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

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    33. This is not to say that a perceived obligation is a prerequisite to manifestation of a belief in practice. It is not: see, for instance, Syndicat Northcrest v Amselem 241 DLR (4th) 1, esp at 25-26, paras 46-50. I am concerned only to identify what, in principle, is sufficient to constitute manifestation in a case where the belief is one of perceived obligation.

    34. Take corporal punishment as an example. Taken by itself the act of inflicting corporal punishment says little, if anything, about the belief of the person administering the punishment. He may have no particular views about the desirability of corporal punishment, or he may have momentarily lost his self-control, or he may be acting pursuant to a deeply-held conviction that this form of punishment is divinely-ordained in the best interests of the child. In the latter instance the act of administering corporal punishment on a child is, for that person, an expression of his conviction in practice.

    35. In the present case the essence of the parents' beliefs is that, as part of their proper upbringing, when necessary children should be disciplined in a particular way at home and at school. It follows that when parents administer corporal punishment to their children in accordance with these beliefs they are manifesting these beliefs. Similarly, they are manifesting their beliefs when they authorise a child's school to administer corporal punishment. Or, put more broadly, the claimant parents manifest their beliefs on corporal punishment when they place their children in a school where corporal punishment is practised. Article 9 is therefore engaged in the present case in respect of the claimant parents.

    36. Similarly, and contrary to the Secretary of State's submissions, the claimant parents' rights under article 2 of the First Protocol are also engaged in this case. 'Education' in this article is wide enough to include the manner in which discipline is maintained in a school.

    37. Thus far under this head I have been considering the position of the claimant parents. I turn to the position of the claimant teachers. The right protected by the second sentence of article 2 of the First Protocol is, expressly, a right of the parents, not the teachers. Thus the claimant teachers have no claim under this article. As to article 9, the teachers' beliefs in this case are ancillary to those of the parents, in that their beliefs concern the role of schools in furthering the parents' obligations in respect of the upbringing of their children. The teachers do not assert a belief in the administration of corporal punishment irrespective of the wishes of the parents. They do not assert a belief to be obliged to administer corporal punishment separate from, or independently of, the parental obligations in this regard. So the teachers' beliefs do not call for separate consideration from those of the parents. The beliefs of the parents and the teachers stand or fall together under article 9.

Interference

    38. The next step is to consider whether section 548 constitutes an interference with the claimant parents' manifestation of their beliefs. What constitutes interference depends on all the circumstances of the case, including the extent to which in the circumstances an individual can reasonably expect to be at liberty to manifest his beliefs in practice. In the language of the Strasbourg jurisprudence, in exercising his freedom to manifest his beliefs an individual 'may need to take his specific situation into account': see Kalaç v Turkey (1997) 27 EHRR 552, 564, para 28. There a judge advocate in the air force was subjected to compulsory retirement on the ground he was known to have 'unlawful fundamentalist tendencies' which infringed the principle of secularism on which the Turkish nation was founded. The court held this did not amount to an interference with his rights guaranteed by article 9. In choosing to pursue a military career Kalaç accepted of his own accord a system of military discipline which by its nature implied the possibility of limitations incapable of being placed on civilians.

    39. In the present case there is no comparable special feature affecting the position of the claimant parents. Until section 548 of the Education Act 1996 was amended in 1998 the parents were at liberty to manifest their belief in corporal punishment as described above. Until then corporal punishment by parents and by teachers in private schools was a lawful activity. Thus the question is whether the 1998 amendment of the law interfered materially, that is, to an extent which was significant in practice, with the claimants' freedom to manifest their beliefs in this way. (In passing, I doubt whether by the use of the word 'impossible' in Jewish Liturgical Association Cha'are Shalom Ve Tsedek v France (2000) 9 BHRC 29, 46, para 80, the European Court of Human Rights was intending to enunciate a standard which is less protective. That would be inconsistent with the bedrock principle that human rights conventions are intended to afford practical and effective protection to human rights. The court's decision in that case was based on the apparent ease with which the applicant association could obtain supplies of 'glatt' kosher meat elsewhere, as noted in paragraphs 81-83 of its judgment.)

    40. In the present case the Secretary of State contended that section 548 did not interfere materially with the claimant parents' manifestation of their beliefs. He submitted that section 548 left open to the parents several adequate, alternative courses of action: the parents could attend school on request and themselves administer the corporal punishment to the child; or the parents could administer the desired corporal punishment when the child comes home after school; or, if the need for immediate punishment is part of the claimants' beliefs, they could educate their children at home.

    41. I cannot accept these suggested alternatives would be adequate. That a parent should make himself available on call to attend school to administer corporal punishment should his child be guilty of indiscipline deserving of such punishment strikes me as unrealistic for many parents. Parental administration of corporal punishment at home at the end of the day would be significantly different from immediate teacher administration of corporal punishment at school. As to home education, there is no reason to suppose that in general the claimant parents, or other parents with like beliefs, have the personal skills needed to educate their children at home or the financial means needed to employ home tutors. I consider section 548 does interfere materially with the claimant parents' rights under article 9 and article 2 of the First Protocol.

'Justification'

    42. The final step is to consider whether this interference is justified. In the case of article 9 the issue is whether the Secretary of State can show that section 548 satisfies the requirements of article 9(2). Here there is a procedural complication. This issue was raised at first instance. Elias J dismissed the Secretary of State's submissions with a degree of briskness: [2002] 2 ELR 214, 229, para 59. He said this is not one of those exceptional cases where the potential harm resulting from the manifestation of a belief is so plain that it is obvious on what ground the state has banned it. Not all corporal punishment is being treated as unlawful, only that practised in schools. There is no evidence it was appreciated that banning corporal punishment might conflict with the parents' human rights or, if appreciated, why it was felt justifiable to interfere with such rights. Without such evidence it was impossible to say whether the response was proportionate.

    43. In the Court of Appeal the Secretary of State did not raise this issue again. This was a considered and deliberate decision. Rix LJ expressed his 'unhappiness' that, in consequence, the submissions before the Court of Appeal did not include argument that a government ought to be entitled to legislate against all corporal punishment in schools, on an ultimate balance of the competing rights and interests involved: [2003] QB 1300, 1332-1335, paras 110-116. Buxton LJ also made plain his reservations, at page 1328, para 85.

    44. Before your Lordships' House the Secretary of State in his written case sought to resurrect this point. Mr Dingemans QC objected to this. He submitted that if the Secretary of State were given leave to raise the justification issue again, the hearing should be adjourned to enable the claimants to bring forward evidence on this issue.

    45. Without expressing any view on this procedural point the appellate committee invited both parties' counsel to present any oral arguments they wished, additional to their written arguments, on this justification issue. Counsel did so.

    46. I am in no doubt that, despite having abandoned the justification defence in the Court of Appeal, the Secretary of State should be at liberty to raise this point again. Clearly it would be unfortunate if this important issue were left unresolved. I am also satisfied the claimants have not made out a case for an adjournment. The justification issue was raised before the judge. The claimants have therefore already had due opportunity to bring forward their evidence on this issue. The Secretary of State's case on this issue before this House did not involve reliance on any new evidence.

    47. Moreover, and importantly, I am wholly unpersuaded that the evidence the claimants wish to adduce would assist in deciding the justification issue. The proposed new material would comprise psychiatric and other research evidence on the effect of corporal punishment, including in particular the effect of corporal punishment in an environment where 'the relationship between school and home is a crucial issue in the progress and development of each child', and parental evidence on the effect the ban on corporal punishment has had on their children since section 548 came into effect. But this evidence would resolve nothing. It is well known that different views are held on the desirability of the corporal punishment of children. Evidence by parents, experts and others that in their opinion corporal punishment has an overall beneficial effect, or that it may do so in certain circumstances, would be no more than evidence in support of one view on a much discussed social issue affecting every family.

    48. So I turn to the substance of this defence. The interference with the manifestation of the claimants' beliefs effected by section 548 readily meets the criterion that it must be prescribed by law. The ban has been prescribed by primary legislation in clear terms.

    49. Equally I am in no doubt this interference is, within the meaning of article 9, 'necessary in a democratic society ... for the protection of the rights and freedoms of others'. The statutory ban pursues a legitimate aim: children are vulnerable, and the aim of the legislation is to protect them and promote their wellbeing. Corporal punishment involves deliberately inflicting physical violence. The legislation is intended to protect children against the distress, pain and other harmful effects this infliction of physical violence may cause. That corporal punishment may have these harmful effects is self-evident.

    50. Further, the means chosen to achieve this aim are appropriate and not disproportionate in their adverse impact on parents who believe that carefully-controlled administration of corporal punishment to a mild degree can be beneficial, for this reason: the legislature was entitled to take the view that, overall and balancing the conflicting considerations, all corporal punishment of children at school is undesirable and unnecessary and that other, non-violent means of discipline are available and preferable. On this Parliament was entitled, if it saw fit, to lead and guide public opinion. Parliament was further entitled to take the view that a universal ban was the appropriate way to achieve the desired end. Parliament was entitled to decide that, contrary to the claimants' submissions, a universal ban is preferable to a selective ban which exempts schools where the parents or teachers have an ideological belief in the efficacy and desirability of a mild degree of carefully-controlled corporal punishment.

    51. Parliament was entitled to take this course because this issue is one of broad social policy. As such it is pre-eminently well suited for decision by Parliament. The legislature is to be accorded a considerable degree of latitude in deciding which course should be selected as the best course in the interests of school children as a whole. The subject has been investigated and considered by several committees, including the Plowden report 'Children and their Primary Schools' (1967, Central Advisory Council for Education (England)), the Elton report 'Discipline in Schools' (1989) and the Williams report 'Childhood Matters' (1996, the National Commission of Inquiry into the Prevention of Child Abuse). The issue was fully debated in Parliament. As mentioned in Wilson v First County Trust (No 2) [2004] 1 AC 816, 842-844, paras 62-67, the proportionality of a statutory measure is to be judged objectively and not by the quality of the reasons advanced in support of the measure in the course of parliamentary debate. But it can just be noted that the desirability or otherwise of overriding parental choice was a matter mentioned in the course of debate in both Houses of Parliament. In both Houses specific mention was made of the Convention rights of parents under article 2 of the First Protocol.

    52. For these reasons I am satisfied section 548 does not violate the rights of the claimants, either parents or teachers, under article 9. For the same reasons there has been no violation of the claimant parents' rights under article 2 of the First Protocol. I am fortified in these conclusions by the additional considerations mentioned by my noble and learned friends Lord Walker of Gestingthorpe and Baroness Hale of Richmond. The present case cannot be regarded as comparable to Campbell and Cosans v United Kingdom 4 EHRR 293. In the present case, unlike in the Campbell case, the claimants' beliefs involve inflicting physical violence on children in an institutional setting. Parliament was bound to respect the claimants' beliefs in this regard, but was entitled to decide that manifestation of these beliefs in practice was not in the best interests of children. I would dismiss this appeal.

LORD WALKER OF GESTINGTHORPE

My Lords,

    53. I have had the privilege of reading in draft the opinions of my noble and learned friends Lord Nicholls of Birkenhead and Baroness Hale of Richmond. I agree with them that this appeal should be dismissed, and I agree with their reasoning. But on some points I would, at least as a matter of emphasis, express my views a little differently. I shall therefore add a few observations of my own, although I am conscious that it may not be particularly helpful to multiply opinions in a case which has already produced such a variety of routes of reasoning by which to arrive at the same conclusion.

    54. In his written and oral submissions Mr Dingemans QC (for the appellants) devoted quite a lot of time to the meaning of "religion" in article 9. In my opinion it is certainly not necessary, and is probably not useful, for your Lordships to try to reach a precise definition. Courts in different jurisdictions have on several occasions had to attempt the task, often in the context of exemptions or reliefs from rates and taxes, and have almost always remarked on its difficulty. Two illuminating cases are the decisions of Dillon J in In re South Place Ethical Society [1980] 1 WLR 1565 and that of the High Court of Australia in Church of the New Faith v Commissioner of Pay-Roll Tax (Victoria) (1983) 154 CLR 120, both of which contain valuable reviews of earlier authority. The trend of authority (unsurprisingly in an age of increasingly multi-cultural societies and increasing respect for human rights) is towards a "newer, more expansive, reading" of religion (Wilson and Deane JJ in the Church of the New Faith case at p174, commenting on a similar trend in United States jurisprudence).

    55. There are two reasons why it is unnecessary for the House to grapple with the definition of religion. One is that article 9 protects, not just the forum internum of religious belief, but "freedom of thought, conscience and religion." This is coupled with the individual's (qualified) freedom "to manifest his religion or belief, in worship, teaching, practice and observance." Similarly article 2 of the First Protocol refers not just to religious beliefs but to "religious and philosophical convictions." Plainly these expressions cover a wider field than even the most expansive notion of religion. Pacifism, vegetarianism and total abstinence from alcohol are uncontroversial examples of beliefs which would fall within article 9 (of course pacifism or any comparable belief may be based on religious convictions, but equally it may be based on ethical convictions which are not religious but humanist: this was the sort of problem which confronted the United States Supreme Court in United States v Seeger 380 US 163 (1965), where the relevant statute recognised conscientious objection to military service only if it arose from "religious training and belief", which was elaborately defined as requiring belief in a Supreme Being and not including "essentially political, sociological, or philosophical views or a merely personal moral code.") It is to be noted that section 13 of the Human Rights Act 1998 is more restricted, referring to the exercise of article 9 rights "by a religious organisation (itself or its members collectively)." But little reliance was placed, in argument, on section 13.

    56. The other reason why the House need not grapple with the problem of definition is that it is not in dispute that Christianity is a religion, and that the appellants are sincere, practising Christians. Those who profess the Christian religion are divided among many different churches and sects, sometimes hostile to each other, which is a cause of both sadness and scandal. That some Christians should believe that the Bible not merely permits but enjoins them to have corporal punishment administered to their children may be surprising to many, but it is by no means an extreme instance. Some sects claiming to be Christian believed that polygamy was not merely permitted but actually enjoined by the Bible: see Reynolds v United States 98 US 145 (1879); Mormon Church v United States 136 US 1 (1890). Others believe that medical treatment by blood transfusion is forbidden by the Bible and is sinful, even if it is the only means of saving life: see Re O (A minor) (Medical Treatment) [1993] 2 FLR 149; Re R (A minor) (Blood Transfusion) [1993] 2 FLR 757. Countless thousands have suffered cruel deaths because at different periods during the last two thousand years parts of the Christian Church thought that the Bible not merely permitted but enjoined them to torture and kill apostates, heretics and witches. In Bowman v Secular Society [1917] AC 406, 456 Lord Sumner referred to "the last persons to go to the stake in this country pro salute animae" (that was in 1612 or thereabouts). By comparison with these horrors a belief in a scriptural basis for smacking children is fairly small beer.

    57. In the Court of Appeal Arden LJ said [2003] QB 1300, 1371, para 258,

    ". . . to be protected by article 9, a religious belief, like a philosophical belief, must be consistent with the ideals of a democratic society, and that it must be compatible with human dignity, serious, important, and (to the extent that a religious belief can reasonably be required so to be) cogent and coherent."

    Later in this opinion I shall suggest that it may be unwise to take a rigidly analytical approach to the application of article 9. But assuming for the moment that the issue is to be analysed in terms of (i) the existence of a belief, (ii) its manifestation, (iii) interference with the manifested belief and (iv) justification of the interference, I doubt whether it is right for the court (except in extreme cases such as the "Wicca" case mentioned below) to impose an evaluative filter at the first stage, especially when religious beliefs are involved. For the Court to adjudicate on the seriousness, cogency and coherence of theological beliefs is (as Richards J put it in R (Amicus) v Secretary of State for Trade & Industry [2004] IRLR 430, 436-7, para 36) to take the Court beyond its legitimate role. The High Court of Australia expressed similar views in the Church of the New Faith case, especially at pp129-30 (Mason ACJ and Brennan J) and at p174 (Wilson and Deane JJ). So did the Supreme Court of Canada in Syndicat Northcrest v Amselem [2004] 241 DLR 4th 1, especially at p24, para 43 (Iacobucci J giving the judgment in which the majority concurred). So did the United States Supreme Court in Employment Division, Department of Human Resources of Oregon v Smith 494 US 872 (1990), especially at pp. 886-7 (Scalia J giving the majority opinion); the case contains a full discussion of the Free Exercise Clause of the First Amendment. Only in clear and extreme cases can a claim to religious belief be disregarded entirely, as in X v United Kingdom, Application No. 7291/75, admissibility decision of 4 October 1977 (no evidence of the existence of the "Wicca" religion).

    58. A filter is certainly needed, because it is quite clear (as Mason ACJ and Brennan J put it crisply in the Church of the New Faith case at p136) that "Religious conviction is not a solvent of legal obligation." In my opinion the filters are to be found (first) in the concept of manifestation of religion or belief and (second) in Article 9 (2), which qualifies an individual's freedom to manifest his religion or beliefs (in the four ways mentioned in article 9 (1): worship, teaching, practice and observance) by:

    ". . . 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."

    59. I must recognise that the views of Arden LJ quoted above are not without some support in the jurisprudence of the Strasbourg Court. In Campbell and Cosans v United Kingdom (1982) 4 EHRR 293 (in which parents objected, but not on religious grounds, to their children receiving corporal punishment) the European Court of Human Rights stated (p304, para 36) that 'convictions',

    "denotes views that attain a certain level of cogency, seriousness, cohesion and importance."

    It added (p305, para 36) that 'philosophical convictions',

    "denotes, in the Court's opinion, such convictions as are worthy of respect in a 'democratic society' and are not incompatible with human dignity."

    The latter passage refers back to the Court's decision in Young, James & Webster v United Kingdom (1981) 4 EHRR 38 (para 63), a case on an employee who had conscientious objections to a "closed shop" policy.

    60. I have to say that I find these qualifications rather alarming, especially if they are to be applied to religious beliefs. For the reasons already noted, the court is not equipped to weigh the cogency, seriousness and coherence of theological doctrines. Anyone who feels in any doubt about that might refer to the hundreds of pages of the law reports devoted to 16 years of litigation, in mid-Victorian times, as to the allegedly "Romish" beliefs and devotions of the incumbent of St Alban's, Holborn (the litigation, entitled Martin v Mackonochie, starts with (1866) LR2 A & E 116 (Court of Arches) and terminates at (1882) 7 PD 94 (Privy Council sitting with Ecclesiastical Assessors)). Moreover, the requirement that an opinion should be "worthy of respect in a 'democratic society'" begs too many questions. As Mr Diamond (following Mr Dingemans) pointed out, in matters of human rights the court should not show liberal tolerance only to tolerant liberals.

61.

    Campbell and Cosans was concerned with the meaning of "philosophical convictions" in article 2 of the First Protocol, not with the meaning of 'religion' or 'belief'. The reference to a 'democratic society' in the passage quoted from para 36 of the judgment suggests that so far as it may be relevant to article 9 also, it must be looking at the article as a whole, including article 9 (2). Much of the Strasbourg jurisprudence takes a flexible approach, summarised by Clayton and Tomlinson, The Law of Human Rights (2000) para 14.40:

    "In the majority of cases, the Court has avoided making any express determination as to whether the subject matter comes within the scope of Article 9. In other cases, the Court has either assumed the existence of a religious belief without question, or has found against the existence of a manifestation of religious belief without determining whether there was a religion in issue."

    The footnotes to this passage refer to X v Italy (1976) 5 DR 83 (complaints under articles 9, 10 and 11 by persons convicted of reorganising the Fascist Party in Italy); Hoffman v Austria (1993) 17 EHRR 293 (refusal of blood transfusions by a Jehovah's Witness); and X and Church of Scientology v Sweden (1979) 16 DR 68 (Scientology advertisement which was in any event commercial in nature).

    62. The first necessary filter, I suggest, in order to prevent article 9 becoming unmanageably diffuse and unpredictable in its operation, is the notion of manifestation of a belief. Although freedom of thought and conscience is "also a precious asset for atheists, agnostics, sceptics and the unconcerned" (Kokkinakis v Greece (1993) 17 EHRR 397,418, para 31), the notion of manifesting a belief is particularly appropriate to the area of religious belief. Most religions require or encourage communal acts of worship of various sorts, preaching, public professions of faith and practices and observances of various sorts (including habits of dress and diet). There will usually be a central core of required belief and observance and relatively peripheral matters observed by only the most devout. These can all be called manifestations of a religious belief. By contrast the manifestation or promotion of secular beliefs (or "causes") tends to be focused on articles 10 and 11, although reliance may be placed on article 9 also.

    63. It is clear that not every act which is in some way motivated or inspired by religious belief is to be regarded as the manifestation of religious belief: see Hasan and Chaush v Bulgaria (2002) 34 EHRR 1339, 1358, para 60. Article 9 protects (as well as the forum internum)

    ". . .acts which are intimately linked to [personal convictions and religious beliefs], such as acts of worship or devotion which are aspects of the practice of a religion or belief in a generally recognised form."

 
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