R v Governors of the Bishop Challoner Roman Catholic Comprehensive Girls' School, ex parte Choudhury

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Keith of Kinkel,Lord Templeman,Lord Ackner,Lord Goff of Chieveley,Lord Browne-Wilkinson
Judgment Date11 June 1992
Judgment citation (vLex)[1992] UKHL J0611-2
Date11 June 1992

[1992] UKHL J0611-2

House of Lords

Lord Keith

Lord Templeman

Lord Ackner

Lord Goff of Chieveley

Lord Browne-Wilkinson

Choudhury (A.P.) and Another (A.P.)
(Appellants)
and
Governors of Bishop Challoner Roman Catholic Comprehensive School and Others
(Respondents)
Lord Keith of Kinkel

My Lords,

1

I have had the opportunity of reading in draft the speech to be delivered by my noble and learned friend, Lord Browne-Wilkinson. I agree with it, and for the reasons he gives would dismiss this appeal.

Lord Templeman

My Lords,

2

For the reasons given by my noble and learned friend, Lord Browne-Wilkinson, I would dismiss this appeal.

Lord Ackner

My Lords,

3

For the reasons given by my noble and learned friend, Lord Browne-Wilkinson, I would dismiss this appeal.

Lord Goff of Chieveley

My Lords,

4

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Browne-Wilkinson. I agree with it, and for the reasons which he gives I too would dismiss both appeals.

Lord Browne-Wilkinson

My Lords,

5

This case raises the important question whether the governors of a voluntary aided school which is over-subscribed (i.e. has more candidates for admission than it can accommodate) is entitled to operate an admissions policy which gives preference to children of a particular religious persuasion notwithstanding the statutory provisions which give parents a right to send their children to the school of their choice.

6

The statutory provisions imposing the duty to give effect to parental preference are contained in section 6 of the Education Act, 1980 as amended by the Education Reform Act, 1988, section 30. Section 6(1) requires the local education authority to make arrangements enabling parents to express a preference as to the school which their child is to attend. Section 6(2) imposes a duty on the local education authority and the governors of a voluntary aided school to comply with such preference. But sub-section (3) then provides that such duty shall not apply in three sets of circumstances. It provides as follows:

"(3) The duty imposed by sub-section (2) above does not apply —

  • ( a) if compliance with the preference would prejudice the provision of efficient education or the efficient use of resources:

  • ( b) if the preferred school is an aided or special agreement school and compliance with the preference would be incompatible with any arrangements between the governors and the local education authority made under sub-section (6) below; or

  • ( c) if the arrangements for admission to the preferred school are based wholly or partly on selection by reference to ability or aptitude and compliance with the preference would be incompatible with selection under the arrangements….

(6) A local education authority shall, if so requested by the governors of an aided or special agreement school maintained by the authority, make arrangements with the governors in respect of the admission of pupils to the school for preserving the character of the school; and the terms of any such arrangement shall, in default of agreement between the authority and the governors, be determined by the Secretary of State."

7

Shortly stated, the main issue is whether a school which is over-subscribed so that it cannot accept all the applications for admission can adopt religious criteria (i.e. criteria intended to preserve the character of the school) in selecting the successful applicants for admission and thereby exempt itself under section 6(3)( a) from the duty under section 6(2) to give effect to the preferences expressed by parents whose children do not meet such criteria.

8

In the present case, the voluntary aided school in question, The Bishop Challoner Roman Catholic Comprehensive Girls School in the London Borough of Tower Hamlets, adopted the following admission policy:

"Admission Policy

Bishop Challoner is a Roman Catholic School. We expect all parents to support our aims fully and to uphold our catholic ethos. The school admits pupils in accordance with the following criteria in order of priority:

  • 1. Baptised Catholics.

  • 2. Children of baptised catholic parent/s.

  • 3. Practising Christians. Priority will be given to those with sisters at the school.

  • 4. Other Christians. Priority will be given to those with sisters at the school…."

9

It is common ground that in the year starting September 1991 the school had more applicants for admission than it could accommodate without prejudicing the provision of efficient education. The appellants are the parents of two girls, one a Hindu the other a Muslim. In November 1990 each of the appellants expressed a preference that his daughter should be educated at the school. Their applications were refused on the grounds that they did not meet the admission criteria. Both appealed to the Appeal Committee established under the 1980 Act. On 6 June 1991 both appeals were dismissed.

10

Each of the appellants applied for judicial review of (a) the refusal of the governors to admit his daughter to the school and (b) the decision of the Appeal Committee. All four applications were heard by Simon Brown J. who quashed all four decisions. The Court of Appeal (Balcombe, Taylor and McCowan L.JJ.) reversed his decision and upheld all four decisions. The appellants appeal to this House.

11

The main issue on the appeal is the validity of the governors' decisions not to admit the appellants' daughters. The secondary issue, which only arises if the appellants fail on the main issue, is the validity of the decisions of the Appeal Committee: I will deal separately with the secondary issue.

12

THE MAIN ISSUE

13

Before turning to consider the statutory provisions imposing the duty to give effect to parental preference, it is necessary first to consider the character of voluntary aided schools and the general law affecting admissions to such schools apart from the statutory duty imposed by section 6(2) of the 1980 Act.

14

Voluntary aided schools

15

Voluntary aided schools are schools maintained, but not established, by the local education authority. There are approximately 5,000 such schools, virtually all of which were established by religious foundations. The majority were established by the Church of England and the Roman Catholic Church but others were established by, for example, the Methodist Church and the Jewish community. In 1991, there were 701,000 pupils being educated in Roman Catholic schools of whom only 11.5 per cent were non-catholics.

16

The whole expense of maintaining a voluntary aided school is paid by the local education authority except for the expense of providing, altering and carrying out certain repairs to the school buildings which expense is borne by the governors: Education Act 1944, sections 15(3) and 114(2). However, the Secretary of State bears a substantial proportion of the expense for which the governors are responsible: see, for example, 1944 Act, section 102. Therefore voluntary aided schools are in effect a kind of partnership: the premises are provided and to an extent kept up by the religious or other body which established them whilst the cost of running the schools is borne by the public purse.

17

Voluntary aided schools are governed by an instrument of government (constituting the governing body) and articles of government (regulating the way the school is to be governed) both of which are made by the local education authority: Education (No 2) Act 1986, section 1. Section 1(5) provides that the instrument of government and articles of government must comply with any trust deed relating to the school.

18

Bishop Challoner School

19

The school was established in about 1930 jointly by the Union of the Sisters of Mercy Trustees and the Roman Catholic Diocese of Westminster. The original trust deed cannot be traced but a more recent trust deed dated 1 October 1984 provides that the trustees are to hold the trust property, comprising the premises of the school and any additional site that may be acquired, for the purposes of a Roman Catholic Voluntary Aided School to be conducted in accordance with the Education Acts. Clause 8 of the trust deed provides that "the religious instruction and religious worship shall be in accordance with the tenets teaching and practice of the Roman Catholic Church".

20

The instrument of government made by the local authority under section 1 of the 1986 Act recites:

"The school is in the trusteeship of the Westminster Roman Catholic Diocese trustee and its overall ethos is that of a Roman Catholic school committed to religious beliefs, morality and behaviour in accordance with the teaching and practices of the standards of the Roman Catholic Church".

21

Article 5 provides:

"The arrangements for the admission of pupils to the school shall be determined by the governing body, subject to sections 6 to 8 of the 1980 Act, section 26 of the 1988 Act and to paragraph 5.3."

22

Admissions policy generally

23

It is common ground that it is for the governors of a voluntary aided school to decide who is to be admitted as a pupil and to lay down the admissions policy of the school. This is expressly provided by article 5 of the articles of government.

24

Section 8(2) and (3) of the 1980 Act requires the governors to publish annually particulars of "the arrangements for the admission of pupils to the school". Such particulars must include, amongst other things, the number of pupils it is intended to admit and "the policy followed in deciding admissions". This Act therefore recognises the need for, and positively requires, the governors to formulate an admissions policy. It appears that under the 1980 Act the content of that policy was entirely a matter for the governors, subject of course to the requirements of section 6 of the 1980 Act.

25

Under section 33 of the 1986 Act, the governors are required to consult the local education...

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