GILES WILFRED DOVE+AND KATHERINE ANN DOVE FOR JUDICIAL REVIEW
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
| Lord Cameron of Lochbroom Lord Macfadyen Lord Sutherland | P1049/01 OPINION OF THE COURT delivered by LORD CAMERON OF LOCHBROOM in RECLAIMING MOTION in Petition of GILES WILFRED DOVE and KATHERINE ANN DOVE Petitioners and Reclaimers; for Judicial Review of the Acts of the Scottish Ministers in relation to St Mary's Episcopal Primary School, Dunblane _______ |
Act: Bovey, Q.C., Sutherland; Campbell Smith, W.S. (Petitioners and Reclaimers)
Alt: Davidson, Q.C., Ellis; R. Henderson (Respondents)
31 July 2002
[1]This reclaiming motion is presented, in place of the original petitioners, by two spouses for their own interest and as legal representatives of their child, who is a pupil at St. Mary's Episcopal Primary School, Dunblane ("St. Mary's"). The petition has been amended accordingly.
[2]The Lord Ordinary has set out in his Opinion the statutory background which gives rise to the petition. We do not find it necessary to rehearse that background in great detail but in particular section 17 of the Standards in Scotland's Schools Etc. Act 2000 ("the 2000 Act") which received Royal Assent on 14 July 2000 provides:
"(1)The Scottish Ministers may by order provide that, on such date as may be specified in the order, a self-governing school so specified shall cease to be under the management of its Board of Management and that it shall in consequence cease to be a school which is a self-governing school; and the Board shall, on that date, cease to exist.
(2)On and after that date, the Education Authority in whose area the school is situated shall manage the school."
The 2000 Act also repealed Part 1 of the Self Governing Schools Etc. (Scotland) Act 1989 ("the 1989 Act"). That part provided for a procedure whereby a school funded and managed by a local education authority might obtain what was described as "self-governing status". This procedure and the subsequent history arising from it is set out in detail in the paras 1 and 2 of the Lord Ordinary's Opinion. In short, by acquiring such status a publicly financed school which had thitherto been managed by an elected local authority and by officials employed by and responsible to that authority, was thereafter managed by a body consisting principally of elected parent members, elected staff members and certain co-opted members. Provision of finance for such a school became the responsibility of the Secretary of State for Scotland and under the relevant statutory regulations it was provided that ultimate responsibility for paying the annual costs of the school rested with the local education authority.
[3]The petitioners and reclaimers do not claim that it was ultra vires the Scottish Parliament to legislate as they have done in passing the 2000 Act. Counsel for the reclaimers specifically accepted that no criticism was directed to the decision of the Scottish Parliament to pass legislation intended to repeal Part 1 of the 1989 Act. He made clear that it was no part of the case that the 2000 Act was in some way contrary to and hence incompatible with the European Convention on Human Rights. Nor, he stated, did the reclaimers attack the policy of the 2000 Act. In particular, he disavowed any intention to suggest that the option of self-governing status is more economical than the alternative, namely, the system of funding schools which operated prior to the 1989 Act and continued thereafter in all cases with the exception of Dornoch Academy and St. Mary's which opted for self-governing status. Counsel accepted that the allocation of resources was properly one for the discretion of the Scottish Ministers. However, he observed that, as is the case, it is not suggested by either the reclaimers or the respondents that the funding of a system of schools with self- governing status is more expensive than the alternative system.
[4]The attack of the reclaimers is therefore directed to the validity of two aspects of the respondents' actings consequent upon the passing of the 2000 Act. The first is the making of the two orders on 28 and 29 August 2001 respectively, namely, The St. Mary's Episcopal Primary School (End of Self-governing Status) Order 2001 and The St. Mary's Episcopal Primary School (Transitional Provisions) Order 2001, together with the making of The Standards in Scotland's Schools (St. Mary's Episcopal Primary School)(Section 18) Directions 2001 on 3 September 2001. Together these seek to effect the reversion of St. Mary's to the management of the local education authority and to its being funded directly, rather than indirectly, by that local education authority. The second is the refusal by the respondents in a letter dated 29 February 2000 of an application made on behalf of St. Mary's for grant aid, that refusal being taken in the light of the respondents' decision to proceed with the legislation which was subsequently passed as the 2000 Act with a view to making the foregoing orders and directions.
[5]The Lord Ordinary observed in para 7 of his Opinion that the petitioners did not suggest that in terms of domestic Scots law or procedure any of the orders and directions or the foregoing refusal of the application for grant aid which were intended to give effect to the policy of the 2000 Act, namely to reverse the effects of the 1989 Act and to return schools with self-governing status to the governance of the local education authority, were defective. Rather the challenge arises from two facts, both historical. The first is that the only school having self-governing status at the time when the 2000 Act was passed was St. Mary's: the second is that prior to the 1989 Act, Jordanhill School came to be governed in terms of the Jordanhill School Grant Regulations 1988 and section 73 of the Education (Scotland) Act 1980 and continues to be so to the present day. The history of Jordanhill School is set out in para. 10 of the Lord Ordinary's Opinion. As the Lord Ordinary observed, Jordanhill School has never been managed by any local education authority and the sums provided to the school by way of grant are not provided by or recoverable from the local education authority. It continues in being as an independent school but one which is wholly grant-aided. The management of the school is entrusted to a company incorporated under the Companies Acts but limited by guarantee.
[6]The challenge centres on Article 2 of the First Protocol to the Convention which provides:
"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."
The challenge also extends to Article 14 of the Convention which provides:
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination 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".
It was common ground between parties that it is well established that Article 14 of the Convention does not enact a general wide ranging prohibition on discrimination. Its application is restricted to discrimination only within the "ambit" of the particular rights and freedoms protected elsewhere in the Convention.
[7]Since the petition has been amended after the hearing before the Lord Ordinary, it is appropriate to set out the reclaimers' case as it now appears in the pleadings. In article 14 of the condescendence it is averred that the complaints raised by the reclaimers and on behalf of their son fall within the ambit of Article 2 of the First Protocol by reason that their son has a right not to be denied education under the first sentence thereof and in any event within the ambit of their own rights to respect for the education and teaching of their son in conformity with their own philosophical convictions. In article 16 of the condescendence it is said that the respondents' acts in making the orders and directions, in conjunction with their prior refusal to give grant aided status to St. Mary's, discriminate against the reclaimers and their son within the ambit of the rights accorded to them under Article 2, in that it would cause St. Mary's to cease to be self managed outwith the control of any local authority and accordingly treated differently from Jordanhill School which is to continue to be so managed. It is thus clear that the reclaimers' case remains in essence that which was advanced in argument before the Lord Ordinary, namely, the measures complained of proposed to make a change in the method of managing a school which had the potential to change the character and nature of the school and thus had consequences for the effectiveness of the education provided for pupils in the school. Such measures came within the ambit of Article 2. In addition the case has been amplified and now extends to an issue concerning the reclaimers' philosophical convictions which was not fully developed before the Lord Ordinary as appears from paras. 24 and 25 of his Opinion.
[8]Before us counsel for the reclaimers accepted that in paras. 12 to 20 of his Opinion the Lord Ordinary had correctly set out the issues in the case, the applicable Convention law and the parties' submissions. He did not question the Lord Ordinary's formulation of the first issue in relation to the ambit of Article 2, as being whether a decision by the State to alter the management arrangements of a State sector school formerly managed and directly financed by the local education authority but continuing effectively to be principally financed by that authority so as to place it again under management and direct financing by that authority, came within the ambit of the right protected by Article 2. He accepted that a leading authority on the interpretation of the terms of Article 2 was to be found in the Belgian Linguistic Case (No.2) [1968] 1 EHHR 252 (the Belgian Linguistic case). That judgment made clear that the guarantee of the right to education had to be effective and not illusory. While it was not part of the reclaimers' case that the right itself had been violated, it was argued that it had been violated when taken in conjunction with Article 14. Reference was made to Petrovic v. Austria 33 EHRR 14. That was to say, the right to education had been honoured by the State before as much as it would be after any transfer of management of the school to the local authority. Pluralism was implicit in Article 2 and encouraged by the terms of the second sentence of that Article. Thus in providing St, Mary's as a State school with "self-governing" status, the State was making available the right to education guaranteed by Article 2 in a manner which fell within the ambit of the right. Accordingly, a proposal to transfer the school from one management to another fell within the scope of Article 2. It followed that any transfer had to be effected in a non-discriminatory fashion otherwise it brought Article 14 into play.
[9]The Lord Ordinary, it was said, had erred because he had adopted an overly restrictive approach to the scope or ambit of the right to education. Decisions affecting the management of a school were within the ambit of the right of pupils to receive education, by reason that any management decision affects the education at the school. Even a tenuous link with another Convention provision would suffice to bring Article 14 into play. Reference was made to Grosz on Human Rights para.14-10. Reference was also made to Kjeldsen, Busk, Madsen and Pederson v. Denmark [1976] 1 EHRR 711. The right to education was concerned inter alia with standards and quality. Reference was made to the Belgian Linguistic case at p.281. To refuse grant aided status to St. Mary's while it was available under statute and provided to Jordanhill School, was to discriminate against the pupils of St. Mary's. The Lord Ordinary in para. 23 of his Opinion had rejected this submission because he had taken too narrow a view of the right to education guaranteed by Article 2 when he said that "the right, as defined by the Strasbourg court, was that of access to the educational institution as from time to time existing". By the same token, he had misread and misunderstood the case of Kjeldsen.
[10]Likewise the Lord Ordinary had failed to appreciate the relationship between the right to education in the first sentence of Article 2 and the rights of parents which fell to be respected in terms of the second sentence of Article 2. The act of transfer of management was a matter of regulation of the education within the school. Even though there had been no violation of the right to education, nevertheless the reclaimers as parents with a child at St. Mary's were entitled to respect for their philosophical convictions that self-governing status, where transfer of staff was within parental control as was budget control for administration, and the ethos of the school was enhanced by its relationship to parents and the local community, was of greater educational benefit to their child than local authority control.
[11]In the alternative, counsel for the reclaimers submitted that such a proposed transfer of management of the school was an exercise by the State of a function which it assumed in relation to education. A broad approach was to be taken to this matter. In exercising that function the respondents were bound to respect the reclaimers' philosophical convictions. Such convictions could extend to administrative arrangements - see Campbell and Cosans v. UK [1982] 4 EHRR 293 para 36 - and to the organisation of education - see Family H [1984] 37 DR 105. Pluralism, tolerance and broadmindedness were the hallmarks of a democratic society. While individual interests must on occasion be subordinated to those of a group, democracy did not simply mean that the views of a majority must always prevail; a balance must be achieved which ensured the fair and proper treatment of minorities and avoided the use of a dominant position - see Gorzelik v. Poland - Judgment EHR Court 20 December 2001. Reference was also made to Gaweda v. Poland - Judgment EHR Court 14 March 2002. The decision in Valsamis v. Greece [1996] 24 EHRR 294 emphasised that the duty in terms of Article 2 to respect parents' convictions is broad in its extent as it applies not only to the content of education and the manner of its provision but also to the performance of all "functions" assumed by the State. Reference was also made to X v. UK [1970] 14 ECHR 179 for the proposition that the provision of resources might bring a case within the ambit of Article 2. In the context of discrimination there was a violation not only where persons in analogous situations were treated differently but also where States without an objective and reasonable justification failed to treat differently persons whose situations were significantly different. Reference was made to Petrovic v. Austria: Thlimmenos v. Greece [2001] 31 EHRR 411: Engel v. The Netherlands [1976] 1 EHRR 647: Salgueiro da Silva Mouta v. Portugal [2001] 31 EHRR 1055: Lithgow v. UK [1986] 8 EHRR 329. A difference in treatment was established in X v. UK. In W and KL v. Sweden [1985] 45 DR 143 the Commission accepted as comparators private schools who received school social assistance and those that did not. In his approach to discrimination in treatment in para.30 of his Opinion the Lord Ordinary had minimised the application of the approach taken by the Strasbourg court in Rasmussen v. Denmark [1984] 7 EHRR 371. He had looked at the matter of difference of treatment on the basis that the discrete issues of whether the comparators were in analogous situations and whether the difference in treatment or failure to treat was justifiable merged in the present case. The two schools, St. Mary's and Jordanhill School were similarly placed in being publicly funded and presently mainstream schools not directly managed by the local education authority. The two schools for the reasons set out in the pleadings and, in particular, the report there referred to, constituted relevant comparators. Counsel intimated that he did not reopen the submission made before the Lord Ordinary and rejected by him that the doctrine of "margin of appreciation" was something which could only be applied by the Strasbourg court. In para. 32 of his Opinion the Lord Ordinary had misunderstood the decision in R ex parte Alconbury Developments Ltd v Secretary of State for the Environment, Transport and the Regions [2001] 2 AER 929 cited to him. As was plain from the speech of Lord Hoffman at para. 110, it was to the planning process and not to the judicial review stage that the democratic process applied . In Answer 16 the respondents set out the justification for the distinction in treatment between the two schools. It was said to be founded on an entitlement, having regard to the margin of appreciation afforded to them, to have different administrative arrangements in relation to schools financed by them in different parts of the country. Furthermore, it was said to be founded on an objective assessment of different factual circumstances and, based on the public interest, it struck a fair balance between the protection of the interests of the community and respect for the rights and freedoms safeguarded by the Convention. While it was admitted that the two schools had different histories, operated under different legislation and were funded through different mechanisms, in essence the two schools were similar in self-governing status but the legislation passed only applied to St. Mary's. The differences in funding and in administration which were founded on for the respondents, were in the respondents' hands. There was no reason why the respondents should not treat both schools in the same way. Section 28 of the 1989 Act was entirely permissive as to the clawback of funding from the local education authority. Accordingly it could not be said that because the respondents chose to claw back funding for St. Mary's from the local education authority, that factor served to make the respective positions of the two schools different and not analogous. The history and background to the establishment of Jordanhill School's present status were not relevant in such a determination. If it was, so equally was the history of five years' self-governing status for St. Mary's. Furthermore, in determining whether there was reasonable and objective justification for the different treatment or failure to treat differently, it had to be shown that in acting as they did the respondents were pursuing a legitimate aim and that there was an objective and reasonable relationship of proportionality between the means employed and the aim sought to be achieved. Reference was made to Sutherland v. UK (Application No. 25186/94) 1 July 1997: Larkos v. Cyprus [2000] 30 EHRR 597: Ex p. Daly [2001] 3 AER 433 especially per Lord Steyn at p. 445: Hatton v. UK [2002] 34 EHRR 1. When refusing the application for grant aid the respondents had not suggested that all state schools should be under the control of the local authority for reasons of educational advantage. Rather the policy was to prevent schools leaving local authority control. Reference was made to the Explanatory Notes to the 2000 Act. No aim was specified by the respondents in their pleadings in relation to their justification by way of the margin of appreciation accorded to them. There was thus no reasonably detailed explanation such as to justify the difference in treatment between the two schools such as was referred to in Rasmussen. Consequently in refusing the application by St. Mary's for grant aided status and making the orders and directions complained of, the acts of the respondents were incompatible with Article 2 read in conjunction with Article 14 and accordingly ultra vires in terms of section 57(2) of the Scotland Act.
[12]For the respondents it was submitted that the issues involved and the questions raised in the reclaiming motion centred on the scope of Article 2 of Protocol No. 1 and in particular the first sentence. Reference was made to the travaux preparatoires concerning what ultimately became Article 2. From these it was clear that the aim of the Article was to secure that in each of the Contracting States the system of education was free from totalitarianism. This was made plain by the Court in Kjeldsen. In relation to the second sentence of the Article, the convictions of parents did not require to be reflected but only respected in the system of education. What was at issue was a return to the situation that existed in State public schools prior to 1995. Such a return could not be treated as equivalent to totalitarianism in a democratic society. The respondents were entitled to make a change in the mode of management style without its suggesting anything doctrinaire in its imposition. In any event there was nothing in Article 2 which indicated that an allegation of discrimination could be based on a broad approach to the right to education. It was not enough to find facts which involved education. That was not the approach in European jurisprudence. The case of Petrovic v. Austria did not support the approach contended for. The exercise of the right to education was preserved through a pluralistic system. The first sentence of Article 2 is expressed negatively and accordingly the right to education is qualified. Reference was made to Lester and Pannick - Human Rights Law and Practice para. 4.20.4. It was to be observed that so far as a change in management style was concerned, no criticism was made of local authority intervention. The reclaimers' case was simply that parents preferred the way St. Mary's is presently run to the way in which it was run in the past. For the reclaimers to succeed it would be necessary to show how the transfer of management entrenched upon the right to education. Nothing was said within the jurisprudence of the Strasbourg Court on the matter. There had to be some point for criticism and an effect upon the right claimed. Reference was made to Abdulaziz, Cabales and Balkandali v. UK [1975] 7 EHRR 471. The reference to Grosz did not support the reclaimers' case to the effect that the scope of the right was unlimited so as to activate Article 14. The alternative approach of the reclaimers was to base their case on their own philosophical convictions. The issues of efficiency, cost effectiveness and rising school standards were founded on. Reference was made to increasing diversity, though not in the sense of pluralism in a democratic society. But a change in management style did not alter the existence of pluralism or the existence of local authority management in the system of education. It was not suggested that the advantages which, it was said, will be lost, would in some way lead to a situation equivalent to totalitarianism or something that was unacceptable in a democratic society. Reference was made to Campbell and Cosans. In any event, management style did not amount to some weighty and substantial aspect of education. The reclaimers doubtless held strong views on the matter and their convictions were directed to the undesirability of local authority governance. It was also said that their convictions extended to pluralism. But pluralism did not simply mean differences in the mode of governance. It was directed to the protection of democratic institutions. There was nothing of weight in what was inferred by the reclaimers as being the consequence of transfer. Their opinions could not qualify as philosophical convictions within the meaning of the second sentence of Article 2. In any event, there was no right to have every philosophical conviction more than respected. Thus in Valsamis the Court would not intervene while recognising the force of the applicant's beliefs. In W and DM v. UK [1984] 37 DR 96 there was a fully developed attack on the comprehensive system of education but the complaint was rejected. The Commission observed that there was no evidence of the children being indoctrinated and no imposition of totalitarian views. The averments in the petition did not go so far as the complaint in that case. They did not fall within the ambit of the right to education guaranteed by the first sentence of Article 2. Nor were the reclaimers' views such as to constitute philosophical convictions relative to that right to education.
[13]In relation to the reclaimers' submissions concerning Article 14 of the Convention, it was to be borne in mind that the Convention provided a system of minimum rights to provide for individualism. Article 14 referred to the attributes of an individual. Reference was made to Kjeldsen. Such attributes required to be externally observable and to amount to more than having a particular point of view. Discrimination had to relate to the management of the school. It was said that there was discrimination as against Jordanhill School. It could not be said that the reclaimers had suffered any form of discrimination. Why should a move from parent guided management to local authority management involve discrimination in relation to parents or pupils? Reference was made to Lester and Pannick supra para. 4.14.10 where the authors stated that a claim of discrimination contrary to the Article will be made out if the applicant shows that he has (within the ambit of a Convention right) been treated differently, on a prohibited ground, from people in a similar or analogous situation. But there was no point of distinction between the two schools other than what was set out in the petition, namely, that two systems run side by side, and nothing as between parents and children in the two schools. But a difference in treatment as to the system operating at each of the schools was not sufficient to qualify as discrimination on a prohibited ground within the meaning of Article 14. At best the complaint was one of "less good" education. But if the reclaimers and their child were being treated in the same way as any other parent and child in Scotland in the State school sector, apart from Jordanhill School, that was not general discrimination. Reference was made to W and KL v. Sweden. There was no discrimination against St. Mary's in taking the school back into the general system of management by local education authorities, when there was no reason to treat the school differently from such other schools managed by these authorities. The change was not brought about by any act of discrimination which violated Article 2 of the Protocol No. 1 when read along with Article 14 of the Convention.
[14]As to justification for the legislation, the respondents founded on what was said in the letter refusing the grant aid application. In addition, they were entitled to look to the question of expediency which was supported by the report produced by the relevant Committee of the Scottish Parliament to the effect that schools were best managed by local education authorities. The reclaiming motion should be refused.
[15]In our opinion, the submissions for the reclaimers are ill-founded. At the outset we observe that it is agreed that the issue between parties concerns a change in the manner in which the management of St. Mary's is controlled. So far as funding is concerned, both before and after 1995 the local authority has borne the ultimate responsibility for its provision. No fees are payable and there is no academic selection of pupils at present nor is there any suggestion that the position will change in the event of a transfer of management control taking place in accordance with the orders and directions complained of. Nor is there any suggestion that either the teaching of subjects or the curriculum for teaching will change upon such a transfer. Nor, apart from an assertion of a belief to the contrary on the part of the reclaimers, is there any suggestion that such a transfer of management control would adversely affect the education of the pupils at St. Mary's. Furthermore, the announcement that the respondents intended to repeal the 1989 Act was made in January 1999, that is to say, before the application for grant aided status was submitted on behalf of St. Mary's, which was then one of two schools with that status. The management of the other, Dornoch Academy, transferred to the control of Highland Council in August 1999 while a third, Fort William Primary School, while approved for self-governing status, had not by then progressed and did not thereafter progress to attain that status. The reclaimers do not suggest that the policy which gave rise to the legislation or indeed the legislation itself is incompatible with the Convention, notwithstanding the known fact that at the time of the passing of the 2000 Act St. Mary's was the only school that remained with self-governing status. It might therefore be thought, in face of these facts, to be difficult for the reclaimers to seek declarator in the terms that they do, namely, that both the acts of the Scottish Ministers in making the orders and directions complained of in terms of that legislation and under the powers granted by that legislation, and the refusal of the application for grant-aided status in advance of the passage of the 2000 Act, a refusal determined by the policy previously announced, were ultra vires as incompatible with the Convention and in particular with rights accorded to the reclaimers under Article 2 of Protocol No. 1 read in conjunction with Article 14 of the Convention.
[16]The general right to education in the first sentence of Article 2, it has been said, dominates the article. For that reason, any interpretation given to the right of parents to have philosophical convictions taken into account must not conflict with the primary right to education enjoyed by the child. See Campbell and Cosans at para. 36. Incorporated within that general right are the four separate rights (none of which is absolute) namely, a right of access to such educational establishments as exist; a right to effective (but not the most effective possible) education, a right to official recognition of academic qualifications and a right, when read with the freedom from discrimination guaranteed by Article 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 and objective justification. The state is entitled to regulate these rights, taking account of individual and community needs and resources, provided this does not "injure the substance of the right to education nor conflict with other rights enshrined in the Convention - see the Belgian Linguistic Case (No.2) .....The regulation may vary from time to time and from place to place" - see Lester and Pannick supra para. 4.20.4. It is, in our opinion, important to note that in the passage cited from the Belgian Linguistic case the Strasbourg court differentiated between discrimination injuring "the substance of the right to education" and discrimination conflicting with other rights enshrined in the Convention.
[17]The substance of the right to education was defined in the Belgian Linguistic case in the passage cited by the Lord Ordinary at para.15 of his Opinion. The Strasbourg court had in mind the circumstances in which the Article came to be drafted and agreed. It pointed out that there neither had been, nor was there, any question of requiring each State to establish a general and official educational system, "but merely of guaranteeing to persons subject to the jurisdiction of the Contracting Parties the right, in principle, to avail themselves of the means of instruction existing at a given time". Again, in Kjeldsen, as the Lord Ordinary noted in para. 22 of his Opinion, the description of those rights was reiterated by the Strasbourg court. In that case the court was concerned with a Danish law which made sex education compulsory and integrated it into the curriculum of State primary schools whereas private schools which were subsidised by the State were exempt from the requirement and were merely obliged to impart factual biological information. At para. 52 the court said this:
"As is shown by its very structure, Article 2 constitutes a whole that is dominated by its first sentence. By binding themselves not to 'deny the right to education', the Contracting States guarantee to anyone within their jurisdiction 'a right of access to educational institutions existing at a given time' and 'the possibility of drawing' by 'official recognition of the studies which he has completed', 'profit from the education received'."
[18]This passage, in our opinion, sets out 'the substance' of the right to education in Article 2.
[19]At this stage we also note that the court went on to say this:
"The right set out in the second sentence of Article 2 is an adjunct of this fundamental right to education. It is in the discharge of a natural duty towards their children - parents being primarily responsible for the 'education and teaching' of their children - that parents may require the State to respect their religious and philosophical convictions. Their right thus corresponds to a responsibility closely linked to the enjoyment and the exercise of the right to education.
On the other hand, 'the provisions of the Convention and Protocol must be read as a whole'. Accordingly, the two sentences of Article 2 must be read not only in the light of each other but also, in particular, of Articles 8, 9 and 10 of the Convention which proclaim the right of everyone, including parents and children 'to respect of for his private and family life', to 'freedom of thought, conscience and religion', and to 'freedom....to receive and impart information and ideas."
[20]In the next paragraph the court observed:
"It follows in the first place from the preceding paragraph that the setting and planning of the curriculum fall in principle within the competence of the Contracting States. This mainly involves questions of expediency on which it is not for the Court to rule and whose solution may legitimately vary according to the country and the era......
The second sentence of Article 2 implies on the other hand that the State, in fulfilling the functions assumed by it in regard to education and teaching, must take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner. The State is forbidden to pursue an aim of indoctrination what might be considered as not respecting parents' religious and philosophical convictions. That is the limit that must not be exceeded.
Such an interpretation is consistent at one and the same time with the first sentence of Article 2 of the Protocol, with Articles 8 to 10 of the Convention and with the general spirit of the Convention itself, an instrument designed to maintain and promote the ideals and values of a democratic society."
[21]No doubt once the State has embarked upon the provision of public education, it is under some positive obligation, in respect of each and every function undertaken, to ensure respect for parents' philosophical convictions. But as the Commission observed in W and DM v. UK, under reference to Kjeldsen, respect for parents' philosophical convictions is not without some limitations of a practical nature. The Commission there cited the passage from Kjeldsen already quoted and pointed out
"Thus the essence of Art. 2 of Protocol No. 1 is the safeguarding of pluralism and tolerance in public education and the prohibition on indoctrination, parents' religious and philosophical convictions having to be respected, albeit not necessarily reflected, in the State school system".
[22]In holding the complaint manifestly ill-founded, the Commission noted that there was in place a dual system of selective and comprehensive public education and that other alternatives, such as private school education or education at home of a sufficient standard, were open to them. It also noted amongst other things that the fact that the applicants could not afford private education, could not be viewed as conflicting with the requirements of Article 2. It further observed that there was no evidence in the case that the applicants' children were "being indoctrinated in the respective comprehensive schools which they are attending or that the teaching of the children is not conveyed in an objective, critical or pluralistic manner" nor was there any allegation that "the comprehensive system denies the applicants their major role in the education of their children, in particular the transmission of their values or philosophical convictions".
[23]We begin by observing that in the submissions for the reclaimers there appeared at times to be a blurring of the approach taken to the two separate bases upon which the petition proceeds. In Campbell and Cosans at paras. 39 to 41 the court was concerned to consider a complaint that the child of Mrs. Cosans had been denied the right to education contrary to the first sentence of Article 2. In para. 40 it pointed out that while the existence of corporal punishment as a disciplinary measure in the school attended by her son underlay both of the allegations concerning Article 2, there was a substantial difference between the two claims. The court then said this:
"In the case of the second sentence, the situation complained of was attendance at a school where recourse was had to a certain practice, whereas, in the case of the first sentence, it was the fact of being forbidden to attend: the consequences of the latter situation are more far-reaching than those of the former. Accordingly, a separate complaint, and not merely a further legal submission or argument was involved.
Again, Article 2 constitutes a whole that is dominated by its first sentence, the right set out in the second sentence being an adjunct of the fundamental right to education.
Finally, there is also a substantial difference between the legal basis of the two claims, for one concerns the right of a parent and the other a right of a child.....
The right to education guaranteed by the first sentence of Article 2 by its very nature calls for regulation by the State, but such regulation must never injure the substance of the right nor conflict with other rights enshrined in the Convention or its Protocols.
The suspension of Jeffrey Cosans - which remained in force for nearly a whole school year - was motivated by his and his parents' refusal to accept that he receive or be liable to corporal punishment ....His return to school could have been secured only if his parents had acted contrary to their convictions, convictions which the United Kingdom is obliged to respect under the second sentence of Article 2....A condition of access to an educational establishment that conflicts in this way with another right enshrined in Protocol No. 1 cannot be described as reasonable and in any event falls outside the State's power of regulation under Article 2.
There has accordingly also been, as regards Jeffrey Cosans, breach of the first sentence of that Article".
[24]We note from this case that the factual situation was such that by reason of his suspension the child was being denied access to an educational establishment and was only to be permitted to return if his parents acted contrary to their convictions. It was therefore the substance of the child's right of access to education that was injured by reason of regulation of access to the child's educational establishment in a manner which conflicted with the parents' right under Article 2. A similar distinction between a pupil's right to education and the right of parents under Article 2 is made by the court in Valsamis at paras. 24 and 25.
[25]In the present case, however, there is no averment as to how the child's right to education, and in particular of access to St. Mary's, is in any way affected by a transfer of management control of the school which does not change either the curriculum or teaching at the school. There is nothing to suggest that there will be any such 'indoctrination' as is referred to by the Commission in W & DM v. UK. At its highest, on this branch of their case the reclaimers appear to assert that, in their regulation of state schools including St. Mary's, the respondents are bound to maintain self-governing status because a pluralistic approach has to be taken to the educational establishments provided. This assertion is said to be consistent with the decision in Petrovic v. Austria. We agree with counsel for the respondents that nothing to this effect can be taken from that case. It was not concerned with the right to education but with discrimination on grounds of sex in the context of the right to respect for family life within the meaning of Article 8 of the Convention. The court repeated what had been said in the Belgian Linguistic case, namely that Article 14 of the Convention comes into play whenever "the subject-matter of the disadvantage..constitutes one of the modalities of the exercise of a right guaranteed", or the measures complained of are "linked to the exercise of a right guaranteed". Thus by granting parental leave allowance the court said that States were able to demonstrate their respect for family life within the meaning of Article 8 of the Convention. The reference to pluralism in connection with the right to education and the need to ensure it means that private and independent schools (charging fees and providing assisted places) so long as they reach minimum standards , are not only permitted but their right to exist is guaranteed. -see Lester and Pannick supra para.4.20.5. Within the state sector of education parents have no right to insist on the provision of single-sex or selective schools - see W & DM v. UK. Again, we remind ourselves that in the Belgian Linguistic case, in a passage cited to the Lord Ordinary, the court said:
"Thus, persons subject to the jurisdiction of a Contracting State cannot draw from Article 2 of the Protocol the right to obtain from the public authorities the creation of a particular kind of educational establishment: nevertheless, a State which had set up such an establishment could not, in laying down entrance requirements, take discriminatory measures within the meaning of Article 14".
[26] It follows that measures such as the orders and directions complained of in this petition which are concerned only with regulation of the constitution of the management and control of the management and administration of a school and which do not affect the curricula or teaching at the school, that is to say, the effectiveness of the education offered there, or limit access to the school or the education offered at it, do not fall within the scope or ambit of the right to education guaranteed by the first sentence of Article 2. They do not constitute a disadvantage to any of the modalities of the exercise of that right nor are they linked to the exercise of that right.
[27]By the same token, a refusal of grant-aided status cannot itself be regarded as constituting any disadvantage to the exercise by the reclaimers' son of any of the modalities of his right to education nor can it be linked to any discrimination in the exercise of the right by way of access to education on the part of the reclaimers' son. In these matters there is no distinction between the pupils attending St. Mary's and those attending Jordanhill School. The source and the extent of funding to St. Mary's, refusal or no, was unaffected. All that would be affected would be the continuance of "self-governing" status under legislation which the Scottish Ministers had as a matter of policy determined to repeal, a policy which, the reclaimers concede, is not incompatible with the Convention. In this regard the case of X v. UK is not in point. There the complaint on the part of parents was that the education authority had failed to provide a 100% grant for a parent controlled integrated school and was concerned with the right arising from the second sentence of Article 2 which is directed to the exercise by the State of the functions which it assumes in relation to education and to teaching. In rejecting the complaint the Commission observed:
"Accordingly, interpreting the Article as a whole, there is no positive obligation on the State, in relation to the second sentence of Article 2, to subsidise any particular form of education in order to respect the religious and philosophical beliefs of parents. It is sufficient for the State in order to comply with its obligations under Article 2 to evidence respect for the religious and philosophical beliefs of parents within the existing and developing system of education."
[28]We therefore agree with the Lord Ordinary's conclusion that it is not sufficient to bring Article 14 into play with regard to the complaint on the part of the reclaimers' son, that the measures complained of are related to education or the provision of education in some general way. We find nothing in the cases referred to by counsel for the reclaimers which contradicts that conclusion. On this branch of the reclaimers' case we can find no error in the approach adopted by the Lord Ordinary and his conclusions set out in para. 23 of his Opinion.
[29]The second branch of the reclaimers' case derives from a complaint that in the exercise of their functions, both in regard to the application for grant-aided status and the measures taken by way of the various orders and directions to secure the transfer of the management of St. Mary's, the Scottish Ministers failed to respect the reclaimers' right as parents set out in the second sentence of Article 2. In their pleadings the reclaimers define their right as being the right to respect for the education and teaching of their own son in conformity with their own philosophical convictions. These are specified on averment as follows:
"They strongly and sincerely believe that parental control of the management of St. Mary's is to the significant educational advantage of their child. In particular parents are free to (and presently do) manage the school as an individual institution with its own identifiable ethos and spirit, in a manner which is directly responsive to parental wishes; which enhances the accountability of the direct providers of educational services (teachers) through the board of management to the consumers of those services (parents on behalf of their children); which has led to greater efficiency, cost effectiveness and rising school standards; and which has enhanced local parental choice by increasing diversity of provision of schools in the state-maintained sector. They believe further that the educational advantages to their child thereby accruing would be lost by placing the school under local authority management, as more fully set out in the written submission of St. Mary's Board of Management to the Education, Culture and Sport Committee on 8th December 1999......The petitioners' said beliefs are of sufficient weight and substance as to be properly accorded the description 'philosophical' within the meaning of Article 2 of the First Protocol, being beliefs of cogency, seriousness and importance, worthy of respect in a democratic society."
In Valsamis the court observed:
"(The court) reiterates that 'the two sentences of Article 2 [of Protocol No.1] must be read not only in the light of each other but also, in particular, of Articles 8, 9 and 10 of the Convention.
The term 'belief' appears in Article 9 (of the Convention) in the context of the right to freedom of thought, conscience and religion. The concept of 'religious and philosophical convictions' appears in Article 2 of Protocol No. 1. When applying that provision, the Court has held that in its ordinary meaning 'convictions', taken on its own, is not synonymous with the words 'opinions' and 'ideas'. It denotes views that attain a certain level of cogency, seriousness, cohesion and importance........
The Court reiterates that Article 2 of Protocol No. 1 enjoins the State to respect parents' convictions, be they religious or philosophical, throughout the entire State education programme. That duty is broad in its extent as it applies not only to the content of education and the manner of its provision but also to the performance of all the 'functions' assumed by the State. The verb 'respect' means more than 'acknowledge' or 'take into account'. In addition to a primarily negative undertaking, it implies some positive obligation on the part of the State".
[30]The averments are, in our opinion, insufficient to constitute the kind of views which amount to philosophical convictions within the meaning of Article 2. Although introduced by the verb 'believe', they amount at best to no more than individual opinions relating to the governance of St. Mary's and have nothing of the nature of the convictions which were exemplified, for instance, in Kjeldsen, Campbell and Cosans or Valsamis. Thus in Campbell and Cosans parental objections to the use or threatened use of corporal punishment in schools were 'philosophical' because they related to a weighty and substantial aspect of human life and behaviour, namely, the integrity of the person, the propriety or otherwise of the infliction of corporal punishment and the exclusion of the distress which the risk of such punishment entails.
[31]Nevertheless, it is appropriate that we consider the submissions for the reclaimers with regard to the prohibition against discrimination in Article 14. Before the Lord Ordinary, in the absence of any case such as is now presented for the reclaimers as parents, the issue as described in para. 13 of the Lord Ordinary's Opinion was whether there had been a difference in treatment as between children attending St. Mary's and children attending Jordanhill School which might properly be described as "discrimination" of a kind prohibited by Article 14. In our opinion, that is not the correct formulation of the issue which arises under the second branch of the reclaimers' case. In Kjeldsen at para. 56 when considering a complaint of a discrimination on the ground of religion, contrary to Article 14, in that while Danish legislation allowed parents to have their children exempted from religious instruction classes held in State schools, no similar possibility was offered for integrated sex education, the Court said at para. 56:
"The Court first points out that Article 14 prohibits, within the ambit of the rights and freedoms guaranteed, discriminatory treatment having as its basis or reason a personal characteristic ('status') by which persons or groups of persons are distinguishable from each other. However, there is nothing in the contested legislation which can suggest that it envisaged such treatment.
Above all the Court, like the Commission, finds that there is a difference in kind between religious instruction and the sex education concerned in this case. The former of necessity disseminates tenets and not mere knowledge; the Court has already concluded that the same does not apply to the latter. Accordingly, the distinction objected to by the applicants is founded on dissimilar factual circumstances and is consistent with the requirements of Article 14."
[32]The first question which arises is what is the ambit of the right to which the reclaimers apply. Examination of the legislation and the matters complained of by the reclaimers in this case does not indicate that they distinguish the reclaimers and other parents at St. Mary's from other parents in the education system, including those with children at Jordanhill School, by virtue of their status as a group with philosophical convictions. On averment the complaint is that the making of the orders and directions would cause St. Mary's to cease to be self-managed outwith the control of any local authority and accordingly treated differently from Jordanhill School which is to continue to be so managed. This is no more than an attempt to represent the existence of the parents' role as governors of St. Mary's as being the existence of a right as parents to be involved directly in the state school system of management. But that is not the scope of the right of parents in relation to the right to education as explained in the Belgian Linguistic case and in Kjeldsen. In our opinion, as we have already indicated in relation to the first branch of the reclaimers' case, just as the setting and planning of the curricula fall in principle within the competence of the Contracting States, so too does the methodology of management to be applied in the state school sector. As was said by the Court in Valsamis, para. 28, this mainly involves questions of expediency on which it is not for the Court to rule and whose solution may legitimately vary according to the country and the period. On this branch of the reclaimers' case, the decision in X v. UK is directly in point and directly contrary to the submissions for the reclaimers. We recall also that in W and KL v. Sweden the Commission referred to their earlier decisions in X v. Sweden and Y v. Sweden that by permitting the establishment of a private school, Sweden had fulfilled its obligation under Article 2 and the refusal to make a grant to the private school was not contrary to the requirements of Article 2 since that Article did not require the State to make a grant to the school nor to provide financial assistance to the pupils. The Commission then went on to consider and reject a complaint of discrimination between pupils in State schools and pupils in private schools in the refusal to subsidise the private school, holding that it did not add any new element. In the present case there is nothing to which the reclaimers point which indicates that upon transfer of management there will be any difference in treatment in curricular matters, teaching or funding, between the present situation as it affects both St. Mary's and Jordanhill School (even assuming that the latter can be considered as a State school) and the situation which would obtain after a transfer of management at St Mary's to the local authority.
[33]We therefore agree with the Lord Ordinary's view in para. 25 of his Opinion that when considering the ambit of the right to which the reclaimers apply as parents, the second sentence of Article 2 relates to the content of the education provided for their child rather than to administrative arrangements for its provision.
[34]But even if it were to be the case that the reclaimers' beliefs were to amount to philosophical convictions such that the Scottish Ministers were obliged to have respect for them, then, as was pointed out in Kjeldsen, there is within the system of education in this country the opportunity for the reclaimers, in the name of their creed or opinions, to dissociate their child from St. Mary's as a local authority controlled school and entrust him to a private and independently governed school. We would comment in passing that St. Mary's is only a primary school and that all the other schools, both primary and secondary, in the state school sector are managed and controlled by local authorities. There is thus no room for the reclaimers' views at the secondary school level.
[35]For these reasons, we consider that the second branch of the reclaimers' case also fails.
[36]For the rest we can shortly state our views. We note that counsel for the reclaimers did not dispute the observation of the Lord Ordinary in para. 29 that the question of disadvantage or otherwise may have a certain bearing on the ultimate logic of the petitioners' position. Nor did counsel seek to reopen the argument in relation to "margin of appreciation" recorded in para. 31 and rejected by the Lord Ordinary. We consider that for the reasons which he gives, the Lord Ordinary was fully justified in the opinions and conclusions which he reached in paras. 28 to 36 of his Opinion.
[37]We shall accordingly refuse the reclaiming motion.