The Interim Executive Board of X School v HM Chief Inspector of Education, Children's Services and Skills
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay |
| Judgment Date | 08 November 2016 |
| Neutral Citation | [2016] EWHC 2813 (Admin) |
| Docket Number | Case No: CO/3674/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 November 2016 |
[2016] EWHC 2813 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Jay
Case No: CO/3674/2016
Peter Oldham QC (instructed by X Council Legal Services) for the Claimant
Helen Mountfield QC and Sarah Hannett (instructed by OFSTED Legal Services, in house) for the Defendant
Hearing dates: 27 th and 28 th September 2016
Judgment Approved
See Order at bottom of this judgment
INTRODUCTION
The principal issue in this "rolled-up" application for judicial review is whether a mixed school unlawfully discriminates against its male and/or female pupils by making "parallel arrangements" for their education in the same building (the Claimant's characterisation of what occurs) or by applying a regime of "complete segregation" for all lessons, breaks, school clubs and trips (the Defendant's formulation). Given that there is no evidence that either girls or boys are treated unequally in terms of the quality of the education they receive (in the sense of one sex 1 receiving a lower quality of education than the other), the issue — stripped of any rhetoric – resolves into an important one of principle as to the true construction and application of relevant provisions of the Equality Act 2010 ("EqA 2010").
The issue arises in the context of the Defendant's report into the Claimant's school following an inspection initially conducted under section 8 of the Education Act 2005 (" EA 2005") on 14 th June 2016. The following day it was converted into a full section 5 inspection. After giving it an opportunity to comment, the Defendant sent the final version of the June 2016 report to the School on 15 th July 2016; and, but for injunctive relief ordered by this court, would have published that report on 22 nd July, being the last day of the summer term. After a contested hearing on 27 th July, Stuart-Smith J continued the order of Wyn Williams J and gave a fully-reasoned reserved judgment on 1 st August ( [2016] EWHC 2004 (Admin)).
On 10 th August 2016 the Defendant sent the Claimant an amended version of the June 2016 report. According to the Claimant, this amended version has altered and distorted the reasoning of the June 2016 report, and I should therefore disregard it for the purpose of ascertaining the Defendant's true reasoning processes. According to the Defendant, the earlier reasoning is merely clarified.
Stuart-Smith J made an anonymity order pursuant to CPR 39.2(4), the effect of which is that no publication or report may be made which might lead to the identification of the Claimant or any individual referred to in the materials in the case or mentioned in court. I have reserved my judgment in this case, and the anonymity order continues to have effect until the parties have had the opportunity to consider my judgment and the terms of any further order.
Given the public importance of the principal issue, which is expressly recognised by the Defendant, and the quality and depth of the arguments I have received, I have no hesitation in granting permission to apply for judicial review on those of the Claimant's Amended Grounds on which I consider this case hinges (namely, grounds 1, 2, 4 and 5); and I turn now to address the merits of the substantive application. As I shall be explaining, the remainder of the Claimant's Amended Grounds either add nothing or are unarguable.
Shortly before the hearing the Claimant filed an Application Notice seeking in effect to strike out the Defence for failure to comply with the duty of candour. This application was not pressed at the hearing. For the avoidance of doubt, I consider that, although the Defendant has been somewhat tardy in fulfilling its disclosure obligations, it has fully complied with its duties as a public authority in relation to its conduct of these proceedings.
THE PARTIES
X School is a voluntary aided faith school for boys and girls aged between 4 and 16. It has an Islamic ethos and, specifically for religious reasons, believes that the separation of boys and girls at a certain point in their development (from Year 5, i.e.
for children who have passed their 9 th birthdays by 1 st September in the relevant academic year) is mandated. In 2014 the School went into special measures and an Interim Executive Board (for ease of reference, subsequently referred to as "the Claimant") was appointed. The Claimant is the "responsible body" for the purposes of the relevant anti-discrimination provisions of the EqA 2010. For all practical purposes the Claimant and the School are interchangeable.As paragraph 13 of the Skeleton Argument of Ms Helen Mountfield QC explains, Her Majesty's Chief Inspector of Education, Children's Services and Skills ("the Defendant", save where the current office-holder, Sir Michael Wilshaw, is being referred to by name, in which case he will be given the acronym "HMCI") is an office established pursuant to section 113 of the Education and Inspections Act 2006 ("the EIA 2006") (previously, an office with broadly similar functions subsisted in a different guise and under different nomenclature). S/he is the most senior officer of Ofsted which is a non-ministerial Government department established by section 112 of the EIA 2006. Anything authorised or required by or under any enactment to be done by the Defendant may be done by Ofsted, or by any additional inspector who is authorised generally or specifically for the purpose by the Defendant. Ofsted's functions are set out under sections 116 and 117 of the EIA 2006; and the Defendant's functions are set out under sections 118 and 119. I will touch on these in due course.
ESSENTIAL FACTUAL BACKGROUND
Segregation of boys and girls in the age range of 9–16 is one of the defining characteristics of the School, and no secret has been made of it. In this way the School's policy is apparent both to parents who might wish to send their children to it (on the basis that this is one of its merits) and to regulators who might take a different view. As it happens, and Mr Peter Oldham QC for the Claimant was entitled to make much of this forensic point, the Defendant did not take a different view until June 2016.
According to the School's Admissions Criteria (the September 2016 version is available, but in this regard it has not materially changed), "the school provides education for boys and girls in parallel gender streams". A further document entitled "X School Working Model" suggests that opportunities exist for all pupils to come together at various times, which are generally specified; but I accept Ms Mountfield's submission that this was not the evidence before the Defendant at the time he made his decision. Ms Emma Leaman, who exhibited the Working Model document to her second witness statement dated 8 th September 2016, has also stated that the "most accurate description I would provide of the School is that it operates as if it were two single sex schools on one site". This description is consistent with what the assistant head teacher told the Defendant's inspectors on 14 th and 15 th June.
The School is not the only Islamic school which operates a similar policy but I was told by Counsel that the majority do not. Of the three great Abrahamic religions, Islam is not alone in this respect because judicial notice may be taken of the fact that a number of Jewish schools with a particular Orthodox ethos do exactly the same (the majority of Orthodox schools do not). Indeed, there is evidence before me of a particular Jewish school, operating on what is described as two campuses, which at its last Ofsted inspection in 2012 was rated "outstanding" across the board. From brief internet research I have gathered that a number of Christian faith schools have similar practices.
The history relating to X School has been covered in the narrative section of the judgment of Stuart-Smith J and I may take the broad sweep of events leading up to 8 th June 2016 quite briefly.
In December 2013 the Defendant inspected the School, concluded that it was inadequate, and placed it in special measures. Subsequent monitoring inspections disclosed a measure of improvement, but the special measures remained in place. The School was subjected to a further section 5 inspection in early December 2015, and its improvement was judged to be sufficient to enable special measures to be removed. The overall effectiveness of the School was assessed to require improvement. The report, published on 5 th January 2016, noted that girls and boys were segregated for lessons, breaks and lunchtimes from Year 5, but no adverse comment was made.
Between 5 th–7 th January 2016 the Defendant provided training for Her Majesty's inspectors on equality; and, in particular, on segregation. As a training tool, inspectors were offered the following scenario:
"Inspectors should be mindful of a school's obligations under the Equalities Act 2010 and, in particular, the protected characteristics. Gender is a protected characteristic [in fact, section 4 of the EqA 2010 refers to "sex" not "gender", although many prefer the latter term]. The Equalities Act applies to all types of schools and it is unlawful for schools to discriminate against a pupil by treating them less favourably because of their sex. Where a school chooses in exceptional circumstances to segregate lessons, assemblies and other activities on the basis of gender, there must be good educational reasons for doing so. The school will need to justify these reasons. If the school has a religious character it has to demonstrate how they ensure the religious character of the school does...
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