Kimberly Isherwood v The Welsh Ministers
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn DBE,Mrs Justice Steyn |
| Judgment Date | 22 December 2022 |
| Neutral Citation | [2022] EWHC 3331 (Admin) |
| Docket Number | Case No: CO/1211/2022 |
| Court | King's Bench Division (Administrative Court) |
The King on the application of
[2022] EWHC 3331 (Admin)
THE HON. Mrs Justice Steyn DBE
Case No: CO/1211/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT IN WALES
Cardiff Civil Justice Centre
2 Park Street, Cardiff, CF10 1ET
Paul Diamond and Bruno Quintavalle (instructed on a Direct Access Basis) for the Claimants
Jonathan Moffett KC and Emma Sutton (instructed by Welsh Government Legal Services) for the Defendant
Hearing dates: 15 and 16 November 2022
Approved Judgment
This judgment was handed down remotely at 2.00pm on 22 December 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
THE HON. Mrs Justice Steyn DBE
A. Introduction
This claim for judicial review concerns the introduction of Relationships and Sexuality Education (‘RSE’) as a mandatory element of the new curricula for maintained schools in Wales, under the Curriculum and Assessment (Wales) Act 2021 (‘the 2021 Act’). There is no challenge to the lawfulness of any provision of the 2021 Act. The claimants' challenge focuses on two documents issued by the Welsh Government pursuant to the 2021 Act, namely, The Curriculum for Wales – Relationships and Sexuality Education Code (‘the Code’) and The Relationships and Sexuality Education (RSE): Statutory Guidance (‘the Guidance’).
The claimants are parents of children attending maintained schools in Wales who object on religious and/or philosophical grounds to the introduction of RSE without a ‘right of excusal’, that is, without a parental right to withdraw their child from lessons in which RSE is taught. The strength of feeling underlying their challenge is evident. In this context, it is important to note the constitutional role of the court in judicial review litigation. That role entails the court carrying out an exercise of review of the impugned acts or decisions – here, the promulgation of the Code and the Guidance – to determine whether they are compatible with the applicable legal rules and principles.
The claimants were granted permission by Turner J to seek judicial review on four grounds. These grounds give rise to the following issues (which are agreed save for the additional issues raised by the claimants in (2A) and (3A)):
(1) Grounds 1, 2 and 3(b): In respect of the grounds of challenge relating to a claimed parental right of excusal from RSE:
a) does the common law provide for the constitutional parental right of excusal for which the claimants contend?
b) If so, what is the nature of that right?
c) If any such right exists, has it been abrogated by the 2021 Act (and/or any other legislation)?
d) If, in the alternative, any such common law right does not exist, has the statutory right of excusal provided for by s.405 of the Education Act 1996 been abrogated by the 2021 Act (and/or any other legislation)?
e) Do the Code and/or the Guidance misstate the law in relation to any right of excusal?
f) In relation to the argument advanced under the first sentence of Article 2 of the First Protocol to the European Convention on Human Rights (‘A2P1’ and ‘the Convention’):
i) is it open to the claimants to contend that the absence of a parental right of excusal breaches the first sentence of A2P1, or would such a challenge have to be targeted at the 2021 Act itself?
ii) If it is open to the Claimants so to contend, does the absence of a parental right of excusal breach the first sentence of A2P1?
(2) Grounds 3(a), (c) and (d): In relation to the grounds of challenge relating to the right, conferred on parents by the second sentence of A2P1, to ensure education and teaching in conformity with their own religious and philosophical convictions:
a) do any of the passages in the Code or the Guidance to which the Claimants object purport to authorise or positively approve teaching that will be in breach of the second sentence of A2P1?
b) Insofar as the Code and/or the Guidance impact on parental rights under the second sentence of A2P1, are such impacts required to be “prescribed by law” and, if so, are they “prescribed by law”?
(2A) Ground 3 (additional issues):
a) does (as the defendant contends) R (A) v Secretary of State for the Home Department [2021] 1 WLR 3931 (‘ (A) v SSHD’) set out the relevant test for the Code and Guidance, i.e. are the Code and Guidance the same sort of “ policy documents or statement of practice issued by a public authority” as were considered by the Court in Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112?
b) Does the Code and/or Guidance breach the duty on the State to treat all ethical views on an equal footing in a non-partisan manner?
c) Does the Code and/or Guidance violate A2P1 by imposing ‘the whole school approach’, without providing for any right of excusal, with or without any guarantees as to the content of that education?
(3) Ground 4: In relation to the ground of challenge relating to the right to freedom of thought, conscience and religion conferred by article 9 of the Convention (‘article 9’),
a) do any of the passages in the Code or the Guidance to which the claimants object purport to authorise or positively approve teaching that will be in breach of article 9?
(3A) Ground 4 (additional issue):
b) does the Code and/or Guidance breach article 9 in any other way?
The claim focuses on the teaching of RSE in maintained mainstream schools in Wales. Accordingly, although the 2021 Act also makes provision in relation to other learning environments, including maintained nursery schools, non-maintained nursery schools that are funded by local authorities, special schools and pupil referral units, this judgment only addresses the position in maintained mainstream schools in Wales.
B. The legal framework
Section 7 of the Education Act 1996 (‘the 1996 Act’) provides so far as relevant:
“The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable –
(a) to his age, ability and aptitude, and
(b) to any …additional learning needs (in the case of a child who is in the area of a local authority in Wales) he may have,
either by regular attendance at school or otherwise.” (Emphasis added.)
(Compulsory school age is defined in s.8 of the 1996 Act.)
Section 9 of the 1996 Act provides:
“In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of State and local authorities shall have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure.”
(A local authority in Wales means a county council in Wales or a county borough council: s. 579 of the 1996 Act.)
A parent of a child who is a registered pupil at a school commits a criminal offence if the child does not attend the school in accordance with the rules prescribed by the school, unless a specified exception applies: s.444 of the 1996 Act and Isle of Wight Council v Plant [2017] UKSC 28, [2017] 1 WLR 1441, Baroness Hale DSPC at [48].
Curriculum and Assessment (Wales) Act 2021
The 2021 Act is an Act of the Senedd which, as described in its long title, establishes “ a new framework for a curriculum for pupils of compulsory school age at maintained schools …” Part 1 of the 2021 Act sets out “ basic concepts that have effect in relation to a curriculum” for, among others, “ registered pupils at maintained schools (except those over compulsory school age)” (s.1(1)) and “ includes provision about key documents that support a curriculum of that kind” (s.1(2)).
Section 2 of the 2021 Act provides that the “ four purposes” of a curriculum are:
“To enable pupils and children to develop as ambitious, capable learners, ready to learn throughout their lives;
To enable pupils and children to develop as enterprising, creative contributors, ready to play a full part in life and work;
To enable pupils and children to develop as ethical, informed citizens of Wales and the world;
To enable pupils and children to develop as healthy, confident individuals, ready to live fulfilling lives as valued members of society.”
Section 3(1) of the 2021 Act provides that there are six “ areas of learning and experience for a curriculum” (‘areas of learning’), namely:
“Expressive Arts
Health and Well-being
Humanities
Languages, Literacy and Communication
Mathematics and Numeracy
Science and Technology.” (Emphasis added.)
Section 3(2) provides that within those six areas of learning:
“… the following are mandatory elements –
English
Relationships and Sexuality Education Religion, Values and Ethics
Welsh.” (Emphasis added.)
Section 8 of the 2021 Act provides:
“(1) The Welsh Ministers must issue a code (the “RSE Code”) setting out themes and matters to be encompassed by the mandatory element of Relationships and Sexuality Education.
(2) A curriculum does not encompass the mandatory element of Relationships and Sexuality Education unless it accords with the provision in the RSE Code.
(3) Teaching and learning does not encompass the mandatory element of Relationships and Sexuality Education unless it accords with the provision in the RSE Code.
(4) For further provision about the RSE Code, see section 77.” (Emphasis added.)
Section 77 lays down the procedure for issuing or revising the RSE Code. In particular, the Welsh Ministers must consult the persons they think appropriate (if any), lay a draft of the proposed Code before the Senedd, and if the Senedd resolves to approve a draft the Welsh Ministers must...
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