Cage Advocacy UK Limited, R (on the application of) v Secretary of State for Education

The claimant renewed an application for permission to apply for judicial review of a 28 May 2021 letter of guidance to headteachers on antisemitic incidents. The court found the claim was not brought promptly and in any event that the Letter did not breach ss.406 or 407 of the Education Act 1996, did not unlawfully discriminate contrary to the Equality Act 2010, and there was no legal duty to consult before issuing the Letter. The Letter was held to be a permissible, targeted reminder of legal duties to address antisemitism in schools and to promote impartiality; the Secretary of State was not expressing a view on the international legal status of Israel but was addressing an increase in antisemitic incidents in schools.

The court also considered the relationship between the Letter and later formal guidance of February 2022, concluding there was no incompatibility and that the February 2022 guidance is the starting point but the May 2021 Letter remains supplementary on antisemitism unless withdrawn. The claimant’s application for permission to apply for judicial review was refused and an earlier costs order in the defendant’s favour was confirmed.

Background and parties. The claimant, an organisation campaigning against discriminatory State policies with a focus on the Middle East, sought renewed permission for judicial review of a Secretary of State letter dated 28 May 2021 headed "Antisemitic incidents within schools." Permission had earlier been refused on the papers by Poole J on 11 April 2022. The Letter responded to a contemporaneous outbreak of military conflict in Israel/Palestine and an associated increase in antisemitic incidents in schools.

Nature of the application and relief sought. The claimant sought permission to challenge the Letter as ultra vires and unlawful on multiple grounds, including that it conflicted with statutory duties in the Education Act 1996 (ss.406 and 407), breached the Equality Act 2010 by direct and indirect discrimination, and that a duty to consult had been neglected.

Issues framed by the court.

• Whether the claim was brought promptly within CPR 54.5.
• Whether the Letter breached ss.406 or 407 Education Act 1996 by promoting a partisan view or preventing balanced presentation of political issues.
• Whether the Letter was directly or indirectly discriminatory under the Equality Act 2010, including in light of the Secretary of State's duties under s.149 of the Equality Act 2010.
• Whether there was a legal duty to consult organisations supportive of Palestine if organisations supportive of Israel had been consulted.
• Whether the Letter was inconsistent with later February 2022 formal guidance.

Court’s reasoning and findings. The court held the claim had been filed within the three-month longstop but not promptly; delay was material because the Letter addressed a time-specific problem that had since subsided. On the merits the court found it unarguable that the Letter breached ss.406 or 407: it was a reminder of legal duties to avoid political indoctrination and to secure balance, and its specific caution against using materials from organisations that publicly reject Israel’s right to exist was justifiable in the context of preventing antisemitic narratives, consistent with the IHRA illustrative definition. The Letter did not express a view on Israel’s international legal status. On equality grounds the court held the Letter did not treat Muslim students less favourably and was a proportionate means to protect students from antisemitism; it applied to all pupils. There was no statutory or other legal duty to consult before issuing the Letter; discussion with stakeholders did not amount to legal consultation. The court found no incompatibility between the May 2021 Letter and the broader February 2022 guidance and treated the latter as the primary document going forward, with the Letter remaining relevant on antisemitism unless withdrawn. Finally, the earlier costs order in favour of the defendant was confirmed as reasonable and proportionate (sum £6,863).

Permission to apply for judicial review is refused. The application was not brought promptly and, substantively, the Letter did not contravene ss.406 or 407 of the Education Act 1996, did not unlawfully discriminate under the Equality Act 2010, and there was no legal duty to consult before issuing the Letter. The Letter was a lawful, targeted reminder to schools about addressing antisemitism and ensuring impartiality; the defendant’s costs order was confirmed.