Legal action is route to ensuring rights

13th December 1996 at 00:00
Am I right in suspecting a conspiracy of the professionals against the laity when, in response to the threat of litigation by dissatisfied pupils, I see, apparently, the providers - David Hart for the teachers and Graham Lane for the Association of Metropolitan Authorities - leap on the same soapbox to defend their system against the consumers? And this on the basis of not, if I understand them, that they have not been at fault but that, if a court decides that they were at fault, then these mean litigants will force the poor, pious providers to do even worse by the rest of their customers.

When I was a teenager, I felt as David Hart is reported to do about the undesirability of a society operating by "American-style litigation", but it has become increasingly apparent that the Americans rightly perceived that legal, not political, action was the way to ensure one's rights under the law. This may be becoming the case here.

The 1944 Education Act lays upon parents the key duty to cause every child to receive "efficient, full-time education suitable to his age, ability, and aptitude" (Section 36). A corresponding duty, repeated in the 1993 Act, Section 192, obliges the LEA to ensure compliance and, by implication, to provide parents with and secure a child's attendance at a school which fulfils this criterion of suitability.

More knowledgeable critics than I (eg Professor Albert Halsey) have pointed out that local education authorities never properly implemented this requirement (otherwise we would not have the problems of under-achievement we have now, nor the need for all the intervening Education Acts).

Nonetheless, when some Asian parents in the late 1970s, early 1980s in a London borough which was providing only part-time schooling tried to enforce the provision in Section 36 through the courts, the judge declared - unbelievably, it seemed, even to this cynic - that the law gave no enforceable, individual right to education to anyone.

The decision gave rise to amazingly little comment or protest in the press, Parliament or pressure groups such as the Campaign for the Advancement of State Education.

Since then, LEAs' indulgence in similar foot-dragging over statements of special educational need has begun to cause parents, successfully, to sue them. I hope that their panicky perception of the likely success of the threatened litigation is well-founded, as it will deservedly overturn the decision that English law gives a child no right to a decent education.

MICHAEL E MARTIN 1 Oakland Close, Liverpool

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