“The Right to Education and the Supreme Court”
07 Wednesday Jul 2010
As Brian Simpson explains in his Human Rights and the end of empire: Britain and the genesis of European Convention (Oxford, 2001), Chapter 15, the First Protocol to the European Convention – which sets out in its three articles, respectively, the right to property, the right to education and the duty to maintain democratic institutions (subsequently read by the European Court of Human Rights as containing a subjective right to vote) – exists as a Protocol outside the main text of the Convention because no consensus could initially be reached about the recognition of these claims as being fundamental rights. The right to property, to education and to vote were considered “problematic” by the remaining post-WWII colonial European powers (Britain, France, Belgium, Netherlands and Portugal). They were concerned about the possible impact of the acceptance of these rights on their rule over their remaining overseas territories.
Brian Simpson summarises the prevailing official attitude in these countries thus: (at page 758):
“Many colonial powers had rudimentary systems even of primary education, or none at all; the provision of schools might be largely in the hands of missionaries. For many societies education, in the sense of schooling, was a wholly alien idea. As for political participation in British colonies there were wide differences, and in some there was no democratic participation in government at all. In other colonial empires the situation was much the same, with wide variations; in the Belgian Congo, for example, there were virtually no opportunities for the indigenous inhabitants to play any part in government except a minor functionaries. Where democratic participation did exist, electoral systems might exclude the major part of the population. As for universal suffrage it was a very modern phenomenon even in Europe, and any idea that it could be mandated for all colonial territories at this time was fanciful.”
In the event, the United Kingdom accepted the Convention right to education as set out in Article 2 Protocol 1 under express reservation. The terms of this reservation are incorporated into UK law by Section 15(1)(a) and Part II of Schedule 3 to the Human Rights Act. Article 2 of Protocol No. 1 to the European Convention is in the following terms:
“Right to education
“[i] No person shall be denied the right to education.
[ii] 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.”
And the UK’s reservation thereto states that “the principle affirmed in the second sentence of Article 2 is accepted by the United Kingdom only so far as compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure”. It may be noted that, by implication, the United Kingdom accepts unreservedly the principle that “no person shall be denied the right to education” set out in the first sentence of Article 2 Protocol 1.
There has in recent years been a substantial body of Strasbourg case law on this provision. The Strasbourg court takes a broad view of what constitutes education, noting in Campbell and Cosans v. United Kingdom (1982) 4 EHRR 293 at paras 33, 40-1 as follows:
33. …. [T]he education of children is the whole process whereby, in any society, adults endeavour to transmit their beliefs, culture and other values to the young, whereas teaching or instruction refers in particular to the transmission of knowledge and to intellectual development …. [and] the process whereby a school seeks to achieve the object for which it was established, including the development and moulding of the character and mental powers of its pupils.
40. … Article 2 (P1-2) constitutes a whole that is dominated by its first sentence, the right set out in the second sentence being an adjunct of the fundamental right to education. ….[T]here is also a substantial difference between the legal basis of the two claims, for one concerns a right of a parent and the other a right of a child. The issue arising under the first sentence is therefore not absorbed by the finding of a violation of the second.
41. The right to education guaranteed by the first sentence of Article 2 (P1-2) by its very nature calls for regulation by the State, but such regulation must never injure the substance of the right nor conflict with other rights enshrined in the Convention or its Protocols”
And as the Grand Chamber noted in Leyla Sahin v. Turkey (Judgment of 10 November 2005) at paras 152, 154-5:
“152. The right to education, as set out in the first sentence of Article 2 of Protocol No. 1, guarantees everyone within the jurisdiction of the Contracting States “a right of access to educational institutions existing at a given time”, but such access constitutes only a part of the right to education. For that right “to be effective, it is further necessary that, inter alia, the individual who is the beneficiary should have the possibility of drawing profit from the education received, that is to say, the right to obtain, in conformity with the rules in force in each State, and in one form or another, official recognition of the studies which he has completed”. Similarly, implicit in the phrase “No person shall …” is the principle of equality of treatment of all citizens in the exercise of their right to education. …
154. [A] limitation will only be compatible with Article 2 of Protocol No. 1 if there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.
155 Such restrictions must not conflict with other rights enshrined in the Convention and its Protocols either. The provisions of the Convention and its Protocols must be considered as a whole. Accordingly, the first sentence of Article 2 of Protocol No. 1 must, where appropriate, be read in the light in particular of Articles 8, 9 and 10 of the Convention.”
Consistently with this need to read the right to education in the light of other Convention rights, in Emine Araç v. Turkey (Judgment of 23 September 2008) the Strasbourg Court observed as follows:
“[I]n its recent case-law the Court, leaving the door open for the application of Article 6 to the right to education, has consistently examined whether proceedings concerning the regulations on higher education conform to the requirements of Article 6 § 1 (see, by way of example, Mürsel Eren v. Turkey (dec.), no. 60856/00, 6 June 2002; D.H. and Others v. the Czech Republic (dec.), no. 57325/00, 1 March 2005; and Tig v. Turkey (dec.), no. 8165/03, 24 May 2005).
Accordingly, given the importance of the applicant’s right to continue her higher education (as regards the key role and importance of the right of access to higher education, see Leyla Sahin v. Turkey (Judgment of 10 November 2005, Grand Chamber), the Court does not doubt that the limitation in question, imposed by the regulations in issue, fell within the scope of the applicant’s personal rights and was therefore civil in character.”
In case law emanating from the Court since about 2006 there has been an undoubted firming up of the approach to the Article 2 Protocol 1 right to an education as an individual subjective or personal right, rather than simply a general aspiration or aim in public law. This subjective right can now successfully be prayed in aid to challenge the Convention compatibility of individual expulsion or suspension decisions from particular educational institutions, or may be relied upon to test the quality of such education is being provided to individuals. Thus, in Eren v Turkey (2007) 44 EHRR 28 the Court held that if the State fails to ensure to an individual “effective access to such educational facilities as the state provides for such pupils” this may constitute a breach of Article 2 Protocol 1: whether (as in Timishev v Russia (2007) 44 EHRR 37) such exclusion from the education system is a result of an act which is unlawful in domestic law; or (as in DH v Czech Republic (2008) 47 EHRR 3 Grand Chamber)) results from the application of an ex facie valid and lawful domestic policy regarding the placement of children in special school which, however, resulted in Roma children being isolated from pupils from the wider population and educated to a more basic curriculum than was followed than in ordinary schools, resulting in their receiving “an education which compounded their difficulties and compromised their subsequent personal development instead of tackling their real problems” (see similarly Oršuš and Others v. Croatia Judgment of 16 March 2010, Grand Chamber).
In Irfan Temel and Others v. Turkey (Judgment of 3 March 2009) the Strasbourg Court considered a claim to breach of Article 2 Protocol 1 in respect of the suspension by the authorities of Afyon Kocatepe University of a number of their students for periods of between one and two terms as a disciplinary measure against them in response to their petition to have classes available in the university in the Kurdish language. There was no allegation or complaint to the effect that the students had been systemically excluded from the high education system as a whole in Turkey. In upholding the complaint of a breach of Article 2 Protocol 1 and awarding EUR 1,500 to each of the complainant students, the Strasbourg Court observed as follows:
“The applicants’ suspension from the university for either one or two terms, in the Court’s view, constituted a restriction on their right to education, notwithstanding the fact that they had been admitted to the university to read the subject of their choice in accordance with the results they had achieved in the university entrance examination (see, mutatis mutandis, Leyla ?ahin, cited above, § 157). …
In the particular circumstances of the case and for the reasons stated above, the Court considers that the imposition of such a disciplinary sanction cannot be considered as reasonable or proportionate. Although, it notes that these sanctions were subsequently annulled by the administrative courts on grounds of unlawfulness, regrettably by that time the applicants had already missed one or two terms of their studies and, thus, the outcome of the domestic proceedings failed to redress the applicants’ grievances under this head.
It follows that there has been a violation of Article 2 of Protocol No. 1 to the Convention.”
What this decision also shows is that the Convention jurisprudence on the right to education has developed in line with the approach to the Convention as a “living instrument” so that it can no longer properly be said – as appeared to be the position in 1989 in the Commission decision in the case of Simpson v United Kingdom (1989) 64 DR 188 - either that the Convention does not guarantee access to any particular educational institution the domestic system does provide, or that a breach of Article 2 of the First Protocol of the ECHR requires evidence of a systemic failure of the national educational system as a whole resulting in the individual not having access to a minimum level of education within it.
And yet this change in the Strasbourg approach to the Convention right to education appears not to be reflected in the UK case law to date which has considered the matter. The leading case on the issue is Ali v Head Teacher and Governors of Lord Grey School  UKHL 14,  2 AC 363 (which pre-dated the decisions in most of the Strasbourg cases mentioned above) where Lord Bingham observed that the guarantee in Article 2 Protocol 1 was:
“[I]n 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 … The test, as always under the Convention, is a highly pragmatic one, to be applied to the specific facts of the case: have the authorities of the state acted so as to deny to a pupil effective access to such educational facilities as the state provides for such pupils?’
While this may have been a not wholly inaccurate summary of the state of the Strasbourg jurisprudence as at March 2006, it cannot be said now properly to capture Strasbourg current approach to Article 2 Protocol 1. And yet in its decision of 23 June 2010 in the Northern Ireland appeal JR 17  UKSC 27, the UK Supreme Court refers to and relies upon Lord Bingham’s approach in Ali v. Lord Grey School as if it were writ in tablets of stone and appears to hold that an individual’s suspension from school cannot be “translated” into a denial of the Convention right to education if some (however inadequate) provision were made for his continuing education at home, though Baroness Hale clearly expresses some unease with this finding when she notes (at para 103):
“Left to myself, I might have thought that three months out of school in the run-up to important public examinations was indeed to deny him effective access to the educational facilities which the state provides for year 12 pupils. He should not have been relegated to eight hours’ tuition a week for six weeks. But I appreciate that others think and have thought that it may be enough to be “effective”.
Both the House of Lords decision in Ali v. Lord Grey’s School and the UKSC decision in JR 17 were concerned with the Convention right to education being relied upon in support of a just satisfaction damages claims in respect of suspension decisions from school. In both cases these courts were clearly concerned, as a matter of policy, to try to limit such damages claims and it is against that background that some of their observations on the extent of the relevant Convention rights may be understood. But it remains the case that if the court is properly to take account of the relevant Strasbourg case law, the claim which continues to be made that the Convention right to education under Article 2 of Protocol 1 ECHR is a “weak” right requiring access only to general education system in the State, rather than requiring the State authorities to allow or facilitate an individual’s access to any specific institution or education provision is simply not sustainable in the light of the more recent Strasbourg jurisprudence set out above.
There is the opportunity to the UK Supreme Court to reconsider its approach to, or understanding of, the Convention right to education in the light of the more recent Strasbourg case law in the decision which is awaited from it in the case of A v. Essex County Council. The judgment of the Court of Appeal was handed down on 16 April 2008 (A v. Essex County Council  EWCA Civ 364,  ELR 321) and the UK Supreme Court heard the appeal from this decision on 24 March 2010. The issue in the case is whether or not a failure to provide a disabled child with an effective education as a matter of law can constitute a breach of Article 2, Protocol 1 ECHR and therefore justify an award of damages. The appellant (A) is a child with special educational needs, suffering from severe autism, epilepsy and learning difficulties. He was excluded from school due to his propensity for violence and thereafter remained at home pending medical assessment. It took 19 months for the Respondent to make suitable alternative educational provision for him. A alleges that he was adversely affected as a result such as to infringe his rights under Arts 3, 8, 14 and Art 2 of Protocol 1 ECHR such as to give rise to an entitlement to just satisfaction damages. The Court of Appeal did not consider that the particular circumstances of enforced exclusion from schooling was such as to engage any of the Convention rights relied upon and so no liability for damages arose under the Human Rights Act.
It is to be hoped that in its judgment in this case the UK Supreme Court will take the opportunity of explaining quite how their analysis of Article 2 Protocol 1 as a “weak right” engaged only by “systemic violations” of general education provision is consistent with the greater emphasis seen in this more recent Strasbourg jurisprudence on the subjective rights of an individual not to be suspended or expelled from the educational establishment in which he is duly enrolled or otherwise to obtain effective access to educational provision of a sufficient standard or quality. If a policy decision is being taken by the UK courts to discourage just satisfaction damages claims against schools in respect of their expulsion/suspension decision then this should be stated plainly and unequivocally.