HM Chief Inspector of Education, Children's Services and Skills v The Interim Executive Board of Al-Hijrah School The Secretary of State for Education (First Intervener) The Equality and Human Rights Commission (Second Intervener) Southall Black Sisters and Inspire (Third Interveners)
| Jurisdiction | England & Wales |
| Judge | Sir Terence Etherton, Mr,Lord Justice Beatson,Lady Justice Gloster |
| Judgment Date | 13 October 2017 |
| Neutral Citation | [2017] EWCA Civ 1426 |
| Docket Number | Case No: C1/2016/4313 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 October 2017 |
[2017] EWCA Civ 1426
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE JAY
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Terence Etherton, Mr
Lady Justice Gloster
and
Lord Justice Beatson
Case No: C1/2016/4313
and
and
and
Helen Mountfield QC and Sarah Hannett (instructed by Ofsted Legal Services) for the Appellant
Peter Oldham QC and Joseph Barrett (instructed by Birmingham City Council Legal Services) for the Respondent
Martin Chamberlain QC and Tom Cross (instructed by the Government Legal Department) for the First Intervener
Daniel Squires QC (instructed by the Equality and Human Rights Commission) for the Second Intervener
Karon Monaghan QC and Aileen McColgan (instructed by the Public Law Project) for the Third Interveners
Hearing dates: 11 th & 12 th July 2017
Judgment Approved
Sir Terence Etherton, Mr and
The issue of principle on this appeal is whether it is direct discrimination, contrary to sections 13 and 85 of the Equality Act 2010 (" EA 2010"), for a mixed-sex school to have a complete segregation of male and female pupils over a certain age for all lessons, breaks, school clubs and trips.
The appellant is Her Majesty's Chief Inspector of Education, Children's Services and Skills ("HMCI"), and, as we explain below, the most senior officer of Ofsted. She appeals from the order of Jay J dated 8 November 2016, by which, among other things, he granted an application by the respondent, the Interim Executive Board ("the Board") of Al-Hijrah School ("the School"), for the judicial review of the report of HMCI following an inspection of the school on 14 and 15 June 2016. That report not only criticised the Board for the adverse educational consequences of its policy of segregating pupils by gender but, in its final form, said that such segregation was contrary to EA 2010.
The Judge granted the application because he concluded that HMCI's approach to EA 2010 was wrong in law since segregation of male and female pupils without more is not discrimination. The material part of the order required HMCI to excise the parts of the report that refer to a breach of EA 2010 by reason of sex segregation and to give the Board an opportunity to comment prior to publication.
EA 2010
Some relevant provisions of EA 2010 are set out or described in Appendix 1 to this judgment.
Background
Reference should be made to the Judge's judgment for a full statement of the background facts. The following is a summary sufficient to understand the context of this appeal. It is considerably shorter than the Judge's fuller version, not least because he had to address an allegation of bias on the part of HMCI, which was no longer an issue on this appeal by the time of the oral hearing.
The School is a voluntary aided faith school for boys and girls aged between 4 and 16. It has an Islamic ethos and, specifically for religious reasons, believes that the separation of boys and girls at a certain point in their development (from Year 5, i.e. for children who have passed their 9th birthdays by 1 September in the relevant academic year) is obligatory. Segregation of boys and girls in the age range of 9–16 is one of the defining characteristics of the School. It is a policy which is made public by the School and is apparent both to parents who might wish to send their children to it and to regulators who might take a different view. Ofsted did not comment adversely on this segregation in its reports on the School before June 2016.
It is common ground that the School is not the only Islamic school which operates such a policy and that a number of Jewish schools with a particular Orthodox ethos and some Christian faith schools have similar practices.
An Ofsted inspection of the School in December 2013 concluded that the School was inadequate and in 2014 the School was placed in special measures (as to which see Appendix 2) and the Board was appointed. The Board is the "responsible body" for the purposes of the relevant anti-discrimination provisions of EA 2010. For all practical purposes relevant to this judgment the Board and the School are interchangeable. Accordingly, except where strictly necessary to distinguish between them, in the rest of this judgment we shall refer to both of them as "the School".
The office of HMCI was established pursuant to section 113 of the Education and Inspections Act 2006 ("EIA 2006"). HMCI is the most senior officer of Ofsted, which is a non-ministerial Government department established by EIA 2006 s.112. Anything authorised or required by or under any enactment to be done by HMCI may be done by Ofsted, or by any additional inspector who is authorised generally or specifically for the purpose by HMCI. Ofsted's functions are set out in EIA 2006 ss.116 and 117. HMCI's functions are set out in EIA 2006 ss.118 and 119. Except where strictly necessary to distinguish between them, in the rest of this judgment we shall refer to both of them as "Ofsted".
Some statutory and other material about Ofsted which is relevant to this appeal is set out in Appendix 2 to this judgment. It suffices here to refer to the two types of inspection contemplated by Part I of the Education Act 2005 ("EdA 2005"), which deals with inspections of schools. The first is an inspection under section 5 ("section 5 inspection"). This is required of every school at prescribed intervals. The second is an inspection under section 8 ("section 8 inspection"). It is an inspection Ofsted is required to undertake if requested to do so by the Secretary of State or which Ofsted decides to undertake in circumstances where it is not required to do so.
Monitoring inspections after the December 2013 inspection, which concluded that the School was inadequate, disclosed a measure of improvement but the designation of special measures remained in place. The School was subjected to a further section 5 inspection in early December 2015. Improvement was judged to be sufficient to enable special measures to be removed but the School's overall effectiveness was assessed to require improvement. The report, published on 5th January 2016, noted that girls and boys were segregated for lessons, breaks and lunchtimes from Year 5, but again no adverse comment was made.
On 8 June 2016 HMCI and Ms Lorna Fitzjohn, one of Ofsted's regional directors, visited the School. In the light of Ofsted's concerns about segregation, HMCI asked Ms Fitzjohn to arrange an inspection of the School as soon as possible. She arranged a section 8 inspection, with James McNeillie as the lead inspector.
The section 8 inspection started on 14 June with Mr McNeillie leading a team of six other inspectors.
On 14 June two female pupils in Year 10, apparently chosen at random by inspectors to express an opinion on the question, were critical of the policy of segregation. One expressed her views as follows:
"thinks [segregation] is 'dumb' because when girls go to college they will mix with boys, and at the moment she doesn't know how to have any relationship/friendship with boys. Finds that school isn't helping her get ready. Says some benefits as boys don't always behave well."
A number of Year 10 boys expressed a similar view. One inspector noted, in respect of Year 7 pupils, that:
"students clearly felt very uncomfortable about being with opposite sex … found it difficult to answer questions".
Owing to concerns about equality of opportunity at the School and how well leaders were preparing pupils for life in modern Britain, particularly in relation to their social development, at the end of the first day Mr McNeillie decided with the approval of Ms Fitzjohn to convert the inspection into one under section 5. That was in accordance with Ofsted's practice, mentioned in its section 8 Handbook, that (pursuant to EdA 2005 s.9) inspectors may convert a section 8 inspection to a section 5 inspection if, during the inspection, they are sufficiently concerned about the overall standard of education provided by the school.
On 4 July 2016 Ofsted sent the head teacher of the School a draft report on the June 2016 inspection and invited comment pursuant to EdA 2005 s.13(2)(b). The head teacher made extremely detailed comments. Amongst the many points he made, he stated that segregation had not previously been raised as an issue by Ofsted. The report was revised and on 15 July 2016 the final version ("the June 2016 Inspection Report") was sent to the head teacher.
The June 2016 Inspection Report assessed the School as "inadequate" in three respects, namely (i) "effectiveness of leadership and management", (ii) the "personal development, behaviour and welfare" of pupils, and (iii) "early years provision".
The "inadequate" assessment in relation to leadership and management was based on three factors. The first was that reference was made to the discovery in the School library of a number of books which "included derogatory comments about, and the incitement of violence towards, women".
The second factor related to the segregation of pupils. The report said this:
"Leaders have ensured that both boys and girls have access to the same curriculum and facilities. However, the decision to organise the school in this [segregated] way limits pupils' social development, and the extent to which they are prepared for interaction with the opposite sex when they leave school.
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