Introduction

 In JR87, Application for Judicial Review [2024] NICA 34, the applicants argued that the mandatory Christian religious education (“RE”) and collective worship (“CW”) in controlled primary schools in Northern Ireland was contrary to the religious freedom provisions of the ECHR. The Northern Ireland Department of Education contested that view; but in July 2022, Colton J decided in favour of the applicants: see JR87, Re Application for Judicial Review (Rev1) [2022] NIQB 53. In brief, he found that RE and CW were not conveyed in an objective, critical and pluralist manner in Northern Ireland and that the relevant legislation contravened the applicants’ Convention rights [trial judgment [74, 83 & 123]]. The Department of Education appealed [1-3].

The background

JR87, the first respondent, is now nine. From years 1 to 3 she attended a controlled primary school in Belfast and took part in non-denominational Christian religious education and collective worship [4]. Her parents did not profess any religious belief, describing themselves as “broadly humanist”, and had not raised their daughter within any religious tradition [5]. Despite that, once she began attending school, they noticed that before eating, she would repeat a prayer she had learned at school and would ask them questions about God and religion [6]. They voiced their concerns to the school that her education did not appear to conform to their own religious/philosophical convictions and asked it to clarify its understanding of the law on RE and CW and what inspection mechanisms were in place to ensure that children were receiving a balanced religious education [6]. The school replied that its provision of RE and CW was “bible-based”, followed the core syllabus for education and complied with the relevant legislation and the core syllabus at an age‑appropriate level [7]. The parents challenged this, arguing that the Education and Libraries (NI) Order 1986, the Education (NI) Order 2006 and the Education (Core Syllabus for Religious Education) Order (NI) 2007 contravened their Convention rights under Article 9 ECHR and Article 2 of Protocol 1. The Department contested their view [8].

The issue before the Court of Appeal

The Department invited the Court to consider the following questions:

(i) Did the trial judge err in concluding that the teaching of RE under the core syllabus and the arrangements for collective worship in the primary school attended by the first respondent breached her and her father’s rights under A2P1 read with Article 9 ECHR?

(ii) Did the trial judge err in failing to analyse separately and to determine the claims made by both the respondent parent and the respondent child?

(iii) Did the trial judge err in concluding that both respondents’ rights under A2P1 read with Article 9 had been breached?

(iv) Did the trial judge err in making the declaration that he made?

The arguments

The Department argued that Colton J had erred in finding that the provision of RE and CW in controlled primary schools breached A2P1 because it did not amount to “indoctrination” as understood in the Strasbourg jurisprudence. It also relied on the unfettered right of withdrawal from RE and CW provided to parents under article 21(5) of the 1986 Order which, it argued, protected the impugned legislation from breaching any of the parties’ Convention rights, given that schools are required to comply with any such request [42]. Further, it argued that there was no clear or consistent Strasbourg case-law that supported the contention that the provision of RE and CW amounts to a breach of Convention rights [43].

The respondents argued that Colton J had been correct to apply the objective, critical and pluralistic test as set out by the Grand Chamber in Folgerø and Others v Norway [2007] ECHR 546. Their central contention was that the combined effect of the content of the core syllabus taken with the obligation to teach the syllabus in full amounted to “indoctrination” because it required teaching children to believe in Christianity, rather than teaching them about it. Simply to exclude an affected child from RE lessons or CW assemblies was no answer to that, because an exemption was simply indicative of the lack of pluralism within the curriculum [44]. Taken together, they maintained that the practical effect of the RE and CW curriculum contravened the requirement of pluralism set out by the Convention caselaw, thus entitling the trial judge to make the declaration that he did [45].

The judgment

The Court of Appeal upheld the trial judge’s “important conclusion” that the curriculum at issue was not conveyed in an objective, critical and pluralistic manner [92]. However, it also held that there had been no breach of A2P1 because parents had an unqualified statutory right to have their child excused wholly or partly from attendance at RE and/or CW. It followed that the declaration made by Colton J had been wrong in law and, in light of that conclusion, it was unnecessary to deal with the remaining grounds [109].