Imogen Proud considers the nature and scope of the right to education under the Human Rights Act 1998 (“HRA 98”).
The right to education is protected by Article 2, Protocol 1 (“A2P1”) found within Schedule 1 HRA 98.
That article provides:
“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.”
What is protected by the first sentence of A2P1?
- The first sentence of A2P1 protects the right of an individual to an effective education.
- The right to an effective education belongs to the student, rather than to their parent or guardian.
- It covers primary education (Sulak v Turkey, Commission decision, No 24515/94), secondary education (Cyprus v Turkey, No. 25781/94, 10 May 2001), higher education (Leyla Sahin v Turkey no. 44774/98 ECHR 2005-XI (“Sahin”)) and specialised courses. Adults as well as children enjoy the right.
- It is a right guaranteed equally to pupils in State and independent schools, without distinction: Costello-Roberts v United Kingdom, No. 13134/87, 25 March 1993. The State cannot delegate to private institutions or individuals its obligations to secure the right to education for all.
- A2P1 gives a right to access the UK’s existing educational institutions. It does not require the government to provide or subsidise any specific type of education or to establish new types of education: Belgian Linguistic (1968) 1 EHRR 252 (“Belgian Linguistic”).
- A2P1 does not only mean the State must refrain from interference in the right; it has a positive obligation to ensure respect for this right.
- A2P1 also gives a right to obtain official recognition when studies have been completed: Belgian Linguistic.
- The government is allowed to regulate the way education is delivered. Indeed, A2P1 “by its very nature calls for regulation by the state”: Belgian Linguistic. For example, the State can pass laws making education compulsory or imposing health and safety requirements on schools.
- The right to education is not an absolute one. Limitations are permitted by implication given that the right by its very nature calls for regulation by the State: Sahin. However, any restrictions which the State imposes must must never injure the substance of the right to education nor conflict with other Convention Rights: Belgian Linguistic. They must be foreseeable for those concerned and pursue a legitimate aim, although the State is not limited to an exhaustive list of “legitimate aims” as under Articles 8 to 11: Sahin. The means must be reasonably proportionate to the legitimate aim: Sahin.
- The right to education does not in principle exclude disciplinary measures including suspension or exclusion from an educational institution in order to ensure compliance with its rules: Sahin. If a pupil is excluded from school the exclusion must be both necessary and proportionate.
- Schools are allowed to use admission policies so long as they are objective and reasonable. In R (Hounslow London Borough Council) v School Admissions Appeal Panel for Hounslow London Borough Council [2002] EWCA Civ 900; [2002] 1 W.L.R. 3147 the Court of Appeal held that an admissions policy which prioritised children within a school’s catchment area over those who had a sibling at the school did not violate the right to education. The Court emphasised that, where applications exceed the number of school places, admissions authorities have to use a fair process to make practical, objective decisions.
- Likewise, entrance examinations to identify the most meritorious students will not violate the right to education where they are proportionate and designed to ensure a minimum education level: Tarantino v Italy, Nos 25851/09, 29284/09, 64090/09, 9 September 2013.
- In R (Tigere) v Secretary of State for Business, Innovations and Skills [2015] UKSC 57; [2015] 1 W.L.R. 3820 the Supreme Court held that whilst the application of a ‘lawful ordinary residence’ criterion for obtaining a student loan was compatible with the appellant’s Convention Rights, the requirement that an applicant be ‘settled’ in the UK, in the sense of having indefinite leave to remain, was incompatible with Article 14 read with A2P1.
- Prisoners continue to enjoy the right to education whilst in prison (meaning the right to access the educational provision which already exists within the prison): Velyo Velev v Bulgaria, No. 16032/07, 27 August 2014.
- A delay in readmission to an educational establishment after the ill-health of a student can violate A2P1 where the delay is not proportionate to the legitimate aim pursued: Memlika v Greece, No. 37991/12, 6 January 2016.
What is protected by the second sentence of A2P1?
- Parents have a right to have their religious and philosophical beliefs respected during their children’s education. This right belongs to the parent rather than the student.
- This is not an absolute right. As long as these beliefs are properly considered, an education authority can depart from them provided there are good reasons and it is done objectively, critically and caters for a diversity of beliefs and world views.
- Parents may not refuse a child her right to education on the basis of their convictions.
- The right does not prevent the State from setting and planning the school curriculum, so long as it is objective and pluralistic so that parents religious or philosophical convictions are respected.
- A philosophical conviction (a belief, beyond an idea or opinion) must be worthy of respect in a democratic society, compatible with human dignity and not conflict with the student’s right to education. A refusal to accept corporal punishment at a school is an example of a philosophical conviction: Campbell and Cosans v United Kingdom, No 7511/76, 25 February 1982.
- When it first agreed to be bound by this Article under the European Convention on Human Rights, the UK entered a reservation to it to say that it accepts the need to respect parents’ religious and philosophical convictions but that it would do so only so far as it is compatible with providing efficient instruction and training and unreasonable public expenditure was avoided.
- The second sentence of A1P1 constitutes the lex specialis in the area of education in relation to Article 9 (freedom of religion): Folgero and Others v Norway No 15472/02, 29 June 2007.
- The second sentence does not include the right to admission a private school: Sanlisoy v Turkey, No 77023/12, 8 November 2016.
Further reading:
ECtHR’s Guide on Article 2 of Protocol No. 1 to the European Convention on Human Rights, 30 April 2021, available here.
Imogen Proud is a barrister at Monckton Chambers. This article first appeared on the set’s Education Law Blog.
