On Friday, 22 May 2015 the Hon Mr Justice Wyn Williams, Presiding Judge of the Wales Circuit, issued a judgment in a test case affecting thousands of Swansea school children. It will also have repercussions for the way local authorities throughout the UK arrange school transport to faith schools, particularly when considering austerity-driven service cuts.
The judgment rules that Swansea City Council acted unlawfully in July 2014 when making changes to its school transport policy. The amended policy indirectly discriminates on grounds of race by maintaining free transport to 12 Welsh language schools where the intake is overwhelmingly White, whilst withholding it from prospective pupils of the county’s six faith schools, five of which are Catholic and the remaining one Church in Wales. Their pupils are far more likely to be from Black and Ethnic Minority (BME) backgrounds than the average Swansea child. The net result, Wyn Williams J holds, is:
“BME children will be at a particular disadvantage as compared with White British children as a consequence of the amended policy even on the basis of the most favourable statistical advantage open to the Defendant… a BME child is 3.65 times more likely to be disadvantaged than a White British [child]” (paragraph 65).
His judgment goes on to hold that the Council had been ignorant of the discriminatory effects of the amended policy despite completing an equality impact assessment (paragraph 77), the policy could not be justified (paragraph 80), non-discriminatory alternatives including means testing the transport service had not been properly considered (paragraph 78) and that Council officers had misadvised members of the full Council who took the decision by telling them that they had an absolute duty to provide free school transport to Welsh language schools (paragraph 93). The judge went on to ‘quash’ the new policy (paragraph 81). It now has no legal effect and the previous, non-discriminatory transport arrangements will apply to the new pupil intake in September.
The test case was brought by Bishop Vaughan School, Child W, a prospective pupil whose siblings are already there and the Diocese of Menevia. The School’s Bursar, Laura Howden Evans, said today:
“The Court’s decision has brought tears of joy and relief to the eyes of parents, staff at the school and the wider faith community. Throughout the consultation process, we repeatedly warned the Council that its actions would have unintended, but very serious, racially discriminatory consequences. Our concerns were simply brushed aside. Had the new policy stood, children from some of the poorest families in Wales would have been denied a faith-based education for the very worst of reasons. It will now remain open to them. We feel truly vindicated.”
Bernard Stuart, Director of Education at the Diocese of Menevia said:
“The judgement recognises and upholds the legitimate needs of those in the community for whom the suitable school is a church school.”
The solicitor who brought the case, John Halford of Bindmans LLP, said today:
“Starting with the earliest US civil rights cases, the law has persistently demanded equal treatment of those who use state-subsidised transport, particularly when they are school pupils. Whilst Swansea Council certainly had no intention of discriminating on grounds of race, that was the obvious effect of a policy which maintained free school transport for pupils at 12 schools whose pupils are overwhelmingly white and withheld it from six schools whose pupils’ backgrounds are far more diverse. The failure to appreciate these effects was an egregious error of judgment which the Court has now, quite rightly, corrected.”
Background
- The test case was heard at a special hearing of the Administrative Court in Swansea’s Civil Justice Centre on 10 and 11 February 2015.
- It was jointly brought by Bishop Vaughan Catholic Comprehensive School (the only Catholic secondary school in the area), ‘Child W’, whose siblings currently attend the school using free school transport that would have been withheld from her and the Diocese of Menevia, which supports five of the six affected schools. It is a Roman Catholic diocese based in Swansea, serving South West Wales’ 27,500 Catholics.
- The new policy would have meant that, from September this year, the Council would no longer provide discretionary free places on the school buses currently used by pupils attending six voluntary-aided Catholic and Church in Wales schools in Swansea. Some children travel for up to an hour and 50 minutes on the buses to reach school each morning. However, at the same time, the Council would have maintained free school transport on a parallel school bus network used by pupils at all of the county’s 12 Welsh language schools, regardless of the financial circumstances of the families who would benefit.
- Barristers instructed by Swansea Council had defended the policy on the basis that it needed to save money and that there was no discrimination because the affected children were ‘statistically insignificant’.