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

Guidance addressing antisemitic incidents in schools does not unlawfully promote a partisan political view merely because it warns against organisations that reject Israel’s right to exist. Read fairly, such guidance may remind schools of their duties to prohibit partisan political activity and secure balanced treatment of political issues under the Education Act 1996.

Applying discrimination principles, guidance directed at antisemitic incidents may pursue the legitimate aim of protecting pupils and staff from antisemitism, and may apply equally to all pupils. A duty to consult does not arise merely because stakeholders were discussed with, absent a statutory duty, promise or established practice of consultation.

The claimant sought permission to apply for judicial review of a letter issued by the Secretary of State for Education to schools on 28 May 2021 concerning antisemitic incidents. It alleged inconsistency with statutory duties concerning political impartiality, direct and indirect discrimination against Muslim pupils, and failure to consult Palestinian-supporting organisations or individuals.

Permission had been refused on the papers by Poole J. The claimant renewed the application before Lang J, who also considered the relationship between the letter and later general guidance on political impartiality.

1. Permission refused. The claim was filed within the three-month longstop under rule 54.5 of the Civil Procedure Rules, but it was not made promptly. The delay was particularly significant because the letter addressed a time-specific problem.
2. Ground 1 was unarguable. Sections 406 and 407 of the Education Act 1996 prohibit partisan political activity and require balanced presentation of opposing political views. On a fair reading, the letter reminded schools of those existing duties in the context of antisemitic incidents. It was not inconsistent with the guidance in R (Dimmock) v Secretary of State for Education and Schools [2007] EWHC 2288 (Admin).
3. The Secretary of State was entitled to warn schools about organisations promoting antisemitic or discriminatory views while purporting to present the Israeli-Palestinian conflict in a balanced manner. The reference to organisations rejecting Israel’s right to exist was directed to the risk that such a position could be used as a front for antisemitic views. The letter did not purport to determine Israel’s status in international law.
4. Ground 2 was unarguable. The letter did not treat Muslim pupils less favourably because of their religion. Its direction against intimidation or fear applied to Muslim and non-Muslim pupils alike. The Secretary of State was entitled to regard Jewish and Muslim pupils as not being in a comparable position for the purpose of this specific letter. Addressing antisemitic behaviour pursued the legitimate aim of protecting those subjected to it and was plainly justifiable.
5. Ground 3 was unarguable. There was no statutory duty to consult, promise or established practice requiring public consultation. Discussion with stakeholders did not amount to consultation.
6. The February 2022 political impartiality guidance and the May 2021 letter were based on the same principles and were not incompatible. The later guidance was the starting point for schools, but schools should also have regard to the earlier supplementary guidance on antisemitism unless withdrawn. The costs order made by Poole J was confirmed.

Permission was refused on the papers by Poole J on 11 April 2022. The claimant renewed the application before the High Court (Administrative Court), which refused permission.