Right to Education in UK Law

The court's judgment in the Belgian Linguistics (No. 2) case has been cited and relied on in a number of later decisions such as Kjeldsen, Busk, Madsen and Pedersen v Denmark (1976) 1 EHRR 711, Campbell and Cosans v United Kingdom (1982) 4 EHRR 293, Sahin v Turkey (Application No 44774/98, Grand Chamber, 10 November 2005, unreported) and Timishev v Russia (Application Nos 55762/00 and 55974/00, 13 December 2005, unreported).

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?

Such procedures may be relevant to rights under other articles, such as article 6 or 14, but article 2 of the First Protocol is concerned only with results: was the applicant denied the basic minimum of education available under the domestic system? For this purpose it is necessary to look at the domestic system as a whole.

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.

In my judgement, it is not equitable to extend the limitation period in this case. The question whether A2P1 confers a right to an education in accordance with the relevant SSEN, and if so, the appropriateness of an award of damages and the impact on the alleged shortcomings of judicial review in special educational needs cases, can be as easily (and more appropriately) determined in an upcoming application for judicial review made by another party as in these very late proceedings.

" ...the Commission considers that in principle the right to education cannot be allowed to impinge on the State's right to regulate education ...and that this right does not exclude all disciplinary penalties. It would not be contrary to Article 2 of Protocol No.l for pupils to be suspended or expelled, provided that the national regulations did not prevent them from enrolling in another establishment in order to further their studies."

The Secretary of State's argument is that the Student Support Regulations are not intended to promote the subject matter of Art 2. Their purpose, as is set out in the evidence, is to encourage greater access to higher education primarily for students wishing to improve their skills and qualifications. The right protected by Art 2 is the right to avail oneself of such education as the State provides, that is to participate in the facilities existing at a given time.