New human rights legislation is not likely to reduce teachers' powers as much as some fear, reports Phil Revell.
THIS week, the Human Rights Act 1998 - the UK enactment of the European Convention on Human Rights - finally came into force.
The two-year delay in introducing this law is due to the lengthy process of bringing the judiciary up to speed with the implications. Every judge and magistrate has been trained in dealing with cases where the Act could be relevant.
The Act enshrines 15 rights, some absolute - such as the right to life - and others that can be breached "with justification". There's the possibility for conflict between rights, with the right to privacy under Article 8 and the right to freedom of expression under Article 10 being one area where courts may have to establish case law before the legal situation becomes clear.
There is a widespread view that the Act will release a flood of claims and that education will be one area where the new rights have a serious impact. Mary Howard, legal officer for the National Association of Schoolmasters Union of Women Teachers, isn't so sure.
"I'm expecting people to have radical expectations," she says. "But it won't open the floodgates." She points out that most cases will still be brought under existing law and, while the Act may add weight to some claims, it's unlikely to radically change the way schools work.
Admissions and exclusions, disciplinary policies, both for staff and pupils, school uniform - even the right of teachers to keep pupils in detention (see Chris Lowe, right) - all have been cited as areas where schools must rethink what they do.
After a high court judge ordered a Bristol school to reinstate a boy, despite his violent record which included using a knife, some newspapers claimed that human rights legislation would remove a head's power to exclude. Protocol 1 of Article 2 says that no person shall be denied the the right to education and a 15-year-old girl is testing the water alleging that her human rights were infringed when she was excluded.
Teachers' unions are considering whether Article 3, which prohibits "inhuman or degrading punishment", could be used to protect teachers who face indefinite suspension after allegations have been made against them, while some heads fear the Act could outlaw after-school detention as a punishment.
But Mary Howard argues that the right to an education does not give pupils or parents an entitlement to demand either a place in the school of their choice or re-instatement after exclusion.
"Being excluded from school does not deny the right to education," she said. "The state has a duty to provide education, but not a duty to provide places at a particular school or to provide a particular kind of education."
In fact, the Act could work in heads' favour. Schoolchildren have rights as well and readmitting a known offender could infringe those rights.
"The critical issue is whether the school has to comply with a re-instatement order," says David Hart, general secretary of the National Association of Head Teachers. He's also upbeat about he likely effects of this "right to education": "It will put a great deal of pressure on education authorities and the Government to beef up their provision (for excluded pupils) as a matter of urgency," he argues.
Confusion about detention also arises from a false premise. As Russell Clarke, deputy general secretary of the Secondary Heads Association points out, detention after school is specifically provided for under the Act. The areas where schools must be careful is in the choice of activity. "Activities set should be educational," says Russell. But who is to define whether scrubbing graffiti off lavatory walls is educational or not?
The answer lies in proportionality - a defence allowed under the Act.
"Can it be justified on some objective basis?" asks legal expert John Hall, from employment law specialists Eversheds.
He agrees with Mary Howard that the impact of the new legislation will probably be less than some commentators expect.
Schools, argues John Hall, like other employers, must ensure that their procedures are watertight and followed in practice. It's a point reinforced by Russell Clarke, who says that a lot of existing cases fail, because procedures were not followed.
But there are some circumstances where the Act introduces entirely new provisions, such as the right to privacy applies outside the home.
"One example is surveillance," says Mary Howard. "An employee being watched by CCTV, who wasn't aware of the surveillance would have a case. Similarly with telephone surveillance, and e-mail." Most schools have CCTV, installed specifically to improve security, but the provision would only apply where the surveillance was covert.
Existing English law operates on the basis that an individual has freedom to do what the law does not expressly forbid, but human rights legislation owes its origins to European law.
"It's a different perspective," says John Hall. "It becomes a rights-driven emphasis. This is a watershed. There will be a rash of claims and it will take anything up to two years for case law to evolve to steady the climate."
THE CLAUSES SCHOOLS SHOULD KNOW ABOUT
3 No one shall be subjected to
torture or degrading treatment or punishment.
4 No one shall be held in slavery or servitude or shall be required to
perform forced or compulsory labour.
5 Everyone shall have the right to liberty and security of person.
6 Everyone is entitled to a fair and public hearing within a reasonable time by an independent tribunal established by law.
7 No one shall be subject to
retro-active penalties or law.
8 The right to respect for private and family life, home and
9 The right to freedom of thought, conscience and religion.
10 The right to freedom of
11 The right to peaceful assembly and freedom of association with others.
14 The enjoyment of the rights and freedoms set forth in this
convention shall be secured without discrimination on any grounds.
1 No person shall be denied the right to education.