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R (on the application of Begum (by her litigation friend, Rahman)) v Headteacher and Governors of Denbigh High School, House of Lords, 22 March 2006

30 March 2006
The issues

Human Rights Article 2, right to education; Article 9, right to manifest religion and beliefs:

School uniform – school’s role in enforcing school uniform.

The facts

Denbigh school was a maintained secondary community school taking children of both sexes between 11 and 16. It had 21 different ethnic groups in its intake and 10 religious groupings represented. 79% of its children were Muslim, the percentage having fallen from 90% in 1993. It was not a faith school and was open to children of all faiths. The governing body of the school contained a representation of different sections of the school community. 4 of the 6 parent governors were Muslim and the chairman of the Luton Council of Mosques was the community governor. 3 of the LEA governors were also Muslim. The headteacher had been born into a Bengali Muslim family.

Due to the view that the school uniform played a integral part in securing high standards and promoted a sense of communal identity and also avoided manifest disparities of wealth and style. Three uniform options were offered. One was the shalwar kameeze. In 1993 a working party had been appointed by the school to re-examine the dress code. Consultations were made with the parents, students, staff and the Imams of the three local Mosques. No objection was made to the shalwar kameeze. Following the working party report the governors approved the wearing of head scarves of a specified colour and quality.

The respondent child was Muslim. She lived with her mother and a brother, Rahman, who was 5 years older. The family lived outside the catchment area but chose it for the respondent child and her elder sister and were told of the school’s uniform policy. For 2 years before September 2002 the respondent wore the shalwar kameeze without complaint. On the 3rd September 2002 the respondent, then 14 went to the school with her brother and another young man. They insisted that the respondent be allowed to attend the school wearing the long garment she had on that day which was known as the jilbab. They talked of Human Rights and legal proceedings. The assistant headteacher who spoke to them told the respondent to go home, change and return wearing school uniform.

They wrote to the respondent’s mother and brother setting out an account of the incident and that the school uniform rules were reasonable and should be complied with. She said that the matter would be referred to the Educational Welfare Service should the respondent fail to attend school.

On the 4th September 2002 a member of the support team telephoned the respondent’s house to be told by a male member of the family that the respondent was seeing a solicitor and was going to sue the school. In December 2002 the school and the LEA sought independent advice on whether the school uniform offended the Islamic dress code. Two Mosques in Luton, the London Central Mosque Trust and the Islamic Cultural Centre advised that it did not. In February 2004 the respondent issued a claim for Judicial review. Since then a number of Muslim girls at the school have said that they do not wish to wear the jilbab and feared that they would be pressured into wearing it. They were concerned that they would suffer as they have suffered in the past the ill effects of groups of pupils defining themselves along racial lines and consequent conflict between them. The uniform had been designed to avoid the development of such groups identified by dress. The respondent brought her claim alleging a breach of Article 9, of the Convention of Human Rights, ie: freedom of thought, conscience and religion and breach of Article 2 of the first protocol, right to education.

The decision

It was common ground at all material times the respondent sincerely held the religious belief which she professed to hold. It was a religious belief not withstanding that it might have been a belief shared by a small minority of people. Article 9 was therefore engaged or applicable.

The question remained whether the respondent’s freedom to manifest her belief by her dress was subject to limitation within the meaning of Article 9 and if so whether that limitation was justified.

The Strasbourg jurisprudence established that Article 9 did not protect every act, motivated or inspired by religion or belief and that in exercising an individual’s freedom to manifest his religion an individual might need to take his specific situation into account. See Kalac -v- Turkey.

The Strasbourg Court had not been ready to find an interference with the right to manifest belief in practice or observance where a person voluntarily accepted an employment or role which did not accommodate that practice or observance and where there were other means open to the person to practice or observe his or her religion without undue hardship or inconvenience. In Kjeldsen -v- Denmark a parent’s philosophical and religious objection to sex education in state school was rejected as a breach on the ground that they could send their children to state schools or educate them at home.

Karaduman -v- Turkey was a strong case in which the applicant was denied a certificate of graduation because a photograph of her without a headscarf was required and she was unwilling for religious reasons to be photographed without a head scarf. No interference with her Article 9 right was found because by choosing to pursue her higher education in a sexually university student was held to submit to those university rules which might make the freedom of students to manifest their religion subject to restrictions as to place and manner intended to ensure harmonious co-existence between students of different beliefs.

In short, even if it were accepted that the Strassborg Court had erred on the side of strictness in rejecting complaints of interference there remained a coherent and remarkably consistent body of authority which the domestic Court had to take into account and which showed that interference was not easily established.

Here the respondent’s family had chosen for her a school outside their catchment area. It was a school which went to unusual lengths to inform parents of its uniform policy. There were 3 schools in the area where wearing of the jilbab was permitted. Although the respondent’s case was that her application for admission to one had been unsuccessful, and it was asserted that the other two were more distant there was no evidence to show that there was any real difficulty in her attending one or other of these schools had she wished to. There was therefore no interference with the respondent’s right to manifest her belief in practice or observance.

If there had been an interference the issue of justification would have been relevant. To be justified under Article 9 (2) a limitation or interference had to be prescribed by law and necessary in a democratic society for a permissible purpose. That is that it had to be directed to a legitimate purpose and had to be proportionate in scope and effect. The Court of Appeal had considered whether the rules and the school’s insistence on them were in all the circumstances proportionate. This posed an important question as to the Court’s approach to proportionality.

The Court of Appeal had set the school an examination paper (per Lord Hoffman) which was a series of questions or a process of reasoning which they felt the school should have applied itself to. In fact, the school had not adopted this procedure at all. The approach recommended by the Court was mistaken in domestic judicial review the Court was usually concerned with whether the decision maker reached a decision in the right way and whether he got what the Court might think to be the right answer. Ariticle 9 was concerned however with substance, not procedure. It conferred no right to have a decision made in a particular way. What mattered was the result. Following the approach of the Court of Appeal would introduce “a new formalism” and be “recipe for judicialisation on an unprecedented scale” (per Lord Bingham). What mattered was the practical outcome, not the quality of the decision making process that led to it.

On the agreed facts the school was fully justified in acting as it did. It had taken immense pains to devise a uniform policy which respected Muslim beliefs and did so in an inclusive, unthreatening and uncompetitive way. The rules laid down were as far from being mindless as uniform rules could ever be. The school had enjoyed a period of harmony and success to which the uniform policy was thought to contribute. The rules were acceptable to mainstream Muslim opinion. It would be irresponsible of any Court lacking experience, background and detailed knowledge of the headteacher, staff and governors to over rule their judgement on a matter as sensitive as this. The power of decision had been given to them for the compelling reason that they were best placed to exercise it. The House saw no reason to disturb their decision.
Was there a breach of Article 2?

The question was whether between September 2002 and a date two days later when the respondent went to another school the LEA and school denied her access to the general level of educational provision available in the country. They had not done. The respondent’s absence from school as a result of her unwillingness to comply with the rule to which the school were entitled to adhere.

Finally, it had been argued that the respondent had been unlawfully excluded. It was clear however on the fact that the school did not intend to exclude the respondent in the statutory sense of the word or believe that it was doing so.

Appeal allowed.

Note Lord Nicholls and Lady Hale agreed with the conclusion of the majority save that in their view there had been an interference with the respondent’s right to manifest her religion in the banning of the jilbab but that nonetheless that interference was justified.

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