Trust Schools and the Human Rights Act.

I am beginning to wonder whether New Labour is regretting their 1997 manifesto committment to incorporate the European Convention of Human Rights into our domestic law. Over the past few years they have been in the forefront of asking the Council of Europe to allow derogations from some of its provisions. Home Office ministers have been particularly spiteful when the Law Lords have been scathing about the legislation they have pushed through Parliament- legislation, appearing to their lordships, far from Convention compliant.

Published on Sunday, with little acknowledgement, was the Joint Committee on Human Rights’ (pdf) report on the School White Paper.

Important Convention Rights mesh with the education system. Not only Article 2 – the so-called “right to education”, but also Article 9- freedom of thought, conscience and religion. And Article 6- the right to a fair hearing is becoming more and more important as schools may be able to fix their own admissions policy.

In order for the Human Rights Act to engage, schools must be “public bodies” within the meaning of the Human Rights Act (HRA). The Report points out that the Secretary of State, Local Education Authorities and governing bodies of maintained schools clearly fall within the definition of “public bodies”. Academies and the Trust schools, proposed by the White Paper, may fall outside it. That is certainly the view of the Committee.

“Since there is a serious question as to whether Trust schools themselves would be regarded as public authorities under the HRA, whether the fundamental rights of parents and children, such as those mentioned above, are protected will depend on the terms of the contract between the individual Trust and the Secretary of State. The protections will be dependent on a process of negotiation to which the parents and children are not party. Pupils and parents will be left for the protection of their fundamental rights to the very uncertain recourse to judicial review of the Secretary of State for failing to secure the necessary protections for human rights in negotiating or enforcing the contract with the particular Trust school. For example, if an independent Trust school were to use CCTV to monitor pupils in places where they might have a reasonable expectation of privacy, or to release students’ e-mails or medical records, the child would not be able to rely on their right to respect for privacy in Article 8 ECHR directly against the school, but would have to bring proceedings against the Secretary of State for not ensuring in the contract that this did not happen.”

One of my own hobbyhorses- religious indoctrination of students-presents a clear problem in this area.

This is from the Committee:

“The new flexibility over curriculum content, and the freedom to be given to Trust schools to create a distinctive ethos, may give rise to conflict with the right not to be indoctrinated in the second sentence of Article 2 of Protocol 1. The contractual documentation of one of the new Academies (South Middlesbrough City Academy) for example, indicates that the school will “present matters in a way which is consistent with Biblical teaching.” This would give rise to the risk, for example, of creationism being taught as part of the science curriculum. A child at a maintained school has a right to complain to the LEA about the way in which the national curriculum is being taught at their school. There is no such right of complaint about curriculum in an Academy or in the proposed independent trust schools.”

We have already seen how the teaching of creationism/ intelligent design has already crept into the Vardy Schools, now renamed the Emmanuel Foundation   A couple of years ago, when Nigel McQuoid the chairman of governors of one of the Vardy Schools was asked by David Frost whether he planned to teach creationism, he replied.

“Well there's certainly no doubt that it's part of RE but it's also part of the national curriculum in science, where we're asked to deal with controversies relating to evolution.”

This is an important matter and it must be resolved before the Bill is published.

Comments

[Ronnie Smartt]

Thanks, Tony. Most interesting. I am not sure however how we can resolve these questions, in a wholly satisfactory way, before legislating. I see in para 24 of the Joint Committee's report that the department, presumably with the backing of Treasury Counsel and/or its own lawyers thinks, unlike the Committee, that academies and trust schools are public bodies. It is conceivable that after some discussion one will see the other's point of view. In the end however some aggrieved parent or defensive school may elicit a judgment contrary to the opinion of the legislators. Other questions may also arise in practice and probably will. Nevertheless, since we do try specifically to HRA-proof new legislation, is there an argument for some kind of constitutional body which would issue an appropriate certificate, which would in turn be binding on the courts?

[peterharvey]

Ronnie,

>>Nevertheless, since we do try specifically to HRA-proof new legislation, is there an argument for some kind of constitutional body which would issue an appropriate certificate, which would in turn be binding on the courts?>>

If I may jump in from Spain, I would say that that is precisely what the Constitutional Court is for. A few years ago the Spanish Parliament passed a law banning any political party that was part of a terrorist organisation; clearly it was aimed at Batasuna, the Sinn Fein equivalent. The judges of the Constitutional Court gave it the green light.

Of course, you do need a defined, written Constitution for the Constitutional Court to interpret...

[Ronnie Smartt]

No, Peter. If I may intrude again on Tony's space and patience, I was not thinking of a written constitution but simply of a relationship between a proposed law and the HRA Perhaps I should think more widely.

[peterharvey]

It seems to me that the problem is that the British doctrine of Parliamntary sovereignty makes it impossible to entrench anything because anything can be changed by a simple majority in Parliament. The HRA could be repealed for example, or amended by Parliament with no authority in a position to prevent it.

The purpose of a written Constitution is not to codify what happens now, but to establish a framework that can't be tinkered with for short-term advantage.

[Tony Hatfield]

Peter,
The HRA could of course be repealed, but HMG would have to withdraw both from the EU and the Council of Europe to escape the Convention's provisions. I suspect that's about as unlikely to happen as the re-introduction of the death penalty!.
t

[peterharvey]

Tony,

What you say is of course true. But the UK is already the only country that feels that waging the GWOT requires a derogation from part of the ECHR.

Peter