UK: Of School Uniforms and Proportionality...

Last Updated: 24 April 2006
Article by Nicholas Dobson

The long battle of the Luton school uniform has ended as it begun with victory for the school. For (after a March 2005 diversion in the Court of Appeal) the House of Lords on 22 March 2006 restored the original decision of the High Court on 15 June 2004. This was that the refusal by Denbigh High School in Luton to allow a pupil to attend unless she wore prescribed school uniform did not constitute an interference with the pupil's right to manifest her belief in practice or observance. The Court of Appeal had been mistaken in directing the detailed procedural approach it had. The case in question is R (Begum (by her litigation friend, Rahman) v Headteacher and Governors Denbigh High School [2006] UKHL 15).

However, Lord Bingham emphasised that this case concerned 'a particular pupil and a particular school in a particular place at a particular time'. For the House of Lords 'is not, and could not be, invited to rule whether Islamic dress, or any feature of Islamic dress, should or should not be permitted in the schools of this country.' He considered that that 'would be a most inappropriate question for the House in its judicial capacity' and did not seek to address it.

Background

The School's dress code had been introduced following extensive consultation. One of the uniform options offered by the code was the shalwar kameeze which Lord Bingham noted was 'combination of the kameeze, a sleeveless smocklike dress with a square neckline, revealing the wearer's collar and tie, with the shalwar, loose trousers, tapering at the ankles'. For two years before the material date of 3 September 2002 (the first day of the autumn term) the respondent pupil, Shabina Begum, had worn the shalwar kameeze happily and without complaint. It was also worn by the respondent's sister who continued to wear it without objection throughout her time at the school. However, on that date the respondent, who was then aged nearly 14, went to the school with her brother and another young man and, in the absence of the headteacher, spoke to the assistant head. They insisted that the respondent be allowed to attend school clothed as she was in the jilbab, which was a 'long coat-like garment'. This was for religious reasons since the jilbab concealed the contours of the female body to a greater extent than the shalwar kameeze and was consequently said to be appropriate for maturing girls. The men 'talked of human rights and legal proceedings' and the assistant head 'felt that their approach was unreasonable and he felt threatened'.

The head teacher subsequently wrote to the respondent's mother and brother indicating (amongst other things) that the uniform had been agreed with the governing body and that the head teacher's view and that of the LEA was that the school uniform rules were more than reasonable in taking into account cultural and religious concerns. A committee of the governors subsequently upheld the head teacher's decision. The Education Welfare Service had offered to help the respondent with a transfer to another school if she wished. Whilst she applied to one school which was full she was told of two other schools where she could wear the jilbab but she did not apply to them.

Article 9 of the European Convention on Human Rights (Freedom of thought, conscience and religion) provides that:

'1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2 . Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.'

The High Court

Bennett J in his June 2004 judgment had (amongst other things) considered that:

'. . .the school uniform policy and its enforcement has, and continues to have, a legitimate aim and is proportionate. The legitimate aim was the proper running of a multi-cultural, multi-faith, secular school. The limitation was also proportionate to the legitimate aim pursued. The limitation was specifically devised with the advice of the Muslim community. Although it appears that there is a body of opinion within the Muslim faith that only the jilbab meets the requirements of its dress code there is also a body of opinion that the Shalwar Kameeze does as well. In my judgment, the adoption of the Shalwar Kameeze by the Defendant as the school uniform for Muslim (and other faiths) female pupils was and continues to be a reasoned, balanced, proportionate policy.'

The Court of Appeal

The Court of Appeal took the view the School had approached the matter in the wrong way in starting from the premise that its uniform policy was there to be obeyed and if the Claimant did not like it she could go to a different school. The decision-making structure should therefore be along the following lines:

  1. Has the Claimant established that she has a relevant Convention right which qualifies for protection under Article 9(1)?
  2. Subject to any justification that is established under Article 9(2), has that Convention right been violated?
  3. Was the interference with her Convention right prescribed by law in the Convention sense of that expression?
  4. Did the interference have a legitimate arm?
  5. What are the considerations that need to be balanced against each other when determining whether the interference was necessary in a democratic society for the purpose of achieving that aim?
  6. Was the interference justified under Article 9(2)?

In the circumstances, Brooke LJ had considered that the School was not entitled to resist the declarations sought by the Claimant, namely that:

  1. That it unlawfully excluded her from school;
  2. That it unlawfully denied her the right to manifest her religion;
  3. That it unlawfully denied her access to suitable and appropriate education.

However, Brooke LJ did indicate that nothing in the judgment should be taken as meaning that it would be impossible for the School to justify its stance if it were to reconsider its uniform policy in the light of the instant judgment and were to determine not to alter it in any significant respect. The Court detailed some matters including which the School (and other schools facing a similar question) would no doubt need to consider and indicated that it may be desirable for DfES to give schools further guidance in the light of this judgment.

The House of Lords

However, the House of Lords saw things rather differently. Lord Bingham agreed with an academic commentator that the Court of Appeal's approach would introduce 'a new formalism' and be 'a recipe for judicialisation on an unprecedented scale'. In noting the academic view that the 'retreat to procedure is of course a way of avoiding difficult questions', he expressed the view that the court must confront the questions before it 'however difficult'.

Lord Bingham noted that Article 9 protects both the right to hold a belief, which is absolute, and a right to manifest belief, which is qualified. He said that it was common ground that at all material times the respondent sincerely held the religious belief in question which was not the less a religious belief because her belief may have changed (as it probably did) or because it was a belief shared by a small minority. In his view, the main questions for consideration were whether the respondent's freedom to manifest her belief was subject to interference within Article 9(2) and if so whether such interference was justified.

Interference with the Article 9 right to freedom of thought, conscience and religion

He noted that the Strasbourg institutions 'have not been at all ready to find an interference with the right to manifest religious belief in practice or observance where a person has voluntarily accepted an employment or role which does not accommodate that practice or observance and there are other means open to the person to practise or observe his or her religion without undue hardship or inconvenience'. In the present case the respondent's family had chosen for her a school outside their own catchment area and one 'which went to unusual lengths to inform parents of its uniform policy'. Also, the shalwar kameeze and not the jilbab was worn by the respondent's elder sister throughout her time at the school and by the respondent herself for her first two years without objection. There was no evidence to show that there was any real difficulty in her attending one or other of these schools as she did in fact do 'and could no doubt have done sooner had she chosen'. Lord Bingham was therefore of the view that there was no interference with the respondent's right to manifest her belief in practice or observance.

Lord Hoffman, agreeing, indicated that Article 9 does not require that one should be allowed to manifest one's religion at any time and place of one's own choosing. For 'Common civility also has a place in the religious life'. He also upheld the essential public law principle (per Wednesbury) that it is 'for the courts of the United Kingdom to decide how the area of judgment. . .' allowed by the margin of appreciation '. . .should be distributed between the legislative, executive and judicial branches of government'. Lord Hoffman took the view that '. . .a domestic court should accept the decision of Parliament to allow individual schools to make their own decisions about uniforms'.

Justification for any interference

Lord Bingham pointed out that to be justified under Article 9(2) a limitation or interference must be (a) prescribed by law and (b) necessary in a democratic society for a permissible purpose i.e. directed to a legitimate purpose and proportionate in scope and effect. As indicated, Lord Bingham rejected the formalistic approach of the Court of Appeal for three main reasons:

  1. The Strasbourg focus is not and never has been on whether a challenged decision or action is the product of a defective decision-making process but on whether the applicant's Convention rights have been violated.
  2. The Court's approach to an issue of proportionality under the Convention must go beyond the traditional domestic approach to judicial review and requires the domestic court to make an evaluation by reference to the circumstances prevailing at the relevant time.
  3. As indicated, the Court of Appeal's approach would introduce a 'new formalism' and be 'a recipe for judicialisation on an unprecedented scale'. Lord Bingham considered that 'what matters in any case is the practical outcome, not the quality of the decision-making process that led to it'.

In the circumstances, Lord Bingham considered that the School was 'fully justified in acting as it did'. For whilst it had 'taken immense pains to devise a uniform policy which respected Muslim beliefs' it nevertheless 'did so in an inclusive, unthreatening and uncompetitive way'. He considered that the power of decision had been given to the School for the compelling reason that they are best placed to exercise it and he saw no reason to disturb their decision.

Right to Education

Article 2 of the First Protocol to the Convention provides that:

'No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.'

Lord Bingham found no breach of this right. Whilst a twoyear interruption in the respondent's education must always be a subject for profound regret, it was the result of the respondent's unwillingness to comply with a rule to which the school was entitled to adhere and her failure to secure prompt admission to another school where her religious convictions could be accommodated.

Conclusion

So, it turns out that the High Court was right all along. The Lords' decision will clearly have come as a great relief to schools (and to all other local authority decision-makers). For whilst they must clearly always take Convention rights properly into account, they will now not have to go through a tortured and detailed legal analysis before taking any decision affecting such rights. For as Lord Hoffman pointed out: 'Head teachers and governors cannot be expected to make such decisions with textbooks on human rights law at their elbows'.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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