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)
The Scotland Act, 1998, which established the Scottish Parliament, incorporated the European Convention of Human 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
Qualified rights are:
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.
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:
A number of other rights also may apply to education, e.g.:
This may include:
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.