Fox & Ors, R (on the application of) v Secretary of State for Education

State religious education must respect religious and philosophical convictions from a standpoint of neutrality and impartiality. The state may give greater weight to Christianity or another religion reflecting the country’s history and demography, but it must ensure that education is conveyed in an objective, critical and pluralistic manner. Equal treatment does not require equal teaching time for every belief. However, the complete or almost complete exclusion of non-religious beliefs from Key Stage 4 religious education would be incompatible with those obligations. Guidance is unlawful if its ordinary meaning encourages schools to treat a prescribed religious studies GCSE as necessarily exhausting the state’s religious education duties.

The claimants, parents and children holding or associated with non-religious beliefs, challenged the Secretary of State’s decision to issue new GCSE Religious Studies Subject Content from 2016. They principally challenged the assertion that the content was consistent with the statutory requirements for religious education.

The claimants argued that the assertion encouraged schools to treat the GCSE as the entirety of their Key Stage 4 religious education, despite the content requiring systematic study of religions while permitting little or no study of non-religious world views. The issues were whether the challenge was premature, whether the assertion encouraged that approach, and whether such an approach was legally compliant.

1. Claim succeeded. The challenge was not speculative or premature. Although detailed syllabus choices would be made downstream by awarding organisations, local authorities and schools, compliance with the Subject Content would materially constrain those choices. The claimants were at risk of being directly affected for the purposes of section 7 of the Human Rights Act 1998 (paras [56]-[61]).
2. In context, the assertion that the Subject Content was consistent with the statutory requirements told readers that an RS GCSE complying with it would satisfy the state’s legal obligations for religious education. It was likely to influence schools and syllabus-makers, and therefore encouraged the collapse of religious education into the GCSE (paras [62]-[66]).
3. Under Article 2 of the First Protocol, read with Article 9 and the domestic education legislation, the state has a positive duty to respect parents’ religious and philosophical convictions. It enjoys a wide margin in setting curricula and may give priority to Christianity or another majority religion. That latitude does not permit qualitative discrimination or the complete exclusion of non-religious beliefs from the relevant educational programme (paras [69]-[75]).
4. The Subject Content did not itself pursue indoctrination and was not shown to lack objectivity. Nor was it unlawful merely to permit a GCSE wholly devoted to religious study. The legal defect was the assertion that such a GCSE would necessarily fulfil all religious education obligations. The prescribed content could permit specifications containing no, or only very limited, study of non-religious beliefs. That would not necessarily satisfy the requirement for pluralistic education at Key Stage 4 (paras [70]-[80]).
5. The better analysis was that the assertion was an error of law in the Secretary of State’s interpretation of sections 78 and 80 of the Education Act 2002, interpreted compatibly with Convention rights under section 3 of the Human Rights Act 1998. It was also capable of being characterised as incompatible conduct under section 6 of that Act. The court concluded that the assertion was false and misleading and encouraged unlawful conduct. The appropriate relief was left for discussion with counsel (paras [76], [81]-[82]).

First-instance judicial review claim. No prior appellate decision is stated in the judgment.