JR87, Application for Judicial Review

Factual and Procedural Background

This appeal concerns the legality of religious education provision in controlled primary schools in Northern Ireland. The case arose from a judicial review application brought by the parents of a child, referred to as the Respondent, who attended a controlled primary school in Belfast where mandatory Christian religious education (RE) and collective worship (CW) were provided. The parents, describing themselves as broadly humanist and non-religious, challenged the impugned legislation underpinning the RE and CW curriculum on the basis that it breached their and their child’s rights under Article 9 of the European Convention on Human Rights (ECHR) and Article 2 of Protocol 1 (A2P1) of the ECHR, which protect religious freedom and the right of parents to ensure education in conformity with their convictions.

The parents initially raised concerns with the school and subsequently issued a pre-action protocol letter challenging the Education and Libraries (NI) Order 1986, the Education (NI) Order 2006, and the Education (Core Syllabus for Religious Education) Order (NI) 2007, collectively termed the impugned legislation. The complaint was first considered by the Curriculum Complaints Tribunal, which dismissed the parents' complaints, finding the Board of Governors had not acted unreasonably.

Judicial review proceedings were then initiated, with leave granted in June 2021. In July 2022, the trial judge found that the RE and CW curriculum was not conveyed in an objective, critical, and pluralistic manner and declared that the impugned legislation breached the applicants’ rights under A2P1 read with Article 9 ECHR. The Department of Education appealed this decision.

Legal Issues Presented

1. Whether the trial judge erred in concluding that the teaching of RE under the core syllabus and the arrangements for collective worship breached the rights of the respondents under Article 2 of Protocol 1 read with Article 9 of the ECHR.
2. Whether the trial judge erred in failing to separately analyse and determine the claims made by both the respondent parent and the respondent child.
3. Whether the trial judge erred in concluding that both respondents’ rights under A2P1 read with Article 9 ECHR had been breached.
4. Whether the trial judge erred in making the declaration that he made.

Arguments of the Parties

Appellant's Arguments

• The trial judge was wrong to find a breach of A2P1 rights because the provision of RE and CW did not amount to indoctrination as understood in Strasbourg jurisprudence.
• The existence of an unfettered right of withdrawal under Article 21(5) of the 1986 Order protects parents’ Convention rights by allowing children to be excused from RE and CW activities, thus preventing any breach.
• The court should apply the Ullah principle, mirroring Strasbourg caselaw, which does not show any clear case that the provision of RE and CW as it stands in Northern Ireland violates Convention rights.
• There is no indication Strasbourg would find a breach where an unqualified right of withdrawal exists.

Respondents' Arguments

• The trial judge correctly applied the objective, critical, and pluralistic test from Folgerø v Norway as the proper standard for assessing compliance with A2P1 and Article 9.
• The core syllabus and mandatory teaching requirements amount to indoctrination by requiring belief in Christianity rather than teaching about it.
• Exemptions from RE and CW are insufficient remedies because they highlight the lack of pluralism and risk stigmatizing children who are withdrawn.
• The practical effect of the RE and CW curriculum contravenes pluralism requirements under Convention caselaw, justifying the trial judge’s declaration.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by recognizing the unique historical context of religious education in Northern Ireland, noting the longstanding influence of Christian churches in the education system and the mandatory nature of Christian RE and CW in controlled schools. The central legal framework was identified as Article 2 of Protocol 1 (A2P1) of the ECHR, which is lex specialis in education matters, read alongside Article 9 guaranteeing freedom of thought, conscience, and religion.

The court emphasized the broad margin of appreciation afforded to the State in setting curricula, as recognized in Strasbourg jurisprudence, and the subsidiary role of the European Court of Human Rights (ECtHR). It acknowledged the positive obligation on the State to respect parents’ religious and philosophical convictions but stressed that this does not preclude the teaching of religious education, provided it is conveyed in an objective, critical, and pluralistic manner without indoctrination.

The trial judge had found that the curriculum and collective worship were not objective, critical, or pluralistic, highlighting the predominance of Christian teachings and practices, including prayer and Bible readings, and visits from proselytizing Christian groups. The court accepted these factual findings, deferring to the trial judge’s advantage in assessing evidence and credibility.

However, the court distinguished between the existence of a curriculum that may not meet the objectivity and pluralism standards and the legal consequence of such a finding. It noted the statutory provision under Article 21(5) of the 1986 Order granting parents an unfettered right to withdraw their child wholly or partly from RE and CW. The court found that this exemption mechanism, which the parents in this case did not ultimately exercise, provides a practical and effective safeguard against indoctrination, consistent with Strasbourg case law.

The court rejected the respondents’ argument that the lack of an alternative curriculum or the potential stigmatization of withdrawn children rendered the exemption ineffective, finding no clear Strasbourg precedent supporting that position. It observed that the school had engaged with the parents to explore alternatives for the child during withdrawal periods.

Applying the Ullah principle, the court held that domestic courts must follow clear and constant Strasbourg jurisprudence and not extend Convention rights beyond that. Given the absence of Strasbourg authority finding a breach where an unqualified right of withdrawal exists, the court concluded that no breach of A2P1 or Article 9 had been established.

In summary, while the court upheld the factual finding that the curriculum lacked objectivity and pluralism, it held that the statutory exemption provision prevented this from constituting a breach of Convention rights. The court emphasized the balance struck by the State between curricular content and parental rights through the exemption mechanism.

Holding and Implications

The court ALLOWED THE APPEAL, overturning the trial judge’s declaration that the impugned legislation breached the respondents’ rights under Article 2 of Protocol 1 read with Article 9 of the ECHR.

The immediate effect is that the statutory framework mandating Christian religious education and collective worship in controlled primary schools in Northern Ireland is lawful under the Convention, provided that the unfettered parental right to withdraw children from such instruction or worship is respected and effective.

No new precedent altering the established interpretation of the Convention rights was set. The court acknowledged ongoing policy considerations and a review of the Northern Ireland curriculum to reflect modern societal changes, which may include reconsideration of religious education arrangements in the future.