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Clarifying the duty to have regard

Julia Marlow

Julia Marlow,

London

Telha Arshad

30 April 2015
The High Court has found that the duty "to have regard to" guidance requires that guidance to be taken into account, and for there to be "clear" reasons for any departure from it, but that it does not go so far as to require a "compelling justification" for a departure.

The recent case of R (on the application of London Oratory School Governors) v Schools Adjudicator [2015] EWHC 1012 (Admin) related to admissions criteria that the London Oratory School had imposed in order to address the fact that it was heavily oversubscribed.  These included a number of faith-based criteria, such as that the candidate pupil must have been baptised.  The Department for Education's "School Admissions Code", which enjoys statutory status, requires that, in setting admissions criteria, the governing body of an oversubscribed school should "have regard to any guidance from the body or person representing the religion or religious denomination when constructing faith- based oversubscription criteria" and should "consult with the body or person representing the religion or religious denomination when deciding how membership or practice of the faith is to be demonstrated".  In this case, the relevant body was the Roman Catholic Archdiocese of Westminster which had published some Diocesan Guidance.

The British Humanist Association had brought a complaint to the Office of the Schools Adjudicator (the "Schools Adjudicator") in relation to the London Oratory School's faith-based criteria.  In response to that complaint, the Schools Adjudicator had found that the London Oratory School had acted in breach of its statutory obligations when setting its admissions criteria because, among other things, it had failed "to have regard to" the Diocesan Guidance because the reasons given by the governing body for departing from the guidance were "not sufficiently compelling".

The London Oratory School then brought the judicial review claim against the Schools Adjudicator.  In giving judgment, Mr Justice Cobb found that the Schools Adjudicator had applied too strict a test in concluding that the governing body had failed to have regard to the Diocesan Guidance.

Cobb J applied what he referred to as the "conventional approach", as set out by Laws LJ in R (Khatun) v Newham London Borough Council [2005] QB 37.  On that basis, he concluded that the governing body's obligation to have regard to the Diocesan Guidance meant that it needed to take the guidance into account, and to "have and give clear reasons" for any departure from it.  Furthermore, these clear reasons must "objectively be proper reasons, or legitimate reasons".  However, to say that the reasons must be "good", "cogent" or "compelling" would be raising the bar "far higher than is appropriate in this context."

The Schools Adjudicator had therefore set too high a threshold when determining that the governing body's departure from the Guidance required a "compelling justification". Cobb J stated that this "would be apposite for departure from ‘statutory guidance’, but not from a document of the status of this Diocesan Guidance."

The judgment provides some helpful elucidation of the test that must be met when considering whether or not to depart from relevant guidance.

Julia Marlow

Julia Marlow,

London

Telha Arshad

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