PARTLY DISSENTING OPINION OF JUDGE SIR VINCENT EVANS

1. I agree that no violation of Article 3 (art. 3) of the Convention is established.

2. In my opinion, however, the majority of the Court have given too wide an interpretation to Article 2 of Protocol No. 1 (P1-2) and I regret that I cannot share their view that there has been a breach of that Article (P1-2). Even if their interpretation were correct, it would be my opinion that there has been no violation in view of the reservation to the second sentence of Article 2 (P1-2) made by the United Kingdom on signature of the Protocol (P1).

3. In the previous two cases in which the application of Article 2 (P1-2) has been in issue, the Court has found it indispensable to have recourse to the negotiating history of the Article as an aid to the interpretation of what is undeniably a very difficult text (judgment of 23 July 1968 on the merits of the "Belgian Linguistic" case, Series A no. 6, pp. 30-32, §§ 3-6; judgment of 7 December 1976 in the case of Kjeldsen, Busk Madsen and Pedersen, Series A no. 23, pp. 24-28, §§ 50-54). In the latter case the Court observed that the "travaux préparatoires" are "without doubt of particular consequence in the case of a clause that gave rise to such lengthy and impassioned discussions". In both the cases cited, the Court, after recourse to the travaux, adopted, in respects relevant to the present case, a restrictive view of the aim of the second sentence of Article 2 (P1-2). In the Kjeldsen, Busk Madsen and Pedersen case (in which parents sought unsuccessfully to have their children exempted from sex education in State schools on the ground that it was contrary to their beliefs as Christian parents) this was that the State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents ' religious and philosophical convictions. "That", said the Court, "is the limit that must not be exceeded" and consequently it was held that legislation which "in no way amount[ed] to an attempt at indoctrination aimed at advocating a specific kind of sexual behaviour" did not offend the applicants ' religious and philosophical convictions to the extent forbidden by the second sentence of Article 2 (P1-2) (loc. cit., pp. 26-28, §§ 53-54). In the "Belgian Linguistic" case it was held that this provision did not require of States that they should, in the sphere of education and teaching, respect parents ' linguistic preferences, but only their religious and philosophical convictions and that to interpret the terms "religious" and "philosophical" as covering linguistic preferences would amount to a distortion of their ordinary and usual meaning and read into the Convention something that was not there (loc. cit., p. 32, § 6).

4. In the course of the preparatory work on Article 2 (P1-2) in the Consultative Assembly of the Council of Europe the expression "philosophical convictions" was criticised as being so vague that it should not be inserted in a legal instrument purporting to protect human rights. But this very criticism evoked from Mr. Teitgen, the Rapporteur of the Consultative Assembly ' s Committee on Legal and Administrative Questions to which a draft of the Protocol had been referred for advice, a very emphatic explanation in the light of which the text of Article 2 (P1-2) was finally settled and the Protocol adopted and opened for signature. Mr. Teitgen made it clear that the intention was to protect the rights of parents against the use of educational institutions by the State for the ideological indoctrination of children (Official Report of the Thirty-Fifth Sitting of the Consultative Assembly, 8 December 1951, Collected edition V, pp. 1229-1230). This was precisely the interpretation put upon the text by the Court in the Kjeldsen, Busk Madsen and Pedersen case (see paragraph 3 above). In the light of this background, my understanding of the second sentence of Article 2 (P1-2) is that it is concerned with the content of information and knowledge imparted to the child through education and teaching and the manner of imparting such information and knowledge and that the views of parents on such matters as the use of corporal punishment are as much outside the intended scope of the provision as are their linguistic preferences. If there had been any intention that it should apply to disciplinary measures and to the use of corporal punishment in particular, it is inconceivable that the implications of this would not have been raised in the course of the lengthy debates that preceded its adoption.

5. An interpretation of the second sentence of Article 2 (P1-2) extending its application beyond its intended scope could give rise to very considerable difficulties in practice. The maintaining of discipline is certainly an integral part of the educational system, as the majority of the Court have observed. So are many other matters relating to the provision of educational facilities and the internal administration of schools, as distinct from the content of the instruction given. If the sentence in question is interpreted in a sense wide enough to cover the views of parents opposed to corporal punishment, I do not see how it can reasonably be applied so as to exclude from its scope all manner of other strongly held views regarding the way in which schools are organised and administered. There may be very strongly held beliefs on such matters as the segregation of sexes, the streaming of pupils according to ability or the existence of independent schools, which could be claimed to have a religious or philosophical basis. The view in favour of the abolition of independent schools, for example, could be regarded as a philosophical conviction on the part of those who believe in the ideology of egalitarianism. It would surely create problems which were never intended by the authors of the Protocol if different and inevitably conflicting opinions of this order had to be accommodated within the State ' s educational system. There is an important difference between the kind of convictions which it is my understanding that Article 2 (P1-2) was aimed to protect and views of the kind just mentioned. Different religious and philosophical convictions relating to the content of instruction can be duly respected in the teaching process by presenting information in an objective way. But in regard to such matters as the segregation of the sexes, streaming and the abolition of independent schools, there would be insuperable practical difficulties in respecting equally the views of those who are opposed to and those who favour one system or the other. As Mr. Renton quite rightly foresaw in his comments in the Consultative Assembly on the draft Protocol, "We are getting into very deep water when we start talking along those lines" (Official Report of the Thirty-Fourth Sitting of the Consultative Assembly, 7 December 1951, Collected edition V, p. 1215).

6. However, even if the wider interpretation of the second sentence of Article 2 (P1-2) adopted by the Court in the present case were correct, it would be my opinion that there has been no violation of this provision in view of the reservation made by the United Kingdom on signature of the Protocol. The reservation reads as follows:

"In view of certain provisions of the Education Acts in force in the United Kingdom , the principle affirmed in the second sentence of Article 2 (P1-2) is accepted by the United Kingdom only so far as it is compatible with the provision of efficient instruction and training, and the avoidance of unreasonable public expenditure."

In respect of the United Kingdom , Article 2 (P1-2) must be interpreted and applied as modified by the reservation. This means that the obligation thereunder to respect the right of parents has been assumed by the United Kingdom only so far as this can be done compatibly with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure.

7. In the light of the interpretation put by them on the second sentence of Article 2 (P1-2), the majority of the Court has held that the Government ' s policy to move gradually towards the abolition of corporal punishment is not in itself sufficient to comply with their duty to respect parental convictions. It is implicit in the Court ' s judgment that some more positive means of respecting the applicants ' convictions is called for by the sentence in question. If so, it is my view that the State is entitled to invoke its reservation unless it is shown that some other practical solution is available which is compatible with both the provision of efficient instruction and training and the avoidance of unreasonable public expenditure. In the course of the proceedings, only three possible solutions have been canvassed which, apart from the reservation, would sufficiently comply with the State ' s obligation as interpreted by the Court. These are:

1. that separate schools should be provided within the State educational system for children of parents who object to corporal punishment;

2. that separate classes within the same school should be provided for such children;

3. that a system should be established in which children in the same class should be treated differently according to the views and wishes of their parents.

The Court accepts that the first solution would be incompatible with the avoidance of unreasonable public expenditure, especially in the present economic situation. The second solution too would surely involve unreasonable expense and hardly be compatible with the provision of efficient instruction and training. Moreover, in this connexion the wider implications of the Court ' s interpretation discussed in paragraph 5 above must be borne in mind. There remains the third possible solution referred to above. The Court was informed at the oral hearing that at least some members of the Commission held the view that this would, for many reasons, not be a practical solution. I agree with this view. It seems to me essential that any system of discipline in a school should be seen to be fair and capable of being fairly administered, otherwise a sense of injustice will be generated with harmful consequences both for the upbringing of the individual and for harmonious relations within the group. It will also place the teacher in an impractical position to administer discipline fairly if children in the same class have to be treated differently according to the views of their parents. It has been pointed out that, where corporal punishment is used, exceptions are in any event made in respect of girls and children suffering from a disability. I believe that children will readily understand the reasons for this, but I think they are likely to regard it as arbitrary and unjust if Johnny is exempted simply because his Mum or Dad says so.

8. For these reasons I am not satisfied that there is available a practical system for exempting individual pupils from corporal punishment at the wish of their parents which would be compatible both with the provision of efficient instruction and training and with the avoidance of unreasonable public expenditure. In these circumstances the reservation made by the United Kingdom to the second sentence of Article 2 (P1-2) applies.

9. I conclude therefore that there has been no breach of the second sentence of Article 2 (P1-2).

10. There remains the question whether there has been a breach of the first sentence of Article 2 (P1-2) in the case of Jeffrey Cosans on account of his suspension from school. In its above-mentioned judgment of 23 July 1968 in the "Belgian Linguistic" case (pp. 31-32, §§ 4-5), the Court interpreted the first sentence as guaranteeing a right of access to educational institutions existing at a given time, but recognised that the right to education so guaranteed by its very nature calls for regulation by the State provided that "such regulation must never injure the substance of the right to education nor conflict with other rights enshrined in the Convention". It is implicit in this that the right of access may be made subject to reasonable requirements, including acceptance of the rules, regulations and disciplinary requirements of the school. Since in my view, contrary to that of the majority of the Court, the disciplinary requirements which Jeffrey Cosans and his parents refused to accept did not violate the second sentence of Article 2 (P1-2), I do not find that there has been a breach of the first sentence of that Article (P1-2).

[*]  Note by the Registry: Preparatory work on Article 2 of the Protocol to the Convention (P1-2) - information document prepared by the Registry, available on request.