Stephen Bowen, R (on the application of) v Kent County Council

Is ECHR Article 14 engaged at all? This question turns on whether the matter falls within the ‘ambit’ of ECHR Article 9, or Article 2 of the 1^st Protocol to the ECHR (‘A2P1’).

If Article 14 is engaged, does section 390(4)(a) as construed by KCC involve a breach of Article 14? This turns on

If section 390(4)(a) is in breach of Article 14, is it possible to read and give effect to section 390(4)(a) in a way which is compatible with the Convention rights?

If so, should the decision of KCC prohibiting Mr Bowen from being included as a Humanist representative within Group A of KCC’s SACREE be quashed and/or declared as unlawful?

Adopted by the local authority under that Schedule

‘The representative groups required by this subsection are-

…a group of persons to represent such Christian denominations and other religions and denominations of such religions as, in the opinion of the authority, will appropriately reflect the principal religious traditions in the area;

…a group of persons to represent the Church of England;

a group of persons to represent such associations representing teachers as, in the opinion of the authority, ought to be represented, having regard to the circumstances of the area; and

a group of persons to represent the authority.

‘a group of persons to represent –

Christian denominations and other religions and denominations of such religions

non-religious philosophical convictions’.

‘Taken overall, the human rights jurisprudence establishes the following points of relevance to this claim. In carrying out its educational functions the state owes parents a positive duty to respect their religious and philosophical convictions; the state has considerable latitude in deciding exactly how that duty should be performed, having regard among other things to available resources, local conditions and, in particular, the preponderance in its society of particular religious views, and their place in the tradition of the country; thus, the state may legitimately give priority to imparting knowledge of one religion above others, where that religion is practised or adhered to by a majority in society; but the state has a duty to take care that information or knowledge included in the curriculum is conveyed in a pluralistic manner; subject to certain threshold requirements, immaterial here, the state must accord equal respect to different religious convictions, and to non-religious beliefs; it is not entitled to discriminate between religions and beliefs on a qualitative basis; its duties must be performed from a standpoint of neutrality and impartiality as regards the quality and validity of parents' convictions.’

Factual Background

Mr Bowen has always held a worldview based on science, logic and rationality. He has become actively involved in humanism in the last ten years, and became a committee member of Kent Humanists, subsequently becoming its Chair. He has been a school speaker for Humanists UK for the last six years, which is a trained and accredited role. Mr Bowen considers that it is important that children understand worldview beliefs, and that those children who share such a worldview know what it is called. Since 2019, Mr Bowen has been a Co-convener for the Ashford Interfaith Group, which group includes Anglicans, Catholics, Jews, Muslims, Jains, humanists and others. Mr Bowen’s predecessor as Chair of Kent Humanists, Richard Norman, had previously had observer status on Kent SACRE. He had previously asked to become a full voting member, but at the time the then existing (voting) members of the SACRE had voted against accepting a humanist as a full member.

Humanists UK initially wrote to the chair of Kent SACRE on 22 August 2021 on Mr Bowen’s behalf requesting a position for a local humanist representative. The Chair of Kent’s SACRE, Mr Manion, responded swiftly on 24 August 2021, noting that Professor Norman had been an observer, and inviting his successor to their meetings. Humanists UK responded on 27 August 2021 confirming that their request was for full membership as opposed to mere observer status.

There followed some further exchanges between KCC and Mr Bowen directly, which Mr Bowen regarded as unsatisfactory. He sent KCC a letter before action. As a result of that letter, KCC through its solicitors responded on 16 November 2021, stating that not only had they not acted unlawfully, but also that there had been no relevant legal decision. Following further correspondence, KCC agreed on 1 December 2021 to make a decision as to whether or not to allow a humanist full membership of the SACRE, with voting rights. KCC decided on 17 June 2022 not to allow a humanist full membership of the SACRE.

The Leader of the Council decided to:

Under ‘Reasons for Decision’, KCC stated:

It is not in dispute that a number of other Local Authorities have accepted humanists as full members of Group A SACRE. It is said to be 66 according to the evidence of Mr Copson, Chief Executive of Humanist UK, but the precise number does not matter. It not the majority of Local Authorities, it is about 40%. There is no evidence before the Court on how those local authorities have gone about the selection process, and whether or to what extent the local authorities have turned their mind to how to comply with section 390(6). The Department for Education noted, when named as an interested party in these proceedings by KCC, that it wished to adopt a neutral stance, submitting that it ought not be added as an IP. It stated that it considered the application of section 390 and the selection of groups for SACREs is a matter for Local Authorities, and that it was anecdotally aware that there is currently a divergence in the approach of different LAs to this issue.

All GCSE specifications for Religious Studies must presently require students to demonstrate knowledge and understanding of the fact that ‘

In Kent, the agreed syllabus in fact includes references to the teaching of humanism.

Finally, on the available evidence before the Court, the number of those in Kent who identify as humanists can be, for the reasons set out below, regarded as materially ‘significant’. According to Mr Bowen, Humanists UK has 1,742 registered members and supporters in Kent. The 2021 Census data for Kent identified, amongst others, the following numbers:

Overall, there were over 40 other religions listed, from Animism (20 people) to Zoroastrian (67). In addition to humanism, there were also 5 categories of other non-religious beliefs declared, from Agnostic (809) to ‘Realist’ (1). Baha’i has been included in the list of religions specifically identified above because there are more declared humanists within Kent than those with Baha’i beliefs. There is presently a representative of the Baha’i religion selected to be part of KCC’s SACRE Group A. It should be emphasised that Mr Bowen makes no complaint about the fact that Baha’i is represented, merely that humanism is not represented.

Is Article 14 engaged?

Article 14 enshrines the protection against discrimination in the enjoyment of
the rights set forth in the ECHR. It provides that “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

In R (Stott) v Secretary of State for Justice [2018] UKSC 59, Lady Black set out a succinct summary of the well-established approach to an article 14 claim:

In the present case, there is no dispute about status. There is, however, a dispute about ambit (whether article 14 is engaged), and analogous situation and justification (whether the impugned measure is in breach of article 14).

Ambit

Mr Wolfe contends that the ambit hurdle is a ‘very low one’. Mr Giffin argues, and I agree, that it is not necessarily helpful to focus on whether one might regard the test as low or high. Nonetheless, there is agreement that the concept of ambit is a ‘wide’ one where it is not necessary for there to have been a violation of the substantive right, and it does not need to be a right that the state was obliged to protect at all.

As summarised by Lord Stephens in the Privy Council judgment in Royal Cayman Islands Police Association and others v Commissioners of the Royal Cayman Islands Police Service & another [2022] ICR 117

‘ambit should be considered by reference to a value judgment as to the proximity between the facts at issue to the core values which are engaged in respect of an employment-related dispute between an individual and the state, as protected by section 9 of the Constitution (and by its equivalent, article 8 ECHR). The linkage must be more than tenuous for the facts at issue to be within the ambit of the substantive provision.’

A further and recent articulation of ‘ambit’ making this clear is found in the Supreme Court’s judgment in A&B v Criminal Injuries Compensation Authority [2021] 1 WLR 3746. This was a case in which the claimants were brothers who had been convicted in Lithuania of burglary and theft and sentenced to terms of imprisonment. Those convictions remained unspent when they were trafficked into the United Kingdom and subjected to exploitation and abuse. They applied for compensation under the Criminal Injuries Compensation Scheme (2012) as victims of modern slavery and trafficking. The Criminal Injuries Compensation Authority refused their applications pursuant to an exclusionary rule relating to applicants with certain convictions. The claimants sought judicial review. Whilst ultimately concluding the refusal was lawful, on the question of ambit the Supreme Court determined that the United Kingdom’s voluntary application of its Criminal Injury Compensation Scheme to victims of trafficking was sufficiently connected to the core value of the protection of victims of trafficking under article 4 of the Human Rights Convention so as to bring the operation of the Scheme within the ‘ambit’ of that article.

Dealing with the breadth of the concept of ambit, Lord Lloyd-Jones stated, relying upon the concurring opinion of Judge Sir Nicolas Bratza, President of the ECtHR, in Zarb Adami v Malta (2007) 44 EHRR 3 stated as follows:

‘The claim is capable of falling within Article 14 even though there has been no infringement of Article 8. If the State has brought into existence a positive measure which, even though not required by Article 8, is a modality of the exercise of the rights guaranteed by Article 8, the State will be in breach of Article 14 if the measure has more than a tenuous connection with the core values protected by Article 8 and is discriminatory and not justified. It is not necessary that the measure has any adverse impact on the complainant in a positive modality case other than the fact that the complainant is not entitled to the benefit of the positive measure in question.’

Article 9

Freedom of thought, conscience and religion

‘States have the positive obligation under Article 9 of the Convention of ensuring the peaceful coexistence of all religions and those not belonging to a religious group by ensuring mutual tolerance…These obligations may required the adoption of measures to ensure respect for freedom of religion even in the relations between individuals.’

‘107. The Court has frequently emphasised the state’s role as the neutral an impartial organiser of the exercise of various religions, faiths and beliefs, and has stated that this role is conducive to public order, religious harmony and tolerance in a democratic society. As indicated above, where the views in question attain a certain level of cogency, seriousness, cohesion and importance, the state’s duty of neutrality and impartiality excludes any discretion on its part to determine whether religious beliefs or the means used to express such beliefs are legitimate. Religious and philosophical beliefs concern individuals’ attitudes towards religion, an area in which even subjective perceptions may be important in view of the fact that religions form a very broad dogmatic and moral entity which has or may have answers to every question of a philosophical, cosmological or moral nature.

In democratic societies the state does not need to take measures to ensure that religious communities remain or are brought under a unified leadership. In that connection, state action favouring one leader of a divided religious community or undertaken with the purpose of forcing the community to come together under a single leadership against its own wishes would likewise constitute an interference with freedom of religion. The role of the authorities in such a case is not to adopt measures favouring one interpretation of religion over another or to remove the cause of the tensions by eliminating pluralism, but to ensure that the competing groups tolerate each other.’

‘No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.’

‘28. The Court reiterates that Article 2 of Protocol No. 1 (P1-2) enjoins the State to respect parents’ convictions, be they religious or philosophical, throughout the entire State education programme (see the Kjeldsen, Busk Madsen and Pedersen judgment cited above, p. 25, para. 51). That duty is broad in its extent as it applies not only to the content of education and the manner of its provision but also to the performance of all the "functions" assumed by the State. The verb "respect" means more than "acknowledge" or "take into account". In addition to a primarily negative undertaking, it implies some positive obligation on the part of the State (see the Campbell and Cosans judgment cited above, p. 17, para. 37).’

‘Even where the belief in question attains the required level of cogency and importance, it cannot be said that every act which is in some way inspired, motivated or influenced by it constitutes a ‘manifestation’ of the belief. Thus, for example, acts or omissions which do not directly express the belief concerned or which are only remotely connected to a precept of faith fall outside the protection of art.9(1). In order to count as a ‘manifestation’ within the meaning of article 9, the act in question must be intimately linked to the religion or belief. An example would be an act or worship or devotion which format part of the practice of a religion or belief in a generally recognised form. However, the manifestation of a religion or belief is not limited to such acts; the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case.’

Mr Giffin contends, rightly, that when it comes to assessing the ambit of article 9 for the purposes of an article 14 claim, one should first consider whether the allegedly discriminatory measure represents a means by which that the state seeks to allow individuals to express their beliefs freely, or whether the alleged discrimination is of a kind which has a sufficiently direct impact upon the expression of beliefs. He argues that representative membership of SACRE within Group A is neither a manifestation of belief, nor even tenuously linked to any such manifestation.

On the spectrum which can be ascertained from the authorities, Mr Giffin argues that the present case is far removed from those where discriminatory acts have been established as being within the ambit of article 9. In this context, both parties rely upon the case of Dogan. Mr Giffin characterises it as a true illustration of what ECHR and article 9 values are really about. He points to the conclusion of the ECtHR that the extent of systematic disadvantage and inhibitions on the manifestation of the Alevi faith to which the community was subject by the Turkish state was existential, impacting the survival and development of the faith itself. This, he contends, could not be further removed from the present one. Mr Wolfe points out, however, that these aspects of the Dogan decision relate to the claim for direct interference with the right to freedom of religion as guaranteed by article 9, and are not therefore directly relevant to the present Article 14 claim. The basis of the article 14 claim centred upon the provision by the Turkish state of a ‘denominational public service in the religious sphere’ centred on the Sunni understanding of Islam. No equivalent existed for the Alevi community. The contention was therefore that although states were not obliged to take positive measures in that regard, the Turkish State had decided of its own accord to provide a public religious service to one particular faith, while refusing the same favourable treatment to other beliefs and religions. This therefore fell within the ambit of article 9. Mr Wolfe drew a direct comparison: there was no obligation upon the state to set up a SACRE for the purposes of advising local authorities upon religious education, but having done so, it was required to do that in a non-discriminatory way. Mr Wolfe submitted that the present case, as with Dogan, was a classic example of ambit being established through modality.

‘there are two ways in which a private-life issue would usually arise in such a dispute: either because of the underlying reasons for the impugned measure (…the reason-based approach) or – in certain cases – because of the consequences for private life (….the consequence-based approach).’

‘There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then the court’s scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact.’

As is often the case, the issues relating to analogous situation and justification overlap (see Re McLaughlin at [24]). A number of the points raised by Mr Giffin to argue that there is no analogous situation in the present case are relevant to his arguments on justification. Nevertheless, in the first instance the issues will be considered sequentially.

Mr Bowen argues that, as a humanist, he has a right to be considered for membership of Group A of SACRE. The specific question to be asked is whether persons without religious beliefs are in an analogous position to those holding religious beliefs in the context of and for the purposes of Group A membership. In order to analyse this, it is necessary to consider the nature and purpose of SACRE, and of the role of Group A within SACRE.

Mr Giffin contends that Group A is, within the scheme of the legislation, intended to represent faith groups. Group B is intended specifically to represent the Church of England. Groups C and D are, by contrast to A and B, intended to be ‘secular’, representing teaching associations and a group representing the local authority respectively. The local authority itself has the responsibility for ensuring that, in the teaching of religious education, plurality is respected. Having defined the groups this way, Mr Giffin then contends that the Court should ask whether, in the context of a body which has been split in a manner defined by those representing spiritual concerns (Groups A and B) and those representing secular concerns (Groups C and D), someone who is an adherent to and represents a belief that is explicitly secular is in an analogous position to a person of faith for the purposes of membership of Group A.

The fundamental difficulty with this argument is that it entirely mischaracterises the nature of the Groups within the SACRE, and as such draws a false comparison. The purpose of the SACRE is, as set out in section 391 of the 1996 Act, to advise the local authority on the religious education to be given in accordance with an agreed syllabus. This advice will broadly fall into two categories: the content of the syllabus and the implementation of the teaching of that syllabus. In other words, what is taught and how it is taught. It is clear, in my judgment, that the primary concern of Groups A and B is, broadly speaking, the content of religious education and the primary concern of Groups C and D is, broadly speaking, the implementation of religious education within the area. Of course, this does not mean that in practice members of each group are somehow confined in SACRE meetings to expressing views solely on matters of content or implementation respectively; it is merely to say that the SACRE as a whole is sensibly structured so as to constitute a range of suitably qualified views for the purposes of addressing both content and implementation of religious education. The particular expertise on content generally comes from Groups A and B, and the particular expertise on implementation generally comes from Groups C and D.

It is therefore also wrong to characterise the members of Groups C and D, as Mr Giffin does, as those providing the SACRE with a ‘secular perspective’. The perspective of Group C is intended to be the view of associations of teachers. Their personal beliefs (be they religious or non-religious) are not relevant to their representative role in the SACRE. As Mr Giffin accepted, they could be entirely made up of followers of various religious faiths. The same applies for those representing local authorities. Indeed, the fact that the role of those in Group D is generally not to advise on content (whether from a secular perspective or otherwise) is demonstrated by the fact that the Group D is not entitled to a vote when it comes to determining whether the content of the agreed syllabus should be reviewed in accordance with section 391.

Where a religious education curriculum is wholly based on the teaching of religions, with a weighting towards Christianity and the Church of England in particular, it would be entirely unsurprising for the composition of Groups A and B to reflect that. However, it is plain from Fox that a religious education curriculum must, in order to be compliant with the HRA 1998, cover more than religious faith teaching. The content of religious education teaching must include, at least to some degree, the teaching of non-religious beliefs (such as humanism). In this context, when seeking to consider the ‘analogous situation’ criteria, it is plainly wrong, and circular, to define Group A solely by reference to holders of religious based beliefs.

I am not persuaded by Mr Giffin’s suggestion that Group A is to be taken as ‘faith only’ by reference to the fact Group A shares a single vote. There is no logical basis to think, in terms of advising upon the provision of religious education which is to include both religious and non-religious beliefs, there should be a particular, defining community of interests based on belief. For example, taking the census data for Kent, it seems to me implausible that there is the necessary community of interest between the Satanist (there are 145 in Kent) and the Buddhist (8749 people) so intrinsic that it should define those entitled to participate in Group A. The SACRE voting system clearly requires those with disparate belief systems to share a single vote when it comes to determining whether to require the local authority to convene the ASC; including the possibility that the constituency of Group A may include a humanist does not change the fundamental characteristic of the group which is derived, as set out above, from its function as a group to advise upon the content of religious education in the area.

Analysed properly, when looking at membership of a group the purpose of which is to advise upon the content of a religious education syllabus, it is obvious that all people who are holders of belief systems appropriate to be included within that syllabus are in an analogous position. It is in my view clearly discriminatory to exclude someone from SACRE Group A solely by reference to the fact that their belief, whilst appropriate to be included within the agreed syllabus for religious education, is a non-religious, rather than a religious, belief.

It is therefore necessary to consider the question of justification.

Mr Giffin makes a number of points justifying the exclusion of those with non-religious beliefs from Group A in addition to the points made relating to analogous position. The further points can be summarised as follows:

Starting with the discretion which should be accorded to the judgments made by Parliament, and the related question of what use the Court should make of the parliamentary debate material placed before me by KCC, both parties rely upon the single judgment of Lord Reed (with which all the other members of a seven member Court agreed) in the recent Supreme Court decision of R(SC) v Secretary of State for Work and Pensions [2021] UKSC 26. The case related to the changes introduced by the Welfare Reform and Work Act 2016 by which a family making a new claim would not be awarded child tax credit for a child born after 6 April 2017 if they were already receiving child tax credit for two or more children, subject to certain exceptions. It was claimed that this measure unjustifiably discriminated against adult claimants as women, as compared with men; and against the child claimants, as compared with adults or other children in smaller households. The second and third preliminary issues of principle Lord Reed considered before turning to their application in that particular case were (a) whether the approach to proportionality under article 14 set out in Humphreys v Revenue and Customs Comrs [2012] 1 WLR 1545 (‘Humphreys’), and followed in several later cases, to the effect that the court will respect the policy choice of the executive or the legislature in relation to general measures of economic or social strategy unless it is manifestly without reasonable foundation, accurately reflects the approach of the ECtHR and should continue to be followed; and (b) the use which can be made of Parliamentary debates and other Parliamentary material when considering whether primary legislation is compatible with Convention rights, having regard to Parliamentary privilege. Both of these issues are of relevance in the present case.

In relation to the first of these issues, Lord Reed commenced by identifying that it was well settled in European jurisprudence that states have ‘a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment’ and that ‘the scope of this margin will vary according to the circumstances, the subject matter and the background’. He then identified that there was no existing systematic analysis of the relevant factors or an explanation of how they interact, but considered it useful to consider that there were a range of factors which tend to heighten, or lower, the intensity of the review of the decision required by the court. He continued at [100]:

In the case before me, Mr Giffin urges that this is not a case where the grounds of difference in treatment are linked with problems of stereotyping, stigma and social exclusion. Mr Wolfe contends the opposite, and that the discrimination in issue in this case is one of the ‘suspect’ categories where ‘weighty reasons’ may generally be thought necessary to justify the approach taken. Lord Reed dealt specifically with the application of these issues in the context of an article 9 claim at [109]-[110]. He observed:

Lord Reed then identified the example of Eweida, in which the restriction of wearing of necklaces by staff handling patients was, whilst an interference with the nurse’s freedom to manifest her religion, justified by the ‘importance of the reason for it’ (clinical safety). The second complaint in Eweida related to a registrar of births, deaths and marriages who had a religious objection to same-sex unions and lost her job after refusing to register them. The court observed that it ‘generally allows the national authorities a wide margin of appreciation when it comes to striking a balance between competing Convention rights’, and held there had been no violation of article 14.

At paragraph 115, Lord Reed then summarised five general points, the first, second and fifth of which are of potential relevance in the present case:

At paragraphs 117 to 142, Lord Reed explored the European jurisprudence dealing with application of the term ‘manifestly without reasonable foundation’, noting in paragraph 142 that the breadth of the margin of appreciation would be fact specific and that, in the context of article 14, the fact that a difference in treatment is based on a ‘suspect’ ground is particularly significant, and in these cases ‘strict scrutiny’ may be required. At paragraphs 143 to 162, Lord Reed then summarised the way in which domestic courts had sought to apply an analogous approach to the concept of ‘the margin of appreciation’ which is specific to the European Court. A key reason for an equivalent ‘discretionary area of judgement’ (R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326, 380) is, as emphasised in argument before me by Mr Giffin, the need for domestic courts to respect the separation of powers between the judiciary and the elected branches of government. At [144] Lord Reed explained:

At paragraph 146, Lord Reed then identifies that the administrative law test of unreasonableness is generally applied in contexts such as economic policy and social policy with considerable care and caution, and that the same is true of the Convention test of proportionality. Both tests have to be applied in a way which reconciles the rule of law with the separation of powers. Thus, as identified at paragraph 161, matters raising sensitive moral or ethical issues will afford substantial weight to the primary decision-maker (i.e. in the present circumstances, the legislature), such that the test ‘manifestly without reasonable foundation’ may well be appropriate. The Court must at all times be extremely conscious of the risk of undue interference by the courts in the sphere of political choices, which risk can only be avoided if the courts apply the principle of proportionality in a manner which respects the boundaries between legality and the political process (see [162]).

In the present case, it is plain that discrimination on the basis of faith is, indeed, one of the types of differences of treatment which are regarded as especially serious, and therefore call, in principle, for a strict test of justification. However, it is equally plain that the provision of religious education (now including, for the avoidance of doubt, the inclusion of at least some teaching of non-religious belief systems) is a measure of social strategy and one in relation to which a legislature will generally be afforded a wide margin in respect of its policy choice. I consider that, whilst a matter of real significance as it touches upon the important rights protected by article 9 and A2P1, I should nevertheless be satisfied that the policy choice is manifestly without reasonable foundation if I am to consider it to be disproportionate and without justification.

As regards the use of parliamentary material, paragraphs 163 to 185 of SC contain the discussion by Lord Reed of the prior case law, and underlying principles relating to, the use of Parliamentary debates and other Parliamentary material, having regard to Parliamentary privilege. From this I extract the following statements of principle relevant to the determination of issues in the present case:

I will not in this judgment set out the various exchanges from the Parliamentary debates to which I was taken in argument by Mr Giffin, but instead will set out the evidence from Amy Tschobotko, a solicitor instructed by KCC. Ms Tschobotko summarises the evidence and extracts the key quotes upon which Mr Giffin bases his submission that the issue before me has been considered by Parliament. As such, he contends that, in accordance with the foregoing principles, this should be a factor weighing in favour of considering the policy choice proportionate:

KCC also rely upon the fact that a Private Member’s Bill called the Education (Non-religious Philosophical Convictions) Bill was introduced into the House of Lords by Baroness Burt of Solihull on 14 June 2022.

It is quite clear to me from reviewing the Parliamentary material in full that the entire context of the debate at the time was that religious education was to be confined to teaching Christianity and other principal faiths. It is right that there was consideration of whether that should be the case, but that is an entirely different issue from whether, once it is recognised (as it is now, in a way it was not in 1993 and earlier) that the curriculum must include some elements of non-religious beliefs, a SACRE’s constitution should be capable of including representatives of those non-religious beliefs which are appropriate to be included in the curriculum. Therefore, the parliamentary material is not in my judgment of any relevance to the issue I have to decide.

Against this background, I turn to the issue of whether the discrimination I have identified is proportionate and justifiable. Notwithstanding the wide margin I consider must be afforded to the legislature, I do not consider that any of the grounds identified can remotely justify the discrimination.

First, Mr Giffin points to the practical difficulty of determining which non-religious beliefs qualify for representation. However, whilst in some circumstances this might no doubt be a difficult and sensitive question, the local authority and SACRE already have to grapple with the equivalent question of which non-religious beliefs should be included within the overall religious education provision. Mr Giffin relies, by way of illustration, on the government’s position explained by Lord Agnew of Oulton then serving as a parliamentary under secretary of state at the Department of Education, in the House of Lords on the Commission of Religious Education’s September 2018 Report. The Commission had proposed renaming RE as ‘religion and worldviews’. Lord Agnew said:

Mr Giffin relies upon this to demonstrate the purportedly ‘radical’ outcome of construing section 390 as other than in line with the normal usage of the words, and as evidence of the complexity of the practical problems that lie behind the policy choice embedded in the legislation as it presently stands. However, whether or not it is ‘fraught with difficulty’, it is already the position that determining ‘what ought to be taught’ insofar as it relates to non-religious beliefs is an issue with which the local authority must grapple, following the recognition in Fox that at least some such teaching is required as part of religious education in order to be compliant with HRA 1998.

Moreover, it is not a qualitatively different question to that which must already be asked in relation to religious representatives. The local authority in Kent, based upon the 2021 Census data, might already find itself having to decide whether SACRE should contain Satanist, Reconstructionist or Pagan representatives. In this context, a request for representation from someone with a particular belief system may require the local authority to consider the potentially difficult question of whether the beliefs attain a certain level of cogency, seriousness, cohesion and importance so as to merit consideration at all, irrespective of whether the belief system is religious or non-religious. Interestingly, it might also be noted that whilst the quote from Lord Agnew above highlights Confucianism as an example of a non-religious worldview giving rise to potential complexity, the Kent census data of 2021 has Confucianism listed under ‘Other religion’, rather than ‘non-religion’. This aptly illustrates how the definitional problems already exist at what might be called (with no disrespect intended) the margins, irrespective of a distinction between religious and non-religious belief. Moreover, it is difficult to see how any such problem arises in any event in the case of humanism which is (a) not a non-religious worldview ‘at the margins’, but well recognised as one which should be afforded equal treatment (see Harrison) and (b) is already a subject matter included in 91% of agreed syllabuses, including that in Kent. Ultimately, a local authority must form a judgment in relation to these questions, which is not made more or less difficult by the inclusion of people wishing to represent recognized non-religious belief systems.

Similarly, the purported practically difficult task required in identifying a particular representative of a non-religious belief system when compared to a religious belief system is equally overstated, and certainly is wholly insufficient to justify the discriminatory nature of section 390 if construed so as to exclude those who adhere to belief systems which are themselves appropriate to be included within the agreed syllabus for religious education. In accordance with section 392, the local authority must, before appointing a person as a representative of a particular belief system, take all reasonable steps to assure themselves that the appointee is representative of that belief system. No doubt, that would involve enquiring into how and why the person considers themselves to be representative. In the case of a non-religious believer such as a humanist, the prospective appointee might readily identify participation in group meetings or holding positions of responsibility within relevant organisations in much the same way a religious believer would identify their equivalent suitability. Whilst it is obvious that one humanist is unlikely to be truly representative of all humanists, the same is equally true of representatives of religions and denominations. Indeed, the task of a local authority in this respect may be easier in the case of appointing a humanist representative than (say) an animist. Ultimately, again, judgment is required in a materially similar way whether the prospective appointee holds a religious or a non-religious belief.

I also reject Mr Giffin’s contention that possible adherence to more than one belief system is, itself, problematic in circumstances where a person is appointed to represent a particular belief system. The example given by Mr Giffin was that a humanist may also be a communist, in a way that a catholic is unlikely also to be pagan. However, putting aside whether communism is truly a non-religious belief system appropriate for inclusion within a religious education syllabus, the point is that the representative would be appointed as a representative of humanism. If the local authority had legitimate grounds to consider that their separate belief in communism undermined their ability to properly be representative of the humanist belief, they would be entitled to refuse to appoint the person as the representative. Moreover, this does not just apply to non-religious appointees: a catholic might equally be a communist, but the latter would not of itself disqualify the catholic from being a representative of Catholicism on SACRE. On any view, this does not come close to a valid justification for the exclusion from Group A of SACRE of those with non-religious belief systems which are relevant to the content of religious education in a particular area.

As to the workability of Section 390(6), this states, as set out above, that the number of representative members appointed to any representative group to represent each religion or denomination required to be represented shall, so far as consistent with the efficient discharge of the group’s functions, reflect broadly the proportionate strength of that denomination or religion in the area. Pointing to the evidence of Mr Copson, who states that as many as 400,000 of the 1.5m population in Kent may hold humanist beliefs, Mr Giffin argues that membership proportionately within Group A would be ‘transformative’ in a context where, he says, the purpose of Groups A and B is to represent faith views. I have already rejected the contention that the purpose of Groups A and B is to represent faith groups; it is intended to consist of a group of people able to bring experience and expertise generally to advice on the content of the syllabus drawn from those with religious and non-religious beliefs which are appropriate to be included within a religious education syllabus. However, Mr Giffin’s fear is unfounded in any event, and certainly does not amount to a justification for the discriminatory effect of section 390(4) as construed by KCC. The fact that religious education will remain predominantly based on religions rather than non-religious beliefs will no doubt be a factor a local authority will take into account when ensuring that the proportions of representation should always remain consistent with the efficient discharge of SACRE’s functions, as explicitly required by section 390(6). Thus, pursuant to this section the number of non-religious belief holders appointed might legitimately also need to be reflective of the (more limited) extent of non-religious belief content required within the syllabus. It does not need to be rigidly dictated by the proportion of people with a particular non-religious belief in the local area. Irrespective of the eligibility of those with non-religious belief systems, a local authority needs to be practical and sensible in applying section 390(6), always consistent with the efficient discharge of the function of the group. This affords the local authority considerable discretion. Indeed, the present constitution of Group A SACRE by KCC is not in any way strictly reflective of the proportions of particular religions within Kent, but that does not mean of itself that its constitution is unlawful (the subject matter of these proceedings aside).

Far from assisting Mr Giffin’s argument, I consider that section 390(6) fundamentally undermines it. It demonstrates (as Mr Giffin himself states at paragraph 66 of his skeleton argument) that the aim of the statutory provisions is to achieve broad correspondence between the constituency of the groups drawn from the local area and the nature of the curriculum into which they are to have their input. This is itself at least to some extent intended to reflect the range of different beliefs specific to the area in order to promote tolerance and pluralism in religious education. However, the overall effect of the statutory provisions as interpreted by KCC is that, in circumstances where the religious education curriculum must, as determined in Fox, contain teaching of some non-religious beliefs, such correspondence is impossible to achieve.

I therefore conclude that the discriminatory nature of section 390(4) as interpreted by KCC is manifestly without reasonable foundation and not justifiable. Indeed, it is antithetical to what the provisions can sensibly be considered as aiming to achieve, when that aim is now to be realised in light of the fact that ‘religious education’ must include some teaching of non-religious beliefs, as confirmed in Fox.

As such, section 390(4)(a) as construed by KCC does involve a breach of Article 14.

Is it possible to read and give effect to section 390(4)(a) in a way which is compatible with the Convention rights?

Section 3(1) of the HRA provides that:

By way of guidance as to the Court’s approach to the exercise required by section 3, I rely upon the judgment of Lord Nicholls in Ghaidan v Godin-Mendoza [2004] 2 AC 557. At paragraphs 32 and 33 he states as follows:

In Ghaidan, the House of Lords interpreted ‘spouse’, defined in paragraph 2 of Schedule 1 of the Rent Act 1977, as extending, in the context of rights to be afforded to a surviving same-sex partner, to persons living with another as if they were husband and wife.

The obligation under section 3 is imposed not just on the courts, but also on those tasked with interpreting and applying the relevant legislation. As Lord Rodger of Earlsferry put it at paragraph [106]:

“Nevertheless, the section is not aimed exclusively, or indeed mainly, at the courts. … section 3 is carefully drafted in the passive voice to avoid specifying, and so limiting, the class of persons who are to read and give effect to the legislation in accordance with it. Parliament thereby indicates that the section is of general application. It applies, of course, to the courts, but it applies also to everyone else who may have to interpret and give effect to legislation. The most obvious examples are public authorities such as organs of central and local government … ”

In terms of what may be ‘possible’ (and therefore permissible), Mr Wolfe relies upon the decision of Colton J in Smyth [2017] NIQB 55. This case concerned the Convention-compliance of provisions within the Marriage (Northern Ireland) Order 2003 (‘the Order’) which prevented the claimant from having a legally recognised humanist marriage ceremony conducted by a humanist celebrant approved as an officiant under the Order. As part of this, it was argued that the term ‘religious marriage’ can and should be read to include the concept of ‘belief marriage’. The claim succeeded, and Colton J relied upon section 3 to read the words ‘or belief’ into Articles 14 to 17 of the Order where it had referred to the words ‘religious body’. On appeal, the Court of Appeal identified what it considered to be an easier route to achieve the same end (and to that extent allowed the appeal), but otherwise agreed with Colton J’s carefully reasoned judgment.

One of the formulations advanced by Mr Wolfe in argument is to follow Colton J and read into section 390 the word ‘or belief’ after the reference to ‘religion’ as necessary. Mr Wolfe also pointed to the way the Welsh Cabinet Secretary for Education formulated the appropriate interpretation, which I have quoted in paragraph 16 above, as a potential solution.

Mr Giffin contends, first, that it is not possible to construe section 390 in the manner contended as to do so would go against the grain of the legislation. I reject that argument for the reasons I have already given. In summary, far from going against the grain of the legislation, I consider that in circumstances where ‘religious education’ within section 80 must include at least some teaching of non-religious beliefs, it is anomalous to read section 390(4) as prohibiting persons holding beliefs which would be appropriate for inclusion within the syllabus from membership of Group A of a SACRE.

Second, he contends that there a number of different ways in which the incompatibility may be remedied, and this should be left for Parliament. I accept that there are indeed a number of different ways in which Parliament might seek to amend the various religious education related provisions, including section 390, and accept that that may involve policy decisions which are beyond the remit of this Court.

However, I remind myself that the principal question before me is whether KCC made an error of law in prohibiting Mr Bowen from being a member of Group A of their SACRE on the basis of KCC’s understanding that section 390 required them to prohibit that appointment.

In order to answer that question (to which there is a binary answer) I accept, as Mr Wolfe submits in the alternative to the various formulations he advances, that in doing so it is not necessary for me expressly to reformulate the legislation as though I were a statutory draftsman or, indeed, at all. I note that in Fox, Warby J did not attempt to re-word sections 78 and, in particular, 80 of the 2002 Act in order to give effect to his determination that those statutory provisions were ‘to be interpreted as incorporating the duty of care recognised by the European court’.

Whilst I accept Mr Giffin’s submission that ‘religious education’ within section 80 may be regarded as something of a label, it is plain to me that all of the related and interconnected provisions relating to the provision of religious education are explicit in their use of the language of ‘religions’ and ‘religious traditions’. Indeed, whilst it is not necessary to do so, one need only look back to the passages of parliamentary material Mr Giffin himself relies upon in relation to the previous issue to understand that (following debate), that was precisely the intention of parliament at that time. Non-religious worldview teaching was consciously excluded, and that explains the original drafting. However, in Fox, Warby J recognised that this was not compatible with HRA, and found that at least some teaching of non-religious belief systems would be required within ‘religious education’ to be compliant with Convention rights, and that the assertion which stated or implied the opposite was wrong. At paragraph 76, Warby J said:

Whilst not embarking on the exercise of re-drafting the legislation, Warby J can only have concluded that it was possible to ‘read in’ some words in accordance with s3 of the HRA to permit it to be interpreted in accordance with the HRA. It was not necessary for him positively to articulate the precise reformulation of the education statutes in order to determine that the assertion was an error of law. I shall limit myself likewise. It is not necessary to decide whether the words to read in are ‘beliefs’ or ‘non- religious worldviews’ or ‘cogent philosophical convictions’ or some other formulation in order to determine that it was an error of law to exclude Mr Bowen from consideration for appointment to Group A merely because humanism is a non-religious belief system. In interpreting section 390(4)(a) as KCC did, it failed to interpret the provision in compliance with the HRA 1998 when it was possible to do so. Whatever the precise wording that might in due course be adopted by Parliament, should it choose to do so, humanism is self evidently a belief system which is appropriate to be included within a religious education syllabus (not least because it overwhelmingly is already), and would be encompassed within any Convention-compliant interpretation of section 390(4)(a).

It follows from this that my judgment extends no further than determining that the basis of KCC’s decision was erroneous in law. It does not follow that any and every non-religious belief would need to be treated similarly – for example, it may be legitimate to conclude that a particular belief (religious or non-religious) does not attain the requisite level of cogency, seriousness, cohesion and importance to attract protection. Similarly, as I have described, there remains considerable discretion for the local authority when determining who to appoint pursuant to section 390(6) to ensure consistency with the efficient discharge of the group’s functions.

Should the decision of KCC prohibiting Mr Bowen from being included as a Humanist representative within Group A of KCC’s SACREE be quashed and/or declared as unlawful?

Yes.

The application for judicial review succeeds. I quash the decision of KCC dated 17 June 2022 on the basis that it was unlawful.