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The impact of the Human Rights Act 1998 ('HRA') by owc23796

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									    The impact of the Human Rights Act 1998 (‘HRA’) on Education Law


Introduction
This paper considers the impact of the HRA on education law. Education law is
concerned with a wide variety of circumstances, the most litigated areas being:
admissions to school, school discipline and organisation and special educational needs.
The area has become an important business. Litigation in the field has proliferated in the
past decade. It is arguable why this has taken place but one commentator has remarked
that:

          ‘A critical factor behind this trend has been a general cultural shift towards provider accountability
          and parental choice and involvement, precipitated to a large extent by a range of policy initiatives
          and the introduction, via statute of formal procedures for expressions of preference, democratic
          participation (such as voting on grammar school status) and appeal and other redress mechanisms.
          Together with government commitment to raise standards in education, these developments have
          generated increased expectations among parents with regard to the advancement of education
          rights.’1


It is in this context that one must consider the impact of the HRA upon education law. In
this respect, the key article of the European Convention on Human Rights is of course
Article 2 of Protocol 1 (‘A2P1’). This article is incorporated within the scope of the HRA
by virtue of Schedule 1 of that act and provides:


          ‘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 right of parents to ensure
          such education and teaching in conformity with their own religious and philosophical
          convictions.’

A2P1 is expressed in negative terms – it is a negative right. Thus ‘no person shall be
denied the right to education’ as opposed to the positive ‘everyone shall have a right to
education.’ The reason for the negative right of A2P1 was in order to avoid imposing
onerous obligations on governments to provide detailed and specific types of education.
Further, the content of the second sentence of A2P1 must be viewed in the context of
when the ECHR was drafted. Totalitarianism in Europe was in retreat but still present.
The second sentence was drafted in order that the individual could be insulated from the


1
    ‘Education: Hard or Soft Lessons in Human Rights?’, Neville Harris, p. 82


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full scope of the state’s potential ideological power, which might be manifested in
indoctrination.


Coupled with A2P1 is the UK’s own reservation to the article, contained within both the
HRA and the ECHR itself. Thus, in Schedule 3 of the HRA it is stated that the ‘principle
affirmed in the second sentence of Article 2 is accepted by the United Kingdom only so
far as it is compatible with the provision of efficient instruction and training, and the
avoidance of unreasonable public expenditure.’


As we hope to show, the negative nature of the A2P1 right, Strasbourg case-law and the
UK’s reservation, taken together, have provided a real obstacle to the impact of the right
in the field of domestic education law. Moreover, there has been limited progress in
respect of the other convention rights being successfully deployed in the field. From an
analysis of the case law, we would argue that the HRA has not had an overreaching
impact on education law thus far.


A2P1 and the problem of resources


A number of cases in the UK courts pre and post HRA have been concerned with the
level of educational provision to children, its objectives or content. For example, parents
have and indeed continue to argue that the education which their children receive is
inadequate to meet their needs or is in contravention of their philosophical/religious
convictions.


The wording of A2P1 is of no help in such disputes. As Neville Harris states ‘Article 2 of
Protocol 1 (A2P1) leaves as a matter of conjecture the precise minimum level of
provision or its aims or content that would be consistent with the notion of “education”
for the purposes of the Convention.’2 Instead, one has to turn to Strasbourg case-law to
find assistance in this regard.



2
    Ibid p. 83


                                                                                         2
From a relatively early stage the ECtHR and the Commission took the position that A2P1
did not impose an obligation upon a contracting state to establish or subsidise education
of any particular type, or at any particular level. In the Belgian Linguistics case [No.2
1979-80 1 EHRR 252] the ECtHR held that French-speaking parents in an area
designated as Flemish-speaking were not being denied their right to education by the
state’s failure to grant their wish to have children educated in accordance with their
linguistic and cultural preferences, and by its withholding of financial support from
schools that did not comply with the linguistic requirements.


At around the same time, in the case of X v UK [App no. 7782/77 [1978] 14 DR 179] it
was held that the UK Government was entitled not to fund fully a new non-
denominational school in Northern Ireland. The state was under no positive obligation to
fund a particular form of educational provision in furtherance of a particular citizen’s
religious or philosophical beliefs. A decade or so later, this position was effectively re-
affirmed in another UK case. In Simpson v UK [1989 64 DR 188], a case before the
European Commission, a dispute arose between the parents of a boy with dyslexia and
the LEA over an independent school placement that the parents wanted but the LEA
resisted on cost grounds. It was stated by the Commission that the relevant state
authorities must enjoy ‘a wide measure of discretion…..as to how to make the best use
possible of the resources available to them in the interests of disabled children
generally.’3


These cases have effectively been translated into UK domestic law. In the field of special
educational needs, the courts have considered the effect of the general obligation under s.
9 of the Education Act 1996 for LEAs to have regard to the wishes of parents, on disputes
between parents and LEAs over choice of school for children with special educational
needs, where the parent is seeking an independent or non-maintained special school. S. 9
of the Act ‘Pupils to be educated in accordance with parents’ wishes’ provides:




3
    Simpson v UK, at 7


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       ‘In exercising or performing all their respective powers and duties under the Education Acts, the
       Secretary of [State and local education authorities] shall have regard to the general principle that
       pupils are to be educated in accordance with the wishes of their parents, so far as that is
       compatible with the provision of efficient instruction and training and the avoidance of
       unreasonable public expenditure.’


Further Schedule 27(3)(1) of the Act states:


       ‘(1) Every local education authority shall make arrangements for enabling a parent…..to express a
       preference as to [the maintained school] at which he wishes education to be provided for his child
       and to give reasons for his preference.’


The courts have determined that, where both schools could meet the child’s needs, the
parent’s choice should be agreed unless it is much more expensive than the LEAs choice
[Wardle-Heron v London Borough of Newham and the Special Educational Needs
and Disability Tribunal [2004] ELR 68].


More recently in R (R and others) v. Leeds City Council/Education Leeds [2005]
EWHC 2495 Admin an A2P1 claim was rejected on the basis of resource constraints. In
that case the Claimants lived within the area of Leeds City Council. They attended
schools in Manchester including the King David High School and Manchester Jewish
Grammar School. Arrangements made by the parents of the Claimants for their transport
to and from school constituted the private hiring of a mini bus. The annual cost was said
to be £20, 500.


The Defendant LEA decided to decline to provide free school transport for each of the
Claimants for the purpose of facilitating their attendance at their present schools. The
grounds for its decision were that: 1) it was not appropriate to provide free school
transport given the distance and cost involved; 2) there was an alternative school,
Allerton High School, which offered Hebrew studies adapted to the demands of the
Jewish community, as well as all Leeds High Schools which offered the national
curriculum.


It was argued by the Claimants that the Defendant’s decision was, inter alia, contrary to
A2P1. The Claimants submitted that the amount of expenditure involved in providing


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free school transport was de minimis when compared with the Defendant’s total
secondary school transport budget. Therefore, the Defendant could not contend that this
case fell within the UK’s reservation to A2P1, namely the avoidance of ‘unreasonable
public expenditure.’


Wilkie J held that A2P1 was concerned with access to educational institutions which the
state makes available. It placed no greater obligation on the state to acknowledge or take
account of religious convictions. There was no suggestion that the Defendant had sought
to deny the Claimants access to any of the educational institutions which were within its
control. Nor had it failed to respect the right of the Claimant’s parents to ensure such
education and teaching was in conformity with their religious convictions. The right had
been taken into account by the Defendant and the parents of the Claimants had exercised
it in that they had sent their children to Jewish schools in Manchester. Accordingly, A2P1
was not engaged. Even if it were the Defendant’s decision fell within the terms of the
explicit reservation entered by the UK to A2P1.


A2P1 and other areas
What is the potency of A2P1 where resource considerations are not in issue? Strasbourg
jurisprudence does not provide a clear guideline. In Kjeldsen, Busk Madsen and
Pedersen [1979-89] 1 EHRR 711, Denmark was held to be entitled to make sex
education compulsory in schools in the public interest and therefore override the views of
parents who argued that it conflicted with their Christian beliefs and values. In Campbell
and Cosans v UK [1982] 4 EHRR 293, the ECtHR upheld the parental conviction that
corporal punishment was wrong on the basis of a conviction centred upon ‘the integrity
of the person.’ In Valsamis v Greece [24 EHRR 294] the parents of a child were
Jehovah Witnesses who did not agree with any conduct connected with war or violence.
The parents’ children were required by Greek law to participate in school parades on the
relevant national day marking the military struggle between Greece and Italy in the
Second World War and there was a sanction of short term suspension for non-
participation. The ECtHR held that there was no violation of A2P1, because there was
‘nothing, either in the purposes of the parade, or in the arrangements for it, which could



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offend the applicants’ pacifist convictions to an extent prohibited by the second sentence
of [A2P1]’ [at 31].


Have    arguments      concerning        parents’     religious/philosophical         convictions       been
successfully deployed in the UK courts post HRA? In R (K) v London Borough of
Newham [2002] EWHC 405 (Admin); 2002 [ELR] 390, the claimant parent challenged
the decision of the London Borough of Newham and its Independent Appeals Panel
(‘IAP’), the effect of which was that his daughter did not gain admission to the school
which he had indicated was his preference. The daughter was 11 years old at the time and
her parents had to consider which school they wished her to attend for her secondary
education. They decided that she should attend a single sex school. The reason for the
decision was that the claimant was a devout Muslim and he was concerned that his
daughter should not mix with boys or young men after the age of 11 when she was at
school. He claimed that it would be contrary to his religious convictions for her to attend
a co-ed school.


In quashing the decision of the defendant IAP, Collins J noted [at 29] that:


       ‘It seems to me, in those circumstances, that since the coming into effect of the Human Rights
       Act, the religious conviction of a parent is something to which due weight must be given in
       considering admission to a particular school. It may be that it is unusual that religious conviction
       should play a part in a decision whether a single sex or a mixed sex school should be chosen. But
       there is no question but that in the case of this claimant, and it may be, one suspects, that there are
       others who will be in the same position, that is an important consideration.’


He further remarked [at 38] that:


       ‘….it is necessary, in order to comply with Article 2, for there to be some positive action on the
       part of the State. That must mean, in the context of an admission case such as this, that the LEA,
       initially, and the Appeal Panel on appeal must give weight to such conviction. Indeed, as it seems
       to me, it is necessary that the LEA and, indeed, all LEAs, take that on board in their admissions
       policies.’


However, in T v Special Educational Needs Tribunal and Wiltshire County Council
[2002] ELR 704 the parents of an autistic child contested the LEA’s arrangements for the
child’s education. They wanted the LEA to fund a Lovaas programme at home. The


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parents advanced an argument that by not allowing this, the LEA was breaching its A2P1
right to education and teaching in conformity with their philosophical conviction.
Richards J stated that the parents’ preference for this particular form of education fell ‘far
short of a philosophical conviction’ [at 39(iii)].


As one commentator has remarked, the Strasbourg jurisprudence has established ‘a
threshold whereby only those views which are serious, important and coherent will
require respect under the provision’ and has imposed ‘a significant burden of proof on
the parent seeking to rely [on that provision]’.4


Until recently, arguably the greatest impact A2P1 had had, in cases where resources were
not in issue, was in ensuring that local education authorities were held to account for
failing to provide education to children attending school in their areas. This was the result
of the Court of Appeal’s decision in A v The Head Teacher and the Governors of a
school [2004] EWCA Civ 382, the Lord Grey case in which it was held that the
claimant was entitled to damages under the HRA for a breach of his A2P1 rights. On 22nd
March 2006, the Court of Appeal’s ruling was overturned by the House of Lords. In our
opinion, this decision constitutes a set back to cases involving claimants subject to long-
term unlawful exclusions.


The claimant had been excluded from the school following an allegation against him of
arson at the school. Letters written by the school to the claimant’s parents failed to give
the legally requisite information about their right of access to the governing body to
question the claimant’s exclusion. During the initial period of exclusion, work was sent to
claimant to do at home. The legal maximum period of 45 days for a fixed-term exclusion
was then exceeded, followed by a reintegration meeting which the claimant’s parents did
not attend. The claimant was then removed from the school roll. By the time the claimant
enrolled at another school, he had been without schooling for almost 11 months. The



4
 U Kilkenny, ‘The Child and the European Convention on Human Rights’ p. 79-80, quoted in Neville
Harris, Ibid. p. 87


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claimant submitted that his exclusion and removal from the school roll were unlawful and
resulted in the denial of his right to education under A2P1.


In the Court of Appeal, Sedley LJ started by making reference to the Belgian Linguistics
case and noting that the first sentence of A2P1 did enshrine a right - not a right with any
fixed content but a right for the citizens of member states in principle to avail themselves
of the means of instruction existing at a given time [at 44].


Critically, Sedley LJ then stated [at 45] that:


       ‘The realistic principle that, subject to the Convention's own limits, the right to education takes the
       form prescribed in each member state carries in my judgment the necessary corollary that any
       question whether there has been a violation of the right has to be answered initially in terms of the
       applicable domestic law.’


Thus, Sedley LJ’s conclusion was that the convention right is no wider than the domestic
right to education created by legislation: thus a threshold requirement of a HRA claim for
a breach of Article 2 is that there must first be a breach of domestic law; however not all
breaches of domestic law also give rise to a breach of the Art. 2. Sedley LJ stated [at 45]:

                ‘If a breach of domestic law is found, it remains to be decided whether it has resulted in a
                denial of the Convention right. Put broadly, there will be such a denial where the breach
                of domestic law has resulted in the pupil's being unable to avail himself of the means of
                education which presently exist in England and Wales—not, for example, by being
                temporarily unable to reach the school premises for want of transport, but by being shut
                out for a significant or an indefinite period from access to such education as the law
                provides for him or her.’


In respect of Article 2, Lord Bingham, in the House of Lords, also made significant
reference to the Belgian Linguistics case. His Lordship then stated [at 24] that:


                ‘The fundamental importance of education in a modern democratic state was recognised
                to require no less. But the guarantee is, in comparison with most other Convention
                guarantees, a weak one, and deliberately so. There is no right to education of a particular
                kind or quality, other than that prevailing in the state. There is no Convention guarantee
                of compliance with domestic law. There is no Convention guarantee of education at or by
                a particular institution. There is no Convention objection to the expulsion of a pupil from
                an educational institution on disciplinary grounds, unless (in the ordinary way) there is no
                alternative source of state education open to the pupil.’ [emphasis added]




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In the light of this interpretation of A2P1, Lord Bingham concluded that as the school had
taken the following actions: 1) invited the parents to collect work, which they had not; 2)
offered the claimant education at a PRU, which was declined; 3) arranged a meeting to
discuss the claimant’s re-admission, which the claimant’s family chose not to attend, it
could not be said that the school had denied the respondent effective access to such
educational facilities ‘as this country provide’ [at 25].


Thus, Sedley LJ’s analysis, linking domestic law with A2P1 by providing that for a
threshold requirement of a HRA claim for a breach of A2P1, there must first be a breach
of domestic law, was ignored by Lord Bingham. Lord Hoffman, in giving his judgment,
explicitly rejected Sedley LJ’s analysis. He stated that the correct approach is to first ask
whether there has been a denial of a convention right, not whether domestic law has been
breached. ‘In the case of article 2 of the First Protocol, that would have required a
systemic failure of the educational system which resulted in the respondent not having
access to a minimum level of education’ [at 61]. Lord Hoffman stated that the ECtHR and
A2P1 were not concerned with the procedures by which the claimant was denied entry to
or expelled from a particular educational establishment. Instead A2P1 was simply
concerned with results: was the claimant denied access to that minimum level of
education guaranteed by the state?


In some respects, Sedley LJ recognised this when he noted himself [at 45]:


               ‘This [interpretation of A2P1] does not necessarily mean access to every available aspect
               of education. We are bound in this regard by the decision of a majority of their Lordships'
               House in R (L(a minor)) v Governors of J School [2003] 2 AC 633 that 'reinstatement' in
               a school can accommodate the almost complete segregation of the pupil from the rest of
               the school community.’


In the case of L referred to by Sedley LJ, a pupil, aged 16, was permanently excluded
from school following an assault on another pupil. On appeal to the Independent Appeal
Panel, the IAP found on the balance of probabilities that L was not guilty of the specific



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behaviour of which he was accused and directed that he was to be reinstated to school
immediately. The teachers' unions at the school immediately balloted their members, a
majority of whom voted to take industrial action if staff should be instructed to teach L.
On L's return to school, and until some 30 school days later when pupils of his year were
given study leave prior to their taking GCSE examinations, he was barred from all
contact with other members of the school community. Arrangements were made for him
to be taught in one subject by a retired teacher who also supervised his work in other
subjects which was set and marked by his subject teachers. L then challenged the
decision to reinstate him by way of judicial review, arguing that the circumstances of his
education on return to school, did not constitute ‘reinstatement.’


In the House of Lords, only Lord Bingham referred to the ECHR. In a very brief, passing
remark, Lord Bingham noted that ‘there are situations in which educational regimes may
have to be adapted to meet particular circumstances…..and the House was referred to no
case which it has been held that the convention right to education is violated in a case
such as this.’


It appears that one view of the impact of both Lord Grey and L is that the domestic
courts are now encouraged to see the right to education provided for under A2P1 as a
weak right merely providing for a minimum level of education, whatever that might be.
Accordingly, where parents or children seek to challenge an LEA’s failure to provide
education, i.e. in situations where a pupil is unlawfully permanently excluded from
school, it will have to be shown that no other alternatives for education were available to
that pupil for an A2P1 claim to succeed. It must be remembered, however, that the
decision in those cases, in particular the Lord Grey case, were fact specific. It is clear
that in the Lord Grey case the House of Lords took an adverse view of A, who was
alleged to have behaved very badly, receiving compensation.
The other articles of the ECHR


Aside from A2P1, how have the other ECHR articles interacted with education law since
the coming into force of the HRA? On their face, it would be assumed that a number of



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the ECHR articles would have relevance to education related matters. As education
decisions effect matters central to personal or family integrity, such as sex education,
discipline/punishment or the language that forms the medium of teaching, it would be
thought that Article 8, the right to respect for privacy and family life, would be relevant.
However, until now, Strasbourg jurisprudence has not been forthcoming with such an
application of Article 8.


In the Belgian Linguistics case, in addition to arguments raised in respect of A2P1, an
Article 8 argument was also advanced: that the refusal of the state to grant the parents’
wishes to have their children educated in accordance with their linguistic and cultural
preferences was an interference with their personal/family integrity. The ECtHR rejected
that argument on the basis that if the parents sent their children to another region to
receive teaching in the French language, because of the state’s refusal to fund schooling
in French, it would be their choice rather than an interference by the state. Similarly, in
Simpson v UK an article 8 argument that the LEA’s decision to send a child with
dyslexia to a comprehensive school would infringe Article 8 by causing a deterioration in
the boy’s mental condition and ability to be educated was considered too hypothetical in
nature.


This essentially negative approach by Strasbourg has been reflected in the UK case law
post the implementation of the HRA. In CR v Merton London Borough Council and
Special Educational Needs and Disability Tribunal [unreported 26th April 2002] the
local authority had issued a statement of SEN, part 4 of which named a specific
residential special school which the child would have to attend as a weekly boarder.
Since the mother of the child wanted the child to attend a local day school, she
challenged the local authority's decision to name a specific school in part 4 of the
statement and requested that the statement be amended to refer to a type of school as
opposed to a particular school. After hearing evidence from the child that he did not wish
to board and it being accepted by the parties that the school would meet the child’s
educational needs, particularly because no other suitable school was proposed, the
SENDIST upheld the local authority's decision to name the school.



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The mother appealed to the High Court on the grounds that: (i) the decision to name the
school in part 4 of the statement breached her rights under Article 8 ECHR; (ii) such
infringement of Art.8(1) could not be justified under Art.8(2); and (iii) if it was decided
that the SENDIST was pursuing a legitimate aim recognised by Art.8(1), then the
SENDIST’s decision was a disproportionate means of achieving that aim.


In the High Court, Sullivan J held firstly that it was difficult to see how the mother’s
Article 8 ECHR rights had been interfered with. He noted that an order requiring a child
to attend a boarding institution would be an interference with family life that required
justification under Article 8.2. However, a decision of the SENDIST which named a
particular school in part 4 was not an order to that effect. Instead it was a decision which
required the LEA to make provision. Thus, the Tribunal's decision was intended to
compel the local education authority to make appropriate provision and was not intended
to bind the parent. If the LEA then decided to prosecute the mother in the magistrates’
court for failing to ensure her son’s attendance at that school, Sullivan J stated that
Article 8 might then be engaged. But it would not be the Tribunal's decision that would
expose the claimant to the risk of prosecution, it would be the mother’s failure to ensure
her son was receiving a suitable education. The mother was at liberty to make whatever
other arrangements for her son’s education that she felt was appropriate.


Sullivan J held secondly that even assuming Article 8(1) was engaged by the SENDIST’s
decision, then on the facts of the case, that interference was justified as the Tribunal had
made a clear finding that unless the child were to attend a specialist school he would not
receive suitable education and his needs would not be met.


Another key convention right that has impacted upon education law post the HRA is
Article 9, the right to freedom of thought, conscience and religion. The key case is R (on
the application of SB) v The Headteacher and Governors of Denbigh high school
(2005). Like the Lord Grey case, however, where the claimant succeeded in the Court of




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Appeal in showing that there had been an unjustified interference with her Art. 9 right to
manifest her religion expectation, the House of Lords overturned that decision.


The claimant was a Muslim and wished to wear a jilbab to school, rather than a shalwar
kameeze as required by the school’s uniform policy. The school’s complaints committee
decided that the uniform policy satisfied all the requirements of the Islamic dress code
and the school continued to refuse to allow the claimant to attend school in a jilbab. The
claimant maintained that the shalwar kameeze did not comply with the strict requirements
of her religion. The claimant lost nearly two years' schooling before she was accepted by
a different school. The main issues were whether the school had unlawfully excluded the
claimant from school and denied her the right to manifest her religion and access to
suitable and appropriate education as per Art. 9 ECHR and A2P1.


In its decision in respect of Article 9, the Court of Appeal considered evidence on Islamic
law and the requirements concerning dress for women. The court stated that the fact that
the school had decided that the claimant’s view, that Islamic law required her to wear a
jilbab, was held by a minority of Muslims in the UK and that the shalwar kameeze met
the requirements of Islamic law, did not negate the fact that Article 9(1) ECHR was in
fact engaged. In taking her decision the claimant was clearly manifesting her religion.
Thus, in taking the action that it did the school had limited the claimant’s freedom to
manifest her religion. Accordingly, as a matter of Convention law, it was then for the
school to justify the limitation on her freedom created by its uniform policy and the way
in which it was enforced. However, the school had not approached the claimant’s case in
this manner. It had not recognised that there had been an interference with her Art. 9
rights and that it needed to justify that interference in accordance with Art. 9(2).


Importantly, in giving judgment, Brooke LJ noted [at 85] that:


       ‘85. It should be emphasised, however, that, in general, the engagement of the right would not be
       the end the matter. In fact, it would be the beginning of another stage. The next stage would be
       considerably more complex. The scope of the right and its exercise would be subject to the
       limitations in Article 9(2), which the School may seek to rely on to justify the school uniform
       policy. Freedom to manifest one’s religion is subject, for example, to such limitations prescribed



                                                                                                     13
       by law as ‘are necessary in a democratic society….for…the protection of the rights and freedoms
       of others.

       86. The process of justification of a limitation on the right to manifest one’s religion involves a
       careful and wise analysis in the very difficult and sensitive area of the relation of religion to
       various aspects of the life of the individual living in community with other individuals, who also
       possess rights and freedoms. The right to manifest one’s religion under Article 9 is not necessarily
       a valid reason for overriding the social responsibilities of the individual holder of the right to
       others living in the community.’


In the House of Lords’ judgment, Lord Bingham considered the Strasbourg
jurisprudence, which highlighted that where there is an alternative means of
accommodating a manifestation of religious belief, it would be hard to show that there
had been an interference with a person’s Art. 9 rights. Lord Bingham stated that ‘there
remains a coherent and remarkably consistent body of authority which our domestic
courts must take into account and which shows that interference is not easily established’
[at 24]. Significantly, in Lord Hoffman’s judgment, it is noted that Brooke LJ had failed
to make reference to these judgments in his decision [at 55]. Lord Bingham then noted
that in the claimant’s case there were three schools in the area at which the wearing of the
jilbab was permitted. He found that there was no evidence to show that there was any real
difficulty in her attending one or other of these schools, as she has in fact done and could
no doubt have done sooner had she chosen.


On the basis, however, that there may have been an interference, Lord Bingham then
found that such an interference was justified. The uniform policy was for a legitimate
purpose, namely protecting the rights and freedoms of others. The question was whether
the school’s insistence on the claimant obeying the rules on uniform was proportionate.
The answer to this did not lie in an analysis, as the Court of Appeal had done, in whether
the school had adopted the correct procedure in tackling this question of proportionality.
Instead the substance of the decision had to be looked at. On that basis, Lord Bingham
concluded that the school was justified in upholding its policy and that this decision was
a proportionate one. Importantly, he stated [at 34] that:


            ‘It would in my opinion be irresponsible of any court, lacking the experience, background
            and detailed knowledge of the head teacher, staff and governors, to overrule their judgment
            on a matter as sensitive as this. The power of decision has been given to them for the
            compelling reason that they are best placed to exercise it, and I see no reason to disturb their


                                                                                                        14
           decision.’


In his judgment, Lord Hoffman supported this position. He noted that Parliament had
considered it right to delegate to individual schools the power to decide whether to
impose requirements about uniforms which may interfere with the manifestation of
religious beliefs. From the point of view of the Strasbourg court, the margin of
appreciation would allow Parliament to make this choice. Lord Hoffman stated that it was
for the courts of the United Kingdom to decide how the area of judgment allowed by that
margin should be distributed between the legislative, executive and judicial branches of
government. He then concluded that: ‘In my opinion a domestic court should accept the
decision of Parliament to allow individual schools to make their own decisions about
uniforms’ [at 64].


The House of Lords’ judgment is a powerful one. What in effect it does is to guarantee
that schools and not the courts are in all, but the most extreme cases, the final decision
makers on allowing or disallowing expressions of religious belief in schools. At the same
time, however, in similar vein to the decision in the Lord Grey case, the decision must
be considered very much in its factual context. Not least of all it was clear that Lord
Bingham was of the view that Shabina Begum had only challenged the uniform policy
after she had attended the school for two years, had done so with the encouragement of
her brother and that there were a number of local schools which had been available to
her, which would have accepted her preference for the Jilbab.


Finally, we turn to a consideration of Article 6 ECHR and whether this has impacted on
education law post the implementation of the HRA. Article 6 provides that, in the
determination of his civil rights and obligations, or of any criminal charge against him, a
person is entitled to a fair and public hearing within a reasonable time by an independent
and impartial tribunal established by law. It was initially thought that the extent to which
this provision may apply to education law post HRA would be considerable.


The use of Article 6(1) in domestic cases, was, however, dealt a significant blow by
Newman J in the R (B) v Head Teacher of Alperton Community School and Others


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[2001] ELR 359. In that case, the court dealt with three applications for judicial review.
One of the claims was made in connection with the non-admission of an 11 year-old boy
to Cardinal Newman Roman Catholic School. A second claimant was a 15 year-old boy
who had been permanently excluded from Alperton Community School. The third
claimant was a 12 year-old boy who had been permanently excluded from Wembley
High School. Each of the claimants argued that certain provisions of domestic legislation,
the Schools Standards and Framework Act 1998, contravened the ECHR.


In respect of the non-admission of the 11 year-old boy it was argued that the domestic
provisions governing admissions appeals created actual or apparent bias or unfairness
because the Governing Body or LEA appointed, trained and payed panel members. Thus,
it was argued that the appeal panel was not an independent and impartial tribunal as
required by Article 6 ECHR. In respect of the permanent exclusion cases, it was argued
that there having been an exclusion on the ground of conduct amounting to an allegation
of a criminal offence, a civil right to a reputation and/or criminal charge were involved
and therefore Article 6 ECHR applied.


Newman J held that there was no private law right to education and that the right to
education was not a civil right. In deciding that the right to education was not a civil right
he relied on Simpson v UK, in which it was stated that:


       ‘Although the notion of a civil right under this provision is autonomous of any domestic law
       definitions, the Commission consider that for the purposes of the domestic law in question and the
       Convention, the right not to be denied elementary education falls, in the circumstances of the
       present case, squarely within the domain of public law, having no repercussions on private rights
       or obligations.’


Newman J further held that exclusion proceedings were not to be viewed as criminal and
that there was no action for an infringement of a right to one’s reputation. Thus, it was
held that Article 6(1) was not applicable.


Since Newman J’s judgment in the Alperton School case there has been further
consideration of the position regarding Article 6(1). In S, T and P v London Borough of



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Brent and Others [2002] EWCA Civ 693 Schiemann LJ appeared to leave open the
door to the right to education being a civil right. Thus he remarked [at 30] that:


         ‘As to the applicability of article 6, there may be difficulties, in the light of the present
         jurisprudence of the Strasbourg court, in holding that a school exclusion Appeal Panel is a body
         which determines a pupil’s civil rights, whether to education or to reputation……But let us make
         the perfectly tenable assumption (cf the impressively reasoned decision of Stanley Burnton J in
         Husain v Asylum Support Adjudicator (CO/105/2001; 5 October 2001)) that domestic human
         rights law, and arguably the ECHR’s jurisprudence too, will today regard at least the right not to
         be permanently excluded from school without good reason as a civil right for article 6 purposes.’


Schiemann LJ went on to hold that even on this assumption, however, an LEA’s
permitted role vis-à-vis the appeal panels did not compromise the independence
guaranteed under Art. 6(1).


However, when the Lord Grey case was heard at first instance in the High Court by
Stanley Burnton J, he noted [at 75] that ‘on the basis of the current jurisprudence of the
European Court of Human Rights, the right to education under Article [2] of the First
Protocol is not a civil right within the meaning of Article 6.’ Therefore, it is unclear
whether there is now any scope for challenging the current position that in matters
involving the right to education proceedings need not be Art. 6(1) compliant.


There is no better example of the importance of persons having the ability to challenge
decisions affecting their education than the plight of those disabled children in local
authority care. Generally, disabled children, through their parents, are able to challenge
decisions affecting their education in the Special Educational Needs and Disability
Tribunal (‘SENDIST’), or in Wales SENTW. The Tribunal’s jurisdiction includes
determining disputes between parents and local authorities over the correct educational
provision for a disabled child and determining complaints of disability discrimination
against schools and local educational authorities. The Tribunal represents a key piece in
the matrix of arrangements for disabled children. It affords families of disabled children
some protection against unlawful or improper behaviour. At the very least, it enables an
independent body to scrutinise provision where there is disagreement about what should
arise.



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However, for a significant group of severely disadvantaged disabled children – those in
the care of local authorities – the SENDIST does not, to all intents and purposes, exist.
The only way in which a Tribunal can consider an appeal or complaint – whether it be
about what provision a disabled child should receive or about complaints of disability
discrimination – is if a parent brings an appeal. For those children who are in the care of
a local authority, unless they have an individual person who also has parental
responsibility who is taking an active role in their life, including their education, the only
“parent” who might bring an appeal or complaint to the Tribunal is the local authority –
the very same body which has made the decision in the first instance. Not surprisingly,
such appeals to Tribunals are extremely rare. Furthermore, it is not too much to surmise
that local authorities will be less rigorous in ensuring that their duties are complied with
to the full, in respect of children in care, then they might be for children who have active,
involved individual parents who will certainly bring appeals to a Tribunal.


It appears that the only way of solving this problem is to change in the law which
currently requires that only a parent can bring an appeal or complaint to the SENDIST
Such a change could allow a child, him or herself, to launch proceedings (perhaps with
the assistance of another responsible adult), or empower, say, the Children’s
Commissioner to do so.



Conclusion
Education litigation has proliferated in the past decade, as witnesses by the rise of appeals
brought in respect of school admissions, exclusions and to determine the special
educational needs of children. When the HRA was passed there was an expectation both
from practitioners in the field and academic commentators that a number of the ECHR’s
provisions could be successfully deployed in education law cases. Indeed, there has been
considerable usage of ECHR/HRA arguments since the coming into force of the HRA.
However, success has been limited. This is primarily because a large number of
education cases, inevitably, have at their heart the issue of the state’s allocation of
resources. Strasbourg case-law coupled with the UK’s reservation to A2P1 set the tone



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early on: a wide discretion given to the state over the management and administration of
its resources in respect of the provision of education. Thus, where coherent A2P1
arguments were advanced they were met by the state body’s claim (be it an LEA or a
school) that giving effect to A2P1 would constitute an unreasonable use of public
expenditure. In resource-based cases, therefore, it is questionable what advantage A2P1
brings.


Further, where there had been some optimism, especially on the part of those
representing claimants in the courts, the House of Lords’ recent decisions in both the
Lord Grey and Denbigh School cases have highlighted how difficult it is to show that
there has been a violation of A2P1 or the other articles of the convention, such as Article
9. Following these decisions, it is questionable whether there have been any notable legal
successes in advancing human rights based claims in the field of education law.


Against that all together negative background, one intangible success may be that schools
and LEAs now have to be aware that the actions and decisions they take must be human
rights compliant. It is perhaps this latter point which highlights the true impact of the
HRA on the field of education law. The HRAs greatest impact has not been felt in
reported cases where ECHR articles have been deployed and successfully argued.
Arguably, the act’s greatest impact has been in contributing to a cultural shift, which has
been ongoing for over a decade, toward greater LEA and school accountability to the
wishes of both parents and children in respect of the education received in school. In our
view, this has been the real impact of the HRA in the field of education law.




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