Fox & Ors, R (on the application of) v Secretary of State for Education

Factual and Procedural Background

This judicial review challenges the lawfulness of the Secretary of State for Education's approach to balancing the teaching of religious and non-religious world views at GCSE level. The claim concerns a decision dated 12 February 2015 to issue new GCSE Subject Content for Religious Studies ("RS") effective from the 2016 academic year, particularly disputing an assertion that the subject content is consistent with statutory requirements for religious education ("RE") provision across different types of schools.

The claimants include six individuals, comprising three parents ("the Parents") with non-religious beliefs and their respective children ("the Children"), who attend secondary academy schools. The Parents and Children contend that the Subject Content and the assertion give unlawful priority to religious views over non-religious views, including humanism, and that the state has failed in its duty to treat religious and non-religious views equally and non-partisanly in RE provision. The claim invokes human rights law, specifically Article 9 (freedom of thought, conscience and religion) and Article 2 of the First Protocol (right to education) of the European Convention on Human Rights, as incorporated by the Human Rights Act 1998.

The British Humanist Association initially led the challenge but was refused permission due to lack of standing, though it supports the remaining claimants. The claim proceeds against the Secretary of State for Education and focuses on whether the Subject Content and its assertion unlawfully permit or encourage a conflation of RE with RS GCSE provision, potentially misleading those responsible for curriculum decisions.

Legal Issues Presented

1. Whether the challenge should fail as speculative, premature, or misdirected.
2. Whether the assertion in the Subject Content encourages those responsible for GCSE course content to believe that taking an RS GCSE course alone satisfies statutory RE requirements.
3. Whether the assertion is legally correct and whether delivery of the prescribed Subject Content fulfills statutory RE requirements.

Arguments of the Parties

Claimants' Arguments

• The Subject Content and its assertion unlawfully prioritise religious views over non-religious views, breaching the state's duty to provide RE on an equal and non-partisan basis.
• The assertion misleads and encourages the belief that the RS GCSE alone satisfies statutory RE obligations, which is incorrect.
• The claim is grounded in human rights law, asserting violations of Article 9 and Article 2 of the First Protocol.
• The court has jurisdiction to correct errors of law in departmental guidance that permit or encourage unlawful conduct or are materially misleading.

Defendant's Arguments

• The claim is speculative and premature because the final GCSE specifications are not yet accredited and local authorities and schools ultimately decide RE content.
• The assertion is not misleading or wrong; the Subject Content is consistent with legal requirements.
• The focus on religion in the RS GCSE does not make it unlawful for schools to rely solely on it for RE provision at Key Stage 4.
• If parents believe their rights are breached by local RE provision, they should bring claims with detailed evidence once decisions are made.
• Parents have statutory rights to withdraw children from RE, which mitigates concerns about RE content.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the claimants' challenge through three main issues. First, it rejected the defendant's argument that the claim was premature or speculative. The court held that although local authorities and schools decide on final RE syllabuses, the mandatory nature of the Subject Content means it sets the outer limits of what can be offered, making the challenge timely and appropriate.

Second, the court found that the assertion in the Subject Content encourages the belief that an RS GCSE specification consistent with it would satisfy statutory RE obligations. The court considered that the ordinary and natural meaning of the assertion is that compliance with the Subject Content fulfills legal requirements, which is likely to influence syllabus framers and schools.

Third, on whether delivery of the prescribed Subject Content satisfies the state's obligations, the court concluded it does not necessarily do so. While the Subject Content mandates study of two religions and includes non-religious beliefs in a secondary role, it allows for GCSE specifications that could exclude or marginalise non-religious worldviews. Such an outcome would breach the state's duty under Article 2 of the First Protocol to ensure pluralism and equal respect for religious and non-religious convictions.

The court emphasised that the state may prioritise majority religions in accordance with tradition and demographics but must avoid qualitative discrimination and ensure pluralistic education. The assertion that the Subject Content alone satisfies RE obligations is therefore materially misleading and legally incorrect. This finding is supported both as a breach of the Human Rights Act 1998 and as an error of law in interpreting education statutes.

The court acknowledged the defendant's points regarding parental rights to withdraw children from RE but held that opting out is not an adequate substitute for pluralistic provision. The court also noted that it did not rely on disputed expert evidence but found sufficient basis in census data and common knowledge to support its conclusions.

Holding and Implications

The court held that the assertion in the Subject Content is false and misleading in law and encourages unlawful conduct. It ruled that the assertion that compliance with the RS GCSE Subject Content alone fulfills the state's legal obligations for RE is incorrect and likely to lead to failure in meeting those obligations.

As a direct consequence, awarding organisations and schools relying solely on specifications compliant with the Subject Content may fail to provide the pluralistic RE required by law, necessitating additional educational provision by the state. The court's decision does not establish a new precedent but clarifies existing duties under human rights and education law. The relief to be granted will be determined in consultation with counsel.