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European Association for Education Law and Policy

European Association for Education Law and Policy. Summer School, July 2010 ‘Some Legal Implications of Violence in Schools: England’ Paul Meredith, School of Law, University of Southampton, UK. Some peculiarities of the UK constitution. Unwritten – no entrenched constitutional guarantees

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European Association for Education Law and Policy

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  1. European Association for Education Law and Policy Summer School, July 2010 ‘Some Legal Implications of Violence in Schools: England’ Paul Meredith, School of Law, University of Southampton, UK

  2. Some peculiarities of the UK constitution • Unwritten – no entrenched constitutional guarantees • Acts of Parliament the highest form of law • Duly enacted Act cannot be challenged in court as ‘unconstitutional’ • UK Supreme Court not a ‘Constitutional Court’ • Sovereignty of Parliament the core feature of the UK constitution • Sovereignty not enjoyed by devolved legislatures – Scotland, Wales, Northern Ireland • EU law takes primacy over inconsistent UK Acts

  3. ECHR and the UK • ECHR ratified but not incorporated into UK law till Human Rights Act 1998 • Human Rights Act 1998 enables ECHR to be relied upon directly in litigation in UK courts – provides network of fundamental rights, including right to education (but note UK’s reservation to second sentence of Article 2, protocol 1(A2P1) • All public authorities must act compatibly with ECHR (s.6) – remedies may include damages • All UK legislation must if possible be interpreted compatibly with ECHR (s.3) • If not possible to interpret UK legislation compatibly with ECHR, court may issue ‘declaration of Incompatibility

  4. UNCRC and UK • Ratified by UK but NOT incorporated into domestic UK law (similar to ECHR before Human Rights Act 1998) • Cannot found action directly on UNCRC in UK courts, but often cited in court for its persuasive value • UK criticised by UN Committee on Rights of the Child over incidence of bullying in schools (see Neville Harris chapter, p. 36, note 32.

  5. Schools in England: some background information • Four separate systems within UK under devolution • Schools system largely statutory • Education Act 1944 • Education Reform Act 1988 • Education Act 1996 • School Standards and Framework Act 1998 • Education Act 2002 • Education and Inspections Act 2006 • Academies Bill 2010 • Education and Children Bill 2010 • Delegated legislation • Soft law – ‘Guidance’ • Common law

  6. Administrative structure: central government • Department for Education (Secretary of State for Education) • ‘Promote the education of the people’ • Overall responsibility politically for education policy • Power to issue directions to local authorities • Macro-economic management

  7. Administrative Structure: local authorities • EA 1996, s. 14 – provision of ‘sufficient schools’ • Duty to secure diversity in provision/increase opportunities for parental choice • Duty to promote high standards/ ensure fair access/ promote fulfilment of learning potential by pupils

  8. Administrative structure: school governing bodies • Composition and powers depend upon category of school • County schools • Voluntary schools • Foundation schools • Academies (Academies Bill 2010) • Governing bodies typically comprise representatives of local authority/teachers (including head teacher)/parents/faith group (if any)/sponsor (if any) • Substantial financial devolution to governors

  9. Parents and children • EA 1996, s. 7 – Duty to ensure child’s ‘efficient full-time education’, at school or otherwise • Parental wishes – EA 1996, s. 9 • Children – Almost no statutory rights under education legislation • Exception, s. 176 EA 1996 (limited consultation) • Opt-outs from religious education/sex education vested in parents, not children • Children over 16 do now have an opt-out from collective worship • Children may be heard before Tribunals concerned with special educational needs • Possibility that UK may be in breach of Art 12, UNCRC

  10. Statistics as to religious character of state secondary schools in England • No religious character – 2,717 • Church of England - 207 • Roman Catholic - 331 • Methodist - 0 • Jewish - 9 • Muslim - 5 • Sikh - 1

  11. Statistics as to religious character of state primary schools in England • No religious character - 10,755 • Church of England - 4,409 • Roman Catholic - 1,681 • Methodist - 26 • Jewish - 29 • Muslim - 6 • Sikh - 3 [Source: DCSF, Statistical First Release 09/2010: Schools, Pupils and their Characteristics: January 2010 (Provisional)]

  12. Incidence of violence in English schools • 8,130 permanent exclusions from primary, secondary and special schools, 2007-08 • 324,180 fixed period exclusions from secondary schools • 43,290 fixed period exclusions from primary schools • Permanent exclusion rate 3.5 times higher for boys than for girls • 13-14 the most common age for exclusion • 30.9% of permanent exclusions and 23.2% of fixed period exclusions for persistent disruptive behaviour • 11.6% of permanent exclusions and 4.7% of fixed period exclusions for assault on adult [Source:DCSF, Statistical First Release 18/2009]

  13. Socio-economic disparities among pupils • Eligibility for free school meals an important measure of poverty among pupils • 18.5% of primary school pupils and 15.4% of secondary school pupils eligible for free school meals [Source: DCSF, Statistical First Release]

  14. Incidence and variety of violence • Dunblane Primary School, 13 March,1996 • Gang rivalry, ethnic and religious tensions • Alcohol and other forms of drug abuse • Knife crime • Bullying in its many forms • Thomas Coram research project, 2004 • 51% of pupils aged 9-10 reported being bullied • 28% of 12-13 year olds reported being bullied • Increased incidence among ethnic minority and disabled pupils

  15. Legal framework for school discipline: school governors • Education and Inspections Act 2006, s. 88: school governors under broad duty to ensure policies designed to promote good behaviour are adopted • Maintenance of written statement of general principles to which head teacher must ‘have regard’ • Duty to consult before making (or revising) written statement • May notify head of particular measures they wish to be taken (but head decides), and issue ‘guidance’

  16. Legal framework for discipline: head teachers (1) • Education and Inspections Act, s.89: HT must ‘determine measures’ to be taken to • promote self-discipline/proper regard for authority • encourage good behaviour and respect for others • prevent bullying • secure that standard of behaviour is ‘acceptable • Secure that pupils complete tasks in connection with education • HT to ‘act in accordance with governors’ statement of general principles, and ‘have regard to’ any specific notification or guidance from them

  17. Head teachers (2) • HT must formulate RULES and DISCIPLINARY PENALTIES • These may include measures regulating pupils’ conduct out of school, so far as reasonable • Measures must be publicised/made generally known to pupils and parents

  18. Other specifics relating to legal framework of school discipline • Enforcement of disciplinary penalties • Detention outside school sessions • Use of force by members of school staff • Recording and reporting ‘use of force’ incidents • Confiscation of items from pupils

  19. Exclusion of pupils (1) • Fixed term and permanent exclusions by HT • Review and possible reinstatement by governing body • Right of appeal to Independent Appeal Panel from decision not to reinstate • Composition of Independent Appeal Panels

  20. Exclusion of pupils (2): Tom Hood School case • Permanent exclusion forcarrying and threatening teacher with knife • Appeal to IAP rejected – IAP reached conclusion ‘on balance of probabilities’ • Pupil applied for judicial review of IAP’s decision • Key grounds: • IAP bound under Art 6, ECHR to give pupil fair trial, and had failed to do so by applying ‘balance of probabilities’ standard of proof rather than ‘beyond reasonable doubt’ (criminal standard) • Civil right or criminal charge • School Discipline Regulations incompatible with Art 6

  21. Exclusion (3): R (L) v Governors of J School case – meaning of ‘reinstatement’ • Pupil excluded for fighting – reinstated by IAP • Teachers refusing to teach L and balloting on industrial action if forced to do so • HT ‘reinstated’ L, but L placed under regime of segregation within school – not allowed to mix with other pupils – taught separately – not even allowed to attend collective worship • Did this constitute ‘reinstatement’?

  22. Other measures possible in connection with disruptive/violent pupils • Anti-Social Behaviour Orders under Crime and Disorder Act 1998 • Parenting Orders and Parenting ‘Contracts’ under Anti-Social Behaviour Act 2003

  23. Liability of schools for failure to prevent violence/bullying • Common law duty of care (Gower v London Borough of Bromley) • Ridgeway School case • Nature of duty of care – management responsibility • Key problem of establishing liability for criminal act of third party • Problems of foreseeability and causation • Failure to construct perimeter fence/have staff on duty at site of attack/inadequacies of overall disciplinary approach/specific failings on day of attack • Breach of art 3, ECHR – imposes POSITIVE obligation on public authorities

  24. Liability of schools – failure to prevent bullying • Bradford-Smart case • Difficulty of establishing causation • Bolam test – generally applicable in professional context - would a reasonable body of professional opinion support the school’s action? • School may on occasions be liable for failure to prevent bullying (even outside school), but those occasions ‘will be few and far between’ • Faulkner case • Illustrates difficulty of establishing causation

  25. Children living in conflict zones – denial of right to education? • Many problems for realisation of right to education flowing from political/ethnic/religious conflict • Example of Northern Ireland – recent resurgence of violence July 2010 in connection with orange Order Parades

  26. Children in conflict zones – Holy Cross School case, Belfast, 2001 • Claim by parent that inadequate policing had led to breach of right to education and other breaches of ECHR • Art 2 – right to life (positive duties on state) • Art 3 – inhuman/degrading treatment (relatively high threshold/police discretionary area of judgment • A2P1 – children did continue to attend school albeit with difficulty • UNCRC, Art 3 (best interests of the child)

  27. Corporal punishment – Campbell and Cosans v UK • Challenge to use of corporal punishment in state schools • Art 3 – inhuman or degrading treatment – did not meet threshold requirement • Second sentence of A2P1 – parents’ ‘philosophical convictions’ – discipline not a mere administrative process but integral part of educational process – ‘weighty and substantial aspect of human life’ • First sentence of A2P1 – right to education

  28. Corporal punishment – Costello-Roberts v UK • Independent school • Art 1 – Duty of state to secure enjoyment of the rights and freedoms enshrined in ECHR to everyone within its jurisdiction – thus the responsibility of the state was engaged even though the punishment inflicted by the HT of an independent school • Art 3 – minimum threshold not reached • Art 8 – engaged but not breached • Art 13 – effective remedy was available – pupil could have sued for assault

  29. Corporal punishment – Williamson case • Converse of Campbell and Cosans v UK • All corporal punishment in schools prohibited by s.548,EA 1996. • Parents alleged s.548 incompatible with their rights under Art 9 and second sentence of A2P1 – reliance by parents on Biblical texts • HL accepted that both Art 9 and A2P1 engaged, but considered that state had been JUSTIFIED in its interference with the parents’ rights, given the broad consensus of opinion over abolition of corporal punishment, the rights of children (in a vulnerable position), and the UK’s obligations under UNCRC

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