Abolishing private schools and redistributing their assets: social justice at the expense of human rights?

A short examination of whether the policy endorsed by the Labour Party as part of its pledge to support social justice can be justified in law or is a flagrant contravention of human rights


By Jeremy Hyam QC

On 22 September 2019 the Labour Party Conference endorsed by vote a motion designed to have the effect that private schools will be abolished and their assets redistributed and integrated into the state sector. In a storm of media coverage that followed this vote, the passing of the motion was hailed as a victory for the ‘Abolish Eton Campaign’ while Laura Parker, Momentum’s national coordinator, described it as: ‘a huge step forward in dismantling the privilege of a tiny, Eton-educated elite who are running our country into the ground’.

It didn’t take long for some rather well-known lawyers to point out there may be a flaw in this plan. Lord Lester QC of Herne Hill in a letter to the Times that weekend pithily explained that as long ago as 1982, he and David Pannick had advised the school governing bodies that ‘Labour’s plan would violate the European Convention on Human Rights and its first protocol. Our opinion was published. No one disputed our advice and the policy was dropped.’ He expressed surprise about the plan being reignited and continued to be of the view that the plan would violate the European Convention on Human Rights (‘the Convention’).

Is it the case that the policy which Labour has endorsed as part of its pledge to support ‘social justice’ is flagrantly in contravention of human rights? Or is it a policy that can be justified in law by reference to the reasons supporting the motion bearing in mind that the right to education is not an ‘absolute’ right? The point is worthy of short examination.

Labour’s policy and the reasons in support

The Labour Party motion and the reasons in support of it were based on research by the Sutton Trust in 2019 and included the striking statistics that:

  • Only 7% of UK students attend private schools, yet 65% of senior judges, 52% of junior ministers, 44% of news columnists and 16% of university vice chancellors were educated in private schools.
  • Children at private schools have 300% more spent on their education than children in state schools.
  • Participation in private schooling is concentrated at the very top of the family income distribution; and
  • A Populus poll revealed 63% of the public agree, ‘it is unfair that some people get a better education and life chances for their children by paying for a private school.’

The essential question which lies behind the motion is whether the right to free choice in education (with those few who can afford it mostly paying privately) should come at such a cost in terms of social inequality? If the Labour Party has judged that the answer is ‘No’, then the question is whether a Labour government can lawfully remove such plurality in the interests of ‘social justice’ by an Act of Parliament or some other means?

The answer to this question, at least in Convention terms, may be seen from the examination of the Convention itself and its jurisprudence.

What does Article 2 of the First Protocol to the Convention (‘A2P1’) say?

A2P1 is concerned with the ‘Right to education’. It provides that:

‘No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.’

What does this wording mean?

From its wording it may be seen that A2P1 is framed in negative terms. The European Court of Human Rights (‘EctHR’) Guidance notes explain that this implies that the parties to the Convention did not recognise the right to be of that character which would impose a positive obligation to establish, at their own expense, or to subsidise education at any particular level. This approach can be seen in the Belgian Linguistics case (No. 2) (1968) 1 EHRR 252 and is supported by the travaux preparatoires which dismissed a positive formula for A2P1 for the reason that the signatory states did not want the first sentence of A2P1 to become interpreted as a positive obligation – either for the states to take effective measures so that individuals could receive the education of their choosing and/or for States to subsidise private education.

In summary, the right to education is a negative general right, which as Lester, Pannick and Herberg explain in their textbook: Human Rights Law and Practice, comprises four separate rights (none of which is absolute):

(i) a right of access to such educational establishments as exist;

(ii) a right to an effective (but not the most effective possible) education;

(iii) a right to official recognition of academic qualifications; and

(iv) a right, when read with the freedom from discrimination guaranteed by art 14 of the Convention, not to be disadvantaged in the provision of education on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status, without reasonable objective justification.

Does such a right protect private schools from being abolished, having their charitable status removed, VAT imposed, or having their assets stripped?

Part of the answer to these questions is to be found in two early decisions, one of the ECtHR and one of the European Commission of Human Rights (‘the Commission’). In Kjeldsen, Busk, Madsen and Pedersen (judgment of 7 December 1976, Series A no. 23, pp. 24-25, para. 50 (a case from Denmark where state and private schools co-exist) the court recognised that: ‘the second sentence of Article 2 (A2P1) aims in short at safeguarding the possibility of pluralism in education which possibility is essential for the preservation of the ‘democratic society’ as conceived by the Convention’. 

This point was then expanded by the Commission in Jordebo v Sweden App. No. 11533/85, where the Commission held that it follows from Kjeldsen, Busk Madsen and Pedersen that A2P1 ‘guarantees the right to start and run a private school’. That statement was qualified by the Commission explaining that such a right cannot be a right without conditions. It must be subject to regulation by the State in order to ensure a proper educational system as a whole.

The negative obligation in this context, is therefore in the nature of a guarantee of plurality or freedom of choice in access to education. It essentially means that the right to access an existing educational establishment eg a fee-paying school such as Eton, is a right guaranteed by the Convention in the interests of plurality, which plurality itself is essential for the preservation of democratic society as conceived by the Convention. Legislation aimed at abolishing or impairing the existence of such schools (eg by imposing VAT or removing Charitable Status) would therefore most probably be unlawful and incompatible with the Convention.

Such was the conclusion reached by Lester and Pannick in the Joint Opinion of Anthony Lester QC and David Pannick (ISIS document No. 11) April 1987: which concluded both that the abolition of fee paying, independent education would be a direct violation of A2P1, and that the removal of charitable status from, and the imposition of VAT on, independent/private schools would probably amount to a violation too.

There remains the most radical aspect of the proposal, namely appropriation of property, but in the light of what is said above, it can probably be dealt with shortly:

Article 1 of the First Protocol to the Convention (‘A1P1’) provides that:

'(1) Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.'

While it might be possible for the Labour Party to try to seek to pass legislation – using compulsory purchase powers of some sort – to ‘deprive’ independent/private schools of ‘property’ in the asserted public interest of ‘social justice’ for reasons already given, to do so would be frankly incompatible with the guaranteed right of those same independent schools to exist under A2P1 and the legislation or that part of it would be unlawful.

Summary

In sum, by reference to the Convention and its jurisprudence, whilst the Labour motion most recently passed may be compatible with the Labour Party’s pledge on ‘social justice’, it is frankly incompatible with the right to education and plurality of choice in education as guaranteed by A2P1 and the right of peaceful enjoyment of possessions protected under A1P1. Put another way, it is plurality not ‘social justice’ in education that is the core guarantee conferred by A2P1 and it is plurality, not ‘social justice’ which ‘is essential for the preservation of the “democratic society” as conceived by the Convention’. None of this means that the removal of social injustice and inequalities are not laudable objectives for the Labour Party to pursue in the best interests of society as a whole. But in the educational sphere, the means by which those objectives are sought to be achieved must be compatible with the guarantee of freedom of choice in education in the Convention.

This article will also appear on the 1 Crown Office Row human rights blog: ukhumanrightsblog.com

Jeremy Hyam QC is a barrister at 1 Crown Office Row. He specialises in public and administrative law, civil liberties and human rights as well as professional, particularly clinical, negligence, discipline and environmental law.

Author details: 
Jeremy Hyam QC

Jeremy Hyam QC is a barrister at 1 Crown Office Row. He specialises in public and administrative law, civil liberties and human rights as well as professional, particularly clinical, negligence, discipline and environmental law.