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The Education Bill was introduced into the House of Lords on 12 May, having completed its passage in the House of Commons on 11 May. In this Report we consider four significant human rights issues raised by the Bill.
Free early years' provision
In our Report, we welcome the extension of the entitlement to free early years' provision to all disadvantaged two year olds as a human rights enhancing measure. This will help ensure UK compliance with the UN Convention on the Rights of the Child and responds to the recommendations of the UN Committee on the Rights of the Child to ensure the right of children to a truly inclusive education.
Extended powers to search pupils
The Bill includes measures to improve discipline and behaviour in schools, which we welcome as human rights enhancing measures insofar as they help children exercise their right to education under Article 2 Protocol 1 of the European Convention on Human Rights (ECHR) and Article 28 of the UN Convention of the Rights of the Child. These measures, however, may come into conflict with others rights such as the respect for private life (Article 8 ECHR).
The Bill includes measures to extend the power of staff in schools to search pupils for any item which the school rules identify as an item for which a search can be made. We welcome the Government's intention to issue guidance on the obligations of governing bodies under Article 8 ECHR to respect private life when identifying items in the school rules as items which pupils can be searched for. However, we consider that this open-ended power may fall foul of the requirement that interferences with the right to respect for private life must be "in accordance with the law" unless the power is circumscribed by reference to the purpose for which a search may be made. We recommend that the guidance should make clear that only items capable of being disruptive to teaching or learning, threatening to the safety of pupils and teachers, or which breach criminal law can be identified in school rules as items for which searches of pupils can be made. Guidance should also advise on when the exceptional power to search a pupil of the opposite sex can be exercised, making clear the Government expectation that a secondary school teacher would search a pupil of the opposite sex only "on very rare occasions". We conclude that personal searches (excluding searches of lockers, bags and outer clothing) should only be conducted when there is a risk of serious and imminent harm.
The Bill also provides a power for staff to examine and erase data on pupils' electronic devices. We accept the necessity of a properly circumscribed power to examine and erase data and welcome the Government's intention to give guidance on how it should be exercised. We have concerns, however, about the width of the power as defined in the Bill, given the potentially serious interference with the right to respect for private life. We recommend that the power to examine and erase data "if the person thinks there is a good reason to do so" should be replaced by a power "if the person has reasonable grounds to suspect that the device has been, or is likely to be, used for purposes which are unlawful or contrary to school rules." In our Report we suggest amendments to the Bill to this effect.
School exclusion appeals
We also consider the change to the process of challenging exclusions from schools in England. This is a particularly important issue given the impact a permanent exclusion can have on the life of the excluded pupil. We are particularly aware that the majority of students excluded from school have Special Educational Needs. The current independent appeal panels will be replaced with "independent review panels" with more limited powers, with the aim of stopping schools from being forced by appeal panels to re-admit excluded pupils. We are not persuaded that the evidence provided by the Government shows the necessity for abolishing independent appeals panels. We conclude that Article 6 ECHR, the right of access to a court or tribunal, applies to the decision permanently to exclude a child from a school. On this basis, we argue that the provisions for review panels without full appellate jurisdiction and without the power to order reinstatement are incompatible with the requirements of the Article. Further consideration should be given to the recommendation of the Administrative Justice and Tribunals Council that all exclusion appeals be referred to a First-Tier Tribunal, which would remove the incompatibility by providing for the right of access for an excluded pupil to a genuinely independent tribunal with the necessary jurisdiction to provide an effective remedy.
Teacher Anonymity
The Bill provides for restrictions on the reporting of allegations made against teachers amounting to charges of a criminal offence, before they have been charged with a criminal offence. While these restrictions represent an interference with freedom of expression, but we are satisfied that the evidence provided by the Government justify that the restrictions are necessary and proportionate in order to protection the reputation and rights of teachers.
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