High Court upholds injunctions to prevent protests about LGBT+ curriculum

Local Government analysis:

This deals with Mr. Justice Warby’s judgment in the much-publicised Birmingham primary school protest case. A group of parents/relatives of pupils of British Pakistani heritage objected to certain parts of the curriculum taught by the school in relation to homosexuality and different types of families. The families argued that the school, by teaching this content as part of its curriculum, was discriminating against them on the grounds of their religion (namely, Islam), and that Birmingham City Council’s claim for injunctions against the defendants to prevent them protesting outside the school, was contrary to the Equality Act 2010 and an unlawful violation of their rights of lawful assembly and freedom of expression. The High Court found that the council’s application pursued a legitimate aim and was a necessary and proportionate infringement on the rights of the defendants. This case analysis focuses on the competing rights of the protesters and the legislation relied upon by the council as justifying the grant of injunctive relief in such circumstances. Written by Hannah Lynch, a barrister at St Pauls Chambers.

Birmingham City Council v Afsar and others [2019] EWHC 3217 (QB), [2019] All ER (D) 182 (Nov)

What are the practical implications of this case?

This case demonstrates that a public authority can, in appropriate circumstances, obtain injunctions to prevent protests in certain locations on the grounds that those protests amount to ‘anti-social behaviour’ (para [31]).

However, the case highlights the difficulties of obtaining injunctive relief against a transient and changing group of protesters – the court ruled that the injunctions in questions could ‘only be made in terms that confine its effect to those who have been served with the proceedings prior to trial’ (para [132]).

Equally, the court was not prepared to grant an injunction to prevent offensive and inaccurate discussion of the school and staff members on WhatsApp. The court concluded that the semi-private nature of these communications was such that an injunction preventing ‘free speech’ of this type would be an unjustified restriction on the defendants’ rights of freedom of expression (para [125]).

This case demonstrates that a parent cannot argue that the teaching of a specific part of a school’s curriculum amounts to discrimination against their child (or indeed against them), simply because the parent does not agree with its content (paras [45]–[52], [61]–[63]).

What was the background?

Birmingham City Council (Council) applied for injunctions to restrict street protests outside Anderton Park Primary School (School) – and to prevent online abuse of teachers at the School, in relation to the content of the curriculum taught to their children. For seven months, there had been regular street protests outside the School about the content of the School’s curriculum in relation to same-sex relationships and other LGBT issues. The Council’s case was that the protests involved nuisance and disruption. The Council sued four defendants – one parent at the School, two others who had been involved in the protests but were not parents, and ‘persons unknown’. A fifth defendant, a freedom of expression activist, applied to be joined as the fifth defendant.

Prior to the trial date, the court had granted interim injunctions, including preventing protests by the defendants within an ‘exclusion zone’ around the School.

What did the court decide?

Mr Justice Warby concluded that:

• the legislation relied upon by the council (including the power under section 1 of the Anti-Social Behaviour, Crime and Policing Act 2014 to issue injunctions to prevent anti-social behaviour) empowered the court to grant injunctions to prevent protests outside the school, provided that the court concluded that the resulting interference with the rights of freedom of expression and assembly corresponded to a pressing social need, were necessary and did not go further than was necessary (paras [21] and [31])
• Ali v Head Teacher and Governors of Lord Grey School [2006] UKHL 14, [2006] All ER (D) 332 (Mar)) which did not prevent the state from ‘imparting unwelcome information or knowledge’ (para [61]). Domestic law required local education authorities to ‘have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the avoidance of efficient instruction and training…’ (Education Act 1996, s 9) but there was no duty to comply with those wishes and the authority had to comply with its obligations under other legislation by delivering a curriculum that promoted British values and had regard to the need to achieve equality objectives, including the elimination of discrimination and fostering good relations between people with a protected characteristic (one of which was sexual orientation) and those who did not share it (para [62]). There was no legal duty on schools to consult parents as to the content of the curriculum (para [63])
•  the first, second and third defendants had engaged in a course of conduct over many months that had caused fear, alarm and distress to primary school students, teachers and local residents. The injunctions were necessary to protect the Convention rights and other civil rights of staff and pupils and the school and those who lived near the school, and were proportionate to that aim. Warby J accepted that the injunctions preventing the protests outside the school amounted to an interference with the defendants’ Art 10 and 11 rights, but was doubtful whether the protests amounted to a manifestation of religion (Art 9(1)) (para [115]). Warby J concluded that the rights that justified interference with the defendants’ rights, were weighty: the right of children of the school to an education, the private lives of staff, and the right to respect for local residents’ homes and family lives. The injunctions, in any event, did not target the content of the defendants’ speech, but merely imposed an exclusion zone around the school (paras [114] and [115]). The court was satisfied that the first three defendants had committed public nuisance and obstruction of the highway, and would repeat such conduct if not restrained
• the council’s application for an injunction aimed at preventing online abuse was refused. The words used by the defendants were in a WhatsApp group and had only come to light because of disclosures made by members of that group, and therefore the scale, frequency, nature and impact of the abuse ‘did not give rise to a sufficiently compelling case for interference’ with the defendants’ rights of expression in this regard (para [125])

Case details

• Published by Lexis Nexis
• Court: High Court, Queen’s Bench Division (Birmingham District Registry)
• Judge: Warby J
• Date of judgment: 26/11/2019