The Interim Executive Board of X School v Chief Inspector of Education, Children's Services And Skills

It is convenient to summarise Ms Mountfield’s submissions before Mr Oldham’s. Given that there has been a change of policy, it seems to me only fair that the Defendant should be required to make the running.

Ms Mountfield reminded me that the Defendant is an expert and experienced regulator, and that in terms of the educational judgments it makes the court should apply a “light-touch” standard of review (see, for example, Moses J in R (London and Continental Stations and Property Ltd) v Rail Regulator [2003] EWHC 2607 (Admin)). Naturally, I accept that submission, but ultimately the core judgment of whether segregation in an educational context amounts to unlawful sex discrimination is largely one of law, not expert opinion.

Ms Mountfield submitted that the structure of sections 13 and 23 of the EqA 2010 gave rise to two questions: first, is there less favourable treatment of person X in comparison with an actual or hypothetical other person (Y) in a situation with no material differences; and if so, secondly, what is the reason for that less favourable treatment in comparison with Y?

In answering the second question, the court, submitted Ms Mountfield, should ignore the motive of person A (here she is using the lettering set out in section 13 of the Act) and, relatedly, the contention that the treatment under scrutiny was mandated by A’s religious faith.

In answering the first question, the court should start from the proposition (being one clearly derived from the structure and language of the EqA 2010) that ordinarily segregation by sex in a mixed school will constitute direct discrimination unless a section 158 or section 195 reason applies.

Although girls and boys are ostensibly treated equally, less favourable treatment occurs in one or more of four ways (the Defendant’s skeleton argument counted three, but in oral argument there appeared to be four):

In oral argument I pointed out that (i) and (ii) were paired, as were (iii) and (iv). The first pair assumes that girls and boys are treated equally, but contends that each suffer discrimination. The second pair of submissions propounds that segregation of girls and boys amounts to unequal and lesser treatment of the former. The only difference between (i) and (ii), it seems to me, is that the first may be described as flowing inexorably from the bare and indisputable facts, whereas the second entails a modicum of expert judgment as to the impact of disabling interaction between girls and boys at an impressionable age. It follows that I need to apply appropriate deference in relation to (ii). As for the second pair, (iii) it seems to me is a narrower and less far-reaching submission than (iv). It holds that, because women have minority power (no doubt in consequence of having been systematically discriminated against in the past, if not the present), any action or policy which differentiates between the sexes will confer on them a greater detriment. As for (iv), the US line of authority propounds that segregation in the field of race is inherently discriminatory, for the reasons mentioned under paragraph 86(iv) above. According to the Claimant’s fourth formulation, the same reasoning applies to sex discrimination.

In oral argument, and then in a further written submission filed after the conclusion of the hearing, Ms Mountfield sought to analyse section 85 of the EqA 2010. Overall, her submission was that the present case falls within each of sub-paragraphs (a) to (f) of section 85(2), which are clearly overlapping; but the breadth of sub-paragraph (f) (“any other detriment”) means that the present inquiry need go no further.

I detected a slight shift of emphasis in Ms Mountfield’s further written submission. The key point was this:

“This [sc. the reason why segregation is discriminatory] is because it is treatment which can reasonably be regarded as detrimental which is imposed on a person, in an otherwise analogous situation to others, for no reason other than his or her protected characteristic …”

Thus, if the court should be satisfied that the person in question has suffered treatment which is detrimental or disadvantageous (here, the restriction in social interaction etc. seen through the prism of the section 85(2) sub-categories), the real question then becomes the straightforward one of whether the reason for that difference in treatment was the protected characteristic or something else. Accordingly, so this submission runs, “the court should not get too hung up on the question of comparator”, and “the identity of the group from whom he is segregated is actually immaterial”. Alternatively, to the extent that a comparative analysis remains apposite (and other paragraphs of Ms Mountfield’s further submission suggests that it does), the comparison is with identically placed pupils of the opposite sex at the school.

I pressed Ms Mountfield to clarify the position of her clients in relation to other faith schools practising segregation of the sexes in the same or a similar manner. She confirmed that, subject to my Judgment in this case, the Defendant would now apply a consistent approach to all schools which fail to give an educational justification for the practice. I should reiterate that an educational justification means (on the Defendant’s approach, with which I concur) a rationale falling within section 158 or section 195 of the EqA 2010. It follows that, were I to uphold the Defendant’s submissions in this regard, the logic must be that other faith schools practising segregation of the sexes should expect to receive “inadequate” gradings and be placed on special measures. There is an obvious attraction, both logical and presentational, in bracketing together all faith schools in this manner, because it avoids any uncomfortable judgments having to be made about Muslim schools in particular.

Ms Mountfield advanced other submissions of a subsidiary nature which I will touch on below.

In his Skeleton Argument Mr Oldham was relatively brief on these matters, preferring (I apprehend) to await the final iteration of the Defendant’s case. I make no criticism of him in this regard because I accept his submission that the Defendant’s position has shifted over time (see ground 8). However, the Defendant’s vacillation can be no more than a forensic point, and ground 8 has no further legs. Either the Defendant is right as a matter of law on Ms Mountfield’s formulations of his case or he is not.

It was not until Mr Oldham’s reply that his case was fully articulated. His submissions may be summarised more shortly than Ms Mountfield’s.

Mr Oldham’s primary submission was that, absent any evidence or finding of differential treatment as between the sexes, the restriction of interaction with the opposite sex amounts to equal treatment of the sexes and (with a rhetorical flourish) “is the very definition of what discrimination is not”. On this approach, it is telling that section 13(5) of the EqA 2010 has catered expressly for segregation in the context of race alone.

Mr Oldham further submitted that the instant case cannot be accommodated within any of sub-paragraphs (a) to (f) of section 85(2). The denial of the opportunity to intermingle is too subjective and elusive a concept to be capable of falling within section 85(2). Given that many would say that single-sex streaming is advantageous in educational terms, and may reflect the religious preferences of parents, it would be wrong in principle to hold that either sex has been subjected to a relevant “detriment”: such a finding would only be appropriate if this were objectively and/or always the case. Additionally, Mr Oldham submitted that the denial of the relevant opportunity to interact could not be a “facility” for the purposes of section 85(2)(b) because it did not exist at this particular school.

Finally, Mr Oldham submitted that the American line of authority was of no relevance to the instant case because it could not be divorced from the particular circumstances of racial discrimination in the US in the 1950s, seen against the historical context.

Mr Oldham also advanced other arguments in support of his case but none of these, it seems to me, has any force. In particular, I cannot accept his point that the Defendant could not find discrimination in these circumstances in the absence of a particular claimant. On my reading of the overall regulatory framework (and, save in one respect, no contrary argument was advanced), the Defendant was entitled to consider the extent to which the School adhered to its obligations under the relevant anti-discrimination provisions of the EqA 2010. It was not incumbent on the Defendant to treat itself as some form of proxy for one of more discrimination claims brought in the appropriate tribunal by aggrieved pupils.

An issue arose regarding the potentially analogous case of segregation between Muslim and Hindu children on the ground of religion. There were also submissions from the parties as to whether, if I were to uphold the Defendant’s case, aggrieved pupils might be able to bring claims for damages in the appropriate tribunal or court. I cannot see how this last matter could affect the legal argument.

The first basic question in any discrimination case is that succinctly identified by Lord Nicholls of Birkenhead in Shamoon v Chief Constable of the RUC [2003] ICR 337, namely:

“… where the act complained of consists of dismissal from employment, the statutory definition calls for a comparison between the way the employer treated the claimant woman (dismissal) and the way he treated or would have treated a man. It stands to reason that in making this comparison, with a view to deciding whether a woman who was dismissed received less favourable treatment than a man, it is necessary to compare like with like. (paragraph 4)”

As I pointed out in argument, this is an application of a fundamental ethical principle which forms part of the substantive content of the rule of law. In a case of alleged direct discrimination, such as the present, the legislative purpose is to secure “formal equality of treatment”: see paragraph 56 of the judgment of Lady Hale in R (E) v Governing Body of JFS [2010] 2 AC 728. (I have not overlooked that this was a decision on the Race Relations Act 1976. However, the basic legislative concepts and terminology have been altered since 1968, and apply equally to the field of sex discrimination and the EqA 2010.)

The second question for the court is to identify the ground, or applicable factual criterion or criteria, for the less favourable treatment. In this regard there are two categories of case: in the first, the court considers in purely objective terms whether the ground for that treatment was a protected characteristic or something else; in the second, the court considers in subjective terms whether the ground for the decision or action constituting that treatment is an intention or motive to disfavour a person or a group possessing a protected characteristic. On Ms Mountfield’s submissions, the first category applies, not the second. In relation to this first category, the motives of the discriminator are irrelevant; and they may be benign. Further, once the fact of less favourable treatment on a prohibited ground is established, the decision or action at issue may then be described as inherently discriminatory: see the judgments of the majority of the Supreme Court in JFS, in particular Lord Mance (paragraph 78) and Lord Clarke (paragraph 132).

In certain contexts the inquiry mandated by this second question may give rise to difficulty, but in my view none arises here. It is plain beyond argument that pupils are segregated in this school on the ground of sex. The fact that the motive for this segregation is religious belief is irrelevant: see JFS. Nor is it relevant that the School is clearly taking into account the wishes and preferences of the parents, and that the Defendant is giving little or no weight to these matters: the short point here is that parental preference, and religious belief, must always cede to the higher normative imperatives of the EqA 2010 (see, for example, Denning LJ in Watt v Kesteven CC [1955] 1 QB 408, at 424; and (by analogy) R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246).

In Shamoon Lord Nicholls also observed that, depending on the nature of the issues and the circumstances of the case, it may be convenient to consider the less favourable treatment issue (the first question) before the “reason why” issue (the second question); but in other cases a consideration of the reasons should be the first line of inquiry. This is because the two issues are often linked in the sense that the answer to one may well provide the answer to the other. I read the first sentence of paragraph 11 of his Opinion (“employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator”), relied on by Ms Mountfield in her latest written submission, as being said in this context alone. Lord Nicholls should not be understood as holding that in a case where the reason why the act in question was carried out is clear, the court should “not be too hung up on the identity of the comparator”.

The issue of what amounts to “less favourable treatment” has been considered at the highest level. Three strands of reasoning emerge from the authorities.

First, “less favourable treatment” requires no more than the identification by the court of some denial of an advantage, benefit or choice which was or would have been afforded to the comparator. It is a concept separate from that of impact or damaging consequences. For example, the denial of a reference for the purposes of future employment would qualify, whether or not that reference would have been helpful. To my mind, the clearest analysis of these concepts is to be found in the Opinion of Lord Hoffmann in Chief Constable of West Yorkshire Police v Khan [2001] 1 WLR 1947, paragraphs 51-53 (but see also Shamoon at paragraphs 34-35).

Secondly, although there has been a tendency in some places to equate “less favourable treatment” with that of “detriment”, they are conceptually distinct (see Lord Hoffmann in Khan, paragraph 53). That said, as Lord Hoffmann continues:

“But, bearing in mind that the employment tribunal has jurisdiction to award compensation for [there is a typographical error in the Law Report] injury to feelings, the courts have given “detriment” a wide meaning. In Ministry of Defence v Jeremiah [1980] QB 87, 104 Brightman LJ said that “a detriment exists if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to his detriment”.” [Brightman LJ’s dictum was also approved by the House of Lords in Shamoon]

Thirdly, and connectedly, the denial of a choice or opportunity which reasonable people would regard as being of value (cf. physical or economic value: a subjective perception of worth will suffice) can amount to discrimination. Thus, in the locus classicus of Gill v El Vino [1983] 1 QB 425, women were denied the opportunity drinking at the bar; and, thereby, a choice of companions. This amounted to the deprivation of a facility which was “greatly prized” by men and sought by the plaintiffs. Similarly, in Birmingham CC v EOC [1989] 1 AC 115, the fewer grammar school places for girls meant that they were deprived of a choice, valued by them or their parents, and on reasonable grounds by others. It was unnecessary to show that selective education was objectively to be preferred to non-selective.

In both these cases, the less favourable treatment related to the provision, or denial, of a facility. In the El Vino case, the facility could be described as the bar area, but the Court of Appeal preferred a less prosaic and tangible attribution. The facility was the opportunity to mingle with others in a particular location. In the Birmingham CC case, the scope of the inquiry was “facilities for education” as specified in section 25 of the Education Act 1980. Here, again, however, the facility was not envisaged by their Lordships as the grammar school place at a particular school, but the opportunity to apply to such a school, if so minded. Viewed statistically, the opportunities were fewer for girls than they were for boys.

I note that paragraph 58(iii) of the Defendant’s skeleton argument asserts, in the context of these cases, that “a denial of an equal choice may constitute less favourable treatment”. I would prefer to characterise the position thus: the less favourable treatment, and the unlawful discrimination, was the denial/circumscription of the relevant opportunity as it related to the facility under consideration. Just as “detriment” and “less favourable treatment” are not synonyms, it is necessary to identify the particular respect in which the discrimination operates.

In Smyth v Croft Inns Ltd [1996] ICR 84, the issue was whether a pub in a loyalist area of Belfast, with Protestant customers, discriminated against a Roman Catholic barman by failing to take effective measures to safeguard him from threats, being measures which would have been taken had he been Protestant. The Court of Appeal in Northern Ireland held that the claim was made out. Ms Mountfield relied on the following passage in the judgment of Sir Brian Hutton CJ (paragraph 28):

“If an employer owned a bar in a Protestant neighbourhood, patronised by Protestants, in which he employed a Roman Catholic barman, and a second bar in a Roman Catholic neighbourhood, patronised by Roman Catholics, in which he employed a Protestant barman, and the employer dismissed both barmen on the grounds that the customers in the respective bars did not like being served by a barman of a religious belief which differed from their own, then on the appellant’s argument the employer could not be guilty of religious discrimination because he did not treat either barman less favourably than the other. I consider that this argument if fallacious. In my opinion the employer would be guilty of religious discrimination against both barmen.”

I see no similarities between Sir Brian Hutton’s example and the instant case. In his example we have two separate establishments and two discrete acts of discrimination. Each must be examined on its individual merits; and the fact that in one sense only (a very limited sense) the employer is being consistent is nothing to the point. In the instant case we have one establishment. Whether or not we have one or two acts of discrimination is a key issue, but no clue to its answer is to be found in Smyth.

Ms Mountfield also relied on a passage in the judgment of Underhill J sitting in the EAT in Hartlepool BC v Llewellyn [2009] ICR 1426:

“This is not therefore a situation where the act complained of is inherently gender-neutral and is only made discriminatory by the fact that a person of the opposite gender would have been treated more favourably. Here the act complained of is inherently discriminatory. It would have been no answer for the local authority in James v Eastleigh BC [1990] ICR 554 to say – no doubt rightly – that it would have acted in the same way if the pensionable age had been 65 for women and 60 for men.” (paragraph 53)

This was said in a context different from the present. The facts of Hartlepool were not altogether straightforward, but in broad outline the EAT concluded that the male Claimants had suffered a detriment, that there were no different circumstances between their cases and those of the female comparators, and that the treatment in question was on the grounds of sex. In such circumstances, the discrimination claim was fully made out because it necessarily followed that men were treated less favourably than women. Underhill J was making the point that it would have been no answer to this claim for the council to demonstrate that it would have acted in the same way if (I would interpolate, by separate and different treatment) the relevant contingent had been women. In my view, that analysis, which is obviously correct and vouched by the highest authority, does not touch on the instant case, where the question at issue is whether separation on the ground of sex amounts to less favourable treatment of one group in comparison with the other. The treatment in the Hartlepool case clearly amounted to less favourable treatment of the male contingent and in that sense was inherently discriminatory. Non constat, in my view, that all treatment which is by reason of a protected characteristic is necessarily less favourable treatment of the possessors of that characteristic, and therefore discriminatory.

The parties referred me to other authority but in my view it did not assist. Neither party referred me to authority in this jurisdiction which directly addresses segregation whether in an educational context or otherwise. I have also looked at a number of standard textbooks on discrimination law but have found nothing which throws much light on this question. Indeed, Ms Mountfield’s first and second submissions have their origin in no juristic or jurisprudential writings that I have been able to identify.

Although not authoritative, I should note the view of departmental officials, expressed at a meeting with the Defendant held coincidentally on 8^th June 2016, that segregation of pupils on the ground of sex is:

“… [e]ssentially … okay provided that two key points are met:

(a)

that there is no detrimental treatment of one gender compared to the other in terms of the quality of teaching etc.

(b)

that the subject choice available to each gender should be the same or at least of equivalent value.”

Ms Mountfield is entitled to submit that the DfE is simply wrong about this, and that I must determine the question on strict legal principles.

The present case clearly raises a point of general public importance as to the true construction and application of key provisions in the EqA 2010. It is a point which has not arisen before, and so must be answered on a first principles basis, applying standard interpretative tools to the language, policy and objects of the statute.

The fact that Ms Mountfield’s first and second submissions are novel, and would (if correct) cause consternation in some quarters, is to my mind neither here nor there. It would be naïve of me to ignore the possibility that my rejection of her first and second submissions (or her case in general) might cause consternation in other quarters.

I have already made clear what cannot be of relevance to the present inquiry: namely, the Defendant’s change of policy and vacillation; the views of others in government; and religious belief and parental preference. I should also make clear that I must not be understood as expressing any opinion about the social and educational merits of sex segregation in schools, whether effectuated for religious reasons or otherwise, and about whether Islam treats women as inferior. The Defendant has proceeded on the basis that the School ostensibly treats boys and girls equally, from which it may be inferred that it has found no evidence to the contrary. It follows that the Defendant is not saying, for example, that the School is following a particular interpretation of the Qu’ran which denigrates or depreciates women, and/or that there is something specific about the teaching it furnishes which conveys that message. Nor should I be understood as opining that the Defendant would or should have found evidence of this sort had it only looked harder.

In putting the issue in these terms I am not overlooking the discovery of the offensive books in the School library which clearly do treat women as subordinate to men. At one point in her oral argument Ms Mountfield did appear to recruit the discovery of these books in support of her over-arching submission on less favourable treatment. However, the Defendant did not do so in any version of the June 2016 report, and in my view it is not open to Ms Mountfield to expand her client’s reasoning in this manner. In my view, the books raise a separate issue.

I do not take issue with much of Ms Mountfield’s analysis. First of all, assuming that segregation on the ground of sex amounts to less favourable treatment, I would agree that it would only not be unlawful discrimination if either section 158 or section 195 applied, and neither does. Secondly, I agree that no assistance may be gained from considering the statutory exclusion in relation to single sex schools. Although Schedule 11 disapplies section 85(1) (admissions) and not sub-section (2) (treatment), the latter sub-section has to be considered in relation to a school where no members of the opposite sex are present at all. Thus, any claimed discrimination has to be evaluated in that specific context, not the context of a mixed school. The instant case is not concerned with the extent to which those responsible for a single sex school might need to take positive steps to ensure some intermingling between the sexes to enhance their overall education. Mr Oldham advanced other arguments, in the context of his sixth ground, to the effect that the Defendant’s reasoning in relation to single sex schools is faulty; and that, in addition, there has been unwarranted inconsistency. The short answer to these arguments is that Parliament, whether anomalously or otherwise, has fashioned an express exception for such schools.

Thirdly, I would hold that, at least in principle, the denial of the choice to seek the society of and interaction with the opposite sex, and of the educational benefits which might flow from the exercise of that choice, is capable of amounting to the denial of a “benefit” or “facility” for the purposes of section 85(2)(b), read in conjunction with section 212(4); and, as a possibly better fit, the subjection of the pupils to a “detriment” for the purposes of sub-paragraph (f). It is an opportunity which reasonable people would value, and there is some evidence that pupils at this school do regret its absence. The concepts of “detriment” and “facility” are, as we have seen, extremely broad, and are apt in my view to accommodate opportunities and choices which are intangible. (Imagine a situation where, in a mixed school, a small group of girls are segregated from the remainder of the pupils who are not segregated inter se: this small group will suffer a “detriment” and be treated less favourably than the majority contingent). Ms Mountfield’s case could not succeed if the treatment complained of fell outside section 85 of the Act; but, as Lord Hoffmann has pointed out, the identification of a “detriment” is not, without more, to be equated with proof of less favourable treatment.

Thus, the key question is whether the denial of this opportunity to both sexes amounts to “less favourable treatment” for the purposes of section 13(1) read in conjunction with section 23(1).

In her additional written submissions furnished after the close of the hearing (which in my view went further than they should have done in responding to Mr Oldham’s arguments in his reply), Ms Mountfield sought to persuade me that the question of the comparator is not something which I should be overly concerned about, and that it is sufficient to show detrimental treatment “in an otherwise analogous situation to others”. In my judgment, Ms Mountfield has misunderstood Lord Nicholls in Shamoon (see paragraph 102 above) and seeks impermissibly to elide the concepts of “less favourable treatment” and “detriment”. It is this elision which enables her to submit, wrongly in my opinion, that the question of segregation from whom is not strictly relevant. The matter is further obfuscated, if I may say so, by the introduction of the impenetrable phrase, “in an otherwise analogous situation to others”. This notion is advanced slightly more clearly at a later point in her written argument (paragraph 19), and leads to the submission that the real question here, if detriment were made out, is the reason why the treatment is imposed. In my view, that is not the real question in this case. The “reason why” is obvious; whether it amounts to less favourable treatment is not.

To be clear: I agree with Ms Mountfield that the segregation is on the basis of a protected characteristic. I also agree that segregation is treatment which is capable of falling within section 85(2)(b) and/or (f). However, I cannot agree that the investigation may conclude at that point; the section 13/23 question remains to be answered.

I am therefore obliged to pose and answer this question: is one sex being treated less favourably than the other?

On analysis, it seems to me that the Defendant’s case is founded on the proposition that two groups are being discriminated against: the boys (when compared with the girls, and the opportunities enjoyed by the latter for mingling inter se); and the girls, vice versa. Thus, there is equal or mirrored discrimination, and the two treatments cannot, as it were, cancel out the other (or, possibly on this formulation, one treatment resulting in two discriminatory consequences).

In my judgment, a broad and sensible evaluation of what is happening here is required by the statutory language. The treatment in question is segregation of the pupils on grounds of sex. It is not helpful to say that the treatment occurs twice (in relation to each contingent) or maybe over several hundred times (for each and every boy and girl at the school). This is because each sex must be viewed as a group - there is no material difference (inter se) between any of the boys and any of the girls – and the comparison must be made between the two groups. Further, it is not helpful in my judgment to say: let’s start with the girls and then we will look at the boys. They can be considered simultaneously, because that is the effect of segregating them down the middle.

On this simultaneous approach (or an approach which regards the two sexes as interchangeable at all stages of the analysis), both sexes are being denied the opportunity to interact/socialise/learn with or from the opposite sex. Given that no material distinction is to be found between the two sexes for these purposes (without prejudice to Ms Mountfield’s third and fourth submissions), this is the fairest and most legally accurate way of describing what is occurring. It is also non-discriminatory. In my judgment, it is artificial to say that the denial to the boys of the opportunity to mix with the girls (which the latter enjoy as between themselves) is somehow different from the opportunity being denied to the girls. It would only be different if there were some qualitative distinction for these purposes between male and female interaction (each looked at inter se), but in my judgment there is not. What we have here is the denial of interaction or concourse with the opposite sex which has equal value and impact, and is of the equivalent nature and character, in relation to both sexes.

In my view, it is preferable to envisage the issues in this way rather than to proceed along the “different but not less favourable” pathway pressed in argument by Mr Oldham, reliant as he was on the case of Smith v Safeway [1996] ICR 868 decided on very different facts. However, to the extent that female interaction inter se might be said to be different to comparable male interaction, I would hold that the denial of the one is not less favourable than the denial of the other.

On this analysis – one act/treatment of equivalent nature and character, and with equivalent consequences for both sexes – it cannot be said, in my judgment, that one sex is being treated less favourably than the other. Substantially adapting Lady Hale’s phrase in JFS (paragraph 69), there is symmetry between both contingents on either side of the line. The circumstances of the case (per section 23(1)) are the same, or at the very least do not materially differ, as between the sexes. To suggest otherwise is strained and artificial.

Thus far, reference has not been made to section 13(5) of the EqA 2010. I agree with Ms Mountfield that it provides only weak support for the Claimant’s case. An equivalent provision was to be found in section 1(2) of the Race Relations Act 1968, and there has never been such a provision in any other anti-discrimination legislation. In declaring that segregation on the ground of race is inherently discriminatory, Parliament in 1968 had well in mind the sort of considerations which have underpinned liberal thinking on the subject in the USA: although not on my understanding a feature of educational practice in the UK in the 1950s and 1960s (the 1968 Act being enacted for other reasons), segregation on the ground of race has a specific resonance. In 2010 Parliament must be deemed to have decided that there was no basis for removing a stipulation of some considerable pedigree. It cannot be deemed to have thought through all the ramifications, including the implications for segregation on the basis of other protected characteristics. In this way, it is open to Ms Mountfield to submit that section 13(5) is a piece of legislative archaeology; an avoidance of doubt provision which throws no light elsewhere.

Even so, the inclusion of section 13(5) provides some modest support for the Claimant’s case, at least by this stage of the analysis, inasmuch as Parliament, at one stage over the last forty years or so, must be deemed to have considered that segregation on other grounds is not inherently (i.e. by definition) discriminatory, and that some additional factor had to exist. Yet on analysis the Defendant’s case, at its highest, sees no need for such an additional factor: to contend that girls are denied the social interaction that is enjoyed by boys, and vice versa, comes close to saying that separation on the grounds of sex is discriminatory – by definition and without more. Such an argument, if correct, could almost always be made (and in my opinion could always be made in an educational context).

Some time was spent considering the hypothetical case of segregating between Muslims and Hindus, but otherwise apparently treating them equally. Reference might have been made by Counsel to Lord Rodger’s example of segregation between Roman Catholic and Jewish children (see paragraph 223 of his judgment in JFS) – “religious discrimination of the worst kind”. I entirely agree that the enforced separation of Muslim and Hindu children would be an egregious case of religious discrimination. The inference must be in any given case that the more powerful group was imposing its will on the weaker, with correlative express or implied disadvantages. Thus, discrimination would ensue not because the Defendant’s first and second submissions are right, but a variant of the third. The instant case is not of course about compulsory discrimination at all, and with respect to the parties I simply cannot envisage a situation in the United Kingdom where Muslim and Hindu parents would freely endorse arrangements of this sort, and/or where the governing body of any hypothetical school would accept them. In any event, if this example is being deployed by the Defendant in support of its first and second submissions, then a factual scenario would need to be hypothesised where approximately half of the pupils in the school were Muslim, and the other half were all Hindu – a fanciful state of affairs. As soon as other children are factored into this hypothetical case, bringing it slightly closer to the real world, it either becomes unworkable in practice or obviously discriminatory.

Given that I am rejecting Ms Mountfield’s first and second submissions on what may be described as fundamental grounds of principle, it is unnecessary for me to address Mr Oldham’s subsidiary arguments, not all of which I have listed. For the avoidance of doubt, I wholly repudiate any suggestion that, other things being in the Defendant’s favour, the pupils have not been denied an existing facility (see Clymo v Wandsworth LBC [1989] ICR 250). In that case, job-sharing arrangements did not exist in a particular employment context, so there was no detriment which could be said to have been sustained. In the present case, if (but only if) the proper comparison is, in the case of girls, the opportunities afforded to boys to mingle inter se, it is immediately apparent that such opportunities do exist. Accordingly, there is an existing facility. To say that the same opportunities do not exist in relation to the girls (to mingle with boys) proves – from Mr Oldham’s perspective - too much.

I now turn to address Ms Mountfield’s third and fourth submissions. In my view, these are both based on the unspoken premise that what is occurring here is that the girls are being segregated from the boys because they are regarded as inferior (or that the impact of doing so is to reinforce notions of their inferiority), and/or that the boys are being segregated from the girls because they are superior.

The third submission did not feature heavily in oral argument. Mr Oldham chose to ignore it, taking the view that the third and fourth submissions are synonymous. I would tend to agree that there may not be much difference between them, and for present purposes it makes sense to construe the third submission narrowly and the fourth submission broadly. As regards the former, Ms Mountfield may have drawn comfort from my relatively early indication that I was content to take judicial notice of the fact that women have been, and still are, the group with minority power in society (I should make clear, as I hope I did at the time, that I would accept the generality but not necessarily the universality of that proposition). Notwithstanding this, I cannot accept that the third submission is well-founded. The difficulty I have with it is that there is no evidence in this case that segregation in a mixed school, still less segregation in an Islamic school, has a greater impact on female pupils. The June 2016 report does not provide the evidential springboard for Ms Mountfield’s third submission, and these are judicial review proceedings. The August 2016 amendments supply the evidential groundwork for the first and second submissions, but the Defendant has not sought to explain how and why segregation particularly disadvantages girls. I have little doubt that educational experts would have much to say on this topic, but I have not heard it within the four corners of this litigation. I will return to this issue at paragraph 143 below, but I reject Ms Mountfield’s third submission.

In my view, Ms Mountfield’s fourth submission is more sophisticated and compelling than her third. The essence of her case is that “making separate but equal provisions for boys and girls (or blacks and whites, or heterosexuals and lesbians and gay men etc.) cannot be divorced from the historic and current societal treatment of the less powerful group.” Put another way, but to the same effect, segregation has the tendency to promote social and cultural stereotypes about the role of women in society.

Insofar as her fourth submission is buttressed by authority rather than first principle, Ms Mountfield relied on the unanimous decision of the Supreme Court of the United States in Brown v Board of Education (loc.cit.) where it was held, Chief Justice Warren giving the sole judgment, that treatment of this sort is inherently unequal in relation to African-Americans because it “generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone”; and was therefore a violation of the 14^th Amendment, in particular the equal protection provision appearing at the end of section 1. Similar reasoning is to be found in subsequent decisions of the US Supreme Court, and the decision of the Constitutional Court of South Africa in Minister of Home Affairs v Fourie and others (Case CCT/60/04).

In order to place this jurisprudence in its proper context, a brief historical note is required. The 14^th Amendment to the US Constitution was one of three amendments introduced in the post-Civil war period of Reconstruction in an endeavour to entrench and safeguard the position of the recently-freed African-American and accord guarantees as to equality of treatment. As is well known, the Southern States, where the vast majority of African Americans lived until well into the last century, proved able to sidestep, circumvent or ignore the 14^th Amendment, and one of the starkest and most emblematic form of this enforced inequality was segregation in schools on the ground of race. Looking at the facts of the various cases considered by the Supreme Court in Brown, it was not practised in mixed schools: African-American children were “bused” to separate institutions. Although the argument was made (and successfully upheld in Plessy v Ferguson [1896] 163 US 537 (Footnote: ²)) that black children were on one level being treated in the same way as white, because the education provided did not differ materially, it was or ought to have been apparent that the whole point of putting these children in separate institutions was to emphasise their inferiority: this was precisely why the Southern States (Footnote: ³) were doing it. It followed that the African-American, profoundly aware of these reasons, would inevitably experience the “feeling of inferiority’ mentioned by Chief Justice Warren (Footnote: ⁴). In this sort of situation, it makes no difference whether the focus of inquiry is the grounds or factual criteria of the discriminator, or the reaction of the group being discriminated against.

For the purposes of the EqA 2010, seen through the prism of the JFS case, it may be argued that Brown places undue weight on the question of motive (see paragraphs 100-101 above). I am not sure that this matters. In principle at least, the “feeling of inferiority” (if proven) could properly be envisaged as both the less favourable treatment and the relevant “detriment”. In any event, I would not hold Ms Mountfield to her analysis that the instant case falls into the first category (an objective assessment alone) rather than the second category (a subjective assessment).

Mr Oldham did not make the point that Brown turned on the language of the relevant section to the 14^th Amendment which is worded differently to sections 13 and 23 of the EqA 2010. In my view, he might have done; the language of the domestic statute is narrower. Further, submissions could have been advanced as to the differences between the approach of a foreign constitutional court to the provisions under scrutiny, and the domestic court to a Parliamentary statute. One may debate whether the EqA 2010 should be regarded as a constitutional statute, but in my view the common law has not yet reached the stage whereby different canons of statutory interpretation should be applied to such instruments. Although the US Supreme Court applies common law principles, I cannot assume that these are the same as ours, and am well aware of the differences of view within that court as to how the US Constitution should be interpreted. Overall, I remain to be persuaded that Brown and its jurisprudential progeny are directly applicable to the present context.

Even so, I can see that these are technical arguments, and the objection should not be taken too far. Putting to one side the terms of the 14^th Amendment, Ms Mountfield is entitled to point to the factor identified by the US Supreme Court as constituting a breach of that provision – perpetuating notions about the inferiority of women – as being in effect the same factor which constitutes less favourable treatment and “detriment” for the purposes of the EqA 2010. Thus, the fourth submission best proceeds by referencing Brown as a general signpost, not as directly in play, but applying by loose analogy.

In my view this is a powerful submission which cannot be lightly dismissed. Having thought carefully through its ramifications, I have concluded that it is incorrect. My reasons fall under three headings.

First, there are obvious differences between compulsory segregation on the ground of race in the USA and South Africa, and voluntary segregation on the ground of sex in mixed schools in the United Kingdom. Both in the USA and South Africa there was a plain and obvious link between (a) the mores and attitudes of those exercising majority power in society, (b) government policy (in relation to the USA, I am not referring to Federal Government, but to the individual States), and (c) the means which were customarily deployed in the field of education to impose a racist ideology. Before anti-discrimination legislation was introduced in 1965, the UK government, whether central or local, might in theory lawfully have segregated children on the ground of race, but I am unaware that they made a practice of it. More importantly, the UK government does not routinely, still less compulsorily, segregate on the ground of sex in public education, and I do not understand it to have a policy on this issue. If asked about it, on the basis that all schools are within her remit, the Secretary of State would presumably say that she would defer to the court’s interpretation of the EqA 2010. Insofar as segregation on the ground of sex is practised in mixed schools in the UK, it is a practice carried out by a minority of schools with a Jewish, Christian and Islamic ethos, with the full participation of parents.

In short, segregation in mixed schools in this country is not the practice of government; it cannot be envisaged as any reflection of the mores and attitudes of wider society; it is only capable of being seen as a reflection of the mores, attitudes, cultures and practices of the faith groups who have been permitted to do it.

Secondly, I would be very slow to conclude that segregation in this Islamic school “generates a feeling of inferiority as to [the] status of [the female gender] in the community” (adapting the ratio of Brown to cover the present case). Some might say that this is axiomatic, but to my mind that would be too broad and sweeping a judgment to make in a multi-cultural society, particularly in circumstances where the separation is not enforced but elected by the parents. I consider that some supporting evidence is required, and none is available. As I have noted, a number of the children at the School complained to the Defendant’s inspectors about this practice, but none suggested that it made girls feel or appear to be inferior.

Thirdly, and flowing on from my first reason, the Defendant’s argument would only be well-founded if it could be established that faith schools in general, and Islamic schools in particular, segregate the sexes because they regard the female gender as inferior, and/or that girls should be separately prepared for a lesser role in society. If that were the case, it would follow that (i) girls are subjected to a greater or particular detriment (Ms Mountfield’s third submission) and (ii) it would not be possible to divorce the making of separate but equal provision for girls and boys from the historic and present treatment of the less powerful group within this culture (adapting the way in which the fourth submission was advanced: see paragraph 134 above).

Neither the Defendant in its June 2016 report (including the August 2016 amendments) nor Ms Mountfield has made that argument. Instead, the fourth submission was sedulously tethered to “society” (I would add, as a whole), and not to any particular section of it. I understand the Defendant’s unwillingness to go further, but the consequence must be that I am not required to address this point: it is a non-issue in this case. Lest I should be misunderstood, I should make clear that had the Defendant laid the groundwork for such an argument in its report, and stated in terms that Islamic schools segregate because their religion (or their interpretation of it) views girls and women as second-class citizens, I would have been duty-bound to address the issue. However, I would only have done so on the basis of evidence; this is not a topic which lends itself to the taking of judicial notice. The matter is not axiomatic (Footnote: ⁵); it has not been asserted by the Defendant; and I am therefore required to express no view upon it.

The submission was squarely made by Ms Mountfield that “religious conviction is not a solvent of legal obligation” (per Mason ACJ and Brennan J in Church of the New Faith v Commissioner of Pay-Roll Tax (Victoria) [1983] 154 CLR 120), but that is not the same as saying that segregation for religious reasons is always discriminatory. If segregation is discriminatory for other reasons (or, more precisely, following JFS, on other grounds, on account of the factual criteria deployed), it would follow that it could not be excused by recourse to faith-based rationales. But, if that is not established, segregation for religious reasons is not, without more, discriminatory. Put another way, the School’s rationale for this practice should be seen as neither a virtue nor a vice; it is entirely neutral.

In the particular circumstances of this case, it is unhelpful to say that segregation on the ground of sex is inherently discriminatory and therefore inimical to the policies and objects of the EqA 2010; or that the treatment here is not “gender-neutral”. As we have seen from JFS and other cases, less favourable treatment on the ground of a protected characteristic is inherently discriminatory. But the issue here is not the identification of the ground but proof of less favourable treatment. In the absence of proof of such treatment, there is no discrimination at all; and the adverb “inherently’ cannot advance the debate. In this respect section 13(5) of the EqA 2010 is different, inasmuch as it deems segregation to be discriminatory in the field of race; and no further inquiry is required.

In my judgment, the Defendant has not established that the School (i) discriminates against its male and female pupils by denying them opportunities to interact with or learn from the opposite sex, and (ii) discriminates against its female pupils by treating them as inferior. The criticisms in the June 2016 report which are based on the proposition that the School does cannot stand.

I did not receive argument as to whether the Claimant was in breach of its public sector equality duty under section 149 of the EqA 2010 by failing to promote equality of opportunity. This may be a broader concept than discrimination. However, invoking this concept does not improve the Defendant’s case, for this reason. The June 2016 report does not rely on any additional or separate matters as constituting the section 149 breach. In other words, and subject to paragraph 173 below, the case on sex discrimination and the case on breach of the public sector equality duty is advanced in exactly the same way, and both stand or fall together. There is no evidence that the School has circumscribed opportunities for its female pupils.

Mr Oldham made a number of submissions under this rubric. First, he submitted that nothing had changed since December 2015 (when no point was taken by the Defendant as regards segregation), and that the Defendant therefore acted irrationally by making such a fundamental criticism of the School’s practice in the June 2016 report. Secondly, he submitted that a public body cannot change its mind irrationally so as to abuse its powers. Thirdly, he submitted that, in the particular circumstances of this case, a breach of the EqA 2010 did not reflect on the leadership and management of the School; and, in any event, that the Defendant was not presented with a binary choice in June 2016: in the circumstances of the present case, it could and should have afforded the Claimant a reasonable opportunity to consult its stakeholders and decide what action could and should be taken to address the Defendant’s concerns.

I must consider this ground on the premise that I am wrong about the sex discrimination point.

In my judgment, Mr Oldham’s first and second submissions are not well-founded and may readily be rejected. In Old Co-Operative Nursery v Ofsted [2016] EWHC 1126 (Admin) Coulson J held that the Defendant’s inspections are not one-off events and that “a system of inspection which ignores previous inspections runs the risk of turning the whole process into a lottery”. But this was in the context of making value-judgments about the quality of the educational provision the school was offering. Segregation on the ground of sex, although obvious to all the previous inspectors, does not entail this sort of value judgment. Essentially, it is a legal judgment or conclusion based on evidence which cannot be in dispute. If, on an earlier occasion, the legal judgment was incorrect, then it seems to me that the Defendant – subject to the Claimant’s third submission under this rubric – is bound to correct it.

On my understanding of his submissions, Mr Oldham did not raise a similar objection as regards the discovery of the offensive literature in the school library. He was right not to do so. The evidence was so clear, and the Claimant’s explanation for this state of affairs so unsatisfactory, that the Defendant was surely entitled to consider that the proper inference to be drawn was that there had been a significant failing of leadership and management at this school. Similar points arise in relation to the inadequate risk assessments.

Mr Oldham’s second submission was that a public body cannot change its mind irrationally so as to abuse its powers. I was taken to the decisions of the Court of Appeal in R v IRC, ex parte Unilever [1996] STC 681 and R (oao Tate & Lyle Sugars Ltd) v Secretary of State for Energy and Climate Change [2011] EWCA Civ 664. There are of course situations where the public law duty to act fairly and consistently means that a change of mind, in the absence of an overriding public interest, may amount to an abuse of power; but in my judgment the instant case is far from these. I do not consider that the Claimant could properly draw any legal comfort from the earlier decision being (ex hypothesi) plainly incorrect in law; and that the Defendant should somehow be precluded from departing from it. Unilever and Tate & Lyle are not examples of cases where the facts were identical at all material times and the decision-makers’ view of the law changed – with that change of mind being correct.

Mr Oldham’s third submission has greater force than the first two under this ground. During the course of the hearing, I expressed concern about the apparent unfairness of viewing the discriminatory practice of segregation as a leadership and management failing in circumstances where the School may have been forgiven for thinking that the Defendant had no problem with it for a number of years. At the very least, the School should have been given a broader opportunity to respond to the Defendant’s change of mind, to reflect, to consult and to take appropriate reactive measures.

Ms Mountfield’s riposte to this limb of the Claimant’s case was that the Defendant’s published guidance makes clear that a breach of the EqA 2010, and a finding that discriminatory treatment has occurred and is still occurring, will ordinarily result in an assessment that the leadership and management at the school is inadequate. Given that segregation on the ground of sex is one of the defining characteristics of this school, it is impossible to say that, if discriminatory, it does not reflect on leadership and management at the school. Further, the EA 2005 lays down an exhaustive and comprehensive framework for giving the school the opportunity to comment etc., in line with the requirements of basic fairness, and there is no room for any additional or broader opportunity to reflect and respond. Although the imposing of special measures has immediate and serious consequences, the wider public interest and the need to safeguard the rights and interests of children amount to overriding considerations.

I confess that I have not found Mr Oldham’s third submission easy to resolve, and the merits of each side’s cases are finely balanced. I reiterate that this submission must be addressed on the basis that I am wrong on the main points of principle raised by this case, and that the Defendant was therefore entitled to conclude that segregation on the ground of sex was and is discriminatory.

I doubt whether the conferring of any additional time or opportunities to reflect and consult would have made any difference in this case; the School would have stood its ground, and there would still have been litigation. I also accept Ms Mountfield’s submission that a finding of discrimination ordinarily impacts on leadership and management at a school: not merely is this a serious matter, the Defendant’s published guidance makes that clear. Even so, I remain troubled by the fact that the leaders and managers at this particular School have acted in a consistent manner for several years, without complaint by the regulator, and could also look to other schools up and down the land where similar practices have been condoned. On reflection, I consider that in the circumstances of the instant case, it is not a question of leaders and managers being forgiven for thinking that everything was in order; I would go further, and hold that they were entitled to think that, until informed otherwise and given a proper opportunity to reflect, respond, take legal advice, and if appropriate implement remedial measures to address the issue. Furthermore, I do not consider that the EA 2005 serves to exhaust the rights stemming from the general principle of fairness: see R v Home Secretary, ex parte Doody [1994] AC 531 at 562D. The situation was not so urgent that it required immediate remedial action to safeguard the rights and interests of children. On the contrary, the status quo had subsisted for a considerable period of time without there being any evidence of harm to the children or major disgruntlement within the School. In the rather unusual circumstances of the present case, I would hold that the Claimant should have been given a longer period in which to sort itself out.

Nonetheless, I am unable to grant the Claimant any relief on this ground, for this reason. The Defendant’s judgment that leadership and management at the School was inadequate was also based on the discovery of the offensive books in the library and the failings in relation to safeguarding and record-keeping. Having regard to the Defendant’s published guidance, and to Mr McNeillie’s evidence that he would still have graded leadership and management as inadequate if the segregation issue were removed from account, it seems to me that the public interest required no more, and no less, than compliance with the fairness obligations set forth in the EA 2005. It follows that my concerns about the segregation issue (assuming, contrary to my analysis, that the Defendant’s case on the law is correct) cannot make any difference to the outcome of this case.

Accordingly, I reject the Claimant’s case under this ground.

Mr Oldham advanced a number of submissions under this rubric. First, he submitted that the School was unfairly singled out, and that the inspection of 14^th/15^th June 2016 was effectively a “show trial”. Secondly, he submitted that Mr McNeillie’s decision-making was infected by actual bias inasmuch as he was unduly pressurised to reach adverse conclusions about the School and “perhaps without knowing it, he succumbed to that pressure”. Thirdly, he submitted that at the very least, there is an appearance of bias in that “the fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility that the tribunal [here, the lead inspector] was biased”: see Porter v Magill [2002] 2 AC 357.

Again, I must examine this ground on the footing that I am wrong on the sex discrimination point.

In my judgment, it is necessary to be clear about the issues Mr McNeillie had to determine. If Ms Mountfield’s submissions of law were correct, it would follow that a finding of sex discrimination would have to be made in the instant case because it is common ground that section 158 and section 195 of the EqA 2010 do not apply. The evidence was, I repeat, patent and everywhere to behold. It also follows, in my view, that no amount of bias on the part of Mr McNeillie could affect the matter. He would be bound to reach a certain conclusion as a matter of legal judgment, and his predisposition to arrive at that conclusion, by virtue of bias, should be regarded as interesting but irrelevant. Further, I do not understand Mr Oldham to be submitting that Mr McNeillie’s adverse conclusions on other matters (e.g. the books found in the library) could have been, or were, affected by the same bias; and I find that they could not have been. Nothing set out in any of the Defendant’s documents to which I have made reference (see paragraphs 20 to 22 above) had any logical or practical connection with these matters.

As it happens, the position is slightly more complex than I have just outlined because Mr McNeillie did not in fact share Ms Mountfield’s binary view of the relevant provisions of the EqA 2010. On my reading of his evidence, he believed that the School might be able to exonerate its actions by advancing some “educational justification” for its policy (in his estimation, this is not a synonym for a justification which falls within section 158 or section 195), and/or by setting out the measures it was taking to ameliorate the impact of its policy. In my judgment, he was wrong to embark on these lines of inquiry, but the fact that he did is scarcely evidence of bias; it points the other way. No separate educational justification was advanced by the School for him to consider. Furthermore, nothing contained in the various documents sent to Mr McNeillie over the relevant period could have had any impact on his decision-making in these respects.

To be fair to Mr McNeillie, I must not duck the issue and should either find the case of actual bias established, or acquit him of the charge. In categorically denying that he was put under any pressure to reach certain conclusions, it seems to me that he was protesting too much. However, he was a solid, fair-minded witness with the right instincts and temperament for making often difficult judgments in sensitive areas, and overall I am not satisfied that he approached his duties with a closed mind.

In my judgment, the fair-minded and informed observer would undoubtedly conclude, having regard to all the circumstances of the instant case, that those senior to Mr McNeillie were making quite sure that previous errors would not be replicated. The hypothetical observer would no doubt baulk at some of the tendentious language deployed (e.g. “blatant”; “tolerated”) as well as the overall tone of a number of the documents. The same observer would also think that Mr McNeillie must have been aware that his decision-making was being scrutinised at the highest level. But I do not accept that this individual would conclude, having seen and heard Mr McNeillie give evidence, that there was a real possibility that his judgment – insofar as there were value-judgments to be made about this School – might be distorted, undermined or subverted.

There is nothing in the point that this School was “singled out”. The Defendant’s policy was clearly in a state of flux after the training days in January 2016 and, in particular, after HMCI’s letter to the Secretary of State dated 27^th April 2016. It is clear to me that the Defendant was moving towards the view that segregation in mixed schools on the ground of sex is unacceptable under the EqA 2010. The Claimant just happened to be the first school which fell within HMCI’s line of sight.

Accordingly, I reject the Claimant’s case under this ground.

Relying on the well-known decision of the Court of Appeal in R v Westminster CC, ex parte Ermakov [1996] 2 AER 302, Mr Oldham submitted that the Defendant cannot rely on the “new and contrived wording” in the August 2016 version of the June 2016 report because it changes Mr McNeillie’s original reasons. As before, I must approach this ground on the premise that my conclusion on the sex discrimination issue is incorrect.

In my judgment, there is nothing in this ground. Although Mr McNeillie was not the author of the August amendments, I do not consider that they significantly altered the meaning and intendment of the report. Reference had already been made to the EqA 2010, admittedly in the specific context of the public sector equality duty. The overall point being made, not as well as it might have been, was that segregation on the ground of sex was inimical to equality of opportunity and raised issues under the Act. In August the point was more clearly made that segregation on the ground of sex amounted to unlawful sexual discrimination under the same Act. At least as regards Ms Mountfield’s first and second submissions (see paragraph 86 above), this is an inference of law which flows from facts which are not in dispute; and, in any event, all the relevant factual matters were set out in the original iteration of the June 2016 report. I see no reason why the Defendant is somehow precluded from running with this issue, and no useful purpose would be served by artificially constraining the Defendant in this regard. Even were the June 2016 report as originally formulated were to be quashed, the Defendant would merely send out another version which more clearly relied on the anti-discrimination provisions of the Act. The point might as well be addressed now.

I should add that, had the August 2016 amendments purported to include what I have called the evidential springboard for Ms Mountfield's third and fourth submissions on the sex discrimination issue (grounds 4 and 5), I would have taken a different view.

On Mr Oldham’s analysis, ground 3 is wholly dependent on ground 2. I have found against him on that ground, so ground 3 fails.

As for ground 9, Mr Oldham invites me to examine the public sector equality duty on the footing not that he is right about grounds 4 and 5, but that he is wrong. There would be no utility in approaching the question on the alternative premise. His submission is that the Defendant failed to take into account that its decision had implications for pupils and their parents having protected characteristics. However, I entirely agree with Ms Mountfield that this is a hopeless contention. If the Defendant’s analysis of sex discrimination law is correct, then it seems to me that it fully complied with its section 149 duties: it could have done no more, and no less. Any different course of action would have placed the Defendant in breach of its duties under the EIA 2006, its section 149 duty, and its own policies.

Mr Oldham also criticised one aspect of the Defendant’s reasoning: that failing to treat the sexes equally amounted to a breach of fundamental British values. According to this submission, the concept of fundamental British values does not include equality of opportunity and/or sex discrimination. I can see, just about, that there may be room for a difference of opinion about this, but the point is an entirely arid one. If the Defendant were right on the law on the main ground, it had ample basis for giving the inadequate grading even without recourse to fundamental British values.

In my judgment, this too raises a short point which may readily be dismissed. I accept Mr McNeillie’s written evidence, as to which he was not cross-examined, that he would have reached the same overall conclusion, and placed this School on special measures, even had he reached a different conclusion on the sex discrimination point. However, this does not mean that the outcome for the Claimant would not have been substantially different even if the relevant error of law not occurred. The Defendant cannot now publish the June 2016 report in its present form; it requires significant amendment and excision in the light of my rulings; and the Claimant is entitled to a further opportunity to comment.

I have granted permission to apply for judicial review on Amended Grounds 1, 2, 4 and 5 but refused permission elsewhere.

I have upheld the Claimant’s case on grounds 4 and 5, but dismissed it on grounds 1 and 2. In short, I have held that segregation in this School on the ground of sex does not constitute discrimination under sections 13, 23 and 85 of the EqA 2010. It follows that the June 2016 report cannot be promulgated in its current form.

I will now receive submissions from Counsel as to the form of relief.

Permission to apply for judicial review on grounds 1, 2, 4 and 5 is granted (as those grounds are numbered at paragraphs 70-79 of the Judgment).

Permission to apply for judicial review is refused on all the remaining grounds.

The Claimant’s claim for judicial review is allowed on grounds 4 and 5, but dismissed on grounds 1 and 2.

The Defendant shall re-examine the June 2016 report (including the amended version dated 10^th August 2016), shall in the light of the Judgment excise those parts that refer to a breach of the Equality Act 2010 by reason of sex segregation, shall reconsider the judgments and assessments reached and shall afford the Claimant an opportunity to comment pursuant to section 13(2)(b) of the Education Act 2005 prior to publication.

The case will continue to be known and reported as in the title set out above.

Pursuant to CPR 39.2(4), no report of or relating to this claim and in whatever form shall name or refer to in such a way that they can be identified the school that is the subject of these proceedings.

Nothing in this order prevents publication of the report, naming the school, upon the Defendant having taken the steps referred to in paragraph 4 hereof.

The Defendant shall pay 50% of the Claimant’s costs, to be subject to a detailed assessment if not agreed.

The Defendant shall have permission to appeal to the Court of Appeal.

The Claimant shall have permission to appeal (or to cross-appeal) to the Court of Appeal on grounds 1 and 2 only.