Formal Education in UK Law

The concept of "due regard" requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker.

I am far from suggesting either that the concept of education or of physical education even for the young is capable of indefinite extension. On the contrary, I do not think that the courts have as yet explored the extent to which elements of organisation, instruction, or the disciplined inculcation of information instruction or skill may limit the whole concept of education. I believe that in some ways it will prove more extensive, in others more restrictive than has been thought hitherto.

The Strasbourg jurisprudence, summarised above in paras 11-13, makes clear how article 2 should be interpreted. There is no Convention guarantee of education at or by a particular institution. The test, as always under the Convention, is a highly pragmatic one, to be applied to the specific facts of the case: have the authorities of the state acted so as to deny to a pupil effective access to such educational facilities as the state provides for such pupils?

It would appear, therefore, than there is a discretion in the local education authority which they must exercise in accordance with the terms of the statute: and there is also a duty laid upon them by section 40 (2) of the Act of 1944 to take stops prescribed in that section in the circumstances therein laid down if in their view, there is a breach of any order siade by the?

In Steel v. Union of Post Office Workers, the point under consideration involved the corresponding provisions, in the same terms, of the Sex Discrimination Act 1975. It seems to me that the Employment Appeal Tribunal in that case put something of a gloss on the word "justifiable" by suggesting that it was equivalent, or close to having the same meaning as "necessary".

The correct approach, which is the one, it seems to me, the inspector follows, is simply that it is for the applicant to establish very special circumstances that override Green Belt considerations. A need to be on or near a particular site may be one of such very special circumstance.

In my judgment "justifiable" requires an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition.