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Lautsi v Italy: crucifixes in the classroom and ‘dialogue’ with Strasbourg (Italian style)

March 29th, 2011 by Joe Barrett

Introduction

On 18 March 2011, the Grand Chamber of the European Court of Human Rights (“the ECtHR”) handed down its keenly anticipated judgment in Lautsi v Italy, Application no. 30814/06.

The issue in the case was whether a provision of the Italian law requiring that crucifixes be displayed on the walls of state school classrooms constituted a violation of the Article 9 (freedom of religion) and Protocol 1, Article 2 (“A2P1”) rights of non-Christian children, and their parents, who objected to the presence of such religious symbols.

The case was previously considered by the Second Section of the ECtHR, which issued a unanimous judgment on 9 November 2009 holding that Italian law was incompatible with the Convention, finding a violation of Article 9 in conjunction with A2P1 and awarding Mrs Lautsi €5,000 in damages.

The judgment provoked a furious response, with the Strasbourg Court being widely criticised for illegitimate judicial legislation and failing to have appropriate regard to its subsidiary role as regards the balance struck between competing rights by individual Council of Europe (“CoE”) member states.

Notably, the backlash was not confined to political quarters. Shortly after the decision of the Second Section was handed down, the Italian Supreme Court issued a judgment containing dicta to the effect that decisions of the ECtHR which conflict with ‘fundamental norms’ of Italian law would lack inherent legitimacy and would not be enforced.

Consequently, the stakes in the Grand Chamber hearing were high. The case also generated an unprecedented number of third party interventions, including submissions from 9 NGOs and 10 CoE member states.

As was widely anticipated, the Grand Chamber (by a 15-2 majority) opted to retreat from the judgment of the Second Section, holding that Italian law is compatible with the ECHR and that no violation of Mrs Lautsi (or her children’s) rights had occurred. The judgment contains several statements of wider interest regarding the scope of A2P1 and the rights of parents in relation to the exposure of their children to religious symbols and concepts within the state school system.

Facts

Mrs Lautsi brought the action on behalf of herself and her two children, both of whom (at the relevant time) were being educated at a State school in Abano Terme. Her essential claim was that Article 9 and A2P1 should be interpreted as imposing an obligation on the State to maintain absolute religious neutrality within the State education system, so that any manifestation of religious imagery or symbolism that could be construed as having State approval or support would be prohibited. It was asserted that the mere exposure to the sight of a crucifix in an educational setting infringed a non-Christian child’s right to freedom of religion and was a violation of the parental right to have the child educated in conformity with his or her own philosophical convictions.

The reasoning of the ECtHR

The Court began by rehearsing its general approach to A2P1 and religion in the State school curriculum. Two points merit particular attention.

First, the Court emphasised the limitations on the right of parents to object to children being exposed to religious or philosophical teaching or concepts, stressing that what A2P1 prohibits is proselytism or indoctrination and that no valid objection can lie in respect of information conveyed in an objective, critical and pluralistic manner [§62].

Secondly, in a passage which is destined to be frequently invoked by those defending A2P1 claims on behalf of public authorities, the Strasbourg Court gave a strikingly account of the concept of ‘respect’ as deployed in A2P1 and the margin of the appreciation enjoyed by member states in respect of that provision of the Convention [at §61]:

“…“respect” in Article 2 of Protocol No. 1 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…

Nevertheless, the requirements of the notion of “respect”, which appears also in Article 8 of the Convention, vary considerably from case to case, given the diversity of the practices followed and the situations obtaining in the Contracting States. As a result, the Contracting States enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals. In the context of Article 2 of Protocol No. 1 that concept implies in particular that this provision cannot be interpreted to mean that parents can require the State to provide a particular form of teaching”

Turning to the facts of the application, the ECtHR first noted that there was no evidence before it that the display of crucifixes in the classroom had any actual influence on pupils or impacted upon the formation of their religious or philosophical convictions [§66]. Secondly, it emphasised CoE member states’ margin of appreciation in regulating the school environment and the content of the curriculum, asserting in particular that there was no European consensus as to the proper role of religious symbols in State education [§§69-70 and 76]. Thirdly, it sought to distinguish the presence of what it characterised as ‘the essentially passive symbol’ of the crucifix in the classroom from the exposure of children to didactic and potentially proselytising indoctrination [§§71-74]. Fourthly, it relied on the fact that the evidence indicated that in practice the Italian state education system was pluralistic and allowed for exposure to, and expression of, a wide range of religious convictions and philosophies and that in any event Mrs Lautsi retained her right, both legally and in practice, to direct her children’s religious and/or philosophical development in line with her own convictions [§§74-75].

The retiring, but not retiring concurrence of Judge Bonello

It would be remiss to offer any account of Lautsi without drawing the reader’s attention to the astonishing concurrence of Judge Giovanni Bonello. Judge Bonello (deservedly crowned the 2008 Johnnie Walker man of the year: http://www.timesofmalta.com/articles/view/20081020/local/giovanni-bonello-is-johnnie-walker-man-of-the-year), has now retired from the Court and is known to enjoy a colorful phrase. However, the decision of the Second Section of the Strasbourg Court, and the suggestion that the presence of the crucifix in state schools could be construed as a breach of the ECHR, spurred him to unprecedented rhetorical heights. Edited highlights of what is likely to be a valedictory address include the following:

“”A court of human rights cannot allow itself to suffer from historical Alzheimer’s”…”No supranational court has any business substituting its own ethical mock-ups for those qualities that history has imprinted on the national identity”…”A European Court should not be called upon to bankrupt centuries of European tradition”…”No Court… should rob the Italians of their cultural personality”…”…a Court in a glass box a thousand kilometers away has been engaged to veto overnight what has survived countless generations”…”The Court has been asked to be an accomplice in a major act of cultural vandalism”…”It is uninformed nonsense to assert that the presence of the crucifix in Italian schools bears witness to a reactionary fascist measure imposed in between gulps of castor oil by Signor Mussolini. His circulars merely took notice of a historical reality that had preceded him by several centuries and, pace Ms Lautsi’s anti-crucifix vitriol, may still survive him for a long time.”

Commentary

A2P1 and State education

From the perspective of the education lawyer, the most interesting passages of the judgment are to be found at §§61-62 and 70 where the Strasbourg Court frames the extent of the restrictions which A2P1 imposes on religious education in State schools (broadly, education is permitted but indoctrination is not), the limited nature of the relevant parental rights and the, generally wide, margin of appreciation which States enjoy in this field of activity.

The wider milieu

Lautsi is a striking example of, what appear to be increasingly frequent, confrontations between the Strasbourg Court and domestic Governments and superior courts. This phenomenon will be familiar to anyone in the UK who has followed the recent controversy concerning the ECtHR’s decision that the UK’s current blanket ban on serving prisoners voting in elections is a breach of the ECHR.

On one view, Lautsi might be considered as an example of what a sufficiently robust response to errant holdings of the Strasbourg Court can achieve: in the face of unified opposition from the Italian Government and senior judiciary the Grand Chamber arguably had no option but to retreat from the position adopted by the Second Section. This scenario, of domestic politicians and the judiciary uniting in opposition to the position adopted by the Strasbourg Court, has not generally been a feature of the issues which have to date arisen in the UK, where the general pattern has been for the ECtHR to deliver decisions which enhance judicial power and/or competence which (perhaps unsurprisingly) meet with the support of the judiciary but are opposed by elected politicians.

A possible analogue might be found in the pending judgment of the Grand Chamber in Al-Khawaja v. United Kingdom (Application no. 26766/05), where the Strasbourg Court is to determine whether English law’s treatment of the admissibility of hearsay evidence is compatible with Article 6 of the Convention. The Fourth Section had previously held that it was not, but this was followed by the unprecedented judgment of the UK Supreme Court in R (Horncastle) [2009] UKSC 14, in which a nine-strong bench of Justices exhaustively analysed the Strasbourg jurisprudence and, in effect, pleaded with the Grand Chamber to reverse the Fourth Section’s judgment.

It is interesting to contrast the stance of the UK Supreme Court, with its emphasis on rigorous forensic analysis of the incoherence of the Strasbourg Court’s case law and, always deferential, request for further reflection (with no real suggestion that it will not fall into line with the ECtHR’s ultimate decision) with the altogether blunter and more robust stance adopted by the Italian Supreme Court. Lautsi might be read as showing that the ‘Italian approach’ works. Judgment in Al-Khawaja is expected imminently this year and it will be interesting to note whether the approach of the UK Courts proves similarly effective.

11KBW Education Bill Seminar, papers

March 22nd, 2011 by admin

Peter Oldham QC, Tim Kerr QC, Clive Sheldon and Edd Capewell spoke at the 11KBW Education Bill Seminar on 21st March 2011. The papers from this seminar are now available to download – click here

Unreasonable public expenditure

March 21st, 2011 by Rachel Kamm

The Upper Tribunal has reviewed the authorities about the meaning of public expenditure in section 9 of the Education Act 1996. In K v London Borough of Hillingdon (SEN) [2011] UKUT 71 (AAC), HHJ David Pearl confirmed that a local authority (and the Tribunal on appeal) is obliged to take account of the wider social and health benefits when it is considering whether the education of a child at an independent school (in accordance with parental wishes) would be incompatible with the avoidance of unreasonable public expenditure.  The judgment is available here: http://www.osscsc.gov.uk/Aspx/view.aspx?id=3201.

School Re-organisation: Sixth-forms and Foundation Schools

March 15th, 2011 by Clive Lewis

March 15, by Clive Lewis Q.C.
Foundation schools and voluntary aided schools have a considerable amount of autonomy. Local education authorities have no specific statutory powers to make prescribed alterations consisting of removing sixth forms. Within Wales, the Governing Body may make such a prescribed alteration and the Welsh Ministers also have statutory powers to do so.

The local education authority for Blaenau Gwent wished to consult and make proposals for the re-organisation of sixth-form education within the county generally, both for maintained schools and for Brynmawr Foundation School. As the authority had no specific statutory power to make proposals for a foundation school, it asked, and the Welsh Ministers agreed, to enter into an arrangement whereby the authority exercised the functions of consulting upon and making proposals for re-organisation of the sixth-form at Brynmawr School. The Welsh Ministers have power under section 83 of the Government of Wales Act 2006 (“GOWA”) to make such arrangements with any public authority. In R (Governors of Brynmawr School) v The Welsh Ministers and Blaenau Gwent [2011] EWCH 519 (Admin), the Governors of Brynmawr School challenged this contending that the Welsh Ministers had no power to delegate to a local authority the function of consulting and making proposals for re-organising sixth-form provision at foundation schools. They contended that the statutory scheme precluded local authorities from having such an involvement. They contended that as a matter of statutory interpretation, a general power, such as that conferred by section 83 of GOWA, was not intended to apply to a situation governed by other, specific statutory provisions such as those which governed foundation schools. The School also contended that the outcome of the consultation by the authority was predetermined and that the process failed to comply with guidance on the timing of the consultation.

The Administrative Court held that the Welsh Ministers did have power to enter into an arrangement whereby a local education authority would exercise the Welsh Ministers’ functions in relation to sixth-form re-organisation at foundation and voluntary aided schools. The power in section 83 of GOWA was a wide one and applied to any function (save for certain specified functions). That power was broad enough to encompass the Welsh Ministers’ function of consulting upon and making proposals for altering a sixth-form at a foundation school. Furthermore, the Administrative Court held that GOWA was a statute having constitutional status. Restrictions on the scope of the powers conferred by such constitutional statutes should not be imposed in the absence of clear words and the powersr should not be subject to implied limitations said to be derived form the provisions of other, non-constitutional statutes.

The Administrative Court also rejected the claim that the outcome of the consultation process was pre-determined. The authority had not consulted on the option put forward by the School but instead consulted its preferred option and explained why it did not support the option put orward by the School. That, it was claimed, amounted to pre-determination. However, the consultation document set out its preferred option, it explained the reasons for favouring that option and not favouring others and it invited consultees to put forward alternatives and those alternatives were then considered by the authority. In the circumstances, the outcome of the consultation process was not predetermined. The consultees had not been denied any meaningful opportunity to put forward their views. Indeed, giving sufficient information on the reasons for the preferred proposal was consistent with the obligation to consult required the provision of sufficient reasons to enable the consultees to make a meaningful response and there should be a candid disclosure of the reasons for what was proposed. The Administrative Court rejected an argument that the consultation process failed to comply with the guidance that it should take place predominantly in term time; 32 days of the consultation took place in term and 28 days took place during school holidays. That complied with the guidance and, in any event, the Court would not have considered it appropriate to set aside the consultation and subsequent decisions on this ground particularly given the delay in advancing it. Other grounds of challenge were rejected or permission to advance such grounds was refused because of the delay in raising them.

Clive Lewis Q.C.

Safe system of work for teachers

March 15th, 2011 by James Goudie QC

In Vaile v Havering LBC [2011] EWCA Civ 246 the Court of Appeal found the local education authority liable for injuries suffered by a teacher when she was assaulted by a pupil at a special school for children with learning difficulties.  By failing to identify the pupil as suffering from autistic spectrum disorder and by failing to make appropriate educational provision for him the authority had failed to provide a safe system of work for the teacher.  That failure was causative of the injuries she suffered.  The incident was not an isolated one; and there had been no adequate response to an earlier incident.  Longmore LJ said (para 23) that there should have been a system for revealing whether pupils at the school had ASD and for informing the teachers of that fact; that (para 24) once the authority appreciated that a pupil was ASD they should have ensured that those teaching that pupil were properly instructed in appropriate techniques; that (para 30) the failure to provide a safe system of work persisted over a considerable period of time; and that (para 32) although it might be difficult for the teacher to show precisely what she or the school could have done to avoid the incident if she had been appropriately instructed in suitable techniques for dealing with ASD children, the probability is that, if proper care had been taken over that period she would not have met the injury she did.

James Goudie QC

Support and aspiration: A new approach to special educational needs and disability

March 9th, 2011 by Rachel Kamm

The Government has published a Green Paper, which promises that its ”new approach to special educational needs and disability makes wide-ranging proposals to respond to the frustrations of children and young people, their families and the professionals who work with them“.

The document is 134 pages long and I haven’t yet got beyond the Executive Summary. Look out for more blogs on the topic over the coming days and weeks, but for the moment here is a summary of what seem to be the main proposals:

Identification and assessment of SEN

  • The Government believes that there is over-identification of SEN because of “perverse incentives” created by the measures of school performance. It proposes to tackle this by “replacing the current SEN identification levels of School Action and School Action Plus with a new single school-based SEN category for children whose needs exceed what is normally available in schools“, introducing new statutory guidance on SEN identification and introducing an indicator in performance tables giving clear information on the progress of the lowest attaining pupils;
  • There will be a new approach to identifying SEN in early years settings and schools, with “a new single early years setting- and school based- cateory of SEN“;
  • A new “single assessment process and ‘Education, Health and Care Plan’” will replace statutory SEN assessment and statements by 2014, whilst providing the same statutory protection to parents. It will include a “commitment from all parties to provide the services“. Local assessment and plan pathfinders will test the best way to achieve this; and
  • The Government is testing how the voluntary and community sector could co-ordinate assessments with input from across education, health and social care. The aim is to increase the independence of the assessment process. It also wants to reduce the time the current statutory assessment process takes.

Personal budgets

  • All families with children with a statement of SEN or a new ‘Education, Health and Care Plan’ will have the option of a personal budget by 2014.

Choice of school

  • Parents wil be given ”a real choice of school, either a mainstream or special school” by the removal of “the bias towards inclusion” and improved range and diversity of available schools;
  • Parents will have their preference for any state-funded school (including special schools, Academies and Free Schools) met unless it would not meet the needs of the child, would be incompatible with the efficient education of other children or would be an inefficient use of resources;
  • Parents and community groups will have the power to take over special schools which would otherwise be unnecessarily closed; and
  • All maintained special schools will be given the opportunity to become Academies in due course; and
  • Parents or local community members will be able to establish new special Free Schools.

Information and advice

  • Local authorities will “set out a local offer of all services available to support children who are disabled or who have SEN and their families“;
  • With the introduction of the option of personal budgets by 2014, “Key workers will be trained to advise families and help them navigate the range of help available across health, education and social care“; and
  • As part of the new proposed “birth to 25 single assessment process” and the new ’Education, Health and Care Plan’, under 25s who are disabled and/or with SEN will have early and well-integrated support for, and advice on, their future (spanning education, health, social care and support into employment) by 2015.

Post-16

  • For those over 16, by 2015 there will be access to better quality vocational and work-related learning options, “good opportunities and support in order to get and keep a job” and “a well-co-ordinated transition from children’s to adult health services“; and 
  • The Government will explore the feasibility of annual health checks from GPs.

Disputes

  • The Government proposes to give parents more control, which it says means that ”if local authorities and parents disagree, they [will] always try mediation first, to resolve problems in a less adversarial way than having to to take their case to the Tribunal“.

The Green Paper is available here: http://www.education.gov.uk/publications/eOrderingDownload/Green-Paper-SEN.pdf. The consultation period runs until 30 June and there will then be a period of testing proposals in local areas from September 2011.

Civil Injunctions Against Extremism in Schools?

March 8th, 2011 by Tim Kerr QC

Education lawyers may think it unlikely they would become involved in civil litigation related to terrorism or advocacy of Sharia law in schools.  But the anti-terrorism sage of successive governments, Alex Carlile QC (Lord Carlile) has now raised the possibility of civil injunctions against school governors who allow promotion of “extremism” in their schools.  Such schools could also lose their charitable status, according to remarks attributed to him at a recent seminar reported in the press.  The review is being conducted within the Home Office and the results are expected in April 2011.  There are obvious human rights implications (both in relation to Article 9 of the Convention, concerning religious belief, and Article 10, concerning freedom of speech) if legislation subjects schools governors to sanctions for promoting views characterised as “extremist” where those views also constitute religious doctrine.  This will not be an easy issue for the government or for schools if the legislation is enacted.

Tim Kerr QC

Time to look again at admissions

March 8th, 2011 by Clive Sheldon QC

In today’s Times newspaper, it is reported that the Department for Education is planning to look again at the Admissions Code: see “Schools admission rules to be rewritten”. Many of those involved in admissions will say, about time to.

According to the Times, a source at the DfE was reported to have said that

“We want to make it clearer, fairer and more transparent so that it’s easier to use so people don’t feel that things are going on that aren’t fair or right. It can’t be right that on national offer day there are parents who feel that they’ve been badly done by and we are trying to solve this by making the code easier to use.”

This makes sense to me.

I recently carried out a review of determinations made by the Schools Adjudicator over the past year. There were some baffling decisions made on a number of occasions, based on the Adjudicator’s reading of the Code.

In one case — London Borough of Croydon: ADA/1746 — a parent whose child had not got into the first of his three preferred primary schools, but had got into a school which was fifty minutes walking distance away, objected to the distance criteria used by the local authority admissions authority. The Adjudicator noted that distance as a criterion was expressly approved by the Code. The Adjudicator considered whether the distance criteria used by LB Croydon were fair by asking whether the journey to the alternative school was “disproportionately long”. The Adjudicator considered that a journey of 50 minutes for a primary school child was not ‘unreasonable or disproportionate, such as to be unfair, when considered alongside distances which children and families in other parts of the country are required to make.’

This seemed to me an odd decision: a fifty minute walk to a primary school in London seems grossly unfair. The fact that children in rural areas may have to do similar, or longer walks, to (presumably) the nearest school is beside the point. Such children are in vastly different circumstances, where expectations of distance and travel times to school are very different. The comparison was, in my view, inapt.

In another case — St. Marylebone C of E School, Westminster: ADA/001769 — the Adjudicator considered the process adopted by the school, a specialist arts college, for admission to the small number of places for children with ‘aptitude’ for performing arts. The Code seeks to draw a distinction between ‘ability’ (which cannot be tested for as part of the admissions arrangements) and ‘aptitude’ (which can). When looking at the school’s approach to testing aptitude for choral music, the Adjudicator stated that hearing a child singing was not allowed. It might, however, be permissible for candidates to be requested to “hum”.

This decision made me laugh. Others will  no doubt have their own favourites. 

We will have wait and see what changes to the Code will be proposed by the DfE.

Pressure to Raise Standards

March 7th, 2011 by Tim Kerr QC

Michael Gove, the Secretary of State for Education, has written to all academy sponsors warning them that those schools eligible for intervention action, where performance “just isn’t good enough”,  will now be assessed as those where under 60% (previously it was 55%) of children achieve less than basic level (level 4) in reading, writing and maths at the end of primary school (Key Stage 2), unless the children make better than average progress between Key Stages 1 and 2 in which case they will be “exempt” from falling below this “floor standard”.  He also warned that the floor standard will rise further in future.  At secondary school level the floor standard will not be met unless at least 35% of pupils (previously it was 30%) achieve five GCSEs, including English and maths, at grade A*-C; unless the children at the school are making better than average progress between ages 11 and 16 (Key Stages 2-4).  Academy sponsors have until 15 April 2011 to send their written proposals to the Department, where they will be pored over by officials and discussed with the sponsors.  The Secretary of State has also written in similar vein to local authorities, requiring them also to present their written plans for improvements to schools, other than academies, by 15 April next.  This latest attempt to ratchet up pressure on education providers to raise standards in publicly funded schools may be a precursor to increased statutory intervention in schools regarded as failing.

Tim Kerr QC

MS v LB Brent [2011] UKUT 50 (AAC)

March 1st, 2011 by Holly Stout

In this case the parents wanted their autistic child (“M”) to attend a mainstream maintained primary school for c30% of the school week and to receive Applied Behavioural Analysis (“ABA”) at home for the remainder of the week. The local authority’s proposal was that M should attend a maintained special school. The First-Tier Tribunal (“FTT”), however, rejected both parties’ cases, holding that M should attend the mainstream primary school full-time, with only a short transitional period. They ordered Part 4 of M’s Statement of SEN to be amended on that basis.

The legal issue in the case concerned the inter-relationship between ss 319 and 316 of the Education Act 1996 (“EA 1996”). Section 319 governs the circumstances in which provision for a child’s SEN may be made otherwise than in a school. Such arrangements are permitted only where it would be inappropriate for the provision (or any part of the provision) to be made in a school. Section 316 governs cases where a parent expresses a preference for mainstream education. In summary, it mandates that provision for a child with SEN be made in mainstream (if that is what the parent wishes) unless that would be incompatible with the efficient education of other children. (See the recent UT decision in Bury Council v SU [2010] UKUT 406 (AAC) in which Tom Cross and I represented, respectively, the parent and the authority for a detailed consideration of the operation of s 316.)

In this case, the UT held that where ss 316 and 319 are in play, what the Tribunal needs to do is:

(1) Consider s 319: is it inappropriate for the provision or any part of it to be made in a school?

(2) If it is appropriate for the provision (or a part of it) to be made in a school, consider s 316.

(3) If parental preference and the absence of any incompatibility with the efficient education of other children mean that, applying s 316, a mainstream school must be named, but

(4) At that point s 319 comes into play again: the Tribunal must ask itself whether it would be inappropriate for any part of the provision to be made in the mainstream school and, if so, order that Part 4 of the Statement describe both the mainstream school and the part of the provision to be made otherwise than at school.

In the course of his judgment, HHJ Levenson made one further interesting point. Reliance had been placed by counsel for the local authority on the 2001 DfE (as it then was) Inclusion Guidance which suggests that in order for a dual placement to count as mainstream education over 51% of the child’s time must be spent in mainstream. HHJ Levenson took the view that there was no magic in this number, which could not affect the wording of the statute which refers to ‘parts’ of a child’s educational provision. He said that while there was no doubt a de minimis point, education at home with an element of co-location at a school is ‘education at a school, at least in part’. Further, in his view 30% of time in mainstream was well above any de minimis threshold.

Holly Stout