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NEELB case

Decisions by the North Eastern Education & Library Board

What you need to know

In an application by E (on behalf of S (a minor) in relation to decisions by the North Eastern Education & Library Board [2004] 

This case relates to a decision taken by the North Eastern Education & Library Board regarding the provision of transport assistance to a schoolchild to help with the costs of travelling to a post-primary school. The applicant attended a school outside the Board’s area and was refused assistance. The applicant’s father alleged that the refusal was discriminatory on grounds of religious belief. The applicant’s parents were Episcopalians and they alleged that Roman Catholic pupils attending a Grant Maintained School received more favourable treatment.

The Board’s decision was based on a Circular issued by the Department of Education [i.e. Circular 1996-41, Home to School Transport]. The legality of the Circular was, thus, also being challenged. 

The Circular was issued in 1996; i.e. four years before Section 75, Northern Ireland Act 1998 came into force. At the relevant time, the non-statutory predecessor to Section 75 was in operation; namely, the procedure known as Policy Appraisal and Fair Treatment (PAFT).1  Prior to issuing the Circular, the Department had conducted a PAFT assessment and concluded that it was not anticipated that the proposals would disadvantage any section of the community on the grounds of religious belief. 

The applicant applied for a judicial review of the decision on two grounds; i.e.


(a)    that the refusal was discriminatory on grounds of religious belief contrary to Section 76, Northern Ireland Act 1998, and

(b)    that the Department failed to comply with the Section 75 duty in relation to the Circular.

The Decision

The Court rejected the religious discrimination allegation. There was no evidence of direct discrimination to make the policy unlawful under Section 76 of the Northern Ireland Act 1998 (the provision upon which the discrimination allegation was based). Section 76 does not prohibit indirect discrimination, but in any case, the judge considered that there was no evidence to support such an allegation anyway.

In relation to the Section 75 allegation, the Judge said at paragraph 22:


“22.    In relation to the case that the Department has failed to have "due regard" to the need to promote equality of opportunity between persons of different religious beliefs, the Department submitted their policy to a PAFT assessment [and] concluded the policy did not cause inequality. The equality of opportunity goal enshrined in section 75(1) must be duly taken into account but the section does not mean that the policy adopted must achieve a particular goal...If there were evidence that the Department had simply failed to have a due regard to the need to promote equality of opportunity or had failed to have due regard to its own equality scheme then it would have failed to have taken into account relevant considerations. Here, the evidence indicates that the considerations were taken into account. The question of weight to be attached to the consideration was for the Department.”


Lessons learned

This local case pre-dated all of the significant cases from Great Britain relating to the corresponding public sector equality duties there; for e.g. the cases of Brown, Baker and Bracking, but the judge interpreted Section 75 in a way that is wholly consistent with the lessons learned in those later British cases.

In particular, the judgment is consistent with some of the so-called Brown principles; namely:

  • the duty must be fulfilled before and at the time that a particular decision is being considered, and not afterwards,
  • the duty must be exercised in substance, with rigour and an open-mind, and
  • the duty is a continuing one.

1. The PAFT guidelines obliged Northern Ireland Departments and other public bodies, when formulating and reviewing policies and in delivering services, to assess their potential for unequal impact in terms of nine categories; namely, religion, political opinion, gender, race, disability, age, marital status, dependents and sexual orientation. These would later become the nine S75 equality cqategories.

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