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The Children’s Law Centre
Submission to Review Body on Post Primary Education
7th February 2001
Relevant Law
Human Rights Act 1998
European Convention on Human Rights
UN Convention on the Rights of the Child
Introduction
Under the Human Rights Act 1998 the provisions of the European
Convention on Human Rights are now part of the domestic law
of the United Kingdom, including the jurisdiction of Northern
Ireland. Under section 6 of the Act it is unlawful for a public
authority to act in a way, which is incompatible with a Convention
right. The scope of the term ‘public authority’
is very broad and is known to include government departments
and ministers and those who draw up law and policy. It is
certain also that the obligation applies to principals and
teachers. Under section 7 of the Human Rights Act a person
aggrieved by an act or omission on the part of a public authority
and believing it to be incompatible with the Convention, may
challenge that act or omission in the courts and rely on Convention
rights in such proceedings. Section 8 provides for remedial
powers in the event that a breach of the Convention is found
to have occurred.
In order to be compatible with the Human Rights Act 1998,
therefore, it is essential that any review of the educational
system in Northern Ireland takes into account the state’s
obligations under the European Convention on Human Rights
(ECHR) as interpreted by the European Commission and Court
of Human Rights. Any failure to do so may result in the system,
any part of it, or its impact on an individual child or parent
being challenged in the domestic courts.
The following provisions of the ECHR are deemed relevant
to this review:
Article 2 of the First Protocol to the Convention provides:
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.
Article 14 provides
The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with
a national minority, property, birth or other status.
ECHR Case Law
The Right to Education: the Child’s Right
The first sentence of Article 2 of the First Protocol sets
out the right to education, which belongs to children. It
is the dominant part of the provision and prevails should
a conflict with parental rights under the second sentence
emerge.[1] Thus, parental convictions must never be respected
in a manner, which injures the right to education itself.
The Court of Human Rights has established that this provision
permits States to recognize a right to education, which stops
short of requiring them to establish at their own expense
education of any particular type or level.[2] The provision
is thus limited to providing a right to avail of the 'means
of instruction existing at a given time' and this suggests
that the right to education enjoyed by the child may vary
from one state to another. Importantly however, where developments
in the education system of a particular State lead to the
establishment of a new type of education, Article 2 of the
First Protocol requires that access to it must be extended
to all eligible persons. The domestic authorities will determine
who these ‘eligible persons’ are. What is clear,
however, is that the primary objective of the provision is
to guarantee a right of equal access to existing educational
facilities.[3]
Despite its negative formulation, the European Court of Human
Rights has not ruled out that the right to education may place
a positive obligation on the State.[4] Indeed, it has held
that the State has an obligation to secure to children their
right to education under Article 2 of the First Protocol.[5]
According to the Court, this fundamental right is a right
guaranteed equally to pupils regardless of the school they
attend.[6]
It is consistent case law of the European Court of Human
Rights that the Convention is intended to guarantee rights
that are practical and effective. Applying this rationale
to the right to education, it is clear that the State may
be required to take action to remove obstacles in the way
of children gaining access to the education available. It
is also possible to deduce from Strasbourg law the principle
that the right to education includes the right to draw benefit
from the education achieved.[7] The weight in these arguments
is enhanced further by reference to Article 14 of the Convention,
which prohibits discrimination in the enjoyment of Convention
rights. Specific grounds on which discrimination is prohibited
include ‘property’, or economic status, ‘social
origin’ or background, or the open ended ‘other
status’. It is clear, therefore, that a child who suffers
discrimination in the enjoyment of his/her right to education,
or in drawing benefit from the education achieved and where
this can be attributed to his/her economic status or social
background or any other arbitrary factor may have a prima
facie case under Article 2 of the First Protocol, taken with
Article 14. Therefore, unless the State can prove that this
difference in treatment is objective or reasonable then a
clash with the Convention under the Human Rights Act 1998
is inevitable.
With regard to the Research Report into the Selective System
in Northern Ireland, there is considerable evidence that all
children are not enjoying their right to education equally.
In particular, the system of secondary education is polarized.
Thus, children from socially advantaged backgrounds go to
grammar schools whose clearly defined academic curriculum
means that they are far more likely to achieve academically.
On the other hand, children largely from disadvantaged areas
attend secondary schools, which generally suffer from low
status in society, whose pupils suffer from low self-esteem
following their ‘failure’ in the test, and whose
teachers must offer a more supportive, holistic educational
environment and serves a multitude of objectives because of
the varying abilities of their pupils. Both pupils and teachers
are aware of this distinction between grammar and secondary
schools, which serves to perpetuate it further. Moreover,
the fact that parents feel obliged to pay for out-of -school
coaching, which not everyone can afford, widens this gap.
This raises clear questions about the compatibility of the
system with Article 2 of the First Protocol, together with
Article 14.
There are other groups too whose ability to participate in
the selective process is undermined by existing disadvantage,
for which they are not themselves responsible. Equality of
opportunity is not enjoyed by children with physical or learning
disabilities, ethnic minority children who do not have English
as their first language, or Traveller children who may attend
schools in which the state exam is not offered at all. Moreover,
the fact that a more holistic child-centered education is
preferred for some of these children presents difficulties
in the current selective educational system, which rewards
only academic achievement. The inability of these groups to
participate in the selective process on an equal footing with
their peers serves to underline their existing inequality
of access to an effective non-discriminatory educational system.
Further questions must be raised as to whether the focused
teaching and learning arising from test preparation denies
primary school pupils the full entitlement of the common curriculum.
The fact that other areas of the curriculum like music and
art are neglected during the long period of test preparation
and that pupils not entered into the test, estimated at one
third, may not receive the same attention from their teachers
adds further weight to the argument that the system as a whole
is not conducive to securing the right to education of all
children, as required by the European Convention on Human
Rights.
The point about accessing the curriculum also falls to be
made in relation to the schooling children receive on progression
to secondary level. It is well documented throughout the Research
Papers and other material that pupils attending grammar schools
encounter an almost exclusively academic programme of study
and attend schools in which they are judged solely on the
basis of academic success. According to the Research, pupils
in secondary schools, however, arrive there with a sense of
failure and a key priority for the schools therefore is to
seek to re-establish a sense of self-worth. Out of necessity,
therefore, their educational environment is thus a more supportive
and caring one. The result is therefore that neither school
is free to choose its approach to education within these two
extremes and pupils are consequently denied that balance.
Right to have Religious and Philosophical Views Respected:
the parent’s right
The second sentence of Article 2 of the First Protocol provides
that ‘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 Court has adopted a broad approach
to the meaning of 'education' and 'teaching', which serves
to expand the scope of its obligation before the Court. The
term ‘teaching’ has been found to refer to the transmission
of knowledge and to intellectual development. ‘Education’
on the other hand, includes 'the whole process whereby, in
any society, adults endeavour to transmit their beliefs, culture
and other values to the young'.[8] The meaning of ‘education’
thus extends beyond theoretical instruction in the classroom
to include the development and moulding of a child's character,
which may take place in other situations, including in society
generally.[9] The reference to education and teaching means
that these terms are not interchangeable and the obligation
to respect parental convictions thus has a potentially wide
application. In particular, it is relevant not only to teaching
in schools, but to all of the functions assumed by the State
in the formal educational system. The obligation to respect
parents' religious and philosophical convictions must thus
be read together with the substantive right to education in
the first sentence.[10] The duty to respect these convictions
applies throughout the entire state education programme, and
parental convictions must thus be observed in all the functions
assumed by the State in the area of education. It is applicable,
therefore, to matters of academic interest, all aspects of
school administration, the supervision of the educational
system and discipline issues.[11]
While the meaning of ‘religious convictions’ is
straight forward, it is not as easy to define what views constitute
‘philosophical convictions’. What is clear, however,
is that the type of convictions which domestic authorities
are obliged to take into account in education is narrowly
defined and includes only those views, which attain a certain
level of cogency, seriousness, cohesion and importance.[12]
In determining whether these criteria have been satisfied
in a particular case, the burden is placed on the parent to
establish that their belief is part of a serious and cohesive
thought process.[13] Moreover, the parent must prove that
this thought process is the basis for the objection being
made,[14] and must bring it to the attention of the authorities.[15]
As to the kind of views that may constitute ‘philosophical
convictions’ the Court has found that views on corporal
punishment fall within this category, principally because
they relate to a 'weighty and substantial aspect of human
life', namely physical integrity, the propriety of the use
of the punishment and the prevention of any harm, which its
use might involve.[16] The Court also recognised that corporal
punishment was an integral part of the process by which the
school moulded and developed the character of its pupils,
making its relationship with the substantive right to education
apparent.[17] This factors help to distinguish between parental
preference and strongly held parental views about the way
their children are educated.
Under the Convention, the organisation of the educational
system falls largely within the discretion of the State, and
this includes the setting and planning of the curriculum,
in principle at least.[18] The second sentence of Article
2 does not permit parents to object to the incorporation of
teaching of a religious or philosophical nature as all institutionalised
teaching would then ‘run the risk of proving impracticable.’
The Commission has also found that the organisation of the
school system falls within the state’s competence.[19]
It can nevertheless be argued that weighty parental beliefs
about the adverse impact which the system has on the education
of their children means that state discretion in this area
is not absolute.
It is submitted, however, that the views of parents on the
education of their children may in fact constitute philosophical
convictions within the meaning of the Convention, especially
if as in Northern Ireland, their views, which can be shown
to be seriously held and widespread, go to the heart of the
school process and how their children are educated. It is
also persuasive that expert opinion makes clear that the selection
process has an adverse impact on both the school system and
the pupils within it. For example, the fact that pupils not
entered for the 11 plus may get less attention from their
teachers than those who are; the evidence that preparation
for the 11 plus has a negative effect on teaching and learning
in years P 6 and P 7 and the fact that continuity of teaching
and learning in secondary schools is disrupted by the selection
procedure demonstrate not only disregard for parental convictions
but suggest strongly that the substance of the right to education,
including the child’s right to benefit from it, is being
infringed. Another factor of weight in the case of Campbell
& Cosans where the Court held views on corporal punishment
to constitute philosophical convictions was the fact that
the treatment complained about was itself the subject of a
claim under Article 3, which prohibits inhuman and degrading
treatment and punishment. It is certainly arguable that the
distress and anguish caused to children by the selection process
and its effects and the sense of failure experienced by those
who do not attain a grammar school place, while not falling
within the scope of this level of ill-treatment, nonetheless
add to the seriousness of the issue and reinforce the integrity
and weight of parental opposition to it. This evidence of
harmful effect is well documented throughout the Research
Papers on the effects of the selective system in Northern
Ireland.
The UN Convention on the Rights of the Child
This is an international treaty, which is not part of domestic
law in Northern Ireland and thus does not bind public authorities
and courts in the same way as the European Convention on Human
Rights. Nevertheless, the treaty has been ratified by the
United Kingdom government, which thereby agreed to be bound
by its standards, and it is a law to which the European Court
of Human Rights has made increasing reference.
Relevant provisions of the UN Convention are as follows:
Article 2 – Non-Discrimination
1. States Parties shall respect and ensure the rights set
forth in the present Convention to each child within their
jurisdiction without discrimination of any kind, irrespective
of the child's or his or her or legal guardian's race, colour,
sex, language, religion, political or other opinion, national,
ethnic or social origin, property, disability, birth or other
status.
Article 28 – Right to Education
1. States Parties recognize the right of the child to education,
and with a view to achieving this right progressively and
on the basis of equal opportunity, they shall, in particular:
(a) Make primary education compulsory and available free
to all;
(b) Encourage the development of different forms of secondary
education, including general and vocational education, make
them available and accessible to every child, and take appropriate
measures such as the introduction of free education and offering
financial assistance in case of need;
(c) Make higher education accessible to all on the basis
of capacity by every appropriate means;
(d) Make educational and vocational information and guidance
available and accessible to all children;
(e) Take measures to encourage regular attendance at schools
and the reduction of drop-out rates.
2. States Parties shall take all appropriate measures to
ensure that school discipline is administered in a manner
consistent with the child's human dignity and in conformity
with the present Convention.
3. States Parties shall promote and encourage international
cooperation in matters relating to education, in particular
with a view to contributing to the elimination of ignorance
and illiteracy throughout the world and facilitating access
to scientific and technical knowledge and modern teaching
methods. In this regard, particular account shall be taken
of the needs of developing countries.
Article 29 – Aims of Education
1. States Parties agree that the education of the child shall
be directed to:
(a) The development of the child's personality, talents and
mental and physical abilities to their fullest potential;
(b) The development of respect for human rights and fundamental
freedoms, and for the principles enshrined in the Charter
of the United Nations;
(c) The development of respect for the child's parents, his
or her own cultural identity, language and values, for the
national values of the country in which the child is living,
the country from which he or she may originate, and for civilizations
different from his or her own;
(d) The preparation of the child for responsible life in
a free society, in the spirit of understanding, peace, tolerance,
equality of sexes, and friendship among all peoples, ethnic,
national and religious groups and persons of indigenous origin;
(e) The development of respect for the natural environment.
2. No part of the present article or article 28 shall be
construed so as to interfere with the liberty of individuals
and bodies to establish and direct educational institutions,
subject always to the observance of the principle set forth
in paragraph 1 of the present article and to the requirements
that the education given in such institutions shall conform
to such minimum standards as may be laid down by the State.
According to Article 28 of the UN Convention, therefore,
States should develop different forms of secondary education,
which should be available and accessible to every child. This
obligation, combined with the non-discrimination principle
in Article 2, suggests clearly that access to secondary level
schooling should not depend on the economic or social background
of the pupil, either directly or indirectly.
Article 29 emphasises the importance of the breadth of the
school curriculum and the fact that it should contain non-academic
subjects like human rights, civics and cultural and environmental
studies. In addition, it indicates that education should be
directed at the promotion of the child’s talents, and
mental and physical abilities, indicating clearly that an
over-scholastic bias may not be in the interests of children
generally.
Statutory duties upon public authorities arising from The
Northern Ireland Act 1998
Section 75 – Statutory duty upon public authorities
(1) A public authority shall in carrying out its functions
relating to Northern Ireland have due regard to the need to
promote equality of opportunity –
a. between persons of different religious belief, political
opinion, racial group, age, marital status or sexual orientation;
b. between men and women generally;
c. between persons with a disability and persons without;
and
d. between persons with dependants and persons without
(2) Without prejudice to its obligations under subsection
(1) a public authority shall in carrying out its functions
relating to Northern Ireland have regard to the desirability
of promoting good relations between persons of different religious
belief, political opinion or racial group.
(3) In this section “public authority” means –
a. any department , corporation or body listed in Schedule
2 to the Parliamentary Commissioner Act 1967 (departments,
corporations and bodies subject to investigation) and designed
for the purposes of this section by order made by the Secretary
of State;
b. any body (other than the Equality Commission) listed in
Schedule 2 to the Commissioner for Complaints (Northern Ireland)
Order 1996 (bodies subject to investigation);
c. any department or other authority listed in Schedule 2
to the Ombudsman (Northern Ireland) Order 1996 (departments
and other authorities subject to investigation);
d. any other person designated for the purposes of this section
by order made by the Secretary of State;
(4) Schedule 9 (which makes provision for the enforcement
of the duties under this section) shall have effect.
Section 75 of the Northern Ireland Act 1998 requires that
public authorities, in carrying out their functions relating
to Northern Ireland, have due regard for the need to promote
equality of opportunity, for all of the categories of persons
referred to in subsection (1), above.
From 1st January 2000, these new duties became legally binding
upon all public authorities included within Section 75(3)(b)
and (3)(c). Educational bodies listed in Schedule 2 to the
Commissioner for Complaints (NI) Order 1996 include: The Council
for Catholic Maintained Schools (CCMS); the Education &
Library Boards and The NI Council for the Curriculum, Examinations
and Assessment (NICEA). The Department of Education is also
listed under Schedule 2 to the Ombudsman (NI) Order 1996 and
is therefore fully accountable for the promotion of equality
of opportunity, as provided under the Act.
The duties, which are imposed upon public authorities, may
be found under Schedule 9 of the Act. However, the basic requirement
for each public authority is that they must produce an Equality
Scheme, which is submitted to the Equality Commission for
approval. The Act also directs public authorities to conduct
equality impact assessments, the results of which must be
published, indicating the likely impact of policies adopted
or proposed to be adopted by the authority on the promotion
of equality of opportunity. (See Schedule 9 para.4 (2)). The
legislation further requires consultation, with representatives
of persons likely to be affected by the equality scheme, and
as an integral part of any policy /decision making process.
It is important that the Department of Education take account
of their duties under Section 75, when reviewing the procedure
for selection for post primary education in Northern Ireland
and any future proposals for provision of Secondary education,
on existing international models. It is clear from the research
conducted that some groups are disadvantaged or disaffected
under the current education system. It is also most important
that children and young people in Northern Ireland, of varying
age, political opinion, religious belief, racial group, disability,
socio-economic background and sexual orientation are directly
involved in consultation with the relevant public authorities
to ensure that any changes in the education system are reflective
of their needs.
Conclusion
It is very clear from analysis of the research evidence provided
in the Gallagher and Smith report, “The Effects of the
Selective System of Secondary Education in Northern Ireland”
and through our study of the Human Rights Act (1998) and relevant
provisions of the Convention treaties ratified by the United
Kingdom government, that the current Selection Procedure in
Northern Ireland is discriminatory in nature and directly
contravenes the fundamental human rights principal that children
be guaranteed a right of equal access to existing educational
facilities. It is our submission that every child should receive
a practical and effective education, from which they should
derive benefit. Children should be afforded the opportunity
to attain their fullest potential, intellectually, spiritually,
morally and creatively. Due to the polarisation of grammar
and secondary education in Northern Ireland it is difficult
to see how individual pupils may develop their intellect,
skills and talents to the fullest extent.
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[1] See Eur Court HR Campbell & Cosans v UK, judgment
of 25 Feb 1982, Series A no 48, 4 EHRR 293, § 40.
[2] Eur Court HR The Belgian Linguistics Case, judgment of
23 July 1968, Series A no 6, 1 EHRR 252, § 3.
[3] See Kilkelly, The Child and the ECHR, Ashgate, 1999,
at p 63.
[4] Belgian Linguistics Case judgment, op cit, § 3.
[5] Eur Court HR Costello-Roberts v UK, judgment of 25 March
1993, Series A No 247-C, 19 EHRR 112, § 27.
[6] Ibid.
[7] Belgian Linguistics Case judgment, op cit, § 4.
[8] Campbell & Cosans judgment op cit, § 33.
[9] See Nos 7511/76 & 7743/76 Campbell & Cosans v
UK, Comm Rep, May 1980, Series A no 48, 3 EHRR 531.
[10] Ibid, § 50.
[11] Campbell & Cosans judgment, op cit, § 33-35.
[12] Ibid, § 36.
[13] Campbell & Cosans Comm Rep, op cit, § 93.
[14] No 9471/81 Warwick v UK, Comm Rep, 18.7.86, DR 60, p
5.
[15] No 9303/81 B & D v UK, Dec, 10.86, 9 EHRR 538.
[16] Campbell & Cosans judgment, op cit, § 36.
[17] Ibid, § 33.
[18] Eur Court HR Kjeldsen, Busk Madsen & Pedersen v
Denmark, judgment of 7 Dec 1976, Series A no 23, 1 EHRR 711.
[19] 7527/76 X & Y v UK , 11 DR 147, 5 July 1977.
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