“L” (R on the application of) v HAMPSHIRE COUNTY COUNCIL

A public authority’s policy is unlawful only where it positively authorises or approves unlawful conduct. A policy remains lawful if it is realistically capable of lawful implementation; the mere possibility of unlawful implementation is insufficient.

Education legislation prohibiting political indoctrination and requiring balanced treatment of political issues does not require teachers to mention every competing opinion. Guidance about LGBT+ issues, names and pronouns did not itself compel speech or require schools to act incompatibly with Convention rights. The public-sector equality duty is a process obligation and does not, by itself, establish a substantive defect in the underlying decision.

The claimant sought permission to apply for judicial review of Hampshire County Council’s non-statutory LGBT+ guidance for schools and colleges. The challenge concerned teaching materials about sex, gender and LGBT+ issues, advice about supporting pupils and using preferred names and pronouns, and the absence of an Equalities Impact Assessment.

The claimant alleged breaches of sections 406 and 407 of the Education Act 1996, section 6 of the Human Rights Act 1998, Articles 8 and 9 and Article 2 of the First Protocol to the European Convention on Human Rights, and section 149 of the Equality Act 2010. The central issues were whether the Guidance authorised unlawful conduct, infringed protected rights, or was procedurally unlawful.

1. Permission refused. The claim was not arguable on the surviving grounds. Any challenge to the original publication of the Guidance in June 2018 was also out of time.
2. Following A v Secretary of State for the Home Department and Gillick v West Norfolk and Wisbech Area Health Authority, the question was whether the Guidance positively authorised or approved unlawful conduct. A policy is not unlawful merely because it leaves open the possibility of unlawful implementation. The Guidance was realistically capable of lawful implementation because it was guidance, did not require schools to use the sample lessons, and did not prevent teachers from referring to other opinions or material.
3. Sections 406 and 407 of the Education Act 1996 were to be understood as prohibiting political indoctrination. The sample lessons did not indoctrinate pupils. Statements about intersex people, gender identification and transition were factual and reflected current UK law. The reference to the main categories of sex did not cross the line into indoctrination. Teachers were not required to mention every competing view whenever a subject attracted disagreement.
4. The issues addressed by the Guidance were social and educational rather than political. The relevant distinction, illustrated by Lee v Ashers Baking Co Ltd, Dimmock v Secretary of State for Children and McGovern v AG, was between an active debate about changing law or government policy and practical advice about children’s safety in schools.
5. The Guidance did not compel speech. Advice about preferred names and pronouns created no adverse legal consequence and required schools to consider the Article 9, Article 8 and Article 2 of the First Protocol rights of staff, pupils and parents if a conflict arose. The claimant also had difficulty establishing victim status because no such conflict had arisen concerning her children.
6. Section 149 of the Equality Act 2010 imposed a process obligation. A breach would not itself establish a substantive defect in the Guidance. Any challenge to the 2018 decision was out of time, and it was not arguable that a later decision not to withdraw the Guidance failed to take account of section 149.

The court refused permission to seek judicial review. If permission were later granted on appeal, admissibility of parts of the claimant’s evidence remained to be determined.