Yesterday’s decision in R ota HA v Hampstead School concerns the power to transfer a pupil to off-site provision for behavioural reasons in section 29A of the Education Act 2002 and the Education (Educational Provision for Improving Behaviour) Regulations 2010. Section 29A says that the power rests with the governing body, but relying on DFE Guidance the judge held that the headteacher can exercise the power under delegated authority. However the claim succeeded because the school breached notification provisions under the Regulations, and failed to conduct a review.
The House of Lords has made minor amendments (proposed by the Government) to the Education and Adoption Bill at the Third Reading. The amendments will be considered by the House of Commons on 23 February 2016, as the Bill enters the Ping Pong stage.
Following Clive’s interesting and informative post just now, a word or two more. The highly fact sensitive approach adopted in R ota X v Y School is also apparent in the employment case of Azmi v Kirklees BC  IRLR 434. Here a primary school teaching assistant wished to wear the niqab in the classroom. The school declined her request. Many of her pupils had English as a second language and the school believed that they should be able to see the teacher’s face as she spoke, so as to increase their proficiency. Applying the same sort of approach that Silber J applied in R ot a X v Y School, the employment tribunal rejected her claim that the school had discriminated against her on grounds of her religion or belief in declining to let her wear the niqab in the classroom. The Employment Appeal Tribunal upheld the ET’s decision.
Peter Oldham QC – Peter appeared in both Azmi v Kirklees BC and R ota X v Y School
Last week the Prime Minister entered into the debate on the wearing of veils by Muslim women in schools (http://www.independent.co.uk/news/uk/politics/cameron-will-back-uk-muslim-veil-bans-as-he-announces-new-measures-to-tackle-segregation-a6820491.html). This week, it is the turn of the Chief Inspector of Schools, Sir Michael Wilshire. The Chief Inspector has said that:
“The Prime Minister and Secretary of State are right to give their backing to schools and other institutions which insist on removing face coverings when it makes sense to do so.
I am concerned that some heads and principals who are trying to restrict the wearing of the full veil in certain circumstances are coming under pressure from others to relax their policy. I want to assure these leaders that they can rely on my full backing for the stance they are taking.
I have also made clear to my inspectors that where leaders are condoning the wearing of the face veil by staff members or by pupils when this is clearly hindering communication and effective teaching, they should give consideration to judging the school as inadequate.
I am determined to ensure that discrimination, including on the grounds of gender, has no place in our classrooms. We want our schools, whether faith schools or non-faith schools, to prepare their pupils equally for life in 21st century Britain. We need to be confident our children’s education and future prospects are not being harmed in any way.”
Since my last update on 21 October 2015, the Education and Adoption Bill has been through the committee and report stages in the Lords. The next step will be Lords third reading, on a date to be confirmed.
After the committee stage, Lord Nash wrote to the Delegated Powers and Regulatory Reform Committee about the proposed powers in respect of coasting schools and explained that the Bill would be amended as follows:
- the Bill will require the Secretary of State to make regulations about the definition of a coasting school (rather than just giving the SoS the power to do so);
- “it may be unintentionally misleading to suggest that the Secretary of State will notify a school when she
“considers” it to be coasting and we will therefore amend the Bill to be clear that a school will be notified when “it is coasting” as per the definition set out in regulations“;
- the Bill will “allow the Secretary of State, through regulations, to disapply the coasting definition to certain types of schools“. The SoS intends to disapply the definition to maintained nursery schools and at the time it was consulting on other types;
- the coasting regulations will be subjected to the affirmative procedure when they are first laid (but not for subsequent versions); and
- “we will continue to consider whether it is appropriate to amend primary legislation [to include more detail on the coasting criteria] following the conclusion of the consultation“.
These amendments were introduced at the Lords report stage and agreed.
The consultation on coasting schools ended on 18 December 2015 and the Government’s response is awaited.
This is the latest instalment in the long-running tale about students who are not eligible for student loans because of their immigration status.
In the summer, the Supreme Court found that a student loans eligibility requirement that a student be settled in the UK breached their rights under Article 14 read with Article 2 of the First Protocol of the ECHR: R (Tigere) v Secretary of State for Business, Innovation and Skills  UKSC 57. I posted it about the decision here: in summary, the Court found that the settlement criterion for student loans discriminated on ground of immigration status in the enjoyment of the right to education. The regulations in question pursued a legitimate aim, namely targeting resources on those students who were likely to stay in the UK to complete their education and afterwards contribute to the UK economy through their enhanced skills and the taxes they pay. However, the means chosen to pursue that legitimate aim were not rationally connected to it; Ms Tigere had discretionary leave to remain in the UK and an established private life here. A bright line rule which more closely fitted the legitimate aims of the measure could have been chosen. Read more »
A Social Market Foundation report entitled “Educational inequalities in England and Wales” has just been published and it’s available here. It contains a great deal of fascinating information, though quite of a lot of it (as you might expect) is not great news.
The SMF looked at inequalities in educational attainment at ages 11 and 16 and how changes in patterns of inequality have evolved over time, by reference to the influence of region, family income, gender and ethnicity.
Regional inequalities are reported to have “remained stubborn and in some cases worsened”, with London and the South East out-performing the rest of the country in GCSEs. The difference in achievement between the richest and the poorest stayed “persistently large” between the 1980s and the 2000s. Patterns of ethnic inequality have greatly changed but a “similar level of unevenness” between ethnic groups remains. Girls outperform boys, and the gender gap has widened.
Last November I did a blog post about the case of R (Fox) v Secretary of State for Education  EWHC 3404 (Admin) in which the High Court found that government guidance about religious education was in one respect unlawful.
The DfE has now issued a “guidance note” to take account of that decision. It is very short, just 2 pages long. The first page describes the court’s decision as having been on a “narrow, technical point” and reiterates government’s policy on the teaching of RE which it says remains unchanged. The second page then sets out its response to the High Court’s decision as follows (footnotes removed):
“The judgement identifies a technical, legal concern with paragraph 2 of the introduction to the Religious Studies (RS) GCSE subject content:
“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.”
The Court concluded that this amounted to an assurance to all schools without a religious character that they could always wholly rely on any and all possible routes through the RS GCSE to ensure compliance with their statutory responsibilities.
This was not how the paragraph was ever intended to be read. We intended it simply to reflect that the subject content is not incompatible with those statutory responsibilities and may act as a possible element in complying with those responsibilities.
Paragraph 2 is now to be understood and applied in the sense set out in the previous two paragraphs.
The Government’s clear view is that schools following this approach will be fully in line with their statutory requirements.”
According to a statement issued by the British Humanist Association, which had supported the judicial review claim, this new guidance “makes the situation worse” and it is consulting its lawyers so this may not be the end of the matter. But whatever its rights or wrongs, one can’t help thinking how nice it would be if all government guidance were as short as this. Happy New Year!
In 2013 I did a blog post about the case of Duke v University of Salford  EWHC 196 (QB) which concerned a defamation claim by Salford University against a Dr Duke for blog postings which (inter alia) made unfavourable comparisons between the university and the leadership of Hezbollah, a suggestion that it was “adopting some of the more odious policies of the great Chinese bureaucratic dictatorship”, and allegations of secretive behaviour. I’m sure you recall it as if it were yesterday.
Anyway, a recent decision of the European Court of Human Rights in Kharmalov v Russia (Application no. 27447/07) concerns a similar spat in Russia and is a reminder that such dissent, if not an inherent part of academic life, is at least not confined to these shores. More relevantly from a legal point of view, it illustrates the freedom of speech protection afforded by the European Convention on Human Rights and makes some important points about universities’ reputations and debates of public interest. Read more »
Hot on the heels of my post last week about religious education and state impartiality comes the publication today of the 104-page report of the Commission on Religion and Belief in Public Life entitled “Living with Difference”.
Made up of 20 commissioners, including adherents of the main religious and belief traditions in the UK (including humanism) and chaired by former Court of Appeal judge Baroness Butler-Sloss, the commission took two years to prepare its report and received more than 200 submissions during the public consultation process.
Chapter 4 of the report (pages 30-39) is devoted to education and includes the following suggestions and recommendations:
- that rather than promoting greater cohesion, faith schools have been socially divisive and led rather to greater misunderstanding and tension, and selection of pupils and staff on the grounds of religion be reduced
- the requirements for schools to hold acts of collective worship or religious observance be repealed and replaced with inclusive assemblies and times for reflection that are appropriate for pupils and staff of all religions and beliefs
- a new subject be created with the same status as other humanities subjects which deals with religious and non-religious worldviews and with content that is broad and inclusive in a way that reflects the diversity of religion and belief in the UK
- state inspectorates should be concerned with every aspect of the life of faith schools, including religious elements currently inspected by denominational authorities
- the attention given in teacher training to religion and belief should be of a similar level to that which is given to reading and maths, so that every primary class teacher is confident and competent in this curriculum area and all secondary and FE teaching staff have general awareness of relevant sensitivities
As exam question writers like to say – discuss.