On 19 November, the Supreme Court of the United Kingdom issued its judgment In the Matter of an application by JR87 and another for judicial review. The case was a judicial review of the core RE syllabus in Northern Ireland, brought by humanist parents and their daughter against their child’s primary school. JR87 is a primary aged pupil, the moniker being given to anonymise the parties to the claim.
The parents alleged that the nature of the RE teaching and collective worship at the primary school in question acted to indoctrinate their child to the Christian religion, which was not the way they wished to raise her. They further contended that the exemption system was clumsy and created an undue burden on them.
Lord Stephen, writing on behalf of a unanimous court, found for the Claimants, upholding the ruling of the originating court. While refusing to quash the subordinate Northern Ireland legislation, the court issued the following declaration:
The teaching of religious education under the core syllabus specified under article 11 of the Education (Northern Ireland) Order 2006 as implemented through article 3 of the Education (Core Syllabus for Religious Education) Order (Northern Ireland) 2007 and the arrangements for collective worship in the primary school attended by [JR87] breached her and her father’s rights under [A2P1] read with article 9 of the ECHR.
The aftermath
In his recent article for Premier, Peter Lynas of the Evangelical Alliance tries to find the silver lining in the decision, believing that we should be optimistic and take this opportunity to reimagine how Christian education is delivered in Northern Ireland.
He is correct that the Supreme Court’s ruling leaves intact Article 21(2) of the Education and Libraries (Northern Ireland) Order 1986 (SI 1986/594 (NI 3)) which dictates that religious education in Northern Ireland is Christian and must be based on the Holy Scriptures.
While I do not share his optimism, I hope the Department of Education (Northern Ireland) does, and that they work towards crafting a syllabus which continues to reflect the Christian heritage of Northern Ireland and the truth and the hope of the gospels.
Human rights for who?
The basis on which the Supreme Court struck down the core RE syllabus was human rights law, specifically A2-P1 of the European Convention on Human Rights which reads:
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.
The second sentence guarantees that schools (and the state) must respect how parents wish to raise their children in accordance with the family’s religious (or non-religious) beliefs. The European Court has clarified, in the case of Folgero v Norway, that this provision applies to all subject matters, not just religious education. The Court further held in that case that the content of teaching cannot create a conflict of allegiances between what a school was teaching in relation to a child’s spiritual and moral development, and what they were being taught at home. The case is notable as it was the primary source upon which the Supreme Court based the Northern Ireland ruling.
Yet, in the entire history of European Court and UK caselaw, A2-P1 has only ever been applied to cases where parents wished to be excused from religious education classes. On the other side of the equation, in each and every challenge by Christian parents against indoctrinating LGBT or sex education, the Court has ruled that no violation has occurred.
So, the real question is, who exactly does human rights law serve? It appears to only protect freedom from religion, but never religious freedom; at least where education law is involved. And this is precisely the disillusionment I hold with the Supreme Court’s case. Whatever does happen with the RE curriculum in Northern Ireland, the Supreme Court judgment will no doubt have a significant chilling effect on the development of the new syllabus.
The double standard
The real issue with the Supreme Court’s judgment is the double standard it has shown between the teaching of Christianity and LGBT education and sex education. On a true reading of the Northern Ireland judgment, Christian families should be successful in challenging statutory RSHE in England. Yet attempts to challenge aggressive and partisan LGBT education in the recent past, as with the case of Izzy Montague, have been unsuccessful. Izzy’s son, a 4-year-old at the time, was required to participate in an LGBT school Pride march, create rainbow themed art, and participate in a slew of other activities promoting pride month. Teachers openly wore (and were encouraged to wear) rainbow themed clothing and shirts with LGBT campaigning slogans clearly visible. Far from seeing such education as indoctrinating for a 4-year-old child, English courts held that such education was necessary to promote tolerance and diversity.
In the Northern Ireland challenge, the Supreme Court essentially held three things. First, that the core RE syllabus fails by not being critical, objective, and pluralistic. This is the standard set by the Grand Chamber of the European Court of Human Rights in the earlier mentioned case of Folgero v Norway. The Supreme Court further read Folgero as holding that the failure to be critical, objective and pluralistic and indoctrination (whether intentional indoctrination or misplaced proselytism) are two sides of the same coin. This finding was based partly on the fact that the drafting of the current core syllabus consisted solely of representatives of the Catholic Church, the Church of Ireland, the Presbyterian Church in Ireland, and the Methodist Church in Ireland (the four “main” churches in Northern Ireland, using the language of Lord Stephens). The decision was also based on the fact that the Court believed the curriculum had elements of evangelism embedded in it and accepted uncritically the truth of Christian teaching and practice.
The second failing the Supreme Court identified was the lack of oversight of RE teaching at the Respondent primary school. At no point had the Department for Education (Northern Ireland) inspected the school as to whether its RE education was being taught in a critical, objective and pluralistic manner.
The third alleged failure was the Supreme Court’s belief, following the finding of fact by the lower court judge, that the RE exemption process was burdensome. It came to this finding on the basis that the Respondent school did not have in place any alternative education for the Claimants’ child and that, being that she was the only pupil out of 250-275 pupils seeking an exemption, that she would be isolated and possibly bullied.
Lord Stephen further held that the core RE syllabus set a minimum of what should be taught, without any safeguards against indoctrination by schools who wished to go beyond the core syllabus. On these bases, the Court found the core syllabus to violate A2-P1 in that it failed to respect the right of parents to raise their children in accordance with their religious or philosophical convictions.
The judgment left open an important question as to whether curing the 2nd and 3rd alleged failings, those of the lack of inspection and exemption issues, would cure any Convention incompatibilities.
The rub, however, is that statutory RSHE similarly provides a minimum of what should be taught but encourages schools to actively promote LGBT education and weave it into the entirety of the curriculum. No exemptions are provided for relationships education or health, whereas the exact same issues facing RE exemptions about isolation and bullying can be applied by analogy to sex education opt-outs. While RSHE is inspectable by Ofsted, it has universally been used not to test RSHE programmes as to whether they are critical, objective, or pluralistic, but on whether schools are in fact providing robust enough LGBT education.
However, the courts in England and Wales have gone out of their way to portray LGBT education as being about equality and diversity, and therefore somehow exempting them from critical and objective inspection (presumably because from a secular perspective these qualities are unequivocally good and therefore free from critical treatment). The result is that our courts have essentially held that LGBT education, even where it overtly takes the form of campaigning, does not violate parental rights whereas soft evangelism in the classroom does. This is precisely the problem when analysing education law using a human rights hermeneutic. The uncritical promotion of Christianity is viewed as problematic, whereas the uncritical promotion of LGBT education is valued and viewed as necessary.
Conclusion
A colleague of mine wrote me after reading the judgment and commented on just how shockingly awful the judgment was. In many ways he is correct. The judgment does provide some profoundly disturbing examples of what it believes to be indoctrination. Paragraph 88 of the judgment highlights that teaching pupils that “praying is a way of talking to God so that we can thank him, praise him, say sorry and ask for help.” This was cited by Justice Stephen as evidence of a violation of A2-P1. The same paragraph evidences that pupils are taught that God loves them and is forgiving towards them, which Justice Stephen argued tends toward indoctrination. At paragraph 89, it is noted that pupils are also taught to “consider the respect due to creation, which is the gift of God;” a further indication, the court suggests, that the school was indoctrinating.
Equally distressing is the criticism of collective worship at paragraph 26 of the judgment, which is deemed to fail in its duty to be critical, objective and pluralistic. The finding that Northern Ireland’s collective worship violates A2-P1 guts the meaning of collective worship entirely. By definition, how could any form of collective worship be conveyed in a manner which is critical, objective and pluralistic?
By way of comparison to the Izzy Montague case, Izzy’s child (and his classmates) was presented with both male and female clothing and toys, and told that it was ok for him to wear or play with anything he felt comfortable with. Rather than indoctrination, the County Court lauded this activity for breaking gender stereotypes.
Comparing the disparate treatment of Christian RE with LGBT education highlights just how far astray our courts have gone. While some are cautiously optimistic about re-shaping the existing syllabus, others, and rightly so, are far more concerned about the trajectory of these types of cases. More than just striking down an RE core syllabus, this judgment stands out by it being the first ever case of its kind, where a court has held that a full exemption from RE could not cure a violation of A2-P1. If Christian education is not safe in Northern Ireland, where 80% of the population is Christian, it begs the question of which part of our religious freedom will be taken from us next by the stroke of a judge’s pen.
