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Judgments - Regina v. Secretary of State for Education and Employment and others (Respondents) ex parte Williamson (Appellant) and others

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Regina v. Secretary of State for Education and Employment and others (Respondents) ex parte Williamson (Appellant) and others

[2005] UKHL 15

LORD BINGHAM OF CORNHILL

My Lords,

    1. I have had the benefit of reading the opinions of my noble and learned friends Lord Nicholls of Birkenhead and Lady Hale of Richmond. I agree with them both, and for the reasons they give I would dismiss this appeal.

LORD NICHOLLS OF BIRKENHEAD

My Lords,

    2. Corporal punishment of children is a controversial subject. It arouses strong feelings, both for and against. In this country there is now a total ban on the use of corporal punishment in all schools. The claimants in these proceedings contend this ban is incompatible with their Convention rights under the Human Rights Act 1998.

    3. The present state of the law has developed in stages over the last 20 years. In the 1970s two mothers, Mrs Campbell from Strathclyde and Mrs Cosans from Fife, objected to their children being subjected to corporal punishment in state schools. Their complaint to the European Court of Human Rights was upheld. The state had failed to respect their 'philosophical convictions' on this subject, contrary to article 2 of the First Protocol to the European Convention on Human Rights: Campbell and Cosans v United Kingdom (1982) 4 EHRR 293. That was in 1982. Parliament then changed the law, by the Education (No 2) Act 1986, section 47. Since 1987 school teachers in maintained schools (state schools) have had no right to administer corporal punishment to school pupils. This ban applied also to children attending non-maintained schools (independent schools) who received public funding, for instance, under the assisted places scheme.

    4. In 1993, in response to the decision of the European Court of Human Rights in Costello-Roberts v United Kingdom (1993) 19 EHRR 112, Parliament intervened again. This time the intervention was aimed at the severity with which corporal punishment could be administered at school to children outside the scope of the 1986 Act, that is, privately-funded children at independent schools. Article 3 of the European Convention imposes on states a positive obligation to take steps to ensure individuals are not subjected to inhuman or degrading punishment. The steps taken by the state should provide effective protection, in particular, for children and other vulnerable individuals: Z v United Kingdom (2001) 34 EHRR 97, 131, para 73. In order to comply with this obligation Parliament enacted that corporal punishment of children could not be justified if it was 'inhuman or degrading': section 293 of the Education Act 1993. In deciding whether punishment is inhuman or degrading regard should be had to all the circumstances, including the reason for giving the corporal punishment, how soon after the event it was given, its nature, the manner and circumstances in which it was given, the persons involved, and its mental and physical effects.

    5. The next stage in the development of the law was the extension of the ban on the use of corporal punishment to all pupils attending all types of school. That was in 1998. So now the ban applies to privately-funded children attending independent schools. It is this extension of the ban which is under challenge in these proceedings. Unlike Mrs Campbell and Mrs Cosans, the claimants in the present proceedings do not object to the use of corporal punishment. Quite the contrary: they support the use of corporal punishment and object to the statutory ban. So the present case raises the converse of the issue raised in the Campbell and Cosans case.

    6. The statutory ban imposed in 1986 and extended in 1998 applies to corporal punishment given by school teachers and other members of staff at a school. It does not apply to corporal punishment given by a child's parent. Very recently Parliament intervened in this field as well. Parliament has now strictly limited the severity of the corporal punishment a parent may lawfully give his child. Punishment of a child which caused 'actual bodily harm' cannot be justified, either in civil proceedings or in respect of certain criminal offences, on the ground that it constituted reasonable punishment: section 58 of the Children Act 2004. Thus, to be lawful, corporal punishment administered by a parent must stop short of causing actual bodily harm. This further provision does not directly affect these proceedings, although it forms part of the present-day background.

    7. Additionally, it should be noted that in 2003 a ban was introduced on child minders smacking children ('shall not give corporal punishment to a child for whom he acts as a child minder or provides day care'): see the Day Care and Child Minding (National Standards) (England) Regulations 2003, SI 2003/1996, para 5.

The claimants

    8. The claimants in these proceedings are head teachers, teachers and parents of children at four independent schools. The schools are the Christian Fellowship School at Edge Hill, Liverpool, Bradford Christian School at Idle, Bradford, Cornerstone School at Epsom, Surrey, and King's School at Eastleigh, Hampshire. The claimants' principal claim is that the extended statutory ban is incompatible with their Convention right to freedom of religion and freedom to manifest their religion in practice, a right guaranteed under article 9 of the Convention on Human Rights. The proceedings failed in both courts below: see Elias J [2002] ELR 214 and the Court of Appeal, comprising Buxton, Rix and Arden LJJ, [2003] QB 1300. Although the judges differed somewhat in their reasons, each judgment contains a valuable discussion of the underlying principles of human rights law.

    9. The claimants claim to speak on behalf of a 'large body of the Christian community' in this country whose 'fundamental beliefs' include a belief that 'part of the duty of education in the Christian context is that teachers should be able to stand in the place of parents and administer physical punishment to children who are guilty of indiscipline'. They reject the general standards of state education available in this country as not fitting their religious and moral beliefs. They believe that, correctly used, 'discipline of this type is an effective deterrent against behaviour that is unacceptable in the community'. The object is 'not to injure but to give an unequivocal message of unacceptable behaviour that will not be tolerated'. The aim is 'to help form godly character'. The claimants are reticent about the name, organisation and other particular beliefs of the group of which they are members, stating only they are all 'practising Christians' and that there are 40 schools conducted in accordance with these beliefs.

    10. The claimants' beliefs regarding the use of corporal punishment by both parents and teachers are based on their interpretation of certain passages in the Bible. For instance, 'He who spares the rod hates his son, but he who loves him is diligent to discipline him': Proverbs 13:24. They say the use of 'loving corporal correction' in the upbringing of children is an essential of their faith. They believe these biblical sources justify, and require, their practices. Religious liberty, they say, requires that parents should be able to delegate to schools the ability to train children according to biblical principles. In practice the corporal punishment of boys takes the form of administering a thin, broad flat 'paddle' to both buttocks simultaneously in a firm controlled manner. Girls may be strapped upon the hand. The child is then comforted by a member of the staff and encouraged to pray. The child is given time to compose himself before returning to class. There is no question of 'beating' in the traditional sense. 'Smacking' would be closer to the mark: see Elias J [2002] ELR 214, 216-217, para 4. In practice the schools rarely resort to corporal punishment.

Section 548 of the Education Act 1996

    11. The statutory provision under challenge is section 548(1) of the Education Act 1996, as amended by the School Standards and Framework Act 1998. The first issue in these proceedings concerns the proper interpretation of this provision. Section 548(1) provides:

    'Corporal punishment given by, or on the authority of, a member of staff to a child-

    (a) for whom education is provided at any school....

    cannot be justified in any proceedings on the ground that it was given in pursuance of a right exercisable by the member of staff by virtue of his position as such.'

    Corporal punishment means punishment which, justification apart, constitutes battery: section 548(4). Member of staff includes a teacher at the school in control or charge of the child: section 548(6). Child means a person under the age of 18: section 548(7).

    12. The claimants contend this statutory provision does not apply where parents, having the common law right to discipline their child, expressly delegate this right to a teacher. Then the teacher is exercising an expressly delegated power, not acting as a teacher 'as such'. This interpretation of section 548 would, it is said, accord proper respect to the deliberate decision of parents in respect of the education and disciplining of their children.

    13. I consider this interpretation of section 548 is not tenable. It is unnecessary to consider the origins of a teacher's disciplinary powers in relation to school pupils or the extent to which a parent's disciplinary powers are expressly delegable. Suffice to say, the plain purpose of section 548(1) was to prohibit the use of corporal punishment by all teachers in all schools. The claimants' interpretation, if right, would defeat this purpose. The claimants' interpretation would mean the ban on the use of corporal punishment by teachers could be side-stepped by parents expressly giving their consent to the infliction of corporal punishment on their child. Thus the ban would not be mandatory in its operation. It would be optional, at the choice of the parents.

    14. In my view the phrase 'by virtue of his position as such' in section 548(1)(a) is apt to limit the application of section 548(1) to corporal punishment given by a teacher while acting as a teacher, that is, while discharging his functions as a teacher. It excludes cases where, for example, a teacher is himself a parent and is acting in that capacity when punishing a child. Read in context, this phrase is not apt to draw a distinction between cases where the teacher has been expressly authorised by the parents and cases where he has not. In the former case as much as the latter administration of corporal punishment by a teacher derives from a right exercisable by him by virtue of his position as a teacher within the meaning of section 548.

Freedom of belief and the Convention rights

    15. I turn to the claims based on the claimants' Convention rights. Religious and other beliefs and convictions are part of the humanity of every individual. They are an integral part of his personality and individuality. In a civilised society individuals respect each other's beliefs. This enables them to live in harmony. This is one of the hallmarks of a civilised society. Unhappily, all too often this hallmark has been noticeable by its absence. Mutual tolerance has had a chequered history even in recent times. The history of most countries, if not all, has been marred by the evil consequences of religious and other intolerance.

    16. It is against this background that article 9 of the European Convention on Human Rights safeguards freedom of religion. This freedom is not confined to freedom to hold a religious belief. It includes the right to express and practise one's beliefs. Without this, freedom of religion would be emasculated. Invariably religious faiths call for more than belief. To a greater or lesser extent adherents are required or encouraged to act in certain ways, most obviously and directly in forms of communal or personal worship, supplication and meditation. But under article 9 there is a difference between freedom to hold a belief and freedom to express or 'manifest' a belief. The former right, freedom of belief, is absolute. The latter right, freedom to manifest belief, is qualified.

    17. This is to be expected, because the way a belief is expressed in practice may impact on others. Familiar instances of conduct shaped by particular religious beliefs are the days or times when worship is prescribed or encouraged, the need to abstain from work on certain days, forms of dress, rituals connected with the preparation of food, the need for total abstinence from certain types of food or drink, and the need for abstinence from all or some types of food at certain times. In a more generalised and non-specific form the tenets of a religion may affect the entirety of a believer's way of life: for example, 'thou shalt love thy neighbour as thyself'. The manner in which children should be brought up is another subject on which religious teachings are not silent. So in a pluralist society a balance has to be held between freedom to practise one's own beliefs and the interests of others affected by those practices.

    18. Article 9 provides:

    '1. Everyone has the right to freedom of thought, conscience and religion; this right includes ... 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.'

    19. The importance of this right is emphasised in the Human Rights Act 1998. It is one of the two Convention rights singled out for special mention, the other being freedom of expression. Section 13(1) of the Act provides:

    'If a court's determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right.'

    20. Article 2 of the First Protocol to the European Convention on Human Rights is also material in the present case in so far as it requires the state to respect the right of parents to ensure their children's education conforms to the parents' religious and philosophical convictions:

    '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.'

    21. In the present case there is no reason to doubt the claimants hold the beliefs they profess. That is not challenged. But the Secretary of State has mounted a root-and-branch attack on almost every other aspect of the claimants' case. The claimants' rights under article 9 and article 2 of the First Protocol, it is said, are not engaged. It is said that the claimants' beliefs are not sufficiently cogent, serious, cohesive or important to attract the protection of either of these Convention articles. Even if they are, neither the claimant parents nor the claimant teachers are exercising a right to 'manifest' a religious belief under article 9. Nor can the infliction of corporal punishment be regarded as part of the claimant parents' religious convictions within the meaning of article 2 of the First Protocol. Further, in any event there has been no interference with the claimants' rights under those articles. If there has been any interference, it is justified.

The claimants' beliefs

    22. It is necessary first to clarify the court's role in identifying a religious belief calling for protection under article 9. When the genuineness of a claimant's professed belief is an issue in the proceedings the court will inquire into and decide this issue as a question of fact. This is a limited inquiry. The court is concerned to ensure an assertion of religious belief is made in good faith: 'neither fictitious, nor capricious, and that it is not an artifice', to adopt the felicitous phrase of Iacobucci J in the decision of the Supreme Court of Canada in Syndicat Northcrest v Amselem (2004) 241 DLR (4th) 1, 27, para 52. But, emphatically, it is not for the court to embark on an inquiry into the asserted belief and judge its 'validity' by some objective standard such as the source material upon which the claimant founds his belief or the orthodox teaching of the religion in question or the extent to which the claimant's belief conforms to or differs from the views of others professing the same religion. Freedom of religion protects the subjective belief of an individual. As Iaccobucci J also noted, at page 28, para 54, religious belief is intensely personal and can easily vary from one individual to another. Each individual is at liberty to hold his own religious beliefs, however irrational or inconsistent they may seem to some, however surprising. The European Court of Human Rights has rightly noted that 'in principle, the right to freedom of religion as understood in the Convention rules out any appreciation by the state of the legitimacy of religious beliefs or of the manner in which these are expressed': Metropolitan Church of Bessarabia v Moldova (2002) 35 EHRR 306, 335, para 117. The relevance of objective factors such as source material is, at most, that they may throw light on whether the professed belief is genuinely held.

    23. Everyone, therefore, is entitled to hold whatever beliefs he wishes. But when questions of 'manifestation' arise, as they usually do in this type of case, a belief must satisfy some modest, objective minimum requirements. These threshold requirements are implicit in article 9 of the European Convention and comparable guarantees in other human rights instruments. The belief must be consistent with basic standards of human dignity or integrity. Manifestation of a religious belief, for instance, which involved subjecting others to torture or inhuman punishment would not qualify for protection. The belief must relate to matters more than merely trivial. It must possess an adequate degree of seriousness and importance. As has been said, it must be a belief on a fundamental problem. With religious belief this requisite is readily satisfied. The belief must also be coherent in the sense of being intelligible and capable of being understood. But, again, too much should not be demanded in this regard. Typically, religion involves belief in the supernatural. It is not always susceptible to lucid exposition or, still less, rational justification. The language used is often the language of allegory, symbol and metaphor. Depending on the subject matter, individuals cannot always be expected to express themselves with cogency or precision. Nor are an individual's beliefs fixed and static. The beliefs of every individual are prone to change over his lifetime. Overall, these threshold requirements should not be set at a level which would deprive minority beliefs of the protection they are intended to have under the Convention: see Arden LJ [2003] QB 1300, 1371, para 258.

    24. This leaves on one side the difficult question of the criteria to be applied in deciding whether a belief is to be characterised as religious. This question will seldom, if ever, arise under the European Convention. It does not arise in the present case. In the present case it does not matter whether the claimants' beliefs regarding the corporal punishment of children are categorised as religious. Article 9 embraces freedom of thought, conscience and religion. The atheist, the agnostic, and the sceptic are as much entitled to freedom to hold and manifest their beliefs as the theist. These beliefs are placed on an equal footing for the purpose of this guaranteed freedom. Thus, if its manifestation is to attract protection under article 9 a non-religious belief, as much as a religious belief, must satisfy the modest threshold requirements implicit in this article. In particular, for its manifestation to be protected by article 9 a non-religious belief must relate to an aspect of human life or behaviour of comparable importance to that normally found with religious beliefs. Article 9 is apt, therefore, to include a belief such as pacifism: Arrowsmith v United Kingdom (1978) 3 EHRR 218. The position is much the same with regard to the respect guaranteed to a parent's 'religious and philosophical convictions' under article 2 of the First Protocol: see Campbell and Cosans v United Kingdom 4 EHRR 293.

    25. I turn to apply this approach in the present case. Here, different claimants express their beliefs with different emphases. This is to be expected. The underlying rationale is expressed in different terms. In practice the circumstances in which corporal punishment is administered differ. These individual variations do not mean each individual cannot hold what is, to him or her, a coherent belief on a matter of importance.

    26. More difficult is the question whether the claimants' beliefs are compatible with today's standards of human integrity. Clearly, corporal punishment can be inflicted on a child in a way which would be incompatible with those standards. Belief in the use of corporal punishment of that nature would not be protected by article 9. But corporal punishment need not be administered with such severity or in such circumstances that it will significantly impair a child's physical or moral integrity. In Costello-Roberts v United Kingdom (1993) 19 EHRR 112 the corporal punishment administered to the claimant boy by the headmaster of an independent school comprised three 'whacks' on his bottom through his shorts with a rubber-soled gym shoe in private. The European Court of Human Rights rejected the claim based on article 3. The court also rejected the claim based on article 8 (respect for private life). The court left open the possibility there may be circumstances where article 8 could afford, in respect of disciplinary measures, protection going beyond article 3. But the court considered the boy's treatment in that case 'did not entail adverse effects for his physical or moral integrity sufficient to bring it within the scope of the prohibition contained in Article 8': para 36.

    27. The particular relevance of this decision for present purposes is this. Corporal punishment, even corporal punishment administered by teachers at school, can be administered in widely differing circumstances, in widely differing ways and with widely differing degrees of severity. Not surprisingly, in the Costello-Roberts case the European Court of Human Rights confirmed that not every act of corporal punishment of a child at school violates article 3 or article 8, even though to some extent it may adversely affect a child's physical and moral integrity. Not every act of corporal punishment will adversely affect a child's physical and moral integrity to an extent sufficient to constitute a violation of those articles. This being so, it is difficult to see how all corporal punishment of children, however mildly administered, is of its nature so contrary to a child's integrity that a belief in its infliction is necessarily excluded from the protection of article 9. It is difficult to see how corporal punishment, administered in circumstances and in a way which does not violate articles 3 or 8, can at the same time be so contrary to personal integrity that belief in its administration is ipso facto excluded from the scope of article 9.

    28. The Secretary of State did not submit that all forms of corporal punishment necessarily constitute a violation of article 3. But the Secretary of State submitted that corporal punishment administered by teachers is contrary to human dignity. However lovingly intended, corporal punishment by teachers at school involves the intentional and formalised infliction of violence by an adult on a child in an institutional setting.

    29. This is a forceful submission. But, for the reason just given, it is too wide. In recent years the standard of what is an acceptable form of discipline for children has changed markedly. Personal and professional opinions on the desirability of corporal punishment of children have shifted. This trend is reflected by the recent amendment in the law, made by section 58 of the Children Act 2004, restricting the extent to which parents may punish their own children in this way. But to say that a belief in the desirability of even a mild degree of corporal punishment by a teacher ('smacking', to adopt Elias J's description in the present case) violates a child's integrity to such an extent that manifestation of this belief is outside article 9 and article 2 of the First Protocol seems to me unwarranted. That would go too far. I proceed on this footing.

Manifesting the claimants' beliefs in practice

    30. In the present case a further prerequisite must be satisfied before article 9 is engaged. Article 9 is not engaged unless the complainants' activity under consideration is within the scope of the protection the article affords to the complainants' beliefs. As to this, the Strasbourg jurisprudence has consistently held that article 9 does not protect every act motivated or inspired by a religion or belief. Article 9 does not 'in all cases' guarantee the right to behave in public in a way 'dictated by a belief': see, most recently, the decision of the European Court of Human Rights regarding the wearing of an Islam headscarf in Sahin v Turkey Application No 44774/98 (29 June 2004), para 66.

    31. Clearly this is right. Miss Arrowsmith distributed leaflets to soldiers, urging them to decline service in Northern Ireland. This was dictated by her pacifist views. But the contents of the leaflets did not express pacifist views, nor did the act of distributing the leaflets do so. She was not thereby manifesting her pacifism: Arrowsmith v United Kingdom 3 EHRR 218.

    32. Thus, in deciding whether the claimants' conduct constitutes manifesting a belief in practice for the purposes of article 9 one must first identify the nature and scope of the belief. If, as here, the belief takes the form of a perceived obligation to act in a specific way, then, in principle, doing that act pursuant to that belief is itself a manifestation of that belief in practice. In such cases the act is 'intimately linked' to the belief, in the Strasbourg phraseology: see Application 10295/82 v United Kingdom (1983) 6 EHRR 558. This is so whether the perceived obligation is of a religious, ethical or social character. If this were not so, and if acting pursuant to such a perceived obligation did not suffice to constitute manifestation of that belief in practice, it would be difficult to see what in principle suffices to constitute manifestation of such a belief in practice. I do not read the examples of acts of worship and devotion given by the European Commission in Application 10295/82 v United Kingdom as exhaustive of the scope of manifestation of a belief in practice.

 
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