The case of Fox: A victory for plurality in the education system?

Religious studies syllabuses get the legal treatment

Much like the decision in R (Fox) v Secretary of State for Education, this article was a long time coming.

I had originally planned to write a piece on Mr Justice Warby’s decision on the government’s new religious studies lessons content just a month after the judgment was handed down on the 25 November 2015. Likewise, claimant Kate Bielby noted after the decision that:

It is long past time that the beliefs of the non-religious were treated on an equal footing with religions in the school curriculum.

The facts

Brenda Hale, who Legal Cheek has fondly styled the Beyoncé of the legal world, once wrote that, in considering claims for judicial review, it is critical to distinguish between “busybodies and champions” — in other words between those who are filibustering and delaying perfectly lawful action and those who have a legitimate grievance. To this end, potential claimants must jump through a number of legal hoops before they can raise a claim.

The British Humanist Foundation (BHA) stumbled at the first. The foundation was found to lack standing, meaning that it did not have a ‘sufficient interest’ in the matter at hand. Granted standing were three parents and their children, all of whom claimed that their upcoming GCSEs would be affected by new subject content distributed by the Education Secretary, Nicky Morgan, on 12 February 2015. She coupled it with the following assertion which, they argued, was wrong in law:

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 (emphasis in the judgment)

The parents’ principal complaint rested with the claim that the subject content for religious studies (RS) was compliant with statute law. They cited the Human Rights Act 1998 (HRA), which obliges public bodies in the UK to take into account the European Convention on Human Rights when making decisions. Article 9 of the convention provides that everyone is entitled to hold and manifest their own religious beliefs, while article 2 of the first protocol enshrines the right to education.

In disputing the human rights compliance of the subject content, the authors of the claim explained that it is broken into two parts: the first mandates that schools use at least 50% of their RS teaching time — with an option to increase this to 75% — to teach children about two religions. For the remaining 25-50%, teachers would have a variety of options which Warby found were heavily weighted in favour of religious studies, largely excluding non-religious worldviews such as humanism.

The decision

Mr Justice Warby dismissed the respondent’s submission that much of the control over the eventual syllabus was devolved to local authorities and the schools themselves, citing two decisions of the European Court of Human Rights. Both, (here and here) stressed that:

[While] abuses can occur as to the manner in which the provisions are applied by a given school or teacher… 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 judgement or misplaced proselytism.

As an aside, Paul Greatorex of 11KBW noted that there was no assessment of s2 of the HRA and to what extent Strasbourg’s judgments should be followed — an issue recently discussed at length by the Supreme Court.

In any event, the above passage is so steeped in common sense as to be irresistible. Clearly the words of the education minister will be influential and subject content distributed across the country even more so. As such, the minister has a duty to ensure that her words comply with the UK’s legal obligation to ensure plurality in religious education.

Given that the subject content could be used to create a syllabus entirely around religion, Warby J came to the conclusion that the Education Secretary’s bold assertion of legislative compliance was materially misleading and “encourage[d] others to act unlawfully”. The appeal was allowed.

Some comment

Busybodies or champions?

In my view, these claimants were certainly the latter. This case stands as a victory for plurality in the education system. It has placed the onus on the government to take affirmative action to protect the rights of the non-religious and it feeds into a broader narrative concerning the rights of those holding non-religious worldviews living in an ostensibly religious nation. In the same connection, Lady Justice Butler-Sloss recently chaired the Commission on Religion and Belief in British Public Life. Their final report, released last year, states the need to teach children about non-religious world-views and “the realities of present [day] society”. This fits with the recent British Election Study, which showed that 44.7% of us are now non-religious.

Unfortunately, in spite of the foregoing, the Department for Education’s response to both the report and Warby J’s decision has been underwhelming.

An article in The Express quoted a source close to the Education Secretary as saying that:

Anyone who thinks [Nicky Morgan] is going to pay any attention to [the report] is sorely misguided.

Perhaps indicative of the truth of this anonymous source, the department opined in the wake of the Fox decision that they “consider… the judgment to have no impact on any aspect of its policy in relation to the [religious studies] curriculum”, a statement described by the chief executive of the BHA as “not only obtuse” but liable to lead “teachers into breaches of the law”.

Education is critical and ignorance of the views of others is a bud which should be nipped as soon as possible. It is therefore right that children learn about views other than their own at a young age. Given the sheer number of people in Britain who now say they lack religious conviction — and in light of the UK’s international obligations — should ‘the views of others’ not be inclusive of non-religious worldviews too?

In my opinion, echoing the sentiments of Kate Bielby and the commission’s final report, it is high time that the school syllabus reflected the reality of present day society.

Ryan Dowding is studying for his masters in International Human Rights Law at the University of Sussex, having graduated with an LLB from the same university.