Private Schools and the Politicization of Treaty Obligations

Dr Kasey McCall-Smith, Senior Lecturer in Public International Law, University of Edinburgh

The 2019 Labour Party Annual Conference has received more than usual attention this year, notably its resolution to end private schools in the UK. Not for the first time this year, the fervour of politicians must be checked against the realities of the law, specifically international and human rights law. In March, Theresa May offered a unilateral statement to the EU on the UK interpretation of the then-Withdrawal Agreement Protocol on Ireland/Northern Ireland in relation to the backstop set out therein. A few days later, Geoffrey Cox MP incorrectly argued that article 62 of the Vienna Convention on the Law of Treaties (VCLT) offered an easy way out of the then-Withdrawal Agreement and the backstop. As exhausted with Brexit as every other academic at the time, I painstakingly set out why the UK government and Parliament would do well to stop relying on concepts in international treaty law to cure all that is disagreeable with the Brexit process.

The 22 September vote by the Labour Party to include in its manifesto a ‘commitment to integrate all private schools into the state sector’ equally demonstrates why politicians should proceed with caution when threatening rights protected by international agreements.

Whether for or against private education, there was very little tangible change from existing policy proposals to cut tax relief to the independent schools that educate approximately 6-7% of children in the UK. More notable are the questions raised by Labour’s approach to protected rights. This Labour party policy raises questions about the understanding of the limits of any UK government to restrict international human rights obligations to which it has long been bound and also incorporated into national law. One such example raised by this policy proposal is the right to education set out in article 2 of the first Protocol (P1) to the European Convention on Human Rights (ECHR).

In essence, the proposed measure eliminates the option to send children to fee-paying schools in the UK, an option that in some, though not all, cases enables parents to exercise ‘their own religious and philosophical convictions’ (P1 article 2). Clearly, it is a matter of debate whether such ‘convictions’ extend to private (cf. State-funded) education and whether eliminating private schools alone would constitute a breach of the right. Aside from removing decision-making capabilities from parents, the long-running debates about private versus public education or margin of appreciation debates, there are other legal questions to consider when parties politicize international legal obligations.

Can this or a future UK government nullify a single article of the first Protocol to the ECHR or multiple articles spanning the Convention? Continuing with the right to education example and assuming that the proposed policy is argued to breach that right, the following traces the relevant analysis under international law to determine if the UK can, effectively, change its mind about applying it treaty obligations.

The first step requires a determination of the status of the first Protocol to the ECHR once ratified and in force, which it has been for the UK since 1952. P1 article 5 dictates that ‘the provisions of Articles 1, 2, 3 and 4 … shall be regarded as additional Articles to the Convention and all the provisions of the Convention shall apply accordingly.’ In short, the articles are amalgamated into the ECHR and carry the same weight as those in the original Convention. This is reinforced in the UK Human Rights Act 1998 s1(1) (notably excluding P1 article 4).

But could the UK government cease to observe an article of the ECHR or one of its Protocols? Because the first Protocol is integrated into the umbrella of the ECHR the rules of the original Convention are applicable. By asserting that the state will no longer apply a treaty provision in full, the permissibility of such an assertion must be examined. Under the VCLT treaty rules and customary international law, the only way to exclude a treaty obligation in part or in full is by reservation. However, under both ECHR article 57 and VCLT article 19, reservations may only be made when signing or ratifying a treaty. Therefore, reservations are not an option for the UK decades after ratifying the Convention. The only possible caveat being denunciation (more below) and re-ratification with a new reservation in line with that which was done by Trinidad and Tobago in relation to Optional Protocol 1 to the ICCPR. Still, this procedure is not currently recognized in ECHR practice or under customary treaty law and would no doubt set a dangerous precedent.

Some have also queried the possibility of ‘denouncing’ a single article. ECHR article 58 governs denunciation of the Convention but only gives guidance on denunciation of the Convention as a whole. It is silent on denunciation of an individual article. When a treaty is silent on issues of procedure, the default rules of the VCLT are used to fill any gaps. VCLT article 44 outlines a preference against the separability of individual treaty provisions by denunciation, withdrawal or suspension unless expressly provided for by the relevant treaty. Furthermore, article 44 must be read in conjunction with Articles 56 or 60 VCLT. Article 56 VCLT addresses denunciation when a treaty is silent on the issue – but the ECHR is not silent on this.  Article 60 VCLT deals with termination or suspension of a treaty as a consequence of its breach. The breach must be by another state, thus the UK cannot invoke article 60 if it breaches the ECHR. It is safe to say that denunciation of a single article or even multiple articles is not a possibility.

The only remaining option for abrogating an individual article would be derogation. ECHR article 15 clarifies that though some fundamental rights may never be subject to derogation, ‘[i]n time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation’. While the right to education, and indeed most rights, could be subject to derogation, it is difficult – if not logically impossible – to see how such a public emergency could justify a policy of prohibiting private education per se.

What the last few months have taught us is that politicians would do well to recognise the legal implications of their policy strategies and ambitions before straining too far into rhetoric. And for those wishing to insulate the UK against global interference, this is a timely reminder that regardless of any future status in the EU, the UK will continue to have international and regional obligations.

Photo credit: Tatler