Department for Education facing judicial review challenge over PHSE guidance

The Coalition of Anti-Racist Educators (CARE) and the Black Educators Alliance (BEA) have sent a pre-action protocol letter to the Department for Education over guidance published last month on the curriculum for personal, social, health and economic (“PHSE") education.

The guidance was issued by the DfE for school leaders, governing bodies, curriculum co-ordinators and teachers to “plan, develop and implement the new statutory curriculum”.

Amongst other things, the guidance states that local authorities, governing bodies and teachers “must”: forbid the pursuit of partisan political activities by junior pupils; forbid the promotion of partisan political views in the teaching of any subject in the school; and take reasonably practicable steps to secure that where political issues are brought to the attention of pupils, they are offered a balanced presentation of opposing views.

The document also states that schools should not “under any circumstances” work with or use materials produced by external agencies that take or promote “extreme positions”.

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The guidance further says that schools should not under any circumstances “use resources produced by organisations that take extreme political stances on matters. This is the case even if the material itself is not extreme, as the use of it could imply endorsement or support of the organisation.”

“Examples of extreme political stances include, but are not limited to: A publicly stated desire to abolish or overthrow democracy, capitalism, or to end free and fair elections;….”

Advised by law firm Bindmans, CARE and BEA argue in the letter that the guidance is unlawful “on the basis that it is irrational, ultra vires / for an improper purpose, amounts to breaches of Articles 9, 10 and 11 ECHR pursuant to section 6 of the Human Rights Act 1998, and in breach of s.149 Equality Act 2010”.

The letter says in particular that the power to give guidance about the provision of education about relationship, sex, and health arises under s. 80A Education Act 2002 and s.403(1A) Education Act 1996.

“Neither power permits the Secretary of State to seek to enforce his political preference as regards the use of teaching materials from external agencies,” the two organisations insist.

The letter also claims that the purpose of the guidance is to enforce the Secretary of State’s political preferences.

“It is not understood how prohibiting the use of teaching materials prepared by an external agency that may at one stage have expressed a view about capitalism, 'victim narratives', or about wider state malpractice can fall within the statutory purpose set out in s.80A Education Act 2002 or s.403(1A) Education Act 1996,” it says.

On their Crowd Justice page, the two organisations said: “This guidance is a thinly veiled attack on a wide range of movements fighting for urgently-needed social justice causes and will also prevent pupils from learning about alternative political ideas. The guidance ensures only the Government’s political preferences are taught in classrooms with the banning of teaching materials.

“As educators committed to anti-racist work, we are also gravely concerned about the way this guidance appears to censor materials produced by anti-racist organisations and activists.”

CARE and BEA have raised £9,350 via Crowd Justice towards their target of £15,000 for pre-action work and to initiate proceedings.

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