Colchester, R. (On the Application Of) v Secretary of State for Education

For judicial review, time begins when the grounds first arise, assessed by identifying the nature of the challenge and when the claimant had standing. A challenge to legislation or guidance in the abstract arises when the legislation is made or the guidance is published, where no further executive step is required. A person-specific challenge arises when the claimant is, or inevitably will be, affected. The court may refuse permission for undue delay where granting relief would be detrimental to good administration. Public importance and the arguability of the claim do not necessarily justify an extension. A continuing public sector equality duty does not require a fresh assessment whenever an existing policy has an impact or attracts criticism, particularly where those matters were contemplated in the original assessment.

The claimants sought permission to bring judicial review proceedings against the Relationships Education, Relationships and Sex Education and Health Education (England) Regulations 2019, associated guidance, and the Secretary of State’s compliance with the public sector equality duty. The claim was issued on 1 September 2020. Permission had previously been refused on the papers by Lane J.

The court had to determine when the grounds first arose, whether time should be extended under section 31(6) of the Senior Courts Act 1981, and whether the proposed grounds were arguable.

1. Time and standing. The court adopted the distinction discussed in Regina (Badmus) v Secretary of State for the Home Department [2020] EWCA Civ 657 between abstract challenges and person-specific challenges. An abstract challenge to secondary legislation arises when it is made, where no further step is required to bring it into force. A person-specific challenge arises when the claimant is affected, or inevitably will be affected, by the measure.

2. The first claimant was bringing an abstract challenge on behalf of an inter-faith coalition. The second to fourth claimants had standing as parents of school-age children from the making of the Regulations and publication of the Guidance, because it was inevitable that they would be affected. The same conclusion applied to their status as potential victims under the Human Rights Act 1998. The grounds first arose on 9 May 2019 for the Regulations and 25 June 2019 for the Guidance.

3. The claim issued on 1 September 2020 was neither prompt nor within the three-month period in CPR 54.5(1). Under section 31(6) of the Senior Courts Act 1981, undue delay may justify refusing permission where relief would be detrimental to good administration. Schools had planned for, and had begun, teaching under the Regulations and Guidance. That administrative prejudice was clear.

4. The reasons advanced for delay, including the public importance of the issues, the late formation of the coalition, the absence of an earlier challenge, and the possibility of a later claim, did not justify an extension. Grounds 1 to 4 were only just arguable and were not sufficiently strong to outweigh the detriment to good administration. Ground 5 was not arguable.

5. Section 149 of the Equality Act 2010 did not require a fresh equality assessment whenever the policy had an impact or attracted criticism. The original assessment expressly considered that some content might challenge religious beliefs and balanced the competing considerations. The Secretary of State had no further function to exercise in relation to the Regulations or Guidance until the promised review. The continuing nature of the duty did not impose an impossible obligation to reassess the policy on every occasion of impact or criticism.

6. Permission to apply for judicial review was refused. The claim was out of time and there was no good reason to extend time.

Permission to apply for judicial review was refused on the papers by Lane J. The renewed application was refused by the High Court (Administrative Court).