5. Analysis: Legal Reasoning and Precedents
A. Religious preference is not immunity from race discrimination claims
The Secretary of State argued that paragraph 5 exempted any indirect discrimination claim arising from faith-based admissions criteria. The argument relied on the phrase “so far as relating to religion or belief”, rather than wording expressly limited to “religious or belief-related discrimination”.
The court rejected that interpretation. Section 85 supplies the prohibition, while sections 13 and 19 identify discrimination by reference to protected characteristics. Read within that structure, “religion or belief” in paragraph 5 refers to the protected characteristic bearing that name. It does not describe every policy with a religious connection.
Accordingly, a criterion can be exempt from a religious-discrimination claim while remaining subject to an indirect race discrimination claim. The legal question is not simply whether the criterion concerns religion, but which protected characteristic grounds the alleged discrimination.
Interpretative precedents
R (O) (A child) v Secretary of State for the Home Department supplied the principal interpretative method: statutory words must be understood in their legislative context and in light of purpose, with external materials playing a secondary role. The authorities quoted within that decision—Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 and R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349—reinforced the primacy of Parliament’s enacted language and the importance of its surrounding provisions.
R v Montila [2004] 1 WLR 3141 supported the legitimate, though limited, use of statutory headings. The heading “Religious or Belief-Related Discrimination” confirmed the narrower interpretation of paragraph 5. It did not override the text: the court considered the text already clear.
The Secretary of State also relied on Bakkali v Greater Manchester Buses (South) Ltd (trading as Stagecoach Manchester) [2018] ICR 1481 to support a broad understanding of “relating to”. That submission did not prevail. The court interpreted the phrase within this particular statutory scheme rather than adopting an abstract meaning such as “associated with”.
Legislative history
The earlier legislation reinforced the conclusion. Religious admissions discrimination had been addressed by the Equality Act 2006, with an exception for designated faith schools. Race discrimination was separately regulated by the Race Relations Act 1976, without a corresponding admissions exemption.
The Equality Act 2010’s harmonising exercise did not silently create a substantially wider immunity. Such a change would have removed the need to justify religious criteria causing racial disadvantage. Nothing in the statutory language, structure or materials shown to the court supported that result.
The qualification: Parliament’s policy remains relevant
The court nevertheless accepted the Secretary of State’s alternative argument. Parliament’s support for designated faith schools is relevant both to identifying a legitimate aim and to proportionality. It demonstrates a public interest in preserving religious schools and their distinctive character.
The distinction is fundamental: legislative permission supplies relevant weight, not an automatic defence. The school must still establish justification where racial disadvantage has been shown.
B. Establishing racial disadvantage without precise statistics
The Trust disputed whether the appellants had proved that the extra point disadvantaged their racial group. It emphasised the absence of statistics directly comparing the racial composition of applicants earning 20 and 21 points.
The court agreed that the initial evidential burden rested on the appellants, but held that the High Court could draw the necessary inference. Evidence showed a greater proportion of non-white or non-English worshippers in non-Anglican churches than in Anglican congregations. A criterion favouring Anglican attendance could therefore disadvantage those racial groups.
Comparative evidence showing a higher proportion of white pupils at Twyford than at other local schools supported the High Court’s inference. The Court of Appeal’s reasoning focused particularly on the relationship between the criterion and the differing congregational profiles.
The exact size of the disparity remained uncertain. That did not prevent a finding, on the balance of probabilities, that a significant disadvantage existed.
Evidential precedents
The Trust relied on Efob v Royal Mail Group Ltd [2021] UKSC 33 for the claimant’s obligation to establish facts supporting the discrimination allegation. The court accepted that starting point; it did not reverse the burden or require the Trust to disprove disadvantage.
The appellants invoked Chief Constable of West Yorkshire v Homer [2012] UKSC 15 in support of establishing disadvantage without comprehensive statistical evidence. The court’s conclusion was consistent with that approach: statistics may be highly useful, but they are not the exclusive route to proving group disadvantage.
The holding remains evidence-sensitive. It does not authorise assumptions about the racial effects of every religious criterion. Here, the inference rested on evidence concerning the particular groups advantaged and disadvantaged.
The Trust considered the Admissions Code to restrict its collection of applicants’ ethnicity information. The judgment records that position; it does not determine a general prohibition on collecting equality data.
C. Why the Court of Appeal did not reassess proportionality afresh
The appellants sought a fresh appellate assessment of justification. The court instead applied the distinction explained in Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs [2025] UKSC 30.
Under that authority, appellate courts may either review the lower court’s assessment or make their own proportionality determination. Fresh assessment may be justified where the case concerns general legal rules, major societal questions, conflicting authorities or other special public-interest considerations. Review is appropriate where the dispute turns principally on the facts and assessment of an individual decision.
This appeal concerned the arrangements of one school and the evidence explaining its distinctive role. The proportionality issue did not require the court to settle a general rule about the permissible proportion of religious admissions or determine the validity of legislation. Review was therefore appropriate.
R (R) v Chief Constable of Greater Manchester Police [2018] 1 WLR 4079, discussed through Shvidler, identified relevant grounds for intervention: significant errors of principle or identifiable reasoning defects, such as inconsistency, a logical gap or omission of a material factor.
This choice materially shaped the outcome. The question was whether the High Court’s conclusion was legally and evidentially available, not whether the appellate judges would independently have preferred a different admissions model.
D. Objective justification and the four-stage proportionality analysis
The principal authority was Bank Mellat v HM Treasury (No 2) [2013] UKSC 39; [2014] AC 700. All parties accepted its four-stage framework:
- Is the objective sufficiently important?
- Is the measure rationally connected to that objective?
- Could a less intrusive measure achieve the objective without unacceptably compromising it?
- Does the measure strike a fair balance between its benefits and adverse effects?
The aim and its connection to the criterion
The accepted aim was preserving Twyford’s particular Anglican ethos and character. It was not simply favouring Anglicans for its own sake. The Trust’s chief executive gave evidence explaining the school’s worship practices, its role as a model for the other Trust schools and its relationship with Anglican congregations.
The High Court could regard that objective as sufficiently important and the criterion as rationally connected to it. Giving priority to practising Anglican families could help sustain a distinctively Anglican school community.
Less intrusive alternatives
The appellants argued that the Trust should have investigated applying the additional point to a smaller proportion of foundation places, such as 75%, or adopting the diocesan recommendation for a 50/50 foundation/open split.
The court rejected the proposition that proportionality necessarily required separate numerical assessments of whether the school would remain sufficiently Anglican at each possible intake percentage. Section 19 requires proof of a proportionate means, not proof that the chosen policy is the only imaginable means.
That does not dispense with scrutiny of alternatives. Rather, it recognises that less restrictive measures may also be less effective. The relevant question is whether a less intrusive approach could achieve the aim without unacceptable compromise.
The High Court could assess that question through the evidence about Twyford’s distinctive character and the Trust’s combined admissions strategy. Open admissions at the other Trust schools were relevant to that assessment, although they did not guarantee every excluded applicant a place elsewhere.
Fair balance and institutional expertise
The court recognised that school leaders and religious communities are better placed than judges to assess some practical requirements of sustaining a particular religious ethos. Their judgments remained subject to scrutiny, however. The court did not replace proportionality with the much narrower question whether the policy was irrational.
The High Court had examined and accepted the Trust’s evidence. Its references to a reasonable measure reflected the flexibility within proportionality, not an abandonment of the statutory test. Nor did its language about declining to reject the Trust’s evidence transfer the burden to the appellants: the burden of justification remained on the Trust.
The court also rejected criticisms that the High Court had ignored the racial effects, the diocesan guidance or the relationship between Anglican attendance and ethnic origin. Read as a whole, the judgment addressed those matters.
Supporting proportionality authorities
The passages from Bank Mellat v HM Treasury (No 2) trace the framework through Oakes, De Freitas and Huang. These references explain the progression from an important objective and rational connection to the separate necessity and overall balancing questions.
R v Edwards Books and Art Ltd [1986] 2 SCR 713 supported allowing a reasonable range of measures rather than demanding one uniquely least restrictive policy. Illinois State Board of Elections v Socialist Workers Party (1979) 440 US 173 illustrated the difficulty with invalidating a measure merely because a judge can imagine something slightly less restrictive.
Alberta v Hutterian Brethren of Wilson Colony [2009] 2 SCR 567 reinforced the independent importance of the final balancing stage: an important objective and the absence of an adequate alternative do not, by themselves, establish that the resulting burden is acceptable. These authorities entered the analysis through the reasoning in Bank Mellat v HM Treasury (No 2), rather than as separate decisions about school admissions.
E. Distinguishing the school admissions and equality-duty authorities
The appellants relied particularly on R (E) (v Governing Body of JFS and another (United Synagogue and others intervening) [2009] UKSC 15; [2010] 2 AC 728. The Court of Appeal explained why that decision did not require a different outcome.
In the JFS case, the majority found direct ethnic-origin discrimination in admissions criteria based on descent under Orthodox Jewish law. The majority’s alternative observations about indirect discrimination were therefore obiter, rather than binding determinations of that issue.
The factual distinction was also substantial. The JFS criteria could admit children classified as Jewish who were not religiously practising while excluding practising children who did not satisfy the descent requirement. The relationship between that criterion and the asserted religious aim required evidence and explanation that had not been supplied adequately.
Twyford’s criterion instead favoured current religious practice connected to the school’s Anglican character. The Trust also provided evidence explaining the measure and its retention. The decision therefore does not weaken the prohibition on direct race discrimination recognised in JFS; it concerns justification of an indirectly disadvantageous practice-based criterion.
The court similarly distinguished R (Coll) v Secretary of State for Justice (Howard League for Penal Reform intervening) [2017] UKSC 40 and R (Ward) v Hillingdon London Borough Council (Equality and Human Rights Commission intervening) [2019] EWCA Civ 457. In those cases, failures to consider equality implications were accompanied by an absence of evidence adequately justifying the measures.
Here, the Trust had supplied relevant evidence, which the High Court was entitled to accept. The decision illustrates the relationship, but also the distinction, between the equality duty and objective justification: defective advance consideration may make justification harder, but justification must still be assessed against the evidence before the court.
F. The public sector equality duty: substantive and contextual compliance
The relevant function was making admissions arrangements. The question was whether the Trust, when exercising that function, gave due regard to the statutory equality needs—not merely whether its eventual policy could be defended.
Several features supported the finding of compliance:
- The equality policy reminded the Trust’s directors of section 149 and identified admissions as an area with equality implications.
- The religious disadvantage created by Anglican preference was obvious, particularly once applicants with only 20 points rarely obtained places.
- The Trust knew the diocesan guidance and its inclusion-based recommendation for an equal division of foundation and open places.
- The Trust consciously chose a different model, retaining Twyford’s distinctive admissions arrangements while keeping the other schools’ admissions open.
- The evidence supported an inference that the Trust understood the associated racial impact and considered how its wider arrangements would address it.
The Court of Appeal acknowledged that the High Court’s reasons could have been fuller. Nevertheless, the conclusion was available on the evidence. Its reasoning depended on the combination of institutional knowledge, the nature of the decision and the consciously adopted response—not simply possession of a generic equality policy.
The religious-discrimination exception did not remove the duties to consider equality of opportunity and good relations concerning religion or belief. Nor did it extinguish the separate racial equality considerations.
Equality-duty precedents
R (Sheakh) v Lambeth London Borough Council [2022] EWCA Civ 457 supported focusing on the statutory requirements themselves. The authority must understand the equality implications, but the duty does not invariably demand elaborate additional processes or examination of every conceivable consequence.
Baker v Secretary of State for Communities and Local Government [2008] EWCA Civ 141 and Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 supported the principle that compliance concerns substance rather than form.
Hotak v Southwark London Borough Council emphasised that the weight and extent of the duty depend heavily on the facts and individual judgment. This supported assessing the Trust’s actual function and circumstances rather than imposing a uniform documentary formula.
Powell v Dacorum Borough Council and R (End Violence against Women Coalition) v Director of Public Prosecutions [2021] EWCA Civ 350 cautioned against reading Bracking v Secretary of State for Work and Pensions as though it were a statute. Its principles must be applied contextually, not converted into an inflexible checklist.
These authorities do not make conscious equality consideration optional. They explain why its existence may be established through the substance of the evidence rather than one prescribed assessment format.
G. Remedies and the adjudicator’s determination
Because there was no section 149 breach, the court did not decide whether section 31(2A) would have required refusal of relief. It therefore did not endorse the High Court’s alternative conclusion that compliance would highly likely have made no substantial difference.
The court identified R (Bradbury) v Brecon Beacons National Park Authority [2025] EWCA Civ 489; [2025] 4 WLR 58 as the governing appellate authority. If the High Court’s approach differed, later courts should follow that decision.
The appeal concerning the Office of the Schools Adjudicator failed with the substantive proportionality grounds. No further error was advanced, and it was unnecessary to determine the adjudicator’s separate respondent’s-notice argument concerning the independence of its decision about the following year’s arrangements.