In R (Fox) v Secretary of State for Education  EWHC 3404 (Admin), Warby J held that guidance issued by the Secretary of State for Education was unlawful because it contained a statement (referred to in the judgment as “the Assertion”) that delivery of Religious Studies GCSE content consistent with subject content prescribed by the Secretary of State would in all cases fulfil the state’s legal obligations with regard to religious education. In fact, the judge held, relying exclusively on such GCSEs could be enough to meet those obligations but would not necessarily be so and some additional educational provision may be required.
For such an esoteric conclusion, the case got a surprising amount of coverage in the mainstream media (see here) but this probably reflects the high levels of interest and sensitivity surrounding the role of religion in schools. Leaving the headlines aside, the judgment repays consideration for its analysis of the law governing the teaching of, and curriculum-setting for, religious education in schools and academies. It is important to note, however, that the position in faith schools and academies is different: see .
So far as domestic law is concerned, the judgment reminds us at  that section 375 of the Education Act 1996 requires religious education to be taught according to an “agreed syllabus” which must “reflect the fact that the religious traditions in Great Britain are in the main Christian whilst taking account of the teaching and practice of the principal religions represented in Great Britain”. At  is a reminder of the 2011 Census results underpinning this, which show that 59.3% of people answered the question “what is your religion?” by saying “Christian”. (At  some other answers that were given are recorded – none (25.1%), no answer (7.2%), Muslim (4.8%) and Buddhist (0.4%)).
The process by which the agreed syllabus is drawn up by the Agreed Syllabus Conference (ASC) and subject to ministerial control is explained at [15-19].
Crucially, the judge then considered Article 9 and Article 2 of Protocol 1 of the European Convention of Human Rights and the (almost exclusively Strasbourg) case law in this area . The judge said at  that the jurisprudence established the following propositions:
- In carrying out its educational functions the state owes parents a positive duty to respect their religious and philosophical convictions.
- The state has considerable latitude in deciding exactly how that duty should be performed, having regard among other things to available resources, local conditions and, in particular, the preponderance in its society of particular religious views, and their place in the tradition of the country.
- As such, the state may legitimately give priority to imparting knowledge of one religion above others, where that religion is practised or adhered to by a majority in society, but the state has a duty to take care that information or knowledge included in the curriculum is conveyed in a pluralistic manner
- Subject to certain threshold requirements, the state must accord equal respect to different religious convictions, and to non-religious beliefs, it is not entitled to discriminate between religions and beliefs on a qualitative basis and its duties must be performed from a standpoint of neutrality and impartiality as regards the quality and validity of parents’ convictions.
The judgment does not record any consideration of (or even submissions on) section 2(1) of the Human Rights Act 1998 and the extent to which this Strasbourg case-law should be followed, which is perhaps surprising given the current debate (both judicial and political) on this point, and it was on the basis of the ECHR and Strasbourg case law that the claim succeeded.
At  the judge said there was no problem with section 375 and suggested the state’s duty is best described as “due impartiality”, but went on to identify the problem in this case as follows:
“74…The complete exclusion of any study of non-religious beliefs for the whole of Key Stage 4…would not in my judgment be compatible with A2P1″
75. It is not of itself unlawful to permit an RS GCSE to be created which is wholly devoted to the study of religion. That is not the claimant’s case. But The Assertion tells its readers that such a GCSE will fulfil the entirety of the state’s RE duties…[T]his is a proposition that is likely in practice to be accepted and acted upon by ASCs and schools. The Assertion thus represents guidance under challenge wrongly suggested that the provision of such a GCSE would in and of itself meet the state’s obligations with regard to religious education.”
Also of interest is how the judge dealt with two other points which arose, about looking at a child’s education more widely than just their GCSE years, and the parental right in section 71 of the SSFA 1998 to withdraw a child from RE:
“78. I have not overlooked [the Secretary of State’s] submission that the two years of Key stage 4 should not be considered in isolation, but within the context of the RE curriculum as a whole. I accept the point, but it is obvious that GCSE is a vitally important stage in the development of a young person’s character and understanding of the world. I do not consider it could be said that a complete or almost total failure to provide information about non-religious beliefs at this stage could be made up for by instruction given at earlier stages. Nor do I overlook [the Secretary of State’s] final point: that if it turns out that the schools attended by the Children adopt a GCSE specification as the entirety of RE provision at Key stage 4, and the Parents do not want this form of RE for their children, they have the unqualified right to have their Children excused from that education. This point fails on the ground identified above: it would deprive the Parents and Children of rights they enjoy, which the state is bound to deliver.
79. This is not to say that the state is obliged to provide a particular form of teaching, dictated by the Parents. It is to say that an opt-out is not an adequate substitute for the provision of an educational programme which accords the Parents their right to respect for their convictions. The need to withdraw a Child would be a manifestation of the lack of pluralism in question.”