Felix Ngole, a second-year Master’s student on a social work course at Sheffield University, had been excluded from the course by the Faculty of Social Sciences Fitness to Practise [‘FTP’] Committee after comments he posted on Facebook about his personal opposition to same-sex marriage. Before the Administrative Court, he argued that fitness to practise was a matter for the professional social work bodies rather than for the University. In R (Ngole) v University of Sheffield  EWHC 2669 (Admin), however, Rowena Collins Rice, sitting as a Deputy High Court Judge, rejected his claim.
In September 2015, at the beginning of his second year, the American NBC news website reported the release from jail of Kim Davis, a registrar who had been imprisoned in the USA after refusing on conscientious grounds, as a Christian, to conduct same-sex marriages. The website allowed the public to post comments on the story and Mr Ngole did so from his personal Facebook account . He expressed the view that “same-sex marriage was a sin” and subsequently contributed what he regarded as Biblical justification for that view . His posts were investigated by the Department of Sociological Studies and, subsequently, by the Faculty FTP Committee [8 & 9], which concluded that:
“there had been a serious breach of two professional requirements: to keep high standards of personal conduct and to make sure your behaviour does not damage public confidence in your profession” .
It noted that he had given no evidence that he would refrain from presenting his views in the same way in future and concluded that he should be excluded from further study on the social work course – a programme leading to a professional qualification – but would be permitted to enrol in an alternative programme not leading to a professional qualification . An appeal to the University’s Senate Appeals Committee was rejected [11-13].
He sought judicial review of that decision . After an oral hearing, James Lewis QC, sitting as a Deputy High Court Judge, granted his application to bring a challenge on the following limited grounds: (1) unlawful interference with his rights under Articles 9 and 10 ECHR as given effect by the Human Rights Act 1998 and (2) that the decision was arbitrary and unfair in substance: in effect, public law irrationality .
The role of the Health and Care Professions Council
The social work profession is regulated by the Health and Care Professions Council (‘the HCPC’) under the Health and Social Work Professions Order 2001 (‘HSWPO’) . Article 21(1) HSWPO requires it to–
“(a) establish and keep under review the standards of conduct, performance and ethics expected of registrants and prospective registrants … and give them such guidance on these matters as it sees fit; and
(b) establish and keep under review effective arrangements to protect the public from persons whose fitness to practise is impaired.” [emphasis added]
Further to that obligation, the HCPC has published Standards of Conduct, Performance and Ethics setting out the duties of registrants (registered practitioners), which include admonitions that “3. You must keep high standards of personal conduct” and “13. You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession” .
The HCPC considers that ‘prospective registrants’ for the purposes of Article 21 HSWPO includes students but it does not directly regulate them ; instead, it accredits certain social work courses as capable of leading to registration on successful completion . It also issues specific guidance for students on conduct and ethics, in terms equivalent to the professional standards for registrants, with allowance being made for the difference in the student regulatory context . In practical terms, therefore, because Sheffield University’s MA Social Work programme is an HCPC-approved course leading to a qualification approved for the purpose of professional registration, issues of fitness to practise in relation to students are devolved to the University:
“the University has a requirement not only to teach and examine the course in compliance with the SETs [Standards of Education and Training Guidance], it also has a requirement to act as a gatekeeper to the social work profession, to raise any FTP concerns and, if necessary, investigate and determine through its internal procedures whether a student is fit to practise” .
Mr Ngole’s principal challenge was that the decision of the Appeals Committee breached his Convention rights under Articles 9 and 10 in combination. His counsel argued that the postings complained of should be regarded as a species of “religious speech” that would attract a high level of protection under the ECHR – whether as a manifestation of religion and belief under Article 9 or as a particularly important exercise of freedom of expression under Article 10. Further, the University’s processes had failed to give Mr Ngole’s religious speech the appropriate recognition and protection and, particularly, the University had interfered with his freedom of religious speech by applying rules or guidance that were not prescribed with sufficient clarity – or had misapplied them – and removing him from the course had been unnecessary and disproportionate .
The University argued that Mr Ngole had no religious imperative for commenting on an American news website about Kim Davis; in Article 9(2) terms, there was no sufficiently close and direct nexus between that act and his Christian beliefs that would be a protected manifestation of religion in its own right .
Her Ladyship accepted that the posts
“were not made in a religious context of the sort which could potentially bring it close to the examples of worship or devotion recognisable as forming part of the practice of a religion or belief in a generally accepted form. They were made in the essentially political context of news media, as a religiously motivated contribution, albeit with a high religious content, to a political debate about the place of religious belief in the delivery of public services … In the circumstances, therefore, I accept the University’s submission that there has been no interference on the facts of this case with Mr Ngole’s Article 9 rights” .
As to whether the ban was “prescribed by law”, she agreed with counsel for Mr Ngole that the fact that the NBC postings were not in a social work or educational context, any more than they were in a religious context, was relevant. That did not mean that the standards materials were not clear enough or could not apply to personal postings – but it did raise a question about whether they did, in fact, apply to the postings . Moreover, the postings were made in the context of a public current affairs debate in a medium designed for the expression of personal and social rather than work-related views. They did not identify Mr Ngole as a student social worker or as having any other connection to social work, and they consisted of otherwise unrestricted and lawful ‘religious speech’ .
“The requirement not to do anything which might affect the trust the public has in the social work profession is … entirely general. Social work is a regulatory environment in which services are delivered to the public in demanding and sometimes dangerous circumstances. A degree of constant personal vigilance is positively and necessarily encouraged. The standards materials are unambiguous – indeed insistent – about their application to the sphere of wholly personal conduct. The public nature of the postings meant that, while they did not expressly make a link to a social work context, they could be readily accessed from a social work context … That could be done by an ordinary internet search, for example by people who came into contact with Mr Ngole in a professional environment, including service users on his training placements. The standards materials explicitly guide internet posters to think about who could read what is posted” .
She rejected the contention that expressing orthodox religious beliefs and citing and interpreting Biblical texts could not be said to affect public confidence in the social work profession. The application of the standards materials to “religious speech” would properly require care, “even perhaps great care” – but it could not be regarded as a matter of interpretation as excluded from the ambit of the standard materials  because religious speech was capable of having multiple meanings and had to be construed objectively. The standards materials could not realistically be interpreted on the assumption that the posts would only be read by people with sufficient theological sophistication to understand their context .
The standards materials were explicit in their application to the personal use of public social media and should properly be interpreted as applicable to “religious speech” where that could have professional consequences in its impact on others and Mr Ngole had been made aware that, under the regulatory framework, he had to exercise professional judgment about such matters. His challenge on the grounds of lack of applicability or insufficient prescription therefore failed .
As to the challenge that the University’s interference with his Convention rights under Article 10 ECHR had not been “necessary in a democratic society”, social workers had to deal with homophobia and its consequences; and homophobia might well be an issue in the lives of their service users:
“Concern to ensure that social workers are able, and trusted, to deliver services in those circumstances is an aim which is not only legitimate but necessary. The NBC postings were at the least capable of creating a serious barrier to that, when the perspective of service users is factored in” .
The University’s aims were therefore legitimate in the statutory regulation and service delivery contexts .
Nor had the conclusion of the FTP Committee been disproportionate, irrational or unfair:
“The unanimous conclusion of those best placed to reach one is that Mr Ngole could not be further educated to make a successful social worker and that the point had been reached where the benefit of the doubt could no longer be given, consistently with professional standards. On the evidence and submissions before me, I conclude that there is no good reason or basis before me to disagree. A court cannot with any confidence conclude, in the absence of good reason, that a student conscientiously assessed as unteachable is, in fact, teachable. I accept that the alternative of permitting Mr Ngole to continue with his course under conditions (which was evidently considered) would require positive evidence, and some personal advocacy, of his willingness to engage constructively and responsibly with the concerns raised. There is simply insufficient evidence before me, looking over a lengthy period of time and despite all that was at stake for him, that he was at any relevant time, or is now, able or willing to do that. It follows that I accept that no less severe a measure could be imposed” [162: emphasis added].