(back to preceding text)

    22.  As my noble and learned friend pointed out in Williamson, above, para 38, "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". As the Strasbourg court put it in Kalaç v Turkey (1997) 27 EHRR 552, para 27,

"Article 9 does not protect every act motivated or inspired by a religion or belief. Moreover, in exercising his freedom to manifest his religion, an individual may need to take his specific situation into account."

The Grand Chamber endorsed this paragraph in Sahin v Turkey, (Application No 44774/98, 10 November 2005, unreported), para 105. The Commission ruled to similar effect in Ahmad v United Kingdom (1981) 4 EHRR 126, para 11:

". . . the freedom of religion, as guaranteed by Article 9, is not absolute, but subject to the limitations set out in Article 9(2). Moreover, it may, as regards the modality of a particular religious manifestation, be influenced by the situation of the person claiming that freedom."

    23.  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. Thus in X v Denmark (1976) 5 DR 157 a clergyman was held to have accepted the discipline of his church when he took employment, and his right to leave the church guaranteed his freedom of religion. His claim under article 9 failed. In Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711, paras 54 and 57, parents' philosophical and religious objections to sex education in state schools was rejected on the ground that they could send their children to state schools or educate them at home. The applicant's article 9 claim in Ahmad, above, paras 13, 14 and 15, failed because he had accepted a contract which did not provide for him to absent himself from his teaching duties to attend prayers, he had not brought his religious requirements to the employer's notice when seeking employment and he was at all times free to seek other employment which would accommodate his religious observance. Karaduman v Turkey (1993) 74 DR 93 is a strong case. The applicant was denied a certificate of graduation because a photograph of her without a headscarf was required and she was unwilling for religious reasons to be photographed without a headscarf. The Commission found (p 109) no interference with her article 9 right because (p 108) "by choosing to pursue her higher education in a secular university a student submits to those university rules, which may make the freedom of students to manifest their religion subject to restrictions as to place and manner intended to ensure harmonious coexistence between students of different beliefs". In rejecting the applicant's claim in Konttinen v Finland (1996) 87-A DR 68 the Commission pointed out, in para 1, page 75, that he had not been pressured to change his religious views or prevented from manifesting his religion or belief; having found that his working hours conflicted with his religious convictions, he was free to relinquish his post. An application by a child punished for refusing to attend a National Day parade in contravention of her beliefs as a Jehovah's Witness, to which her parents were also party, was similarly unsuccessful in Valsamis v Greece (1996) 24 EHRR 294. It was held (para 38) that article 9 did not confer a right to exemption from disciplinary rules which applied generally and in a neutral manner and that there had been no interference with the child's right to freedom to manifest her religion or belief. In Stedman v United Kingdom (1997) 23 EHRR CD 168 it was fatal to the applicant's article 9 claim that she was free to resign rather than work on Sundays. The applicant in Kalaç, above, paras 28-29, failed because he had, in choosing a military career, accepted of his own accord a system of military discipline that by its nature implied the possibility of special limitations on certain rights and freedoms, and he had been able to fulfil the ordinary obligations of Muslim belief. In Jewish Liturgical Association Cha'are Shalom Ve Tsedek v France (2000) 9 BHRC 27, para 81, the applicants' challenge to the regulation of ritual slaughter in France, which did not satisfy their exacting religious standards, was rejected because they could easily obtain supplies of meat, slaughtered in accordance with those standards, from Belgium.

    24.  This line of authority has been criticised by the Court of Appeal as overly restrictive (Copsey v WWB Devon Clays Ltd 2005 EWCA Civ 932, [2005] 1CR 1789, paras 31-39, 44-66), and in Williamson, above, para 39, the House questioned whether alternative means of accommodating a manifestation of religions belief had, as suggested in the Jewish Liturgical case, above, para 80, to be "impossible" before a claim of interference under article 9 could succeed. But the authorities do in my opinion support the proposition with which I prefaced para 23 of this opinion. Even if it be accepted that the Strasbourg institutions have erred on the side of strictness in rejecting complaints of interference, there remains a coherent and remarkably consistent body of authority which our domestic courts must take into account and which shows that interference is not easily established.

    25.  In the present case the respondent's family chose for her a school outside their own catchment area. It was a school which went to unusual lengths to inform parents of its uniform policy. 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 for her first two years, without objection. It was of course open to the respondent, as she grew older, to modify her beliefs, but she did so against a background of free and informed consent by her and her family. It is also clear that there were three schools in the area at which the wearing of the jilbab was permitted. The respondent's application for admission to one of these was unsuccessful because the school was full, and it was asserted in argument that the other two were more distant. There is, however, no evidence to show that there was any real difficulty in her attending one or other of these schools, as she has in fact done and could no doubt have done sooner had she chosen. On the facts here, and endeavouring to apply the Strasbourg jurisprudence in a reasonable way, I am of opinion that in this case (unlike Williamson, above, para 41, where a different conclusion was reached) there was no interference with the respondent's right to manifest her belief in practice or observance. I appreciate, however, that my noble and learned friends Lord Nicholls and Lady Hale of Richmond incline to a different opinion. It follows that this is a debatable question, which gives the issue of justification under article 9(2) particular significance.

    26.  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, that is, it must be directed to a legitimate purpose and must be proportionate in scope and effect. It was faintly argued for the respondent that the school's uniform policy was not prescribed by law, but both the judge (para 78) and the Court of Appeal (paras 61, 83 and 90) held otherwise, and rightly so. The school authorities had statutory authority to lay down rules on uniform, and those rules were very clearly communicated to those affected by them. It was not suggested that the rules were not made for the legitimate purpose of protecting the rights and freedoms of others. So the issue is whether the rules and the school's insistence on them were in all the circumstances proportionate. This raises an important procedural question on the court's approach to proportionality and, depending on the answer to that, a question of substance.

    27.  In para 75 of his leading judgment in the Court of Appeal, Brooke LJ set out a series of questions to be asked and answered by a decision-maker resolving an issue raised under article 9. He observed (para 76) that the school did not approach the matter in that way at all. Since, therefore, the school had approached the issues from an entirely wrong direction, it could not resist her claim for declarations that it had wrongfully excluded her, that it had unlawfully denied her the right to manifest her religion and that it had unlawfully denied her access to suitable and appropriate education in breach of article 2 of the First Protocol to the Convention (para 78). But (para 81) nothing in the judgment should be taken to mean 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 judgment and decide not to alter it in any significant respect. He offered guidance (para 81) on matters the school would need to consider. Mummery and Scott Baker LJJ (paras 88, 90, 92) expressly associated themselves with this approach.

    28.  The Court of Appeal's procedural approach attracted the adverse criticism of some informed commentators: see Poole, "Of headscarves and heresies: The Denbigh High School case and public authority decision making under the Human Rights Act" [2005] PL 685; Linden and Hetherington, "Schools and Human Rights" [2005] Educational Law Journal 229; and, for a more ambivalent appraisal, Davies, "Banning the Jilbab: Reflections on Restricting Religious Clothing in the Light of the Court of Appeal in SB v Denbigh High School (2005) 1.3 European Constitutional Law Review 511. This procedural approach also prompted the Secretary of State to intervene in order to correct what he boldly described, in his written case, as a fundamental misunderstanding of the Human Rights Act. The school also, endorsing the criticisms made in the first two articles cited, have submitted that the Court of Appeal erred in failing to decide the proportionality issue on the merits. For the respondent, it was argued that the Court of Appeal was right to approach the proportionality issue on conventional judicial review lines, and to quash the decision (irrespective of the merits) if the decision-maker was found to have mis-directed itself in law. Attention was drawn to other cases in which the Court of Appeal had adopted a similar approach, such as Samaroo v Secretary of State for the Home Department [2001] EWCA Civ 1139, [2001] UKHRR 1150, paras 19-24, R(D) v Secretary of State for the Home Department [2003] EWHC Admin 155, [2003] 1 FLR 979, paras 20-23, and R (Goldsmith) v Wandsworth London Borough Council [2004] EWCA Civ 1170, (2004) 148 Sol Jo LB 1065. The House was referred to Chapman v United Kingdom (2001) 33 EHRR 399, para 92, where the Strasbourg court said:

"In particular, [the court] must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8."

    29.  I am persuaded that the Court of Appeal's approach to this procedural question was mistaken, for three main reasons. First, the purpose of the Human Rights Act 1998 was not to enlarge the rights or remedies of those in the United Kingdom whose Convention rights have been violated but to enable those rights and remedies to be asserted and enforced by the domestic courts of this country and not only by recourse to Strasbourg. This is clearly established by authorities such as Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37, [2004] 1 AC 546, paras 6-7, 44; R (Greenfield) v Secretary of State for the Home Department [2005] UKHL 14, [2005] 1 WLR 673, paras 18-19; and R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2005] UKHL 57, [2005] 3 WLR 837, paras 25, 33, 34, 88 and 92. But the focus at Strasbourg is not and has never been on whether a challenged decision or action is the product of a defective decision-making process, but on whether, in the case under consideration, the applicant's Convention rights have been violated. In considering the exercise of discretion by a national authority the court may consider whether the applicant had a fair opportunity to put his case, and to challenge an adverse decision, the aspect addressed by the court in the passage from its judgment in Chapman quoted above. But the House has been referred to no case in which the Strasbourg Court has found a violation of Convention right on the strength of failure by a national authority to follow the sort of reasoning process laid down by the Court of Appeal. This pragmatic approach is fully reflected in the 1998 Act. The unlawfulness proscribed by section 6(1) is acting in a way which is incompatible with a Convention right, not relying on a defective process of reasoning, and action may be brought under section 7(1) only by a person who is a victim of an unlawful act.

    30.  Secondly, it is clear that the court's approach to an issue of proportionality under the Convention must go beyond that traditionally adopted to judicial review in a domestic setting. The inadequacy of that approach was exposed in Smith and Grady v United Kingdom (1999) 29 EHRR 493, para 138, and the new approach required under the 1998 Act was described by Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 AC 532, paras 25-28, in terms which have never to my knowledge been questioned. There is no shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test adopted by the Court of Appeal in R v Ministry of Defence, Ex p Smith [1996] QB 517, 554. The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time (Wilson v First County Trust Ltd (No 2) [2003] UKHL 40, [2004] 1 AC 816, paras 62-67). Proportionality must be judged objectively, by the court (Williamson, above, para 51). As Davies observed in his article cited above, "The retreat to procedure is of course a way of avoiding difficult questions". But it is in my view clear that the court must confront these questions, however difficult. The school's action cannot properly be condemned as disproportionate, with an acknowledgement that on reconsideration the same action could very well be maintained and properly so.

    31.  Thirdly, and as argued by Poole in his article cited above, pages 691-695, I consider that the Court of Appeal's approach would introduce "a new formalism" and be "a recipe for judicialisation on an unprecedented scale". The Court of Appeal's decision-making prescription would be admirable guidance to a lower court or legal tribunal, but cannot be required of a head teacher and governors, even with a solicitor to help them. If, in such a case, it appears that such a body has conscientiously paid attention to all human rights considerations, no doubt a challenger's task will be the harder. But what matters in any case is the practical outcome, not the quality of the decision-making process that led to it.

    32.  It is therefore necessary to consider the proportionality of the school's interference with the respondent's right to manifest her religious belief by wearing the jilbab to the school. In doing so we have the valuable guidance of the Grand Chamber of the Strasbourg court in Sahin, above, paras 104-111. The court there recognises the high importance of the rights protected by article 9; the need in some situations to restrict freedom to manifest religious belief; the value of religious harmony and tolerance between opposing or competing groups and of pluralism and broadmindedness; the need for compromise and balance; the role of the state in deciding what is necessary to protect the rights and freedoms of others; the variation of practice and tradition among member states; and the permissibility in some contexts of restricting the wearing of religious dress.

    33.  The respondent criticised the school for permitting the headscarf while refusing to permit the jilbab, for refusing permission to wear the jilbab when some other schools permitted it and for adhering to their own view of what Islamic dress required. None of these criticisms can in my opinion be sustained. The headscarf was permitted in 1993, following detailed consideration of the uniform policy, in response to requests by several girls. There was no evidence that this was opposed. But there was no pressure at any time, save by the respondent, to wear the jilbab, and that has been opposed. Different schools have different uniform policies, no doubt influenced by the composition of their pupil bodies and a range of other matters. Each school has to decide what uniform, if any, will best serve its wider educational purposes. The school did not reject the respondent's request out of hand: it took advice, and was told that its existing policy conformed with the requirements of mainstream Muslim opinion.

    34.  On the agreed facts, the school was in my opinion fully justified in acting as it did. It had taken immense pains to devise a uniform policy which respected Muslim beliefs but did so in an inclusive, unthreatening and uncompetitive way. The rules laid down were as far from being mindless as uniform rules could ever be. The school had enjoyed a period of harmony and success to which the uniform policy was thought to contribute. On further enquiry it still appeared that the rules were acceptable to mainstream Muslim opinion. It was feared that acceding to the respondent's request would or might have significant adverse repercussions. It would in my opinion be irresponsible of any court, lacking the experience, background and detailed knowledge of the head teacher, staff and governors, to overrule their judgment on a matter as sensitive as this. The power of decision has been given to them for the compelling reason that they are best placed to exercise it, and I see no reason to disturb their decision. After the conclusion of argument the House was referred to the recent decision of the Supreme Court of Canada in Multani v Commission scolaire Marguerite-Bourgeoys [2006] SCC 6. That was a case decided, on quite different facts, under the Canadian Charter of Rights and Freedoms. It does not cause me to alter the conclusion I have expressed.

    35.  The House has considered article 2 of the First Protocol to the Convention in some detail in Abdul Hakim Ali v Head Teacher and Governors of Lord Grey School [2006] UKHL 14. I would refer to, but need not repeat, that analysis.

    36.  The question is whether, between 3 September 2002 and the date, some two years later, of the respondent's admission to another school, the appellants denied her access to the general level of educational provision available in this country. In my opinion they did not. A two-year interruption in the education of any child must always be a subject for profound regret. But it was the result of the respondent's unwillingness to comply with a rule to which, as I have concluded, the school were entitled to adhere, and, since her religious convictions forbade compliance, of her failure to secure prompt admission to another school where her religious convictions could be accommodated.

    37.  In para 60 of his judgment the judge said:

"What to my mind is abundantly clear is that the [school] earnestly and sincerely wanted the [respondent] to attend school. It put no impediment or obstacle in the way of the [respondent]. What the [school] did insist on was that when the [respondent] came to school she was dressed in accordance with the school uniform policy, as indeed she had been happy to do for the two years prior to September 2002. The reality of the situation was and still is that the [respondent], entirely of her own volition, chose not to attend Denbigh High School unless the [school] agreed to her wearing the jilbab. The [school] did not so agree. The [respondent] had a choice, either of returning to school wearing the school uniform or of refusing to wear the school uniform knowing that if she did so refuse the [school] was unlikely to allow her to attend. She chose the latter. In my judgment it cannot be said the actions or stance of the school amounted to exclusion, either formal, informal, unofficial or in any way whatsoever."

The Court of Appeal, in para 24, held that "The school undoubtedly did exclude the [respondent]". Since nothing in my opinion turns on this question I will address the question very briefly.

    38.  It is, however, clear that the school did not intend to exclude the respondent in the statutory sense of that word, nor believe that it was doing so. It is therefore entirely unsurprising that it did not in any way invoke the statutory procedures to which reference is made in Ali's case. For the school the situation was analogous to that considered in Spiers v Warrington Corporation [1954] 1 QB 61, 66, where Lord Goddard CJ said:

"The headmistress did not suspend this child at all. She was always perfectly willing to take her in; all that she wanted was that she should be properly dressed. Suspending is refusing to admit to the school; in this case the headmistress was perfectly willing to admit the girl but was insisting that she be properly dressed."

    39.  To the respondent, of course, the case appeared differently: she was being effectively shut out from attending the school by the school's insistence on her compliance with an unjustified rule with which it knew she could not comply. That is not a view of the case which I have accepted, but had it been the correct view (as in another case, on quite different facts, it might) there could be force in the contention that she was, de facto, excluded. It may be, and of course one hopes, that a situation of this kind is a very rare occurrence. I am not, however, sure that it is adequately covered by the existing rules.

    40.  For these reasons, and those given by Lord Hoffmann, with which I agree, I would allow the appeal, set aside the order of the Court of Appeal, and restore the order of the judge. I would invite written submissions on costs within 14 days.

    LORD NICHOLLS OF BIRKENHEAD

    My Lords,

    41.  I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Bingham of Cornhill and Lord Hoffmann. Your Lordships would allow this appeal. So would I. Your Lordships' reasons are twofold: (1) the school's refusal to allow Shabina Begum to wear a jilbab at school did not interfere with her article 9 right to manifest her religion and, even if it did, (2) the school's decision was objectively justified. I agree with the second reason. I am not so sure about the first. I think this may over-estimate the ease with which Shabina could move to another, more suitable school and under-estimate the disruption this would be likely to cause to her education. I would prefer that in this type of case the school is called upon to explain and justify its decision, as did the Denbigh High School in the present case.

LORD HOFFMANN

My Lords,

    42.  Shabina Begum, whom I shall call Shabina, is a Muslim, born in the United Kingdom to parents who came from Bangladesh. In September 2000, at the age of nearly 12, she enrolled at the Denbigh High School in Luton. It is a maintained secondary school for children of both sexes. Although the family lived outside the school's catchment area, her elder sister went there and so Shabina joined her.

    43.  About 80% of the children at the school are Muslim but a number of other religions and ethnic groups are represented. Yasmin Bevan, who comes from a Muslim Bengali family, has been head teacher since 1991. Under her leadership, standards of education and behaviour at the school have greatly improved. She has consistently been supported by the governors, among whom Muslims are strongly represented.

    44.  The head teacher considers that a school uniform promotes a sense of communal identity which helps to maintain standards. In devising a suitable uniform, the school went to immense trouble to accommodate the religious and cultural preferences of the pupils and their families. There was consultation with parents, students, staff and the Imams of the three local mosques. One version of the uniform was the shalwar kameez (or kameeze), a sleeveless smock-like dress with a square neckline, worn over a shirt, tie and loose trousers which taper at the ankles. A lightweight headscarf in navy blue (the school colour) was also permitted.

    45.  For her first two years at the school, Shabina wore the shalwar kameez without complaint. At some stage, however, she decided that it did not accord with her religious beliefs. It appears from the interesting discussion of Muslim theology which extends over 17 paragraphs of the judgment of Brooke LJ in the Court of Appeal that this is a minority but, among its adherents, sincerely and strongly held opinion.

    46.  The evidence does not make it clear when Shabina decided that wearing a shalwar kameez would be unacceptable. Her brother Shuweb Rahman says that "as Shabina became older she took an increasing interest in her religion" and through her interest in religion "discovered that the shalwar kameez was not an acceptable form of dress for Muslim women in public places." But the school administration knew nothing of her discovery until 3 September 2002, the first day of the school year, when she, escorted by her elder brother and another man, turned up at school wearing a long shapeless black gown known as a jilbab. They asked to see the head teacher. She was not available and they were referred to the assistant head teacher Mr Moore, who teaches mathematics. He, one would imagine, was having a busy morning but the men told him at length and in forceful terms that Shabina was entitled under human rights law to come to school wearing a jilbab and that unless she was admitted they would sue the school. Mr Moore told Shabina to go home and change.

    47.  Shabina left and did not return. The school wrote to her family explaining that she was obliged by law to attend school but would not be admitted to Denbigh High unless she wore the school uniform. The result was stalemate. There was a lengthy and fruitless correspondence between solicitors. The school said that the uniform complied with Muslim rules and Shabina's lawyers said that it did not. The Educational Welfare Officer tried unsuccessfully to persuade Shabina to accept the uniform and go back. In October 2003, when she had been out of school for a year, she applied to Challney Girls' School, a single sex school where wearing a jilbab would not have been a religious necessity. But she had left it late and the school was full. She was offered a right of appeal and the Educational Welfare Officer offered to support it but her brother says he decided that there was no point in appealing. The Educational Welfare Officer also offered to support applications to Putteridge High School and Rebia Girl's School, two other local schools where she could have worn a jilbab, but the offer was declined. Shabina remained out of school until September 2004, when she enrolled at Putteridge High School.