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The Human Rights Act in education

The right to education in the European Convention on Human Rights, coupled with the Human Rights Act 1998, may give a right to have a stammer properly taken into account in the education field. This is strengthened by the right under Article 14 not to be discriminated against in education.

However it is much easier to rely wherever possible on the DDA from September 2002 (rules on schools and post-16 institutions) and the Special Educational Needs framework, perhaps using the Human Rights Act to help interpret or supplement them if needed.

Right to education

Article 2 of the First Protocol to the European Convention on Human Rights reads

"No person shall be denied the right to education. In the exercise of any functions that 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."

(The UK has accepted the second sentence "only in so far as it is compatible with the provision of efficient instruction and training, and the avoidance of unreasonable public expenditure.")

The right to education in the first sentence has been held to include the following (Belgian Linguistic case and Campbell and Cosans v UK):

The right to an effective education is particularly important for anyone wanting a disability to be adequately taken into account in their education. In the case of S.P v UK, the European Commission on Human Rights declared inadmissible a complaint that a child's particular learning disabilities were not adequately taken into account. However, UK domestic courts looking at these issues may be called upon to examine educational provision more critically.

The right to have a child educated in accordance with parents' philosophical convictions may be relevant as to whether a child should be educated in a mainstream or special school. However, I am not aware that this is an issue for children who stammer.

Right not to be discriminated against

Under Article 14 of the Convention, the enjoyment of the rights and freedoms set out in the Convention must be secured without discrimination on various grounds. There is little doubt that these grounds include disability. Discrimination falling within the "ambit" (scope) of the right to education discussed above will contravene Article 14, even if there is no breach of the right to education taken on its own..

Clearly this could cover a case of direct discrimination. It is also arguable that Article 14 requires schools and other educational institutions to make reasonable adjustments to ensure that those with a stammer or other disability can reach their full potential to the same extent as others in the institution. If the institution provides education appropriate to the needs and capacities of non-disabled people but not does not provide education appropriate to the needs of (for example) those who stammer, then one would argue that those with a stammer are being treated differently because of their stammer. Sometimes children need to be treated differently to be treated equally.

"Discrimination" has a particular meaning in the Convention context. Discrimination means broadly that the person is treated differently, because of eg the disability, from people in a similar or analogous situation, and the different treatment "has no objective and reasonable justification", that is, if it does not pursue a "legitimate aim" or if there is not a " reasonable relationship of proportionality between the means employed and the aim sought to be realised". Caselaw on how far it includes indirect discrimination and an obligation to provide reasonable adjustments is undeveloped.

Other Articles of the Convention

Other Articles of the Convention may help in particular cases, for example Article 3 (inhuman or degrading treatment) in the case of fairly extreme mistreatment. In Costello-Roberts the court held with some misgivings that three blows by a headmaster on the clothed buttocks of a seven year old boy fell short of the minimum level of severity required to infringe Article 3.

Enforcement

So far as an educational institution is a "public authority", it can be sued for breach of Article 14 or other Convention obligations, without having to find some other cause of action to hang the claim on. It seems that state schools will be "public authorities". Independent schools (Costello-Roberts case) and further and higher education institutions may also be, at least as regards some of their functions. For more on giving effect to the European Convention through the Human Rights Act, see the main Human Rights Act page

Further information

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Last updated 30th May, 2002