The Convention on Human Rights introduced the idea of a “public authority”. This changes the way that such organisations are treated by the law. Schools that are public authorities must act in accordance with the convention.
Requirements to respect private life, rights to a fair trial and not be subjected to inhuman and degrading treatment, and the duty to respect religious belief - these are directly binding on these schools in all they do. There is a judgement that suggests that in a public authority these duties can be enforced against the headteacher personally.
Schools that are not public authorities are essentially only answerable to general statute or common law.
So, to which schools does this apply in the context of the use by the state of private facilities and arms-length agencies? The simplest working definition is that a public authority is an institution created by the state for the purpose of fulfilling the duties of the state. Maintained community schools and foundation schools clearly meet this criterion, while independent schools equally clearly do not.
And voluntary-aided schools? Although in most cases they were not founded by the state, the state provides their funding and establishes by statute and regulation the rules by which they operate in terms of pupils, admissions and curriculum. While this is not conclusive on its own, they provide for pupils for whom the state accepts responsibility.
And academies? Here, legal opinion is divided. Clearly, an academy is a creature of statute. It is funded by the state for the purposes of the state. But it is defined in statute as an independent school. The matter has not yet been decided in court, and it will be very interesting to see how the decision goes when it does so - as it undoubtedly will.
Richard Bird, Legal consultant to the Association of School and College Leaders.
