(1)The British Humanist Association (2) Jeremy Rodell (a member of the Richmond Inclusive Schools Campaign) v London Borough of Richmond upon Thames (2)The Roman Catholic Diocese of Westminster (3) The Secretary of State for Education  EWHC 3622 (Admin) – read judgment
This was an application for judicial review of decisions of the defendant Council to approve proposals put forward by the Roman Catholic Diocese of Westminster to establish a voluntary aided secondary school designated by the Secretary of State as a school having a religious character as a school for Roman Catholics and a similarly designated primary school.
The British Humanist Association took the claim on behalf of non-religious people. The second claimant was an association of local residents which campaigns to seek to ensure that any new state schools which open in the Council’s area operate open admissions policies. The claimants’ concern was that the Council’s decisions to allow the opening of the new Catholic primary and secondary schools would mean that new schools funded by the state will operate admissions policies focused predominantly on children who are Catholic, rather than being more widely available to children in the Council’s area.
A voluntary aided school is a form of maintained school (i.e. maintained by a local authority). An Academy is a school that is funded by central government.
The claim for judicial review was put forward on two bases.
- the claimants said that the Council was under a duty under section 6A of the Education Act 2006 to invite proposals for the establishment of an Academy, with the effect that it was not entitled to approve the proposals of the Diocese made under section 11 of that Act for the formation of the two schools as voluntary aided schools; and, in the alternative,
- if in fact the Council had not identified a need for two new schools (as the Council maintains it did not), the public consultation it carried out in relation to the two proposals was flawed in that, the claimants say, it gave the false impression that the Council had identified such a need and so materially misled those being consulted.
If the Council were required to desist from its approval of the Diocese proposals, the claimants argued that it would have to agree to the establishment of Academies and a significantly greater proportion of the places at those Academy schools would be available to children who are not Catholic.
The Council’s case in answer to the claim was that it did not think there was a “need” (in the sense in which that term is used in section 6A of the 2006 Act) for any new school in the borough. Therefore it was not subject to any duty under section 6A to invite proposals to establish Academies. It maintained that its public consultation about the use of the Site was not misleading or unlawful in any way.
At the heart of this case is the highly controversial issue of state funded faith schools. But Sales J is at pains to emphasise that he was not called upon to rule upon these wider social questions. The challenge to the Council’s decision was considered solely on the basis of the technical rules in the Education Act, i.e. what the local authority was lawfully entitled to decide.
The challenge was dismissed.
The Court’s reasoning
Sales J found that the Council had made clear its provisional view that there was not a current need for a new state school in its area and its provisional view that introduction of the Catholic schools proposed by the Diocese would be beneficial, in that they would increase diversity of school provision. Section 6A of the Education Act, which would have triggered an obligation to consider proposals for an Academy, was therefore not engaged as no general need had been identified. The judge did not agree with the claimants’ case that
whenever a local authority considers that it might be beneficial for there to be additional educational provision in the form of establishing a new school in its area, it must be taken to think that there is a “need” to establish a new school, in the sense in which that term is used in section 6A.
In short, he did not accept the claimants’ argument that the duty in section 6A trumps any other procedure under Part 2 of the 2006 Act. There was no clear language in the Act to suggest that Parliament had intended that provision to operate to disapply the obligation of a local authority to consider other proposals (for schools apart from Academies) on their merits. As for the second part of the challenge, the attack on the lack of reasons in the consultation paper, there was no further mileage for the claimants. The judge did not agree that there was anything misleading in the Council’s paper. In particular, it contained no express statement that the Council considered that there was a current “need” (in the technical section 6A sense) for new schools to be established on the Site; nor was there any implied representation to that effect.
The judge was careful to avoid any discussion of the faith school issue itself. But the broader argument behind the BHA’s claim remains unanswered. The continued subsidy for state schools that operate their admissions policy on the basis of families’ religious creed remains a shameful anachronism in modern Britain. As Nick Cohen asks in this week’s Observer:
By what right do religious bureaucrats tell parents, who have paid their taxes and obeyd the law, that their children cannot attend a state-funded school because they are not devotees of the required sect? How can Britain criticise religious discrimination in other countries when it provides exemptions that allow religious schools to hire, discipline and fire teachers because the church disapproves their beliefs or sexual orientation or marital status? (We’re now so secular, but religion still gets in the way, The Observer 16.12.12)
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