ALR & Ors, R (on the application of) v Chancellor of the Exchequer

The right to education under Article 2 of the First Protocol includes access to the educational system provided by the state and the freedom to establish private schools. It does not require the state to establish or subsidise education of a particular type or to facilitate access to private education. A tax on private-school fees does not impair the essence of that right merely because it makes attendance unaffordable for some families.

Taxation and redistributive measures enacted as primary legislation attract a broad margin of discretion. That margin remains relatively broad under Article 14 where exemptions would be difficult to define, administer or justify. The challenged provisions of the Finance Act 2025 were therefore proportionate and compatible with the Convention.

Three sets of rolled-up judicial review claims challenged the imposition of VAT on private-school fees. The claims were initially directed at Budget Resolution 34, but were amended after Royal Assent to challenge sections 47–49 of the Finance Act 2025.

The claimants included children, parents and private schools. They relied principally on Article 2 of the First Protocol and Article 14, with the school and parent claimants also relying on Article 1 of the First Protocol and the second sentence of Article 2 of the First Protocol. They argued that the tax impaired access to private education and disproportionately affected children with special educational needs, religious minorities, foreign-curriculum pupils and those requiring single-sex education. The court also considered the admissibility of Parliamentary and National Audit Office materials under Article 9 of the Bill of Rights 1689.

1. Outcome. Permission to apply for judicial review was granted in all three claims, but each claim was dismissed.
2. Article 2 of the First Protocol. The court followed the principles in the Belgian Linguistic case (1968) 1 EHRR 252, Kjeldsen v Denmark (1976) 1 EHRR 711, Şahin v Turkey (2007) 44 EHRR 5 and Catan v Moldova and Russia (2013) 57 EHRR 4. The provision protects effective access to the educational system existing in the state and includes freedom to establish private schools, subject to regulation. It does not require public funding of private education or continued access to a particular school.
3. The direct imposition of VAT on private-school fees did not impair the essence of the right. Its practical effect was comparable to other taxes or regulations increasing school costs. The measure did not prohibit private schools or remove all educational alternatives.
4. Proportionality. Applying the four-stage test in Bank Mellat v HM Treasury (No 2) [2013] UKSC 38, the objectives of raising revenue, fairness, protecting those with acute needs, and administrative workability were legitimate. The OBR-certified revenue modelling supplied a rational connection. Delaying implementation or creating exemptions would have compromised the revenue objective. The redistributive choice made by Parliament fell within a broad margin of discretion.
5. Article 14. The court applied the framework in SC v Secretary of State for Work and Pensions [2021] UKSC 26. The evidence established relevantly different circumstances and disproportionate prejudice for Charedi Jewish pupils, and, on the assumed facts, for some Evangelical Christian pupils and pupils with SEN but no EHCP. The absence of an exemption was nevertheless justified by the administrative, anti-abuse, fairness and redistributive considerations. The evidence did not establish the necessary group disadvantage for Muslim pupils, French-curriculum pupils or girls requiring single-sex education.
6. Ab ante challenges. The special rule requiring legislation to be incapable of proportionate operation in all or nearly all cases applies only where the measure has not yet been applied to particular facts. Claimants to whom legislation has already been applied need only establish incompatibility in their own circumstances to obtain a declaration of incompatibility.
7. Article 1 of the First Protocol and Article 2’s second sentence. The schools’ goodwill was not diminished; the measure affected anticipated future income. The parents’ Article 1 rights were doubtful but, if engaged, the interference was justified. The second sentence of Article 2 is an adjunct to the first and does not require the state to facilitate access to a privately funded religious education.
8. Parliamentary privilege. National Audit Office value-for-money reports are proceedings in Parliament for Article 9 purposes. Parliamentary materials protected by Article 9 cannot be used to establish contested facts or to challenge their accuracy or cogency. Agreed facts may be used because doing so neither questions nor impeaches Parliamentary proceedings.

First-instance judicial review claims. The claimants initially challenged Budget Resolution 34. After the Finance Bill received Royal Assent, the claims were amended to challenge sections 47–49 of the Finance Act 2025. The court granted permission but dismissed all three claims.