The right to education in Scotland

Education law is an underdeveloped area in our legal system. Rarely taught or practised in Scotland, it lacks the detail and precision found in more popular legal fields. However, successive governments, sensitive to the electoral importance of education, have increasingly empowered parents and this has resulted in a slow but steady rise in litigation throughout the UK.

Scottish solicitors are beginning to find more legally aware parents in their waiting rooms. These clients are unhappy with the legal profession’s disinclination to become involved in education. Many turn to English solicitors who, while knowledgeable about English education law, are unable, and understandably unwilling, to provide advice on Scottish law.

The individual’s right to education is enshrined in the European Convention on Human Rights. Until now, the interests of Scottish education “consumers” have rarely overborne those of the State – in legislation or practice. The Human Rights Act 1998, which requires all domestic legislation to be “read and given effect to in a way which is compatible with the Convention rights”, may well strengthen the private client’s position.

The 1998 Act, which came into force on 2 October 2000, gives affected Scottish individuals direct access, within domestic courts, to their Convention Rights. It also provides a mechanism by which any incongruous Scottish law may be overridden.

The right to education

The fundamental right to education is enshrined in Article 2 of protocol 1 of the European Convention of Human Rights (ECHR). The right is expressed negatively and reads - “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 right to education is specifically defined to include children in the UN Convention on the Rights of the Child. Article 28 provides for the recognition by state parties of the “Child’s right to education”. There is scope, within the definition of human rights, for conflict between the rights and interests of parents, and those of their children.

When the UK ratified the ECHR, the following reservation was made in relation to Protocol 1- “in view of certain provisions of the Education Acts in force in the United Kingdom, 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 expenditure”.

The above reservation has made it easier for the UK to contain the individual’s right to education within the financial and political limitations imposed by domestic law. As with many “substantive guarantees” provided for at the European level, it has been observed that the right to education is diluted in Scottish legislation and practice.

Over the years, domestic legislation has constructed a network of educational duties and rights. These rights and duties can be found in the Education (Scotland ) Act 1980, as amended, (the 1980 Act) and subsequent legislation. The terms of the 1980 Act have been expanded and amended over the last two decades. The most recent primary legislation is the Standards in Scotland’s Schools (Scotland) etc Act 2000, (the 2000 Act).

The duties and rights of greatest interest to the solicitor in private practice are likely to be those of the State, parents and children.

1 The State duty to educate

The State discharges its duty to provide education through “education authorities”. Each local authority is an education authority for the purposes of the 1980 Act.

Section 1(1) of the Education (Scotland) Act 1980 provides for the duty of each education authority to “secure that there is made for their area adequate and efficient provision of school education”.

A “school education” for the purposes of the 1980 Act means “progressive education appropriate to the requirements of pupils in attendance at schools, regard being had to the age, aptitude and ability of such pupils”

The language of the 1980 Act is typically expressed in the negative, referring to defined duties placed upon the education authority and parents rather than rights provided to individuals. In contrast, the first section of the 2000 Act, drafted with an eye on the Human Rights Act 1998, refers to the “Right of every child of school age to be provided with school education by, or by virtue of arrangements made, or entered into, by an education authority”. Although this provision establishes, for the first time in Scotland, a statutory right to education, it is unhelpful as it does not refer to quality or quantity of education to be provided.

The most interesting provision in this area is that of section 2(1) of the 2000 Act, which states that, in providing education, it shall be the duty of each education authority to secure education that is - “directed to the development of the child’s personality, talents and mental and physical abilities to their fullest potential”.

These words have been taken from Article 29 of the UN Convention on the Rights of the Child, and represent the first time domestic legislation has provided for State education to be centred on the needs of the individual child. It is important that there is no financial or policy qualification found in section 2(1) to detract from the duty to educate towards fullest potential. There has, as yet, been no reported litigation on this section of the 2000 Act.

To date, courts have seldom had the opportunity to consider the nature of the State duty to educate and there are few reported Scottish Education cases. This might be because current legislation precludes the automatic involvement of courts in certain areas, often deferring the decision making role to the Scottish Ministers, or because private individuals have not taken legal advice.

In Walker v Strathclyde Regional Council (No. 1), Lord Davidson defined the duty to provide “adequate and efficient” education as a very “general” duty, and one which was qualified by a number of factors including resources, cost and practicability. Caselaw to date has confirmed this reductive interpretation of the section 1(1) duty to educate in an “adequate and efficient manner”.

However, unlike the words, adequate and efficient, “age, aptitude and ability” are factors susceptible to more precise measurement. These words have not yet been at the centre of reported caselaw but are likely to be founded upon in the future. The age of a child can be calculated exactly. The aptitude and ability of a child can now be measured with some accuracy on national test scales.

It must also be noted that section 2(1) of the 2000 Act suggests that the words “adequate and efficient” should now be defined in a way which deems the child’s development to be more important than the budgetary constraints which have formerly taken precedence. Domestic law is thus evolving, in accordance with Convention Rights, to place more emphasis on the individual child.

2 Parents - duties and rights

Parents have a duty under the 1980 Act to provide efficient education suited to their child’s age, aptitude and ability.

The term “Parent” is widely defined in Education Law, and includes anyone who holds parental responsibilities and rights, has a duty to maintain, or has care and control of a child. This definition accommodates, for example, unmarried fathers, relatives, friends, step-parents and foster carers who may not have parental responsibilities and rights but have care and control of a child. This is one of the widest definitions of the term “parent” in Scots law.

It should be noted that section 35(1) of the 1980 Act creates a criminal offence where parents do not fulfil their statutory duty to ensure their child receives appropriate education. The effect of the statutory definition is to increase the mass of private individuals who have responsibilities, or duties, in educating children and to decrease overall State responsibility to secure education.

The parental duty to educate can be fulfilled by sending a child to a State school, another type of school or by any competent means. Where a child attends a State school, section 28(1) of the 1980 Act imposes the following duty upon the State - “education authorities shall have regard to the general principle that, so far as compatible with the provision of suitable instruction and training and the avoidance of unreasonable public expenditure, pupils are to be educated in accordance with the wishes of their parents.”

There are three main ways in which an education authority’s failure to educate in accordance with parental wishes can be challenged in court by parents.

The first way this can be done is where statute has provided a right of appeal to the Sheriff Court. An obvious example of this is where parents make a placing request for their child to attend a school, other than the school nominated for their child by their education authority.

Upon a parent making of a placing request, section 28A(1) of the 1980 Act provides for the “duty of the [education] authority… to place the child accordingly”, unless one or more of eleven statutory refusal grounds exist. Where a placing request fails, parents may appeal against that decision to the Sheriff Court.

A great number of placing requests are made annually and almost all of these are successful. There are therefore few reported cases. It is clear that, on appeal, the Sheriff has the power to consider all of the circumstances of the case. Legislation provides for the sheriff to refuse to confirm the decision of education authority appeal committee unless he finds that the grounds stated for refusal exist, and, that it is reasonable in all of the circumstances to do so.

Secondly, parents may seek a Judicial Review of a decision made by an education authority in the pursuance of its statutory duties. So far, this has happened comparatively frequently where school closures have been proposed. The Court of Session has shown its unwillingness to police what is seen as the wide statutory discretion of local government.

In Harvey v Strathclyde Regional Council, a parent judicially reviewed the proposed closure of her child’s local school. In view of the overwhelming parental opposition to the closure of the school, the Outer House held it was for the education authority to satisfy the court that it had shown due regard for the wishes of the parents concerned. That decision was appealed to the Inner House, which held that the Outer House decision was “entirely wrong”. The Inner House judgment was given by the Lord President (Lord Emslie), who commented on the test the petitioner required to satisfy – “This court may only interfere with the carrying out of the respondents’ intention (to close the school) if it is satisfied that the decision to go ahead now is so obviously unreasonable that no reasonable education authority would have taken it”.

The court’s interpretation of the statutory “general principle” to educate in accordance with parental wishes was that it amounted to little more than one of many factors to which a reasonable education authority should have regard throughout the decision-making process.

In the later cases of King v East Ayrshire, and Regan v City of Dundee Council,  it was argued by parents that respective education authorities had committed procedural errors prior to closing local schools. These errors had resulted in parental views being unheard and in one case correcting the error would likely have resulted in the authority being required to abandon the closure. Both cases failed.

Upon Judicial Review, parents have normally been unable to satisfy the courts that a decision made by an education authority has been taken in breach of its Section 28(1) duty.

A third way in which parents may now challenge an education authority is by making use, in Scotland, of their Convention rights. The Human Rights Act 1998 provides for all legislation to be read and given effect to in a way compatible with Convention rights and, where compatibility is impossible, for a declarator of incompatibility to be made. Domestic law would then be changed.

In mounting a “Convention” challenge, parents would not be attacking the decision of an education authority, but rather the entire legal framework within which the education authority operates. In reality, parents could argue that education authorities are prevented, by State law, from fulfilling their legal duties. This can also be done by way of Judicial Review.

It must be noted that domestic law reflects the UK reservation to the ECHR right to education and whether the education authority’s duty in relation to parental wishes in fact gives rise to an enforceable parental right is yet unclear.

3 Children - duties and rights

The State has a duty to provide school education to pupils of school age (largely between the ages of five and sixteen). In the case of special educational needs, a “school education” may continue beyond sixteen, and the duty to educate is owed until any such education ceases. The parental duty to educate in education law is also restricted to children of school age.

European and domestic legislation confirms the right of the child to be educated within the State school system. With limited exceptions, domestic provisions do not give children the power to pursue violations of their right to education independently. The child’s right may only be enforced at the instance of another individual defined in education legislation as a “parent”. While there is scope for a wide variety of adult carers to utilise all legal provisions regarding a child’s right to education, a legally competent child may not do so.

Provision has been made in State law for parents to view their child’s school records. Pupils may not do so unless their parents consent or they are over the age of 16. A pupil cannot make a placing request to a school he or she wishes to attend, or appeal against a refusal of any such request made. The 1980 Act requires this to be done by his or her parents.

The legal anomaly has been illustrated in the caselaw.  In Taylor v Fife Regional Council a pupil raised legal action for damages against her local authority as a result of an accident which took place at school. Any child competent to instruct a solicitor could do this but the same child may not, in terms of domestic legislation, seek enforcement of any statutory duty breached in relation to his or her right to education.

Domestic law has, admittedly, made provision for children to express a view to which regard must be had, both by parents, and education authorities.

Section 6 of the Children (Scotland) Act 1995 requires “parents” to have regard to the views of their child when making “major decisions” about education. It is a difficulty that the requirement laid down in the 1995 Act applies only to “parents” as defined within that Act. This means the wider group of individuals included in the education law definition of “parent” (eg. Foster carers and grandparents) are not legally required to take account of children’s views.

In addition, there is no simple way of policing the parental requirement to take account of a child’s views. In an unreported case last year, a mother forced her son and daughter to attend a special school for autistic children against their will. The children’s panel later became involved and court action was raised. The children were assessed by independent doctors who

confirmed neither of them were autistic. It was said that their removal from mainstream education had already resulted in “a significant level of impairment to their development”.

Section 2(2) of the Standards in Scotland’s Schools (Scotland) etc Act 2000 obliges an education authority, in fulfilling its duty to educate, to – “have due regard, so far as is reasonably practicable, to the views (if there is a wish to express them) of the child or young person in decisions that significantly affect that child or young person, taking in to account the child or young person’s age and maturity”

It should also be noted that Section 40 of the 2000 Act now provides that any child competent to instruct a solicitor may appeal against his or her exclusion.

While it is true that younger children will normally defer to their parents’ choices in respect of their education, older children and teenagers may not. Section 2 (2) of the 2000 Act echoes the child’s “Article 12” right to express a view “freely” and gives pupils, for the first time in Scottish education law the opportunity to be heard. It does not, however, give children a right of action unless another provision specifically legislates for that.

The impact of the Human Rights Act 1998 is likely to empower children in the future. Section 7 of the 1998 Act makes provision only for the “victim” of an unlawful act carried out by a public authority to rely on his or her Convention rights in proceedings. It could be assumed that children competent to instruct a solicitor may now pursue violations of their Convention Rights – that includes all aspects of the right to education. Since the 1998 Act makes provision for law incompatible with Convention rights to be changed, there is certainly scope for children to become a new generation of private clients in the Education law field.

Conclusion

The Human Rights Act 1998 now provides that all domestic rights and duties are circumscribed by the principles of Convention Law. The Act’s provisions allow for the restructure of Scottish Education Law to accommodate a more “consumer” friendly approach to the right to education.  Given the new legal possibilities and growing client interest, the legal profession can expect to be increasingly called upon to facilitate education litigation.