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In the High Court in Belfast, the woman brought an application for judicial review arguing that there had been a breach of the Northern Ireland Act 1998, however Mr Justice Donnell Deeny found no breach and dismissed the application.

Background

The mother of a pupil attending Little Flower Girls’ School in Belfast, brought an application for judicial review to challenge the decisions of the then Minister for Education for Northern Ireland, Mr John O’Dowd MLA, who approved development proposals to close the school and amalgamate it with St Patrick’s College, immediately adjacent to it, in September 2017.

Counsel for the applicant (SK) complained that if Little Flower was to be amalgamated with St Patrick’s College to become a co-educational school, there will be no single sex non‑selective secondary school for girls with a Catholic ethos available in the area thereafter.

Application for judicial review

Counsel for SK argued that was is a breach of the Section 75(1) obligation in that the Minister failed to have due regard to the need to promote equality of opportunity between persons of different religious belief; thus, leave for SK’s application was granted on one ground:

“The Minister acted unlawfully and/or in an irrational manner in taking the decision to approve the development proposals without having completed an Equality Impact Assessment or equality screening and/or failing to have due or any regard to the need to promote equality of opportunity under Section 75(1)(a) of the Northern Ireland Act 1998.”

Counsel for SK presented “clear statistical evidence that, at least in this area, the religious belief of the pupils attending the controlled school is almost entirely Protestant and that of the children attending the maintained Little Flower School almost entirely Catholic – therefore the Minister failed to have due regard to this unequal outcome by which there will continue to be a single sex school for girls in the controlled sector in North Belfast/Glengormley but not in the Catholic maintained sector”.

In response to SK’s complaint, the Department of Education and the Council for Catholic Maintained Schools (CCMS) emphasised the long iteration leading up to these decisions by the Minister: options were published in 2010 for wider public consultation, and after being approved by a third relevant and informed body, the proposals were adopted by the Education Authority and published in November 2015 for consultation.

Justice Deeny emphasised that the CCMS proposals did include equality screening, pursuant to Section 75 of the Northern Ireland Act 1998.

The applicant through her counsel contended that there were two principal breaches of the obligation under Section 75 of the 1998 Act:

Justice Deeny stated that the court must also consider the correct approach to a breach, if there was a breach, of the obligations on the Minister under Section 75 of the Northern Ireland Act 1998, as per Re Neill’s Application for Judicial Review NICA 5.

Justice Deeny also considered Re Ballyedmond Castle Farms Limited’s Application NI 174; Department of Education v Cunningham NICA 12; and Re McDonnell NIQB 125

Consideration and Findings

Firstly, Justice Deeny stated that “the Department and the Minister were perfectly entitled to conclude that it was proper for CCMS to carry out the screening process… on behalf of the Department”.

Secondly, in relation to the argument that the CCMS screening, relied on by the Department, did not pick up this contrast between the degree of choice available to parents using the controlled secondary sector in North Belfast and Glengormley as opposed to the maintained sector; and that the Minister was not made aware of that point he had not paid “due regard to the need to promote equality of opportunity between persons of different religious belief”.

Justice Deeny was satisfied that as the Minister was not made aware of this point until the issuance of these proceedings in a narrow sense he could not be said to have had regard to this point, and that “as an equality of opportunity point it was not a strong one

Procedural failure

The only error identified by Justice Deeny was “the fact that neither CCMS nor EA nor the Department had regard to the point… that there will be a difference following the implementation of these development proposals between the controlled and maintained sectors in this part of Northern Ireland”.

Justice Deeny stated that this was a ‘procedural failure’ and per Neill, not appropriate for judicial review.

Justice Deeny was satisfied that parents dissatisfied with the amalgamation still had several options available to them. Furthermore, “even if screening had picked up this point about the difference in choice between the controlled and maintained sectors that would not… have amounted to a major impact on equality of opportunity and/or good relations” - therefore an equality impact assessment need not have been undertaken by the Department.

Delay

Justice Deeny was unsympathetic to the fact that the present proceedings were issued on 22 June 2016, a day short of three months from the Ministerial decision.

As such, he stated that to halt this process at this late stage would cause disarray and prejudice in a scheme that has been in gestation for a period of years and which effects more than a thousand adults and children.

Accordingly, for the reasons set out above and for the reason of delay the application was dismissed.