R “L” v Hampshire County Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Bourne |
| Judgment Date | 13 January 2022 |
| Neutral Citation | [2022] EWHC 49 (Admin) |
| Docket Number | Case No: CO/686/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 49 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HON. Mr Justice Bourne
Case No: CO/686/2021
Jason Coppel QC and Tom Cross (instructed by Sinclair's Law) for the Claimant
Andrew Sharland QC and Ben Mitchell (instructed by Hampshire Legal Services) for the Defendant
Hearing date: Thursday 16 December 2021
Approved Judgment
Introduction
This is an application by the Claimant for permission to seek judicial review. Within it there is an application for permission to rely on expert evidence. On 13 August 2021 Sir Ross Cranston directed that the applications be determined at an oral hearing.
The challenge is directed at parts of the Defendant's non-statutory guidance, Hampshire: a safe place to learn, a safe place to grow: LGBT+ guidance for Hampshire schools and colleges (“the Guidance”).
The Claimant originally advanced 5 grounds of challenge. In light of the recent judgment of the Supreme Court in R (A) v Secretary of State for the Home Department [2021] 1 WLR 3931 (“ A v SSHD”), grounds 1 and 3 are not being pursued. The surviving grounds assert that the Guidance is unlawful in a number of respects. The common theme is a failure to respect the rights of those whose beliefs are at variance with the Guidance.
The Defendant contends that the surviving grounds are not arguable and that some of the grounds advanced in counsel's skeleton argument have not been pleaded. The Defendant also contends that permission should be refused on the ground of delay.
After oral argument it was agreed that the application for permission to rely on expert evidence could be dealt with as a matter of case management if permission to seek judicial review was granted.
The Guidance
The Guidance was published in June 2018, 3 1/2 years ago. It runs to 90 pages. Almost all of its contents are not subject to challenge. Under the heading “Purpose of this document”, it lists the following aims, none of which are challenged:
“• provide practical information in regard to supporting the emotional health and wellbeing of all members of the school community, including LGBT+ pupils and staff
• ensure that teachers and governors receive high-quality advice, support and professional development in all matters relating to LGBT+
• build on the good practice that already exists in Hampshire schools, particularly in developing a rights respecting ethos and the promotion of British values (the values we ascribe to as a liberal democracy) through spiritual, moral, social and cultural (SMSC) education
• support schools in developing a culture and environment that celebrates diversity and values each and every member of the school community
• support schools in developing a curriculum that will give all pupils a voice, challenge stereotypes and create and sustain effective policies, such as anti-bullying
• enable schools to develop an inclusive and diverse ethos in respect to the Equality Act 2010.”
The opening section refers to other sources of guidance including Inspiring equality in education published by the Department for Education (DfE) and Government Equalities Office in 2016, and other departmental guidance, none of which is challenged. The Guidance also refers to the United Nations Convention on the Rights of the Child, to the requirement that children's rights be respected without discrimination under UNCRC Article 2 and to reports of LGBT young people, and especially trans young people, facing bullying at school. It reproduces from Schools transgender guidance, issued by Cornwall Council in 2015, a summary of relevant legal obligations under the Human Rights Act 1998 (“ HRA”), the Gender Recognition Act 2004 and the Equality Act 2010.
There are then a number of further sections. I have not extracted those which are not challenged. Those which are challenged are extracted within the discussion of each ground of challenge below.
Ground 2
The material parts of sections 406 and 407 of the Education Act 1996 (“ EA 1996”) provide:
“406.—Political indoctrination.
(1) The local authority, governing body and head teacher shall forbid—
…
(b) the promotion of partisan political views in the teaching of any subject in the school.
…
407.—Duty to secure balanced treatment of political issues.
(1) The local authority, governing body and head teacher shall take such steps as are reasonably practicable to secure that where political issues are brought to the attention of pupils while they are—
(a) in attendance at a maintained school, or
(b) taking part in extra-curricular activities which are provided or organised for registered pupils at the school by or on behalf of the school,
they are offered a balanced presentation of opposing views.
…”
By ground 2 the Claimant contends that the Guidance:
1. authorises or approves unlawful conduct by schools, namely teaching in breach of those obligations (“the first strand”); and
2. is itself in breach of those obligations as a local authority (“the second strand”); and/or
3. authorises or approves unlawful conduct by schools, namely teaching without ensuring the right of parents to ensure “education and teaching in conformity with their own religious and philosophical convictions” as required by Article 2 of the First Protocol to the European Convention on Human Rights (“ECHR”) (“A2P1”), read with section 6 of the HRA (“the third strand”).
In support of ground 2 Jason Coppel QC, representing the Claimant, points to the section of the Guidance entitled “ The school ethos and curriculum”. In particular this states:
“It is worth exploring how LGBT+ issues can be incorporated in a cross-curricular approach to learning, perhaps as part of the spiritual, moral, social and cultural thread that runs throughout school life. In the taught curriculum this would include all subjects. The DfE and Government Equalities Office publication, Inspiring equality in education (2016), has some excellent examples of cross-curricular learning as a starting point for schools (pages 1.16 and 1.17), but we are also pleased to offer some examples in personal development learning from Hampshire schools on the following pages.”
There are then reproduced a number of slides headed “ Crestwood Community School sample lessons”. Of these:
1. One is headed “sex versus gender” and states, among other things, “sex has two main categories: male and female”, “gender has two main categories: masculine and feminine” and “gender distinctions are created by social norms”.
2. Another states: “Some people are born with internal and/or external organs which do not ‘fit’ clearly into the male or female category. The term for this is ‘intersex’.”
3. Another states “these are just a few examples of genders which some people identify as” and lists 12 examples including bigender, transgender, cisgender and non-binary.
4. Another states that “some transgender people will ‘transition’ from male to female or female to male” e.g. by surgery, taking hormones and/or living their life as their intended gender, that these are personal choices and that the UK has laws which protect transgender rights.
5. The next slide asks “How should we treat people who are intersex/transgender/agender, etc?” and give the answer: “Like human beings! Because we are all human and deserve equal respect regardless of age, gender, sex, religion, race …”.
Mr Coppel submits that these slides, considered as a whole, contain “partisan political views” and do not contain “a balanced presentation of opposing views” on “political issues”, so that the Defendant infringes sections 406 and 407 by failing to take the necessary steps itself and by approving or authorising unlawful teaching by schools.
The basis for that submission is that:
1. The Claimant and many other people, for religious or other reasons, believe that sex and gender are fixed at birth as male or female and cannot be changed.
2. This is a “political” issue because it concerns matters of government or public policy.
3. The content of these “Crestwood lessons” is partisan because it presents only one side of this issue.
4. The Guidance approves the teaching of the Crestwood lessons by schools.
The legal principles applying to a challenge to policy have recently been stated by the Supreme Court in A v Secretary of State for the Home Department [2021] UKSC 37 [2021] 1 WLR 3931 (“ A v SSHD”), in a judgment handed down after this claim was issued. Approving Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, the Court in the judgment of Lord Sales and Lord Burnett CJ:
1. at [38] stated the test to be: “does the policy in question authorise or approve unlawful conduct by those to whom it is directed?” and said that “the court will intervene when a public authority has, by issuing a policy, positively authorised or approved unlawful conduct by others”;
2. at [41], added: “If the policy directs them to act in an unlawful way which contradicts the law it is unlawful”; and
3. at [44], approved the approach of Underhill LJ in R (Bayer plc) v NHS Darlington Clinical Commissioning Group [2020] EWCA Civ 449; [2020] PTSR 1153, ruling that a policy was lawful because it was “realistically capable of implementation by NHS trusts in a way which did not lead to, permit or encourage unlawful acts” and rejecting the contention that it was unlawful because it “left open the possibility” of unlawful implementation.
As to the meaning of sections 406–7 and the meaning of the word “political”, Mr Coppel points out that support for gay marriage was considered by the Supreme Court to be a “political opinion” (albeit by reference to different legislation) in Lee v...
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