Where the law is silent, as it is in this case, one falls back on principles of natural justice and common sense applied in the light of circumstances.
If the pupil has no parents or guardians willing to appear, one has to ask who requested the hearing. If the parents appealed but want the pupil to do the talking, the chairman of the meeting must determine what is or is not to be permitted to ensure fairness. Unless there are good reasons, the meeting should not proceed without the parents present.
It is a principle of natural justice that an accused person should be able to test the evidence against him and, in the case of exclusion, to ask "relevant" questions of the head. The chairman must ensure that all questions are directly related to the decision to exclude and that everyone conducts themselves properly.
In principle, therefore, there is no reason why the pupil should not be allowed to speak, but he or she will need the guidance and support of the chairman and an immediate check on any improper behaviour.
Who should present the governing body's case at an exclusion appeal hearing? It has been suggested that the head is unsuitable because heshe was not present when the governors made their decision.
This question demonstrates how far the business of exclusions has become a sub-section of this country's adversarial judicial system and how far the best interests of pupils have been marginalised.
Governing bodies are rightly concerned about their position, particularly when, as is now common, the excluded pupil is represented by a solicitor or even a barrister. They cannot afford similar advocacy and local authorities, from whom the governors of their schools are entitled to expect support, usually prefer not to become involved.
The governors, therefore, have to rely on their own resources to defend their decision. They may well feel that the only person who is fully cognisant of the facts and capable of presenting the case effectively is the head. As the governors confirmed the exclusion, there is no difference of opinion between them and the head and thus no problem about herhim representing them.
That said, I do not believe it is the best solution. The governors should be prepared to defend their decision. The school staff, head and parents are likely to have more confidence in a governing body that is prepared to stand up for itself and for them.
The disciplinary committee of our governing body decided to convert a permanent exclusion to a fixed term, but said they would exclude the pupil permanently if he failed to meet their conditions. Can they act in this way?
No. Only the head has the right to exclude. The governors have the right and the duty to review the head's decisions. In this case, the committee should either have upheld the head's decision or overturned it. They could have made a recommendation for a fixed-term exclusion, but the head would decide. They do not have the power to carry out a subsequent permanent exclusion and one must presume that had they done so, it would have been declared invalid by the local authority or by an appeal panel.