A legal dispute against the Minister of Education over Covid testing in public schools will be heard by the Privy Council in London in November.

The appellant, a minor whose case was taken up by her father, challenged rules put in place in 2022 that required public school students to take part in routine testing as a condition of entry.

While the case was unsuccessful in the Supreme Court and the Court of Appeal, the parent was granted permission to bring the case to the Privy Council — the island’s highest appeal court — in 2024.

According to the Privy Council website, the case is to be heard on November 11, although that date is subject to change.

The case for the parent was first brought in 2021 against a decision by Diallo Rabain, the education minister, requiring routine testing of children as a condition of entry to government schools.

The rules, which were later lifted, also required schools to get 80 per cent student participation in the Covid-19 saliva-screening programme to remain open.

It was argued by the parent that the mandatory testing regime breached the appellant’s constitutional right to not be searched without consent, that the regime was not based on local authority and breached the principle of legality.

In the Supreme Court, the parent testified that he believed his ten-year-old daughter had been pressured into submitting to the tests and raised concerns over the quality of remote learning compared with being in the classroom.

The parent, represented in the Supreme Court by lawyer Peter Sanderson, sought damages on constitutional grounds, along with harm suffered.

Mr Sanderson’s argument challenged the minister’s power to declare the policy without going to Parliament to settle the matter in law, and alleged that the test for the virus constituted a “search” under the constitutional right to protection for privacy.

However, in a 2022 ruling, Chief Justice Narinder Hargun dismissed the application for judicial review and constitutional relief.

Mr Justice Hargun ruled that children had a choice of school or home learning “until conditions improve” and the saliva test was “not unduly invasive”.

He wrote that the policy was in place “not only to help reopen the schools safely but to keep schools open for the learning and wellbeing of all students”.

The Court of Appeal upheld Mr Justice Hargun’s ruling in 2023 finding the appeal “unsustainable” as no constitutional breach was established.

However, the court allowed the parent to appeal the case to the Privy Council with Sir Christopher Clarke stating that the court’s finding “did not deprive the issue of its genuine disputability”.

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