Aspects of the Tribunal’s decision in the Beis Aharon Trust case relating to religious rights

May 19th, 2016 by Tom Cross

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.


Term-time holiday prosecutions

May 14th, 2016 by Rachel Kamm

I blogged back in November about the Isle of Wight Council’s pending appeal to the High Court against the magistrates’ decision that Mr Platt had not committed a criminal offence by taking his child out of school for seven days in term-time for a holiday. In that post, I set out the legal framework and commented that it does not fix a particular number of days that count as regular attendance, that presumably whether or not attendance was regular would depend on the pattern of attendance rather than just the number of days ,and that it would be interesting to see whether the Court found that an unauthorised absence of seven consecutive days counts as regular attendance in this case (in the context of the child’s attendance record over a longer period).

The High Court has upheld the magistrates’ decision, finding that the magistrates were entitled to take into account the wider picture of the child’s attendance. There has been extensive media coverage of the decision (e.g. The Times (pay wall), Guardian, BBC and Telegraph) and we will post a link to the judgment once it is available. In the meantime, parents should be cautious about treating this as High Court endorsement of any term-time holiday – each case still will turn on its facts.

11KBW’s Paul Greatorex represented Mr Platt.

Rachel Kamm, 11KBW, @kamm11KBW 



Government drops plans to legislate to make all schools academies

May 6th, 2016 by Rachel Kamm

The Government has announced today that, whilst it is still committed to every school becoming an academy in the next six years, it will not legislate to require blanket conversion. Instead, it proposes legislating to “trigger conversion of all schools within a local authority in 2 specific circumstances: 

  • firstly, where it is clear that the local authority can no longer viably support its remaining schools because a critical mass of schools in that area has converted. Under this mechanism a local authority will also be able to request the Department for Education converts all of its remaining schools 
  • secondly, where the local authority consistently fails to meet a minimum performance threshold across its schools, demonstrating an inability to bring about meaningful school improvement“.

Rachel Kamm, 11KBW, @kamm11KBW 


University freedom of speech

April 29th, 2016 by Peter Oldham QC

In R ota Ben-dor v University of Southampton [2016] EWHC 953, a judgment handed down earlier this week, the Administrative Court dismissed a challenge that the University had breached s 43 of the Education (No 2) Act 1986 and Arts 10 and 11 of the ECHR in barring a conference entitled “International Law and State of Israel: Legitimacy, Responsibility and Exceptionalism” unless the organisers paid for the added security arrangements needed to meet assessed risks of disturbance to which the conference might give rise.

S 43 provides:-

43.— Freedom of speech in universities, polytechnics and colleges.

(1) Every individual and body of persons concerned in the government of any establishment to which this section applies shall take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers.

Under s 43(3), the University had to have a code for facilitating the exercise of the s 43(1) duty.

Art 10 concerns freedom of expression, and Art 11 freedom of assembly and association.  Neither are absolute rights, but the Supreme Court in R ota Lord Carlile of Berriew v SSHD [2014] 3 WLR 1404 unsurprisingly said that freedom of expression was an essential foundation of democracy.

The judge dismissed the claim.  The University had relied on evidence-based risk assessments, both internal and from the police, which had warned of a real risk of disturbances.  It had not barred the conference absolutely.  It had followed its s 43(3) code. In short it had acted proportionately in the interference of rights of freedom of speech and assembly.

Peter Oldham QC


House of Commons briefing paper – academies

April 12th, 2016 by Rachel Kamm

The House of Commons Library has published a briefing paper: Every School an Academy: The White Paper Proposals. It’s a useful summary of the legal and policy background to the proposal that every school will be an academy by 2022. There’s also a section on the reactions to the proposal and concerns raised.  Read more »


Guidance on coasting schools

April 7th, 2016 by Rachel Kamm

In all of the excitement about the proposals in the White Paper for all schools to become academies, there has been little discussion about the Guidance for local authorities and RSCs on Schools causing concern – Intervening in failing, underperforming and coasting schools. Alongside this guidance, the Government has published its response to the consultation exercise, which includes a useful summary of the amendments that the Government made to the Bill during its Parliamentary passage.  Read more »


Educational Excellence Everywhere?

March 26th, 2016 by Rachel Kamm

The dust has started to settle on the Government’s education white paper: educational excellence everywhere. After a relatively slow start, the number of newspaper articles and interest on social media has picked up. Perhaps the most interesting proposals are to: Read more »


Sixth Form Industrial Action to go ahead, but the Secretary of State for Education was entitled to bring her challenge

March 15th, 2016 by Claire Halas

Secretary of State for Education v NUT (14 March 2016, Kerr J)

The Court has decided that a challenge to the lawfulness of strike action may be brought by the Secretary of State for Education upon an application for an interim declaration pursuant to CPR r25.1(1)(b), even though the Secretary of State had no legal cause of action, or ‘lis’, against the union for inducement of breaches of contract; any such claim resting with the employer. In the instant case, the NUT called upon teachers in sixth form colleges to undertake a day of strike action. The teachers were employed directly by the colleges, not by the Secretary of State. Nonetheless, in what is understood to be the first case of its kind, the Court (Kerr J) accepted that the Secretary of State had standing to bring the challenge in light of the public interest involved and her status as both the target of the strike action and guardian of education in England and Wales. Although, on the facts, a declaration was not granted, and the strike will be going ahead, this case represents recognition of the Court’s willingness to grant declarations, including interim declarations, in appropriate cases.

Clive Sheldon QC and Marcus Pilgerstorfer represented the Secretary of State.


School closure consultation

March 8th, 2016 by James Goudie QC

The School Standards and Organisation (Wales) Act 2013 sets out the process for establishing, altering and discontinuing schools in Wales. R (Edwards) v Flintshire County Council [2016] EWHC 459 (Admin) was an unsuccessful judicial review challenge of a decision by the Defendant LEA to issue statutory notices under Section 48 of that Act to close a High School.  The ground of challenge was that the Council failed, in its consultation process, to comply with its obligation under Section 38(4) of the Act to act in accordance with the Welsh Ministers’ Code of School Organisation. The Act requires the Welsh Ministers to issue a code on school organisation. It may contain requirements and/or guidelines.  By Section 38(4), those who exercise functions in relation to school organisation in Wales, including local education authorities, must, when exercising those functions, act in accordance with any relevant requirements contained in the Code, and have regard to any relevant guidelines contained in it.  Section 48 requires a proposer for change to publish the proposals, consult and publish a report on the consultation, all in accordance with the published code.  In April 2013, the Welsh Ministers published a Code on School Organisation.  It came into force on 1 October 2013. Read more »


School places and local authorities’ power to provide them

February 29th, 2016 by Peter Oldham QC

The Local Government Association and the DfE are in a row about school places.   The LGA says that there is a looming crisis, with huge numbers of secondaries oversubscribed and primaries hard pressed to meet growing population trends.  The DfE has accused the LGA of scaremongering, and says that sufficient places can be assured through appropriate planning. It says that it allocates funding well in advance so that local needs can be met.

This throws the spotlight on authorities’ powers and duties to provide school places. They have to ensure a sufficiency of places in their area under section 14 of the Education Act 1996.  That power has to be exercised with a view to securing diversity in the provision of schools: section 14(3A).  Section 14A requires them to consider parental representations as to the exercise of the section 14 power. 

Section 6A(1) of the Education and Inspections Act 2006 provides:-

6A  Requirement to seek proposals for establishment of new Academies

(1)     If a local authority in England think a new school needs to be established in their area, they must seek proposals for the establishment of an Academy.

The effect of this section, along with sections 7 and 10 of the 2006 Act, is that authorities cannot publish proposals of their own to set up a maintained school unless (1) SoS’s consent is obtained and (2) the proposed school would replace another school or there has been no response, or no approved response, to an invitation for proposals from anyone else.

Peter Oldham QC