R v Cleveland County Council and Others Ex parte Commission for Racial Equality

Court of Appeal (Civil Division)

The Times 25 August 1992, The Independent 6 August 1992, [1993] 1 FCR 597, 91 LGR 139, (Transcript:Association)

HEARING-DATES: 31 July 1992

31 July 1992

COUNSEL:
S Sedley QC and R Allen for the Appellant; J Goudie QC and L Persey for the First Respondent; J McManus for the Second Respondent; the Third
Respondent appeared in person

PANEL: Parker, Nolan, Kennedy LJJ

JUDGMENTBY-1: PARKER LJ

JUDGMENT-1:
PARKER LJ: The Commission for Racial Equality ("the CRE") appeal against the judgment of Macpherson J dated the 18th October 1991 whereby
he dismissed their application for judicial review of certain decisions of the first and second respondents. These were, first, a decision of the
respondent Council on the 22nd December 1987 to comply with the request of the third respondent Jennifer Carney to transfer her five year old
child Katrice from one primary school maintained by the Council to another such school so maintained and, secondly, a decision of the
respondent Secretary of State by letter dated the 2nd April 1990 that there were no grounds upon which he could exercise his statutory default
powers under sections 68 and 99 of the Education Act 1944 in relation to the aforesaid decision of the Council.

The proceedings have a certain air of unreality because, first, the CRE had, from the start, no intention to prevent the Council from complying
with the request of Mrs Carney or of interfering with the transfer of Katrice after it had taken place and because, secondly, in the ordinary
course of her education Katrice has left the school to which she was transferred. The purpose of the proceedings was and is to establish what,
so we are told, the CRE regard as an important point of principle and to do so without bringing into the matter or revealing the identity of Mrs
Carney, the child or either of the two schools concerned. Unfortunately however the identities were disclosed in the press and, as a result, Mrs
Carney has suffered considerable distress. She was in receipt of legal aid for the proceedings before Macpherson J but was refused legal aid for
this appeal. However that refusal was to be reconsidered by another area committee on the 24th July and accordingly and quite naturally she
applied in person, when this appeal was called on the 22nd July, for an adjournment in order that if, on reconsideration, she was granted legal
aid she could be represented.

That adjournment appeared to us to be unnecessary provided that the CRE did not seek to suggest that she was racially motivated in her
request for transfer but based their case wholly on the contents of her letter of request and the Council's perception of its meaning. Having
been assured by Mr Sedley QC for the CRE that this would be the case and in the light of the judgment of Macpherson J and the evidence on
which it was based we considered that the court could more than adequately protect Mrs Carney's interests and refused the application to
adjourn.

The Basic Facts

At the beginning of the Autumn term of 1987, Katrice having attained school age went to the Council's primary school at Abingdon Road.

On the 22nd November 1987 Mrs Carney, who was then living with Katrice's father who was half African, wrote to the county education officer
in the following terms:

"Dear Sir,

Could you please advise me if it is possible for my child Katrice to change schools. She is now at Abingdon Road School and I would like her to
go to Martin Grove School at . . . My reason for this is I do not think its fair for Katrice to go through school with about four white friends and
the rest Pakistan, which she does not associate with. I think the school is a very good school, but I do not think its right when she comes home
singing in Pakistan. I know they only learn three Pakistan songs but I just do not want her to learn this language. I know Martin Grove is not in
my area but I just want her to go to a school where there will be the majority white children not Pakistani. She only started school in
September so I think it would be best to change her school while she is still young. She has never been off school and she would never be off if
she went to Martin Grove School, the distance is no problem for me and if you did accept Katrice at Martin Grove I would try to get an
exchange to . . . as I live in a council house."

The Council considered this request to be shewn by the terms of the letter to be on racial grounds and were reluctant to comply with it. They
consulted the CRE representative who did not suggest that it would be unlawful to do so. They also took legal advise which was to the effect
that, by reason of the provisions of section 6 of the Education Act 1980, they had no option but to do so.

Accordingly on or about the 22nd December they decided to comply with the request and on that date so informed Mrs Carney. At the end of
the term Katrice left the Abingdon Road School and at the beginning of January 1988 entered the Martin Grove School.

Mrs Carney's Position

Whether or not the Council was justified in construing the request as being based on racial grounds it is plain that the judge concluded that it
was not in fact so based. In his judgment he said:

"I have no reason at all to doubt that Mrs Carney has in fact no objection whatsoever to Asian people. She has lived amongst them and has
always got on well with them. And she tells me that her decision to ask for Katrice's move to another school had nothing whatsoever to do with
the race of the children at Abingdon Road School. I read then from paragraph 14 of her affidavit:

'I was simply concerned about what Katrice was being taught and the foreign language she was being taught to speak at a time in her schooling
when in my view she had to learn to read, write and speak her own language first. I was also concerned that because the Asian girls did not
speak good English and did not mix with the white children that Katrice was not making enough friends and that this would also be bad for her
development.'

In addition Mrs Carney tells me that Katrice's father is partly African and is obviously coloured and that Katrice herself is thus of mixed race . . .

But it is just not possible for me to accept what Mrs Carney says and thus kill the case. In saying this Mrs Carney will understand that I am not
doubting her word. I must proceed on the basis of the original letter and the actions taken and decisions made in that context by those
involved."

On the evidence the judge was in my judgment not only right in his conclusion. He could have come to no other conclusion. This being said it is
unnecessary to refer to other passages in Mrs Carney's evidence which reinforce that conclusion. Mrs Carney can leave this court as she left
the court below with no racist stain upon her.

The Legal Issues

Prior to the Education Act 1980 (the 1980 Act) Local Education Authorities were obliged, when considering initial admission to their schools or
transfers between one such school and another, to have regard to parental preference. By that Act however they were placed under a
mandatory duty, save in certain instances, to comply with such preference. Section 6 of the Act, so far as relevant, provided:

"6(1) Every local education authority shall make arrangements for enabling the parent of a child in the area of the authority to express a
preference as to the school at which he wishes education to be provided for his child in the exercise of the authority's functions and to give
reasons for his preference.

(2) Subject to subsection (3) below, it shall be the duty of a local education authority and of the governors of a county or voluntary school to
comply with any preference expressed in accordance with the arrangements.

(3) The duty imposed by subsection (2) above does not apply --

(a) if compliance with the preference would prejudice the provision of efficient education or the efficient use of resources; and

(b) if the preferred school is an aided or special agreement school and compliance with the preference would be incompatible with any
arrangements between the governors and the local education authority [in respect of the admission of pupils to the school]; or

(c) if the arrangements for admission to the preferred school are based wholly or partly on selection by reference to ability or aptitude and
compliance with the preference would be incompatible with selection under the arrangements."

In the present case it is accepted that non-compliance with the request for admission to Martin Grove School could not have been justified
under any of the exceptions set out in section 6(3). On the face of it therefore the Council were obliged to comply with Mrs Carney's request.
They could not do otherwise without being in breach of section 6.

The CRE contend however that the mandatory and apparently unqualified duty under section 6 is qualified or overriden by section 18 of the
Race Relations Act 1976 as amended by section 33(1) of the 1980 Act.

As so amended section 18(1) provides:

"18(1) It is unlawful for a local education authority, in carrying out such of its functions under the Education Acts 1944 to [1980] as do not fall
under section 17, to do any act which constitutes racial discrimination."

The figure in square brackets was introduced by the 1980 Act in place of the original figure "1975". There is thus in the 1980 Act a clearly
expressed link with the Race Relations Act 1976 (the 1976 Act). There is also in section 19 of that Act an equally clearly expressed link with the
Education Act 1944 which falls to be construed as one with the later Education Acts. That section provides so far as material:

"19(1) Without prejudice to its obligation to comply with any other provision of this Act, a body to which this subsection applies shall be under a
general duty to secure that facilities for education provided by it, and any ancillary benefits or services, are provided without racial
discrimination.

(2) The following provisions of the Education Act 1944 namely --

(a) section 68 (power of Secretary of State to require duties under that Act to be exercised reasonably);

(b) section 99 (powers of Secretary of State where local education authorities etc are in default),

shall apply to the performance by a body to which subsection (1) applies of the duties imposed by sections 17 and 18, and shall also apply to
the performance of the general duty imposed by subsection (1), as they apply to the performance by a local education authority of a duty
imposed by that Act.

. . .

(4) The sanctions in subsections (2) and (3) shall be the only sanctions for breach of the general duty in subsection (1), but without prejudice
to the enforcement of sections 17 and 18 under section 57 or otherwise (where the breach is also a contravention of either of those sections).

. . .

(6) subsection (1) applies to --

(a) local education authorities in England and Wales;

. . ."

The combination of the amendment to section 18 of the 1976 Act by the 1980 Act and the provisions of section 19 above set out shew that
the two Acts are, as Mr Sedley submitted, closely interlocked.

It is however to be noted that whereas section 18 of the 1976 Act applies only to the carrying out of such of its functions as do not fall within
section 17, section 19 applies to the duties imposed by both section 17 and 18.

It is then necessary to consider section 17 which provides:

"17. It is unlawful, in relation to an educational establishment falling within column 1 of the following table, for a person indicated in relation to
the establishment in column 2 (the 'responsible body') to discriminate against a person --

(a) in the terms on which it offers to admit him to the establishment as a pupil; or

(b) by refusing or deliberately omitting to accept an application for his admission to the establishment as a pupil; or

(c) where he is a pupil of the establishment --

(i) in the way it affords him access to any benefit, facilities or services, or by refusing or deliberately omitting to afford him access to them; or

(ii) by excluding him from the establishment or subjecting him to any other detriment."

It is unnecessary to set out the table referred to. It is sufficient to say that in relation to schools maintained by a local education authority
(LEA) that authority is the responsible body. In the present case both the schools were so maintained by an LEA, namely the respondent
Council. It was therefore, in respect of both schools, subject to the restrictions imposed by section 17, which, it should be noted, concern,
principally, admission to or exclusion from a school.

Before coming to the definition of discrimination I should refer to section 41(1)(a) of the 1976 Act. It provides:

"41(1) Nothing in Parts II to IV shall render unlawful any act of discrimination done --

(a) in pursuance of any enactment or Order in Council; . . ."

Both section 17 and section 18 are in Part III.

Finally, so far as the statutory provisions are concerned, I come to sections 1(1) and 3(1) and (2) of the 1976 Act:

"1(1) A person discriminates against another in any circumstances relevant for the purposes of any provisions of this Act if --

(a) on racial grounds he treats that other less favourably than he treats or would treat other persons; or . . .

(2) It is hereby declared that, for the purposes of this Act, segregating a person from other persons on racial grounds is treating him less
favourably than they are treated.

3(1) In this Act, unless the context otherwise requires -- 'racial grounds' means any of the following grounds, namely colour, race, nationality or
ethnic or national origins:

'racial group' means a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a
person's racial group refer to any racial group into which he falls.

(2) The fact that a racial group comprises two or more distinct racial groups does not prevent it from constituting a particular racial group for
the purposes of this Act."

The contentions of the CRE were and are:

(a) That Mrs Carney's letter of request for transfer was clearly based on racial grounds.

(b) That, this being so, the Council in complying with the request committed an act of racial discrimination in that they thereby segregated
Katrice from other persons, namely the pupils of Abingdon Road School, which segregation by section 1(2) constitutes treating her less
favourably than such persons and is thus discrimination within section 1(1)(a).

(c) That this was a breach of section 18 of the 1976 Act which qualifies the apparently unqualified duty imposed by section 6 of the 1980 Act.

Mr Sedley invited us to consider, first, the question whether the section 6 duty was so qualified and I shall do so.

As a starting point it is convenient to examine precisely what is the qualification contended for. It is accepted that a parent may withdraw a
child from its school for whatever reason or on whatever grounds he or she chooses and that the Council has no power or duty to prevent such
withdrawal whatever may be the grounds or reasons. It is also accepted and indeed contended that there is no difference between an original
application for admission to a school and an application for admission by way of transfer. The question therefore is whether in either case the
section 6 duty is qualified by section 18 and, if so, what is that qualification. It is accepted and contended that, if an application for admission
to a school is a bare application without reasons, the Council are obliged to accept it unless refusal can be justified under section 6(3) even if
the Council may know from other sources that the application is unquestionably on racial grounds. It is even accepted and contended that, if an
application is made on express racial grounds and rejected, a renewed application with no reasons would have to be accepted. It is further
contended that, if an application expresses reasons which constitute racial grounds it must be rejected even if in fact it was not so based. The
Council can and must, it is said, act upon the reasons expressed. The true reasons are irrelevant and no concern of the Council. Such
contentions appear to me somewhat bizarre but the matter does not stop there. In the course of argument I put to Mr Sedley the hypothetical
case of three schools in an area, one with all white pupils, one with all black pupils and one with a 50/50 mix. I enquired what he would contend
to be the Council's duty upon receipt of an application by a parent for admission to the 50/50 school expressed to be on the grounds that the
parent was very much in favour of promoting good race relations and therefore wished the child to be educated at such a mixed school. He
submitted that such an application should be refused. To comply with it would constitute segregation from the white and black pupils in the
other two schools and thus amount to discrimination by virtue of section 1(2) of the 1976 Act and be unlawful under section 18.

I find these contentions very strange to say the least and it would in my view be quite impossible to attribute to Parliament an intention to
produce any such results in the absence of the clearest possibly language. Furthermore, Mr Sedley's statement that, if we were to accept his
submissions it would represent a significant advantage to the CRE in their efforts to promote the policy of the 1976 Act, is difficult to
understand. It would, he submits, do so by preventing racially based applications appearing in the public field and being acted on by LEAs. In
the light of the fact that he accepts (1) that LEAs must accept bare applications notwithstanding that they know from outside sources that
they are in fact based on racial grounds and (2) that if an application is rejected as being racially based a renewed application with no grounds
must be accepted, it appears to me that the supposed advantage is not only without substance, but is positively inimical to the purposes of the
Act.

I turn now to the sections. Mr Sedley accepts that if we were to accept his submissions it would involve adding to the three exceptions in
section 6(3) a further exception which Parliament has not seen fit to put there. He did not advance any suggested wording but it would as it
seems to me have to be on the lines following:

S 6(3)(d) If reasons are given for the preference and such reasons are, as a matter of construction such as to constitute racial grounds, in
which case the LEA shall not comply with the preference but if the preference be thereafter renewed without reasons then this paragraph shall
not apply.

I can see no warrant for reading in any such additional exception from the duty expressed in section 6(2) and every reason for excluding that or
any other additional exception.

The case for the CRE depends upon an LEA's duty under section 6 of the 1980 Act being a function not falling under section 17 of the 1976 Act.
It is only, if so, that section 18 applies and creates, or can create, two conflicting duties, the duty under section 6 of the 1980 Act to comply
with parental preference whether reasons are expressed or not subject only to the section 6(3) exceptions, and the unqualified provision in
section 18 that it is unlawful for an LEA in carrying out its functions to do any act which constitutes racial discrimination.

The question which at once presents itself is why section 18 only applies to functions which do not fall under section 17. The answer which
most readily suggests itself is that section 17(a) and (b) is dealing directly with the duties of the LEA under section 6. Section 17 does not
itself create any functions. It simply renders unlawful certain things being done in the course of exercise of the functions, in this case the
acceptance or refusal of applications for admission. In the light of the fact that the section 6 duty is mandatory however the matter could not
be left there. If conflict was to be avoided there must be some saving. This is to be found in section 41(1)(a). On this basis no conflict arises
and it must be presumed that Parliament intended no conflict.

The learned judge concluded that the section 6 duty was not a function. For my part I could only accept this if there were no other way of
resolving the apparent conflict between section 6 and section 18. Since in my judgment there is no such conflict it is unnecessary to determine
whether if my solution is wrong it would be necessary to accept the judge's solution notwithstanding what Lord Templeman said in Hazell v
Hammersmith and Fulham LBC [1991] 1 All ER 545, [1991] 2 WLR 372.

Accordingly I hold that the Council's duty under section 6 is unqualified by section 18. Assuming however that this is wrong the question arises
whether the child's transfer amounted in law to segregation by the Council on racial grounds.

In this connection it is important to analyse the position when a transfer is made. The withdrawal from the first school is not something which
the Council can prevent whatever the grounds expressed or otherwise may be. If therefore the Council did commit an act of segregation it can
only have been by complying with the preference for admission to Martin Grove.

Mr Sedley submits that by complying with the preference the Council were, on racial grounds, segregating the child from the pupils at Abingdon
Road within the meaning of section 1(2) of the 1976 Act. The act of discrimination, if there was one, can in my judgment only be a failure to
refuse admission to Martin Grove School. The questions to be answered are therefore:

(a) Can such a failure amount to an "act" within section 18(1) of the Act?

(b) If so, was it on racial grounds?

(c) If so, did it amount to segregation?

(a) Did the failure amount to an "act"?

It appears to me that the ordinary meaning of an act is the taking of a positive step rather than the omission to take such a step. Thus one has
negligent acts or omissions and I can see no reason why the same should not apply in the present case. Suppose the Council had refused
admission to Martin Grove it would as it seems to me be an attempt to enforce the stay of Katrice at Abingdon Road which is no part of the
LEA's duty or function. Furthermore on Mr Sedley's submissions it would I think follow in the circumstances that such refusal amounted to
segregation from the pupils at Martin Grove. I do not consider that the Council's failure to refuse admission was an act within section 18(1) of
the 1976 Act. This makes it unnecessary to deal with questions (b) and (c) above mentioned but I regard it as desirable that I should do so.

(b) Was the Council's "act" on racial grounds?

It appears to me that to this there can only be one answer and that is "No". The Council "acted" or failed to refuse admission on the simple
ground that they had been advised that in law they had no option but to do so.

In support of his contention Mr Sedley relied principally upon R v Birmingham City Council, ex parte EOC [1989] 1 AC 1155, [1989] 1 All ER 769
and James v Eastleigh Borough Council [1990] 2 AC 751, [1990] 2 All ER 607 on the basis that the Council would not have acted as it did "but
for" the apparently racially based preference. I regard this as untenable. It is plain that they would certainly have done so without reluctance or
the taking of counsel's opinion because they would on Mr Sedley's submissions have been obliged to do so. The Council did not in my view act
on racial grounds.

(c) Did the Council's "act" amount to segregation?

If there was any segregation here at all it consisted in my view in the removal of Katrice from Abingdon Road, which was the lawful act of her
mother. But it is said that in compliance with her mother's preference the Council itself segregated the child from the pupils at Abingdon Road.
On any ordinary use of language it does not appear to me that the Council did any such thing. Mr Sedley relied on certain international
conventions but they could only assist him if there were ambiguity or uncertainty in the language of the Act itself. I do not consider that there
is any. To submit, as Mr Sedley does, that one segregated a person who is admitted to school A from the pupils at all other schools is in my
view to put a construction on the word much too strained to be acceptable.

I should mention briefly section 41(1)(a) of the 1976 Act. I accept that it only exempts acts done in pursuance of a specific duty, but the duty
in section 6 of the 1980 Act could hardly be more specific. It is, however, in the present instance, unnecessary to resort to it because both if,
as I hold, the section 6 duty is unqualified and if, as Mr Sedley submits, the duty is qualified the question of its effect does not arise.

The CRE, I have no doubt, instituted the present proceedings to establish what they considered to be an important principle. In the course of
argument however the nature of that principle varied considerably until in the end it became one which, if accepted, would be of no avail to
them. It would compel a council to reject a preference plainly based on a desire to further racial equality and would announce to all racists that
they could further their prejudices by the simple means of making bare applications or, if they had been misguided enough to make an
application which revealed racial grounds and had had it rejected, they will only have to resubmit it as a bare application and it would then be
accepted.

I would dismiss this appeal.

JUDGMENTBY-2: NOLAN LJ

JUDGMENT-2:
NOLAN LJ: I agree that the appeal should be dismissed for the reasons given by Lord Justice Parker and have nothing to add.

JUDGMENTBY-3: KENNEDY LJ

JUDGMENT-3:
KENNEDY LJ: I also agree.

DISPOSITION:
Appeal dismissed with costs of both Cleveland County Council and the Secretary of State. No order for the costs of the Third Respondent. Legal
aid taxation of the Third Respondent's costs. Application for leave to appeal to the House of Lords refused.

SOLICITORS:
Hodge Jones & Allen; Lee, Bolton & Lee, agents for the County Secretary, Cleveland County Council; Treasury Solicitor