What the Education (Scotland) Bill means for children’s rights

Tuesday 7 April

The Education (Scotland) Bill was introduced to Parliament on 23 March 2015. It aims to change a number of things about the educational experience for children and young people in Scotland.

The Bill’s aims

Inequality of outcome

The Bill puts duties on education authorities and Scottish ministers to:

  • reduce inequalities of outcome between pupils that come about as a result of socioeconomic disadvantage
  • report on the progress they’re making towards achieving this.

Rights under previous legislation

At the moment, an education authority has a duty to take account of the views of a child:

  • when looking to establish if that child has additional support needs.
  • when looking at how that child’s support needs should be met.

If the authority is satisfied a child lacks the capacity to express a view, however, they do not have to do this.

Parents and young people – defined as 16-18 year olds who are still in school – have certain rights under the Education (Additional Support for Learning) (Scotland) Act 2004. The Bill extends these rights to children aged 12 and over with the capacity to exercise them.

Gaelic education

The Bill places duties on local authorities to:

  • assess the need for Gaelic medium education following a request from a parent
  • actively promote and support Gaelic medium education and Gaelic learner education.

It also places a duty on Bòrd na Gàidhlig to prepare guidance around how Gaelic medium education should work in Scotland.

Free school meals

The Bill clarifies how free school meals would be provided in practice. It also restates the law around free school meals.

Teaching staff

The Bill aims to make sure pupils have quality teachers and experienced Chief Education Officers through:

  • making provisions for the appointment of Chief Education Officers
  • making provisions that ensure teachers in independent and grant-aided schools are registered with the General Teaching Council for Scotland.

Early learning and childcare

The Bill extends the duty for early learning and childcare provision by:

The Commissioner’s views

The Bill also contains provisions around additional support for learning. These are relevant to the rights of the child, and so are of interest to the Commissioner.

In 2008, the United Nations Committee on the Rights of the Child made several recommendations to the UK. One of these was that children who could express their views had a right to appeal against decisions taken around additional support by an education authority. In Scotland, appeals like this take place at additional support needs tribunals.

At the time, the Scottish Government felt that the rights of the child were served under the Education (Additional Support for Learning) (Scotland) Act 2004. However, this Act does not allow children under 16 the right to appeal against a decision taken by an education authority.

Following changes to the Equality Act 2010, a child over 12 with disabilities can make a claim of disability discrimination against an education establishment to the Additional Support Needs Tribunals for Scotland (ASNTS). This means that children and young people between 12 and 15 can currently make a claim of disability discrimination against an education establishment, but not appeal a decision taken by an education authority under the 2004 Act.

The Bill would do away with this inequity by extending most of the rights granted in the 2004 Act to children aged 12 and over with capacity who may have additional support needs.

Establishing capacity

The relevant education authority – or, where there’s an appeal, the ASNTS – will determine whether a child has capacity.

In doing so, they will take into account the child’s:

  • understanding of the request
  • maturity to manage any outcome of exercising their rights.

They will also have to think about whether a child’s use of their right of appeal is in their best interests.

The Commissioner intends to study proposals around capacity and best interests very carefully, to make sure they are compliant with the UN Convention on the Rights of the Child.