Protests against LGBT teaching at Birmingham Primary School
20 June 2019
The Public Sector Equality Duty provides that public authorities have a duty to eliminate discrimination, harassment and victimisation whilst advancing equality of opportunity and fostering good relations between people who share a relevant protected characteristic and people who don’t share it. Primary schools in advancing LGBT rights and fostering good relations have been met with protests and demonstrations which Birmingham City Council sought to restrain by injunction.
Sexual orientation and gender reassignment are protected characteristics under the Equality Act 2010 and schools as public bodies are required to comply with the Act. Guidance for schools says that they should ‘be alive to issues such as everyday sexism, misogyny, homophobia and gender stereotypes and take positive action to build a culture where these are not tolerated’
The Relationships Education, Relationships and Sex Education and Health Education (England) Regulations 2019, make Relationships Education compulsory for all pupils receiving primary education from September 2020.
Some primary schools are already providing such education including a number of schools in Birmingham and Manchester who unfortunately have been the subject of protests by parents and others demonstrating against the schools educating children about LGBT relationships.
Birmingham City Council v Mr Afsar, Ms Afsar, Mr Ahmed and Persons Unknown
One such primary school, Anderton Park School has been the subject of protests since around 18 March 2019. The evidence before the Court was that there had been a number of protests at the school, which included allegations of paedophilia being made during the protests, the use of aggressive shouting, the use of "extremely intimidating" body language towards staff members in the street, with protestors blocking the path as parents attempted to take their children to school. There was also the use of a megaphone/loudhailer which evidently disrupted the school's ordinary activities and evidence of abusive messages being posted on social media.
Members of staff were said to have felt ‘quite frightened’, and the Head Teacher, said that the protests had had ‘devastating effects’ on the children, staff, visitors, student teachers, governors, as well as herself.
On 31 May 2019, and on a without notice basis, Birmingham City Council applied to the Court for an injunction order to protect its staff, pupils and parents from anti-social behaviour and harassment caused by the protestors. The Court granted an injunction and scheduled the case for an ‘on notice’ hearing on 10 June 2019, which was heard by Mr Justice Warby. The judgment handed down on 18 June 2019 can be seen here.
At the hearing the Court heard an application by the three named defendants to discharge the injunctions and an application by Birmingham to continue them until trial and the Court did just that. It discharged the interim injunctions on the basis that Birmingham had not complied with its duties of providing full and frank disclosure when applying on a without notice basis. The Court then re-granted injunctions, finding that on the evidence Birmingham had satisfied the Court that it was more likely than not to succeed at trial in obtaining injunctions – albeit more limited than those put in place at the outset – which serve to protect against harassment and other anti-social behaviour, whilst permitting legitimate expression of lawful dissent against the policies of the school.
Warby J was not required to consider the public policy to provide Relationships Education or the public sector duty to eliminate discrimination, which we support. Rather the case concerns the rights to protest, to associate with others for that purpose, and to express one’s views, including religious views, which are fundamental human rights and the need to balance those rights with the human rights to education, the right to impart and receive information and opinions and the right to respect for one’s private life.
In delivering judgment the Court set out guidance on the pursuit of remedies against "Persons Unknown" and the recent Court of Appeal decision in Boyd v Ineos Upstream Ltd  EWCA Civ 515 on which see our article here.
In finding that Birmingham had failed in its duty to provide full and frank disclosure the Court set out the principles relating to without notice applications and found there was ‘no doubt that the Council's duty of full and frank disclosure required it to provide the Court with a distinct, clear, and sufficient explanation, founded upon evidence, for making its application without notice .., identifying the counter-arguments which could be put forward, and explaining why those arguments should not be accepted. It failed to discharge that duty’
The Court also found that Birmingham had failed to identify the threshold for granting an injunction where section 12 of the Human Rights Act 1998 was engaged. This section applies where a Court is considering whether to grant relief which, if granted, might interfere with the right to freedom of expression and confirms that no such relief is to be granted so as to restrain publication before trial unless the Court is satisfied that the applicant is likely to establish that publication should not be allowed.
Birmingham argued that that they were not wrong to omit reference to s12(3), which they said was irrelevant, because this case was not a case about "publication". Warby J found that it ‘would be quite wrong to treat the word "publication" in s 12(3) as having a limited meaning’, and re-iterated Lord Sumption’s comments in Lachaux v Independent Print Ltd  UKSC 27 (a case concerning defamation, see our note here) that ‘publication does not mean commercial publication, but communication to a reader or hearer other than the claimant’. In the circumstances of this case the injunction sought could interfere with the defendants’ rights to freedom of expression and Birmingham were required to identify s12(3) as an argument which the Defendants might have put forward had they been in attendance at the hearing.
The Court discharged the injunctions with costs for the defendants, but upheld Birmingham’s application and re-granted injunctions, with costs as restraint on the way the protests were being conducted was justified.
So the defendants’ complain that the school is being full and frank with the children, but unfortunately for Birmingham they failed to be full and frank on their application. However, the rule in favour of discharge operates as a deterrent to ensure that those who make applications without notice realise the existence and potential consequences of non-disclosure. The Court however retains the discretion to continue the injunction, or to grant a fresh one in its place. This is necessary so the rule does not "become an instrument of injustice", but it is to be exercised "sparingly".