IV. DOMESTIC FRAMEWORK       [ Go to Contents ]

27. There is no explicit recognition of the right to education in English law. The United Kingdom is party to international human rights treaties which require such recognition, but the absence of a written constitution (where recognized human rights are usually listed and defined), the complexity of legislation dealing with education and the variety of jurisprudence addressing various facets of the right to education combine to prevent a clear-cut assessment of the nature and scope of the right to education.

28. The 1998 Human Rights Act has provided for direct applicability of the European Convention on Human Rights; the Act is planned to come into force on 2 October 2000. This legislative change has introduced into the domestic legal systems those rights that are defined in the European Convention, within the limitations embodied in the United Kingdom's reservations. Because the European Convention does not recognize social and economic rights, the Government's tendency to conceive social and economic rights as "programmatic objectives rather than legal obligations" ¹⁰ is likely to continue. Likewise, the reservation affecting the right to education continues ¹¹. The right to education is thus confined to parental rights concerning their children's education and non-discriminatory access to the existing public educational institutions, further limited by the qualification that the Government's financial obligations remain reasonable. The recent increase in public funding for education is planned to bring it up to 5 per cent of GNP in 2001-2002 ¹², still leaving the United Kingdom at the bottom of the Organization for Economic Cooperation and Development (OECD) ranking, much lower than Sweden (9 per cent) or Canada (7 per cent), and just above Italy, Turkey and Greece ¹³.

A. Human rights in education       [ Go to Contents ]

29. Statutory enactments relating to education do not use human rights language nor do they mention international human rights law. Where individual rights are mentioned, these relate to parents who have been allowed to challenge school admissions as of 1980 ¹⁴. Wide publicity for schools' league tables makes admission of their children to as good a school as possible crucially important to most parents. As the number of applications to the highest ranked schools exceeds their capacity many times over, the postulated parental choice in reality becomes the schools' choice ¹⁵. Such choice can be - and is - challenged by parents before appeal panels, as they were named in 1998. Children of compulsory school age have guaranteed access to publicly-funded schooling, but their admission to a specific school creates continuous controversy and triggers litigation ¹⁶.

30. A great deal of jurisprudence has developed on the basis of parental challenges of admissions or expulsions of their children, the conditions in schools (especially safety and hygiene), methods of teaching and school discipline. Human rights dimensions of education are litigated but such jurisprudence is found under education law, while no analysis has yet identified the nature and scope of human rights which this jurisprudence outlines.

31. Schooling is seen as "a contract between school and parents" ¹⁷ and the child does not have legal standing; children are thus absent as actors in this process although it is aimed at their learning. The Committee on the Rights of the Child recommended, for example, the affirmation of the right of the child expelled from school to appeal that decision ¹⁸. Recent domestic developments provide additional incentives for a conceptual shift towards the child as the subject of the right to education. Studies leading to the requirement of written home-school agreements as of 1 September 1999 highlighted the finding that "pupils were very keen to sign. For many pupils it is the first document they are asked to sign and they feel very 'grown-up' and take it very seriously" ¹⁹. The Special Rapporteur feels that such findings point towards the recognition of the child as the subject of the right to education.

32. The emphasis on parental rights has visible effects on children in the care of the State. Where the State acts in loco parentis, with the local authority acting as a corporate parent, it has regularly proved unsuited for this task: three quarters of children in care have been found to leave compulsory schooling having obtained no qualification ²⁰.

B. Discrimination or social exclusion ?       [ Go to Contents ]

33 The term "social exclusion" was developed in the European Union to denote the marginalization of individuals through economic deprivation and social isolation. The emphasis on "social" - as distinct from "statal" - reflects the diminished role of the State, while "exclusion" questions the postulated inclusiveness of social policies. Social exclusion could be defined as a denial of social rights but human rights language is not used; terms like "disadvantage" or "deprivation" are used instead of "denial of equal rights" or "discrimination". The term "social exclusion" has not been defined by the European Union nor by the United Kingdom ²¹ and encompasses divergent phenomena, ranging from expulsion from school to teenage pregnancy. The affected people straddle categorizations by race, gender, ethnicity, provenance and class ²².

34. The existing legislative framework prohibits discrimination on some grounds but not on others. The Sex Discrimination Act of 1975 (and the associated Equal Opportunities Commission), the Race Relations Act of 1976 (and the associated Racial Equality Commission), the Disability Discrimination Act of 1995 (and the planned Disability Rights Commission) form the pillars of the system. There is no legislation relating to discrimination on the grounds of religion ²³ or language, while the categorization by class has thus far escaped a legislative link with equality of opportunity and treatment. The Committee on the Elimination of Racial Discrimination noted "the non-incorporation of the full substance of the Convention" ²⁴ in domestic law and the Special Rapporteur endorses this finding, emphasizing that the absence of an explicit prohibition of discrimination on all pertinent grounds prevents the identification of rights that are unequally enjoyed, with a view to their equal attainment.

35. The census provides an opportunity for self-classification of individuals into ethnic categories, which combine race, colour, ethnicity and provenance ²⁵. Religion or language are not recorded, nor is ethnic categorization applied to (or by) individuals who define themselves as "white". Overlapping grounds for discrimination (race and religion and language, for example, or sex and provenance and religion) are made invisible. What was termed "ethnic monitoring" was introduced in 1990-1991 to develop a profile according to their ethnic background, mother tongue and religion - such information being sought from parents on a voluntary basis ²⁶. Since the provision of such data is not obligatory, the picture obtained is not comprehensive.

36. The proportion of ethnic minority learners in compulsory education is estimated to be more than twice the ethnic minority share in the adult population (12 per cent in school, 5 per cent in the adult population) ²⁷. A part of the reason for this is the different age pyramid: half of the ethnic minority population is younger than 25, compared to less than one third of the white population. The existing statistics reflect the diversity encompassed by the term "ethnic minority learners". English is recorded as an additional language for 8.4 per cent of the 11.8 per cent of primary school pupils classified as "ethnic minority", while it is not known how many learners classified as "white" do not have English as their mother tongue. Learners classified as "any other minority ethnic group" amount to 2.1 per cent, exceeding the proportion of Chinese (0.3 per cent) and Bangladeshi (1 per cent) pupils. The notion that educational performance decreases with darker pigmentation is belied by data showing that white boys with a working-class background may be found performing worse than their Chinese or Indian counterparts ²⁸.

37. The Special Rapporteur is concerned about the customary reference to all non-white people as "ethnic minorities" because this all-encompassing extension of the term "ethnic"or "minority" does not conform to international human rights law. It is too broad to allow for the identification of the pertinent internationally prohibited grounds of discrimination, to further lead to studying their interplay and multiplication in the case of specific communities and individuals. At the end of her mission, the Special Rapporteur noticed that all government officials she had talked with were white, which perhaps provides one possible explanation for the continued utilization of the term "ethnic minorities" to refer to non-white people.

V. HUMAN RIGHTS OBLIGATIONS       [ Go to Contents ]

38. A widespread, if erroneous, image of the right to education equates it with availability of schools and teachers. Where schools are available, as is the case in England, further questions would then not be asked, precluding the inquiry from advancing from statistical availability of schools to the right to education. This right entails, besides availability of schools, governmental human rights obligations to make schooling accessible, acceptable and adaptable.39. Western industrialized countries introduced all-encompassing compulsory education in earlier stages of their development, linking mass education to the process of industrialization, for which England was the pioneer. A specific feature of its Englishness was the separation between private and state schools, boarding and day schools, as well as between general and/or academic from popular and/or vocational education, which survived all attempts to bridge the abyss between the two.

1. Schools

40. While schools are - statistically speaking - available in England, this by itself does not exhaust the need to inquire into the human rights dimensions of availability. Vast differences exist among institutions encompassed by the common name "school" and are expressed in popular references to "posh" and "sink" schools, providing schooling of very high and unacceptably low quality. The latter have been a principal target of the Government's policy of "naming" and "shaming", the identification of the worst performing (called failing) schools with the intention of bringing their performance to the minimal acceptable level.

41. As has been described above (in section I.B.), schools are ranked according to the performance of their learners in tests, and this ranking reinforces the heritage of stratified education. Output-related ranking (i.e. performance and efficiency targets) inevitably favours selecting learners by their likelihood to perform well and by orientating the contents and methods of teaching to enhance their success in tests. The underlying rationale discourages the investment of time and effort necessary for those learners who are unlikely to do well because of disabilities or difficulties or because they lack competitive drive. The underlying rationale is institutionalized competition between schools and between learners. Glossy colour brochures whereby individual schools target parents so as to enhance the parental demand for their educational services, or schools' annual meetings with parents (resembling shareholder meetings), would seem incomprehensible to those who define education as a public service and/or a public good, or by the best interests of each child as guidance for the learning process which schooling should facilitate.

2.Teachers

42. The Government has acknowledged that its reform of the teaching profession has been the most comprehensive but also the most controversial ²⁹. The Special Rapporteur was often reminded of the shortage of teachers in many conversations she had, and this has been a constant theme in the domestic media. Difficulties in the recruitment of teachers have been a consequence of the low prestige of the teaching profession resulting from the cumulation of their loss of professional autonomy, long working hours (estimated at an average 51 hours per week) and the expectations upon teachers to solve most, if not all, social problems.

43. Teachers are employed by local authorities or by the governing boards of individual schools; their basic conditions of service and salary are determined by law. Ongoing changes aimed at increasing teachers' salaries on the basis of their pupils' performance are reminiscent of the performance specifications which were the basis for teachers' salaries in the period 1862-1890 ("payment by results"), through annual age-specific subject-based testing of pupils ³⁰.

B. Accessibility       [ Go to Contents ]

44. The United Kingdom introduced free primary education in 1944, well before it was required to do so by international human rights law. Attendance at school is compulsory between the ages of 5 and 16, while the age range encompassed by the statutory regulation of education has been increased to 2 to 19, extended further through the introduction of lifelong learning.

45. Education has been extended downwards through the Government's policy of enrolling four-year-olds in pre-school education. The Government has introduced nursery education for all four-year-olds and is planning to increase the coverage to three-year-olds. Learners in independent schools can be as young as six weeks ³¹. Such pre-compulsory education has not been defined in terms of entitlements.

46. Access to schooling for those above 16 is the subject of a maze of legislation and government special projects. Post-compulsory education has affirmed a new right to time off for studying for those between 16 and 18 who are identified as disadvantaged ³². The school-leaving age of 16 has proved to be too low for learners to be able to secure a livelihood, because the demand for young people with a low level of education and qualifications has plummeted. Educational reforms have shifted the emphasis towards labour market demands, marketable skills and learning to compete. As the youth labour market has continued shrinking, particularly with the collapse of mass industrial production, which has particularly affected young men, education has been lengthened and vocationalized, signalling the transition from an industrial to a post-industrial stage. The process of lengthening education is likely to gradually evolve towards defining individual entitlements and the corresponding obligations of the public authorities, although the usage of human rights language does not seem likely.

1. Compulsory education

47. While of compulsory school age, "pupils are entitled by law to an education suitable for their age, ability, aptitude and any special educational needs they may have" ³³. The corresponding obligation to make education available has been devolved to the local education authorities. Access to school is defined broadly to encompass all resident children, regardless of their citizenship, or temporary or permanent residence, and thus includes children in care, child offenders, asylum-seekers, refugees and Travellers. Such children have guaranteed access to schooling but no choice. The criterion of availability is thus regularly met, the criterion of accessibility is often reversed and schooling is provided where the children are, even if the environment is not learning-friendly, while fulfilment of the criteria of acceptability and adaptability routinely leaves a lot to be desired.

48. Education is proverbially held responsible for all social ills and simultaneously expected to solve them. It is also expected to prove its worth in England in very many ways: from improving the literacy and numeracy of the youngest learners, to raising the overall educational performance of all, to offering a world class educational service and contributing to the country's export performance. The one term that the Special Rapporteur heard often from educationists was "value-added". This term reflects a search to identify and quantify the value that schooling adds to the predictable educational performance of learners. That the child's family background is a strong determinant of the child's educational performance is well known: the educational development of 22-month-old infants from the highest social class is 14 per cent superior to those from the lowest class ³⁴. This gap is likely to expand with time into an abyss unless there is a comprehensive, sustained and well-resourced strategy to equalize opportunities and - in a long-time perspective - educational attainment.

49. The Government has developed an ambitious short-term strategy "designed to raise performance in primary schools beyond any levels previously achieved and at a faster rate than ever before" ³⁵. Eradication of child poverty is a long-term objective, to be attained within 20 years ³⁶. The immediacy of the need to improve educational performance heightens the pressure on schools by implicitly demanding uniformly improved attainment. Schools' intake, however, is a strong determinant of the level of their educational performance. The search for the difference that the quality of schooling can make has focused on the term "value-added". The underlying rationale has been exemplified in the Government's motto that poverty is no excuse.

50. It is planned for child poverty to be eradicated within 20 years, while improved educational attainment of poor children is expected immediately. The multiplication of factors that exacerbate the influence of poverty on poor educational performance (such as family environment, provenance or mother tongue) necessitates, in the Special Rapporteur's opinion, a clear identification of the influence and confluence of specific factors, especially those that coincide with the internationally prohibited grounds of discrimination (such as race, ethnicity, gender, religion, language, social origin or disability).

(a) Children expelled from school

51. A conceptual conflict between the child's right to education and the child's duty to attend school is embodied in a series of statutory requirements inherited from the pre-human-rights era. Because education was conceptualized as a duty rather than a right, parents (or the State in loco parentis) had the duty to ensure that their children received education, the child had the duty to attend school regularly (failure to do so was punished as an offence of truancy), while the local authorities have been responsible for enforcing regular school attendance. Another, more recent, conceptual conflict emanates from the clash between the child's duty to receive education and expulsion from school.

52. Permanent exclusions from school increased from 3,000 in 1990-1991 to 13,500 in 1996-1997, and then decreased to 12,300 in 1997-1998 ³⁷. This decrease could be an early result of the Government's pledge to reduce resort to expulsions. The figures encompass both primary and secondary schools and thus reach beyond compulsory school age. Most exclusions affect learners aged between 12 and 15, who are thus of compulsory school age. Learners with special needs have had the highest rate of exclusion (seven times the average); black learners are over-represented four times, while Chinese learners are under-represented three times; 84 per cent of excluded learners are boys ³⁸.

53. Reasons for expulsion are not known because exclusion is the prerogative of each school. They range from pregnancy, to a seven-year old's sticking out his tongue at a teacher to bullying other pupils or teachers. The punishment is diversion out of school into periodic tuition which gives the expelled children about 10 per cent of schooling ³⁹.

54. Some of the factors accounting for such a large number of exclusions have been traced to competitiveness. The seven-fold likelihood that pupils with special needs will be excluded has been associated with the improvement of school's performance after underperforming pupils were excluded.

(b) Children deprived of their liberty

55. Children deprived of their liberty within the compulsory education age range (below 16) have a statutory entitlement to education, which is set at 15 hours per week. There is a proposal to double the number of hours to 30.

56. Children can be imprisoned as of the age of 10 (the minimum age of criminal responsibility ⁴⁰) although the term used is not "imprisonment" but "secure accommodation" and they are not to be referred to as "children" but as "youth". A sad feature of the system is that 50 per cent of children remanded in custody never receive a custodial sentence ⁴¹ and so the experience of imprisonment, as well as the brutalization which it often entails, could - and should - have been avoided.

57. The scheme for dealing with the youngest suspects, detainees and offenders is laid down in a complicated legal framework which has been reformed recently. The Youth Justice Board (established in September 1998) is expected to unify policy-making and guidance as well as to obtain jurisdiction over various and diverse institutions under a central authority. The Government's policy for deterring and preventing youth offending relies on education as one of its main pillars. Preventing youth offending anticipates that the Justice Board will "demonstrate that offending by children and young people is being prevented" by March 2002 ⁴². How negative evidence could be furnished within such a short period, namely that offending would have taken place was it not for specific interventions, remains unclear to the Special Rapporteur.

58. The Special Rapporteur visited Orchard Lodge, an institution which focuses on education as the means for preventing offending and re-offending by boys, combining an open regime for boys who are legally defined as being in need or at risk with secure accommodation for those defined as offenders. This institution provides a number of thoughtfully designed and imaginative features: the treatment is individualized to the point of one-to-one tutoring, the composition of the staff reflects that of the inmates (the majority of whom are black, young, and male) enabling the boys to have role models. The boys are motivated by making studying and learning count as success, which includes encouragement of the care and administrative staff to study and sit for exams together with the boys.

59. Such education-intensive institutions are rare, even for children and juveniles. The situation in adult prisons has been depicted by the Chief Inspector of Prisons, who remarked that "efficiency savings" reduced opportunities for education ⁴³, thus depriving inmates of one main means of preventing re-offending. His reports have revealed, for example, that only 30 out of 200 young inmates had access to education in one institution ⁴⁴. Access to education depends on the budgetary situation of specific prisons or can be rendered non-existent by lack of space. The orientation towards security and the legal heritage of prisoners having privileges rather than rights do not create an education-friendly environment. The lack of possibilities to secure their livelihood legally - for which education is essential - returns released inmates back to prison. This proverbial vicious circle is difficult to break. The Chief Inspector of Prisons has a number of ideas for improvement, some of which do not require any additional financial resources and can actually result in savings. One of these is to convert prisons from "schools of crime" into "schools-out-of-crime" by encouraging prisoners to teach other prisoners.

(c) Travelling communities

60. Gypsy and Traveller children are especially disadvantaged in education; there are data indicating that half of them may be classified as having special educational needs ⁴⁵. Special funding, known because of its legislative basis as "Section 488 grants", has been allocated to provide additional help for Gypsies, Travellers and refugees. Initiatives have been undertaken to improve the school performance of Travellers but inadequate emphasis has been placed on the attitudes of the majority, both teachers and learners. An ongoing review of the curriculum has emphasized freedom from discrimination and stereotyping, as well as the need to recognize diversity and inclusiveness ⁴⁶.

61. The Government has emphasized its efforts with respect to education of Gypsy and Traveller children in its report under the Convention on the Rights of the Child, but the Special Rapporteur is concerned about the formulation used, whereby these children "are entitled to have access to schools in the same way as all other children" ⁴⁷. For travelling communities, access to schooling which does not accommodate the children's lifestyle entails a rupture and questions the enjoyment of their freedom of movement and residence. The movement of Travellers' families can be involuntary when they are evicted because their residence has been determined to be illegal. Children's school attendance is necessarily interrupted, while two government policies (the suppression of illegal camping and the enforcement of school attendance) undermine each other.

62. The multi-layered discrimination which affects Gypsy communities, coupled with the inter-generational transmission of the lack of access to education and thus the demand for it, constitutes, in the view of the Special Rapporteur, a typical case where the spirit and the wording of the Convention on the Rights of the Child mandate rights-based education. The small numbers of the Gypsy and Travelling communities facilitate a focus on the rights and the best interests of the child.

(d) Children with physical and learning disabilities

63. The Disability Discrimination Act is gradually being implemented and a Disability Rights Commission is expected to be established in April 2000. The Government has committed itself to reviewing all education policies for their implications for children with special educational needs ⁴⁸, thus implicitly responding to the critique that the impact of the league tables has been to penalize schools' investment in learners with disabilities and thus to hamper the adaptation of mainstream schools to children with disabilities, segregating them in special schools.

64. Entitlements for learners with special needs to additional help depend on their being "statemented". This un-English linguistic construct denotes that such pupils are issued with a statement which formally affirms their special educational needs. A fairly large proportion of learners of compulsory school age (250,000 or 3 per cent) are "statemented" giving them an entitlement to have these special needs met ⁴⁹. This effort by parents to secure an explicit entitlement for their children testifies to the fact that special educational needs may otherwise remain unmet. This is also affirmed in the large numbers of expulsions from school of learners with special needs. In the Special Rapporteur's opinion, such a rationale highlights the importance of the best interests of each child as guidance for education.

2. University education

65. The introduction of tuition fees for university education defied the explicit requirement of the International Covenant on Economic, Social and Cultural Rights (art. 13.2 (c)) that access to higher education should be determined by individual capacity, while equal access should be secured through progressive introduction of free education.

66. The tuition fee of Ł1,025 for an academic year (25 per cent of the average tuition costs) and the conversion of previous grants into loans has made studying expensive. Student loans were introduced in 1990 and administered by the Student Loans Company, wholly owned by the Government. As of September 1994, student grants were reduced and then phased out; a new student loan scheme was introduced in September 1998. It allows students access to income-contingent loans, repayable after graduation.

67. The funding of university education has been shifted towards students (and their parents), with diminishing public funding. Tuition fees were introduced just one year after the previous Government had announced that it "had no plans to make students contribute to their fees" ⁵⁰. A part of the background to the introduction of fees was consecutive reductions in public funding for universities: the public funding per student was halved and research replaced teaching as the main basis for the funding of universities. Another part of the background was the widespread perception of university education as being elitist. The Dearing Report (the report of the National Committee of Inquiry into Higher Education) reasoned that students were benefiting because their degrees improved their employment prospects and led to higher salaries; hence graduates should retroactively contribute to the cost of their education. The proposal was to introduce loans, which would be repayable after graduation and after the graduate began earning an income that would not make the repayment too burdensome ⁵¹.

68. Tuition fees are paid in full by one third of students. One third - with lower incomes - pay a proportion of the fees, and one third of students, from the lowest income category, are exempt from payment. The money generated by tuition fees was intended to be used to broaden access to university education. A frequent diagnosis was that access to university education necessitated "being male, attending a selective school and having parents in professional/managerial occupations" ⁵². The Government therefore pledged "increasing and widening participation, particularly from groups who are under-represented in higher education, including people with disabilities and young people from semi-skilled or unskilled family backgrounds" ⁵³. A great deal of concern has been expressed about the effect being opposite to this government pledge. While it is much too early for any conclusive assessment, the initial data released by the Universities and Colleges Admissions Service (UCAS) on enrolments in 1998 point out that half (53 per cent) of all admissions to university degree courses originated from the highest two classes (Professional and Intermediate), by far exceeding their representation in the general population and affirming that the most significant predictor of access to university education is socio-economic status ⁵⁴. The number of 1998 admissions for the highest (Professional) category showed only a slight decrease (-2.4 per cent) in comparison with 1997. A larger decline in the number of admissions (-5.9 per cent) was revealed for the lowest (Unskilled) category ⁵⁵. It bears repeating that the novelty of tuition fees and student loans makes any such data only tentative, but worrisome because they do not point in the direction of enlarging access to university education for the poorest, as was intended.

69. The Special Rapporteur deems that the Government's pledge to equalize - not only maximize - participation in university education requires putting into practice its commitment to use "funding as a lever for change" ⁵⁶ so as to overcome the financial obstacles in accordance with their size, namely investing the most in those whose access is the most hampered.

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