School uniform and clothing: Guidance for schools and education authorities

Annex A – Legislative and policy context

This section sets out information on the legislative and policy context in which this guidance and local decisions about school uniform and clothing should be considered.

United Nations Convention on the Rights of the Child

The United Nations Convention on the Rights of the Child (UNCRC) is an international human rights treaty that sets out the civil, political, economic, social and cultural rights of children.^[29] It contains 54 Articles which set out the rights that all children are entitled to and how adults and governments must work together to make sure all children can enjoy all their rights.^[30] The Convention should be considered as a whole, however, the most relevant Articles for schools to take account of when considering uniform and clothing policies are summarised below.

Article 2 – Non-discrimination

The Convention applies to every child without discrimination, whatever their ethnicity, sex, religion, language, abilities or any other status, whatever they think or say, whatever their family background.

Article 12 – Respect for the views of the child

Every child has the right to express their views, feelings and wishes in all matters affecting them, and to have their views considered and taken seriously. This right applies at all times, for example during immigration proceedings, housing decisions or the child’s day-to-day home life.

Article 13 - Freedom of expression

Every child must be free to express their thoughts and opinions and to access all kinds of information, as long as it is within the law.

Article 28 - Right to education

Every child has the right to an education. Primary education must be free and different forms of secondary education must be available to every child. Discipline in schools must respect children’s dignity and their rights. Richer countries must help poorer countries achieve this.

Education

This guidance should be considered within the context of overarching education policies to support the learning and teaching of pupils. Information on relevant legislation is provided below.

Education (Scotland) Act 1980

The Education (Scotland) Act 1980 (“the 1980 Act”) sets out the general duties and powers of education authorities in relation to providing school education for children and young people living in their area.

Education authorities have a duty to provide school clothing to certain pupils under certain circumstances.^[31] Section 54(1) of the 1980 Act provides that where it is brought to the notice of an education authority that a pupil attending a public school does not have adequate or suitable clothing to take full advantage of the education provided, the education authority must make such provision to ensure the pupil is “sufficiently and suitably clad” during the period the pupil is attending school (including days when the school does not meet).^[32] The education authority can seek to recover costs related to this provision from the pupil’s parent if it does not place the parent in financial hardship.^[33]

Education authorities may provide clothing to pupils who are boarders, or pupils who are attending nursery schools or classes under their management^[34]; special clothing (for example, laboratory wear) or PE clothing to pupils in attendance at public schools or other educational establishments under their management^[35]; and make arrangements for clothing for pupils who are attending independent schools where appropriate^[36].

A complaint can be made under section 70 of the 1980 Act where any interested party believes that a responsible body has failed to discharge a statutory educational duty. If, after investigation, the Scottish Ministers are satisfied that the responsible body has failed to discharge the duty, they may make an order under section 70 of the 1980 Act declaring the responsible body to be in default and requiring them to discharge the said duty. Further information is available at guidance on making a section 70 complaint.

Standards in Scotland’s Schools etc. Act 2000

The Standards in Scotland’s Schools etc. Act 2000 sets out children and young peoples’ right to school education^[37] and the related duties placed on Scottish Ministers and education authorities. The Act requires education authorities to have due regard to the views of children and young people in decisions that significantly affect them^[38] and consider the views of other persons such as parents and carers or other appropriate individuals and organisations.

Scottish Schools (Parental Involvement) Act 2006

The Scottish Schools (Parental Involvement) Act 2006 aims to help schools, education authorities and others to engage with parents meaningfully in the education of their children and in the wider school community. It requires Scottish Ministers and education authorities to promote the involvement of parents in their children's school education at public schools.^[39] The Act aims to support parents to be involved with their child's education and learning; be welcomed as active participants in the life of the school; and encouraged to express their views on school education generally and work in partnership with the school. It also places a duty on education authorities to promote the establishment of, and support the operation of Parent Councils.^[40]

Education (School and Placing Information) (Scotland) Regulations 2012

The Education (School and Placing Information) (Scotland) Regulations 2012 requires education authorities to provide certain information to parents and carers of children who are attending or considering attending a school. This includes the provision of supplementary information on the general policy or practice in relation to pupils wearing school uniform^[41]. Schools must ensure that where this information is provided, it is kept up-to-date and provided to parents and carers in a language other than English where requested.

Education (Additional Support for Learning) (Scotland) Act 2004

The Education (Additional Support for Learning) (Scotland) Act 2004 sets out the legal duties of education authorities and the rights of parents, children and young people to additional support for learning. The Act aims to ensure that all children and young people are provided with the necessary support to help them work towards achieving their fullest potential. Section (1A) of the 2004 Act recognises children and young people who are looked after^[42] (care experienced) as having an additional support need, unless the education authority forms the view that they do not require additional support in order to benefit from school education^[43]. The Supporting Learners’ Code of Practice provides guidance for education authorities on carrying out their duties under the 2004 Act. Guidance on the presumption to provide education in a mainstream setting is also relevant in supporting an inclusive approach which identifies and addresses barriers to learning for all children and young people.

Equality Act 2010

The Equality Act 2010 (“the 2010 Act”) provides the legal framework for protection from discrimination, victimisation and harassment on the grounds of protected characteristics.^[44] The Act’s requirements of schools in relation to provision of education and access to benefits, facilities or services is set out in Chapter 1 of Part 6 of the Act. Under the Act, it is unlawful for a school to discriminate against an applicant or pupil in relation to:

• admissions
• the provision of education
• access to any benefit, facility or service
• exclusions
• any other detriment

It is also unlawful for a school to harass or victimise an applicant or pupil.

Section 149 of the 2010 Act sets out the legal duty on public authorities to have due regard to the need to do the following in the exercise of their functions^[45].

• Eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Act;
• Advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and
• Foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

All education authority and grant-aided schools in Scotland must assess the equality impact of proposed and revised policies and practices. The EHRC has published Technical guidance on the Public Sector Equality Duty: Scotland to support public bodies to carry out their functions in relation to the Public Sector Equality Duty of the 2010 Act.

Keeping the Promise to Care Experienced Children and Young People

Care experienced children and young people are sometimes referred to as ‘looked after.’ The Children (Scotland) Act 1995 sets out many of the duties, powers and responsibilities that local authorities hold in respect of their looked after children. The Children and Young People (Scotland) Act 2014 sets out the duties and responsibilities of corporate parents to work together to meet the needs of looked after children and young people. Further information on the role of corporate parents is provided within the statutory guidance on Part 9 (Corporate Parenting) of the Children and Young People (Scotland) Act 2014.

Following the Independent Care Review, a commitment has been made to Keep the Promise for care experienced children, young people and their families. It contributes to our ambition for every child in Scotland to grow up loved, safe and respected so that they realise their full potential.

United National Convention on the Rights of Persons with Disabilities

The United National Convention on the Rights of Persons with Disabilities (UNCRPD) promotes, protects and ensures the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and promotes respect for their inherent dignity. School should consider Article 7 in the design and implementation of their uniform and clothing policies.

Article 7 – Children with Disabilities

1. States Parties shall take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children.

2. In all actions concerning children with disabilities, the best interests of the child shall be a primary consideration.

3. States Parties shall ensure that children with disabilities have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children, and to be provided with disability and age-appropriate assistance to realise that right.

Policies to address poverty

This guidance should be considered within the context of overarching policies to tackle poverty and address disadvantage. For pupils, this includes addressing the poverty related attainment gap and universal and targeted measures to address the cost of the school day, such as free school meals and the school clothing grant.

Policies to support the environment

This guidance should be considered within the context of policies to support sustainability and action to tackle the climate emergency. This includes:

• Wellbeing economy
• Net zero nation
• Action on climate change
• Circular Economy