For those, like me, who keep a close eye on the development of the law on religious rights and freedoms, the decision of the First-Tier Tribunal in Beis Aharon Trust v Secretary of State for Education is certainly eye-catching.
Beis Aharon School is an independent Orthodox Jewish school in Hackney. It appealed against a decision of the Secretary of State ordering it to stop admitting new pupils from 23 October 2015 because it was failing to meet a number of the legislative standards applying to all independent schools (religious or not).
The Tribunal upheld the Secretary of State’s order.
But a number of the things which the Tribunal decided were against the standards related to the religion of those at the school. I mention only three.
First, there are two duties in the standards (2(1)(a) and 5(vi)) about encouraging respect for other people, paying “particular regard” to the protected characteristics in the Equality Act 2010 (such as sex, sexual orientation, and so forth). The Tribunal considered that the school was not meeting these standards because it obscured, in educational materials, images of parts of the bodies of women and girls who were dressed in a manner which pupils would encounter in general life, even though the school regarded the images as “immodest” or “impure”. The Tribunal thought that obscuring such images “failed to encourage respect for women and girls for reasons of their gender”.
Secondly, the Tribunal considered that the school was in breach of the same standards because it “did not acknowledge to pupils, or enable them to acquire any awareness of [sic], that some people are different because of sexual orientation or gender reassignment”. This prevented the school “from encouraging respect for people who have such characteristics”. The Tribunal commented that it was “not necessary to provide information about sex to inform pupils that some people have same sex relationships or can have a reassigned gender and are to be respected”. It was, according to the Tribunal, “no defence to say that it is incompatible with the faith of the institution”.
Thirdly, in relation to the standard which requires that independent schools must “actively promote the fundamental British values of democracy … and mutual respect and tolerance of those with different faiths and beliefs”, the Tribunal held that this requires “something more than acknowledging other faiths exist”. It “requires at least an explanation which pupils will understand so that they know that members of different faiths have different beliefs, customs and values, and something about those matters”.
The Tribunal appears to have decided that, as a matter of interpreting the independent school standards, all such schools, whether religious or not, must be prepared to use educational materials showing unclothed parts of female bodies, provide at least some teaching to pupils about different sexual orientations and gender reassignment, and provide at least some teaching about the customs and values of members of different faiths, whether or not any or all of those matters conflict with the religious beliefs or practices of those at the school.
It may also be seen from the decision that the Tribunal’s decision that this particular school was in breach of the standards was reached without consideration of Article 9 of the European Convention on Human Rights (in accordance with which the Tribunal was legally obliged to act), which provides for a qualified right to manifest one’s religious beliefs, including in schools.
Will the case go further? Or will Tribunals adopt a similar approach in future cases? We’ll have to wait and see.
Paul Greatorex represented Beis Aharon Trust and Rachel Kamm represented the Secretary of State.