In a guest post, Russell Sandberg analyses the latest judgment on humanism and religious education in schools. 

The High Court decision in R (on the Application of Bowen) v Kent County Council [2023] EWHC 1261 (Admin) makes it clear that local authorities cannot exclude humanist representatives from their Standing Advisory Councils for Religious Education (SACREs). Although many SACREs already include humanists and this interpretation has been articulated in soft law, the judgment of Constable J is unambiguous on that point and presents a significant step forward. However, the judgment also highlights how the protection of non-religious beliefs continues to be controversial and lacking in clarity. This post will explore this welcome decision while highlighting the unresolved matters concerning freedom of non-religious beliefs.

The legal context

Under section 390(4)(a) of the Education Act 1996, Group A of each SACRE is required to be

“a group of persons to represent such Christian denominations and other religions and denominations of such religions as, in the opinion of the authority, will appropriately reflect the principal religious traditions in the area”.

Kent County Council refused to appoint Mr Bowen to Group A on the basis that as a humanist he did not represent “a religion or a denomination of a religion” and so it would have been unlawful for them to do so [2].

Mr Bowen successfully contended that this was discriminatory and in breach of Article 14 ECHR. His argument was that pursuant to section 3 of the Human Rights Act 1998, the words “other religions” should be construed “in much the same way that Warby J construed the phrase ‘religious education’ in R (Fox) v Education Secretary” [3].

The decision in R (on the application of Fox) v Secretary of State for Education [2015] EWHC 3404 (Admin) concerned the new subject content issued for GCSE Religious Studies. The High Court held that the statement that the “subject content is consistent with the requirements for the statutory provision of religious education in current legislation” was “a false and misleading statement of law” because complying with the Subject Content would not necessarily fulfil the RE obligations since it might not include the study of non-religious views. As Warby J noted, “the complete exclusion of any study of non-religious beliefs for the whole of Key Stage 4, for which the Subject Content would allow, would not … be compatible” with the ECHR [74].

Bowen takes Fox to its logical conclusion to underline that to exclude non-religious beliefs from religious education breaches the ECHR. As Constable J noted in Bowen:

“it is plain from Fox that a religious education curriculum must, in order to be compliant with the HRA 1998, cover more than religious faith teaching. The content of religious education teaching must include, at least to some degree, the teaching of non-religious beliefs (such as humanism)” [68].

Breach of Article 14

Constable J held that Article 14 was engaged. Article 14 would be engaged where there was a “more than tenuous” connection between the subject-matter of the case and the “core values” of the article in question [43]. In terms of the “core values” of Article 9, Humanism “undoubtedly qualif[ified]” against the thresholds of cogency, seriousness, cohesion and importance [50]. Indeed, “humanism has already been afforded equal status to the major world religions in many aspects of public life in the United Kingdom”. And the creation and operation of SACREs were more than tenuously linked with the core values of Article 9:

“In my judgment, the very structure by which the state in England has determined that the specific syllabus and methods of teaching for religious education should be decentralised to local authorities is a recognition of the importance of religious education being reflective of the makeup of that local community. … This approach, in which the SACRE forms a central role, is fundamentally about tolerance and pluralism in society, the core value of article 9. Therefore, it is plain that the ability to be a representative of a particular relevant belief on a SACRE is (at the very least) more than tenuously connected with that core value, so as to bring the alleged discrimination through the prevention of membership of SACRE within the ambit of Article 9” [53].

Section 390(4)(a) of the Education Act 1996 as construed by Kent County Council therefore involved a breach of Article 14. Constable J rejected the argument that Groups A  and B (representing the Church of England) were designed to represent faith groups while Groups C (representing teachers) and D (representing the local authority) were designed to be secular [65]. The distinction is rather between “the content of the syllabus and the implementation of the teaching of that syllabus. In other words, what is taught and how it is taught”: “It is clear, in my judgment, that the primary concern of Groups A and B is, broadly speaking, the content of religious education and the primary concern of Groups C and D is, broadly speaking, the implementation of religious education within the area” [66]. The teachers sitting in Group C do not provide a “secular perspective”: “Their personal beliefs (be they religious or non-religious) are not relevant to their representative role in the SACRE” [67]. The judgment, therefore, avoided tempting but superficial and often incorrect dichotomous distinctions between the religious and the secular. And this was not the only way in which this erudite judgment helps to overcome lazy arguments often made to exclude the non-religious.

Debunking possible justifications for discrimination 

Constable J held that, although discrimination on the basis of faith was an especially serious type of difference of treatment that required a strict test of justification and the provision of religious education was a measure of social strategy where the legislature would generally be afforded a wide margin in respect of its policy choice [80], none “of the grounds identified can remotely justify the discrimination” [85]. The High Court’s debunking of possible justifications for excluding non-religious beliefs is likely to be valuable in other contexts where such discrimination occurs.

Constable J made it clear that Parliamentary materials suggesting that the original intent was to protect religious beliefs only would not be of “any relevance” [84]. He reasoned that, although historic Parliamentary material showed that “religious education was to be confined to teaching Christianity and other principal faiths”, the question of whether that should be the case was

“an entirely different issue from whether once it is recognised … that the curriculum must include some elements of non-religious beliefs, a SACRE’s constitution should be capable of including representatives of those non-religious beliefs which are appropriate to be included in the curriculum”.

Arguments about “the practical difficulty of determining which non-religious beliefs qualify for representation” were also discredited [86]. He held that

“whilst in some circumstances this might no doubt be a difficult and sensitive question, the local authority and SACRE already have to grapple with the equivalent question of which non-religious beliefs should be included within the overall religious education provision”.

He stressed that “it is not a qualitatively different question to that which must already be asked in relation to religious representatives”:

“a request for representation from someone with a particular belief system may require the local authority to consider the potentially difficult question of whether the beliefs attain a certain level of cogency, seriousness, cohesion and importance so as to merit consideration at all, irrespective of whether the belief system is religious or non-religious” [88[.

He also rejected the contention “that possible adherence to more than one belief system is, itself, problematic in circumstances where a person is appointed to represent a particular belief system” [90]. He noted that this would simply affect the suitability of the particular representative, not the question of whether there should be a humanist representative. This is an extremely useful point, distinguishing the question of the suitability of particular individual potential representatives from the wider point that beliefs should be represented.

The significance of the judgment

Constable J held that the discriminatory nature of section 390(4) as interpreted by Kent County Council was “manifestly without reasonable foundation and not justifiable”:

“Indeed, it is antithetical to what the provisions can sensibly be considered as aiming to achieve, when that aim is now to be realised in light of the fact that ‘religious education’ must include some teaching of non-religious beliefs, as confirmed in Fox” [93].

It followed that section 390(4) was to be read in a way that was compatible with Convention rights and that the decision of Kent County Council prohibiting Mr Bowen from being included as a Humanist representative within Group A should be quashed on the basis that it was unlawful [108].

The High Court was clear, however, that the judgment extended no further than determining that the basis of Kent County Council’s decision was erroneous in law:

“It does not follow that any and every non-religious belief would need to be treated similarly – for example, it may be legitimate to conclude that a particular belief (religious or non-religious) does not attain the requisite level of cogency, seriousness, cohesion and importance to attract protection. Similarly, as I have described, there remains considerable discretion for the local authority when determining who to appoint pursuant to section 390(6) to ensure consistency with the efficient discharge of the group’s functions” [107].

Although worth stating, these points are obvious and non-contentious. The more pressing matter is where the line is to be drawn. While this judgment makes it clear that this particular statutory reference to ‘other religions’ is to be construed to include the non-religious, it remains unclear as to how far this term extends. Constable J referred briefly to recent reforms in Wales [17-18] but there too the issue of how to define belief has been fudged. Bowen follows the approach of the Welsh reforms in assuming that the human rights jurisprudence provides a clear steer as to definition. Unfortunately, it does not.

Following Warby J in Fox, Constable J in Bowen did not attempt to reformulate the legislation [104]. He noted that it was not necessary “positively to articulate the precise reformulation of the education statutes in order to determine that the assertion was an error of law”:

“It is not necessary to decide whether the words to read in are ‘beliefs’ or ‘non-religious worldviews’ or ‘cogent philosophical convictions’ or some other formulation in order to determine that it was an error of law to exclude Mr Bowen from consideration for appointment to Group A merely because humanism is a non-religious belief system” [106].

He made it clear that humanism is clearly included, but left wide open the question of where the line is to be drawn:

“Whatever the precise wording that might in due course be adopted by Parliament, should it choose to do so, humanism is self evidently a belief system which is appropriate to be included within a religious education syllabus (not least because it overwhelmingly is already), and would be encompassed within any Convention-compliant interpretation of section 390(4)(a)”.

This is not the only open-ended question. While Bowen makes it clear that the term “other religions” in section 390 is to be read as including humanism, questions remain about other statutory requirements in education law and beyond. As Constable J noted,

“there are indeed a number of different ways in which Parliament might seek to amend the various religious education-related provisions, including section 390, and accept that that may involve policy decisions which are beyond the remit of this Court”[102].

This will be particularly so in relation to provisions such as those in marriage law that only recognise religions, not non-religious beliefs and do so by insisting upon requirements that belief systems are unlikely to meet (in that context, a registered place of worship).

Bowen is an important milestone in the (regrettably) gradual recognition that freedom of religion or belief protects non-religious beliefs. The High Court judgment is particularly welcome in terms of how explicitly it states that the ECHR requires reading domestic legislation to recognise non-religious beliefs and in how it debunks many of the objections often given for extending protection in this way. It is now clear that a literal interpretation of England’s educational laws on this matter is not legally correct. This underscores how archaic and ripe for reform those provisions are. There remains much more to do, but Bowen is a (long overdue) legal landmark.

Russell Sandberg

Cite this article as: Russell Sandberg, “Humanism and religious instruction in schools: the landmark case of Bowen” in Law & Religion UK, 30 May 2023, https://lawandreligionuk.com/2023/05/30/humanism-and-religious-instruction-in-schools-the-landmark-case-of-bowen/