The Right to Education is protected by Article 2, Protocol 1 of the Human Rights Act.

 

How might this right be relevant to my life?

This right protects our right to an effective education within the UK's existing educational institutions. It relates to primary, secondary, and higher education. Often, Article 2, Protocol 1 is used in conjunction with Article 14 of the Human Rights Act – The Right to be Free From Discrimination - you can read about this right here.

This right means that:

  • Children in the UK have access to an effective education in existing schools/institutions.
  • Religious and philosophical beliefs and principals of parents should be considered.
  • The curriculum set by an education authority, such as the national curriculum, must be objective and factual, meaning that parents or students religious or philosophical beliefs are respected.
  • It prevents the state from denying a person an education rather than creating a right for all children to be educated to secondary level.
  • The duty is on the state and not on any school/institution – for example, if an expelled pupil is able to have access to efficient education somewhere else, there would be no breach of his or her Right to Education.
  • Any studies that a student has successfully completed must be officially recognised.

This right does not mean:

  • The right to education is not a right to learn whatever a person wants, wherever they want.
  • Parents cannot stop schools teaching subjects such as sex education if they are reasonable things for the school to teach. Parents can remove their children from sex education classes.
  • The Right to Education does not prevent schools from imposing disciplinary measures on pupils, such as suspension or exclusion. Any such punishment must be lawful, pursued for a legitimate aim, and proportionate/least restrictive. Any pupil that is excluded or suspended, must be provided access to alternative state education.

Can the Right to Education be restricted by a public official?

Part of this right is absolute, which means that the government must provide access to education for all children in the UK and this cannot be restricted or limited for any reason.

Parts of this right are non-absolute, which means that it can be limited or restricted in certain circumstances. For example, the government can consider the needs and resources of the community in determining what educational provision is being made available. Resources should be distributed fairly to ensure inclusive education.

Considering parents beliefs and principals is also non-absolute. Meaning that a school does not have to adhere exactly to what the parents wish for as long as this can be objectively and reasonably justified. 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.

Like all other non-absolute rights, if the government (or any public official) is going to limit the Right to Education, the restriction must be:

Lawful

There must be a law which allows public officials to take the action or decision which restricts the Right to Education.

Legitimate

The restriction must be for a reason as set out in law. Legitimate reasons for restricting the Right to Education could be:

  • protect national security, territorial integrity (the borders of the state) or public safety
  • prevent disorder or crime
  • protect health or morals
  • protect the rights and reputations of other people
  • prevent the disclosure of information received in confidence
  • maintain the authority and impartiality of judges
Proportionate

The government or public body has to have thought about other things they could do, but there is no other way to protect you or other people. In other words, it must be the least restrictive option. This means that blanket, automatic restrictions that apply regardless of individual circumstances will be in breach of the Right to Education.

What duties do public officials have?

To respect your right: 

This means public officials (including the government) should not interfere with the Right to Education, unless it is necessary, and they can show that this is the case.

To protect your right: 

This means that the government and people working in public bodies should take ‘reasonable and appropriate’ measures to protect our Right to Education and include you in decisions that affect your life and education.

To fulfil your right: 

This means that when decisions are made about your life you must be treated fairly. When things go wrong, they should be investigated and steps should be taken to try and stop the same thing happening again.

In real life: Right to Education – Chrisann Jarett

Chrisann Jarett had been lawfully resident in the UK since she was 8 years old. When the time came to take her place studying Law at London School of Economics she found that changes to student loans made by parliament in 2011 meant she was not eligible for a student loan and was instead classified as an ‘international student’. This incurs higher tuition fees and means you cannot access the student loan scheme.

She was not the only one in this situation. Together with other young people frustrated by the system they started a campaign called ‘Let Us Learn’. They pushed for a change in this law that was stopping them from studying and in July 2015 they won a case that would pave the way for other migrants resident in the UK to have access to student loans.

Lady Hale, now President of the Supreme Court, presiding over the case found the Secretary of State for Business in breach of the Human Rights Act, Right to Education and the right to Non-Discrimination. This meant the appellant could now access student loans and be charged ‘home’ tuition fees.

Chrisann had already been awarded a full scholarship for LSE at the time, but continues to advocate for more migrants and young people who have difficulty accessing the education system.

(R (Tigere) v Secretary of State for Business, Innovations and Skills [2015] UKSC 57)

You can read more about Chrisann's campaign on the blog she wrote for us https://www.bihr.org.uk/Blog/15doa-oct16 

In real life: Right to Education - Lucas

Lucas has autism, Pathological Demand Avoidance, and learning disabilities. He was excluded from school after an incident in which he hit a teaching assistant. The school argued that Lucas’s behaviour amounted to ‘a tendency to physical…abuse of other persons’ which meant that the protection from discrimination that he would otherwise be afforded by the Equality Act 2010 would be removed.

Lucas spoke to an advocacy organisation who had recently heard of a very similar case that had gone to court. The court said that the human rights compliant interpretation of the law meant that the pupil met the definition of a disabled person under the Equality Act, and should be protected from discriminatory decisions, including those relating to school exclusion.

The advocacy organisation helped Lucus to challenge the decision using the Right to Education and the Right to be Free from Discrimination (Article 14) of the Human Rights Act. It made the school rethink their position, who agreed to allow Lucas to return to school with additional support.

Example from BIHR’s advocacy work with ALLFIE