Human Rights and Education Law: Less Than A Quantum of Solace?
Advocate and Barrister
1.1 Has the development of education law in Scotland lagged behind England and
Wales? The answer is certainly yes. There are a number of reasons for this, most
importantly the historical structure of the regulation of education decisions within
the Scottish courts system compared with the primacy of the role of judicial
review in England and Wales: Scots education law has given the sheriff an
especially important role.
1.2 Education law has been seen as a cornerstone in the development of English
administrative and public law and makes up a significant percentage of the
English Administrative Court’s caseload. By contrast education law suffers a
lower profile in Scotland, with a few notable exceptions. If much of this can be
explained by the primacy of the shrieval jurisdiction in resolving educational
conflicts, one might still expect significant case law to have developed north of
the border in the context of human rights challenges.
1.3 Important and complex decisions about the regulation of education have found
their way to the very top of the English judicial system; whilst in comparison,
even human rights decisions within the jurisdiction of Scotland are few and far
between. Can it be that Scottish local authorities are immeasurably better than
their English counterparts? Possibly. Does the sheriff’s fuller and more adequate
fact finding jurisdiction resolve conflicts more satisfactorily, more fully and more
fairly than the inadequate English system, overly dependent as it is, upon lay
panels and judicial review?
Advocate: Murray Stable, Edinburgh; Barrister: Hardwicke Building, London.
1.4 This paper looks at recent human rights cases in two interrelated areas of
education regulation: exclusions and the right to education and school uniform
policies. A clear pattern emerges; huma