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No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and teaching, the state shall respect the rights of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.
Although this Article is incorporated into national law by the Human Rights Act 1998, the United Kingdom has filed a reservation in respect of the Protocol 1 Article 2 which applies to domestic interpretation of the right as well as to this country’s obligations under the Convention at international level. The reservation accepts the principle of education in conformity with parent’s religious and philosophical convictions “only so far as it is compatible with the provision of efficient instruction and training, and the avoidance of unreasonable public expenditure.
The leading case on Protocol 1 Article 2 is Belgian Linguistic (1968) 1 EHRR 252 in which the European Court of Human Rights stated that the rights protected in that Article are:
a right to access to educational institutions existing at a given time;
a right to an effective education;
a right to official recognition of the studies a student has successfully completed;
However, this right does not impose on States an obligation to establish at their own expense, or to subsidise, education of any particular type or at any particular level. Nor does it entail a right for aliens to remain in the State of entry to take advantage of the local education system: (1) Henry Holub (2) Eva Holub v Secretary of State for the Home Department [2001] 1 WLR 1359. Nor does this article impede the power of local education authorities to refuse grants for certain vocational courses (R v Birmingham City Council, ex parte Jacob Youngson (2001) LGR 218).
This right has been invoked by pupils who have been excluded from schools for disruptive behaviour, however these kinds of challenges rarely succeed. Provided schools reserve exclusion for serious cases in which less intrusive measures are inadequate, restrict the removal to as short a period as possible and make sensible efforts to provide alternative educational support, they will not be found by the domestic courts or Strasbourg to be in breach of A2P1: see Ali v United Kingdom (2011) ECHR 17 and Joe Barrett’s discussion of the case here.
It is arguable that parents may claim a right under this Article to start and run a private school: see European Commission of Human Rights decision in Ingrid Jordebo Foundation of Christian Schools Ingrid Jordebo v Sweden (1987) 51 DR 125 and the State may not use its regulatory power to make it impossible to establish private schools.
Finally, it is important to note that the “right” to an education is not a “civil right” to which the fair trial guarantees of Article 6 may apply: see R v Richmond-Upon-Thames London Borough Council ex parte JC (A Child) (2001) LGR 146.
The European Court of Human Rights has found that A Polish boy who refused to attend religious instruction classes for reasons of personal conviction had been discriminated against human rights because of a policy of reflecting that non-attendance in school reports.
The applicant Mateus Grzelak had been brought up in a non-religious tradition by his parents who were also applicants. Mateus began his schooling at the age of seven, and in conformity with his parents’ wishes, he did not attend religious instruction. Doctrinal classes were scheduled in the middle of the school day, between various compulsory courses.
Hurley and Moore v Secretary of State for Business, Innovation and Skills [2012] EWHC 201- read judgment
This judgment, the latest in an expanding list of decisions on challenges to the Coalition government’s spending cuts, is an interesting example of judicial restraint and deference to the government on issues of macro-policy, at a time when the extent of judicial intervention into political decision-making is the subject of much debate in the legal profession and academia, thanks to Lord Sumption’s FA Mann Lecture on the subject late last year (see our post) and its recent rebuttal by Sir Stephen Sedley (discussed here).
The High Court (Elias LJ and King J) dismissed an application by two sixth form students for a quashing order against the regulations implementing the Government’s decision to raise the statutory cap on University tuition fees to £6,000 per year generally and £9,000 per year for qualifying courses. It did, however, grant a declaration that in reaching that decision, the Secretary of State for Business, Innovation and Skills had failed fully to comply with his public sector equality duties. Continue reading →
Mr Justice Lewis has refused permission to bring a judicial review in what is arguably the most comprehensive and wide-reaching challenge brought to date to the legality of the lockdown Regulations and the decision to stop providing education on school premises (save for the children of key workers) in R (Dolan and Ors) v Secretary of State for Health and Social Care and Secretary of State for Education[2020] EWHC 1786 (Admin).
This article is a condensed version of a piece in the Edinburgh Law Review, Jan 2021 Issue.
Questions around government responsibility for food systems, churning away during the Brexit debates, long ignored, sometimes derided, are meeting stark realities in the coronavirus pandemic. This week we are back to free school meals (FSM).
This summer when the government proposed that it would be stopping the provision of free school meals in England over the summer holidays, it was met with public outcry. When the government U-turned on the decision it was attributed to a successful online campaign led by footballer Marcus Rashford. On 10 October he was awarded an MBE in the Queen’s Birthday Honours.
In the background human rights lawyers Jamie Burton of Doughty Street Chambers and Dan Rosenberg of Simpson Millar acting on behalf of the Good Law Project and Sustain had issued a judicial review pre-action protocol to the Secretary of State for Education, Gavin Williamson MP (hereinafter SSE).
When the government reversed the decision on free school meals, the legal proceedings were halted and as a result potentially significant legal precedent was lost. This comment sets out the human rights case against the government in respect of not providing free school meals in England that may be of renewed and wider relevance in the future. (Education is a devolved matter and therefore the UK government powers in this area do not extend to Scotland and Wales.)
It is also noted that yesterday an Opposition motion in the House of Commons to extend provision of Free School Meals to Easter 2021 was voted down by 322-261. Marcus Rashford has issued a tweet in response. The issue has not gone away.
Luton Borough Council & Nottingham City Council & Ors, R (on the application of) v Secretary of State for Education [2011] EWHC 217 (Admin) (11 February 2011) – Read judgment
The high court has ruled that the coalition government’s cancellation of Labour’s school building program in 6 areas was unlawful. The full background to the ruling can be found here.
Michael Gove, the education secretary, announced in July that the £55bn scheme was to be reduced significantly, prompting five councils to challenge the decision by way of judicial review.
On Monday, the Home Secretary published a white paper outlining her proposals for reforming the police. The proposed changes include the establishment of a National Police Service to oversee policing of organised crime, counter-terrorism and trafficking across England and Wales. This body will also appoint a Senior National Coordinator for public order policing, who will manage police responses to large scale national protests, such as the riots following the Southport stabbings in July 2024.
The Home Secretary also seeks to invest in new policing technologies, establishing a National Centre for AI policing and expanding the use of Live Facial Recognition vans to locate offenders. Meanwhile, on Tuesday and Wednesday this week, the High Court heard a judicial review challenge to the Met Police’s September 2024 Live Facial Recognition policy, on the basis that it violated Articles 8, 10 and 11 ECHR (R (Thompson and Carlo) v Commissioner of Police for the Metropolis).
Finally, the white paper also suggests that the policing of non crime hate incidents is to be overhauled, with the aim of ‘reducing unnecessary recording burdens’.
Government confirms 20-25% cuts to prison education delivery hours
In November 2025, the Justice Committee released a report expressing its alarm regarding reports of cuts of up to 50% to prison education budgets. It recommended that the Government clarify the scale of, and rationale for, planned cuts to prison education budgets, and set out how it plans to ensure core education provision continues.
The government’s response was published this week, stating that whilst the budget had increased in recent years, these increases had been outpaced by rising delivery costs. As such, the government has implemented a national reduction of prison education delivery hours of around 20-25%, with some prisons experiencing more significant reductions.
(1)The British Humanist Association (2) Jeremy Rodell (a member of the Richmond Inclusive Schools Campaign) v London Borough of Richmond upon Thames (2)The Roman Catholic Diocese of Westminster (3) The Secretary of State for Education [2012] EWHC 3622 (Admin) – read judgment
This was an application for judicial review of decisions of the defendant Council to approve proposals put forward by the Roman Catholic Diocese of Westminster to establish a voluntary aided secondary school designated by the Secretary of State as a school having a religious character as a school for Roman Catholics and a similarly designated primary school.
The British Humanist Association took the claim on behalf of non-religious people. The second claimant was an association of local residents which campaigns to seek to ensure that any new state schools which open in the Council’s area operate open admissions policies. The claimants’ concern was that the Council’s decisions to allow the opening of the new Catholic primary and secondary schools would mean that new schools funded by the state will operate admissions policies focused predominantly on children who are Catholic, rather than being more widely available to children in the Council’s area. Continue reading →
Theresa May had appeared to have bounced back from the Article 50 Supreme Court case with the relatively smooth passing of the Brexit Bill through the House of Commons.
But her woes were clearly not at an end this week when she suffered defeat at the hands of the House of Lords. The peers voted 358 to 256 in favour of amending the Brexit Bill in order to guarantee the rights of EU citizens already living in the UK – the amendment drawing support not only from Labour, Liberal, and Crossbench peers, but also 7 Conservative peers.
What’s the issue?
There are currently over 3 million EU citizens living in the UK. While we are part of the EU they are allowed to move and work freely in whichever Member State area they choose.
Vejdeland and Others v Sweden (Application no. 1813/07) – Read judgment
“Will both teacher and pupils simply become the next victims of the tyranny of tolerance, heretics, whose dissent from state-imposed orthodoxy must be crushed at all costs?”, asked Cardinal O’Brien in his controversial Telegraph article on gay-marriage. He was suggesting that changing the law to allow gay marriage would affect education as it would preclude a teacher from telling pupils that marriage can only mean a heterosexual union. He later insinuated that the change might lead to students being given material such as an “explicit manual of homosexual advocacy entitled The Little Black Book: Queer in the 21st Century.”
A few weeks before that article was published, the European Court of Human Rights handed down its first ever ruling on anti-gay speech, in a Swedish case where a group of young men, seemingly motivated by a similar abhorrence to that expressed by Cardinal O’Brien for the “tyranny of tolerance” in education, put a hundred or so leaflets in or on the students’ lockers at a secondary school. The leaflets read:
Denry Okpor v London Borough of Lewisham, Bromley County Court 25 October 2011 [Transcript not publicly available]
Adam Wagner represented Mr Okpor in this case. He is not the author of this post.
This was a rolled up permission to appeal and appeal hearing (on which more later) for appeal to a Circuit Judge from a possession order made by a District Judge at Bromley. At issue was whether the District Judge was wrong to reject a) a proportionality defence and b) a gateway B public law defence arising from Lewisham’s failure to follow its own policy. It is interesting as an example of proportionality/gateway B defences in action in the County Court, but also somewhat frustrating, for reasons which will become clear.
Mr Okpor was the secure tenant of Lewisham. At the age of 15 he had been taken into care by Lewisham following abuse. He left care aged 18 in 2006. In 2009, aged 21, he was given the secure tenancy. Mr O went into full time higher education later that year and has remained in full time higher education. This meant that the relevant Children Act 1989 provisions for care leavers continued to apply and would do until he was 24, if still in full time higher education. Mr O was receiving support from the Lewisham Leaving Care Team.
This was a busy week. It saw the beginning of a nationwide vaccine roll-out and protracted negotiations in Brussels to stave off a no-deal Brexit (which remains a ‘high probability’ according to the Prime Minister). It also saw the Government announce the appointment of retired Court of Appeal judge Sir Peter Gross to lead the review of the application of the Human Rights Act 1998 in the UK Courts. This review will look at the relationship between UK courts and the European Court of Human Rights in Strasbourg; the impact of the Human Rights Act on the relationship between judiciary, executive, and Parliament; and the application of the Human Rights Act to actions taken outside the UK.
Moving to Brexit, the House of Lords voted on Monday to approve a Labour amendment to the Government’s Trade Bill. The amendment requires that Ministers undertake a human rights impact assessment for any trade deal, and must revoke an agreement in any case where potential genocide is found in a UK High Court ruling. The measure has been proposed in response to allegations that China is committing genocide against the Uighur Muslims in Xinjiang province.
The Interim Executive Board of X School v Chief Inspector of Education, Children’s Services and Skills [2016] EWHC 2813 (Admin) – read judgment
The principal issue in this application for judicial review was whether a mixed school unlawfully discriminated against its male and/or female pupils by making “parallel arrangements” for their education in the same building or by applying a regime of “complete segregation” for all lessons, breaks, school clubs and trips. There was no evidence that either girls or boys were treated unequally in terms of the quality of the education they received (in the sense of one sex receiving a lower quality of education than the other).
This case raises a point of general public importance as to the true construction and application of key provisions in the 2010 Equality Act. As the judge observed, it was a point which had not arisen before, and so should be answered on “a first principles basis, applying standard interpretative tools to the language, policy and objects of the statute.” Continue reading →
But is mediation a knight in shining armour or a trendy buzzword used as an excuse to keep people out of the expensive court system? The debate is often heard but rarely goes beyond anecdotal evidence. Lord Neuberger, our highly active Master of the Rolls, has given an excellent speech on the topic, entitled Has mediation had its day?, which presents the evidence on both sides, including references to a number of research studies.
R (Salman Butt) v Secretary of State for the Home Department [2017] EWHC 1930 – read judgment
In the wake of the London and Manchester attacks, the government’s counter-terrorism strategy is increasingly in the news and under scrutiny. Radicalisationis a difficult concept to map on to a system like ours, which separates the definition of criminal behaviour and punishment from civil sanctions. In this week’s podcast, Marina Wheeler discusses some of the ways the law is trying to cope (Law Pod UK Episode 8, available free on iTunes). She and others from 1 Crown Office Row will be discussing this and related issues at a seminar on Monday 11 September.
At the end of July 2017, Mr Justice Ouseley upheld one element of the government’s counter-terrorism strategy – the Prevent Duty Guidance to universities (and other further and higher education bodies) which aims at “stopping extremists from radicalising students on campuses”. He also rejected a complaint that the work of the Home Office’s Extremism Analysis Unit (EAU), breached the Article 8 privacy rights of the claimant, Dr Salman Butt.
We posted a summary of this ruling last week. 1 Crown Office Row’s Oliver Sanders and Amelia Walker represented the Secretary of State. Paul Bowen QC and Zahra Al-Rikabi represented Dr Butt.
In 2011 the Strategy was revised to cover the journey from extremism towards terrorist-related activity (including by the far-right). This attracted criticism, examples of which were collated and presented to support the claimant’s challenge to the lawfulness of the measures. But Ouseley J dismissed all heads of claim, observing that he was
not concerned with whether some oppose the CTSA, or regard the Prevent Duty as counter-productive or have made it so, deliberately or through misunderstanding it.
What was decisive in this case was the absence of evidence that the Prevent Duty Guidance had had a chilling effect on free speech or academic freedom, as claimed. The Prevent Duty Guidance, under section 26 of the CTSA, only came into force in 2015. As those who apply it gain experience and confidence, they will make better judgments. But there will always be some mistakes. One way to avoid these is to have constructive discussion about the process, informed by evidence, not drowned out by “clamorous” criticism. Continue reading →
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Protocol 2 Article 1 | Right to education
Vejdeland and Others v Sweden (Application no. 1813/07) – 
Denry Okpor v London Borough of Lewisham, Bromley County Court 25 October 2011 [Transcript not publicly available]
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