The King (on the Application of Stephen Bowen) v Kent County Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Constable |
| Judgment Date | 26 May 2023 |
| Neutral Citation | [2023] EWHC 1261 (Admin) |
| Docket Number | Case No: CO/3365/2022 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 1261 (Admin)
Mr Justice Constable
Case No: CO/3365/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
David Wolfe KC and Katy Sheridan (instructed by Simpson Millar LLP) for the Claimant
Nigel Giffin KC (instructed by Bevan Brittan LLP) for the Defendant
Hearing dates: 16–17 May 2023
This judgment was handed down remotely at 10.30am on Friday 26 th May 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives (see eg https://www.bailii.org/ew/cases/EWCA/Civ/2022/1169.html).
A. Introduction
The Claimant, Stephen Bowen, is a humanist. Mr Bowen subscribes to a worldview based on logic, rationality, science, education, and mutual respect. As described in evidence cited in R (Harrison) v Secretary of State for Justice and Ors [2021] PTSR 322:
“Humanists are people who shape their own lives in the here and now, because we believe this is the only life we have. Humanism is a non-religious worldview and humanists are therefore either atheists or agnostics. We adopt a naturalistic outlook, believing that, in the absence of an afterlife and any discernible purpose to the universe, human beings can act to give their own lives meaning by seeking happiness in this life and helping others to do the same. We make sense of the world through logic, reason, and evidence, and concern for human beings and other sentient animals, always seeking to treat those around us with warmth, understanding and respect.”
Mr Bowen sought to be appointed to join Group A of the Standing Advisory Council for Religious Education (‘SACRE’) of Kent County Council (‘KCC’). Pursuant to section 390(4)(a) of the Education Act 1996 (‘the 1996 Act’), set out more fully later in this Judgment, Group A is required to be ‘ a group of persons to represent such Christian denominations and other religions and denominations of such religions as, in the opinion of the authority, will appropriately reflect the principal religious traditions in the area.’ KCC refused to appoint Mr Bowen because, as a humanist, Mr Bowen does not represent ‘ a religion or a denomination of a religion’ for the purposes of section 390(4)(a) of the 1996 Act. KCC considered that it did not have the power to appoint Mr Bowen to Group A and that it would have been unlawful for it to do so.
Mr Bowen brings this case to challenge KCC's decision. Put simply, he says this is discriminatory and so in breach of Article 14 of the European Convention on Human Rights (‘ECHR’). As such, he contends that pursuant to section 3 of the Human Rights Act 1998 (‘ HRA 1998’), section 390(4)(a) must be read in such a way as to avoid the breach. It is accepted by David Wolfe KC, on behalf of Mr Bowen, that on any normal use of language, humanism is not a ‘religion’ or a ‘denomination of a religion’ (‘religion’ involves a spiritual or non-secular belief system: see R (Hodkin) v Registrar General [2014] 1 AC 610. However, it is argued that the words ‘ other religions’ can and should be, pursuant to section 3 of the HRA 1998, construed as incorporating the duty of care of neutrality recognised by the ECHR, in much the same way that Warby J construed the phrase ‘ religious education’ in R (Fox) v Education Secretary [2016] P.T.S.R. 405. Mr Bowen's challenge, therefore, stands or falls on the proper construction of section 390(4)(a) of the 1996 Act, in light of section 3 of the HRA.
There are four fundamental issues:
(1) Is ECHR Article 14 engaged at all? This question turns on whether the matter falls within the ‘ambit’ of ECHR Article 9, or Article 2 of the 1 st Protocol to the ECHR (‘A2P1’).
(2) If Article 14 is engaged, does section 390(4)(a) as construed by KCC involve a breach of Article 14? This turns on
(a) whether persons of no religious belief are, in the context of section 390 of the 1996 Act, in an analogous position to persons holding religious beliefs: and
(b) (if they are), whether the legislative distinction drawn between them represents a proportionate approach taken in pursuit of the legislative aim (i.e. justification and proportionality).
(3) If section 390(4)(a) is in breach of Article 14, is it possible to read and give effect to section 390(4)(a) in a way which is compatible with the Convention rights?
(4) If so, should the decision of KCC prohibiting Mr Bowen from being included as a Humanist representative within Group A of KCC's SACREE be quashed and/or declared as unlawful?
B. The Legal Framework
All state funded schools in England are required to provide religious education for all registered pupils at school. For maintained schools (i.e. those maintained by local authorities, rather than academies under the Academies Act 2010), this requirement comes from statute: the 1996 Act, the School Standards and Framework Act 1998 (‘the 1998 Act’), and the Education Act 2002 (‘the 2002 Act’).
Section 78(1) of the 2002 Act specifies the general requirements in relation to the curriculum in maintained schools in England. It provides:
“ The curriculum for a maintained school or maintained nursery school satisfies the requirements of this section if it is a balanced and broadly based curriculum which:
(a) promotes the spiritual, moral, cultural, mental and physical development of pupils at the school and of society, and
(b) prepares pupils at the school for the opportunities, responsibilities, and experiences of life.”
Section 79 of the 2002 Act requires local authorities and the governing bodies and headteachers of maintained schools to exercise their functions with a view to ensuring that the curriculum in each maintained school satisfies those requirements. The functions include “in particular” (by section 79 (4)), “ functions relating to religious education and religious worship” (in relation to schools, but not nurseries).
More specific requirements for the curriculum are set out in section 80(1), which requires that “ the curriculum for every maintained school in England shall comprise a basic curriculum”. The basic curriculum includes four components: sex and relationships education, health education, the “National Curriculum”, and religious education (‘RE’). In relation to RE, there must be “ provision for religious education for all registered pupils at the school (in accordance with such of the provisions of Schedule 19 to the School Standards and Framework Act 1998 as apply in relation to the School).”
Schedule 19 of the 1998 Act provides that the required provision for religious education in those maintained schools that are community schools, foundation or voluntary schools without a designated religious character must comply with an “agreed syllabus”. By paragraph 1 (1), “agreed syllabus” has the meaning given by section 375 of the 1996 Act, which provides:
“(1) In this Act, “agreed syllabus” means a syllabus of religious education –
(a) Prepared before the commencement of this Act in accordance with Schedule 5 to the Education Act 1944 or after commencement in accordance with Schedule 31, and
(b) Adopted by the local authority under that Schedule
whether it is for use in all schools maintained by them or for use in particular such schools or in relation to any particular class or description of pupils in such schools.
(2) Every agreed syllabus shall reflect the fact that the religious traditions in Great Britain are in the main Christian whilst taking account of the teaching and practices of other principal religions represented in Great Britain.”
As described by Warby J in Fox, the agreed syllabus is, therefore, the key document in determining what is taught in RE in the relevant type of school. The mechanisms for creating an agreed syllabus are laid down by section 390 of and Schedule 31 to the 1996 Act. The responsibility for producing the syllabus is allocated to an occasional body which the local authority must establish, generally called an agreed syllabus conference (‘ASC’). Local authorities are also required to establish a permanent body known as the SACRE. Section 390(2) provides that, in England, the SACRE shall consist of such groups of persons appointed by the authority as representatives (‘representative groups’) as are required by sub-section 390(4).
Section 390(4) states, in relation to the position in England:
‘The representative groups required by this subsection are—
(a) …a group of persons to represent such Christian denominations and other religions and denominations of such religions as, in the opinion of the authority, will appropriately reflect the principal religious traditions in the area;
(b) …a group of persons to represent the Church of England;
(c) a group of persons to represent such associations representing teachers as, in the opinion of the authority, ought to be represented, having regard to the circumstances of the area; and
(d) a group of persons to represent the authority.
Section 390(5) provides that where (as will be the case in England), a representative is required by section 390(4)(b) (i.e. of the Church of England), the representative group required under section 390(4)(a) shall not include persons appointed to represent the Church of England.
Pursuant to sections 390(3) and (7), the SACRE may also include co-opted members, but a co-opted member is not a voting member. Furthermore, each representative group has a single vote.
Section 390(6) provides that the number of representative members appointed to any representative group under subsection 390(4)(a) to represent each denomination or religion required to be represented shall, so far as consistent with the efficient discharge of the group's functions, reflect broadly...
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