Birmingham School Can't Challenge Ruling Over Segregation Of Pupils

7 November 2017, 14:21 | Updated: 7 November 2017, 14:27

A Birmingham school's been told it can't challenge a court ruling banning them from segregating pupils.

In a landmark ruling last month three Court of Appeal judges found that the policy of the mixed-sex Al-Hijrah school in Birmingham to completely segregate from the age of nine is unlawful sex discrimination.

The judges overturned a High Court finding that Ofsted inspectors were wrong to penalise the school on the basis of an "erroneous" view that the segregation amounted to discrimination.

For religious reasons the voluntary-aided school, which has pupils aged between four and 16, believes that separation of the sexes from year five onwards is obligatory.

The school, which is maintained by Birmingham City Council, has complete segregation from nine to 16 for all lessons, breaks, school clubs and trips.

At the Court of Appeal on Tuesday, the Master of the Rolls Sir Terence Etherton, Lady Justice Gloster and Lord Justice Beatson rejected a move by the Association of Muslim Schools (AMS) to join the legal action.

Ruling on an application made by the association in the wake of the court's October 13 findings, the judges said its purpose was to enable the AMS to apply for permission to appeal to the Supreme Court.

Refusing the application, the judges said the AMS was aware of the proceedings but never applied to join until after the conclusion of the appeal and the making of an order giving effect to the court's decision.

In a written ruling they said: "The proceedings themselves concern the legality of a specific report by Ofsted about the particular arrangements for pupils in the school.

"Although, plainly, our judgments touch on matters of general application, the school itself, which is the claimant in the proceedings and the subject of them, accepts the decision of the Court of Appeal and is working with the council to implement that decision."

They said: "The school, as claimant, has made a conscious decision to accept and to implement the Court of Appeal's decision. The school does not encourage or support the desire of AMS to obtain permission to appeal in order to overturn the decision."

As to a concern that the decision "has created a degree of uncertainty as to what schools might expect in the event of an Ofsted inspection, it was never part of the claim or the appeal, nor would it be part of any appeal to the Supreme Court, that the court should direct Ofsted what to do in the event it established that it was entitled to publish the relevant report".

They said that even it they had agreed to the application to join the action, "we would have refused permission to appeal on the ground, among others, that an appeal would have no real prospect of success".

In conclusion the judges stated: "Any subsequent application to the Supreme Court would itself foster uncertainty for an unpredictable period and with an uncertain outcome with implications for the council and the claimant school which accept and wish to implement our decision."