QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of
(1) Jeremy Fox
(2) A (by his father and litigation friend JEREMY FOX)
(3) KATE BIELBY
(4) DAISY WELLSTED (by her mother and litigation friend KATE
(5) SANDRA REID
(6) B (acting by her mother and litigation friend SANDRA REID)
|- and -
Secretary of State for Education
Gemma White (instructed by Government Legal Department) for the Defendant
Hearing date: 10 November 2015
Crown Copyright ©
Mr Justice Warby :
"By setting out the range of subject content and areas of study for GCSE specifications in religious studies, the subject content is consistent with the requirements for the statutory provision of religious education in current legislation as it applies to different types of school."
(1) "If a government department, in a field of administration in which it exercises responsibility, promulgates in a public document, albeit nonstatutory in form, advice which is erroneous in law, then the court, in proceedings in appropriate form commenced by an applicant or plaintiff who possesses the necessary locus standi has jurisdiction to correct the error of law by an appropriate declaration": Gillick 194 (Lord Bridge).
(2) "It is well established that a policy which, if followed, would lead to unlawful acts or decisions, or which permits or encourages such acts, will itself be unlawful": Tabbakh  (Richards J, summarising one ground of Cranston J's decision in that case, without disapproval: see ibid., ); Letts -.
(3) A policy, or guidance, may encourage unlawful acts by dint of being "not clear and unambiguous" and silent as to important circumstances, or "materially unclear or misleading": Letts  citing R(A) v Secretary of State for Health  EWCA Civ 225 ,  (Ward LJ).
(1) Should the challenge fail as speculative, premature, or misdirected, or for some combination of these reasons?
(2) If not, does The Assertion encourage those responsible for determining what is actually taught on GCSE courses in schools to believe, or to act on the basis, that taking an RS GCSE course containing the prescribed Subject Content would be enough to fulfil the statutory requirements for RE?
(3) If so, is The Assertion right or wrong? Would delivery of the prescribed Subject Content in fact fulfil the statutory requirements for RE set out in current legislation?
THE LEGAL FRAMEWORK
The education statutes
"(a) promotes the spiritual, moral, cultural, social, mental and physical development of pupils and of society, and
(b) prepares pupils for the opportunities, responsibilities and experiences of later life".
"(1) The curriculum for every maintained school in England shall comprise a basic curriculum which includes—
(a) provision for religious education for all registered pupils at the school …"
"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 practice of the other principal religions represented in Great Britain."
Human Rights law
"Freedom of thought, conscience and religion
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance."
"Right to education
No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions."
"50. … the second sentence of Article 2 must be read together with the first which enshrines the right of everyone to education. It is on to this fundamental right that is grafted the right of parents to respect for their religious and philosophical convictions…
The second sentence of Article 2 aims in short at safeguarding the possibility of pluralism in education, which possibility is essential for the preservation of the "democratic society" as conceived by the Convention. In view of the power of the modern State, it is above all through State teaching that this aim must be realised.
52. As is shown by its very structure, Article 2 constitutes a whole that is dominated by its first sentence. By binding themselves not to "deny the right to education", the Contracting States guarantee to anyone within their jurisdiction "a right of access to educational institutions existing at a given time" and "the possibility of drawing", by "official recognition of the studies which he has completed", "profit from the education received" (judgment of 23 July 1968 on the merits of the "Belgian Linguistic" case, Series A, no. 6, pp. 30–32, §§ 3–5).
The right set out in the second sentence of Article 2 is an adjunct of this fundamental right to education (paragraph 50 above). It is in the discharge of a natural duty towards their children—parents being primarily responsible for the "education and teaching' of their children—that parents may require the State to respect their religious and philosophical convictions. Their right thus corresponds to a responsibility closely linked to the enjoyment and the exercise of the right to education."
"It follows in the first place from the preceding paragraph that the setting and planning of the curriculum fall in principle within the competence of the Contracting States. This mainly involves questions of expediency on which it is not for the Court to rule and whose solution may legitimately vary according to the country and the era. In particular, the second sentence of Article 2 of the Protocol does not prevent States from imparting through teaching or education information or knowledge of a directly or indirectly religious or philosophical kind. It does not even permit parents to object to the integration of such teaching or education in the school curriculum, for otherwise all institutionalised teaching would run the risk of proving impracticable. In fact, it seems very difficult for many subjects taught at school not to have, to a greater or lesser extent, some philosophical complexion or implications. The same is true of religious affinities if one remembers the existence of religions forming a very broad dogmatic and moral entity which has or may have answers to every question of a philosophical, cosmological or moral nature.
The second sentence of Article 2 implies on the other hand that the State, in fulfilling the functions assumed by it in regard to education and teaching, must take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner. The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents' religious and philosophical convictions. That is the limit that must not be exceeded."
(1) As Mr Wolfe points out, the Grand Chamber treated the requirement to safeguard the possibility of pluralism (Kjeldsen , Folgero [84(b)]) as separate and distinct from the prohibition on indoctrination (Kjeldsen , Folgero [84(h)]).
(2) At  the court identified the question to be determined in this way, using the language of Kjeldsen :"whether the respondent state … had taken care that information or knowledge included in the curriculum be conveyed in an objective, critical and pluralistic manner or whether it had pursued an aim of indoctrination not respecting the applicant parents' religious and philosophical convictions and thereby had transgressed the limit implied by Article 2 of Protocol 1."
(3) If that might appear on its face to be a binary, either/or question, para  indicates otherwise. It is in that paragraph that the Court stated its overall conclusion, in this way:"102 Against this background, notwithstanding the many laudable legislative purposes stated in connection with the introduction of the KRL subject in the ordinary primary and lower secondary schools, it does not appear that the respondent State took sufficient care that information and knowledge included in the curriculum be conveyed in an objective, critical and pluralistic manner for the purposes of Art.2 of Protocol No.1.Accordingly, the Court finds that the refusal to grant the applicant parents full exemption from the KRL subject for their children gave rise to a violation of Art.2 of Protocol No.1."
(4) There is no finding here or elsewhere in the judgment that the state had "pursued an aim of indoctrination". On the contrary. At - the Court had expressly identified the intentions which the state sought to implement through the legislation concerned, and held not only that these were "consonant with the principles of pluralism and objectivity" embodied in A2P1, but also that they were reflected in the legislation as enacted.
(5) The conclusion to be drawn is that the requirements of A2P1 will be infringed by the state if it fails in its duty to take care that the educational provision it makes is conveyed in an objective, critical and (importantly for the present case) pluralistic manner, even if it does not go so far as – in the ordinary sense of the phrase - to "pursue the aim of indoctrination". That conclusion is required, it seems to me, both by the way in which the Court's conclusion is expressed and in order to give real meaning to the duty of care delineated by the court in these cases. It is also a conclusion consistent with the Court's approach in Zengin, which I consider below.
"(c) Article 2 of Protocol No.1 does not permit a distinction to be drawn between religious instruction and other subjects. It enjoins the State to respect parents' convictions, be they religious or philosophical, throughout the entire state education programme. … The verb 'respect' means more than 'acknowledge' or 'take into account'. In addition to a primarily negative undertaking, it implies some positive obligation on the part of the State."
(f) Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities …
"In view of the place occupied by Christianity in the national history and tradition of the respondent State, this must be regarded as falling within the respondent State's margin of appreciation in planning and setting the curriculum."
"54. … in a pluralist, democratic society, the State's duty of impartiality and neutrality towards various religions, faiths and beliefs is incompatible with any assessment by the state of the legitimacy of religious beliefs or the ways in which those beliefs are expressed.
55. Such an interpretation of the second sentence of Art.2 of Protocol No.1 is consistent at one and the same time with the first sentence of the same provision, with Arts 8–10 of the Convention and with the general spirit of the Convention itself, an instrument designed to maintain and promote the ideals and values of a democratic society. This is particularly true in that teaching is an integral part of the process whereby a school seeks to achieve the object for which it was established, including the development and moulding of the character and mental powers of its pupils as well as their personal independence."
"… the requirements of the notion of "respect", which also appears in art.8 of the Convention, vary considerably from case to case, given the diversity of practices followed and the situations obtaining in the contracting states. As a result, the contracting states enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals. In the context of art.2 of Protocol No.1 that concept implies in particular that this provision cannot be interpreted to mean that parents can require the state to provide a particular form of teaching."
"The atheist, the agnostic, and the sceptic are as much entitled to freedom to hold and manifest their beliefs as the theist. These beliefs are placed on equal footing for the purposes of this guaranteed freedom….
…the position is much the same with regard to the respect guaranteed to a parent's 'religious and philosophical convictions' under article 2 of the First Protocol."
The 2010 Guidance
"Breadth and depth in RE for all pupils can be achieved if the following are taken into account:
- Pupils should develop understanding of concepts and mastery of skills to make sense of religion and belief, at an appropriate level of challenge for their age.
- Building on the statutory requirements, it is recommended that there should be a wide ranging study of religion and belief across the key stages as a whole."
Two features of this passage are worth noting. First, that reference is made to "religion and belief" (emphasis added). Secondly, that the recommendation is for wide ranging study "across the key stages as a whole". As is common knowledge, the "key stages" are stages of the educational process between the ages of 5 and 16. There are four key stages, defined in s 82(1) of the 2002 Act. This case is concerned with Key Stage 4.
The 2013 Framework
"All children need to acquire core knowledge and understanding of the beliefs and practices of the religions and worldviews which not only shape their history and culture but which guide their own development. The modern world needs young people who are sufficiently confident in their own beliefs and values that they can respect the religious and cultural differences of others, and contribute to a cohesive and compassionate society."
"Purpose of study
Religious education contributes dynamically to children and young people's education in schools by provoking challenging questions about meaning and purpose in life, beliefs about God, ultimate reality, issues of right and wrong and what it means to be human" In RE they learn about and from religions and worldviews in local, national and global contexts, to discover, explore and consider different answers to these questions.
The curriculum for RE aims to ensure that all pupils:
A. Know about and understand a range of religions and worldviews so that they can
- describe, explain and analyse beliefs and practices, recognising the diversity which exists within and between communities and amongst individuals; …"
"The phrase 'religions and worldviews' is used in this document to refer to Christianity, other principal religions represented in Britain, smaller religious communities and non-religious worldviews such as Humanism. The phrase is meant to be inclusive, and its precise meaning depends on the context in which it occurs, eg in terms of belief, practice or identity."
The Consultation Response
"We welcome respondents' broad support for the requirement to study two religions. We do not feel this is discriminatory to any particular faith group … The new GCSE … also does not have to determine the whole of the teaching at KS4 in faith schools."
This is characterised by Mr Wolfe as an "unashamed" indication that the new qualification is to be about the study of religion. The Consultation Response focuses here on equity between religious faiths, treating non-believers as "subordinate", he submits.
"After careful consideration, we have decided not to include the optional systematic study of non-religious beliefs alongside religious beliefs in the subject content. We believe this would not be a suitable addition to the content, given the nature and purpose of a qualification in religious studies. Students already have the opportunity to learn about non-religious world views, such as humanism and atheism, alongside religious beliefs, and we have emphasised this opportunity in the content."
The Subject Content
"1. GCSE subject content sets out the knowledge, understanding and skills common to all GCSE specifications in a given subject. It provides the framework within which awarding organisations create the detail of their specifications, so ensuring progression from Key Stage 3 and the possibilities for progression to GCE A level.
2. By setting out the range of subject content and areas of study for GCSE specifications in religious studies, the subject content is consistent with the requirements for the statutory provision for religious education in current legislation as it applies to different types of school."
"5. Specifications may offer alternative routes through the qualification, drawing from the content set out below in order to provide students with one or more of the following programmes of study:
• Study of religion: the beliefs and teachings and practices (topics a and b from Part One) in relation to two religions (making up 50% of the overall qualification weighting, shared equally between the two religions); AND either:
• a study of four themes from Part Two adopting a textual approach (50% of the qualification), OR
• a study of four themes from Part Two adopting the approach of religious, philosophical and ethical studies in the modern world (50% of the qualification), OR
• a study of four themes from Part Two adopting a textual approach for two of those themes and the approach of religious, philosophical and ethical studies in the modern world for two themes (50% of the qualification)
• study all four topics from Part One in relation to a primary religion (50% of the overall qualification weighting); AND beliefs and teachings and practices (topics a and b from Part One) in relation to a second religion (25% of the qualification); AND either:
• two themes from Part Two, adopting a textual approach (25% of the qualification), OR
• two themes from Part Two, adopting the approach of religious, philosophical and ethical studies in the modern world (25% of the qualification)
6. Throughout all of the programmes of study, specifications should include the study of common and divergent views within traditions in the way beliefs and teachings are understood and expressed.
7. Specifications may offer students the ability to study the themes within Part 2 in relation to differing perspectives. The differing perspectives may be provided in the following ways:
• Different perspectives from within one particular religion studied in part 1 e.g. a Baptist perspective and an Anglican perspective on a theme
• Different perspectives between different religions e.g. a Buddhist perspective and a Hindu perspective on a theme
8. In addition, all specifications must require students to demonstrate knowledge and understanding of the fact that:
• the religious traditions of Great Britain are, in the main, Christian
• religious traditions in Great Britain are diverse and include the following religions: Christianity, Buddhism, Hinduism, Islam, Judaism and Sikhism, as well as other religions and non-religious beliefs, such as atheism and humanism
9. Awarding organisations can develop, combine or cross reference the required content in any way appropriate to the specification, as long as the overall criteria are met."
"a. accounts in texts of key events in the lives of founders or important religious figures, their significance and influence, including on life in the 21st century. How varied interpretations of the meaning of such texts may give rise to diversity within traditions (textual study only)
b. the significance, importance and influence of religious texts as a source for religious law making and codes for living in the 21st century. How varied interpretations of the meaning of these sources may give rise to diversity within traditions (textual study only)
c. the significance, importance and influence of stories and/or parables that communicate religious, moral and spiritual truths. How varied interpretations of the meaning of such texts may give rise to diversity within traditions (textual study only)
d. relationships and families, religious teachings about the nature and purpose of families in the 21st century, sex, marriage, cohabitation and divorce. Issues related to the nature and purpose of families; roles of men and women; equality; gender prejudice and discrimination. How varied interpretations of sources and/or of teachings may give rise to diversity within traditions (textual study or religious, philosophical and ethical studies in the modern world)
e. religious views of the world, including their relationship to scientific views; beliefs about death and an afterlife; explanations of the origins and value of the universe and of human life. How varied interpretations of sources and/or of teachings may give rise to diversity within traditions (textual study or religious, philosophical and ethical studies in the modern world)
f. the existence of God, gods and ultimate reality, and ways in which God, gods or ultimate reality might be understood; through revelation, visions, miracles or enlightenment. How varied interpretations of sources or of teachings may give rise to diversity within traditions (textual study or religious, philosophical and ethical studies in the modern world)
g. religion, peace and conflict; violence, war, pacifism, terrorism, just war theory, holy war; the role of religion and belief in 21st century conflict and peace making; the concepts of justice, forgiveness and reconciliation (religious, philosophical and ethical studies in the modern world only)
h. crime and punishment; causes of crime, aims of punishment, the concepts of forgiveness, retribution, deterrence, reformation; the death penalty, treatment of criminals; good, evil and suffering (religious, philosophical and ethical studies in the modern world only)
i. dialogue within and between religions and non-religious beliefs; how those with religious and non-religious beliefs respond to critiques of their beliefs including the study of a range of attitudes towards those with different religious views – inclusivist, exclusivist and pluralist approaches (religious, philosophical and ethical studies in the modern world only)
j. religion, human rights and social justice; issues of equality and freedom of religion or belief; prejudice and discrimination in religion and belief; human rights; wealth and poverty; racial prejudice and discrimination (religious, philosophical and ethical studies in the modern world only)".
14. If following a textual studies approach, all students must investigate primary religious texts from one or both of the religions they have studied for Part One: Study of Religions.
Religious, philosophical and ethical studies in the modern world
18. If the approach to thematic studies is through religious, philosophical and ethical studies in the modern world approach, students must be required to include a study of different philosophical and ethical arguments and their impact and influence in the modern world. They should demonstrate the depth of their understanding of religion through the application of teachings from religions, beliefs and through specific references to sources of wisdom and authority including scripture and/or sacred texts as appropriate. These texts might include, for example: the Bible; Qur'an; Torah; The Pali Canon; Vedas; or Guru Granth Sahib. Other sources of wisdom and authority might include, for example: St Augustine of Hippo; Maimonides; Archbishop Thomas Cranmer; The historical Buddha; Gautama/Shakyamuni; Shankara; or Guru Nanak). Further examples of sources of wisdom and authority can be found in the annexes to this document."
The Equality Analyis
"Increased religious content across GCSE and A level
The religious content in the new GCSE and A level has been increased. The new GCSE requires students to have an understanding of the beliefs, teachings and sources of wisdom/authority of two religions, and to study religious texts or engage in a debate about philosophy and ethics which is grounded in their understanding of one or two religions…
"While statistics show that philosophy and ethics are certainly the most popular areas of study both at GCSE and particularly at A level, many current Religious Studies specifications have been roundly criticised by Ofqual, Ofsted and religious groups for the way in which they reward students for engaging in topical debates with virtually no understanding of religious teachings, beliefs or texts. Research shows that exclusive focus on these areas has led to students having a distorted, simplistic and superficial understanding of religion and religious beliefs and undermines the integrity of the subject as a whole.
Students will still be able to spend up to half of their time engaging with philosophical and ethical issues at GCSE."
The main concern raised by those who thought there would be a negative impact was the perceived omission of non-religious worldviews including humanism and atheism…
A majority of those who were concerned about the lack of scope to study non-religious worldviews called for students to be able to systematically study a non-religious worldview such as humanism and atheism…
The revised GCSE and A level content will be inclusive of a wide range of religious beliefs as well as non-religious beliefs. At GCSE all students will be expected to learn about non-religious beliefs as part of the main, mandatory content, which is a significant improvement from the current RS GCSE content criteria which does not require this…"
"We carefully considered responses urging that the qualification should give students greater opportunity to study non-religious beliefs. Students already have the opportunity to learn about non-religious worldviews alongside religious beliefs, such as humanism and atheism, in the content. However, as these are qualifications in Religious Studies, it is right that the content primarily focuses on developing students' understanding of different religious beliefs. This is to stop current practice whereby students are rewarded for engaging in topical debates with virtually no understanding of religious teachings, beliefs or texts. A simultaneous focus on humanism would necessarily detract from an in-depth treatment of religion and thus on the overall rigour and standard of the RS qualification. Introducing a systematic study of humanism at GCSE and A level could potentially lead to the development of qualifications that are predominantly, or even solely, focused on the study of humanism at the expense of religion…"
The First Issue: should the challenge fail as speculative, premature, or misdirected, or for some combination of these reasons?
"Certainly, abuses can occur as to the manner in which the provisions in force are applied by a given school or teacher and the competent authorities have a duty to take the utmost care to see to it that parents' religious and philosophical convictions are not disregarded at this level by carelessness, lack of judgment or misplaced proselytism."
The Second Issue: Does The Assertion encourage the reader to adopt an approach which collapses RE into RS, or mislead them into doing so?
The Third Issue: Would delivery of the prescribed Subject Content satisfy the state's legal obligations for RE?