, and the particular school does not have a statutory duty to provide education. The Department for Education and Skills might therefore successfully argue that, in providing state schools which approach school uniform policy in the right way and do permit wearing a jilbab, it is discharging its obligation to secure the protection of Article 9 rights.
It is clearly undesirable that the extent to which a pupil's human rights are protected should depend upon whether parents choose to educate their children in the public or private sector and the courts are likely to strain to avoid this result. One way in which this might be achieved is by an approach to the implication of contractual terms, which assumes that private schools and parents intend the school to respect their pupils' convention rights. The extent to which the courts will be prepared to adopt this approach remains to be seen.
Gemma White is a barrister with Blackstone Chambers