Ngole, R (On the Application Of) v University of Sheffield

The claimant, a former student, brings these judicial review proceedings to challenge the decision of his university to remove him from his course.

He asks the court to review a series of events involving a number of broad issues of public policy: the conscientious objection of some Christians to same-sex sexual relations (or ‘homosexual practice’), the importance of freedom of expression in a democratic society, the reciprocal rights and responsibilities of universities and their students, and the nature and regulation of the social work profession.

The court’s task is to consider these general matters of public interest in a very particular way. It must identify the specifically legal principles capable of answering the claimant’s question about whether the university acted lawfully. And it must apply those principles with care and fairness to the detail of the facts of the present case.

The claimant, Mr Felix Ngole, enrolled as a mature student on Sheffield University’s MA Social Work course in September 2014. This was a two-year course leading, on successful completion, to registration and practice as a qualified social worker. It was not a purely academic course.

Mr Ngole is a sincere and practising Christian who takes the Bible to be the full and authoritative word of God; he says he relies on it for instruction in all matters.

In September 2015, at the beginning of his second year, there was an internationally prominent news story about the release from jail of Kim Davis, an American registrar who had been imprisoned in the USA after Christian conscientious refusal to administer same-sex marriages. The coverage of the story on the American NBC news website gave an opportunity for the public to post comment on it. Mr Ngole did so from his personal Facebook account (‘the NBC postings’).

His first post was to the effect that same-sex marriage was a sin. Challenged by another poster to demonstrate that the Bible said so, he responded by citing a number of Biblical passages. The public website conversation continued at some length, with a number of contributors, and Mr Ngole contributed around twenty or so very short posts before withdrawing from it. Among the posts was a reference to same-sex marriage as detestable to God; an observation that Homosexuality is a sin, no matter how you want to dress it up; a post including the devil has hijacked the constitution of the USA. This is a country that was built on the values of Christianity. Now it’s worse than a country worshipping idols; quotations from the Biblical book of Leviticus describing same-sex sexual relations as an abomination; other Biblical quotations on the subject; general references to the Bible as condemning ‘homosexuality’; an observation that It is a wicked act and God hates the act; God hates sin and not man;and an observation that He will also judge all those who indulged in all forms of wicked act such as homosexuality.

These posts were drawn to the attention of the Sheffield University (‘the University’) authorities, who initiated an investigation by Mr Ngole’s faculty, the Department of Sociological Studies. The departmental investigating team held a meeting with Mr Ngole on 11 November 2015. He was accompanied by a Christian friend. He agreed that he had made the posts, and that they represented his views. He was challenged to explain their compatibility with the professional standards that applied to him as a student on a social work course leading to professional registration. He sought to explain their religious and theological meaning. He said that he had demonstrated in practice that his beliefs were compatible with being supportive and non-discriminatory towards LGBT people. The investigatory team accepted that Mr Ngole was fully entitled to his religious beliefs, and had behaved with honesty and integrity. But they had concerns about the condemnation of same-sex sexual relations, or ‘homosexuality’, in the terms used, on a public forum to which people including social work service users could link him by name. They said that no conclusion was being reached at that point, and that they would reflect on the matter and consider whether to raise a formal fitness to practise (‘FTP’) concern.

The departmental team did conclude that there were areas of FTP concern, and Mr Ngole was informed on 10 December 2015 that his case was being referred to a faculty Fitness to Practice Committee Panel (‘the FTP Panel’). The FTP Panel considered his case at an oral hearing on 26 January 2016. Mr Ngole attended with a Christian friend and made oral and written submissions.

The FTP Panel issued a decision letter on 3 February 2016. It said that the Panel members had expressed serious concerns about the level of insight he had demonstrated in relation to the postings. The FTP Panel took issue with the postings not on the grounds of his views but because he had posted them publicly in a way that would have an effect on his ability to do the job of a social worker. The Panel considered this was an extremely poor judgment on your part and had transgressed boundaries which are not deemed appropriate for someone entering the Social Work profession. It was their belief that this may have caused offence to some individuals. The FTP Panel concluded that there had been a serious breach of two professional requirements: to keep high standards of personal conduct and to make sure your behaviour does not damage public confidence in your profession. It noted that Mr Ngole had given no evidence that he would refrain from presenting his views in the same way in future. It recorded that it had given serious consideration to all options open to it, but had concluded that Mr Ngole should be excluded from further study on the programme leading to a professional qualification. He would be permitted to enrol on an alternative programme, not leading to professional qualification.

Mr Ngole appealed that decision, by a letter of 23 February 2016, as being manifestly unreasonable. His grounds included an objection that he was in effect being sanctioned for the lawful expression of orthodox religious views on sexual ethics and sin, outside a work context and despite their having no impact on his work and professional abilities. His grounds also included a challenge to being withdrawn from the course rather than being given a warning and further guidance.

An appeal hearing before the Appeals Committee of the University of Sheffield Senate (‘the Appeals Committee’) was held on 23 March 2016. Mr Ngole attended with a representative, Pastor Ade Omooba, and made representations. By a letter of 31 March, the Appeals Committee confirmed that it rejected his appeal. It recorded:

“Members accepted these to be public posts that appear to contain not only direct quotes but also your own personal views. The Appeals Committee were satisfied that the Faculty FTP Committee had been correct to determine that publicly submitting these posts had been inappropriate in the context of the professional standards set out in the HCPC’s code of conduct. In coming to this view, the Appeals Committee were particularly conscious of the fact that you are a student on a Masters level programme that leads to a professional qualification which involves dealing with members of the public. In addition, the Appeals Committee observed that throughout the FTP process (from the initial departmental investigation meeting to the Appeal hearing) you had failed to acknowledge the potential impact of your actions. You have not offered any insight or reflection on how your actions and public postings on social media may have negatively affected the public’s view of the social work profession. Furthermore, you did not (in the context of comments posted on social media) appear to acknowledge or respect the relevance of the HCPC’s code of conduct regarding professional behaviours and standards. …”

On the question of sanction, it recorded:

“Members also took full account of all the powers open to them under the University’s FTP Regulations and specifically whether it would have been reasonable for the Faculty FTP Committee to permit you to continue on your programme of study but with conditions in place, for example the appropriateness of issuing a warning or requiring a written undertaking from you. The fact that you had failed to take appropriate responsibility for, or show any insight into, the potential impact of your postings on social media and that you had no willingness to reflect on your actions in the context of the standards of behaviour required by the HCPC meant that, on balance, the Appeals Committee was satisfied that the Faculty FTP Committee’s decision was proportionate.”

It is this decision by the Appeals Committee which is the subject of the present judicial review challenge.

Mr Ngole had meanwhile made a complaint to the Office of the Independent Adjudicator for Higher Education (‘the OIA’). The OIA was established under the Higher Education Act 2014 to offer an expert but informal, non-binding, resolution or review procedure for disputes between higher education bodies and their students. The OIA complaint outcome was issued on 12 January 2017, rejecting the complaint as ‘not justified’. It reviewed the facts and issues over 17 pages, and found that the FTP Panel and the Appeals Committee had followed their procedures, and there was no evidence of bias or a reasonable perception of bias. Otherwise, it concluded that the assessment of Mr Ngole’s FTP was a matter of professional judgment for the University – both as to whether the posts in themselves led to his fitness to practise being impaired, and as to whether he had demonstrated sufficient insight into his actions and sufficient appreciation of the importance of professional standards. It criticised the limited reasoning expressed by the FTP Panel for its imposition of the sanction of exclusion from the course leading to registration, but considered that that omission was rectified in the Appeals Committee’s reasoning. The OIA was satisfied that the sanction imposed by the Appeals Committee was within its remit and reasonable and proportionate in all the circumstances.

Mr Ngole’s application for permission to bring judicial review proceedings to challenge the lawfulness of the Appeals Committee decision was granted on 26 April 2017 on limited grounds by James Lewis QC, sitting as a Deputy High Court Judge, after an oral hearing. The grounds of challenge permitted as arguable were (1) unlawful interference with his rights under Articles 9 and 10 of the European Convention on Human Rights, as given effect by the Human Rights Act 1998 and (2) that the decision was arbitrary and unfair in substance – in effect public law irrationality.

At the centre of this case is the matter of Mr Ngole’s removal from his course on fitness to practise grounds. This is not a simple student conduct disciplinary case. The University defends its actions by reference to the relevant regulatory framework. It is necessary to set that out in some detail.

The social work profession is regulated by the Health and Care Professions Council (‘the HCPC’). The HCPC is a statutory body, established by the Health and Social Work Professions Order 2001 (‘HSWPO’), to regulate a range of professional service provision in the health and social work sectors.

Further to an order of 20 September 2017 by Leigh-Ann Mulcahy QC, sitting as a Deputy High Court Judge, the HCPC was granted permission to intervene in these proceedings, to file evidence and to attend and make oral submissions at the hearing. The court was considerably assisted by the HCPC as a result, particularly as to the status, expectations and obligations of the University, and of students such as Mr Ngole, within that framework. The HCPC evidence and submissions were not challenged by the parties.

Article 3(4) HSWPO provides:

“The over-arching objective of the [HCPC] in exercising its functions is the protection of the public.”

Article 3(4A) provides:

“The pursuit by the Council of its over-arching objectives involves the pursuit of the following objectives –

a)

to protect, promote and maintain the health, safety and well-being of the public;

b)

to promote and maintain public confidence in the professions regulated under this Order; and

c)

to promote and maintain proper professional standards and conduct for members of those professions.”

The HCPC maintains a register of members, and regulates members and membership, of the social work profession. In particular, it is required by article 21(1) HSWPO to –

“a)

establish and keep under review the standards of conduct, performance and ethics expected of registrants and prospective registrants … and give them such guidance on these matters as it sees fit; and

b)

establish and keep under review effective arrangements to protect the public from persons whose fitness to practise is impaired.”

Further to this, the HCPC has published Standards of Conduct, Performance and Ethics setting out the duties of registrants (registered practitioners). These include:

“3.

You must keep high standards of personal conduct

You must keep high standards of personal conduct as well as professional conduct. You should be aware that poor conduct outside your professional life may still affect someone’s confidence in you and your profession.

13.

You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession

You must justify the trust that other people place in you by acting with honesty and integrity at all times. You must not get involved in any behaviour or activity which is likely to damage the public’s confidence in you or your profession.”

The HCPC has also, separately, published guidance for registrants about use of social media, designed to explain how to use social media in a way which meets HCPC standards. Among its ‘top tips’ are: Think before you post. Try to be polite and steer clear of inappropriate or offensive language. Do not post inappropriate or offensive material. It guides registrants to try to be polite and respectful, and avoid using language that others might reasonably consider to be inappropriate or offensive. It reminds registrants that they must use all forms of communications appropriately and responsibly, including social media and networking websites. It also reminds registrants of relevant professional standards, including:

“You must make sure that your conduct justifies the public’s trust and confidence in you and your profession. This means you need to think about who can see what you share. … Even on a completely personal account, your employer, colleagues or services users may be able to see your posts or personal information. It is best to assume that anything you post online will be visible to everyone.”

It points out that social media activity which is unprofessional may put your registration at risk.

The HCPC considers ‘prospective registrants’ for the purposes of article 21 HSWPO as apt to include students, but it does not directly regulate student or trainee social workers. Instead, with prospective registration in mind, the HCPC’s Education and Training Committee is required by article 5(2) HSWPO from time to time to

“a)

establish the standards of proficiency necessary to be admitted to the different parts of the register being the standards it considers necessary for safe and effective practice under that part of the register; and

b)

prescribe the requirements to be met as to the evidence of good health and good character in order to satisfy the Education and Training Committee that an applicant is capable of safe and effective practice under that part of the register.”

Article 9 HSWPO requires applicants for registration to satisfy the Education and Training Committee that they hold an approved qualification, and that, in accordance with standards established and requirements prescribed under article 5(2), they are capable of safe and effective practice. Article 12 provides that an approved qualification is one approved by the HCPC as attesting to the necessary standards of proficiency. Part IV of HSWPO makes further provision for the setting of standards of education and training and for approving courses, institutions, tests and qualifications which will enable students in due course to apply for registration.

The HCPC accordingly operates a system of approval or accreditation of certain social work courses as capable of leading to registration on successful completion. That has direct implications, both academic and procedural, for the obligations of education providers (including universities) holding out their courses as capable of leading to registration. The HCPC’s published Standards of Education and Training (SET) Guidance is directed at providers of such courses to help them ensure that the relevant standards are maintained.

SET 4.5 of the Guidance provides that the curriculum must make sure that students understand the implications of the HCPC’s standards of conduct, performance and ethics, and that those standards must be taught and met throughout the programme or course. SET 4.6 requires the delivery of the programme to support and develop autonomous and reflective thinking, encouraging students to reflect on their learning, and consider their approach to their own practice and its responsibilities.

SET 3.16 provides for there to be a process in place throughout the programme for dealing with concerns about students’ profession-related conduct. The Guidance provides that the purpose of this is

“…to make sure that education providers play a role in identifying students who may not be fit to practise and help them to address any concerns about their conduct in relation to their profession. The process should focus on identifying and helping to address concerns, but should also allow an appropriate range of outcomes, including providing for an award which does not provide eligibility to apply to the Register.”

The HCPC explained the relationship between education providers and students within the regulatory framework in this way:

“Education providers are not standing in the shoes of the HCPC, rather the relationship is better characterised as education providers acting as gatekeepers for the HCPC. That gateway is completion of an HCPC-approved programme. Students who do so satisfy one of a number of preconditions to registration with the HCPC. … [T]he education providers perform a crucial role in providing a safeguard against students who are not fit to practise being admitted to the register.”

Successful completion of an HCPC-approved course does not guarantee registration. Other conditions must be complied with, and the HCPC retains a measure of discretion about ultimate registration. However, the HCPC says that its practice is that:

“…it is highly unlikely that the HCPC would refuse to register a person on the basis of an allegation that had been referred to his/her education provider, as it will be assumed that the education provider has taken any appropriate action already.”

Although the HCPC does not directly regulate students, it has issued Guidance on Conduct and Ethics for Students to give students information about HCPC standards of conduct and ethics. It explains that fitness to practise means that someone has the skills, knowledge, character and health to practice safely and effectively. It also gives guidance on ‘conduct outside your programme’ which begins:

“On your programme you have the opportunity to develop the skills and knowledge you need to become a professional in an environment which protects the public. You also have the opportunity to learn about the behaviour that the public expects from a registrant.

As a student studying to become a professional in a regulated profession, you have certain responsibilities. On your programme you will be expected to meet high standards of conduct and ethics.

You should be aware that in very serious circumstances, your conduct may affect your ability to:

- complete your programme;

- gain the final qualification; or

- register with us.”

It then goes on to set out specific guidance for students on conduct and ethics, in terms equivalent to the professional standards for registrants, with allowance being made for the difference in the student regulatory context. These include:

“3.

You should keep high standards of personal conduct

You should be aware that conduct outside your programme may affect whether or not you are allowed to complete your programme or register with us. ...

…

13.

You should make sure that your behaviour does not damage public confidence in your profession

You should be aware that your behaviour may affect the trust that the public has in your profession.

You should not do anything which might affect the trust that the public has in your profession.”

The HCPC explained that this student guidance is intended as an introduction to, or educative elaboration upon, the Standards, in the form of explanatory notes, to aid students in becoming familiar with the Standards. It does not in any sense replace the professional standards or suggest a different set of standards for students, but simply recognises that students are in the process of preparation to take on the level of autonomous personal responsibility for regulatory compliance which full registrant status will demand.

The HCPC also publishes an informal version of its guidance on the use of social media which includes students in its expected audience. As well as reminders of the relevance of the appropriate professional standards, it states:

“You may use social networking sites to share your views and opinions. Again, this is not something that we would normally be concerned about. However, we might need to take action if the comments posted were offensive, for example if they were racist or sexually explicit.

Social networking sites are a part of many registrants’ and students’ everyday life. We do not have any concerns about you using these sites, so long as you do so within the standards that we set.”

The University’s MA Social Work programme is an HCPC approved course leading to a qualification approved for the purpose of professional registration. As the provider of a degree programme leading to registration with the HCPC, the University has a requirement not only to teach and examine the course in compliance with the SETs, it also has a requirement to act as a gatekeeper to the social work profession, to raise any FTP concerns and, if necessary, investigate and determine through its internal procedures whether a student is fit to practise.

The course meets the HCPC Education and Training Committee’s requirements both as to curriculum and assessment, and also in relation to the University’s procedures for dealing with concerns about any student’s fitness to practise. Its FTP procedures are contained in its Regulation XXI as supplemented by its Notes on the procedure of committees concerned with students’ fitness to practice. This provides for the multi-stage procedures – initial faculty investigation, FTP Panel hearing, Appeals Committee hearing – which was applied to Mr Ngole in this case. It explains that matters which might give rise to FTP concern include any health condition, behaviour or attitude which may affect the student’s fitness to practise in the relevant profession. It sets out the range of actions available to the University should an FTP concern be established under this procedure, ranging from the imposition of conditions on continuing study up to and including removal from a professionally qualifying course or from the faculty altogether. These procedures have been independently validated by the HCPC in a process designed to ensure that they are both fair to students, and rigorous on behalf of the profession.

The University’s MA Social Work Student Handbook, and other materials explaining the course to students, make clear the HCPC’s wider regulatory oversight role and the statutory context within which it has been designed. The Handbook draws express attention to the need to avoid any kind of discriminatory or oppressive language/behaviour and states:

“As a student social worker, you need to be aware that the MA Social Work is a programme of professional training and that you are expected to behave in a professional manner in the University, on placement and in your personal life (including use of social media).

PLEASE NOTE: comments made by students on social networking sites have in the past been the subject of disciplinary proceedings: comments would be judged against the University conduct expectations, Fitness to Practise regulations and relevant professional practice standards.” (emphasis original)

When Mr Ngole enrolled on the course in September 2014, he signed a 20-point Student Entry Agreement confirming that he had accessed and read the HCPC’s student guidance on standards of conduct and ethics; would strive to conform to the HCPC’s expectations as set out there; at all times ensure that my behaviour does not compromise the public trust in the profession or in the University of Sheffield; not allow my views about a person’s lifestyle, culture, beliefs, race, ethnicity, colour, gender, sexuality, age, social status or perceived economic status to prejudice my interaction with service users, university and practice teaching staff or colleagues; and that my conduct will reflect the standards expected of me, both as a student of the University of Sheffield and a prospective member of the social work profession, and I will be mindful of the fact that my conduct outside the programme of study may compromise my entitlement to complete the programme or to register with the HCPC.

It is not in dispute that Mr Ngole had ready access to all of the relevant HCPC and University guidance material relating to his course, to professional standards, and to fitness to practise. (In the interests of brevity, references below to the ‘standards materials’ are intended as a compendious reference to all of this material.)

By the end of his first year Mr Ngole had completed a module on ‘readiness for practice placement’, which was explained in the course handbook as being the principal evidence needed to satisfy the faculty that you are ready, prepared and safe to undertake your placement activity, since this will involve you in direct contact with members of the public as a representative of the profession. He had completed his first practice placement, which put him in direct contact with service users. He was due to undertake his second placement in the spring of his second year.

Articles 9 and 10 of the European Convention on Human Rights (‘the Convention’) provide as follows.

“Article 9 – Freedom of thought, conscience and religion

1.

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2.

Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Article 10 – Freedom of expression

1.

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2.

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

Mr Diamond put Mr Ngole’s principal challenge to the decision of the Appeals Committee on the basis that it breached his Convention rights under Articles 9 and 10 in combination. He proposed that the NBC postings should be regarded as a species of ‘religious speech’ and as benefiting by that reason from a high level of legal protection under the Convention - whether as a manifestation of religion and beliefs under Art.9 or as a particularly important exercise of freedom of expression under Art.10. He argued that the University processes erred in failing to accord Mr Ngole’s religious speech the appropriate recognition and protection consequent on that characterisation; and particularly, that the University had interfered with Mr Ngole’s freedom of religious speech by the application of rules or guidance which were not prescribed with sufficient clarity, or by the misapplication of those provisions; and that the sanction of removal from the course was unnecessary and disproportionate.

It was common ground between the parties that Art.10 was engaged in this case, in that there was an interference by the University with Mr Ngole’s freedom of speech by reason of the direct link between the NBC postings and his removal from his course. But the University disputed that Art.9 was engaged, and disputed also that ‘religious speech’ was, on the authorities, either a recognised manifestation of religious belief or a category otherwise given distinctive protection by the Convention.

The religious dimension to this case is one of its most salient features. There can be no doubting its pre-eminence in Mr Ngole’s own mind. Mr Diamond’s submissions and argument were put on his behalf with a clear emphasis on the distinctively religious character and content of the speech in question, and indeed on the place of religious discourse of this nature in contemporary public life more generally, as qualifying for, and needing, particular respect and protection. He argued that that applied not least to speech about religious conscientious objection to same-sex sexual relations. The significant weight that he argued should be given to the religious dimension therefore makes it necessary clearly to identify its legal relevance.

From Mr Ngole’s perspective, the NBC posts, taken as a whole and in the context of the topic to which they were contributing, were undoubtedly intended by him to convey a religious perspective. They were in other words religiously motivated. They were also, to a significant extent, religious in content. They comprised Biblical quotation with a measure of reinforcing commentary from Mr Ngole. They were certainly not neutral. Mr Ngole was clearly identifying himself with the content and the applicability of the texts. These were his own beliefs. Mr Diamond accepted that some of the language used “might confuse a secular mind” but his point was precisely that this clearly identified the speech as operating on a non-secular, or theological, plane. He argued that this was speech about sin and redemption, propositions of religious significance; it was not about a secular intention in relation to people (a distinction he referred to in philosophical terms as ‘incompatible rationalities’). He argued that it was evident from Mr Ngole’s submissions and conduct throughout the FTP process that this was a distinction that he himself had consistently tried to communicate. He had always tried to put the posts in the context of his wider religious viewpoint, according to which ‘sexual sin’ just took its place among very many other everyday religious moral proscriptions; he himself was a sinner, and his overriding Christian obligation was to love sinners (God hates sin and not man).

The University had throughout accepted Mr Ngole’s sincerity, and that he was of course entitled to his religious beliefs. It maintained that it had never suggested these raised FTP concerns in and of themselves. The concerns that were raised were about the particular, and specifically public, expression of these beliefs in the NBC postings. It was not the content so much as the manner and form. This distinction between holding beliefs and publicly expressing them (verbal ‘manifestation’) is one which needs to be tested for legal relevance. From Mr Ngole’s point of view, they were intimately linked.

Mr Diamond relied principally on two domestic authorities to provide some guidance on the correct legal approach under the Convention to ‘religious speech’. Both concerned what might be described as religious speech about same-sex sexuality, and he sought to draw close parallels with the present case.

The first was the decision of the High Court in Smith v. Trafford Housing Trust [2012] EWHC 3221 [2013] IRLR 86. Mr Smith was a practising Christian and occasional lay preacher who posted a link on his Facebook page to a BBC news item headed “Gay church ‘marriages’ set to get the go-ahead” and commented that this was “an equality too far”. In response to a question from another poster he made clear that he did not approve of this development; that the Bible was specific that marriage is for men and women; and that secular provision for equal marriage should not be imported into a faith context. His employer disciplined and demoted him. The High Court held this to be a serious and repudiatory breach of his employment contract.

Smith v. Trafford turned on a close reading of the contract in question; it is a case about private employment law and not the Convention rights as such. It is not therefore a direct authority to be applied the present case. However Briggs J observed with some emphasis at paragraph 82:

“The frank but lawful expression of religious or political views may frequently cause a degree of upset, and even offence, to those with deeply held contrary views, even where none is intended by the speaker. This is a necessary price to be paid for freedom of speech.”

He also noted that the employer in question prided itself on encouraging diversity among both employees and customers and observed at paragraph 62:

“…the encouragement of diversity in the recruitment of employees inevitably involves employing persons with widely differing religious and political beliefs and views, some of which, however moderately expressed, may cause distress among the holders of deeply felt opposite views.”

Mr Diamond argued that a similar approach should be taken in the present case by analogy. That analogy would recognise Mr Ngole’s expression of religious objection to same-sex sexual relations as comparably polite, and comparably significant in Art.10 terms. Social work is also a profession which prides itself on encouraging diversity in its membership, and, he argued, might be expected to be similarly accommodating of the public expression of religious speech.

If it could be objected that the expression of religious belief in Smith v. Trafford was comparatively moderate put next to the NBC postings (and it could), by contrast the ‘religious speech’ considered by the High Court in Re Kirk Session of Sandown Free Presbyterian Church’s Application for Judicial Review [2011] NIQB 26 was not. There, a church had placed an advertisement in a local publication during the annual Belfast Gay Pride event entitled ‘The Word of God Against Sodomy’. Over several paragraphs it set out and advocated the Biblical proscription of same-sex sexual relations, including describing it as an ‘abomination’, and encouraged members of the public to join a peaceful demonstration. The respondent advertising regulator found this to be in breach of the relevant advertising standards code, which stated, amongst other things:

“Marketing communications should contain nothing that would be likely to cause serious or widespread offence. Particular care should be taken to avoid causing offence on the grounds of … sexual orientation.”

In reaching that decision it said that “…it was reasonable for the Council to consider that codes of conduct … laid down in biblical works from several millennia ago cannot be communicated … indiscriminately in twenty first century advertising.”

In seeking permission to bring judicial review proceedings of that decision, Sandown church argued that this was a disproportionate restriction on its expression and manifestation of religious belief under Art.9 or on its freedom of expression under Art.10. It was common ground in that case that it did not matter under which Article the matter was considered, the test of proportionality being the same, but Treacy J in fact quashed the decision as a disproportionate interference with the Applicant’s rights under Art.10. In doing so, he was, however, keenly aware of the religious dimension, observing (beginning at paragraph 70):

“Since the essence of the applicant’s religious belief is based on biblical scripture it is perhaps unsurprising that they sought to stand up for what they believed in by quoting such scripture. This scripture, after all, underpinned their deeply held religious faith and their call to bear witness.

One effect of the impugned decision is to materially interfere with and inhibit their use of certain biblical scripture, in the advertisement, in support of the call for a gospel witness. (…)

It is against this very specific context and purpose of the advertisement that the nature and scope of the impugned determination must be viewed. If the applicant is prohibited or materially inhibited, in the advertisement, from articulating their religious conviction and call to bear witness by reference to the very scripture that underpins it, that restriction, from their perspective, can appear like a form of censorship.

The applicant’s religious views and the biblical scripture which underpins those views no doubt cause offence, even serious offence, to those of a certain sexual orientation. Likewise, the practice of homosexuality may have a similar effect on those of a particular religious faith. But art 10 protects expressive rights which offend shock or disturb. Moreover, art 10 protects not only the content and substance of information but also the means of dissemination since any restriction on the means necessarily interferes with the right to receive and impart information.”

Mr Diamond contended for the direct applicability of these observations to the present case. It is not, however, authority for the engagement of Art.9 rights.

Ms Hannett also drew attention to a third case on ‘religious speech’ about same-sex sexual relations. The Court of Appeal in R (Core Issues Trust) v. Transport for London [2014] EWCA Civ 34 [2014] PTSR 785 considered another decision about public advertising. The defendant had accepted an advertisement from the LGBT rights campaigning organisation Stonewall including the slogan “Some people are gay. Get over it.” for display on the side of its buses. The claimant was a Christian organisation which took the view that it might be possible, and beneficial, for people to alter their sexual orientation from LGBT to heterosexual. It submitted another advertisement for similar display including the counter slogan “Not gay! Ex-gay, post-gay and proud. Get over it!” The defendant refused to accept the advertisement on the grounds that it would contravene their policy as being likely to cause widespread or serious offence to members of the public, and related to matters of public controversy and sensitivity. The court considered the case under Art.10 rather than Art.9 on the basis, again, that the latter added nothing where the principal issue was the regulation of someone’s means of expression rather than the profession or manifestation of their religion, even where the expression was religiously motivated. It found that there had been an interference with the claimant’s right to freedom of expression, but found it justified, for reasons which are considered further below.

Mr Diamond additionally proposed the relevance of two Strasbourg authorities in particular on the question of the status of ‘religious speech’ in Convention terms. The first, Kokkinakis v. Greece (1994) 17 EHRR 397, was an Art.9 case concerning the Greek criminal offence of proselytism, and as such some long way from the circumstances of the present case. It does, however, contain the following passage in a statement of general principles near the beginning of the judgment (paragraph 31):

“As enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and of their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.

While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to ‘manifest [one’s] religion.’ Bearing witness in words and deeds is bound up with the existence of religious convictions.” (emphasis added)

This passage was cited with approval by the ECtHR in Eweida v. United Kingdom (2013) 57 EHRR 8 (paragraph 80). The court there was considering four UK cases being argued as examples of religious manifestation, two of which concerned the Bible-based conscientious objections some Christians, like Mr Ngole, have to same-sex sexual relations. None of these was a directly-applicable ‘religious speech’ case (although their potential relevance to the present case is considered further below). It is worth noting, however, that when one of those cases, concerning a Christian relationship counsellor who refused to counsel same-sex couples on sexual matters, was before the domestic courts, the Court of Appeal emphasised that:

“… the common law and ECHR Article 9 offer vigorous protection of the Christian’s right (and every other person’s right) to hold and express his or her beliefs. And so they should.” (McFarlane v. Relate Avon Ltd [2010] EWCA Civ 771, Laws LJ at paragraph 22; emphasis added).

The Court of Appeal in McFarlane also stressed that the condemnation by some Christians of same-sex sexual relations on religious grounds was not a ‘disreputable’ position to be equated with homophobia (paragraph 18).

The other case referred to by Mr Diamond, Vajnai v. Hungary (2010) 50 EHRR 44, is not a religious speech case either. It concerned the Hungarian criminal offence of displaying in public a five-pointed red star, a symbol of considerable historical and political resonance and controversy the display of which, as the court put it, would in context seriously offend all persons committed to democracy. The court found a violation of Art.10, and Mr Diamond drew particular attention to the passage at paragraph 51 in which the court cautioned against a blanket approach to symbols with ‘multiple meanings’. He suggested by analogy that religious speech in general, and the NBC postings in particular, were similarly capable of multiple meanings; they would be operating on a religious or theological plane, and great caution should be exercised before interfering with them on the purely secular plane.

It is difficult to apply directly observations relating to symbols such as a red star, which have no ‘meaning’ other than as provided by context, to speech or words which have intrinsic meaning. Nonetheless, words certainly do have variable meaning according to context, and can mean different things to different people.

Ms Hannett, for the University, approached the question of the Convention significance of ‘religious speech’ from the perspective of the Art.9 authorities on whether examples of religiously-motivated actions should be recognised as a protected ‘manifestation’ of religious belief within the terms of Art.9.2. Those authorities are clear and consistent that not every act motivated or inspired by religion or belief is a protected ‘manifestation’. Art.9 does not guarantee the right to behave in public in a way ‘dictated by belief’. To be protected, an act, in the first place, must be ‘intimately linked’ to the religion or belief, and there must be a sufficiently ‘close and direct nexus’ between the belief and the act, albeit not necessarily a religious duty or imperative (see for example Lord Nicholls in R v. Williamson v. Secretary of State for Education and Employment [2005] 2 AC 246 paragraphs 30 – 33; Eweida at paragraphs 79-82).

Ms Hannett referred to two Art.9 authorities on ‘religious speech’ in her submissions to the effect that the Convention does not obviously accord it the status of a protected manifestation. In the first, X v. United Kingdom (Application 5442/72) 20 December 1974 1 DR 41, the Commission considered the case of a Buddhist prisoner who was refused permission to send religious articles to a Buddhist magazine for publication. His evidence was that communication with other Buddhists was an important aspect of his religious practice, but the Court found that he had not established that the act of publishing in a magazine was a necessary aspect of that practice.

Similarly, when the Core Issues case was at the High Court stage (R (Core Issues Trust) v. Transport for London [2013] EWHC 651 (Admin) [2013] PTSR 1161), Lang J found specifically that the fact that the Trust’s proposed advertisement, while religiously motivated and the expression of a religious perspective on a moral/sexual issue, was not a protected manifestation of belief. It did not express a religious belief, nor was the Trust required by religious belief to communicate its views by way of advertisement on London buses (paragraph 165).

The Art.9 authorities are consistent in their emphasis that whether an act is to be regarded as a protected manifestation of religious belief must depend on the facts and circumstances of the particular case in question. The facts of these two cases relied on by Ms Hannett are at some distance from the present case. The context in X v. UK was the general limitation on liberty to manifest belief – and on freedom of expression and communication – which is inherent in the state of being imprisoned. The starting point in the present case, by contrast, must be the general freedoms of everyday discourse on social media. In contrast to the Core Issues case, the NBC postings are clearly religious in content as well as in motivation. Although they were in the public domain, they were not an attempt at the sort of amplification of discourse represented by advertising on the side of London buses (for which there was plainly no religious imperative as such).

In Ms Hannett’s submission, it should however be concluded by parity of reasoning that Mr Ngole had no religious imperative to comment on an American news website about Kim Davis; in Art 9.2 terms, there is no intimate link – no sufficiently close and direct nexus – between that act and the holding of Christian beliefs in themselves, so as to render it a protected manifestation of religion in its own right. Nor in my view did Mr Diamond address his submissions on Art.9 in a manner capable of defeating that reasoning.

The NBC postings were not made in a religious context of the sort which could potentially bring it close to the examples of worship or devotion recognisable as forming part of the practice of a religion or belief in a generally accepted form. They were made in the essentially political context of news media, as a religiously motivated contribution, albeit with a high religious content, to a political debate about the place of religious belief in the delivery of public services. I was shown no authority on Art.9.2 which justifies regarding that as a protected manifestation of religious adherence or creed. The possibility, emphasised by Mr Diamond, that if the same content had been part of a sermon in church it might have been protected by Art.9, is not to the point. The postings were not made in any such context. In the circumstances therefore I accept the University’s submission that there has been no interference on the facts of this case with Mr Ngole’s Article 9 rights.

I observe in passing that the feature which distinguishes the NBC postings from the sort of everyday off-line religious conversation which may be almost intrinsic to the holding of belief itself (within the terms of Art.9) is the publicity and accessibility which are in the nature of participation in social media. Both of these also persist over time to some degree. It may be that the courts in future will need to grapple with the Convention implications of the increasing ubiquity of social media as a means of intimate and everyday self-expression by religious believers of their faith, just as it is of other aspects of individuals’ identities. On its particular facts, however, this is not the case in which to do so. Very little other evidence of Mr Ngole’s online behaviour was before the court.

In the circumstances, I do not need to address Ms Hannett’s alternative submissions on interference with Art.9 rights. These relied on the decision of the House of Lords in R (SB) v. Governors of Denbigh High School [2006] UKHL 15 for the proposition that the authorities have not readily found an interference with the right to manifest religious belief in practice or observance where a person has voluntarily accepted an employment or role which does not accommodate that practice or observance and there are other means open to the person to practise or observe his or her religion without undue hardship or inconvenience (per Lord Bingham at paragraphs 23-25, Lord Hoffmann at paragraphs 50-57, Lord Scott at paragraphs 86-87).

Mr Diamond challenged the binding status of this decision in the light of the observations of the Strasbourg Court in Eweida (at paragraph 83) that:

“Given the importance in a democratic society of freedom of religion, the Court considers that, where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate.”

Both parties filed additional legal submissions on this point after the hearing, but I do not consider it necessary to resolve that debate, since whether or not it was open in law to find that Art.9 rights had been interfered with in this case, I have concluded on the facts that they were not in any event. I do not reach any view, therefore, as to the potential applicability of the reasoning in Denbigh High School to the facts of this case.

In following the lead of the Court of Appeal in the Core Issues case and considering this case solely on the basis of interference with freedom of expression legal rights under Art.10, I accept the submissions of both parties that there is a prima facie interference with those rights on the facts of this case. The nub of the issue between the parties is the lawfulness of that interference.

In proceeding on the basis that this is an Art.10 case, however, I also accept at least in principle Mr Diamond’s submissions that the religious dimension to this case is not legally irrelevant. The domestic and Strasbourg dicta on ‘religious speech’ noted above are potentially capable of having a bearing on the lawfulness of the interference with Convention rights to free speech in the context of the overall evaluation of whether that interference is justified. The religious intention, and content, of the NBC postings are part of the relevant factual context. I do not understand either the parties, or the authorities, to suggest a rigidly compartmentalised approach to proportionality depending on the classification of the underlying right, nor indeed that a material difference in outcome should be expected. The authorities on both Art.9 and Art.10 are consistent and emphatic in their insistence on the importance of religion in a democratic, plural and diverse society (see, for example, in addition to those already cited, Lord Nicholls in Williamson at paragraph 15) and some of the approaches in the Art.9 cases cited in the present case – including those relating to Christian conscientious objection to same-sex sexual relations – are of potential comparative assistance.

An interference with Convention rights will be ‘prescribed by law’ where it has a basis in national law, the law is accessible, and it is formulated with sufficient precision to enable an individual to foresee, to a degree that is reasonable in the circumstances, when the law will or might be applied (Sunday Times v. UK (1979) 2 EHRR 245, paragraphs 47-49).

Mr Diamond challenged the lawfulness of the Appeals Committee decision on the ground, among others, that the basis of its interference with Mr Ngole’s Convention rights was insufficiently prescribed by law. He put this in a number of ways. These centred on the interpretation and application of the HCPC and University standards and guidance – the ‘standards materials’ – to Mr Ngole’s course of conduct in making the NBC postings. He argued that those materials were too imprecise to guide his conduct, or create enough foreseeability of the consequences the University would attach to his conduct. Additionally or alternatively, he argued that the standards materials, properly construed, were not applicable to his conduct. He also proposed that in considering the interpretation and application of the standards materials, the ‘religious speech’ context was significant.

Mr Diamond suggested that the standards materials do not obviously apply on the facts. The NBC postings were made by Mr Ngole in a personal capacity, as a religious adherent, outside the sphere of his professional studies, in a context in which he was not identified as a social work student and no other connection with the social work profession was apparent. It was not clear that the University derived any entitlement from the standards materials to interfere at all. Mr Diamond drew attention to the observations of Briggs J at paragraph 53 in Smith v. Trafford to the effect that where a breach may have a substantial impact on an individual’s livelihood,

“…he must be entitled to ascertain from the codes and policies to which he is subjected what he is and is not permitted to do, and to understand the extent to which those obligations extend beyond the workplace into his personal or social life.”

Mr Diamond also relied on the approach taken by the High Court in Livingstone v. Adjudication Panel for England [2006] EWHC 2533 (Admin). Mr Livingstone, while Mayor of London, was subject to a regulatory requirement to the effect that he must not in his official capacity, or any other circumstance, conduct himself in a manner which could reasonably be regarded as bringing his office or authority into disrepute. On one occasion,leaving an official event, he was doorstepped by a journalist who was Jewish; an exchange ensued which on Mr Livingstone’s part, in the circumstances, was derogatory and offensive in tone and content. The court concluded that he had not breached the regulatory requirement. The reasoning of Collins J included the following steps:

“There has always been a debate over the extent to which conduct in private as opposed to public life should be regulated and that debate continues.” (paragraph 34)

“[Mr Livingstone] had ceased to act in his official capacity … [S]ince he was off duty, there was no basis for finding that what he said was … so closely allied to his official duties as to justify the restraint on his freedom to express himself within the law as forcibly as he saw fit.” (paragraph 38).

Mr Diamond’s argument was that the act of making the NBC postings did not have enough connection with Mr Ngole’s studies to justify the University’s involvement. Put at its highest, though, these cases can be analogous only. They concern the interpretation of particular codes and their application in particular circumstances. In both respects they are a long way – textually, factually and in policy terms – from the circumstances of the present case. In Smith v. Trafford, for example, the code included an express prohibition on the promotion of political or religious views. It also made clear that conduct outside working hours or away from the employer’s premises could be considered as a breach of the code. Briggs J observed (paragraph 68):

“To that extent, the reasonable employee is fairly warned that conduct in his personal or social life requires careful consideration of each relevant provision, its purpose (in the better conduct of the trust’s affairs) and its consequences (in terms of the potential for invasion of the employee’s human rights of expression and belief).”

Applying that to the specific provisions of the code before him, Briggs J considered that a close nexus needed to be shown between the prohibition on religious views and a work-related context, and decided the case on the basis that it had not been.

More generally, Briggs J observed (paragraph 53):

“Like any piece of writing, a code or policy must be interpreted as a whole, and particular forms of behaviour may constitute misconduct even though not precisely specified and prohibited. Nonetheless codes and policies which form part of a contractual framework (in the sense that the employee is required to observe and abide by them) must be objectively construed, by reference to what a reasonable person with the knowledge and understanding of an employee of the type in question would understand by the language used.”

This is similar to the formulation of the specific Convention test for legality (the ‘prescribed by law’ test) set out by Lord Hope in Purdy v. DPP [2010] 1 AC 345 (paragraph 40):

“…whether the law or rule in question is sufficiently accessible to the individual who is affected by the restriction, and sufficiently precise to enable him to understand its scope and foresee the consequences of his actions so that he can regulate his conduct without breaking the law. ”

Whether the standards materials in this case were sufficiently clearly applicable to the NBC postings must therefore be approached objectively, in the individual circumstances, and in the full context, of the case. That must include the specific provisions of the standards materials and their applicability to Mr Ngole’s specific course of conduct. And the standards materials must be interpreted as a whole, in the context of the regulatory framework and purposes for which they were produced.

Ms Hannett for the University suggested a regulatory analogy in approaching this matter, rather closer to the present case. R (Pitt) v. General Pharmaceutical Council [2017] EWHC 809 (Admin) [2017] 156 BMLR 222 concerned a challenge to a set of professional standards for pharmacists which were expressed as needing to be met at all times, not only during working hours. This is because the attitudes and behaviours of professionals outside of work can affect the trust and confidence of patients and the public in pharmacy professionals. The standards included provisions relating to politeness, empathy, respect and communication. The challenge was based on the purported extent beyond working hours, and the generality of the behavioural standards as applied to non-work-related matters. In rejecting the challenge, Singh J observed (paragraph 37):

“The standards need to be interpreted fairly and as a whole. They also need to be interpreted in a way which is rooted in real life and common sense. That is not least because they are intended to guide the conduct of pharmacy professionals in a practical way; they are not addressed primarily to lawyers. The relevant obligation in the standards is to behave appropriately at all times. As the standards themselves make clear, the examples given are just that. They are intended to be helpful and to illustrate what may or may not be appropriate conduct … [T]here may be occasions which occur outside normal working hours and perhaps in a context which is completely unrelated to the professional work of a pharmacist which may be relevant to the safe and effective care which will be provided to patients. For example, if a pharmacy professional engages in a racist tirade on Twitter, that may well shed light on how he or she might provide professional services to a person from an ethnic minority. ”

A requirement to treat others ‘with respect’ was also considered by the High Court in Saunders v. Kingston [2005] EWHC 1145 (Admin) [2005] LGR 719 as entirely capable of being a clear guide to appropriate regulated behaviour, as was a standard prohibiting conduct likely to bring an office or authority ‘into disrepute’ (per Wilkie J at paragraph 60-61).

Singh J in Pitt also emphasised that this sort of regulatory context was not one in which absolute precision could be looked for:

“Indeed I would suggest that any attempt to provide absolute precision would be undesirable given the context, which is regulation of a profession in the public interest. One cannot legislate for all circumstances in advance. There needs to be sufficient flexibility so as to protect the public interest as new factual situations arise.

I can understand that this may be frustrating to those who are the subject of regulation. However, it is frequently the case that there will be a standard set for a professional person or body such as that they must not bring their profession ‘into disrepute’ . … Such a general standard is usually thought to be necessary in order to retain the flexibility needed to protect the public reputation of a profession.”

The acceptability – indeed the necessity – of a measure of flexibility in the setting as well as the application of professional standards can be understood in regulatory contexts in a further way. Typically, professional standards require a measure of personal responsibility to be taken for conforming to the ethos of the profession. A degree of self-regulation is expected, rather than an attitude of mechanical rule conformity. Professional standards also exist in systems which may require expert evaluation of them, and provide procedures and discretionary decision-making processes to apply them. Lord Dyson MR in the Core Issues Trust case noted (paragraph 58) that:

“…the European court has accepted that, in certain situations, laws must be generally worded and a discretion must be afforded to the body entrusted with enforcement and this may occur without there being a breach of the requirement of legal certainty: Miller v. Switzerland (1988) 13 EHRR 212, para 29 and Wingrove v. United Kingdom (1996) 24 EHRR 1, paras 40 and 42. In particular, a law that confers a discretion is not in itself inconsistent with the requirement of legal certainty, provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity to give the individual adequate protection against arbitrary interference. As the judge found, the fact that the wording of the policy requires TfL to exercise its judgment in any particular case does not render the policy too vague or imprecise to meet the requirements of legal certainty.”

Drawing all this together, an approach of common sense, fairness and contextualisation has to be applied to the specifics of the present case. It is not disputed that the standards materials, and access to support in interpreting them, were available to Mr Ngole. They put students as well as registrants squarely on notice to behave appropriately at all times, including in the use of social media. In particular, standard 3 is explained to students in terms that personal conduct is a potential standards issue, and that conduct outside their programme may affect whether or not they are allowed to complete their programme. Standard 13 requires students to take personal responsibility for being aware that their behaviour may affect the trust the public has in their profession, and making sure it does not damage public confidence in the profession. On the face of it, these require a measure of personal responsibility to be taken for general conformity to the ethos of the profession, and for awareness that personal conduct in public – whether or not in a work-related environment – can have an impact on the perception of the profession. These, in other words, are FTP-relevant issues, and therefore subject to FTP procedure and judgment. This is familiar regulatory territory, and the decided authorities suggest as a starting point that it is good enough to comply with the ‘prescribed by law’ test.

Mr Diamond invited me to pause on the HCPC social media guidance, and consider the observation made by one of the investigatory team at the FTP Panel hearing that he thought it was ‘ambiguous’; and also the Panel’s observations that it was ‘vague and not overly helpful’. The HCPC’s own evidence on this, having at one point reflected on the matter with the assistance of a public consultation exercise, was that it was not the regulator’s role to try to be overly prescriptive about social media use. It was concerned to strike a balance between setting out expectations and not deterring social work professionals from using social media. It said that the focus of the guidance was ‘positive and about good practice, rather than focusing on examples of poor practice’ and that users of social media could be expected to use their professional judgment, in context, as to whether conduct was of a professional standard.

I accept in the circumstances that the fact that the FTP Panel evidently had to undertake an exercise of its own judgment in applying the guidance in this case cannot of itself be taken to indicate that the social media guidance was too imprecise a guide. In any event, it was not the only document under consideration. The FTP Panel – and the Appeals Committee in due course – had to consider the standards material in the round, and the social media guidance in its full context. That was how it needed to be read by everyone who was subject to it.

Mr Diamond objected in particular that the examples given in the standards materials of ‘off duty’ activity which could be ‘sufficiently serious’ to amount to a breach of standards are directed to bad character or moral turpitude. He said that that does not suggest a fit with the present case, in which Mr Ngole’s integrity throughout was explicitly acknowledged; bad character has never been and cannot be suggested; and the views themselves were not ‘disreputable’, in the McFarlane sense that they represented a species of orthodox religious view rather than homophobia. He also argued that the examples given in the social media guidance (the most specifically relevant of the standards materials to the NBC postings) mention breach of client confidentiality, or the offensiveness inherent in material which is racist or sexually explicit. Again, these examples, he said, do not come close to the lawful expression of ‘religious speech’ and could not reasonably have been understood as applying to the NBC postings. The HCPC evidence suggests that it also had in mind defamation, another species of unlawful speech, as an issue to which the social media guidance was particularly addressed.

At the same time, as in Pitt, it is clear that all of the examples given are ‘just that’. They are examples of speech which can impact negatively on public confidence, and they are obviously not intended to be exhaustive. The overriding obligation on student social workers was to do nothing which might affect the trust that the public has in their profession. That in turn relates to the origin of the entire regulatory scheme in the overriding objective of the HCPC to protect the public. That is the fundamental guiding interpretative principle for the standards materials. Where they are particularly directed to students, undergoing learning and professional development and being taught to understand and practise the professional standards appropriate to a context of public-facing service provision, that purpose is also relevant to interpreting and applying them. It would be absurd to attempt, or expect, a complete code of social media rules. The social media guidance exists for the purpose of putting users on special alert that professional standards apply online also, and to take care. It is sufficient in law for that purpose.

I agree with Mr Diamond that the fact that the NBC postings were not in a social work or educational context, any more than they were in a religious context, is relevant. I do not think it means that the standards materials were not clear enough, or could not apply to personal postings. But it does raise a question about whether they did in fact apply to these postings.

The NBC postings were made in the context of a public current affairs debate, in a medium designed for the expression of personal and social rather than work-related views. They did not identify Mr Ngole as a student social worker or as having any other connection to social work, and they consisted of otherwise unrestricted and lawful ‘religious speech’. That is not a set of circumstances in which it might be obvious that public confidence in the profession could be at risk. The requirement not to do anything which might affect the trust the public has in the social work profession is, however, entirely general. Social work is a regulatory environment in which services are delivered to the public in demanding and sometimes dangerous circumstances. A degree of constant personal vigilance is positively and necessarily encouraged. The standards materials are unambiguous – indeed insistent – about their application to the sphere of wholly personal conduct. The public nature of the postings meant that, while they did not expressly make a link to a social work context, they could be readily accessed from a social work context (at any rate at the time). That could be done by an ordinary internet search, for example by people who came into contact with Mr Ngole in a professional environment, including service users on his training placements. The standards materials explicitly guide internet posters to think about who could read what is posted.

Mr Diamond then argued that the standards materials cannot sensibly be taken to apply to ‘religious speech’. The expression of orthodox religious belief, citing and interpreting Bible text, cannot, he said, affect public confidence in the social work profession. So the standards materials cannot be thought to apply to that any more than they would to the expression of those views in a church. I agree that the application of the standards materials to religious speech would properly require care, even perhaps great care. The connection between religious speech and public confidence in a profession does not speak for itself. At the same time, it cannot be regarded as a matter of interpretation as excluded from the ambit of the standard materials.

That is because religious speech is, in Mr Diamond’s terms, capable of having ‘multiple meanings’. It has to be construed objectively. A religious (or otherwise philosophically sophisticated) reader might be able to distinguish the theological plane on which the NBC postings operated as purely ‘religious speech’. They might be able to supply from their own knowledge a wider benevolent Christian context, and conclude that the poster, in identifying himself with the Biblical texts, was an entirely trustworthy representative of a trusted profession. But the standards materials cannot realistically be interpreted on the assumption that that sort of reader can be counted on in real life. Perhaps that sort of reader is quite rare.

Public religious speech has to be looked at in a regulated context from the perspective of a public readership. Looked at objectively, the NBC postings are entirely capable of being read in a way which would make a fair-minded, even a sympathetic, reader at least wonder about how the poster would behave in the world of social work. More specifically, the standards materials have to be read as having a potential bearing on a situation in which public ‘religious speech’ can be read by actual or potential service users, or their wider circle. These are people who particularly need to trust the profession and its members, and who may very well be entirely unable to put a theological gloss on words such as ‘abomination’, ‘detestable’, ‘wicked’, ‘hate’ and ‘judge’. The postings give no other easy cues for inferring a benevolent religious context or a personally empathetic poster.

Social workers have considerable power over the lives of vulnerable service users, and trust is a precious professional commodity, both for the day to day delivery of the services and for the public respect that relies on. It is this more than anything which must distinguish public ‘religious speech’ in a social work context from cases such as Smith v. Trafford and Sandown – and indeed from the dicta in Kokkinakis to which Mr Diamond also drew attention which doubt the role of the state in intervening to protect the vulnerable from religious speech.

I conclude therefore that the overarching obligation to maintain public trust in the profession belongs to a familiar species of professional regulation, in which flexibility in application, and the inculcation of circumspect personal responsibility and professional ethos, are considered positively desirable. The standards materials are explicit in their application to the personal use of social media in a public context, and put Mr Ngole fairly on notice to be mindful of the potential professional consequences of doing so. The standards materials should also properly be interpreted as apt to apply to ‘religious speech’ where that could have professional consequences in its impact on others, as may usually be the case where it is in the wider public domain. As a student social worker, Mr Ngole had available a learning environment and resources for consultation, advice and further guidance had he been in any doubt about using social media. Using social media was something the standards materials positively wanted students to be self-questioning about. Mr Ngole had been made aware that the regulatory framework within which he was studying required him personally to exercise professional judgment about such matters in the first place, and made the final determination of professionalism the responsibility of experienced experts through the published FTP procedures. Mr Ngole’s challenge on the grounds of lack of applicability or insufficient prescription must therefore fail.

Mr Diamond additionally challenged the lawfulness of the University’s interference with Mr Ngole’s Convention rights on the grounds that it did not satisfy the requirement of being necessary in a democratic society. In Art.10 cases involving interference with political speech, that test has been glossed as meaning a clear, pressing and specific social need (Vajnai, paragraph 51). Mr Diamond argued that a similar approach should be taken to interference with religious speech.

He particularly challenged some of the reasons Mr Ngole was given at various stages of the FTP procedure for the University’s objections to the NBC postings. These included:

“I don’t think you would behave in a discriminatory way, however, you could inadvertently discriminate” (notes of investigatory interview, 11 November 2015);

and:

“It was their belief that this may have caused offence to some individuals” (letter notifying FTP Panel decision, 3 February 2016).

He argued that there was no evidence that Mr Ngole would act in a discriminatory way, and the prevention of ‘inadvertent discrimination’ was not a relevant legitimate aim. He also argued that the prevention of giving offence was not on any basis a legitimate aim capable of justifying interference with Convention rights.

It is right to note that these were not reasons repeated in the Appeals Committee decision which is the subject of the present challenge. At the same time, it is right that there should be clarity about the legitimate aim the University relies on as lawfully justifying its interference with Mr Ngole’s Convention rights.

The legitimate aim relied on by the University is put in a number of ways. The overarching aim of the entire regulatory regime is the protection of the public. That echoes the Convention language about the interests of public safety. The social work profession is a front line provider of public services intimately affecting the private lives and social and economic wellbeing of service users. Safely assessing and meeting the needs and interests of those service users, and exercising the considerable powers and discretions they have been given for those purposes, is the essence of social workers’ practice. It is also the concern of the regulatory framework within which it takes place. That echoes the Convention language about the protection of the rights and freedoms of others.

In her skeleton argument, Ms Hannett stated that the University’s aim, indeed obligation, within that framework was to ensure:

“a)

public confidence in the social work profession was promoted and maintained, and

b)

that service users were both treated with dignity and without discrimination, but also perceived that they would be so treated.”

These may both reasonably be read as falling within the terms of legitimate aims recognised by the Convention. I do not understand Mr Diamond’s submissions seriously to dispute that at this broad level (as opposed to in its particular application in the present case).

Ms Hannett’s submissions drew attention in particular to the importance of the perception of service users. That perhaps is a better way to put the idea of ‘inadvertent discrimination’. It is not about the intention, it is about the impact. That can be a harm in itself, and the prevention of that harm can form part of the overall legitimate aim. Ms Hannett also argued that it was important, thinking about the impact on social work service users, to understand their vulnerability and their diversity of background and need. It was also, she said, necessary to recognise the part that issues of sexuality, sexual identity and sexual practice can play in those respects. These are all matters about which the University’s Social Work MA expressly aims to educate student practitioners, so that they deal with them sensitively, safely and competently. The University’s MA Social Work student handbook states that the purpose of the course is to educate and train students from a diverse range of educational and social backgrounds …. to [among other things] engender sensitivity to social divisions such as ‘race’, gender, age, disability and sexual orientation and competence in anti oppressive practice.

The Art.9 authorities on religious conscientious objection on matters of same-sex sexuality are interesting on the question of ‘legitimate aim’. They confirm that similar objectives to those of the social work profession could amount to legitimate aims, and so justify interference with individuals’ Convention rights. Islington London Borough Council v. Ladele [2009] EWCA Civ 1357 [2010] 1 WLR 955 was a case with some factual parallels to the Kim Davis case. A Christian registrar refused to conduct civil partnerships on the grounds that same-sex unions were contrary to her religious beliefs. In the Court of Appeal, Lord Neuberger MR noted (paragraph 59) the importance which the Convention should be treated as ascribing to equality of treatment irrespective of sexual orientation. He concluded:

“Ms Ladele’s proper and genuine desire to have her religious views relating to marriage respected should not be permitted to override Islington’s concern to ensure that all its registrars manifest equal respect for the homosexual community as for the heterosexual community.” (paragraph 55)

“...however much sympathy one may have with someone such as Ms Ladele, who is faced with choosing between giving up a post she plainly appreciates or officiating at events which she considers to be contrary to her religious beliefs, the legislature has decided that the requirements of a modern liberal democracy, such as the United Kingdom, include outlawing discrimination in the provision of goods, facilities and services on grounds of sexual orientation, subject only to very limited exceptions.” (paragraph 73)

Ms Ladele’s case was one of the four considered by the Strasbourg court in Eweida. The court agreed that the local authority was pursuing a legitimate aim. That aim was:

“…to provide a service which was not merely effective in terms of practicality and efficiency, but also one which complied with the overarching policy of being “an employer and a public authority wholly committed to the promotion of equal opportunities and to requiring all its employees to act in a way which did not discriminate against others”.” (paragraph 105)

In another of the Eweida cases, that of Mr McFarlane the Christian relationship counsellor, the Strasbourg court observed that:

“…the most important factor to be taken into account is that the employer’s action was intended to secure the implementation of its policy of providing a service without discrimination. The state authorities therefore benefited from a wide margin of appreciation in deciding where to strike the balance between Mr McFarlane’s right to manifest his religious belief and the employer’s interest in securing the rights of others.” (paragraph 109)

In R (Johns) v. Derby City Council [2011] EWHC 375 (Admin) [2011] 1 FCR 493, a local authority refused to allow a Pentecostalist couple to become respite foster carers after they were assessed by an independent social worker who noted their deeply-held religious belief that sexual relations other than those within heterosexual marriage were morally wrong. The National Minimum Standards for Fostering Services emphasised the need to value diversity, to promote equality and to value, encourage and support children in a non-judgmental way, regardless of their sexual orientation or preference. That applied not only to the child, but to its main carers, parents and wider family, any of whom might be LGBT. The court regarded this as a legitimate aim.

These cases are interesting because they are about the supportive delivery of services to a diverse public. Ladele and McFarlane were about a clear intention to treat LGBT people differently, which is not suggested in the present case. Johns was about the extent to which the expression of beliefs might affect future behaviour. They are not cases about mere speech as such. None of them is exactly like the present case (although the parallels with Johns are considered further below). They are helpful to the present case because they support the legitimacy of aims directed at ensuring that, in using public services, everyone’s experience is that diversity of sexual orientation is treated purely professionally, with dignity and without the intrusion of the personal views of service providers which do not support those objectives.

In McFarlane and Johns the service users were in a particularly vulnerable position, comparable to the position of social work service users. They had very personal needs to be met. In the present case, it was accepted that Mr Ngole had not in fact acted in a discriminatory way in relation to LGBT people. In the light of the content and tone of the NBC postings, the general reader, and also the University, was at least entitled to wonder whether he might. That appears to be the most likely context of the challenge made to Mr Ngole in the early stages of the FTP process.

Turning therefore to the risk of future ‘inadvertent discrimination’, Mr Diamond cautioned against relying on a mere speculative danger of future consequences (Vajnai) and against the ready inference that speech necessarily translates into behaviour (Wille v. Liechtenstein (2000) 30 EHRR 558). Wille was an Art.10 case in which a public lecture given by the president of the Liechtenstein administrative court on constitutional and politically sensitive matters led to a threat to his reappointment; this was held by the Strasbourg court to be disproportionate among other reasons because no reference was made to any incident suggesting that the applicant’s view, as expressed at the lecture in question, had a bearing on his performance as President of the Administrative Court.

It was, to repeat, uncontroversial in this case that Mr Ngole had not in previous practice given cause for concern that he had acted in a discriminatory fashion, whether on placement or otherwise. It is also clear from a fair reading of the Appeals Committee’s decision letter that it was not based on speculation about the risk of future intentionally discriminatory behaviour by Mr Ngole as such. The future risk it had in mind was of repetition of the sort of course of conduct which had produced the NBC postings, and of the potential impact of that on trust in the social work profession.

That is not to say this was a concern simply about future internet postings on American news websites. The concern was no doubt wider than that. Mr Ngole was clear that if in future he was asked about his religious views on same-sex sexuality he would give an unambiguous response. That could happen in the course of his service delivery; he did not rule that out. A service user could ask that question. The University would be concerned about the manner and form, and impact, of Mr Ngole’s response. The University rested its case significantly on the issue of perception, rather than making a leap of inference about how speech in one context translates into behaviour in another. But the public service context has to be kept in mind. As in Johns, the legitimate aims being relied on

“…emphasise the need to value diversity and promote equality and to value, encourage and support [service users] in a non-judgemental way, regardless of their sexual orientation or preference.” (paragraph 97)

In these circumstances, those with ultimate responsibility for those objectives are entitled, if not obliged, to consider a prospective service provider’s views on sexuality, whether or not religiously based, and consider how that might impact on the provision of services. This is not a prying intervention into mere belief (ibid). It is about real life risks to service delivery, and the compatibility, in perception terms, of the views expressed with the ethos of the service.

Turning to the question of the prevention of giving offence as an illegitimate aim, Mr Diamond relied on a number of authorities to argue that giving offence cannot be sufficient to ground a lawful interference with Art.10 rights. He drew from these the propositions that the right to give offence trumps the right not to be offended, and that great reluctance should be shown about creating a ‘heckler’s veto’: Sanders v. Kingston, Livingstone, Sandown, Vajnai and Gunduz v. Turkey (2005) 41 EHRR 5. I note in passing that Lord Dyson MR did observe in Core Issues Trust (paragraph 58) that ‘offensiveness’ was a concept frequently used to set regulatory standards of decency, and that it is indeed referred to in the social media guidance in the present case. I do not consider it necessary however to examine in any detail the question of controlling offensiveness as the potential legitimate aim here, as it clear from a fair reading of the standards materials as a whole, and of the decision letter under challenge, that that is not the legitimate aim relied on by the University. Ms Hannett expressly confirmed that in her submissions. This is not a case about general public offensiveness, or about a matter on which views may simply differ. It is about the regulation of the relationship between service provider and service user, in which the balance of power and vulnerability is very unequal.

There is one Art.10 case on legitimate aim which is particularly worth noting in this context. In Vejdeland v. Sweden (2012) 32 BHRC 474 a group of people entered a secondary school and left in students’ lockers leaflets condemning same-sex sexuality as ‘a deviant sexual proclivity’ having ‘a morally destructive effect on the substance of society’ and much more besides. The Strasbourg court upheld the lawfulness of the conviction of the leafleters for what might be broadly described as hate speech, on grounds including that a legitimate aim was being pursued in the protection of the rights and freedoms of the students. The impressionable and sensitive age of the students was taken into account, as was the fact that the leaflets were imposed on them. More generally, however, among the judicial observations as to legitimacy of aim was this:

“It should not be forgotten that a real problem of homophobic and transphobic bullying and discrimination in educational settings may justify a restriction of freedom of expression under art.10(2). Indeed, according to studies carried out across member states and supported by some government research, LGBT students suffer from bullying from both peers and teachers. ”

Again, these are not the facts of the present case, where homophobic hate speech is not alleged. However, focusing on the question of legitimate aim, real homophobia and its consequences do have to be dealt with by social workers also, and may well be issues in the lives of their service users. Concern to ensure that social workers are able, and trusted, to deliver services in those circumstances is an aim which is not only legitimate but necessary. The NBC postings were at the least capable of creating a serious barrier to that, when the perspective of service users is factored in.

I conclude therefore that the authorities support a conclusion that the University’s aims, in the statutory regulation and service delivery contexts, were legitimate. If the test of ‘clear, pressing and specific social need’ were applied in this factual context – and without needing to decide whether that test does translate directly into the facts of the present case – I conclude that it would be satisfied.

Proportionality – the question of the proper legal assessment of the University’s behaviour – is of course the crux of the matter in this case. It is also uncontroversial that, as a matter of law, this is an assessment for the court to take itself (a point considered further below). I start with some general observations about approach.

I have proceeded so far on the basis that it is more helpful than not to take the respective issues of the nature of the Convention rights, legality (‘prescribed by law’) and legitimate aim step by step, considering the law, submissions and facts at each stage before proceeding on to the next. That is the structural logic of the Convention text, and according to that logic the question of proportionality does not fall to be considered unless and until a defendant who has interfered with a Convention right clears all of the preliminary hurdles in establishing lawfulness.

A note of caution is however sounded by Lord Walker in Williamson (paragraph 66) that this is an area in which a rigidly analytical approach, dividing the case into watertight issues, to be decided seriatim, may not always be the best way forward. Williamson itself concerned a challenge by a number of teachers and parents, at private schools which had been established specifically to provide Christian education based on Biblical observance, to the prohibition of corporal punishment in schools by the Education Act 1996. Lord Walker was referring to the aspect of that challenge based on religious conscientious objection in reliance on Art.9. To adapt the rest of his observations to the present case, the issues considered thus far in the step by step analysis should not be disregarded in the exercise of balancing interests and testing proportionality which is required. The whole of that context must continue to be borne in mind. In particular, it is essential to hold in mind both the extent of the legal authorities’ endorsement of the intrinsic value of free religious speech in a democratic society, and also the public interest in the effective operation of the statutory regulation of the social work profession. Proportionality is ultimately a balancing exercise.

The approach the court should take in considering the proportionality of decisions engaging the Convention rights of claimants was summarised by Lord Sumption JSC in Bank Mellatt v. HM Treasury (No 2) [2014] AC 700 (at paragraph 20) in this way:

“...the question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community. These four requirements are logically separate, but in practice they inevitably overlap because the same facts are likely to be relevant to more than one of them.”

Again, therefore, a structured approach to the analysis is helpful and logical, but the exercise must be undertaken in the context of the continuing relevance of the matters looked at so far, and without assuming watertight compartmentalisation.

Importance of objective

As to the first of Lord Sumption’s requirements for proportionality, importance of objective, I do not understand Mr Diamond’s submissions to be materially challenging the importance of the objectives engaged here: regulation of the social work profession, the proper discharge of the role which universities are required to play in the regulatory framework, the maintenance of public trust in the profession, and the protection of the interests of social work service users. The importance and seriousness of the University’s function and objectives in that context speak for themselves. They contribute in turn to the HCPC’s overarching objectives. They take their place within the overall allocation of responsibilities between the HCPC, education providers, registrants and prospective registrants (students on courses capable of leading to registration). Mr Diamond made no material challenge to the University’s role as gatekeeper to the profession or to the structure (as opposed to the conduct) of the FTP process it has put in place to perform that role. The teaching of professional skills and standards by education providers, and the assessment by them of the fitness to practise of prospective registrants, also plays a fundamental role in securing these overall objectives. It is an FTP decision which is challenged in the present case, undertaken in exercise of the University’s gatekeeper responsibilities. None of this is anything other than important.

Mr Diamond’s submissions were directed mainly, in substance if not in form, to the remaining three of Lord Sumption’s requirements of proportionality: rational connection, excessive intrusion (or excessive seriousness of sanction), and fairness.

In considering all three of these issues, I have kept in mind the judgment of James Lewis QC (sitting as a Deputy High Court Judge) giving permission on 25 April 2017 for this judicial review challenge to be brought. There he observed:

“The question in my judgment is whether the proximity of that discussion [that is, the NBC postings], namely the manner and place in which those views were expressed, is such that it is a proportionate decision to dismiss him from the course. ... In all the circumstances I think there is room to argue that the sanction imposed in this particular case for the particular acts which were before the committee are potentially disproportionate…”

He also observed in the course of the permission hearing that

“… there is potential for an argument that the sanction is disproportionate given the proximity of a person who is simply a student and the Rule 13 which requires affecting the trust the public has in the profession. There seems to be a fair distance between the act of giving quotations from the Bible and the public interest in rule 13.”

It is in relation to these matters that ‘an exacting analysis of the factual case advanced in defence of the measure’ falls to be made.

Rational connection

Whether the measure taken by the University was rationally connected to its objective of maintaining FTP standards in its professional gatekeeper role – the question of proximity – starts with a simple question. Did the NBC postings in fact breach the standards? Had Mr Ngole, in making them, failed to maintain high personal standards or to make sure that his behaviour did not damage public confidence, or trust, in the social work profession?

No evidence was before the court of any actual effect of the postings, other than that they were drawn to the University’s attention. Mr Diamond’s submissions on the facts might be summarised in this way. If the NBC postings did not themselves identify Mr Ngole as a student social worker, they were incapable on their own of being related to the profession in any way at all by a casual reader. They were on an American news website, attached to a story of no particular relevance or interest to the UK social work profession. A connection could only have been made between the postings and the profession at all if someone, knowing Mr Ngole was a student social worker, had done a general internet search on him by name. There was no guarantee that the postings would remain readily searchable for any length of time. In the nature of the internet, news postings get quickly submerged or replaced, and searchers have to become increasingly dedicated to track down stale debates.

Even if someone had found them by searching on Mr Ngole’s name, the argument goes, a reader could be expected to have made generous allowance for the facts that: first, he was only an unqualified student who had more to learn and was not yet a true representative of the profession; second, he was “actively participating in a lively public discussion” (Gunduz v. Turkey (2005) 41 EHRR 5 paragraph 49)on a matter about which people express themselves vehemently in the heat of the moment(Fuentes Bobo v. Spain (2001) 31 EHRR 50); and third, there is in any event a danger in regarding any misconduct as particularly affecting the reputation of the office rather than the man (Collins J in Livingstone, paragraph 41). So, Mr Diamond submitted in effect, the link is too tenuous to be rational.

In my view there is, on the facts, force in these submissions (although I was not significantly assisted by the Art.10 authorities cited, the facts of which were remote from the present case). They raise a serious case for the University to answer. Ms Hannett’s submissions in response might be summarised in this way. This was a fitness to practise concern. The issue was how the posts could be perceived, and the risk to public confidence and trust caused by that perception. It was not fanciful that a service user would search on Mr Ngole’s name and find the postings. He had been on placement in direct contact with service users and was due to be so again shortly. As such he was, and would be seen as, a representative of the profession and someone capable of influencing service users’ lives, and therefore someone they might want to find out more about. It was easy enough to do, at any rate at the time the concern was raised. Someone who knew him had evidently done it, in bringing the matter to the University’s attention.

As a student on a course leading to registration, the argument continues, he was anyway not ‘just a student’. He already had professional obligations, not only as to the use of social media, but as to the demonstration of personal circumspection, judgment and accountability. The postings had been heedless of professional standards and the reasons for them. They were a professional error of judgment. In any event, Mr Ngole could not have his cake and eat it: either the postings were a colourful, reactive contribution to a lively debate, for which allowance should be made, or they represented, in orthodox ‘religious speech’, deeply held convictions which should be respected. He had at no time sought to disown or excuse them.

On balance, and subject to what follows, I am satisfied that the University makes the case for ‘rational connection’. The regulatory framework is the essential and inescapable context. Mr Ngole was ‘proximate’ to service users. He was on fair notice of the standards materials and the need to think about who might be able to read the posts and what the consequences could be. He had been taught about the application of those standards, and the need for sensitivity to diversity at all times. He had chosen publicly to express his views on a sensitive matter of direct relevance to social work practice – same-sex sexuality and the treatment by a public authority of LGBT people (which were key issues in the Kim Davis case after all) – in ‘religious speech’. He could fairly have been expected as a trainee professional to think through the ‘multiple meanings’ of that speech. He could not reasonably expect service users, particularly vulnerable people, to understand the almost exclusively and emphatically condemnatory language of the NBC postings as part of a benign religious world view, and have no qualms about its compatibility with professional social work practice standards and ethos in relation to LGBT people. There was a serious question about damage to trust in the profession.

Having said that, the ‘rational connection’ between the NBC postings and the regulatory objectives brought the University not to a conclusion, but simply to a point of inquiry. The FTP process began with an investigation into a ‘concern’. From this point in the analysis of proportionality, the question of rational connection does begin to shade into the question which is of course at the core of Mr Ngole’s challenge: the intrusiveness of the measure, or in other words the severity of the sanction imposed. There may have been a breach of standards, and a rational ground for concern, but was the matter really sufficiently serious to warrant removal from the course leading to registration?

Intrusiveness of measure

At this point it is also necessary to begin to address another of the most distinctive factual features of this case: the University’s assertion that Mr Ngole was not removed from his course simply because of the NBC postings. Indeed Ms Hannett submitted that had the postings been considered in their own terms without more, they may well not have resulted in the imposition of the second most intrusive measure available to the University, short of expulsion.

That was also the evidence to the FTP Panel of the head of the departmental investigatory team: there had been no previous concerns about Mr Ngole’s fitness to practice and the investigators had wanted simply to issue a warning and allow for a period of reflection. It is the evidence of the chair of the Appeals Committee in these proceedings also:

“…if Mr Ngole had been able to acknowledge to the FFTPC that he understood why his judgement in making the postings on social media had been questioned, given the expectations of a student seeking a career in social work, and had assured the FFTPC that he had shown insight and reflection, then the Appeals Committee might have expected to FFTPC to impose a lesser sanction.”

In other words, the legal proportionality of University’s actions is not argued to be justified by Mr Ngole’s conduct in making the NBC postings by itself. And it may well be said that it is hard to see how it could have been, on its own. The seriousness of that breach and the seriousness of the consequences do not look remotely commensurate. It is also plain that, in spite of the many levels of the legal challenge in the present proceedings made by Mr Diamond to the University’s entitlement to sanction Mr Ngole at all, if it had simply issued him a warning, this case would never have come to court.

It was, on the contrary, Mr Ngole’s response to the initiation of the FTP proceedings, and the attitude sustained thereafter, which is said by the University to justify the measure it eventually took. That is a proposition which requires a particularly exacting analysis of the factual case advanced in defence of the measure for more than one reason. It inserts a further element into the connection between Mr Ngole’s Convention rights, as exercised in making the postings, and the measure. That has to be evaluated in its own terms. It has a bearing both on the true extent of the University’s interference with the rights and the potential lawfulness of the choice of sanction. And it has a clear potential to be relevant to the overall assessment of the fairness of the balance struck between the rights of the individual and the interests of the community.

There are a number of themes which are said by the University to emerge from the evidence of Mr Ngole’s reaction to the initiation of FTP proceedings and his attitude thereafter. These include a rejection of the relevance of professional standards to religious speech, an intention to persist in and repeat the sort of conduct which had given rise to the concern, a general lack of insight into, or acceptance of personal responsibility for, the professional risks of doing so, and himself rapidly escalating the matter to the point where no reconciliation was possible.

Mr Diamond argued that this misrepresents Mr Ngole’s attitude throughout. He was concerned only to convey the sincerity and unshakeability of his religious convictions, the proposition that freedom of religious speech and social work practice are compatible, a desire to continue with his course, and an assertion of the wrongfulness of the University’s interference with his Convention rights. That is of course what he now tests in this judicial review challenge, as he is entitled to do. Mr Diamond also submitted that the line of justification based on ‘lack of insight’ is simply parasitic on the case based on the NBC postings. Worse, it is impermissibly self-reinforcing by treating every stage of challenge by Mr Ngole as nothing more than further evidence of his unfitness to practise.

Competing narrative accounts of adversarial events from different perspectives are a familiar feature of disputes of this nature. Certainly, at the investigatory stage of the FTP process, it was apparent that what might be called the religious speech perspective, and the regulatory concern perspective, were the respective starting points of the parties as they focused on the postings themselves. The decision of the departmental investigatory team to initiate formal FTP proceedings was, however, clearly the point at which the regulatory positions and obligations of both parties fell to be engaged and examined in full. The trigger was the postings, but the question to be answered was Mr Ngole’s fitness to practise.

The processes were clear. An FTP concern having been raised about a final year student on a course leading to registration, the University was entitled, indeed obliged, in the discharge of its responsibilities as a gatekeeper to the profession, to consider the student’s FTP on all the evidence before it. And Mr Ngole was entitled, indeed obliged, to address the concerns about his FTP, within the terms of the standards materials and on the evidence of fitness taken as a whole. His professional future was at stake.

The parties’ competing narratives – about the interpretation which should be put on the submissions to the FTP Panel, the contemporaneous notes of the proceedings, the evidence given as to the exchanges during it, and indeed aspects of the drafting of its decision letter – cannot definitively be resolved by textual interpretation of the contemporary materials alone. What can be said with some confidence is that the Panel explicitly put its proceedings on the footing of a full review of Mr Ngole’s FTP, including a student’s health, behaviour and attitudes and how these may impact on their ability to practise in the given profession (echoing the language of its Regulation XXI). That is properly in the nature of FTP proceedings; fitness to practise needs to be looked at in the round. The Panel did look at matters beyond the NBC postings – indeed the objective issue of the postings themselves rather began to recede into the background. The FTP Panel considered the state of Mr Ngole’s awareness of the standards materials and his participation in the relevant parts of his course. It considered his insight into why concerns had been raised, rightly or wrongly, about the professionalism of the postings. It looked at the nature and extent of the reassurance he was giving about the professionalism of his future approach.

The evidence of the FTP Panel’s comprehensive approach is supported by the witness statement of its chair, Prof Marsh. She states that the decision makers were less troubled about the postings than about Mr Ngole’s apparent lack of willingness or ability to engage with the concerns being raised, both about the perspective of vulnerable services users, who could feel judged, and wider public confidence in a profession sensitive to diversity. They were also troubled about Mr Ngole’s indications that he would act no differently in future, and about the risk in particular that that could happen after registration. In her view, that was a matter of academic and pastoral judgment based on the evidence before the Panel, and its assessment of a student’s personality and any apparent impairment of their fitness to practise. She said FTP itself was a matter of academic and professional assessment in which inability to reflect on past judgment or to offer any insight into the impact of behaviour indicated impairment. The witness statements of the other Panel members concur.

By the time the case came to the Appeals Committee – whose decision is challenged in these proceedings – Mr Ngole’s professional future had been considered by the two members of his faculty staff who had undertaken the initial investigation, and by a faculty FTP Panel comprising: Prof Marsh, a professor of education, based in the University’s School of Education who was the faculty director of learning and teaching for social sciences, who chaired the Panel; a professor of social work who was head of the University’s department of sociological studies and a qualified social worker; and the faculty officer for medicine, dentistry and health at the University who was a senior clinical teacher in dentistry.

The Appeals Committee itself had an experienced chair, Prof Andrew Callaghan, director of the centre for professional legal education in the school of law at the University, and director of quality assurance for the faculty of social sciences. Two other members of the University’s academic staff sat on the Committee: a professor from the department of psychology and a member the department of economics. The Committee concluded that:

“…throughout the FTP process (from the initial departmental investigation meeting to the Appeal hearing) you had failed to acknowledge the potential impact of your actions. You had not offered any insight or reflection on how your actions and public postings on social media may have negatively affected the public’s view of the social work profession. Furthermore, you did not (in the context of comments posted on social media) appear to acknowledge or respect the relevance of the HCPC’s code of conduct regarding professional behaviours and standards. … The fact that you had failed to take appropriate responsibility for, or show any insight into, the potential impact of your postings on social media and that you had no willingness to reflect on your actions in the context of the standards of behaviour required by the HCPC meant that, on balance, the Appeals Committee was satisfied that the Faculty FTP Committee’s decision was proportionate.”

By the time Mr Ngole referred his case to the OIA therefore, eight members of the University’s teaching staff, six of them in a formal decision making capacity, and with a broad range of educational and professional experience and perspective, had had an opportunity to review Mr Ngole’s record, and to discuss with him in person his professional competence and awareness, and the extent of his insight into his professional responsibilities as a prospective social work registrant. Their assessment was unanimous.

Mr Ngole’s complaint to the OIA of 10 October 2016 was in terms that he had been discriminated against because of his Christian beliefs and for expressing orthodox Christian views on same-sex sexuality, and that there was an animus against Christians in the University.

The fullest statement of the University’s regulatory position – its justification for the proportionality of the decision it took – is contained in its ten-page statement to the OIA of 24 November 2016. That sets out the relevant regulatory context, both in general and as implemented by the University. It states that Mr Ngole had been given every opportunity to stay on his course and that the University had been mindful of the other outcomes available to it, and gives its reasons for the conclusion at every stage that no other outcome could safely be reached apart from removing him from the course. It stated:

“The FPC was required to decide whether on the balance of probabilities the fitness to practise concerns were made out. This is an academic and/or professional judgment based on the student’s conduct and other factors including insight shown and subsequent reflection.

The FPC had the opportunity to both hear from Mr Ngole and also consider all the evidence held by the University, including the Facebook posts. The FPC determined that the University’s Fitness to Practice Regulations and HCPC Guidance are concerned with a student’s health, behaviour and attitude to their conduct and how these matters impact on a student’s suitability or fitness to practise their chosen profession.

Having taken account of the posts themselves, the public nature of the postings, Mr Ngole’s lack of insight and Mr Ngole’s apparent inability or unwillingness to reflect on his actions, the FPC had serious concerns about Mr Ngole’s suitability. His poor judgment and lack of insight when posting publicly visible comments on an openly accessible social media site, and his lack of reflection in relation to the potential impact of his conduct on public confidence in his chosen profession, was in their view a serious cause for concern. The FPC was satisfied that Mr Ngole had been aware both of the implications of sharing comments on Facebook and of the content of the relevant HCPC Guidance.

In light of the above concerns the FPC determined that Mr Ngole had not exhibited behaviours which were consistent with the requirements of his chosen profession.”

The letter set out the range of seven responses available to the FTP Panel and continued that

“The FPC decided to exclude Mr Ngole from further study on a programme leading to a professional qualification, but to permit registration for an alternative programme – as it was not satisfied it could safely reach another outcome given Mr Ngole’s apparent poor judgment, insight, and subsequent inability or unwillingness to reflect on the implications of his actions, coupled with the fact that his course could lead to professional registration with the HCPC. ”

It referred to Mr Ngole’s actions in seeking media attention for his situation, and the consequent media coverage, while his appeal to the Appeals Committee was pending, and submitted that:

“…this behaviour on the part of Mr Ngole represents a further demonstration of a concerning lack of professional judgment.”

It also put forward the view that:

“Mr Ngole’s appeal application in itself demonstrated a lack of proper understanding of the FPC’s reasoning for its decision, alongside an inadequate appreciation of the proper application of HCPC guidance. Our position is that this indicates an inability or unwillingness on the part of Mr Ngole to appreciate or accept that the FPC decision related to his poor judgment and lack of insight and reflection as to how his comments could be perceived, rather than the specifics of the views expressed.”

In relation to Mr Ngole’s reference of the case to the OIA complaint, the letter continued:

“In his complaint Mr Ngole continues to attempt to justify his actions on the grounds of freedom of speech and expression, and in relation to the manifestation of his religious beliefs. In so doing, he demonstrates a continued failure to understand that the decision to exclude him from the social work programme relates to his poor judgment and a lack of insight as to how his comments could be perceived, rather than the views he expressed.

Considering the HCPC Guidance, the University’s position is that there is no question that there were reasonable grounds on which to question Mr Ngole’s conduct and its impact upon his suitability to enter the social work profession. It was established at the FTP hearing that Mr Ngole is well versed in social media and had been fully aware that the HCPC Guidance requires students to understand that social media use could have implications for fitness to enter their chosen profession. Despite that awareness, he nevertheless placed his comments/posts on a public Facebook page. Those comments, whilst an expression of his religious beliefs, and in many cases direct quotations from the Bible, went beyond reciting biblical references and indicated that Mr Ngole’s own personal views are strongly opposed to same-sex relationships, which could have had a detrimental impact on public confidence in the profession. In particular, under HCPC Guidance, Mr Ngole’s comments could give the impression or perception that he would be opposed to supporting future clients in same-sex relationships.

Mr Ngole has not only shown poor judgment in using social media, and a lack of insight into his actions as highlighted above, but he has also failed to indicate that he is able or willing to reflect on his actions or address any cause for concern into the future. Mr Ngole continues to argue that the fitness to practise process infringed his right to free speech and denies that his conduct was ill judged or that his comments could create and adverse perception and diminish public confidence in the profession. This apparent lack of insight and judgment, as well as an inability to reflect on the implications of his conduct, created serious concerns about his suitability both at the FPC and the Appeals Committee, leading to the outcome of an exclusion rather than an alternative decision.

The University would suggest that this concern as to Mr Ngole’s suitability is further evidenced by the terms of his present complaint.” …

The letter continued:

“The University wishes to emphasise that at each and every stage of the Fitness to Practise process it actively encouraged Mr Ngole to reflect on his actions and show the requisite insight into how those actions were likely to be interpreted and the implications they had for his chosen profession. The University did so, as it sought to support Mr Ngole in addressing its fitness to practise concerns, in order that he might learn from this experience and not repeat such actions in the future.”

It emphasised that “[t]he question of Mr Ngole’s fitness to practise is a professional judgment.”

Mr Ngole’s response to that statement said that he continued to believe that the real reason for being removed was because of my views. He said:

“There was no attempt to reach a sensible conclusion or resolution of this disagreement, or discussion of how one should express oneself during a debate on the Biblical view of homosexuality. To remain on the course meant I had to deny my views on the Biblical view on homosexuality entirely and agree never to share them.”

He felt that his faith and religious perspective were being misunderstood and belittled, that the University had offered him insufficient guidance, and that he had not and would not act in a discriminatory manner towards LGBT people. He concluded:

“I would simply repeat that my expulsion from the course was because of my Christian beliefs and the University made decisions on that basis.”

The University’s submissions were broadly accepted by the OIA in its decision letter of 12 January 2017. It is relevant, both for present purposes and to understand the limits of its remit, that the OIA made clear:

“The OIA cannot interfere with the operation of an institution’s academic judgment. In addition, we would not normally interfere with professional judgment. The question of whether, on the basis of the evidence, a student is fit to practise in a particular profession is a question which can only be answered by someone with specialist knowledge of that profession.”

The OIA accepted that the University’s decision-making was not a response to Mr Ngole’s religious beliefs, and that it had investigated beyond the NBC postings to consider his FTP in the round. It emphasised:

“Students registered for the MA Social Work course are required, in accordance with the HCPC’s standards of conduct and ethics, to demonstrate a higher level of professionalism and insight in terms of their personal conduct than might otherwise be the case for students studying non-professionally-qualifying degrees. The HCPC’s requirements are consistent with professionally-qualifying degrees across the higher education sector, where protection of the public (and, by extension, maintenance of public trust in the profession) is an important factor. Therefore, Mr Ngole, as a student registered for the MA Social Work, was required to moderate his behaviour (including the manner in which he expressed his views) so as not to undermine public trust in the profession, and to demonstrate insight into his actions. (…) Moreover, as a student social worker, Mr Ngole was expected to have the insight to see for himself how his social media activity might impact on public trust and confidence in the profession – and to exercise care in what he posted so as not to damage that trust and confidence.”

The OIA concluded that, in the absence of evidence of procedural irregularity, the whole course of events beginning with the NBC postings, and the questions of whether Mr Ngole had demonstrated sufficient insight into his actions and sufficient appreciation of the importance of the HCPC’s standards, went to his fitness to practise. That was a matter of professional judgment with which it would not interfere. It further concluded:

“We are satisfied that the sanction imposed by the Appeals Committee was within its remit and was reasonable and proportionate in this instance. The sanction was not about punishing Mr Ngole, but rather was concerned with maintaining the reputation and standards of the social work profession. We are satisfied that the Committee was entitled to consider a lack of insight when considering the risk of repetition of the behaviour and whether the behaviour was remediable. Given Mr Ngole’s statements about putting forward his views in the same way in future, and given the Committee’s conclusions about the level of insight he had demonstrated, we are satisfied that it was reasonable for the Committee not to impose a lesser sanction. We are satisfied that any lesser sanction would have required Mr Ngole to recognise and acknowledge the University’s concerns which, on the basis of the documentation we have seen, he did not appear willing to do.”

The substance of the University’s decision to remove Mr Ngole from the course was in terms that he was not fit to continue preparing for professional registration as a social worker. The specific components of that decision which were said to be a matter of professional evaluation were: the professional judgment shown as to the manner and form (as opposed to the content) of the NBC postings, considered in the context of the standards materials; the objectively-assessed impact the postings could have on vulnerable service users who might read them, and therefore on wider trust in the profession; Mr Ngole’s insight into why professional concerns were being raised and evaluated within the University; the risk that he would persist in and repeat acts of public communication which could have a similar impact; and his failure to engage constructively with the need to reconcile his personal freedoms with his professional responsibilities.

It was the consistent evaluation of every professional involved in this case, from the University investigators up to and including the OIA, that Mr Ngole’s general fitness to practise was impaired and that there was no evidence that the impairment could be remedied. By bringing these proceedings, he asks the court to review that evaluation. It is the function of the court to do so, and come to its own decision. On an issue of Convention proportionality, particular care is needed with the review of matters involving expert or professional judgment.

I am guided in that by two relatively recent decisions in cases dealing with the proportionality of interference with Art.10 rights: the decision of the High Court in Heesom v. Public Services Ombudsman for Wales [2014] EWHC 1504 (Admin) [2014] LGR 509, and the decision of the Supreme Court in R (Lord Carlile) v. Home Secretary [2014] UKSC 60 [2015] AC 495. Both of these cases concern factual circumstances, and indeed proportionality analysis, very far removed from the present case, and neither provides a complete analogy. I turn to them for guidance as to approach only. The breadth and depth of the Supreme Court’s consideration and review of the issue in the Lord Carlile case makes it a source of guidance of particular weight and authority.

Ms Hannett submitted that Heesom supports a proposition that it would be right, consistently with undertaking a proper analysis of proportionality, to respect and give weight to the fact that the University’s FTP procedures, and the OIA’s functions, derive from the responsibilities assigned to them under statute; that the FTP decision-making process is undertaken by professionals selected for their experience, expertise and training in assessing FTP and the teachability of students; and that they had the advantage of hearing oral evidence (cf Hickinbottom J at paragraph 45). I take these matters into account.

Among the observations of the Justices of the Supreme Court in Lord Carlile, Lord Sumption JSC indicates that while a court is the ultimate arbiter of the appropriate balance between ‘two incommensurate values’ – the Convention rights engaged and the interests of the community relied on to justify interfering with it – it is not usually concerned with remaking the decision-maker’s assessment of evidence if it was an assessment reasonably open to them. The court is entitled to attach special weight to the judgments and assessments of a primary decision-maker with ‘special institutional competence’, particularly where they include a predictive element. No review, however intense, can entitle the court to substitute its own decision for that of the constitutional decision-maker and a court of review does not usurp the function of the decision-maker or purport to conduct an appeal on the merits, even when Convention rights are engaged(per Lord Sumption JSC, paragraphs 20, 22, 31-32, 34, 46).

At the same time, Lord Neuberger PSC, concurring, emphasises the reviewing court cannot simply frank the decision. It must give it appropriate weight, no less and no more.

“The weight to be given to the decision must depend on the type of decision involved, and the reasons for it. There is a spectrum of types of decision, ranging from those based on factors on which judges have the evidence, the experience, the knowledge and the institutional legitimacy to be able to form their own view with confidence, to those based on factors in respect of which judges cannot claim any such competence, and where only exceptional circumstances would justify judicial interference.” (paragraph 67-8).

Lady Hale DPSC states neatly that while proportionality decisions are ultimately a task for the court, that must be a court which is properly humble about its own capacities (paragraph 105).

The FTP judgment under review in this court is a professional assessment. The weight to be given to a professional assessment in a proportionality decision is a matter of judgment. A pragmatic and fact-sensitive approach in all the circumstances, tempered by suitable institutional and functional humility, needs to be taken.

In evaluating the severity of the sanction in this case, I start by accepting that it was indeed severe. I cannot entirely accept the proposition of the OIA in its decision letter that it was not career-ending because it took away a potential career rather than an actual one, and there had never been any guarantee that Mr Ngole would go on to qualify and practise successfully as a social worker. It clearly took away all possibility of that career and effectively brought to naught Mr Ngole’s investment in it to date. While he was not removed from the University, the alternative of a course which did not lead to qualification was a fundamentally different proposition, and the impact on Mr Ngole of loss of prospective registrant status should not be understated.

The preliminary question for the court in considering the necessity of the measure is whether the decision-makers were honestly and rationally seeking to evaluate Mr Ngole’s potential future in the social work profession in the full context of what they knew about his behaviour, attitude, capability and capacity for further learning. That is a question a court is fully competent to answer. I conclude that they were. That is the overwhelming indication of the evidence before the court, as set out above. The alternative contention – that the exercise gave disproportionate prominence to the NBC postings; and proceeded on the basis of at best a misunderstanding of, and at worst an animus against, Mr Ngole’s belief system, its fundamental importance to him, and the unshakeability of his faith – is not tenable on the evidence before this court. That is not in any way to doubt Mr Ngole’s firm conviction that it is so. Nor is it to doubt that there may well be good grounds to fear more generally for the place of religious discourse, and the understanding of and respect for religious adherents, in the context of a liberal and secular consensus within universities or elsewhere. It is simply to conclude that I am satisfied on the evidence before me that the decision-makers in this case were properly engaged on an exercise in evaluating FTP in the round, as they were required to do.

The next question is whether they were competent, by reason of relevant expertise and experience, to do so. No challenge is made on that ground. They clearly were.

Following the guidance of the authorities cited above, there is then a question for the court to answer about the part played by expertise and experience in social work FTP decision making, and about the weight that should properly be accorded to it by a reviewing court. In approaching that, I take into account the fact that FTP is a decision entrusted to universities within the scheme of the statutory regulation framework. The sustained engagement universities have with their students over time – academic, professional, supervisory and pastoral – places them in a good position to do so. I also take into account that the sanction imposed was very severe, a decision in effect that Mr Ngole could not be helped by the University any further to reach the standard required for registration at the end of the year, whether by academic, supervisory or pastoral means. It was a decision that Mr Ngole was in a state of continuing impairment of fitness to practise such that the gatekeepers to the profession were required to close the gate.

That is a proposition which invites rigorous testing. To do so is also to challenge academic, professional and pastoral judgment. A real degree of humility is required about that. The learning potential of a student, their self-awareness, maturity of judgment and resilience, their probable performance in the demanding professional contexts they are likely to face, their ability to internalise professional ethos and disciplines and take personal responsibility for demonstrably deserving the trust placed in them – these are matters of assessment and prediction in which knowledge of the student, the course curriculum and the social work profession, and experience of undertaking such judgments, count for a great deal. A court looking briefly, no matter how intensely, at the course of events put before it, cannot overlook the limitations of its own evidential basis, experience and knowledge. Nor can it overlook the limits of its institutional competence. To substitute for the judgment of professionals on a question of risk to social work service users, and to the effective delivery of a difficult and demanding public service, is to make a decision for the consequences of which a court is not properly accountable to the public.

The unanimous conclusion of those best placed to reach one is that Mr Ngole could not be further educated to make a successful social worker, and that the point had been reached where the benefit of the doubt could no longer be given, consistently with professional standards. On the evidence and submissions before me, I conclude that there is no good reason or basis before me to disagree. A court cannot with any confidence conclude, in the absence of good reason, that a student conscientiously assessed as unteachable is, in fact, teachable. I accept that the alternative of permitting Mr Ngole to continue with his course under conditions (which was evidently considered) would require positive evidence, and some personal advocacy, of his willingness to engage constructively and responsibly with the concerns raised. There is simply insufficient evidence before me, looking over a lengthy period of time and despite all that was at stake for him, that he was at any relevant time, or is now, able or willing to do that. It follows that I accept that no less severe a measure could be imposed.

Overall fairness

There is however a further check on this reasoning before it is right to come to a final decision. This is the point to stand back from step by step analysis and reflect on whether the result it gives really does represent a fair balance between the rights of the individual and the interests of the community in this case. If a chain of events, starting with a student posting Bible verses on a news website and ending with him being removed from his course, is one for which the law does not provide him with a remedy, it is important to test hard why not.

This case is about events which unfolded in the relationship between a university and one of its students. That is a relationship which, for the student, touches on more of their lives than the pure remit of their taught courses. As the OIA decision letter put it:

“[A]s environments of research and learning, universities have a special role in encouraging debate, the free exploration and exchange of ideas, free speech and freedom of enquiry, and we note that special legal status applies to the promotion of free speech within higher education institutions.”

Universities also have a wide range of interests in and responsibilities for their students – academic, social and pastoral. Where, as Sheffield does, they aspire to be welcoming environments for students from a diverse range of backgrounds, they must expect to be inclusive and supportive of that diversity, and sensitive in their approach to the differences of culture and perspective that go with it. Both religious and sexual identities are a part of that diversity and a university can be expected to work hard to enable both to flourish.

Freedom of expression is an important right. Exercising that right to express the content of deeply held religious views deserves respect in a democratic and plural society, nowhere more so than in a university. Freedom of religious discourse is a public good of great importance and seriousness. The legal authorities reinforce that, and for the purposes of this case I attach real weight to the judicial observations to that effect which Mr Diamond put before the court, and accept their relevance on the question of fair balance.

Mr Ngole was entitled to expect all of this from his university. Students are, by definition, learning. Students are entitled to a certain leeway and opportunity to learn from their experiences, in a supportive environment. Ms Hannett, for the University, very fairly accepted that from the beginning. The NBC postings were apparently the first cause for concern that Mr Ngole had given the University. He was not considered unteachable before that.

Where courses leading to professional registration are concerned, universities have an additional set of responsibilities to their students. They must teach and support them to be ready to take up demanding roles in the delivery of public services. This is a matter in which parliament, and the regulatory law made by it, take a direct interest. Law becomes involved to protect the interests of the recipients, and potential recipients, of those services. Universities providing these courses have responsibilities under those laws. What they teach and how they assess students is supervised by the statutory regulator. And universities in turn have to supervise their students, not just as learners but as regulated professionals in training. They have to be sure students are not only learning and progressing, but also accepting the disciplines and ethos that go with their profession. If they are not sure, they must prevent a student going forward into the profession. All of this is clear from the regulatory framework. Universities have to be fair and supportive to these students. They also have to be rigorous in protecting the public from people whose professionalism is uncertain. They have to balance both of these things.

What troubled the University here in the first place was not the religious motivation or the religious content of the student’s NBC postings. It was how they could be accessed and read by people, service users included, who would perceive them as judgmental, incompatible with service ethos, or suggestive of discriminatory intent. That was a problem in its own right. The University was no doubt also troubled itself at that point of inquiry about the student’s possible wider intentions towards LGBT people. It would want to investigate that too. But whatever the actual intention was, it was the perception of the postings that would cause the damage. It was reasonable to be concerned about that perception. The language used was strong and the endorsement of the poster was clear. There was nothing on the face of the postings themselves to allay the concern.

What troubled the University more, though, was the apparent refusal of the student to take an active interest in that concern about perception. He seemed either to deny the possibility of such a perception or to deny that it should be taken seriously. He also seemed to think that the fact that he was exercising his personal freedoms on a matter of religious speech meant that his behaviour was in effect none of the University’s business.

The potential for rapid escalation was obvious. The more the student insisted on the paramount importance of his faith and his freedoms, the more concerned the University became that he was simply unwilling or unable to see and deal with the concern. He was not looking at the matter in anything like the way a trainee social worker needed to. And the more concerned the University grew, the more the student felt it was simply against him and against his world view, so the more he felt he needed to insist on respect for his rights, and the more disengaged he became. The outcome became increasingly inevitable.

It was not inevitable from the beginning. This was a deeply regrettable, and fundamentally unnecessary, course of events. There is not, after all, an obvious incompatibility between deeply held religious views on the one hand, and social work on the other. There are no doubt plenty of excellent social workers with religious views as strongly and sincerely held as this student’s - quite possibly the same or similar views. Many, perhaps like him, are positively motivated by faith-based values or a sense of vocation to enter a demanding, caring profession working to help some of society’s most needy. So if this case was brought to the point of litigation, that was unlikely to have been due simply to an otherwise irreconcilable conflict between the legal worlds of Convention rights and professional regulation. Those worlds are eminently reconcilable. Reconciliation is the everyday norm in practice. This is a case about a singular failure of reconciliation.

The University’s part in that has been the court’s focus in this case, as indeed it must be in judicial review proceedings. The result produced by the legal analysis is that, notwithstanding the many responsibilities the University had towards its student – academic and pastoral, supportive of diversity and freedoms, tolerant of lapses along the way of learning, inculcating professional ethos – the University was within its rights and duties in removing the student from his course. Testing that outcome against general standards of fairness and balance involves completing the picture by considering not only the choices the University had, but the choices the student had.

The legal authorities that have looked at the importance of religion in a plural and democratic society have also been unequivocal about the responsibilities that go with religious freedom in such a society (see for example the extensive surveys by Munby LJ in Johns, paragraphs 32-55 and by Laws LJ in McFarlane, paragraphs 19-24). The exercise of freedoms of speech – including of religious speech – carries with it, in the words of Art.10, duties and responsibilities.

This particular student, in common with other trainee professionals, had personal responsibilities as well as rights. These included committing to living his life not only according to his faith but also according to his professional ethos and discipline. Professional discipline, rightly, sits relatively lightly on its members outside the workplace, but it is never entirely absent where conduct in public is concerned. There, it always requires attention to the perceptions of others, especially those most directly interested in the performance of professional functions.

There are choices available in the use of religious speech, and professional discipline can guide those choices. Like other choices about how freedoms are exercised, they need to be exercised responsibly where they can affect others. Free religious speech, like other free speech, is not an exception. It can affect other people, for good or ill. Choices about it need to be exercised responsibly. Religious speech like the NBC postings can, as Mr Diamond said, ‘confuse the secular mind’. That is something with which professional practitioners working with secular minds have a responsibility to deal.

Perhaps there could have been ways to express public support for Kim Davis, complete with Biblical authorities, while leaving the audience in no doubt about the poster’s caring professionalism. There was a point when it seemed, from the contemporary notes of the Appeals Committee hearing, that the student’s representative, Pastor Omooba, was suggesting that ‘caution and diplomacy’ might have been a route to reconciliation; that sounded like wise advice. Mr Diamond suggested that the University was not helping achieve that. He asked rhetorically what diplomacy would have looked like. The student complained that no-one told him what sort of religious speech and Bible quotations were allowed and which were not. But trainee professionals might be expected to show they could think that through for themselves; to work out the impression that might be given in the wider world; to take personal responsibility for it; to work through to a professional solution; and if in doubt to take a balanced and consultative approach. A mature student, moreover, might be expected to do so more confidently and independently than a student new to adulthood.

As Mr Diamond said, religious speech has ‘multiple meanings’: it is multi-layered. Its theological layer is not necessarily widely understood. Its moral layer is not always warmly received. Its cultural layer may provoke active hostility. Where it touches on issues of same-sex sexuality, it may be radically rejected or cause hurt and harm, even if that is the last thing intended. Social workers have to deal with how people will actually react to it in real life, and express themselves accordingly. That is not about a ‘blanket ban’, or about stifling religious speech or about denouncing faith; it is about seeing the world as others see it, and making the connection between what you say and the provision of public services in sensitive and diverse circumstances. Trainee social workers have to satisfy their supervisors that they understand this, and are if necessary working hard at it. That requires a reflective and proactive response to concerns being raised (the development of ‘autonomous and reflective thinking’ is an HCPC SET expectation for courses of this sort). A reactive and defensive response is likely only to amplify those concerns. It was reasonable to expect a student whose career was at stake to have gone further to show that he understood the questions and had some reassuring answers.

Students on professional courses have to make the case at every stage for their fitness to practise, whether or not subject to formal procedures. That is a continuing obligation on qualified registrants too – they have themselves to justify every day the trust that others place in them.

Mr Ngole may have felt within himself that he was in a position where he had to choose between his religious beliefs and his programme. He was not in any objective sense in that position. He was in a position where he himself had to show he could, in his own way, reconcile the two. That is to a degree a personal matter. He could not simply expect others to do it for him. And if he could not in the end work out a solution that he could put into practice to everyone’s satisfaction, including his own, then the result that came about was the right one.

I am in all the circumstances satisfied that the balance which is produced by the step by step legal analysis in this case, between the public interest in the guaranteed professionalism of social workers, and the free exercise of important Convention rights by Mr Ngole, is also a fair and proportionate one. His challenge on that ground accordingly fails.

Mr Diamond for the claimant did not develop an alternative submission on common law principles, either in his skeleton argument or in oral submissions. Lord Sumption in the Lord Carlile case indicates that rationality is in any event a minimum condition of proportionality (paragraph 32); no argument was made in this case that a different result would be obtained by applying common law principles to the same issues.

Given the increasingly subsidiary part the NBC postings themselves played in their own right in the final decision making, it is conceivable that a different approach could have been taken to challenging an FTP decision like this, to which a wider common law perspective would have been relevant. That, however, would have to have been one which engaged with the FTP issue on its own terms, and which adduced evidence of a sort not before this court about the totality of considerations relevant to an individual’s FTP, present and future. But that was not the course that Mr Ngole set off down, and it was not the case argued by Mr Diamond.

By an application dated 4 September 2017, Mr Diamond sought to rely on an additional ground of challenge: that the decision to remove Mr Ngole from his course was in breach of natural justice due to the apparent and/or actual bias of the chair of the FTP Panel, Prof Marsh, and/or her failure to disclose her interests as an LGBT rights campaigner. Mr Diamond suggested that Prof Marsh was “a prominent and long-standing LGBT rights campaigner” who should have declared a personal interest before the FTP hearing and given Mr Ngole an opportunity to object to her participation – which he would have taken.

In support of this application, Mr Diamond submitted material from the University of Sheffield’s website (the ‘website materials’) including a short extract from a 2013 film Storying LGBT@TUoS: Testimonials from Students and Staff in which Prof Marsh participated. In it she gives a brief autobiographical account of the development of her sexual identity, speaks personally and positively about coming out as a lesbian and gives an encouraging message about the University’s support for its own LGBT community. She refers to having some years ago been on marches protesting about section 28 of the Local Government Act 1988, which was directed at preventing local authorities from ‘promoting homosexuality’ in schools, and which was a matter of broad and sustained political controversy from its Bill stage until its repeal in 2003. The website materials show that Prof Marsh also spoke, as part of the University’s celebration of LGBT history month in February 2017, about her experience of section 28 at the time of the passage of the 1988 Act in Parliament, when she was herself a school teacher. Mr Diamond additionally submitted a small number of tweets from Prof Marsh in June 2014, in July 2016 and in July 2017, marking LGBT Pride events. Witness evidence was also submitted, in the form of statements from Mr Ngole, and from Pastor Ade Omooba who accompanied him at the FTP hearing on 26 January 2016, that Prof Marsh had at the hearing (mis)described the NBC postings as “homophobic” or “discriminatory”.

Had this application been considered purely procedurally, it would have faced the almost insuperable hurdle of delay. All of the website material relied on had been readily accessible in the public domain since it was created. No explanation for the delay in making the application was offered other than Mr Ngole’s own (unexplained) recent state of awareness of it. Mr Ngole was notified on 21 December 2015 of the proposed composition of the FTP Panel and given an opportunity to object. He did so in the case of one member on academic grounds and the proposed member was replaced. He otherwise confirmed that he was content with the Panel. No proposition has in any event been put forward as to the connection in this respect between Prof Marsh’s participation in the FTP Panel and the decision of the Appeals Committee which is challenged in this case. Any issue of Prof Marsh’s conduct at the FTP hearing could have been put forward at the appeal stage, and indeed included in the original claim for judicial review.

The court was however invited by the University to consider the issue of bias substantively on its merits, as proposed by Mr Diamond, in the interests of fairness to all concerned. In all the circumstances I accepted that it would be in the interests of justice to do so.

Bias is a term with specific legal meaning, and the threefold classification of ‘actual’, ‘presumed’ and ‘apparent’ bias is set out with clarity in the judgment of the Court of Appeal in Locabail (UK) Ltd v. Bayfield Properties Ltd [2000]1QB 451. The test of actual bias – proof that a judge did in fact fail to make a decision with proper impartiality – is, rightly, a demanding one. The disputed evidence about whether Prof Marsh during the FTP hearing might have described Mr Ngole’s posts as homophobic or discriminatory, or otherwise referred to them disparagingly – even if accepted on the terms most favourable to the claimant – would not by itself come anywhere near establishing actual bias in the decision-making, so it is unnecessary to resolve that particular issue as being in itself potentially determinative of actual bias. More generally, Prof Marsh was not the sole decision-maker on the FTP Panel, and the clear evidence of the other members – Prof Morris and Dr Fairclough – is that the decision-making was unbiased. Mr Diamond did not take issue with that evidence, or with any other aspect of Prof Marsh’s own denial of actual bias, and no other evidence of actual bias was before the court. The attempt by Mr Diamond to put actual bias in issue this case is entirely without merit.

It is fair, however, to record that Mr Diamond did not put forward his bias challenge in a way which otherwise sought to impugn Prof Marsh’s personal probity. He did not need to do so to bring a challenge based on ‘apparent bias’. Apparent bias is not concerned with what actually happened, but with appearances. The protection afforded by law from ‘apparently biased’ decision-making is described by the Court of Appeal in Locabail (paragraph 16) as the most effective guarantee of the fundamental right to a fair hearing by an impartial tribunal, not least because it generally makes it unnecessary to attempt to establish actual bias.

The test for apparent bias established in the line of authorities culminating in Locabail, Porter v. Magill [2002] 2 AC 357 and Flaherty v. National Greyhound Racing Club [2005] EWCA Civ 1117 is whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that a decision-maker was biased. That in turn requires the court to apply a two-stage process. First, it must ascertain all the circumstances which have a bearing on the suggestion that the tribunal was biased. Secondly, it must ask itself whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased.

Applying that approach, the circumstances submitted by Mr Diamond as having a bearing are those set out in Mr Ngole’s second witness statement: Prof Marsh’s publicly available history of sympathetic and public involvement in LGBT issues and in promoting LGBT interests, taken in the wider context of the University’s own supportive stance and activities in relation to its LGBT community, and in particular the website materials referred to above.

The University submits that the circumstances set out in Prof Marsh’s second witness statement also have a bearing. There she sets out a fuller and more contextualised account of her history, emphasising its limited extent and in particular the limits of her active public involvement – whether in the section 28 issue in 1988, in the University’s LGBT staff network, in LGBT Pride activities, or in LGBT ‘activism’ more generally. This account of Prof Marsh’s history was not challenged factually by Mr Diamond, and I accept the totality of the circumstances submitted by both parties to be at least potentially relevant.

As to whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased, Mr Diamond submitted that the observer would be entitled to conclude that Prof Marsh had been a prominent campaigner for LGBT rights for most of her life, and that there was therefore a real possibility that she had approached the FTP Panel in a state of predetermination, or of a closed mind, or of hostility to Mr Ngole or his beliefs or his viewpoint.

Ms Hannett submitted that on the contrary a fair-minded observer would conclude that Prof Marsh’s history of participation in public LGBT activism was very modest – even reticent, whether by personal inclination or force of circumstance. To the extent that it was not irrelevantly historical, it was mainly about supporting the University’s pastoral efforts to provide a welcoming environment for LGBT staff and students. It gave no credible grounds for doubting her ability to participate in an evaluation of a student’s FTP as a social worker otherwise than entirely professionally.

In this context, Ms Hannett cited the extended observations of the Court of Appeal at paragraph 25 of its decision in Locabail, including the observations that it could not conceive of circumstances in which an objection of bias could be soundly based

“…on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge. Nor, at any rate ordinarily, could an objection be soundly based on the judge’s social or educational … background or history … or previous political associations … or extra-curricular utterances (whether in textbooks, lectures, speeches, articles, interviews, reports…) … [E]very application must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be.”

I accept the University’s submissions. I do not consider it arguable that the facts and circumstances of this case would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased. In reaching that conclusion, I bear a number of factors particularly in mind. Mr Diamond very properly did not suggest that Prof Marsh’s sexual orientation alone could found an objection on the grounds of apparent basis. There had to be something more. But on the materials before the court, over a history of almost thirty years, there is very little or nothing more, beyond what might be expected of any openly LGBT person, positive about their sexual identity and latterly in a position of being looked to as a role model.

The three person constitution of an FTP Panel is itself a safeguard in any event, enabling a diversity of personal perspectives to be brought to bear. It was an expert Panel. Its remit was focused on the fitness to practise of the student before it. To the extent that the disputed evidence about Prof Marsh’s language at the FTP hearing is material in this respect, I consider that in the context of a Panel forum in which the student is able to challenge matters put to him and make relevant representations, and if necessary to raise matters further and to object to the conduct of the Panel on appeal, no fair-minded and informed observer would consider the decision-making process in this case objectionable on grounds of apparent bias.

I accordingly reject the claimant’s challenge on this ground also. The permission sought by his application of 4 September is refused, on the grounds of delay and in any event because its propositions are not properly arguable for the reasons set out above.

Passing the specific details of this case through the filter of judicial review has produced a conclusion in favour of Sheffield University. The legal filter includes a number of different strands, including Mr Ngole's rights to hold and express his Christian belief, and his, and the University's, responsibilities to play their part in guaranteeing carefulness and high standards in the social work profession he wanted to join, in the interests of vulnerable service users and of the wider public. 

These are not incompatible public goods. They do not have to be in conflict. Where tensions arise they are capable of being resolved. It takes sensitivity, commitment ‎and cooperation on both sides to achieve that. On the facts of this case I have concluded that it was fair for the University to expect Mr Ngole to have done more in that respect. In not in the end giving him the benefit of the doubt, they were acting within the law.