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    78.  The respondent, Sabina, was born in September 1988. Her father died in 1992 and when she entered the school in September 2000 she was living with her mother (who was unable to speak English and who died in 2004) and an elder brother and sister. The family home was outside the school's catchment area but the family decision to send her to Denbigh High was, I expect, attributable at least in part to the fact that her sister was already a pupil at the school. For two years after her entry to the school in September 2000 Shabina wore the shalwar kameeze school uniform. So too, it may be assumed, did her sister during the whole of her (the sister's) time at the school. There is no evidence of any complaint to the school being made by either of them about the uniform. Nor is there any evidence of whether, during those first two years, Shabina wore the authorised headscarf as a complement to the shalwar kameeze.

    79.  On 3 September 2002, the first day of the new school year, Shabina arrived at the school wearing not the shalwar kameeze but a jilbab. She was accompanied by her brother and another young man. The two men insisted that Shabina be allowed to attend school wearing the jilbab, a long shapeless dress ending at the ankle and designed to conceal the shape of the wearer's arms and legs. A jilbab is worn by many mature Moslem women in order to comply with their understanding of Koranic injunctions regarding women's dress. The two men addressed their insistence to Mr Moore, the assistant head teacher. His evidence was that their insistence verged on the threatening. It is common ground that they supported their insistence by speaking of human rights and legal proceedings. But Mr Moore told Shabina to go home, change into the proper school uniform and return to school properly dressed. The agreed Statement of Facts records that "The three went away, with the young men saying that they were not prepared to compromise over the issue" (para 16, emphasis added).

    80.  The quite unnecessarily confrontational character of the arrival at the school on 3 September 2002 of Shabina and the two men is evident. Shabina was a girl of 13, some two weeks short of her fourteenth birthday. It may be accepted, for there is no challenge, that she had a genuine belief that the tenets of Islam required her, in her approach to womanhood, to wear a jilbab when in public and that the school shalwar kameeze did not suffice. But she and her family knew very well of the school uniform rules and had had the long summer holiday to discuss with the school her (or their) doubts about the suitability of the shalwar kameeze. The confrontational nature of the peremptory manner in which the jilbab issue was raised with the school, a manner which is very unlikely to have been chosen by Shabina, not yet 14 years of age, set the tone for how the issue then developed.

    81.  On the same day Mrs Bevan, having been informed of the incident, wrote to Shabina's mother and brother encouraging Shabina to attend school wearing correct school uniform. But when a member of the School Support Team telephoned on the following day, 4 September, she was told that Shabina had seen her solicitor and was going to sue the school. And the following day, when Mr Moore telephoned to ask why Shabina was not at school, he was told by Shabina's brother that he, the brother, was not prepared to let her attend school unless she was allowed to wear a jilbab. Later in the month, when Shabina had still not returned to school, the matter was referred to the Education Welfare Service (the "EWS") who made a number of efforts to get Shabina back into the school. But these efforts all foundered on the rock of the insistence by Shabina and her family that Shabina would not return unless allowed to wear the jilbab.

    82.  The first question is whether, in the circumstances I have described, Shabina was subjected to an exclusion from school that was unlawful under ordinary domestic law. Sections 64 to 68 of the School Standards and Framework Act 1998 deal with exclusions of pupils from school on disciplinary grounds. Procedures are prescribed which must be followed if the exclusion is to be lawful. In the opinion I prepared in the Ali appeal, heard immediately before this appeal was heard and by the same appellate committee, I expressed the view that Mr Ali had not been subjected to a section 64 exclusion because the decision to keep him away from school had not been taken on disciplinary grounds. The present case is different. The decision not to allow Shabina to attend school unless she was prepared to wear the school uniform was, in my view, a decision taken on disciplinary grounds. Shabina was not prepared to abide by the school uniform rules. The decision was taken for that reason. But, nonetheless, it was not, in my opinion, an "exclusion" of Shabina for section 64 purposes. A section 64 exclusion is a direction to the pupil to stay out of the school. No such direction was ever given to Shabina. She was not directed to stay away; she was directed, and encouraged, to return wearing the school uniform. The decision that she would not return was her decision (or that of members of her family), not that of the school. In contrast to a pupil subjected to a section 64 exclusion, Shabina could at any time have returned to the school. This was not, in my opinion, a section 64 exclusion.

    83.  In my opinion, therefore, the direction to Shabina to attend school wearing the proper school uniform can only be attacked as an unlawful direction under domestic law if the school uniform rules that she was being required to obey were themselves so unreasonable as to be unlawful, or if the decision to insist upon Shabina observing the school uniform rules was similarly unreasonable. I regard both contentions as being virtually unarguable. Schools are entitled to have school uniform rules for all the reasons so cogently expressed by Mrs Bevan (see para 7 of her witness statement and paras 6 and 10 of the agreed Statement of Facts). The care taken by the school to try and ensure that the shalwar kameeze school uniform was acceptable for female Moslem pupils is impressive. There was no unnecessary rigidity. The white shirt to be worn could have short or long sleeves. So Moslem girls who wanted (or whose parents wanted) their arms to be covered could wear long sleeved shirts. The sleeves could be as baggy as would be consistent with the garment still being a shirt. The contours of the arms could, therefore, be concealed. The shalwar had to be tapered, not baggy, at the ankles, but above the ankle could be loose fitting. And the hemline of the kameeze could brought down to mid calf length. The contours of the legs could, therefore, be concealed. The notion that the shalwar kameeze school uniform would not accord with essential requirements of Islamic modesty for teenage girls seems to me an extraordinary one. There was nothing unreasonable, and therefore nothing unlawful, about the school's uniform policy.

    84.  As to the school's refusal to relax the uniform rules so as to allow Shabina to attend school wearing the jilbab, that too seems to me to have been well within the margin of discretion that must be allowed to the school's managers. There is not much point in having a school uniform policy if individual pupils can decide for themselves what they will wear. I conclude that the decisions taken by the school with regard to Shabina were unimpeachable by the standards of ordinary domestic law. But did they constitute infringements of any of Shabina's Convention rights?

    85.  There were two Convention rights that, it is contended, were infringed; first, Shabina's "freedom to manifest her religion" (article 9.2 of the Convention), and, second, Shabina's "right to education" (article 2 of the First Protocol).

    86.  "Freedom to manifest one's religion" does not mean that one has the right to manifest one's religion at any time and in any place and in any manner that accords with one's beliefs. In Kalaç v Turkey (1997) 27 EHRR, 552, para 27, the Strasbourg court said that

"… in exercising his freedom to manifest his religion, an individual may need to take his specific situation into account."

And in Ahmad v United Kingdom (1981) 4 EHRR 126, para 11, the Commission said that

"… the freedom of religion … may, as regards the modality of a particular religious manifestation, be influenced by the situation of the person claiming that freedom."

    87.  Several striking examples of this approach to the article 9.2 freedom to manifest one's religion can be found among the Strasbourg court's decisions. Karaduman v Turkey (1993) 74 DR 93 arose out of the insistence by a university in Turkey that every certificate of graduation must have affixed to it a photograph of the graduate. The purpose of this was to prevent any other person passing himself or herself off as the graduate. The photograph had to show the full face of the graduate and, therefore, female graduates had to be photographed without wearing headscarves. The applicant, a Moslem lady, was for religious reasons unwilling to be photographed without a headscarf. So she was unable to obtain a certificate of graduation. Her complaint that the university rule infringed her freedom to manifest her religion was rejected. This and several other examples of the Strasbourg approach to alleged article 9.2 infringements are referred to in para 23 of Lord Bingham's opinion and I need not labour the point. The cases demonstrate the principle that a rule of a particular public institution that requires, or prohibits, certain behaviour on the part of those who avail themselves of its services does not constitute an infringement of the right of an individual to manifest his or her religion merely because the rule in question does not conform to the religious beliefs of that individual. And in particular this is so where the individual has a choice whether or not to avail himself or herself of the services of that institution, and where other public institutions offering similar services, and whose rules do not include the objectionable rule in question, are available.

    88.  The present case involves a secular school that has tried to accommodate the dress requirements of its female Moslem pupils. But a similar issue might arise in a reverse situation. Article 9 guarantees the right to freedom of "thought" and "conscience" as well as freedom of religion and article 9.2 refers to freedom to manifest one's "beliefs" as well as to freedom to manifest one's religion. Take the case of a faith school that required its pupils each day to participate in a form of collective religious worship. It may be assumed that each pupil on entry to the school would be content to participate in the daily religious service. If a pupil, having become a convinced atheist, decided that he or she could no longer in conscience take part in an act of worship that was inconsistent with the new beliefs that he or she had recently acquired and asked to be excused from attending the daily religious service, Strasbourg jurisprudence would not permit the school's refusal to accept this request to be represented as infringing the pupil's article 9 rights unless, perhaps, the institution offered an essential service not obtainable elsewhere.

    89.  So, too, in my opinion, Shabina's disinclination to comply with the school uniform rules cannot be represented as a breach by the school of her article 9 right to manifest her religion. There are, as Shabina has discovered, schools in the Luton area whose rules would permit her to wear a jilbab. Arrangements could have been made for Shabina to transfer to one or other of these schools but she did not take up the chance of doing so (see para 33 of the judgment of Bennett J). In these circumstances, in my opinion, the contention that Denbigh High infringed her article 9 rights must be rejected.

    90.  As to Shabina's right to education, the school referred the problem of her non-attendance at Denbigh High to the EWS on 27 September 2002 and the EWS thereafter made a number of attempts to persuade her to return to Denbigh High. But she remained unwilling to return on the only basis on which she could return, namely, wearing the school uniform. If the conclusion that the school was entitled to have a school uniform policy that did not allow Shabina to wear a jilbab is right, as in my opinion it is, it must follow that the school did not by requiring her to wear the school uniform commit any breach of her Convention right to education.

    91.  In my opinion, therefore, and in full agreement with the reasons given by my noble and learned friends Lord Bingham of Cornhill and Lord Hoffmann, this appeal should be allowed.

    BARONESS HALE OF RICHMOND

My Lords,

    92.  I too agree that this appeal should be allowed. Most of your lordships take the view that Shabina Begum's right to manifest her religion was not infringed because she had chosen to attend this school knowing full well what the school uniform was. It was she who had changed her mind about what her religion required of her, rather than the school which had changed its policy. I am uneasy about this. The reality is that the choice of secondary school is usually made by parents or guardians rather than by the child herself. The child is on the brink of, but has not yet reached, adolescence. She may have views but they are unlikely to be decisive. More importantly, she has not yet reached the critical stage in her development where this particular choice may matter to her.

    93.  Important physical, cognitive and psychological developments take place during adolescence. Adolescence begins with the onset of puberty; from puberty to adulthood, the 'capacity to acquire and utilise knowledge reaches its peak efficiency'; and the capacity for formal operational thought is the forerunner to developing the capacity to make autonomous moral judgments. Obviously, these developments happen at different times and at different rates for different people. But it is not at all surprising to find adolescents making different moral judgments from those of their parents. It is part of growing up. The fact that they are not yet fully adult may help to justify interference with the choices they have made. It cannot be assumed, as it can with adults, that these choices are the product of a fully developed individual autonomy. But it may still count as an interference. I am therefore inclined to agree with my noble and learned friend, Lord Nicholls of Birkenhead, that there was an interference with Shabina Begum's right to manifest her religion.

    94.  However, I am in no doubt that that interference was justified. It had the legitimate aim of protecting the rights and freedoms of others. The question is whether it was proportionate to that aim. This is a more difficult and delicate question in this case than it would be in the case of many similar manifestations of religious belief. If a Sikh man wears a turban or a Jewish man a yamoulka, we can readily assume that it was his free choice to adopt the dress dictated by the teachings of his religion. I would make the same assumption about an adult Muslim woman who chooses to wear the Islamic headscarf. There are many reasons why she might wish to do this. As Yasmin Alibhai-Brown (WHO do WE THINK we ARE?, (2000), p 246) explains:

"What critics of Islam fail to understand is that when they see a young woman in a hijab she may have chosen the garment as a mark of her defiant political identity and also as a way of regaining control over her body."

Bhikhu Parekh makes the same point (in "A Varied Moral World, A Response to Susan Okin's 'Is Multiculturalism Bad for Women'", Boston Review, October/November 1997):

"In France and the Netherlands several Muslim girls freely wore the hijab (headscarf), partly to reassure their conservative parents that they would not be corrupted by the public culture of the school, and partly to reshape the latter by indicating to white boys how they wished to be treated. The hijab in their case was a highly complex autonomous act intended to use the resources of the tradition both to change and to preserve it."

    Hence I have found the dissenting opinion of Judge Tulkens in the case of the Turkish University student, Leyla Sahin v Turkey, Application No 44774/98, Judgment of 10 November 2005, very persuasive.

    95.  But it must be the woman's choice, not something imposed upon her by others. It is quite clear from the evidence in this case that there are different views in different communities about what is required of a Muslim woman who leaves the privacy of her home and family and goes out into the public world. There is also a view that the more extreme requirements are imposed as much for political and social as for religious reasons. If this is so, it is not a uniquely Muslim phenomenon. The Parekh Report on The Future of Multi-Ethnic Britain (Runnymede Trust, 2000, at pp 236-237, para 17.3), for example, points out that:

"In all traditions, religious claims and rituals may be used to legitimise power structures rather than to promote ethical principles, and may foster bigotry, sectarianism and fundamentalism. Notoriously, religion often accepts and gives its blessing to gender inequalities."

Gita Saghal and Nira Yuval-Davis, discussing "Fundamentalism, Multiculturalism and Women in Britain" (in Refusing Holy Orders, Women and Fundamentalism in Britain, (2000), p 14) argue that the effect of and on women is

". . . central to the project of fundamentalism, which attempts to impose its own unitary religious definition on the grouping and its symbolic order. The 'proper' behaviour of women is used to signify the difference between those who belong and those who do not; women are also seen as the 'cultural carriers' of the grouping, who transmit group culture to the future generation; and proper control in terms of marriage and divorce ensures that children who are born to those women are within the boundaries of the collectivity, not only biologically but also symbolically."

According to this view, strict dress codes may be imposed upon women, not for their own sake but to serve the ends of others. Hence they may be denied equal freedom to choose for themselves. They may also be denied equal treatment. A dress code which requires women to conceal all but their face and hands, while leaving men much freer to decide what they will wear, does not treat them equally. Although a different issue from seclusion, the assumption may be that women will play their part in the private domestic sphere while men will play theirs in the public world. Of course, from a woman's point of view, this may be a safer and more comfortable place to be. Gita Saghal and Nira Yuval Davis go on to point out that, at p 15:

"One of the paradoxes . . . is the fact that women collude, seek comfort, and even at times gain a sense of empowerment within the spaces allocated to them by fundamentalist movements."

    96.  If a woman freely chooses to adopt a way of life for herself, it is not for others, including other women who have chosen differently, to criticise or prevent her. Judge Tulkens, in Sahin v Turkey, at p 46, draws the analogy with freedom of speech. The European Court of Human Rights has never accepted that interference with the right of freedom of expression is justified by the fact that the ideas expressed may offend someone. Likewise, the sight of a woman in full purdah may offend some people, and especially those western feminists who believe that it is a symbol of her oppression, but that could not be a good reason for prohibiting her from wearing it.

    97.  But schools are different. Their task is to educate the young from all the many and diverse families and communities in this country in accordance with the national curriculum. Their task is to help all of their pupils achieve their full potential. This includes growing up to play whatever part they choose in the society in which they are living. The school's task is also to promote the ability of people of diverse races, religions and cultures to live together in harmony. Fostering a sense of community and cohesion within the school is an important part of that. A uniform dress code can play its role in smoothing over ethnic, religious and social divisions. But it does more than that. Like it or not, this is a society committed, in principle and in law, to equal freedom for men and women to choose how they will lead their lives within the law. Young girls from ethnic, cultural or religious minorities growing up here face particularly difficult choices: how far to adopt or to distance themselves from the dominant culture. A good school will enable and support them. This particular school is a good school: that, it appears, is one reason why Shabina Begum wanted to stay there. It is also a mixed school. That was what led to the difficulty. It would not have arisen in a girls' school with an all-female staff.

    98.  In deciding how far to go in accommodating religious requirements within its dress code, such a school has to accommodate some complex considerations. These are helpfully explained by Professor Frances Radnay in "Culture, Religion and Gender" [2003] 1 International Journal of Constitutional Law 663:

". . . genuine individual consent to a discriminatory practice or dissent from it may not be feasible where these girls are not yet adult. The question is whether patriarchal family control should be allowed to result in girls being socialised according to the implications of veiling while still attending public educational institutions. . . . A mandatory policy that rejects veiling in state educational institutions may provide a crucial opportunity for girls to choose the feminist freedom of state education over the patriarchal dominance of their families. Also, for the families, such a policy may send a clear message that the benefits of state education are tied to the obligation to respect women's and girls' rights to equality and freedom . . . On the other hand, a prohibition of veiling risks violating the liberal principle of respect for individual autonomy and cultural diversity for parents as well as students. It may also result in traditionalist families not sending their children to the state educational institutions. In this educational context, implementation of the right to equality is a complex matter, and the determination of the way it should be achieved depends upon the balance between these two conflicting policy priorities in a specific social environment."

It seems to me that that was exactly what this school was trying to do when it devised the school uniform policy to suit the social conditions in that school, in that town, and at that time. Its requirements are clearly set out by my noble and learned friend, Lord Scott of Foscote, in para 76 of his opinion. Social cohesion is promoted by the uniform elements of shirt, tie and jumper, and the requirement that all outer garments be in the school colour. But cultural and religious diversity is respected by allowing girls to wear either a skirt, trousers, or the shalwar kameez, and by allowing those who wished to do so to wear the hijab. This was indeed a thoughtful and proportionate response to reconciling the complexities of the situation. This is demonstrated by the fact that girls have subsequently expressed their concern that if the jilbab were to be allowed they would face pressure to adopt it even though they do not wish to do so. Here is the evidence to support the justification which Judge Tulkens found lacking in the Sahin case.

    99.  In agreement with your lordships, therefore, I would allow this appeal and restore the order of the trial judge.