Education in UK Law

The Strasbourg jurisprudence, summarised above in paras 11-13, makes clear how article 2 should be interpreted. There is no Convention guarantee of education at or by a particular institution. The test, as always under the Convention, is a highly pragmatic one, to be applied to the specific facts of the case: have the authorities of the state acted so as to deny to a pupil effective access to such educational facilities as the state provides for such pupils?

The correct approach is first to ask whether there was a denial of a Convention right. In the case of article 2 of the First Protocol, that would have required a systemic failure of the educational system which resulted in the respondent not having access to a minimum level of education. As there was no such failure, that is the end of the matter.

It would appear, therefore, than there is a discretion in the local education authority which they must exercise in accordance with the terms of the statute: and there is also a duty laid upon them by section 40 (2) of the Act of 1944 to take stops prescribed in that section in the circumstances therein laid down if in their view, there is a breach of any order siade by the?

In order to come within the Act the grant has to be for one or more of the three purposes mentioned in section 2 i.e. for the education of poor persons, or for the residence of a schoolmaster or schoolmistress, or otherwise for the purposes of the education of such poor persons in religious and useful knowledge.

The intention or motive of the defendant to discriminate, though it may be relevant so far as remedies are concerned (see section 66(3) of the Act of 1975), is not a necessary condition to liability; it is perfectly possible to envisage cases where the defendant had no such motive, and yet did in fact discriminate on the ground of sex.

If suitable education has been made available which is reasonably practicable, but for one reason or another the child is not taking advantage of it, the local authority may well be in breach of duty in failing to exercise its powers to ensure that the child receives that education.

Was A deprived of an effective education during the relevant period? I recognise that if that question is asked by reference only to what he was provided with between January 2002 and July 2003, it could be answered in the affirmative. However, as Lord Bingham observed, the correct approach is the pragmatic one adopted by the ECtHR. It was recognised on all sides that what A required was a satisfactory long term solution for his various problems.