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Birmingham school injunction was not within the ambit of the Equality Act 2010

02.12.2019

Since mid-March 2019 there have been regular and frequent protests outside a school in Birmingham, the participants who were mainly parents, but also some others, objected to its teaching of LBGT issues. In addition, abusive messages had been posted on social media and online. Speakers at the protests had accused the school of pursuing a "paedophile agenda", leaflets had suggested that the school was teaching "LGBT sexual education" and videos had accused the school of bringing in gay teachers and convicted paedophiles. All of these claims were denied by the school.

Birmingham applied for an injunction seeking restrictions on what could be said and done by parents (and others) who wished to criticise the School's teaching of LGBT issues. The claim was brought under Part 8 of the CPR and sought to restrict the way in which the protests were carried out. Ultimately the claim ended up following a hybrid process as defences were filed. Interim injunctions were granted and the case was listed for a five day hearing in October.

The Court heard some interesting arguments about how far the Defendant's rights to Freedom of Expression and Freedom of Assembly could be interfered with (Articles 10 and 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms - ECHR).

On 26 November, Mr Justice, a judge of the High Court gave a lengthy judgment on the injunction application. Here is what you need to know:

  • Injunctions of this type can be made pursuant to s.222 of the Local Government Act 1972, the Highways Act 1980, the Localism Act 2011 and the Anti-Social Behaviour, Crime and Policing Act 2014.

  • In seeking these injunctions the Council was pursuing a legitimate aim, namely seeking to prevent disorder and protecting the rights and reputations of others.

  • The Defendants had disputed the court's jurisdiction to grant an injunction; they argued that none of the statutory provisions relied upon allowed the Defendants Article 10 and 11 rights to be infringed. Warby J decided that the injunctions were not contrary to the Equality Act 2010 which does not apply to claims for anti-social behaviour, public nuisance or obstruction of the highway [44]. The content of the curriculum is also outside the scope of the EA 2010. Alternatively, the conduct did not amount to unlawful discrimination [44].

  • The Council had not sought to restrict the content of the protesters' freedom of expression, but the way in which they expressed themselves. An exclusion zone, restrictions on the frequency and duration of the protests and on the use of amplification were legitimate interferences with the protestors' freedom of expression. Warby J observed that the "freedom to speak offensively, though important, is not an unqualified right" [31]. He went on to observe that there was "an acceptance that the statute [the 2014 Act] authorises a local authority to curtail certain fundamental rights by administrative action, and the Court has unsurprisingly so held" and referred to the PSPO case of Dulgheriu v L B Ealing [2019] EWCA Civ 1490 [33]. Further details of this case can be found in this case update.

  • The Defendants' argument that the Court cannot or should not grant an injunction where a PSPO could have been imposed because it was a better suited or somehow a lesser intrusive remedy was rejected. The Judge referred to the cases of Birmingham City Council v Shafi [2008] EWCA Civ 1186 and Birmingham City County v Sharif [2019] EWHC 1268 and confirmed that the council was not "shackled by rigid rules of this kind" [34].

  • The behaviour in question does not have to amount to criminal conduct in order to be restrained [111], nor does harassment have the same meaning as in the Protection From Harassment Act 1997 which creates a tort and a criminal offence [112]

  • Significantly, the judge accepted that the 2014 Act creates a "high hurdle" and that the court should not be too ready to interfere with activities which people would normally be free to participate in when in a public space:

                             Injunctions under the 2014 Act should not be lightly granted, and their terms should be
                             carefully framed to ensure that they do not involve unnecessary  or excessive interference
                             with the rights of others. ... I reject the submission that the Court is powerless to grant, or
                             should always refrain from granting, an order protecting fellow citizens from alarm or 
                             distress, or other consequences of harassment or anti-social behaviour, falling short of
                             that which would 
 justify prosecution. Other remedies are available in principle. But in this
                             case, the Council considered whether lesser measures might suit the factual  
situation
                             confronting it and decided, in my judgment legitimately, that interim relief under the 2014
                             Act was required due to the urgency of the matter.  
Having taken that decision, it was and is
                             entitled to press the civil claim to its final conclusion, rather than falling back on other
                             measures available under 
the 2014 Act, or other legislation." [113]

The case reinforces the need to ensure that injunctions are framed in terms which are clear, proportionate and enforceable. It also confirms that it is for the local authority to decide whether to pursue an injunction or a PSPO or another remedy. A full copy of the judgment can be found here.

Kuljit has appeared or advised in all of the legal challenges concerning PSPOs which have come before the courts, and has advised numerous local authorities on consultation, investigation and decision-making related to PSPOs and injunctions. The second edition of Kuljit's book, Cornerstone on Anti-Social Behaviour, which includes chapter dedicated to Injunctions, PSPOs, and human rights and Equality Act 2010 issues, was published in May 2019.