R v Birmingham City Council, ex parte Equal Opportunities Commission

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Keith of Kinkel,Lord Roskill,Lord Brandon of Oakbrook,Lord Griffiths,Lord Goff of Chieveley
Judgment Date17 Feb 1992
Judgment citation (vLex)[1989] UKHL J0223-2

[1989] UKHL J0223-2

House of Lords

Lord Keith of Kinkel

Lord Roskill

Lord Brandon of Oakbrook

Lord Griffiths

Lord Goff of Chieveley

Regina
and
Birmingham City Council
(Appellants)
Ex Parte the Equal Opportunities Commission
(Respondents)
Lord Keith of Kinkel

My Lords,

1

I have had the opportunity of considering in draft the speech to be delivered by my noble and learned friend, Lord Goff of Chieveley. I agree with it and for the reasons he gives would dismiss the appeal.

Lord Roskill

My Lords,

2

I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend, Lord Goff of Chieveley. For the reasons he gives, with which I am in entire agreement, I would dismiss this appeal.

Lord Brandon of Oakbrook

My Lords,

3

For the reasons to be given by my noble and learned friend, Lord Goff of Chieveley, I would dismiss the appeal.

Lord Griffiths

My Lords,

4

I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Goff of Chieveley. I entirely agree with it and, for the reasons given, I too would dismiss this appeal.

Lord Goff of Chieveley

My Lords,

5

This case is concerned with proceedings for judicial review brought by the Equal Opportunities Commission against the Birmingham City Council. The subject matter of these proceedings is the provision by the council for selective education in single sex secondary schools. At all material times there have been available considerably more places for boys at the age of 11 than there have been for girls. As appears from the evidence, there are eight selective schools in the city, all of which are single-sex schools. These are as follows:

Boys' schools

Places

King Edward's Grammar School for Boys, Aston

90 at age 11

King Edward VI Camp Hill School for Boys

90 at age 11

King Edward VI Five Ways School

90 at age 11

Handsworth Grammar School

120 at age 11

Bishop Vesey's Grammar School

150 at age 12

Girls' schools

Places

King Edward VI Camp Hill School for Girls

90 at age 11

King Edward's Grammar School for Girls, Handsworth

120 at age 11

Sutton Coldfield County Grammar School for Girls

150 at age 12

6

Of these schools, all except Sutton Coldfield County Grammar School for Girls are voluntary-aided secondary schools. It will be seen from the table that there are equal numbers of places available for boys and girls at the age of 12; but at the age of 11, whereas there are 390 places available for boys, there are only 210 places available for girls. The total number of places offered for secondary transfer at the age of 11 by selective schools represents only about 5 per cent. of the total available secondary places for that age. How this came about is set out in an affidavit sworn in the present proceedings by Mr. John Crawford, the Director of Education of the Birmingham City Council. He has demonstrated how the history of proposals for secondary school reorganisation in Birmingham has been a history of changing policies according to the philosophy of the political party in power. I need not rehearse this story. The effect has however been that, since 1974, when the number of places offered by selective schools represented about 27 per cent. of the total number of places available, there has been a substantial reduction in the number of places available in Birmingham. This is the product of a policy to reorganise all selective education in the city on a non-selective basis. But, as a result of successful resistance by voluntary aided schools and changes in political control (both of the City Council and of central government) the voluntary aided schools I have identified survived as selective schools, with the disparity I have referred to above.

7

The effect of this disparity is demonstrated in a table which was placed in evidence, showing the number of places offered by these eight schools to boys and girls respectively over the years 1984-87. The table shows that girls with a test mark near the borderline have a substantially smaller chance of obtaining education at selective schools in Birmingham than do boys with comparable marks. This effect has been known to the council for some years; and, since December 1985, the council has known that the Equal Opportunities Commission considered that the arrangements made by the council constitute unlawful sex discrimination contrary to section 23 of the Sex Discrimination Act 1975. Following representations by the commission, a report was prepared by the chief education officer and the city solicitor for the education (policy and finance) sub-committee, in which the whole matter was reviewed in detail. In that report, the options open to the council for remedying the situation were listed as follows:

(a) to open a new selective school or schools for girls, providing another 180 places per year group [to this option there was later added the alternative of enlarging girls' selective schools by 180 places per year]; (b) to close one (90 place) boys' school and to reopen it as a girls' school; (c) to close two boys' schools; (d) to reorganise two boys' schools as mixed schools; (e) to reorganise all of the selective schools as mixed schools; (f) to cease to maintain any selective schools at all."

8

The officers recommended that the sex discrimination in admissions to selective schools should be recognised and that steps should be taken to remove the discrimination at the earliest opportunity; in particular, it was recommended that discussions regarding the steps to be taken should be entered into with the King Edward Foundation and the governors of Handsworth Grammar School. However, the sub-committee resolved, on 17 March 1987, that consideration of the matter should be referred to a later meeting to enable the various options to be further investigated. At a subsequent meeting on 30 June 1987, the sub-committee considered the various courses of action open to them, and decided to deny the allegation of sex discrimination but nevertheless to consult the governing bodies of the schools in question on possible solutions to eliminate sex discrimination. There is no evidence on the question whether such consultations have taken place.

9

The various options proposed to the sub-committee by the responsible officers were obviously intended to be a list of options theoretically open to the council: it was not being suggested that any one of them constituted a practical or desirable course of action in the circumstances. Furthermore, the council's powers (under section 12 of the Education Act 1980) are subject to severel legal restraints. I need not go into detail; it is enough to record that there are important limitations in connection with voluntary schools, and that implementation of proposals by the council is subject always to the overriding attitude of the Secretary of State. In addition, the falling demand for school places in the area creates of itself a major practical constraint. There is no doubt that the council faces great difficulties in the way of solving the problem of disparity between the sexes in selective secondary schools. However, it has to be said that, whatever the difficulties may be. there is no evidence that the council has sought actively to overcome them.

10

In these circumstances, the commission commenced proceedings for judicial review. They sought (1) a declaration that the arrangements currently made by the council for the provision of selective secondary education were unlawful pursuant to section 23 of the Act of 1975 read with section 8 of the Education Act 1944 (as amended), and (2) an order of mandamus requiring the council to consider without delay the means by which such unlawful sex discrimination was to be removed. On 14 October 1987, McCullough J. upheld the commission's complaint of sex discrimination. He granted the declaration asked, but declined to make an order of mandamus. The council appealed to the Court of Appeal. On 13 May 1988, the Court of Appeal by a majority (Dillon and Neill L.JJ., Woolf L.J. dissenting) dismissed the appeal. The council now appeals to your Lordships' House by leave of the Court of Appeal.

11

In order to consider the issues in the appeal, it is necessary to set out the terms of the most relevant statutory provisions of the Act of 1975. Section 1 defines sex discrimination against women. Subsection (1) provides:

"A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if — ( a) on the ground of her sex he treats her less favourably than he treats or would treat a man, or ( b) he applies to her a requirement or condition which applies or would apply equally to a man but — (i) which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it, and (ii) which he cannot show to be justifiable irrespective of the...

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