We use cookies to enhance your browsing experience. If you continue to use our website we will take this to mean that you agree to our use of cookies. If you want to find out more, please view our cookie policy. Accept and Hide [x]
A short examination of whether the policy endorsed by the Labour Party as part of its pledge to support social justice can be justified in law or is a flagrant contravention of human rights. This article was first published in Counsel magazine.
It didn’t take long for some rather well-known lawyers to point out there may be a flaw in this plan. Lord Lester QC of Herne Hill in a letter to the Times that weekend pithily explained that as long ago as 1982, he and David Pannick had advised the school governing bodies that ‘Labour’s plan would violate the European Convention on Human Rights and its first protocol. Our opinion was published. No one disputed our advice and the policy was dropped.’ He expressed surprise about the plan being reignited and continued to be of the view that the plan would violate the European Convention on Human Rights (‘the Convention’).
A (Appellant) v Essex County Council & National Autistic Society (Intervener) [2010] UKSC 33
Supreme Court (Lord Phillips, Lady Hale, Lord Brown, Lord Kerr, Lord Clarke) July 14 2010
The right to education under Article 2 Protocol 1 of the Convention was not breached by the delay in catering for the special educational needs of a child. Convention rights must be intepreted pragmatically; it is not right to equate a failure to provide the educational facilities required by domestic law with a denial of access to education.
This was an appeal against a decision ([2008] EWCA Civ 364, [2008] H.R.L.R. 31) upholding the dismissal by summary judgment of the appellant’s claim that the respondent local authority had breached his right to education under A1P1.
What is the scope of a school’s duty to accommodate the religion of a parent whose children attend its schools? From September 2020, it will become mandatory for “relationship education” which includes lessons about LGBT relationships to be taught in English primary schools under the Children and Social Work Act 2017. According to a petition by Muslim parents in Birmingham, however, such teaching contradicts the Islamic faith, thereby violating their freedom of religion.
The ongoing protests raise a host of questions about the boundaries between religious rights and the obligation of the state to promote social inclusion through universal and non-discriminatory education.
In this article, it will be argued that the rigorous approach taken by the Canadian courts to this issue should serve as a template for possible future consideration by the English courts and also that uneven standards in the statutory guidance for maintained and independent (including faith) schools undermine the equality duty in the UK.
In the matter of an application by ‘JR17’ for Judicial Review (Northern Ireland) [2010] UKSC 27
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 – read judgment
A pupil was suspended from school after a complaint from a female pupil about the pupil’s alleged misconduct in school. His school fell within the area of the North Eastern Education and Library Board. The Board had prepared a Scheme governing the suspension and expulsion of pupils. It had done so pursuant to the requirement of the Education and Libraries (NI) Order 1986. The principal purported to suspend the pupil in accordance with the Scheme but in fact failed to comply with its requirements. The pupil brought proceedings for judicial review, claiming that the suspension was unlawful and breached his right to education pursuant to Article 2 of the First Protocol of the European Convention on Human Rights, which the Human Rights Act 1998 protects. The Article provides:
No person shall be denied the right to education…
The Court of Appeal made a finding that, although the Scheme had not been complied with, the principal had lawfully exercised a common law power to suspend the appellant.The Supreme Court found that there was no such common law power but that the pupil’s right to education had not been breached by the suspension. During his suspension, work was provided to the boy to do at home and home tuition was arranged.
This interesting decision shows the intersection between the right to education and the right to freedom of religion under the ECHR. These are fast evolving rights, particularly Article 9, whose “freedom” stipulation is becoming more important than the “religion” right. Article 9 is more and more often taken to cover the right not to cleave to any religion at all.
In this case the arguments were focussed on the right to education under Article 2 Protocol 1 of the Convention, taken together with Article 9. The main issue before the Supreme Court can be briefly stated. Did religious education and collective worship provided in a school in Northern Ireland breach the rights of a child, and the child’s parents, under Article 2 of the First Protocol (“A2P1”) to the European Convention on Human Rights (“ECHR”) read with Article 9 ECHR?
What is particularly interesting and unusual about this judgment is that it emerges from Northern Ireland with its own history of sectarianism and religious division. The very basis from which the case sprang goes back well over a hundred years; since Partition, the Church of Ireland, the Presbyterian Church in Ireland, and the Methodist Church in Ireland are under the control of what is now the Education Authority, and that is where we start our story, details of which can be found in the Supreme Court’s press summary.
Before we get going on this story, let’s highlight this sharp obvservation about the NI education system in paragraph 88 :
there is no commitment in the core syllabus to objectivity or to the development of critical thought. To teach pupils to accept a set of beliefs without critical analysis amounts to evangelism, proselytising, and indoctrination.
According to Strasbourg Jurisprudence, the State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions. That is the limit that must not be exceeded [see Kjedsen v Denmark (A/23) (1979–80) 1 EHRR711 at [53]].
In this instance, the Supreme Court did not make a separate and distinct finding of indoctrination. It was unnecessary to do so because conveying information and knowledge in a manner which is not objective, critical, and pluralistic manner amounts to indoctrination.
In ALR and others v Chancellor of the Exchequer [2025] EWHC 1467 (Admin), the High Court has dismissed a challenge against the government’s manifesto policy of adding VAT to private school fees. The claimants were a group of students, parents, and schools. Some of the students required specific schooling because of (inter alia) special educational needs and religious convictions; all claimants sought a declaration that the VAT addition was incompatible with the European Convention of Human Rights. Specifically, they argued that imposing VAT was incompatible with Article 2 Protocol 1 (right to education) and 14 (protection from discrimination).
This dismissal of the judicial review challenge represents a significant ruling on the interplay between fiscal policy, human rights law and the allocation of resources for education.
Hunter, Re Judicial Review, [2016] CSOH 71 – read judgment.
The Outer House of the Court of Session has held that the restriction of student loans to individuals under 55 years old in Scotland is unjustifiably discriminatory. Additionally, the Scottish Ministers breached their public sector equality duty under the Equality Act 2010 by failing to assess the discriminatory effects that the regulation imposing this age restriction would have.
by Fraser Simpson
Background
The petitioner, Elizabeth Hunter, applied for a student loan from the Students Awards Agency for Scotland (“SAAS”) in order to allow her to pursue a course in Hospitality Management. At the time of applying for this loan, in 2014, the petitioner was aged 55. In line with Regulation 3(2)(b)(ii), Education (Student Loans) (Scotland) Regulations 2007, she was refused the loan. Regulation 3(2)(b)(ii) limits eligibility for student loans to individuals under 55.
The petitioner claimed that this decision, and the relevant regulation, unlawfully discriminated against her in violation of Article 14, ECHR. Additionally, she also claimed that the Scottish Ministers had failed to consider the potentially discriminatory effect that these regulations could have and, therefore, failed to satisfy their public sector equality duty (“PSED”) imposed by section 149, Equality Act 2010.
Article 14, which protects against discrimination on the basis of age, amongst other characteristics, is not a “free-standing” right. Instead, it is only applicable when the facts of the case fall within the scope of one of the Convention’s substantive provisions. Accordingly, the first issue for Lady Scott was to assess whether one of the substantive Convention rights was engaged in this situation. The petitioner submitted that either Article 1, Protocol 1, which includes the right to property and possessions, or, alternatively, Article 2, Protocol 1, which protects the right to education, was of relevance. Continue reading →
R (Tigere) v. Secretary of State for Business [2015] UKSC 57, 29 July 2015 read judgment here
Ms Tigere is 20. She arrived in the UK from Zambia when she was 6. She did very well at school. In 2013, she applied for a student loan to fund a university place.
The current English system does not allow her to apply for a loan, because of her immigration status. In particular, she did not
(1) have Indefinite Leave to Remain (ILR) here (and so did not comply with the “settlement rule”), and
(2) have three years of “lawful” ordinary residence here (so did not comply with “the residence rule”).
In a very close run thing, the Supreme Court decided that the application of the settlement rule was incompatible with her Convention rights, under Article 2 of the First Protocol and/or Article 14. By contrast, the residence rule was not incompatible with her rights.
The result was 3-2, and Lord Hughes (of the majority) disagreed with important elements of the reasoning of Lady Hale and Lord Kerr who found for Ms Tigere.
The case is a perfect example of the difficulties of deciding human rights cases in the context of social benefits, as we shall see.
Independent Schools Council and the Charity Commission for England and Wales (Defendant), National Council for Voluntary Organisations and the Education Review Group (Interveners);Attorney General v Charity Commissioner for England and Wales (Referrer) and the Independent Schools Council (Respondents) [2011] UKUT 421 (TCC) – read judgment
It is not for the Charity Commission or the courts to impose on trustees of a school their own idea of what is for the “public benefit” so as to qualify for charitable status, the Upper Tribunal has ruled. In a detailed assessment of the law on charitable status both before and after the Charities Act, the Tribunal has indicated that the Act has not introduced any legal requirement to act in a way prescribed by the Charity Commission or anyone else. Provided they run their charity to ensure that the poor are able to benefit in a way that is more than minimal or tokenistic, they should be free to make their own considered assessment of what is for the “public benefit” in the circumstances pertaining to their own institution.
The right to education played no role in these proceedings, which turned on the meaning of charitable status in the strict sense. But this case nevertheless has very real implications for the regulation of education in this country, mired as it is in the bitter controversy over state versus private education. This is still a weeping sore for which there is no salve. But the Tribunal’s firm steer towards autonomy at least puts paid to the efforts of the past government to micromanage schools behind the smokescreen of charity law. Continue reading →
R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills [2014] EWCA Civ 1216 (31 July 2014) – read judgment
The United Kingdom was not in breach of the human rights of those individuals ineligible for student loans because they did not have indefinite leave to remain in the country. The relevant legislation limits eligibility for student loans to those who are “settled” in the United Kingdom (within the meaning of the Immigration Act 1971 ) and who have been ordinarily resident in the UK for three years. According to the Court of Appeal, requiring the Secretary of State to link criteria for educational eligibility to changes in immigration rules would “enmesh” him into immigration policy:
His picking and choosing candidates for settlement as eligible for student loans, while not … unconstitutional, would be a fragile and arbitrary basis for policy in an area where clarity and certainty are required.
This appeal turned on issues in relation to the right to education under Article 2 of the first protocol (A2P1) and the prohibition of discriminatory treatment under Article 14 of the European Convention on Human Rights.
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.”
Perhaps unsurprisingly, the ECtHR has upheld the conclusion of the HoL (Baroness Hale dissenting in part) that no violation of the A2P1 right to education occurred. However, in certain significant respects the reasoning of the ECtHR diverges from that of the HoL. In particular, it provides important guidance on: (i) the circumstances in which school exclusions are compatible with A2P1 rights; and (ii) the content of the right to education.
G (Children), Re [2012] EWCA Civ 1233 – read judgment
If you received this article by email, it will have been attributed to Adam Wagner. It is in fact by Karwan Eskerie – apologies
What is happiness? If you thought this most philosophical inquiry was beyond the remit of the judicial system then you should read this case.
In Re G (Children), the estranged parents of five children disagreed over their education. Both parents belonged to the Chassidic or Chareidi community of ultra orthodox Jews. However, whilst the father wanted the children to attend ultra-orthodox schools which were unisex and where all the children complied with strict Chareidi practices, the mother preferred coeducational ‘Modern Orthodox’ schools where boys did not wear religious clothing and peyos (long hair at the sides), and children came from more liberal homes where for instance, television was taken for granted.
R (on the application of LG) (Appellant) v Independent Appeal Panel for Tom Hood School (Respondent) & Secretary of State for the Department for Children, Schools and Families (Interested Party) [2010] EWCA Civ 142
CA (Civ Div) (Rix LJ, Wilson LJ, Sir Scott Baker) February 26 2010
An exclusion hearing by a school does not engage the pupil’s Article 6 of the Convention since there is no “civil right” to education recognized as such either by the Convention or by domestic law.
Summary
The appellant pupil (VG) had been involved in a fight at the school. He was accused of having a knife, which he denied. The school permanently excluded VG and he appealed. The panel, in accordance with the Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002 reg.7A, found on the balance of probabilities that he had carried a knife, and upheld his exclusion. VG appealed against a decision ((2009) EWHC 369 (Admin), (2009) BLGR 691) to refuse his application for judicial review of the decision of the respondent panel to uphold a decision to permanently exclude him from a school. He argued that his right to a fair hearing under Article 6 was engaged, either on the basis that the panel had determined his civil right not to be excluded from the school without good reason, or on the basis that the panel had determined a criminal charge against him, and that right had been infringed by the decision to exclude him having been based on allegations established against him on the balance of probabilities rather than on the criminal standard of proof. He also contended that regulation 7A(c), although purportedly made pursuant to the Education Act 2002 s.52, was ultra vires in that a rule about standard of proof was one of evidence and not procedure as permitted by s.52(3)(d).
Updated, 20 Feb 2012 | Following the news recently it would seem that the UK is convulsed by a raging battle between religious observers and, in the words of Baroness Warsi, militant secularists. On the same day, the High Court ruled that Christian prayers held before a council meeting were unlawful, and the Court of Appeal upheld the decision of the High Court that two Christian hotel owners had discriminated against gay clients by not offering them a double room.
Today’s spat, according to The Guardian, involves a letter sent to the Education Secretary Michael Gove by the Trade Union Congress leader “expressing alarm that a booklet containing “homophobic material” had been distributed by a US preacher after talks to pupils at Roman Catholic schools across the Lancashire region in 2010.” From the quotes provided in The Observer, the book sounds pretty offensive:
This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.
Our privacy policy can be found on our ‘subscribe’ page or by clicking here.
G (Children), Re [2012] EWCA Civ 1233 – 
Recent comments