R (Colchester) v Secretary of State for Education

[2020] EWHC 3376 (Admin), Clive Sheldon QC sitting as a Deputy High Court Judge
This case concerned a renewed application for permission in a PSED challenge to the Relationships Education, Relationships and Sex Education and Health Education (England) Regulations 2019 and associated guidance, which impose obligations upon schools to provide mandatory relationships and health education to all children, this by contrast with sex education from which parents can chose to remove children. The claimants raised various challenges under Article 2 Protocol 1 of the ECHR and claimed that the defendant had failed to comply with the PSED. Clive Sheldon QC, sitting as a Deputy High Court judge, refused the renewed application on the basis that it was out of time but went on expressly to address the PSED claim in respect of which he said he would have refused permission in any event, as follows:

  1. …. It is contended that the Equality Impact Assessment (“the EIA”) carried out by the Secretary of State failed to address, or adequately address, the impact of the teaching of ‘LGBT content’ in mandatory RE, RSE and HE on people of religious backgrounds. Further, it is alleged that the duty at section 149 is a continuing duty (see R (Brown) v. Secretary of State for Work and Pensions[2008] EWHC 3158 at [95]), and the EIA should have been reviewed when it became clear that following publication of the Guidance and the making of the 2019 Regulations there were protests around the country in those schools that had introduced ‘LGBT content’ contrary to the religious and philosophical convictions of parents. It should, Mr. Diamond contends, have become apparent to the Defendant that the Guidance was not fostering good relations between people with the protected characteristic of religious belief and those without.
  2. In my judgment, there is no arguable basis for challenging the initial EIA. That document faced up squarely to the fact that “Some of the content of the new subjects, especially of RSE, may challenge the religious beliefs of some groups. The subjects cover topics where some faith communities’ views on what is right can differ from what is permitted under the law.” The EIA said that the policy had the potential to advance equality of opportunity and may also lead to greater integration and better relationships, although there was a risk that some schools may feel that the guidance goes too far on some topics. This was, in my judgment, a careful balancing of the competing rights and interests and demonstrated that “due regard” had been had to the relevant public sector equality considerations.
  3. As for the contention that the Secretary of State has failed to comply with the duty at section 149 of the Equality Act 2010, because he has not reviewed the policy in light of the reaction that it received from some groups or individuals, I consider that this is not arguable.
  4. Section 149 only applies to ‘the exercise of functions’. There were no further ‘functions’ for the Secretary of State to “exercise” with respect to the 2019 Regulations or Guidance. The Secretary of State had already exercised his functions with respect to the 2019 Regulations and Guidance when he made the former and published the latter. The Secretary of State committed to review the Guidance after three years from September 2020: at that point, he would be exercising his functions with respect to this matter again.
  5. Moreover, the fact that the duty has been said to be a ‘continuing one’(R (Brown)) does not mean that ‘due regard’ to equality issues must be had on each, or any, occasion when the policy at issue (here, the 2019 Regulations and/or the Guidance) has impact and/or encounters criticism, especially when that impact and/or criticism was already contemplated by the initial assessment under section 149. To hold otherwise would impose an impossible burden on public authorities…”

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