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Judgments - R (on the application of Begum (by her litigation friend, Rahman)) (Respondent) v. Headteacher and Governors of Denbigh High School (Appellants)

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    48.  On 13 February 2004 Shabina commenced judicial review proceedings against the head teacher and governors of Denbigh High, claiming that the decision not to admit her while wearing a jilbab was unlawful because it infringed two of her Convention rights: the right to "manifest [her] religion … in … practice and observance" (article 9) and the right not to "be denied the right to education" (article 2 of the First Protocol). Bennett J dismissed the claim but the Court of Appeal made a declaration that her rights under article 9 had been infringed: [2005] 1 WLR 3372. The school appeals to your Lordships' House and the Secretary of State for Education and Skills has been given leave to intervene and had made submissions in support of the appeal.

    49.  The first question is whether Shabina's right to manifest her religion was infringed. If it was infringed, the school would have to justify the infringement on one of the grounds listed 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."

On the other hand, if there was no infringement, no justification is required.

    50.  I accept that wearing a jilbab to a mixed school was, for her, a manifestation of her religion. The fact that most other Muslims might not have thought it necessary is irrelevant. But her right was not in my opinion infringed because there was nothing to stop her from going to a school where her religion did not require a jilbab or where she was allowed to wear one. Article 9 does not require that one should be allowed to manifest one's religion at any time and place of one's own choosing. Common civility also has a place in the religious life. Shabina's discovery that her religion did not allow her to wear the uniform she had been wearing for the past two years created a problem for her. Her family had chosen that school for her with knowledge of its uniform requirements. She could have sought the help of the school and the local education authority in solving the problem. They would no doubt have advised her that if she was firm in her belief, she should change schools. That might not have been entirely convenient for her, particularly when her sister was remaining at Denbigh High, but people sometimes have to suffer some inconvenience for their beliefs. Instead, she and her brother decided that it was the school's problem. They sought a confrontation and claimed that she had a right to attend the school of her own choosing in the clothes she chose to wear.

    51.  The jurisprudence of the European Court is in my opinion clear that in such circumstances there is no infringement of article 9. In Jewish Liturgical Association Cha'are Shalom Ve Tsedek (2000) 9 BHRC 27 an association of ultra-orthodox Jews complained that their rights under article 9 had been infringed because French law did not allow them to slaughter animals in accordance with their particular opinion of what Jewish ritual required. They could however have imported suitably slaughtered meat from Belgium or come to an agreement with the ordinary Jewish ritual slaughterers to produce meat according to their specifications. The opinion of the majority of the Grand Chamber was that there had been no infringement:

    "[80]  In the court's opinion, there would be interference with the freedom to manifest one's religion only if the illegality of performing ritual slaughter made it impossible for ultra-orthodox Jews to eat meat from animals slaughtered in accordance with the religious prescriptions they considered applicable."

    52.  "Impossible" may be setting the test rather high but in the present case there is nothing to show that Shabina would have even found it difficult to go to another school. Until after the failure of her application for judicial review before Bennett J on 15 June 2004 she did not seriously try because she and her family were intent upon enforcing her "rights".

    53.  Likewise in Kalaç v Turkey (1997) 27 EHRR 552 a judge-advocate in the Turkish air force was compulsorily retired because he had involved himself in the activities of a religious sect, inconsistently with his duties under military law to guarantee the secular character of the Turkish state. The European Court found that there had been no infringement of his rights under article 9. He was free to manifest his religion in any way he pleased but not as a member of the armed forces.

    54.  The same expectation of accommodation, compromise and, if necessary, sacrifice in the manifestation of religious beliefs appears from the cases on employees who found their duties inconsistent with their beliefs. For example, Tuomo Kottinnen worked on the Finnish Railways. After five years he became a Seventh Day Adventist and declared that he could not work after sunset on Fridays. After several incidents when he left with the early setting of the Finnish winter sun, his employers dismissed him. The Commission held that there had been no infringement of his rights under article 9: Kontinnen v Finland (1996) 87 DR 68. It said (at p. 75) that "having found his working hours to conflict with his religious convictions, the applicant was free to relinquish his post." The same principle has been applied in other cases: see Ahmad v United Kingdom (1981) 4 EHRR 126 and Stedman v United Kingdom (1997) 23 EHRR CD 168. In Copsey v WWB Devon Clays Ltd [2005] ICR 1789, a case in which a Christian employee objected to a new shift system which involved Sunday working, the Court of Appeal examined these cases very carefully. The members of the court expressed some disquiet about the application of these cases when the employer had introduced new duties inconsistent with the practice of the employee's religion or where the manifestation of his beliefs could easily have been accommodated. I say nothing about such cases because Shabina's family had chosen to send her to a school which required uniform to be worn and her wish to manifest her religious belief could not have been accommodated without throwing over the entire carefully crafted system.

    55.  I therefore agree with Bennett J (at paras 73-74) that there was no infringement of Shabina's rights under article 9. In the Court of Appeal Brooke LJ disagreed but did not explain why. He simply said (at para 49) that because Shabina's belief was theologically tenable, it followed that her freedom to manifest her religion was being limited and it was for the school to justify that limitation. He made no reference to any of the European cases to which I have mentioned or to the following highly relevant observations of Lord Nicholls of Birkenhead in R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246, 262, para 38:

    "What constitutes interference [with the manifestation of religious belief] 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 27. 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."

    56.  Mummery LJ did refer to Ahmad v United Kingdom (1981) 4 EHRR 126 and Stedman v United Kingdom (1997) 23 EHRR CD 168 but distinguished them on the ground that it was not relevant to compare Shabina's position with that of an employee who was free to leave his employment. He said, at p 3391, para 84:

    "It is irrelevant to the engagement of article 9 that the claimant could have changed to a school which accommodated her religious beliefs about dress. Education at the school or at another school was not a contractual choice. There was a statutory duty to provide education to the pupils. The school did not follow the proper statutory procedure for excluding her from education".

    57.  I must admit to finding this passage confusing. What does it matter whether going to another school was a "contractual choice"? It was a choice which she could have made. It is true that there is a statutory duty to provide education, but not at any particular school: see the decision of your Lordships' House delivered today in Abdul Hakim Ali v Head Teacher and Governors of Lord Grey School: [2006] UKHL 14. As for the statutory procedure, I shall return in due course to the question of whether Shabina was "excluded" from the school. But this case has at all times been argued on the question of whether her Convention rights were infringed and not on whether there had been a failure to comply with domestic statutory procedures.

    58.  Even if there had been an infringement of Shabina's rights under article 9, I would, like the judge, have been of opinion that the infringement was justified under article 9.2. The school was entitled to consider that the rules about uniform were necessary for the protection of the rights and freedoms of others. Bennett J had ample material for saying (at para 90):

    "Denbigh High School is a multi-cultural, multi-faith secular school. The evidence adduced on behalf of the [school]…clearly establishes that the school uniform policy promotes a positive ethos and a sense of communal identity… [T]here is no outward distinction between Muslim female pupils. Thus any division between those who wear the jilbab and those who wear the shalwar kameez is avoided. Furthermore, it is clear from the evidence that there are a not insignificant number of Muslim female pupils at Denbigh High School who do not wish to wear the jilbab and either do, or will, feel pressure on them either from inside or outside the school. The present uniform policy aims to protect their rights and freedoms…"

    59.  The Court of Appeal was referred to the decision of the European Court in Sahin v Turkey (2005) 41 EHRR 8, decided shortly after the judgment of Bennett J, which appeared strongly to support his decision. Ms Sahin was excluded from lectures and examinations in the medical school of the University of Istanbul because she insisted upon wearing an Islamic headscarf, an item of clothing forbidden by the University regulations. The Chamber presided over by Sir Nicholas Bratza unanimously dismissed the complaint. It assumed in her favour that her rights under article 9 had been infringed (there was no other Turkish university which did not have the same rule) but held that the prohibition was justified under article 9.2. The court laid stress (at p 131-132, paras 100-102) upon the margin of appreciation accorded to the national authorities:

    "The Court observes that the role of the Convention machinery is essentially subsidiary. As is well established by its case law, the national authorities are in principle better placed than an international court to evaluate local needs and conditions. It is for the national authorities to make the initial assessment of the 'necessity' for an interference, as regards both the legislative framework and the particular measure of implementation...

    Where questions concerning the relationship between state and religions are at stake, on which opinion in a democratic society may reasonably differ widely, the role of the national decision-making body must be given special importance. In such cases it is necessary to have regard to the fair balance that must be struck between the various interests at stake: the rights and freedoms of others, avoiding civil unrest, the demands of public order and pluralism.

    A margin of appreciation is particularly appropriate when it comes to the regulation by the Contracting States of the wearing of religious symbols in teaching institutions, since rules on the subject vary from one country to another, depending on national traditions, and there is no uniform European conception of the requirements of 'the protection of the rights of others' and of 'public order'."

    60.  The Court went on to say that the Turkish Constitutional Court was entitled to consider the headscarf prohibition necessary to safeguard the principle of secularism which guaranteed freedom of individual conscience, equality before the law, protection from external pressures and the rights of women. Since the judgment of the Court of Appeal, the decision in Sahin v Turkey has been confirmed by the Grand Chamber (10 November 2005).

    61.  Brooke LJ considered the decision but said that the United Kingdom was very different from Turkey. It was not a secular state and had no written constitution. Schools were under a statutory duty to provide religious instruction and (unless exempted) a daily collective act of worship.

    62.  These observations about the differences between the United Kingdom and Turkey seem to me to miss the point. Turkey has a national rule about headscarves, based on its constitution. Its justification for the assumed interference with the manifestation of religious belief was therefore considered at the national level. In the United Kingdom, there is no national rule on these matters. Parliament has considered it right to delegate to individual schools the power to decide whether to impose requirements about uniforms which may interfere with the manifestation of religious beliefs. From the point of view of the Strasbourg court, the margin of appreciation would allow Parliament to make this choice.

    63.  In applying the Convention rights which have been reproduced as part of domestic law by the Human Rights Act 1998, the concept of the margin of appreciation has, as such, no application. It is for the courts of the United Kingdom to decide how the area of judgment allowed by that margin should be distributed between the legislative, executive and judicial branches of government. As Lord Hope of Craighead said in R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326, 380-381:

    "The doctrine of the 'margin of appreciation' is a familiar part of the jurisprudence of the European Court of Human Rights. The European Court has acknowledged that, by reason of their direct and continuous contact with the vital forces of their countries, the national authorities are in principle better placed to evaluate local needs and conditions than an international court… This technique is not available to the national courts when they are considering Convention issues arising within their own countries. But in the hands of the national courts also the Convention should be seen as an expression of fundamental principles rather than as a set of mere rules. The questions which the courts will have to decide in the application of these principles will involve questions of balance between competing interests and issues of proportionality. In this area difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention."

    64.  In my opinion a domestic court should accept the decision of Parliament to allow individual schools to make their own decisions about uniforms. The decision does not have to be made at a national level and national differences between Turkey and the United Kingdom are irrelevant. In applying the principles of Sahin v Turkey the justification must be sought at the local level and it is there that an area of judgment, comparable to the margin of appreciation, must be allowed to the school. That is the way the judge approached the matter and I think that he was right.

    65.  In criticizing the school's decision, Miss Booth QC (who appeared for Shabina) said that the uniform policy was undermined by Muslim girls being allowed to wear headscarves. That identified them as Muslims and it would therefore make no difference if they could wear jilbabs. But that takes no account of the school's wish to avoid clothes which were perceived by some Muslims (rightly or wrongly) as signifying adherence to an extremist version of the Muslim religion and to protect girls against external pressures. These are matters which the school itself was in the best position to weigh and consider.

    66.  In the end, however, the Court of Appeal did not decide that the school could not justify its uniform policy. Brooke LJ said, at para 81, that the judgment "should [not] be taken as meaning that it would be impossible for the school to justify its stance if it were to reconsider its uniform policy in the light of this judgment". But he thought that the school had infringed Shabina's rights under article 9 because it had not reached its decision by an appropriate process of reasoning. It should have set itself an examination paper with the following questions:

    1.  Has the claimant established that she has a relevant Convention right which qualifies for protection under article 9(1)?

    2.  Subject to any justification that is established under article 9.2, has the Convention right been violated?

    3.  Was the interference with her Convention right prescribed by law in the Convention sense of that expression?

    4.  Did the interference have a legitimate aim?

    5.  What are the considerations that need to be balanced against each other when determining whether the interference was necessary in a democratic society for the purpose of achieving that aim?

    6.  Was the interference justified under article 9.2?

    67.  The school's method of working out the problem, as disclosed in the witness statements filed on its behalf, did not suggest that it had adopted this procedure at all. It had decided that a uniform policy was in the general interests of the school and then tried to devise a uniform which satisfied as many people as possible and took into account their different religions. When Shabina refused to wear the uniform, they did not "explore the reasons why [she] sincerely believed that she must wear [the jilbab]". They simply said that the policy was in place and that if she wanted to come to school she must wear the uniform.

    68.  Quite apart from the fact that in my opinion the Court of Appeal would have failed the examination for giving the wrong answer to question 2, the whole approach seems to me a mistaken construction of article 9. In domestic judicial review, the court is usually concerned with whether the decision-maker reached his decision in the right way rather than whether he got what the court might think to be the right answer. But article 9 is concerned with substance, not procedure. It confers no right to have a decision made in any particular way. What matters is the result: was the right to manifest a religious belief restricted in a way which is not justified under article 9.2? The fact that the decision-maker is allowed an area of judgment in imposing requirements which may have the effect of restricting the right does not entitle a court to say that a justifiable and proportionate restriction should be struck down because the decision-maker did not approach the question in the structured way in which a judge might have done. Head teachers and governors cannot be expected to make such decisions with textbooks on human rights law at their elbows. The most that can be said is that the way in which the school approached the problem may help to persuade a judge that its answer fell within the area of judgment accorded to it by the law.

    69.  I can be brief in dealing with the claim of denial of the right to education guaranteed by article 2 of the First Protocol. As your Lordships have decided today in Abdul Hakim Ali v Head Teacher and Governors of Lord Grey School [2006] UKHL 14, that article confers no right to go to any particular school. It is infringed only if the claimant is unable to obtain education from the system as a whole. In the present case, there is nothing to suggest that Shabina could not have found a suitable school if she had notified her requirements in good time to the local education authority.

    70.  Finally, there was some debate over whether it could be said that Shabina was "excluded" from Denbigh High. "Exclusion" is a term of art in English education law because there is a code (now contained in the the Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002 (SI 2002/3178)) which must be followed before a child can be excluded from a school "on disciplinary grounds". That code was not followed in the present case and I have discussed in my speech in the Abdul Hakim Ali case the difficulties of applying it in cases which do not involve the straightforward commission of a disciplinary offence. In the present case, for example, the school did not think it appropriate to take steps to exclude Shabina under the code because they did not want to exclude her. They wanted her to come wearing her uniform. But I do not need to discuss whether it should have been applied because, as I have said when discussing the judgment of Mummery LJ in the Court of Appeal, no one in this case has suggested that it was about anything except Convention rights or that compliance with the code was relevant to whether those rights had been infringed or not.

    71.  I would therefore allow the appeal and restore the judgment of Bennett J.

LORD SCOTT OF FOSCOTE

My Lords,

    72.  I find myself unable to accept that the respondent, Shabina Begum, was subjected to an unlawful exclusion from school. Nor can I accept that her school's refusal to allow her to attend school dressed in a jilbab denied her "the right to education" (see article 2 of the First Protocol to the Convention) or was an infringement of her right to manifest her religion or beliefs (see article 9 of the Convention). To explain these conclusions I must refer to some of the facts of the case.

    73.  Let me start with the school, Denbigh High School in Luton. It is a maintained secondary school whose pupils, both boys and girls, range from 11 to 16 years of age. Most of the pupils are Moslem and most are of Bangladeshi or Pakistani heritage. The remainder are of diverse religious groups and heritages. In 1993 90 per cent of the pupils were Moslem. In 2004, when the present proceedings were begun 79 per cent of the pupils were Moslem. The school is a secular school. But it is not open to doubt that very many of its pupils, and their parents, will be believing and practising adherents to the Moslem faith.

    74.  It is, therefore, appropriate that Moslems are well represented in the management structure of the school. When the present proceedings were begun four out of six parent governors were Moslem, three of the LEA governors were Moslem and the Chair of the Luton Council of Mosques was a Community Governor. Moreover the head teacher, Mrs Yasmin Bevan, who had been appointed in 1991, was born into a Bengali Moslem family and brought up in the sub-continent before moving to this country. It is agreed that the school "makes a significant contribution to social cohesion in a catchment area that is racially, culturally and religiously diverse" (para 4 of the agreed Statement of Facts) and that "the School uniform has contributed to social cohesion and harmony amongst pupils, who are from a very wide range of faiths and backgrounds" (para 10 of the agreed Statement of Facts).

    75.  The head teacher's background confirms she well understands the Moslem dress code for women. This understanding has no doubt played a part in her approach to the school uniform that the girls at the school should wear. Her approach is set out in paragraph 6 of the agreed Statement of Facts.

    "The head teacher believes that a school uniform forms an integral part of the school's drive for high standards and continuous improvement. It was designed carefully to take account of a range of considerations and to be inclusive in serving the needs of a diverse community. … It also ensures that students do not feel disadvantaged because they cannot afford the latest designer clothes and makes them less vulnerable to being teased because of the clothes they are wearing."

    76.  Before a prospective pupil starts at the school, the pupil and his or her parents are given a careful explanation of the school uniform policy. The school uniform requirements are spelled out in written, and graphic, form. One of the documents provided to prospective parents is entitled "Does Denbigh have a school uniform" and says that

    "All pupils must wear:

    V-neck jumper (available only from school)

    School Tie (available only from school)

    Plain white shirt

    Black shoes

and, in relation to girls, that

    "Girls should wear either navy blue trousers or an A line or pleated knee length navy skirt

    or navy blue shalwar kameeze

    (made to the school pattern)."

Another document gives more details about the shalwar kameeze

    "Shalwar: tapered at the ankles, not baggy. Kameeze: between knee and mid-calf length, not gathered or flared. Fabric must be cotton or poplin not shiny, silky or crinkly"

and also about headscarves

    "Girls who wish to wear headscarves may do so as long as they conform to the requirements listed below:

    1.  The fabric should be lightweight and navy blue.

    2.  The headscarves should cover the head, be folded under the chin, taken round to the back of the neck and the ends tucked in, this conforms to health and safety requirements.

    3.  Headscarves should be worn so that the collar and tie can be seen."

    77.  The details of the items of school uniform to be worn by the female pupils at the school make it apparent that considerable thought had been given to what would be suitable. The shalwar kameeze, coupled with a headscarf, was obviously intended to cater for the dress requirements of 11 to 16 year old Moslem girls. The shalwar kameeze was confirmed in 1993, following a working party report, as a suitable school uniform for Moslem girls, or for any other female pupils who chose to wear it. The specific design of the shalwar kameeze school uniform was approved by the school governors after consultation with pupils, parents, staff and the Imams of three local mosques. There was no suggestion that the uniform did not conform to the Islamic dress code.

 
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