The exclusion of pupils from school: The need for reform

Abstract

The impact of an exclusion upon pupils and parents suggests that the law should ensure that their interests are protected adequately. Unfortunately, this is not the case. The Education Act (No. 2) 1986, the chief source of statutory law on exclusions, appears to be primarily concerned with the interests of those who administer schools. In general, it does not provide a satisfactory degree of protection for the interests of pupils and parents. In particular, children do not have an independent right to participate in decisions, and parents do not have the right to participate in the initial decision to exclude. The common law of judicial review should be an alternative source of protection. There have been very few cases on exclusions, but it does appear that judicial review is available. However, the grounds for challenging an exclusion remain uncertain. It should be possible to make a substantive challenge but, in practice, a challenge on the basis of procedural error is more likely to be successful. It is fairly clear that the rules of natural justice apply to school exclusions. The inadequacy of the statute and the uncertainty of the common law suggest that it is time to augment the statutory scheme by conferring the right to participate on pupils, to the extent of their capacity. Furthermore, the participation rights of both pupils and parents need to be clarified and strengthened.