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Created: 18 April 2007 | Last Updated: 02 September 2015 | Printer Friendly Version Printer Friendly Version | Make Text Smaller Make Text Larger |

Human Rights Act: Implications for Education

INFORMATION FOR SCHOOLS

BACKGROUND

The Human Rights Act, 1998, brings the European Convention of Human Rights into UK law. All public bodies in the UK, including local authorities, must ensure that legislation, procedures and regulations are compatible with Convention rights.

The intention of introducing the Act is –

"to help create a society in which people’s rights and responsibilities are properly balanced and where an awareness of the Convention rights permeates our government and legal systems at all levels.”

(Government’s Task Force on Human Rights)

  • these are not new rights
  • they have been recognised for fifty years
  • they should be seen in conjunction with other rights and legislation preventing discrimination and unfairness
  • the intention is to ensure rights and responsibilities necessary to support a democratic society
  • the Human Rights Act, 1998, allows challenges in UK courts and tribunals

The Scotland Act, 1998, which established the Scottish Parliament, incorporated the European Convention of Human Rights.

WHAT ARE RIGHTS

Absolute rights are those that cannot be infringed.

Limited Rights are those that can, under explicit circumstances identified in the Convention, be limited.

Qualified Rights are rights that can be interfered with if what is done -

  • has a legal basis
  • is necessary in a democratic society i.e. it fulfils a pressing social need, pursues a legitimate aim and is proportionate to the aims being pursued
  • is related to the aim set out in the relevant article

e.g. the prevention of crime, the protection of public order, health or morals

Qualified rights are:-

  • the right to respect for private and family life
  • rights relating to religion
  • the right to freedom of expression
  • the right to freedom of assembly and association
  • the right to the peaceful enjoyment of property
  • the right to education

The Convention allows rights to be interfered with to support a democratic society.

IMPORTANT CONCEPTS

proportionality

Interference with a Convention Right must not be excessive, arbitrary or unfair, or have too severe an impact on a particular group or individual.

victim

Is someone directly affected. Only a person, or a recognised group, considered a ‘victim’ can bring proceedings against a public authority. A trade union cannot bring proceedings, unless it is a victim itself. However, it can assist members with advice and representation.

margin of appreciation

Allows domestic courts to decide the merits of a decision, policy or law and the reason for its adoption. This is recognition that member states are better able to evaluate local needs and conditions than the court in Strasbourg. (A state cannot act to reduce an absolute right.)

onus of proof

Is on the person taking the case (the applicant) but where the right is qualified it is up to the authority (respondent) to show the restriction was justified and proportionate.

living instrument

Means the Convention is interpreted in the light of present day conditions.

IMPLICATIONS FOR EDUCATION

Article 2 of Protocol 1 - The right to education

"No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”

This is a qualified right and subject to a reservation which is:-

"The right is compatible with provision of efficient instruction and training and the avoidance of unreasonable public expenditure.”

The right to education means access to

  • educational institutions existing at a given time
  • an effective education
  • official recognition of the studies a student has completed

A number of other rights also may apply to education

e.g.

  • Article 3 No person shall be subjected to torture or inhuman treatment or punishment
  • Article 5 Everyone has the right to liberty and security of person except in a number of defined circumstances
  • Article 6 Everyone is entitled to a fair and public hearing by an independent and impartial tribunal
  • Article 8 Everyone has the right to respect for his private and family life, home and his correspondence
  • Article 9 Everyone has the right to freedom of thought conscience or religion
  • Article 10 Everyone has the right to freedom of expression
  • Article 14 Prohibition of discrimination

 

POSSIBLE APPLICATIONS

Article 3 No person shall be subjected to torture or inhuman treatment or punishment.

Article 5 Everyone has the right to liberty and security of person except in a number of defined circumstances.

This may include

  • disciplinary exclusion from school
  • other disciplinary measures
  • detention as a sanction or disciplinary measure for poor behaviour.

Exclusions for disciplinary reasons will be acceptable if it is part of an overall policy to ensure effective education takes place.

If the behaviour of one or a group of pupils is seriously disruptive and jeopardising the education and safety of other children and/or employees it is permissible to use effective measures to prevent such behaviour and protect the rights of others.

Disciplinary measures must not be inhuman or degrading and must be proportionate.

Detention may create a problem if it is outwith the school day. Over intervals it may be acceptable. There should be safeguards to ensure at all times the safety, welfare and education of the child/young person. Any special circumstances that exist must be considered

e.g. age, home circumstances, religious beliefs, time of the detention.

It is the responsibility of the local authority to take measures to ensure education takes place if a child/young person is excluded.

Article 6 Everyone is entitled to a fair and public hearing by an independent and impartial tribunal.

This may include

  • refusal to admit a child to a chosen school.

An education authority may be able to justify this on grounds of expenditure. Care must be taken, however, to ensure no discrimination takes place.

Failure to secure provision for special educational needs: A challenge may become complex if the rights/educational needs of the child, the views of the authority and of the parents conflict.

Disciplinary exclusions: An appeals procedure exists which parents can use.

The HRA does not prevent disciplinary exclusions but it is essential to keep accurate records and ensure procedures are fair and non-discriminatory. A disproportionately high number of exclusions of black/minority ethnic pupils would present a serious challenge.

Article 8 Everyone has the right to respect for his private and family life, home and his correspondence.

This may include

  • collection and recording of information on students in school records, reports, referrals or home visits.
  • Interference is acceptable when it is necessary for the protection of health or morals, rights of the child to protection from abuse, or protection of the rights of others.

A guidance teacher within the course of her/his work has access to confidential information or may be required to write confidential reports about the circumstances of a child. There may be grounds for ensuring information is not disclosed e.g. to protect the integrity of the author in the course of his/her work or to protect a child from abuse.

In the event of an appeal in the appropriate fora, if access to information is granted, the reasons for writing something must be soundly based.

Article 9 Everyone has the right to freedom of thought, conscience or religion.

This has to be separated into the right to hold religious beliefs and how people carry out their beliefs. The latter can be restricted to protect the rights and freedoms of others. At present parents can withdraw children from sex education or religious instruction.

Article 2 of Protocol 1 refers to "education in accordance with the religious and philosophical convictions of parents” This is qualified. Such convictions must be worthy of respect in a democratic society and not incompatible with human dignity and personal integrity.

Article 10 Everyone has the right to freedom of expression.

This carries with it duties and responsibilities. It can be interfered with to ensure effective education and the rights of others are not diminished. Its application in education may be seen in certain subject areas such as sex education, modern studies, citizenship studies and other areas of the curriculum where expressing opinions may be part of the learning process.

(see above Article 8 regarding confidential reports.)

Challenges may be made using a number of articles e.g.

Bullying and harassment in schools

This may involve Protocol 1, Article 2, the right to education, Article 3, inhuman and degrading treatment and Article 14, prohibition of discrimination. If bullying and harassment is allowed to go unchecked it can be argued that the personal integrity of the child is violated, access to education denied and access to convention rights denied on grounds of e.g. gender, race, ethnicity or sexual orientation.

Special Educational Needs

Some parents wish their children to be educated in mainstream schools while others prefer special educational needs establishments. The Commission has rejected complaints by parents for special schools on the ground that an authority has "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.” (Simpson v UK (1989) 64 DR 188 at 195) Challenges to a local authority’s refusal to provide schooling according to the wishes of parents would only succeed if the education was clearly inappropriate for the child or inadequate.

Any claims relating to Human Rights will be against the education provider.

It is important to remember that the European Convention of Human Rights was written in particular circumstances at a particular point in history to protect civil and political rights within a democratic society.

Remember the intention of The Human Rights Act, 1998 is –

"to help create a society in which people’s rights and responsibilities are properly balanced and where an awareness of the Convention rights permeates our government and legal systems at all levels.”

(Government’s Task Force on Human Rights)

Sections 29 and 57 of The Scotland Act, 1998, places the Scottish Executive and the Scottish Parliament under a statutory obligation to comply with the terms of the Convention.

Human Rights Act - Information for Members

This leaflet is to provide EIS members with a brief guide to the possible employment implications of the Human Rights Act, 1998. As the Act is a ‘living instrument’ it is difficult to give precise advice about each and every potential situation. The Act cannot be seen in isolation from other legislative rights e.g. Employment Protection Act or the Public Interest Disclosure Act.

The contractual relationships of teachers/lecturers with their employers may be influenced by the Human Rights Act, 1998, depending on who their employers are.

Where teachers/lecturers are employed by:

A public body such as a local authority, college or university - teachers can claim a breach of human rights in an employment dispute but must indicate, if it goes to an employment tribunal, that there are human rights issues to be considered.

Voluntary organisations – which carry out public functions e.g. some residential and/or special schools - they may be able to claim a breach of human rights in employment matters e.g. if the voluntary organisation performs functions that local government would otherwise perform.

Private/independent schools - teachers can enforce their convention rights using existing employment rights and argue the case at court or tribunal which do have obligations to act in accordance with the Human Rights Act.

Rights at work

The Convention rights are concerned mainly with civil and political rights. There are, however, implications for employment rights.

Article 6 Everyone is entitled to a fair and public hearing by an independent and impartial tribunal.

Affected will be discipline and grievance procedures at work particularly where they involve the withdrawal of the right to practice a profession or issues relating to pay and pension entitlement.

Article 8 Everyone has the right to respect for his private and family life, home and his correspondence.

This may involve surveillance at work e.g. monitoring of telephone conversations, mail or e-mail, CCTV, respect for personal identity and personal relations.

Article 9 Everyone has the right to freedom of thought, conscience or religion.

This may involve the right not to be discriminated against at work on grounds of religious or other beliefs.

Article 10 Everyone has the right to freedom of expression.

This right may be restricted to protect the rights and reputations of others or for the prevention of disclosure of confidential information. Limited protection may be given to ‘whistleblowers’, the expression of political opinions and the right to express yourself through dress.

Article 11 Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

Restrictions can be imposed where set out in law and ‘it is necessary in a democratic society’. A number of cases taken under article 11 demonstrate this is not as straightforward or as strong a right as it seems. States are allowed ‘a margin of appreciation’ in imposing restrictions on trade union rights.

Article 14 The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

This is not a general right not to be discriminated against. It applies only to the enforcement of convention rights. Convention Rights are not all absolute.

Interference is permitted in ‘accordance with law’ and ‘necessary in a democratic society’ if it is:

  • in the interests of national security or public safety
  • for the prevention of crime or disorder
  • for the protection of health or morals
  • for the protection of rights and freedoms of others

Responsibilities of Public Authorities

The Human Rights Act makes it unlawful for a public authority to act (or fail to act) in ways which are incompatible with Convention Rights. All public authorities have a positive obligation to ensure that respect for human rights is at the core of their day to day work. This includes personnel and staffing matters.

Remember if you have a difficulty at work your first contact is your representative and local association secretary.