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

The claimant sought permission for judicial review of parts of Hampshire County Council's non-statutory guidance "Hampshire: a safe place to learn, a safe place to grow: LGBT+ guidance for Hampshire schools and colleges". The surviving grounds alleged that the Guidance authorised or approved unlawful teaching in breach of sections 406 and 407 of the Education Act 1996, infringed Article 2 of Protocol 1 read with section 6 of the Human Rights Act 1998, compelled speech in breach of Article 9 and interfered with Article 8, and breached the public sector equality duty under section 149 of the Equality Act 2010.

The court applied the test from the Supreme Court in A v Secretary of State for the Home Department and Gillick: a policy is unlawful only if it authorises or approves unlawful conduct or is incapable of lawful implementation. The judge concluded the Guidance is realistically capable of lawful implementation, contains largely factual and pastoral material (including Crestwood slides explaining intersex, transgender and related concepts), and does not amount to political indoctrination under sections 406-407 EA 1996. The Guidance is advisory rather than compulsory; it does not itself create adverse legal consequences for teachers and does not authorise breaches of Convention rights. As to the Equality Act 2010 obligation, any challenge to the original 2018 publication was time-barred; and, on the merits, the matters required by section 149 had been considered in correspondence and were the subject of ongoing review.

Permission to apply for judicial review was refused.

Background and parties:

• The claimant applied for permission to bring judicial review proceedings challenging parts of the Defendant's non-statutory LGBT+ guidance for schools and colleges. The application included an application to rely on expert evidence. Sir Ross Cranston directed an oral hearing. Counsel for the claimant were Jason Coppel QC and Tom Cross; counsel for the defendant were Andrew Sharland QC and Ben Mitchell.

Nature of the claim and procedural posture:

• The claimant originally advanced five grounds; two were not pursued in light of the Supreme Court's decision in A v SSHD. The remaining grounds alleged that the Guidance failed to respect the religious and philosophical convictions of those who disagree with its content and that it authorised unlawful action by schools and the local authority.

Issues framed by the court:

• Whether the Guidance authorised or approved unlawful teaching contrary to sections 406 and 407 Education Act 1996 (political indoctrination and the duty to secure balanced treatment of political issues).
• Whether the Guidance required or encouraged schools to act incompatibly with Convention rights (Article 9 freedom of thought, conscience and religion; Article 8 private and family life; Article 2 Protocol 1 parental rights) read with section 6 HRA 1998.
• Whether the Defendant failed to have regard to the public sector equality duty in section 149 Equality Act 2010 when publishing or retaining the Guidance.

Court's reasoning and decision:

• The court applied the test from A v SSHD and Gillick: a policy is unlawful only if it authorises or approves unlawful conduct or directs unlawful action so as to be incapable of lawful implementation. The Guidance was considered in that light.
• On the Education Act grounds, the contested Crestwood slides and other material were held to be statements of fact or pastoral guidance (explaining intersex, listing gender identities, describing transition and urging respectful treatment). They did not amount to political indoctrination and, read as guidance, left scope for teachers to present other views; the Guidance was realistically capable of lawful implementation.
• On Convention grounds, the Guidance was advisory rather than compulsory and did not itself create a system of sanctions or compel teachers to adopt particular speech; any conflict would fall to be resolved by the school in light of the rights of pupils and parents, and the Guidance did not authorise breaches of Convention rights. The claimant also lacked victim status on some strands because no specific conflict had arisen concerning her children.
• On the Equality Act ground, although no equality impact assessment had been undertaken in 2018, challenges to the original publication were out of time. The correspondence between parties and the Defendant's stated review process showed the matters in section 149 had been considered; at worst a procedural failing would require further review rather than immediate quashing.

Conclusion:

• Permission to bring judicial review was refused. The judge noted that, if permission were granted on appeal, questions about admissibility of expert evidence would remain for case management.

Permission to claim judicial review is refused. The court held that the Guidance is realistically capable of lawful implementation and does not authorise or approve unlawful conduct: the contested teaching material is factual/pastoral and not political indoctrination under sections 406-407 Education Act 1996; the Guidance is advisory and not compulsory so it does not itself breach Convention rights under Articles 9, 8 or Article 2 Protocol 1 read with section 6 HRA 1998; and any procedural equalities duty complaint in relation to the 2018 publication is time-barred and, in any event, did not show an arguable failure to consider section 149 Equality Act 2010 requiring immediate relief.