Briefing Paper

Home to School Transport Policy and Irish Medium Pupils

Written summary of issues discussed between

the Department of Education and the

Northern Ireland Human Rights Commission

Background

Following representations to the Northern Ireland Human Rights Commission (‘the Commission’) on difficulties encountered in relation to South Down-based pupils obtaining viable transport assistance to attend Coláiste Feirste, the Commission wrote to the Department of Education (‘DE’) in early 2008 seeking clarification of the policy in place, its legislative basis and practical application. Following a response on this matter the Commission wrote again in April raising a number of general issues in relation to the policy, and enquiring as to whether it was likely to be reviewed. These issues were discussed in a meeting between the DE Permanent Secretary, the NIHRC Chief Commissioner and their respective officials in October 2008, with further DE information subsequently provided by letter.

The Permanent Secretary told the Commission that the policy was to be reviewed, and this would be done once the broader reforms to the (English-medium) post primary sector take place. These reforms (Transfer 2010) have now been initiated. In March 2009 the Commission met the Minister for Education on a range of issues, including discussion on the present matter, and the Commission agreed to provide this written summary of the issues discussed to date.

Legislative basis and details of policy

DE policy is set out in Circular Number 1996/41 “School Transport” issued on 31 October 1996 (referred to below as ‘the Circular’).

As regards the legislative basis article 23 of the Education (NI) Order 1997 (‘the 1997 Order), which substituted article 52 of the Education and Libraries (NI) Order 1986 (‘the 1986 Order’), is the legislation which requires Boards to arrange provision of transport or otherwise to facilitate attendance of pupils at grant-aided schools.

The 1986 Order only is referenced in the policy which predates the 1997 Order. Notably the policy predates the Belfast (Good Friday) Agreement and the Education (Northern Ireland) Order 1998, article 89 of which contains the duty to encourage and facilitate the development of Irish-medium education (IME).

There is reference in the Circular to the need to avoid unreasonable public expenditure. This is a general reference to small numbers rather than singling out particular sectors. DE correspondence to the Commission explicitly states that Boards should make decisions in accordance with article 44 of the 1986 Order. This article gives domestic expression to the UK’s reservation to Article 2, Protocol 1 of the European Convention of Human Rights (ECHR), given further effect in Schedule 3, Part II of the Human Rights Act 1998, in relation to the principle of educating pupils in accordance with parents wishes “only so far as it is compatible with the provision of efficient instruction and training, and the avoidance of unreasonable public expenditure”.

In this context the Commission would recall that the ECHR reservation was entered in 1952, and would further recall the long-established principle that economic, social and cultural rights, such as the right to education, are not necessarily justiciable in the courts but are delivered through public policy and subject to ‘progressive realisation’. This means that there is an expectation on the state to take positive measures that are aimed at and have the effect of eliminating, over time, any barriers to the fullest possible enjoyment of the right by everyone within its territory, without discrimination of any kind.

The “avoidance of unreasonable public expenditure” provides the basis of decisions taken under the policy as to who receives provision and what form it takes. Challenges to the policy will not necessarily be based on whether assistance is provided, but rather the means of assistance, i.e. the form it takes (such as dedicated bus, bus pass, parental allowance).

It is the Circular rather than the legislation that stipulates the eligibility criteria for provision of support. Effectively this is that assistance will be provided to any pupil who does not have, or is unable to obtain a place in, a ‘suitable school’ within ‘statutory walking distance’ of their home.

Walking distance is defined in the policy with a stipulation taken from a separate area of the 1986 Order. ‘Suitable school’ is defined by the Circular as a school in one of five grant-aided categories. DE also adds a number of ‘legacy’ exemptions to the criteria in paragraph 3.5 of the Circular, e.g. note iii referencing the Dickson Plan with an exemption for parents continuing “to have the right to express a preference at 11+ for a grammar school outside the area”. DE has indicated this was to allow parents to ‘ignore their proximity to Dickson plan schools’ for transport support if preferring grammar schools.

The Circular goes on to outline the means of assistance, namely the most efficient and economical method subject to the stipulations in paragraphs 6.2 and 6.3 in relation to individual factors and safety.

DE has also outlined that where no viable bus service is provided and payments are made in lieu of transport IME sector parents may receive up to twice the ‘extant sessional ticket rate’. This is referenced as a 2002 voluntary agreement that is not referenced in the policy. Given this we are not clear how it is officially communicated.

Reasonable/unreasonable expenditure

DE indicated that the present policy is likely to be among the most, if not the most, expensive in the UK. The policy is neither means-tested nor restricted (other than by walking distance) to a pupil attending the nearest school in their chosen category (as for example is reportedly the case in Wales).

This effectively means that if a pupil on the Ards Peninsula (who did not have or was not accepted in a school in their chosen category within walking distance) wished to attend a school in Fermanagh they would qualify for transport assistance under the policy. Whilst this scenario is far-fetched DE did outline that there was a considerable number of long journeys mostly to the post-primary grammar school sector which is where the bulk of the expenditure lay. To this end DE agreed present policy did largely benefit the ‘better off’.

Equality/inequality of outcome

The means of assistance is applied in the same way to all sectors. There has been an assumption that such criteria will ensure provision in a non-discriminatory manner; indeed DE states in correspondence “other pupils in similar circumstances who attend schools in other sectors receive the same provision”. The Commission expressed concern at the implied conceptualisation of non-discrimination as an approach solely based on the principle that “it’s the same for everyone”. Applying the same criteria to everyone, when there are clear differences in constituent groups, will not necessarily deliver equality of outcome. There are clear differences in the number of, hence accessibility of, schools as between Irish-medium and the ‘Catholic maintained, controlled or voluntary’ sectors; there are in fact only 32 IME schools or units and upwards of 1,100 primary and second-level schools with no Irish-medium provision. In the IME post-primary sector there is only provision in three locations. There are also differences between the IME provision and the integrated sector, so that applying precisely the same approach to both may not be appropriate.

In relation to outcome it could be argued that, regardless of intention, the present DE policy has delivered a situation whereby viable transport assistance to distant grammar schools is considered reasonable, yet viable transport assistance to the nearest IME school or unit is considered unreasonable. There has been some acknowledgement of this by the adoption of the provision for up to twice the ‘extant sessional ticket rate’ being paid in lieu of transport to IME sector parents. However it is unclear whether the formula this is based on proportionally reflects longer distances.

DE has stated to the Commission it has advice that the policy does not constitute unlawful discrimination. This advice may be based on anti-discrimination legislation examining factors such as gender, racial group, and religion. However a human rights analysis, reflecting the full range of international instruments by which the UK has agreed to be bound, would encompass additional factors including economic status and language. In relation to equality, the analysis of a policy should not be limited to whether the policy is intentionally discriminatory or otherwise actually unlawful, but should involve examination of substantive equality of outcome based on different, but objectively assessed, need.

Conformity with international instruments

The Commission in its original enquiry to the Department in relation to the policy had annexed relevant international standards, to which the UK is a party, that have a bearing on the policy framework. This non-exhaustive list included the following instruments:

-European Charter for Regional and Minority Languages

-International Covenant on Economic, Social and Cultural Rights

-Convention on the Rights of the Child

-European Convention on Human Rights

-Framework Convention on National Minorities

The Commission had expressed concerns in the context of the DE response around how seriously the Department appeared to be taking the issue of compliance with binding international instruments. The DE response had indicated that international conventions to which the UK was party did not ‘supersede’ education legislation nor create enforceable rights. Of course the European Convention on Human Rights differs from other instruments, having been given further effect in domestic legislation (Human Rights Act 1998) which means that most of its provisions are directly enforceable through the courts. However, DE, as the organ through which the State delivers specific services in respect of which it has accepted human rights obligations, also has to ensure its policies and practices are in conformity with the standards the UK has signed up to in other binding human rights instruments. Such instruments are not only binding in international law, but can be and have been referenced within the Courts in Northern Ireland as an interpretive aid in assessing how domestic legislation is operated. In addition, the UK (including its devolved departments) is periodically assessed by the supervisory bodies for UN and European human rights treaties to ensure that its legislation, policy and practice are in compliance with its international commitments.

As and when new international instruments are ratified by the UK, in human rights or other fields, legislation and policies have to be reviewed to ensure they are in line with the commitments therein. Thus the question of whether international standards “supersede” educational legislation and policy should not arise. It may be that occasionally a Department finds that it has overlooked a particular policy that conflicts with international standards to which the UK is a party, and the proper course is for deficiencies and conflicts to be redressed once such matters have come to their attention.

“Prescribed by law”

A further stipulation of a human rights framework is legal clarity, namely that there is clear, effective and publicly accessible legal framework for accessing rights and associated provision to which an individual may be entitled. In this sense decisions on school transport provision, and applications for support, should be made according to fair criteria and procedures, published in a timely, clear and transparent fashion.

The Commission in its policy assessment has not examined individual cases nor verified the information from DE or other sources. However throughout its engagement with DE over this matter there have been different views on the validity and reliability of information along with significant delays in responding to requests for information, due to the complexity of the subject matter in hand. This may be particularly the case in relation to inter-Board provision. Perceived inequalities of provision even within the present system have not been clearly explained, nor is it clear if the present system can assess a range of options.

Among the areas that have not been clear is whether the provision of the limited number of dedicated buses is periodically assessed. DE did indicate that significant parts of present provision are likely to be based on ‘legacy’ decisions.

A further area particularly relevant to Irish-medium education that has not been factored in to date is assessment of latent need, so that estimation of potential demand factors in accessibility as a determinant of demand. Clearly the absence of viable transport may deter attendance if the nearest IME school is perceived to be inaccessible. Indeed a dropout rate from primary to post primary IME could be indicative of this. This itself could result in lower numbers actually applying for a place and for transport assistance. DE has indicated that it will investigate the viability of a system that assesses latent demand.

There are also issues regarding the clarity of criteria or threshold for decisions on circumstances such as a avoiding an ‘unduly early start or late ending’ or ‘exceptional circumstances’ set out in Circular paragraphs 6.2 and 9. In the context the latter there are also further examples of exceptional circumstances, for example, whereby a parent or child fears the risk of sectarian attack on a particular route.

Review

We hope this paper has adequately captured the themes that DE and the Commission have discussed in relation to this matter. If requested the Commission would be happy to engage with the review of transport policy that DE proposes. The Commission is also conscious that there is the broader context of reform to IME set out in DE’s recent review. Whilst expansion of IME in this context would presumably lead to a reduced need for transport, it would not of itself negate the need to review transport policy to ensure it is fit for purpose for each sector.

April 2009

Northern Ireland Human Rights Commission www.nihrc.org

Correspondence from Chief Commissioner to Permanent Secretary 23 January 2008 and 14 April 2008; and responses to this dated 3 March 2008 and 6 November 2008.

Boards are to make arrangements to provide such free transport as they consider necessary (approved by DE or as directed by DE); or Boards can, in accordance with arrangements approved by DE, pay part or the whole of reasonable travel expenses for pupils not receiving free transport.

Although it predates the Circular, there is also no reference to the Education Reform (Northern Ireland) Order 1989, art.64 of which contains a similar duty in relation to integrated education.

The distance stipulation (2 miles (primary) and 3 miles (post primary)) comes from Schedule 13 of the amended 1986 Order (Part II paragraph 3(2) for head (b)) in reference to the duty of parents to secure regular attendance at school. This indicates that the parent cannot be held liable for failure of regular attendance if the child’s school is not within walking distance of home and the Board is required to provide transport but has not made suitable arrangements. There is an exemption from walking distance in exceptional circumstances (p9).

Namely for primary and secondary schools, “Catholic maintained controlled or other voluntary”, “Integrated” or “Irish medium”; for grammar schools, “denominational” or “non-denominational”.

The example given by DE in correspondence is a daily rate of £2.42 for parents with children travelling from Downpatrick to Belfast.

For example, the prohibition of discrimination on the basis of language is contained in a number of human rights instruments including, in relation to the enjoyment of other Convention rights, article 14 of the European Convention on Human Rights. The human rights section Belfast (Good Friday) Agreement also singles out the right to equality of opportunity regardless of ‘class’- a proxy for economic status.