Chapter 24 Guidance on answering the exam questions

1. Because of a ‘pandemic, ‘A level’ exams are cancelled. The minister and the regulator approve an alternative system that awards results on the basis of an algorithm that automatically adjusts teachers’ assessments of individual candidates in relation to the previous, overall, performance of his or her school. Amy is a high-performing pupil at a school in a deprived area which has, on average, poor results. Her assessed grades of A*, A* and A were reduced to B,B,B and she lost her place at Oxbridge.

Advise Amy whether she has been deprived or her rights under Article 2 of Protocol One.

• This answer requires the disclosure of knowledge and understanding of some important principles of Article 2.

• The basis right in Article 2 is to equal access to the education system provided by the state.

• Article 2 does not impose any particular system of assessment or of grading on countries. Nor does it guarantee a particular result for individuals.

• It is likely that at the heart of any discussion will be the question of whether Amy, or persons in her position, have been treated equally. This is most likely to also involve Article 14.

• The matter deals with Amy’s education and so is within the ambit of Article 2 and Article 14 can be considered. The question is whether there has been a difference of treatment between Amy and other pupils and if there is an objective and reasonable justification for this difference in treatment.

• Here there is evidence that the difference in treatment is based on social position and social deprivation. These are not expressed categories of discrimination found in Article 14 but might come within the broad concept of ‘other status’.

• It would then be a matter for the courts to decide whether the minister’s explanation for the approach he took meets the ‘objective and reasonable’ test.

2. Discuss the second sentence of Article 2. How extensive is this right and does it, in your judgment, get the balance correct of, on the one hand, parental control over children and, on the other, the interests children have in an open, broad, and inquiring education?

• This answer should begin by introducing the idea of a parental right to have their beliefs taken into account when decisions about their children’s education are being made by public authorities.

• Consider the context: the fear of state indoctrination which was behind the idea of Article 2.

• It is important to note that Article 2 requires parental views to be “respected”. This does not mean followed in all respects. But it may mean (as UK courts have suggested) that parental views should be sought.

• The obligation is to give respect to serious beliefs (e.g. those based on the major world religions). There is no obligation to respect, in the context of educational provision, eccentric or peculiar views. So the state is not required to take into account unreasonable beliefs (perhaps, for example, creationism as a serious scientific idea or subordinating views of the role of women).

• There have been disputes on parental attitudes to punishment (compare Campbell v UK with Williamson); and also over issues such as sex education (Kjeldsen v Denmark) and religious education (Folgero v Norway).
• In conclusion: the requirement of “respect”, by being non-absolute, gives the courts enough scope to balance parental needs with a child’s right to a plural education. What might be considered is the width of any margin of appreciation and whether, other than in extreme instances where an international court should be unanimous, the balance between plural education and parental rights ought to be made in the domestic context rather than internationally on the basis of an alleged European standard.