Stephen Bowen, R (on the application of) v Kent County Council

Article 14 is engaged where the operation of a state-created educational body has a more than tenuous connection with the core values of Article 9 or A2P1. Persons holding non-religious beliefs may be in an analogous position to religious believers where both beliefs are relevant to the content of religious education. A distinction excluding non-religious representatives from a SACRE is unjustified where the curriculum must include some non-religious beliefs and the statutory scheme otherwise seeks local, broadly proportionate representation. Under section 3 of the Human Rights Act 1998, section 390(4)(a) of the Education Act 1996 can be read compatibly without detailed reformulation. It must not be understood as requiring the exclusion of suitable humanist representatives.

The claimant, a humanist, sought voting membership of Group A of Kent County Council’s Standing Advisory Council for Religious Education. The council refused, deciding that section 390(4)(a) of the Education Act 1996 prohibited appointing a person representing humanism because humanism was not a religion or denomination of a religion.

The claim alleged discrimination contrary to Article 14, read with Article 9 and Article 2 of the First Protocol, and relied on section 3 of the Human Rights Act 1998. The issues were whether Article 14 was engaged, whether the distinction was justified, whether a Convention-compliant interpretation was possible, and what relief should follow.

1. Article 14 engaged. The creation and operation of SACREs, whose advice informs the content of locally determined religious education, had a more than tenuous connection with the tolerance and pluralism protected by Article 9. It was also sufficiently connected with the state’s assumed functions in education and teaching for the purposes of A2P1. Humanist beliefs satisfied the required threshold of cogency, seriousness, cohesion and importance.
2. Analogous situation. Groups A and B were principally concerned with the content of religious education, while Groups C and D were principally concerned with implementation. Group A was not properly characterised as a faith-only group. Since the curriculum had to include at least some non-religious beliefs, suitable non-religious representatives were in an analogous position to religious representatives.
3. Justification. Although discrimination based on faith ordinarily required strict scrutiny, religious education was a measure of social strategy and Parliament enjoyed a wide margin of judgment. Even applying the manifestly without reasonable foundation standard, the exclusion was unjustified. Practical difficulties, multiple adherence, and proportional representation did not justify the distinction.
4. Interpretation and relief. Section 3 of the Human Rights Act 1998 permitted section 390(4)(a) to be interpreted so that it did not exclude suitable non-religious representatives, including humanists. The application succeeded and the council’s decision dated 17 June 2022 was quashed as unlawful.

First-instance judicial review. No prior appellate decision is stated in the judgment.