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

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    See Kalac v Turkey (1997) 27 EHRR 552, 558 (para 34 of the Commission's opinion) and 564 (para 27 of the judgment of the Court); the admissibility proceedings in Konttinen v Finland Application No. 24949/94; and Sahin v Turkey Application No. 44774/98, judgment given 29 June 2004, para 66. Richards J made a similar point, in the Amicus case, [2004] IRLR 430, 438, para 44, when he observed that:

    "the weight to be given to religious rights may depend upon how close the subject-matter is to the core of the religion's values or organisation."

    In the Oregon case 494 US 872, 888, footnote 4, Scalia J gave a particularly vivid example:

    ". . . dispensing with a 'centrality' inquiry is utterly unworkable. It would require, for example, the same degree of 'compelling state interest' to impede the practice of throwing rice at church weddings as to impede the practice of getting married in church."

    64. I am therefore in respectful agreement with Lord Nicholls that, at any rate by the time that the court has reached the stage of considering the manifestation of a belief, it must have regard to the implicit (and not over-demanding) threshold requirements of seriousness, coherence and consistency with human dignity which Lord Nicholls mentions.

    65. The second filter is article 9 (2), on which (as on the issue of interference) I have very little to add to what has been said by Lord Nicholls and Baroness Hale. It is regrettable that Mr Dingemans felt pressed for time in dealing with this aspect of the appeal. But justification was an issue at first instance, and both sides had the opportunity of putting in evidence on that issue. The respondent gave ample notice of his wish to raise the issue again before the House. It would have been unsatisfactory not to have considered such a major issue on this important appeal.

    66. It would have been particularly unsatisfactory on this appeal because in a case of this sort the issues of engagement, interference and justification are in truth closely linked together. At the beginning of his oral submissions Mr Dingemans (perhaps having in mind the Strasbourg Court's rather inconclusive approach as described in the passage which I have quoted from Clayton and Tomlinson) suggested that the Strasbourg jurisprudence on article 9 lacks a principled and consistent approach. I would not give much weight to that criticism. This is an area in which a rigidly analytical approach, dividing the case into watertight issues, to be decided seriatim, may not always be the best way forward. The court may conclude that a claimant has a sincere opinion which could just about be described as a religious belief, and that the claimant's conduct in accordance with that belief could just about be described as a manifestation of it. But the fact that the claimant may have only just scraped over those two thresholds should not be disregarded in determining the issue of interference or in the exercise of balancing interests and testing proportionality which is required under article 9 (2) if (perhaps by giving the claimant the benefit of the doubt) the court gets that far.

    67. Your Lordships were referred to a recent case before the Constitutional Court of South Africa, Christian Education South Africa v Minister of Education (2000) 9 BHRC 53, which raised essentially the same issue as is now before the House, but in a rather different context. The context was different because of the different terms of the South African Constitution (see especially section 36 set out at p.67, para 30) and the different historical and social background, to which the Constitutional Court attached particular importance (see pp 75-76, paras 50-51). Nevertheless I have found the judgment of the Court, delivered by Sachs J, very helpful, especially the general discussion at pp 68-70, paras 33-35. Sachs J said at para 35:

    "The underlying problem in any open and democratic society based on human dignity, equality and freedom in which conscientious and religious freedom has to be regarded with appropriate seriousness, is how far such democracy can and must go in allowing members of religious communities to define for themselves which laws they will obey and which not. Such a society can cohere only if all its participants accept that certain basic norms and standards are binding. Accordingly, believers cannot claim an automatic right to be exempted by their beliefs from the laws of the land. At the same time, the state should, wherever reasonably possible, seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law."

    68. Earlier, at para 31, Sachs J had said:

    "Though there might be special problems attendant on undertaking the limitations analysis in respect of religious practices, the standard to be applied is the nuanced and contextual one required by s36 and not the rigid one of strict scrutiny."

    Section 36 spells out the nature of the balancing exercise more fully than the corresponding provisions of the Convention. Nevertheless I consider that a nuanced and contextual approach is required also in applying article 9 of the Convention and article 2 of the First Protocol, even if that sort of approach has some tendency to blur rigid distinctions between the issues of engagement, interference, and justification.

    69. I would give the appellants the benefit of the doubt in getting to article 9 (2), but for the reasons given by Lord Nicholls and Baroness Hale they must fail at that stage. Nor does article 2 of the First Protocol assist them, since it is aimed at preventing state indoctrination, and must be applied in conformity with other articles of the Convention: Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711, 730-731, para 53.

    70. For these reasons, as well as for those given by my noble and learned friends Lord Nicholls and Baroness Hale, I would dismiss this appeal.

BARONESS HALE OF RICHMOND

My Lords,

    71. This is, and has always been, a case about children, their rights and the rights of their parents and teachers. Yet there has been no-one here or in the courts below to speak on behalf of the children. No litigation friend has been appointed to consider the rights of the pupils involved separately from those of the adults. No non-governmental organisation, such as the Children's Rights Alliance, has intervened to argue a case on behalf of children as a whole. The battle has been fought on ground selected by the adults. This has clouded and over-complicated what should have been a simple issue. For the sake of the children, therefore, I would like to add a few further comments to those of my noble and learned friends, Lord Nicholls of Birkenhead and Lord Walker of Gestingthorpe, with whose opinions I agree.

    72. Children have the right to be properly cared for and brought up so that they can fulfil their potential and play their part in society. Their parents have both the primary responsibility and the primary right to do this. The state steps in to regulate the exercise of that responsibility in the interests of children and society as a whole. But 'the child is not the child of the state' and it is important in a free society that parents should be allowed a large measure of autonomy in the way in which they discharge their parental responsibilities. A free society is premised on the fact that people are different from one another. A free society respects individual differences. 'Only the worst dictatorships try to eradicate those differences': see El Al Israeli Airlines Ltd v Danielowitz [1992]4] Isrl LR 478, para 14, Justice Barak. Often they try to do this by intervening between parent and child. That is one reason why the European Convention on Human Rights restricts the power of the state to interfere in family life (article 8) or to limit the manifestation of religious or other beliefs (article 9) and requires it to respect the religious or philosophical convictions of parents in the education of their children (First Protocol, article 2).

    73. The simple issue in this case is whether Parliament was entitled to legislate to ban corporal punishment in all schools. The ban covers schools where the parents and teachers believe that it is their Christian duty to employ mild physical correction as a last resort in order to bring up their children properly. No doubt they also sincerely believe that this is in the children's best interests. They therefore claim that the ban is an interference with their right to manifest their religion, guaranteed by article 9.1 of the European Convention on Human Rights:

    "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 in private, to manifest his religion or belief, in worship, teaching, practice and observance."

    They also claim that it is in breach of the right to education protected by article 2 of the First Protocol:

    "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."

    74. The practice of corporal punishment involves what would otherwise be an assault upon another person. The essential question, therefore, has always been whether the legislation achieves a fair balance between the rights and freedoms of the parents and teachers and the rights, freedoms and interests, not only of their children, but also of any other children who might be affected by the persistence of corporal punishment in some schools. The mechanism for achieving that balance lies in article 9.2:

    "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."

    It is common ground that the respect due to the parents' religious and philosophical convictions in the education of their children under article 2 of the First Protocol may be similarly limited. That is where the debate in this case should always have been concentrated. Instead, the argument in the High Court focussed mainly on whether the beliefs of the parents and teachers qualified for protection, whether this practice was a manifestation of those beliefs, and whether the ban was an interference with their manifestation. The possible justification for the ban was dismissed in a single paragraph of the judgment. In the Court of Appeal it did not feature at all. As Rix LJ explained at [2003] QB 1300, 1334, para 113:

    "It follows that the real battleground both below and in this court has not been the important and wide-ranging argument which might have been advanced, to the effect that, whatever might be said of, for or against, the mild and loving application of physical punishment to children in an institutionalised setting, 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. Such an argument would be prepared to take account, on the one side of the rights and interests of parents in passing to the next generation the beliefs, religious and philosophical, which help to guide their lives, and, on the other side of the rights and interests of children to be free of the dangers that can stem from the permission of any leeway at all in the matter of corporal punishment; and on a third side, of the rights and interests of the democratic state, as the representative of all the competing values and interests in society to legislate in a way that it believes best, most safely, justly and proportionately preserves the rights and interests of all concerned."

    75. Instead the argument was about "the nature of religious belief itself". That is, of course, a most important question, but it is not the question in this case. Article 9 protects "freedom of thought, conscience and religion". This includes the freedom to manifest one's "religion or belief". Those of us who hold religious beliefs may feel that they are in some way different not only in kind but also in importance from other beliefs. But those who do not hold religious beliefs may profoundly disagree. Both article 9 and the first Protocol are careful not to distinguish between religious and other beliefs or philosophical convictions, nor do they elevate religious beliefs above others. The court is not required to consider the nature of religion, still less is it required to consider whether a particular belief is soundly based in religious texts. The court's concern is with what the belief is, whether it is sincerely held, and whether it qualifies for protection under the Convention.

    76. Convention jurisprudence suggests that beliefs must have certain qualities before they qualify for protection. I suspect that this only arises when the belief begins to have an impact upon other people, in article 9 terms, when it is manifested or put into practice. Otherwise people are free to believe what they like. The European Court in Campbell v Cosans v United Kingdom (1982) 4 EHRR 293, 303, para 36, equated the parental convictions which were worthy of respect under the first Protocol with the beliefs protected under Article 9: they must attain a certain level of cogency, seriousness, cohesion and importance; be worthy of respect in a democratic society; and not incompatible with human dignity. No distinction was drawn between religious and other beliefs. In practice, of course, it may be easier to show that some religious beliefs have the required level of cogency, seriousness, cohesion and importance.

    77. Some people believe so strongly that all corporal punishment of children is wrong that they may find it hard to accept that a belief that it is right can in any circumstances be worthy of respect in a democratic society or compatible with the human dignity of either the punished or the punisher. That must sometimes be so. The sort of punishment in which Victoria Climbie's murderers apparently believed is not worthy of any respect at all. But in this case we are concerned with carefully controlled, mild and loving discipline administered in the context of a clear moral code. Many people in this country still believe that it is right. The rightness or wrongness of either belief is not a scientifically provable fact. Nor does either necessarily depend upon the practical efficacy of corporal punishment in developing character and behaviour. Many would believe it to be wrong even if it was proven to work. Both are essentially moral beliefs, although they may be underpinned with other beliefs about what works best in bringing up children. Both are entitled to respect. A free and plural society must expect to tolerate all sorts of views which many, even most, find completely unacceptable.

    78. Respect is one thing. Allowing them to be practised is another. I am prepared to accept that the practice of corporal punishment in these schools is a manifestation of the parents' and teachers' beliefs: a belief that as a last resort children may need physical correction as part of their education can only be manifested by correcting them in that way. I find it difficult to understand how a ban on that practice is anything other than a limitation of the right to manifest that belief: the belief in question is not only a belief that parents should be able to punish their children but that such punishment is an essential part of the sort of Christian education in which these parents and teachers believe. I am deeply troubled by the solution adopted in the Court of Appeal, which depended upon the parents' continued right to punish the children themselves. The real question is whether any limits set by the state can be justified under article 9.2.

    79. Those limits must fulfil the three well-known criteria: (1) they must be prescribed by law, as this undoubtedly is; (2) they must pursue a legitimate aim; and (3) they must be necessary in a democratic society: the "notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued": see, for example, Pretty v United Kingdom (2002) 35 EHRR 1, 38, para 70.

    80. There can be no doubt that the ban on corporal punishment in schools pursues the legitimate aim of protecting the rights and freedoms of children. It has long been held that these are not limited to their rights under the European Convention. The appellants were anxious to stress that the corporal punishment in which they believe would not breach the child's rights under either article 3 or article 8. But it can still be legitimate for the state to prohibit it for the sake of the child. A child has the same right as anyone else not to be assaulted; the defence of lawful chastisement is an exception to that right. It has long been held in the context of article 8 that the rights and freedoms of the child include his interests: see Hendricks v Netherlands (1983) 5 EHRR 223; Andersson v Sweden (1992) 14 EHRR 615; Johansen v Norway (1996) 23 EHRR 33. Even if it could be shown that a particular act of corporal punishment was in the interests of the individual child, it is clear that a universal or blanket ban may be justified to protect a vulnerable class: see Pretty v United Kingdom, para 74 where a universal ban on assisting suicide could be justified for the protection of vulnerable people generally, even though Mrs Pretty herself was not vulnerable: "it is the vulnerability of the class which provides the rationale for the law in question". Above all, the state is entitled to give children the protection they are given by an international instrument to which the United Kingdom is a party, the United Nations Convention on the Rights of the Child (UNCRC).

    81. Article 3.1 of UNCRC requires that:

    "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."

    Article 37 requires that:

    "States Parties shall ensure that:

    (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment . . ."

    More significantly in the present context, article 19.1 provides:

    "States parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s)., legal guardian(s) or any other person who has the care of the child."

    This is reinforced by article 28.2:

    "States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child's human dignity and in conformity with the present Convention."

    82. The United Nations Committee on the Rights of the Child commented, in its consideration of the United Kingdom's first report on its compliance with the Convention (see Concluding Observations of the Committee on the Rights of the Child: United Kingdom, February 1995) that it was

    ". . . worried about the national legal provisions dealing with reasonable chastisement within the family. The imprecise nature of the expression of reasonable chastisement as contained in these legal provisions may pave the way for it to be interpreted in a subjective and arbitrary manner. Thus, the Committee is concerned that legislative and other measures relating to the physical integrity of children do not appear to be compatible with the provisions and principles of the Convention, including those of its articles 3, 19 and 37. The Committee is equally concerned that privately funded and managed schools are still permitted to administer corporal punishment to children in attendance there which does not appear to be compatible with the provisions of the Convention, including those of its article 28, paragraph 2." (para 16)

    The Committee went on to recommend that physical punishment of children in families be prohibited "in the light of the provisions set out in articles 3 and 19 of the Convention" (para 31); further "legislative measures are recommended to prohibit the use of corporal punishment in privately funded and managed schools" (para 32).

    83. At its second review in October 2002, the Committee welcomed the abolition of corporal punishment in all schools in England, Wales and Scotland following its 1995 Recommendations (see Concluding Observations: United Kingdom of Great Britain and Northern Ireland, 9 October 2002, para 35). It went on (para 38):

    "The Committee recommends that the State party:

(a)

    with urgency adopt legislation throughout the State party to remove the 'reasonable chastisement' defence and prohibit all corporal punishment in the family and in any other contexts not covered by existing legislation;

(b)

    promote positive, participatory and non-violent forms of discipline and respect for children's equal right to human dignity and physical integrity, involving children and parents and all those who work with and for them, and carry out public education programmes on the negative consequences of corporal punishment."

    84. We are not in this case concerned with physical punishment within the family. This raises more complex questions than does corporal punishment in institutional settings. That is no doubt why the Committee's 1995 recommendations (quoted above) were more nuanced. But in relation to corporal punishment in schools they have been quite unequivocal. The Committee's recommendations have also been endorsed by the United Nations Committee on Economic, Social and Cultural Rights: see Concluding Observations of the Committee on Economic, Social and Cultural Rights: the United Kingdom of Great Britain and Northern Ireland - Dependent Territories, 5 June 2002, para 36. How can it not be a legitimate and proportionate limitation on the practice of parents' religious beliefs to heed such a recommendation from the bodies charged with monitoring our compliance with the obligations which we have undertaken to respect the dignity of the individual and the rights of children?

    85. There was also a large body of professional educational and child care opinion in support of the ban. In 1967, the Plowden Report recommended that "the infliction of physical pain as a recognised method of punishment in primary schools should be forbidden" in both state and independent schools: see Children and their Primary Schools: A Report of the Central Advisory Council for Education (England) (Chairman: Lady Plowden), HMSO 1967, paras 743 - 750. The Committee knew that the recommendation was controversial, but they relied upon the psychological evidence received as well as the almost universal practice in other western countries, particularly in Europe. In 1985, the Committee of Ministers of the Council of Europe, in Violence in the Family (Recommendation R85(4)), proposed that member states should review their legislation so as to limit or indeed prohibit corporal punishment. Corporal punishment was banned in all state schools, and for all state funded pupils in independent schools, by the Education (No 2) Act 1986, section 47. Not long after this, the Elton Committee of Enquiry into discipline in schools received few submissions recommending its reintroduction. They also found that there was "little evidence that corporal punishment was in general an effective deterrent either to the pupils punished or to other pupils": see Discipline in Schools: Report of the Committee of Enquiry chaired by Lord Elton, 1989, HMSO, paras 4.44, 4.46. In 1990, in Social Measures concerning Violence in the Family (Recommendation R(90)2), the Committee of Ministers of the Council of Europe emphasised the importance of the general condemnation of corporal punishment and other forms of degrading treatment as a means of education and of the need for a violence free education. In 1991, Sir William Utting, in Children in the Public Care, a review of residential child care, noted that corporal punishment in children's homes had "quite properly" been forbidden under the Children Act 1989 but there was a need for training and guidance on control, restraint and physical contact with children in residential care. In 1993, in One scandal too many . . . the case for comprehensive protection for children in all settings, a distinguished working group convened by the Gulbenkian Foundation recommended the prohibition of corporal punishment in all settings where it was still allowed. This was followed in 1995 by the Report of the Commission on Children and Violence, chaired by Sir William Utting, which recommended the immediate abolition of physical punishment in all schools: see Children and Violence, Gulbenkian Foundation 1995, pp133-136; 145-146. In 1996, the National Commission of Inquiry into the Prevention of Child Abuse, chaired by Lord Williams of Mostyn, concluded that corporal punishment was unsatisfactory and ineffective and recommended that the law as it affects the physical punishment of children should be amended to give children the same protection against assault as adults: see Childhood Matters, 1996, HMSO, paras 5.42-5.45, recommendation 34. In the debates on the 1998 amendment banning corporal punishment in all schools, Parliament was told that there were no calls from official teachers' bodies for the reintroduction of corporal punishment in state schools. The Independent Schools Council supported the amendment, as did all the teachers' unions. It also had the support of a consortium of children's charities, including the NSPCC.

    86. With such an array of international and professional support, it is quite impossible to say that Parliament was not entitled to limit the practice of corporal punishment in all schools in order to protect the rights and freedoms of all children. Furthermore, the state has a positive obligation to protect children from inhuman or degrading punishment which violates their rights under article 3. But prohibiting only such punishment as would violate their rights under article 3 (or possibly article 8) would bring difficult problems of definition, demarcation and enforcement. It would not meet the authoritative international view of what the UNCRC requires. The appellants' solution is that they and other schools which share their views should be exempted from the ban. But this would raise exactly the same problems. How could it be justified in terms of the rights and protection of the child to allow some schools to inflict corporal punishment while prohibiting the rest from doing so? If a child has a right to be brought up without institutional violence, as he does, that right should be respected whether or not his parents and teachers believe otherwise.

 
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