Tarun Ghosh on how schools can avoid breaching the new Human Rights Act
THE Human Rights Act came into force this month, incorporating into English law the European Convention on Human Rights.
There have been disconcerting stories in the media (see box right) about the effect of the Act on schools and their governing bodies. However, will an effective governing body have anything to fear?
It will be illegal for a public authority to breach any of the rights in the Act. Maintained schools count as public authorities, so governing bodies and headteachers must ensure that neither they nor their schools act in a way that contravenes the convention.
The rights most likely to affect schools and their governing bodies are:
the right to education;
the right to a fair trial;
the prohibition of discrimination on the grounds of sex, race, disability or other status;
the right to freedom of thought, conscience and religion;
the right to privacy and family life;
the right to property; and
the right to freedom of expression.
However, other rights may also affect schools or have implications for school policies.
Two articles do have implications for the exclusion process. The right to education means it will be important to set and mark work for an excluded pupil. Article 6 - the right to a fair trial - adds weight to discipline and appeal committees, who should hear from pupils themselves, if they wish to be heard.
Article 3, which prohibits inhuman or degrading treatment or punishment, will apply to schools. Schools should have in place an anti-bullying policy (including measures to tackle racist bullying) designed to prevent such treatment, and to deal with it when it occurs.
Schools should remain intolerant of incitement to racial hatred and other activities undermining the general ethos of the school.
Schools will have to ensure the dress code is clearly understood by and known to all staff and pupils, and doesn't discriminate against pupils of different sexes, religions or races. Make sure that any sanctions for breaching the dress code are proportionate to the offence.
Only conduct searches with pupils' permission - unless it is necessary to protect others, or to prevent disorder or crime. In these circumstances schools should contact the police.
Policies should be checked over, to ensure they comply with the law and meet with the latest guidance on best practice.
The Department for Education and Employment believes that schools and education authorities that do this will have little to fear.
He added: "Most of the Act's provisions which could apply to education are 'qualified', meaning that, in applying the Act, a balance needs to be struck between the rights and aspirations of parents, pupils, teachers, and governors.
"We do not think teachers, heads, governors, schools and education authorities need to do any more than check that they follow existing best practice and, if they do get into difficulties, keep careful records to make sure that they can show that they took a sensible course of action."
However, if a pupil or parent does threaten legal action under the Act, the governing body should be informed - and also, in foundation and aided schools, the body that appoints governors.
Seek legal advice. It might also be an idea to check the extent of legal cover under the school's insurance policies.
Remember that only the courts can give definitive decisions on the meanings of the Act.
Tarun Ghosh is an independent governance consultant, involved in Human Rights Act training. For details of courses, email him at firstname.lastname@example.org or telephone 07946 568991.
See www.homeoffice.gov.ukhract for general guidance on Human Rights, and www.dfee.gov.uka-z and the governors' section of www.tes.co.uk for more from an education perspective.
RIGHTS AND THE WRONGED
Several education-related human rights cases have already emerged since the Act was introduced: Two Jewish teenage sisters have taken Leeds city council to the High Court in a bid to win free transport to their closest single-sex Orthodox school, 45 miles away in Manchester. A hearing is expected in December.
A support group for parents of special needs children is considering a challenge to proposed changes in the law and guidance which it fears will undermine their children's rights to "aids and services" such as adapted computer keyboards.
The National Secular Society believes a legal exemption allowing the church schools to take account of employees' faith when considering appointments, promotions and dismissals breaches the rights of people of other faiths and none.
A Greek Orthrodox father is considering challenging the admissions policies of the Catholic school next door to his home after it refused to place his daughter.
A parent wants to use the Act to find out why an admissions panel would not support his claim that his daughter failed her 11-plus because of a health problem.