One of Estelle Morris's last acts as education secretary was to intervene in the case of the two boys expelled from Glyn technology college for making death threats against a teacher.
But her attempt ended in embarrassment as she had no legal power to tell Surrey education authority to remove the boys from the Epsom school after an appeal panel reinstated them.
Ms Morris had been expected to seek new powers to overrule exclusion appeal panels. It looks as if her successor, Charles Clarke, has decided to rely instead on tough new rules on exclusion due to take effect in the New Year.
But these rules may not be enough to stop panels overturning heads'
decisions. Existing guidance already states that reinstatement is normally inappropriate where there has been actual or threatened violence. Yet that did not stop the panel in the Glyn case from reinstating the two 15-year-olds.
Stuart Turner, Glyn's headteacher, believes the school might have had a better chance - though no guarantee - of winning the appeal if its case had been presented by someone with legal training and detailed knowledge of circular 1099, which sets out when and how pupils can be expelled. As it was, no one was capable of challenging the interpretation of this circular put forward by the boys' representative, Gerry German, whose Communities Empowerment Network has helped thousands of excluded pupils.
Mr German managed, for example, to persuade the panel that Mr Turner was at fault in asking his head of Year 10 to meet the boys' parents, rather than interviewing them himself. Yet there seems to be no legal requirement for heads to carry out such interviews.
"My advice for heads is to get legal help if they can, and take a solicitor into the hearing," said Mr Turner, whose budget only stretched to an hour of a solicitor's time before the hearing.
But even without legal help there is a lot heads can do to reduce the chances of panels overturning decisions. Kathy James, head of professional advice at the National Association of Head Teachers, said that where a pattern of behaviour forms part of an exclusion case, it is important to keep a record of the incidents and how the school responded - for example, by involving local education authority behaviour support teams.
"It's always more difficult with 'one-offs' because you have to show that your decision has been reasonable and not taken in the heat of the moment," she added. "Panels need to be assured that heads have taken account not only of the behaviour and the pupil's situation but have also looked at the impact of that behaviour on the school."
Heads preparing for appeal hearings need to decide whether to identify pupils who have provided information about the case. John Sutton, former general secretary of the Secondary Heads Association, who has served on appeals panels, says named children may be bullied. Yet there have been cases where exclusions have been overturned because heads have refused to name sources, he said.
In a recent High Court judgment on three similar exclusion cases, Lord Justice Schiemann said he could see good reason for anonymous statements but "the injustice of using them may be even greater than the injustice of not using them". Schools would be well-advised not to rely on unnamed sources - and not to promise children anonymity.
Some schools use a tick-box system to check they have followed the right procedures. But according to Jack Rabinowicz, a solicitor and former chairman of the Education Law Association, others are so ill-prepared for appeals they do not know who is going to present their case, what witnesses they need or how they should handle the panel.
He has even known schools not to send anyone to the hearing and then to express surprise when they lose. He says heads must understand when they can and cannot exclude. They must anticipate the appeal panel's inevitable questions about why "this particular person was excluded for this particular offence at this particular time".
Pointing out that schools win 70 per cent of appeals, Mr Rabinowicz said:
"If schools are prepared and have witnesses organised to represent their case, then they will continue to be as successful, probably more successful, in ensuring excluded pupils do not come back."
THE NEW RULES
New guidance on exclusions in the New Year incorporate changes in the Education Act 2002. It will replace those parts of circular 1099 which set out when schools can exclude pupils and procedures they need to follow. The main changes are:
* Independent appeal panels will be expected to balance the interests of an excluded pupil against those of the rest of the school community. Panels will also have to be made up mainly of people with teaching experience.
* Crucially, appeal panels will not be able to reinstate pupils simply because of minor technical errors in the procedures leading up to exclusion.
* Panels will instead consider afresh whether the pupil should be reinstated. That means asking if the pupil was guilty of the misconduct in question, whether there were mitigating or aggravating factors and whether permanent exclusion was a reasonable response.
A total of 9,200 pupils were permanently excluded from primary, secondary and special schools in 2000-1, a rise of 11 per cent on the previous year but down more than a quarter on 1996-97's total of 12,700.
A total of 983 appeals were made by parents against permanent exclusions in 2000-1, up from 863 in the previous year. Nearly a third of these succeeded.