The Joint Committee on Human Rights has called on the government to adopt a Bill of Rights that goes beyond the existing legislation. Kate Mills looks at the proposals that relate to education

The Human Rights Act has now been in force for more than eight years, and new extensions of this cultural phase are now in development. In August 2008 the Joint Committee on Human Rights released a report calling for the government to adopt an ‘aspirational’ UK Bill of Rights and Freedoms. Education has been singled out as one of the rights likely to be brought in.

Will the Bill of Rights replace the Human Rights Act?

The Bill of Rights, as is proposed, is not intended to replace the Human Rights Act, but to build upon it. The Bill of Rights proposed by the Joint Committee would act to supplement the rights with more generously defined indigenous rights. It would also include additional rights, such as the right not to be discriminated against on the grounds of sexual orientation. The Conservatives, on the other hand, are proposing that, if elected, they would replace the Human Rights Act with a Bill of Rights. The rights that would be enshrined in a Conservative Bill of Rights are likely to differ from those currently being proposed.

What sort of right to education is the Committee proposing?

The Committee has proposed the following rights, namely that:

  • Everyone of compulsory school age has the right to receive free, full-time education suitable to their needs.
  • Everyone has the right to have access to further education and to vocational and further training.

The Committee states that they believe that this right to education will make a real and practical difference to a number of ongoing human rights problems, such as the adequacy of educational provision for detained children.

Don’t we already have a right to education?

The right to education is internationally recognised in the Universal Declaration on Human Rights and the UN Convention of the Rights of the Child. The right to Education is also enshrined in the European Convention on Human Rights, which is incorporated into UK domestic law by the Human Rights Act 1998. This states that:

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.

The House of Lord has ruled in Ali -v- Headteacher and Governors of Lord Grey School in 2006 that the right to education was intended to guarantee fair and non-discriminatory access to the system of state education established in any member state and that it did not provide a right to education at a particular school.

Does this new proposed right to education differ from the existing right?

As the UK Bill of Rights is still in very early stages, it is not possible to say for certain what the right to education will include. Baroness Hale has said that the Bill of Rights would include a stronger right to education than exists in the European Convention. It appears that the proposed Bill of Rights will extend the already existing right to primary and secondary education to include further education and training after the age of 16. The government has recently brought in legislation raising the school-leaving age to 18, ensuring that 16- and 17-year-olds remain in school, training or apprenticeship. This only applies to children who turn 11 this year, so does not effectively start for five years. However, this potentially means that by the time a Bill of Rights is introduced to the UK, if the plans do go ahead, it may end up having little effect on this aspect of education.

Are there any other differences in the right to education in the proposed Bill of Rights and the existing right?

There is a difference in emphasis of the wording of the proposed right to education and the right to education to be found in the Human Rights Act. The Human Rights Act views the parents as the consumers. It requires the State to respect the views of the parents to ensure that the education provided conforms with their, rather than the child’s, religious and philosophical convictions. The wording in the proposed Bill of Rights confers no such right on parents; rather, it requires that the education provided is suitable to the child’s needs. This difference in emphasis may affect the way in which decisions regarding school applications are made and may require admission and placing authorities to pay more regard to the wishes and needs of pupils, rather than of parents. This forms part of a general move towards a more child-centred approach to education, which has already seen schools being allowed to stop teaching languages from the age of 14 and abandon some traditional lessons in favor of ‘theme based’ teaching.

Will my school be under new duties?

Local authorities (LAs) will be under a statutory duty to provide education, training or apprenticeships for children up to the age of 18, from 2015 onwards. This change is highly likely to come about before any Bill of Rights is enacted. As a result of this, schools and colleges are likely to be called upon to offer a greater range of courses and training post-16. While there are no immediate further duties on schools and LAs, it is important that those who work in education are aware of the proposed developments.

This e-bulletin issue was first published in February 2009

About the author: Kate Mills works at Browne Jacobson and specialises in social services, education and local government litigation and assisting in providing legal services to local authorities on a wide range of legal issues, including those relating to institutional abuse and professional negligence