Article 2 of the First Protocol: Right to education
Students’ right to education
No one can be denied the right to education. This encompasses a right:
- to an effective education (that is adequate and appropriate);
- to access to existing educational institutions;
- to be educated in the national language; and
- to obtain official recognition when studies have been completed.
This does not require the State to establish new types of education, rather it gives individuals a right to access educational facilities that already exist.
This does not require the State to establish new types of education, rather it gives individuals a right to access educational facilities that already exist.If a pupil is excluded from school the exclusion must be both necessary and proportionate.
The right extends to primary, secondary as well as higher education. The right belongs to the student, who must not be denied the right to education (and not their parent).
The right to education includes a freedom to set up private schools, but this freedom is subject to regulation by the State to ensure there is a proper educational system, and does not include a right to subsidies for providing that education.
Parents’ right to respect for their convictions
Article 2 of the First Protocol also provides that the State must respect the right of parents’ religious and philosophical convictions in respect of education and teaching. This aspect of the right is closely aligned to the right to freedom of religion in Article 9. This right belongs to the parent rather than the student.
What constitutes a philosophical conviction (being a belief, beyond an idea or opinion) includes convictions that are worthy of respect in a democratic society, are compatible with human dignity and do not conflict with the student’s right to education.
This right does not prevent the State from setting and planning the school curriculum, but it does require the matters in the curriculum to be conveyed in an objective, critical and pluralistic manner so that parents’ different religious and philosophical convictions are respected.
When it first agreed to be bound by this Article the UK entered a reservation to it to say that it accepts the need to respect parents’ religious and philosophical convictions but that it would do so only so far as it is compatible with providing efficient instruction and training and unreasonable public expenditure was avoided.
Two Scottish mothers took a case to the European Court of Human Rights arguing that the then policy of compulsory corporal punishment, which they fundamentally disagreed with, failed to respect their philosophical convictions. The son of one of them had been excluded from school for almost one year for failing to agree to submit to corporal punishment.
The Court held that a blanket policy that failed to provide for any exemptions for individual students if their parents’ religious or philosophical convictions required it, failed to comply with the second part of the right to education. It also held that excluding the son for almost one year from schooling breached his right to education, as he could have only returned to school if his parents had acted contrary to their convictions.