Education Law: Discipline and Exclusions

Posted On: 18 October 2007

Author: Janys M Scott QC

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This article is reproduced with the permission of CLT Scotland.

Discipline as an aspect of the right to education
Discipline is not a negative subject.  The European Court of Human Rights described discipline as an integral, even indispensable, part of any education system .  Discipline is part of the process whereby a school seeks to achieve the object for which it was established, including the development and moulding of the character and mental powers of its pupils .  Policy on discipline cannot be separated from policy on learning and teaching .  Policy is not just a matter for Ministers and education authorities.  Each school should have a discipline policy, which should be set out in the school handbook .

No person may be denied the right to education.  This is enshrined in Article 2 of the First Protocol to the European Convention on Human Rights.  Scots law goes a step further and gives every child of school age an express statutory right to education .  Conferring a right to education recognises the obligations of the state in terms of Article 28 of the United Nations Convention on the Rights of the Child.  If discipline is integral to education, then the right to education implies the "right" to be subject to the discipline of education.  As will be seen, this is consistent with the way in which the European Court of Human Rights has approached the second part of Article 2 of the First Protocol which requires the state to respect the rights of parents to ensure education and teaching in conformity with their own religious and philosophical convictions.  The requirement of respect applies to discipline as to other aspects of education.

The United Kingdom signed the First Protocol to the Convention in 1952 under reservation.  The second sentence in article 2 is accepted by the United Kingdom only so far as it is compatible with the provision of efficient instruction and training, and the avoidance of unreasonable public expenditure.  For the purposes of the Human Rights Act 1998 the Convention takes effect subject to the reservation .  Section 17(1) of the Human Rights Act 1998 imposes a requirement that this reservation must be reviewed every five years.  In July 2004 the Department of Constitutional Affairs decided there should be no change to the reservation at that time. 

Matters may be different, were a case taken to the European Court of Human Rights, rather than argued in a domestic court.  The United Kingdom sought to invoke its reservation in Campbell & Cosans v United Kingdom 4 EHRR 293.  The Court noted  that "under article 64 of the Convention, a reservation in respect of any provision is permitted only to the extent that any law in force in a State's territory at the time when the reservation is made is not in conformity with the provision".  The Education (Scotland) Act 1980 post-dates the reservation, albeit many, but not all of the provisions derive from the Education (Scotland) Act 1946, re-enacted in substantial measure in 1962.  In Belilos v Switzerland (1988) 10 EHRR 466  the Court held that a reservation that was too vague or broad to determine its exact scope would fall foul of article 64. That criticism could be levelled at the United Kingdom's reservation in respect of education.  In Loizidou v Turkey 20 EHRR (1995) 99 at para 76- 77 the Court noted that the power to make reservations is limited.  The reservation is relevant in domestic proceedings, but may not be of assistance in Strasbourg.

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