scots law
basic advice from govan law centre

Human rights in the classroom









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What are Human Rights?
Human Rights are often referred to as civil liberties or fundamental freedoms.  They are basic legal rights, often applying across international boundaries.  Human rights often take precedence over other legal rules.

Some international human rights have found their way into Scots law.

The United Nations Convention on the Rights of the Child says that the best interests of children are to be a primary consideration.  This is now reflected in the Children (Scotland) Act 1995.  The UN Convention also says that children's own views should be given due weight and consideration.  This rule can now be found in both the Children (Scotland) Act 1995 and the Standards in Scotland's Schools etc. Act 2000.  Also in the 2000 Act is a provision that education should be directed to the development of each child's personality, talents and physical and mental abilities to their fullest potential.  This, too, is taken from the UN Convention.

The most part of the European Convention of Human Rights (ECHR) is now part of Scots law, since the coming into force of the Human Rights Act 1998.

 
What does the Human Rights Act 1998 do?
All Acts of the Westminster Parliament (such as the Education (Scotland) Act 1980) are to be interpreted in line with the Convention rights.

Acts of the Scottish Parliament (such as the Standards in Scotland's Schools etc. Act 2000) are only valid insofar as they are compatible with the ECHR.  [This is due to the Scotland Act, not the Human Rights Act].

It is unlawful for a "public authority" (such as an Education Authority) to act in a way which is incompatible with Convention rights.

If a Convention right has been breached, the victim can bring legal action against the authority, or raise the point in an existing court action between the two.

The court or tribunal can give any remedy within its powers as it considers just and appropriate (including compensation).

 
What are the Convention Rights?
There are several.  Article 2 of Protocol One deals directly with education:
No-one is to be denied the right to education.  This assumes a pre-existing right to education, such as now exists for children of school age in Scotland.

The State must respect the right of parents to ensure that their child's education conforms with their religious and philosophical convictions.  This latter provision is accepted by the UK only insofar as is compatible with the provision of efficient instructions and training and the avoidance of unreasonable public expenditure.

 
Special Educational Needs
Several human rights cases have been brought either arguing that children in mainstream schools should be educated in special schools or vice-versa.  The European Court of Human Rights allows States a wide discretion ("margin of appreciation") on how best to use its resources to benefit children with disabilities.

 
Curriculum
The setting of a curriculum is also said to be within a State's margin of appreciation.  Parents cannot insist that a curriculum be altered in line with their own religious or philosophical convictions.  However, the Court has stated that information and knowledge should be conveyed in an "objective, critical and pluralistic manner" i.e. indoctrination is banned.

 
Discrimination
In securing Convention rights for children (and others), public authorities must not discriminate on the grounds of: language; religion; political or other opinion; national or social origin; association with a national minority; property; birth or other status (incl. disability).

 
Discipline
Disciplinary penalties are not necessarily a breach of human rights.  Indeed, they are seen as an integral part of schooling. 

Disciplinary measures or punishments must not amount to inhuman or degrading treatment.

Disciplinary measures must not conflict with the parents' religious or philosophical beliefs.

Disciplinary measures must not interfere with a child's right to liberty (e.g. compulsory detention).

Disciplinary measures must not interfere with a child's right to peaceful possession of property (e.g. confiscated items should usually be returned).

Disciplinary measures must not have a discriminatory effect.

If it is arguable that a disciplinary measure would breach a child's Convention rights, there should be an opportunity to challenge the punishment.

 
Exclusion
Punitive exclusion from school is not, in principal, a breach of the right to education, although it will be subject to close scrutiny if there is no alternative education offered.

 
Home Education
It is unclear whether the right to education includes a right to educate at home.  The State can make school compulsory and can impose penalties for non-attendance.  The State may impose conditions and regulate home education where it is permitted.  These are not breaches of a child's or parent's human rights.

 
School Uniform
It is not a breach of a child's human right to freedom of expression to insist on the wearing of school uniform during school hours.

© Education Law Unit
Govan Law Centre
Glasgow
11 July 2002