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X v Y School

Rosalind English

February 2007


R (on the application of X (by her Father and Litigation Friend)) v Headteachers and Governers of Y School

QBD (Silber J) 21/2/2007

ABSTRACT

A school's prohibition on the niqab veil at school engaged the pupil's right to manifest her religion under Article 9 but that provision had not been infringed and even if it had been, the decision was objectively justified under Article 9(2).

SUMMARY

The claimant was a Muslim schoolgirl who, on reaching puberty, started wearing the niqab at school, contrary to the school's uniform policy. The school asked her to remove the veil or be excluded, but she refused and did not return to school. Her three elder sisters had attended the school and been permitted to wear the niqab, which was a veil that covered the entire face and head save for the eyes. The sisters left the school before the claimant attended, by which time the headship, and with it, the uniform policy had changed. The school arranged and paid for her to receive tuition in certain subjects and she was offered a place at an alternative school (Q) of similar standing where she could wear the niqab, but she refused the offer

She sought judicial review of the decision of the respondent headteacher and governors of a school (Y) refusing to allow her to wear the niqab veil to school. She submitted that the school had acted unlawfully in that its refusal to allow her to wear the niqab constituted a breach of her right to manifest her religion under Article 9 of the Convention; she argued further that she had a legitimate expectation of wearing the niqab and would not have applied to the school had she known that she would not be allowed to wear it, and there was no proportionate or objective justification for changing the uniform policy so as to frustrate that legitimate expectation. She also contended that the differential treatment of her sisters who had been in a similar position to her but had been allowed to wear the niqab at school was evidence of irrationality on the part of the respondents.

Held: All claims dismissed.

Although the claimant's Article 9 rights had been engaged they had not been infringed by the school's decision. A rule of a particular public institution that required or prohibited certain behaviour on the part of those who availed themselves of its services did not constitute an infringement of the right of an individual to manifest his or her religion merely because the rule in question did not conform to the religious beliefs of the individual. That was particularly so where individuals could choose whether or not to avail themselves of the services of that institution and where other public institutions offering similar services, and whose rules did not included the objectionable rule in question, were available. Article 9 of the Convention did not require that one should be allowed to manifest one's religion at any time and place of one's choosing. Different schools were entitled to adopt their own rational policies.

Even if the school had interfered with the applicant's Article 9 rights, that interference had been justified where the school's policy to prohibit the wearing of the niqab had been "in the interests of public safety or for the protection of the rights and freedoms of others" and was not disproportionate, pursuant to Article 9(2)

As for the claim for breach of legitimate expectation, this failed in the sense that there had not been a practice (let alone a regular practice) amounting to a representation that Y would permit the claimant to wear a niqab at school, and even if there had been such a representation, Y had departed from it for good reasons that were a proportionate response, having regard to the legitimate aims pursued by the school in the public interest.  As far as the treatment of the claimants' sisters was concerned, the claimant had not been entitled as of right to the same treatment as her sisters where she had entered the school many years after them; during the interval there had been many changes in Y, including a change of head teacher and justified changes in policy.

COMMENT (March 2007)

Silber J bases much of his reasoning on the decision of the House of Lords in R (Begum) v Governors of Denbigh High School [2005] 2 WLR 3372. In that case, a majority of the House held that the article 9 rights of a Muslim claimant had not been infringed when she was not allowed to wear to her school a jilbab, which is a long coat- like garment. It was also decided unanimously that the school could in any event rely on Article 9(2.) with the result that the claimant's article 9 rights had not been infringed. Importance was attached by the defendant in this case to the reasoning of Lord Bingham that :
"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 [A] where a person has voluntarily accepted an employment or role which does not accommodate that
practice or observance and [B] there are other means open to the person to practise or observe his or her religion without undue hardship or inconvenience…"

The court acknowledged that there was a material difference between this case and Begum in that the claimant in Begum went to her school even though it had an established policy of not permitting the wearing of jilbabs, whereas here it was claimed by the pupil that her understanding had been that the defendant school permitted wearing of the niqab. But it was not this factor, but the availability of an alternative school, which proved fatal to her case. As Lord Hoffmann had said of the school pupil in Begum:
"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…"

This has been an established tenet of Strasbourg jurisprudence long before the specific requirements of the Islamic code became such a heavily litigated and high profile area of human rights law; see Jewish Liturgical Association Cha'are Shalom Ve Tsedek v France (2000) 9 BHRC 27, the Strasbourg ruling on the availability of Kosher meat under French abattoir legislation.

There was another point of interest in the use of Strasbourg authorities in this case. Counsel for the claimant sought to downplay the importance of a range of admissibility decisions supporting the defendants case by quoting Clayton and Tomlinson's textbook, The Law of Human Rights, in which the authors said that such decisions are "unlikely to be of significant jurisprudential value to the English courts" (para 3.47A). It is difficult to see how this prediction could be realised in practice. As Silber J pointed out, such decisions, brief as they are, are made pursuant to article 27(2) of the Convention and as such they are matters which in the words of section 2(1) of the Human Rights Act 1998, UK courts must "take into account". These admissibility decisions are of criticial importance as they show, in many cases, the limit of the interests protected under the Convention by rejecting outright those complaints that are deemed to fall outside those limits:

Konttinen v Finland (1996) 87-A DR 68: the Commission rejected the applicant's claim that he had not been pressured to change his religious views as a Seventh-Day Adventist or prevented from manifesting his religion or belief . Their reasoning was that having found that his working hours conflicted with his religious convictions, the applicant was free to relinquish his post

Valsamis v Greece (1996) 24 EHRR 294: This was 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. The application was similarly unsuccessful in 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.

Stedman v United Kingdom (1997) 23 EHRR CD 168: in this admissibility decision it was fatal to the applicant's article 9 claim that she was free to resign rather than work on Sundays to which she had a religious objection.

It is noteworthy that in Begum, the Appellate Committee attached substantial weight to such cases (see paragraphs [23] and 54] and they also did in R (Williamson) v Secretary of State [2005] 2AC 246, 269 [63]). Indeed, as Lord    says, "the weight of such authorities increases when, as is the position here, more than one of such cases which support the same proposition.

It has to be said that the relative brevity of the admissibility rulings in Strasbourg are not dispositive of the weight to be attached to them by UK courts under the Human Rights particularly in the light of the fact that the Court is now struggling under a huge docket of cases (an estimated 100,000 petitions waiting to be considered) and therefore even the full judgments of the court are brief and sometimes even elliptical in character.

It may seem surprising that, having found that there was no prima facie interference with Article 9, Silber J nevertheless thought it necessary to examine the hypothetical consequences for the claim if indeed the claimant had established a violation. Nearly half of the 32 page transcript is devoted to a painstaking analysis of all the hurdles the school would have needed to overcome under Article 9(2) – legitimate objective, basis in law, proportionality, justification, margin of discretion etc. – at the end of which the judge effectively pre-empts any arguments which may be made out on appeal should a higher court find that a breach of Article 9 has taken place.  Equally, having rejected the claim that the school had made any representation or had followed a policy that allowed for the establishment of any sort of legitimate expectation by the claimant that she should continue to be permitted to wear the niqab, Silber J goes on to explain at some length why he would have come to the conclusion that the school's policy would have been justified even if he had found a legitimate expectation to exist.  In similar vein, he dismisses the claim that the differential treatment of the claimants' sisters (who wore the niqab at the school before the events of 2001) was evidence of the school's irrationality. This is a reflection of the courts' anxiety these days to be dealing with these kinds of issues in as sensitive and conscientious a manner as possible, while at the same time forestalling further religious campaigning through the courts by restricting all possible avenues of appeal. While UK judges are not fighting shy of dealing with the matter, they are at pains to emphasise that they, in Silber J's words, would be "irresponsible" if they gave in to pressure to overrule the evidence of the staff on these sensitive educational issues especially where they have no knowledge or experience of running a school. Whether the claim is based on traditional judicial review legitimate expectation grounds, or the Human Rights Act, or both, the courts are most likely to find that factors advanced by the school in such cases are "legitimate": as in this case, educational standards and security factors are clearly important and relevant aims to justify their policies both under the 1998 Act and under any administrative requirement for the purposes of judicial review.  Equally, what Silber J refers to as the "cohesive and equality factors" are also important and sensible aims for school to strive for as is their concern relating to pressures applied to other Muslim girls if the wearing of particular emblems of religious commitment were to be permitted.

There is a postscript to be added to this comment. This controversy attracted considerable media attention before it even came to court, because Buckinghamshire County Council refused to advance the necessary finances to allow the school to contest the case in the administrative court (despite the favourable outcome made likely by the Lords' decision in Begum). Without financial backing to resist the claimant's campaign to force a change in the uniform policy, the school would have had to back off, thereby creating an unfortunate precedent for all other school heads and governors. The eleventh hour appearance of The Muslim Educational Centre of Oxford, which agreed to back the school, not only demonstrates that not all Muslims agree with the wearing of the niqab but provides a ringing endorsement of the school's victory in this case.

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