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

The claimants sought judicial review of secondary legislation (paragraphs 4, 12 and 13 of the Schedule to the Relationships Education, Relationships and Sex Education and Health Education (England) Regulations 2019) and parts of the accompanying Guidance, and alleged a breach of the public sector equality duty in section 149 of the Equality Act 2010. The principal procedural issue was limitation under CPR 54.5(1): when the grounds to make the claim first arose. Applying the Badmus taxonomy, the Deputy Judge held that the grounds arose when the Regulations were made (9 May 2019) and the Guidance was published (25 June 2019), because at those points the claimants (including parents of school-age children) had standing or could bring an abstract challenge. The claim, issued on 1 September 2020, was out of time and the court refused to extend time under section 31(6) Senior Courts Act 1981, concluding there would be substantial detriment to good administration if permission were granted. The judge considered the Equality Impact Assessment and concluded there was no arguable failure of the section 149 duty; the continuing duty argument was not sufficient to render Ground 5 arguable.

Background and parties: The applicants (Charles Colchester, acting on behalf of the Let Kids Be Kids Coalition, and three parents) challenged parts of the 2019 Regulations and parts of the 2019 Guidance governing Relationships Education, Relationships and Sex Education and Health Education, and alleged a breach of the public sector equality duty (section 149 Equality Act 2010). Permission had earlier been refused on the papers by Lane J; this was a renewed application before Deputy Judge Clive Sheldon QC.

Relief sought: permission to apply for judicial review and relief quashing or otherwise disapplying the challenged provisions and a declaration of unlawful failure to comply with the PSED.

Issues framed by the court: (i) when did the grounds to make the claim first arise for limitation purposes under CPR 54.5(1); (ii) whether time should be extended under section 31(6) Senior Courts Act 1981; (iii) whether the substantive grounds were arguable, including alleged ultra vires/Convention rights and alleged breach of the PSED; and (iv) standing and the applicability of the Badmus person-specific/abstract taxonomy.

Reasoning and holdings: The judge adopted the approach in Regina (Badmus) v Secretary of State for the Home Department and related authorities, identifying that the First Claimant’s challenge was an abstract challenge and the other claimants’ challenges were person-specific. For both categories the judge held the relevant date when grounds first arose was the date the Regulations were made (9 May 2019) and the Guidance published (25 June 2019). The claim issued on 1 September 2020 was therefore not prompt and outside the three-month limit. Applying section 31(6) Senior Courts Act 1981, the judge found undue delay and that permitting the claim after such delay would be detrimental to good administration because schools had been planning and implementation was underway. The judge considered the strength of the case: Grounds 1–4 were marginally arguable but not sufficiently strong to outweigh the prejudice to administration; Ground 5 (PSED) was not arguable because the initial Equality Impact Assessment addressed the issues and there were no further functions for the Secretary of State to exercise such as to require an updated assessment at the times relied upon by the claimants.

Wider context: The judgment records that challenges to legislative instruments may be brought in the abstract by representative activist organisations, but emphasises the public interest in prompt challenges where implementation is underway and the risk of prejudice to good administration. The court refused permission and dismissed the application.

Permission to apply for judicial review is refused. The grounds to bring the claim first arose when the Regulations were made (9 May 2019) and the Guidance published (25 June 2019); the claim issued on 1 September 2020 was out of time and there are no good reasons to extend time under section 31(6) Senior Courts Act 1981. Grounds 1–4 are only marginally arguable and do not justify extension; Ground 5 (alleged PSED breach) is not arguable because the initial Equality Impact Assessment adequately addressed the issues and there were no intervening functions requiring reassessment.

Permission for judicial review had previously been refused on the papers by Lane J. The renewed application for permission was heard before Deputy Judge Clive Sheldon QC, who refused permission and dismissed the application.