Human right to education a “weak right”?

7 July 2010 by

A recent Supreme Court decision has reopened a debate on whether it can properly be said that there is a human right to education under the European Convention on Human Rights.

We posted last week on the decision in the Norther Ireland matter of JR17, where The Supreme Court found that there was no breach of a pupil’s right to education where he was unlawfully suspended from school but was provided with work to do and home tutoring.

Today Aidan O’Neil QC, writing on the UK Supreme Court Blog, provides an interesting analysis of the European case-law on the right to education. He also points out that the right to education exists as a protocol (effectively an appendix) rather than in the main body of the European Convention as “no consensus could initially be reached about the recognition of these claims as being fundamental rights.

He says of the decision in JR17:

And yet in its decision of 23 June 2010 in the Northern Ireland appeal JR 17 [2010] UKSC 27, the UK Supreme Court refers to and relies upon Lord Bingham’s approach in Ali v. Lord Grey School as if it were writ in tablets of stone and appears to hold that an individual’s suspension from school cannot be “translated” into a denial of the Convention right to education if some (however inadequate) provision were made for his continuing education at home, though Baroness Hale clearly expresses some unease with this finding when she notes (at para 103):

“Left to myself, I might have thought that three months out of school in the run-up to important public examinations was indeed to deny him effective access to the educational facilities which the state provides for year 12 pupils. He should not have been relegated to eight hours’ tuition a week for six weeks. But I appreciate that others think and have thought that it may be enough to be “effective”.

On JR17, he concludes:

it remains the case that if the court is properly to take account of the relevant Strasbourg case law, the claim which continues to be made that the Convention right to education under Article 2 of Protocol 1 ECHR is a “weak” right requiring access only to general education system in the State, rather than requiring the State authorities to allow or facilitate an individual’s access to any specific institution or education provision is simply not sustainable in the light of the more recent Strasbourg jurisprudence set out above.

Finally, he refers to the upcoming judgment of the Supreme Court in the appeal from the Court of Appeal’s decision in (A v. Essex County Council [2008] EWCA Civ 364, [2008] ELR 321 which is due soon. He says:

It is to be hoped that in its judgment in this case the UK Supreme Court will take the opportunity of explaining quite how their analysis of Article 2 Protocol 1 as a “weak right” engaged only by “systemic violations” of general education provision is consistent with the greater emphasis seen in this more recent Strasbourg jurisprudence on the subjective rights of an individual not to be suspended or expelled from the educational establishment in which he is duly enrolled or otherwise to obtain effective access to educational provision of a sufficient standard or quality. If a policy decision is being taken by the UK courts to discourage just satisfaction damages claims against schools in respect of their expulsion/suspension decision then this should be stated plainly and unequivocally.

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