Background

The RAISE programme in Northern Ireland seeks to reduce educational disadvantage and originated from the New Decade, New Approach agreement. An expert panel examined links between underachievement and social disadvantage and published A Fair Start in May 2021, which recommended creating a Reducing Educational Disadvantage programme. A programme board and stakeholder group were established, with support from Queen’s University and the Strategic Investment Board. Its scope was significantly expanded by €24 million in Shared Island funding from the Irish Government to address educational disadvantage in Northern Ireland.

The initial work that ultimately morphed into RAISE was produced in January 2022.  It recognised that eligibility criteria would be required and noted that data was available in the form of the Northern Ireland Multiple Deprivation Measure, which ranks 890 Super Output Areas (‘SOAs’) and is produced by the Northern Ireland Statistics and Research Agency. The rankings are based on seven domains of deprivation: income, employment, health, education, skills and training, access to services, living environment, and crime [17].

The claim

In JR338 & Ors, Application for Judicial Review [2025] NIKB 67, there were three applicants, the first and second applicants of whom sought to impugn the selection methodology adopted for the allocation of the funding on the basis that it was unlawful, irrational, in breach of their Convention rights and discriminatory:

“In essence, this resolves to two principal claims: (i)  That geography has been allowed to trump need; (ii) That religion has been allowed to trump need” [4].

They asserted that the scheme discriminated against pupils in Belfast and Derry and, more widely, against Roman Catholics [5]. They also argued that the chosen selection methodology breached their rights under Article 2 Protocol 1 ECHR (education) and Article 8 (private and family life) when read in conjunction with Article 14 (discrimination), contrary to s.6 of the Human Rights Act 1998 [126].

The key was therefore whether the applicants, or a class of persons represented by them, had been subjected to “less favourable treatment on the grounds of their religious belief than an actual or hypothetical comparator (no case having been advanced in relation to political opinion)” [113]. Humphreys J said that the applicants had not identified any relevant comparator, whether actual or hypothetical, but had simply said that “the scheme ‘discriminates against Catholics’ without identifying any less favourable treatment meted out to them as individuals“ [115].

The judgment

Humphreys J rejected all the claims. Any decision involving the selection methodology was bound to have consequences, but that did not equate to direct discrimination:

“In a programme designed to target educational underachievement, it is not surprising that those areas of relatively high attainment would be less likely to be included. This form of discrimination has nothing to do with religious belief” [123].

The methodology used to select the SOAs which were to benefit from RAISE funding began with the seven indicators of deprivation for the purposes of shortlisting, then applied GCSE attainment for ranking:

“Certain thresholds were applied to achieve a regional approach, then areas of influence selected to create localities, using a community-based approach.  None of this suggests that decisions were made ‘on the ground of religious belief.’  Some of the decisions made during the methodology selection process may have had an impact on the religious makeup of those who will ultimately benefit from the scheme funding but that is a very different thing from establishing that decisions were made on the grounds of the religious belief of certain individuals or a group of individuals” [124].

Further, JR338 lived in Finaghy and JR339 lived in Beechwood, neither of which would have been shortlisted, regardless of the method used to identify social deprivation [129]. There was no scope under the Human Rights Act for bringing a Convention claim unless one was directly affected by the alleged breach, and neither claimant met that criterion [130]. Likewise, the claim of differential treatment on the ground of religious belief failed for the same reasons as the claim of direct discrimination; the difference in treatment did not arise from the claimed status [145]. Nor did the claims establish any substantive irrationality [155].

The applications were dismissed [175]