The Swansea City and County area contains six voluntary-aided schools: five Roman Catholic and one Church in Wales. The Council introduced a new policy under which, from September 2015, it would no longer provide discretionary free places on the school buses currently used by pupils attending church schools in Swansea: however, at the same time, it proposed to maintain free school transport on a parallel school bus network used by pupils at all of the county’s twelve Welsh-language schools, regardless of the financial circumstances of the families who would benefit. Subject to transitional provisions specifically designed to continue free transport for pupils already attending a particular faith school, the effect of the new policy would be:
- that pupils attending faith schools would be entitled to free public transport only if the relevant distance criteria were met and there was no suitable alternative school within two/three miles of their homes – and for the purposes of the amended policy a suitable alternative school would include a non-faith school ; while
- pupils living more than three miles from a Welsh-medium comprehensive school would continue to be eligible for free school transport even though there might be an English-medium comprehensive school within three miles of their homes .
In R (Diocese of Menevia & Ors) v City and County of Swansea Council  EWHC 1436 (Admin) a group of claimants – the Diocese, the governing body of Bishop Vaughan Catholic Comprehensive School and a pupil at St Joseph’s Cathedral Primary School – challenged the Council’s decision on grounds of unjustifiable discrimination between pupils at church schools and at Welsh-medium schools. They argued specifically:
- that the amended policy relating to the provision of free transport for pupils who wished to attend faith schools approved by the Full Council on 30 July 2014 would, when brought into effect, constitute indirect race discrimination under s 19 Equality Act 2010 ;
- that the amended policy amounted to indirect discrimination under Article 2 of the First Protocol and Article 14 ECHR ;
- that the amended policy was based in part on an error of law ;
- that the Council had failed to discharge its duty under section 149(1) of the 2010 Act to “have due regard to the need to– (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it…” ;
- that the report prepared in advance of the Council meeting at which the decision was taken had been defective ; and
- that it had been “unfair” that the assertion that “the faith schools had reserves which could be used to pay for school transport” had been made for the first time at the meeting of the Council at which the decision had been taken, “especially since the representatives of the Claimants who were present had no opportunity to comment upon the assertion or rebut it” .
Crucially, the evidence indicated that pupils from the Church schools were far more likely to be from Black and Ethnic Minority (BME) backgrounds than was the average Swansea child or the pupils at the Welsh-medium schools; of the 1,115 pupils currently enjoying free transport to attend Welsh-medium schools, only 16 were from from Black and Ethnic Minority backgrounds . The result was that
“… BME children will be at a particular disadvantage as compared with White British children as a consequence of the amended policy even on the basis of the most favourable statistical advantage open to the Defendant” .
Wyn Williams J concluded that the twin objectives of cost-saving and promoting access to Welsh-medum education were sufficiently important to justify limiting a fundamental right and that the amended policy was rationally connected to the objective. However, he was not satisfied, on the evidence, that the means chosen by the Council were no more than was necessary to accomplish the objective, nor that the amended policy was “a proportionate means of achieving a legitimate aim” .
He therefore concluded that the claimants succeeded on grounds 1 and 3 and made a quashing order accordingly.