High Court hears first legal challenge to new ‘faith’ schools over religious discrimination as govt applies to intervene against BHA

The High Court has approved an application for judicial review of a decision to open two state-funded highly selective Catholic schools in the London Borough of Richmond-upon-Thames. The case was filed jointly by the British Humanist Association (BHA) and Richmond Inclusive Schools Campaign (RISC). This is the first time a decision to open a ‘faith’ school has been legally challenged because of religious discrimination and the stakes have been raised by the actions of Secretary of State for Education Michael Gove, who has decided to intervene in the case against BHA and RISC.

A new law that came into force on 1 February states that ‘If a local authority in England think a new school needs to be established in their area, they must seek proposals for the establishment of an Academy’ (which in this context, means a Free School). Proposals then compete against each other in a form of competition adjudicated by the Department for Education (DfE).

In an alleged breach of this law, on 24 May, Richmond Council approved the two Voluntary Aided (VA) Catholic schools to open outside of competition, arguing that the two schools (upon which it has spent an estimated £10 million) are not ‘needed’ – only ‘wanted’ or ‘desired’, and that seeking proposals for Free Schools is unnecessary. The reason for choosing VA schools instead of Free Schools was because the Roman Catholic Diocese of Westminster wants the schools to select almost 100% of their pupils on religious grounds, while the maximum faith-based discrimination allowed in Free Schools is 50%. The Diocese intends to convert the schools to Academies a couple of years after they open.

As a result, the BHA and RISC decided to challenge the decision on two grounds: firstly, that the Council had failed to comply with the new legal requirement to seek bids for Free Schools when it believes the schools are needed; and secondly, if the Council is correct in arguing that the schools are not needed, it failed to consult properly on the matter. This second ground is because the Council’s consultation – contrary to its current claim – was on the basis that the schools are needed.

On 21 August, Judge Ockleton of the High Court accepted the BHA and RISC’s application for judicial review, arguing that 'Despite what the defendant [the Council] says it seems to me that it is arguable that the consultation was based on a decision that provision was necessary: see in particular the bullet points “Number of School Places” under both “Key Issues” and “The Council's position to date”. If that is right section 6A [the new law] was engaged.'

The judge also granted the BHA and RISC's request that the case be expedited, so it should hopefully be heard soon. However, the BHA and RISC are first seeking to establish a reasonable cost limit, in line with what their solicitors believe the case will cost, to prevent the Council from attempting to charge an unreasonable amount and price the BHA and RISC out of the case.

On 21 September, Michael Gove decided to also intervene in the case, arguing that if a local authority thinks a new school is needed, it can choose to ignore its requirement to invite Free School proposals, and instead arrange to open Voluntary Aided religious schools outside of competition.

On 21 September, Michael Gove decided to intervene in the case, arguing that a local authority can support a proposal for a Voluntary Aided school regardless of whether it thinks a new school is needed – and so can choose to ignore the requirement to invite Free School proposals. On this basis, not only would local authorities be able to arrange to open Voluntary Aided religious schools outside of competition, but they can agree with religious organisations to use this loophole to get round the limit of 50% exclusivity in admissions that applies to Free Schools – a particular issue in the Richmond case.

BHA Chief Executive Andrew Copson commented, ‘When proposing to establish new state-funded schools, religious groups usually avoid competition with other proposals and instead arrange directly with councils to open schools by the back door, leaving the public with no say in the matter. When such an arrangement has been reached, proposed “faith” schools have had a 100% success rate in subsequently opening. It is time to challenge this practice and attempt to redress the imbalance in the routes through which “faith” schools and other schools can open. Without this case, the number of discriminatory state-funded religious schools will continue to increase disproportionately to parental demand for such schools, which surveys consistently show is much lower than religious groups would have us believe.’

Referring to the Government’s applying to intervene in the case, Mr Copson continued, ‘The Coalition Agreement commits the Government to “work with faith groups to enable more faith schools and facilitate inclusive admissions policies in as many of these schools as possible.” It is surprising to see Michael Gove take such direct action in a contrary direction and against his own Free School policy in a way that will increase discrimination in the state school system.’

RISC spokesperson Jeremy Rodell said, ‘The Court agreed with us that it is not clear whether the Council’s decision was lawful under the Education Act 2011. Assuming a cost cap can be agreed, that will now be decided by a judge.’

Notes

For further comment or information contact BHA Chief Executive Andrew Copson on 07534 248596 or at andrew@humanism.org.uk.

Read the Consultation with Richmond upon Thames residents on use of the Clifden Road site, Twickenham, which is the basis of the BHA and RISC’s second grounds of challenge: http://www.richmond.gov.uk/consultation_on_use_of_clifden_road_site_january-march_2012.pdf

Read the new rules on school organisation, introduced by the Education Act 2011: http://www.legislation.gov.uk/ukpga/2011/21/schedule/11/enacted

Read the Coalition Agreement: http://www.direct.gov.uk/prod_consum_dg/groups/dg_digitalassets/@dg/@en/documents/digitalasset/dg_187876.pdf

Surveys consistently show that the public do not want state-funded religious schools, and that religion is not a factor for many parents in choosing which school to send their children to:
A 2010 survey by ICM for Channel 4 found 59% of the public stating that ‘Schools should be for everyone regardless of religion and the government should not be funding faith schools of any kind’: http://www.icmresearch.co.uk/pdfs/2010_august_c4_FaithSchools.pdf
A 2011 survey by YouGov for ITV asked parents to pick their top three factors from a list of twelve when choosing which school to send their children to. Only 9% picked religion: http://today.yougov.co.uk/sites/today.yougov.co.uk/files/YG-Archives-Life-YouGov-DaybreakReligion-130910.pdf
A 2011 survey for the Children’s Commissioner of young people aged nine to 16 found that 64% did not think schools should choose pupils because of their religion, versus just 20% who did: http://www.childrenscommissioner.gov.uk/force_download.php?fp=%2Fclient_assets%2Fcp%2Fpublication%2F483%2FChildrens_and_young_peoples_views_of_education_policy.pdf
A 2006 ICM survey for The Guardian found that 45% of head teachers believe ‘faith’ schools actively contribute to less religious tolerance in society, versus 25% who believe they create more tolerance: http://www.guardian.co.uk/education/2006/dec/05/newschools.schools
A 2005 ICM survey for The Guardian found that 64% of the public believe that ‘the Government should not be funding “faith” schools of any kind’: http://www.guardian.co.uk/uk/2005/aug/23/schools.faithschools
Read more about the British Humanist Association’s work on ‘faith’ schools: http://www.humanism.org.uk/campaigns/religion-and-schools/faith-schools

Read the BHA’s table of types of school with a religious character: http://www.humanism.org.uk/_uploads/documents/schools-with-a-religious-character.pdf

Visit Richmond Inclusive Schools Campaign’s website: http://www.richmondinclusiveschools.org.uk/

The British Humanist Association is the national charity working on behalf of non-religious people who seek to live ethical and fulfilling lives on the basis of reason and humanity. It promotes a secular state and equal treatment in law and policy of everyone, regardless of religion or belief.