Jeremy Fox and Others v Secretary of State for Education
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 25 November 2015 |
| Neutral Citation | [2015] EWHC 3404 (Admin) |
| Docket Number | Case No: CO/2167/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 25 November 2015 |
The Queen on the application of
[2015] EWHC 3404 (Admin)
Mr Justice Warby
Case No: CO/2167/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
David Wolfe QC (instructed by Maxwell Gillott) for the Claimant
Gemma White (instructed by Government Legal Department) for the Defendant
Hearing date: 10 November 2015
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down and revised on 14 April 2016 may be treated as authentic.
INTRODUCTION
This judicial review claim calls into question the lawfulness of the approach adopted by the defendant, the Secretary of State for Education, to the striking of a balance between the teaching at GCSE level of religious and non-religious world views.
The challenge is to a decision of 12 February 2015, to issue new GCSE Subject Content ("The Subject Content") for Religious Studies ("RS") with effect from the 2016 academic year, and specifically to the following assertion ("The Assertion") at paragraph 2:
"By setting out the range of subject content and areas of study for GCSE specifications in religious studies, the subject content is consistent with the requirements for the statutory provision of religious education in current legislation as it applies to different types of school."
(Emphasis added).
Originally, the challenge was led by the British Humanist Association ("BHA"), of which the first claimant is a past member. The BHA was refused permission to seek judicial review on the grounds that it lacked standing. However, it supports the claims of the six Claimants who remain.
The first, third and fifth of those Claimants ("the Parents") are parents and litigation friends of the second, fourth and sixth claimants ("the Children") respectively. The Parents all hold non-religious beliefs. The first Claimant, Mr Fox, describes himself as an agnostic humanist, and is a former member of the BHA. The Children are all at secondary school, all three of the schools concerned being academies. The second claimant is in year 8 and so will be starting on the GCSE curriculum in 2016. The fourth and sixth Claimants are in Year 7 and due to start on GCSEs in 2017. The Claimants' case is that all of them may be affected by the decision under challenge.
THE CLAIM
At the core of the Claimants' case is the proposition that The Subject Content and The Assertion, in combination, give unlawful priority to the teaching of religious views as compared to non-religious views, including those of humanism. The Claimants' case is that the state has a duty to ensure that any educational provision it makes for religious education ("RE") treats religious and non-religious views on an equal footing, and in a non-partisan way; and that it has failed to discharge that obligation.
There is no challenge to the prescribed content of the RS GCSE. However, the Claimants contend that delivery of that content will not exhaust the state's obligation to provide RE. The Subject Content and The Assertion unlawfully "permit or encourage" those responsible for framing the specific curriculums which pupils will follow to think, wrongly, "that RE can be delivered to the relevant age group by nothing more than the RS GCSE curriculum". Further and alternatively, it is said that The Assertion "risks misleading them into acting that way." The challenge is grounded in human rights law, relying on the combined effect, via the Human Rights Act 1998, of Article 9 of the Convention (Freedom of thought, conscience and religion) and Article 2 of the First Protocol ("A2P1") (Right to education).
The jurisdiction invoked is the undoubted power of the court to grant relief to cure errors of law made in departmental advice and guidance. It is submitted that this jurisdiction extends to cover advice or guidance which would lead to, or which permits or encourages, unlawful conduct; and advice or guidance which is materially misleading, whether by commission or omission. The authorities relied on by Mr Wolfe QC are Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL7, [1986] AC 112, R (Tabbakh) v The Staffordshire and West Midlands Probation Trust et ors [2014] EWCA Civ 827, [2014] 1 WLR 4620, and R (Letts) v The Lord Chancellor [2015] EWHC 402 (Admin).
Green J's judgment in Letts contains at [114]–[119] a valuable synthesis, from which I draw the following:
(1) "If a government department, in a field of administration in which it exercises responsibility, promulgates in a public document, albeit nonstatutory in form, advice which is erroneous in law, then the court, in proceedings in appropriate form commenced by an applicant or plaintiff who possesses the necessary locus standi has jurisdiction to correct the error of law by an appropriate declaration": Gillick 194 (Lord Bridge).
(2) "It is well established that a policy which, if followed, would lead to unlawful acts or decisions, or which permits or encourages such acts, will itself be unlawful": Tabbakh [46] (Richards J, summarising one ground of Cranston J's decision in that case, without disapproval: see ibid., [48]); Letts [116]–[117].
(3) A policy, or guidance, may encourage unlawful acts by dint of being "not clear and unambiguous" and silent as to important circumstances, or "materially unclear or misleading": Letts [119] citing R(A) v Secretary of State for Health [2009] EWCA Civ 225 [75], [78] (Ward LJ).
Ms White for the Defendant does not take issue with the claimant's case as to the relevant principles. She makes three main points. First, she maintains that this claim is speculative, premature, and misdirected. The Subject Content provides a framework for the setting of RS GCSE specifications by Awarding Organisations ("AOs"). That process is not complete. Moreover, it is the local authority and school that decide what is actually taught by way of RE at any particular school. If the Parents or Children fear that their Convention rights will be breached by the way in which schools available to the Children decide to provide RE then they should bring a claim, with detailed supporting evidence, once that decision has been made. Secondly, the Defendant submits that The Assertion is not misleading or wrong in law. It is correct, because The Subject Content is consistent with the applicable law. Thirdly, it is said that the mere fact that the new RS GCSE is focused primarily on the study of religion would not make it unlawful for a school to rely solely on such a GCSE for its RE provision at Key Stage 4.
ISSUES
The claim gives rise to three main issues, which it will be convenient to address in this order:
(1) Should the challenge fail as speculative, premature, or misdirected, or for some combination of these reasons?
(2) If not, does The Assertion encourage those responsible for determining what is actually taught on GCSE courses in schools to believe, or to act on the basis, that taking an RS GCSE course containing the prescribed Subject Content would be enough to fulfil the statutory requirements for RE?
(3) If so, is The Assertion right or wrong? Would delivery of the prescribed Subject Content in fact fulfil the statutory requirements for RE set out in current legislation?
THE LEGAL FRAMEWORK
The education statutes
All state-funded schools in England are required to provide religious education ("RE") for all registered pupils at the school. For maintained schools (a term that includes Community, Voluntary Controlled and Foundation schools), this requirement is imposed directly by statutory provisions. These are mainly to be found in the Education Act 1996, the Schools Standards and Framework Act 1998, and the Education Act 2002.
Part 6 of the 2002 Act contains requirements as to the curriculum of a maintained school. Section 78(1) requires the provision of a "balanced and broadly based curriculum" which:
"(a) promotes the spiritual, moral, cultural, social, mental and physical development of pupils and of society, and
(b) prepares pupils for the opportunities, responsibilities and experiences of later life".
Section 80 provides for a "basic curriculum for every maintained school in England", containing three mandatory elements: religious education ("RE"), sex education, and the National Curriculum. So far as RE is concerned, the requirement is this:
"(1) The curriculum for every maintained school in England shall comprise a basic curriculum which includes—
(a) provision for religious education for all registered pupils at the school …"
A duty to secure that RE is given in accordance with s 80(1)(a) is cast on head teachers by s 69(1) of the 1998 Act, which also obliges the local authority ("LA") and governing body to exercise their functions so as to secure that objective. In schools other than those with a religious character provision made under s 80(1)(a) must be in accordance with an "agreed syllabus": s 375(2) and Schedule 31 of the 1996 Act and Schedule 19 of the 1998 Act. The agreed syllabus is, therefore, the key document in determining what is taught in RE in such a school.
The mechanisms for creating an agreed syllabus are laid down by s 390 and Schedule 31 to the 1996 Act. The LA must adopt the...
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