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Williamson

Rosalind English



R (on the application of Williamson and others) v Secretary of State for Education and Employment)

HL (Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood) [2005] UKHL 15


ABSTRACT

The legislative ban on corporal punishment in all schools was not incompatible with parental rights under the Convention. Parliament was bound to respect a parent's belief in a school's use of corporal punishment, but was also entitled to decide that the manifestation of those beliefs in practice was not in the best interests of children.

SUMMARY

The appellants were head teachers, teachers and parents of children at four independent schools. They claimed to speak on behalf of "a large body of the Christian community" whose fundamental beliefs included a belief that part of the duty of education in the Christian context was that teachers should be able to stand in the place of parents and administer physical punishment to children who were guilty of indiscipline.

This was an appeal against the decision of the Court of Appeal dismissing their claim that the extension of the Education Act 1996 s.548 banning corporal punishment in all schools was incompatible with their rights under the European Convention on Human Rights. They contended that the section did not apply where parents, having the common law right to discipline their child, expressly delegated that right to the teacher; they also argued that the extended statutory ban was incompatible with their right to freedom of religion under Article 9 and Article 2 Protocol 1 of the Convention.

Held:

Appeal dismissed.

The plain purpose of section 548 was to prohibit the use of corporal punishment by all teachers in all schools. If it were generally held that a teacher when exercising an expressly delegated power to exercise corporal punishment on a parent's child was not acting in his or her capacity as a teacher, then the prohibition would not be mandatory but optional at the choice of the parents. This was untenable

As far as the freedom to express or manifest a belief was concerned, a distinction had to be drawn between the right to hold a belief, which was absolute, whereas the latter right was qualified. It was possible to say that a belief in the desirability of even a mild degree of corporal punishment by a teacher violated a child's integrity to such an extent that manifestation of this belief came within Article 9 and Article.2 of the first protocol. It was, in other words, a manifestation of a parent's beliefs when they authorised a child's school to administer corporal punishment, and as such engaged the Convention. Therefore section 548 did interfere materially with parental rights under Articles 9 and 2 Protocol 1.

However the interference was "necessary in a democratic society...for the protection of the rights and freedoms of others". The statutory ban pursued a legitimate aim. Children were vulnerable and the aim of the legislation was to protect them and promote their wellbeing. Corporal punishment involved deliberately inflicting physical violence. The legislation was intended to protect children against the distress, pain and other harmful effects this infliction of physical violence may cause. Furthermore the means chosen to achieve this aim were appropriate and not disproportionate. Parliament was entitled to act it was an issue of broad social policy. The appellants' right under the convention had not been violated. Their beliefs involved inflicting physical violence on children in an institutional setting, unlike Campbell and Cosans v United Kingdom 4 EHRR 293. Parliament was bound to respect teachers' and parents' beliefs in this regard, but was entitled to decide that the manifestation of these beliefs in practice was not in the best interests of children.

COMMENT (March 2005)

In 1782, Thomas Jefferson referred to the established separation between religion and public life, and explained: "It does me no injury for my neighbor to say that there are twenty gods or no God; it neither picks my pocket nor breaks my leg."

But this separation is breaking down, as this judgment demonstrates, and the musings of their Lordships reflect a growing awareness of the difficulty, if not impossibility, of keeping the separation between religion and public life in place and of quarantining the religious impulse in the safe houses of the church, the synagogue, and the Mosque. The appellants in this case argue that their belief in appropriate chastisement of children was based on their religious convictions, and claim the protection of the law. It used to be said that religions beliefs could not absolve parties from their obligations under the law. For years the courts in the United States the courts have had to test the extent that the free exercise of constitutional religious rights can be limited when they violate generally applicable laws.  In 1990 the US Supreme Court ruled in Employment Division v. Smith that the fact that a religious ceremony mandates the use of a controlled substance does not protect believers from prosecution.

But things are changing. The legal philosopher Stanley Fish describes how the law is gradually caving in to the vociferous demands of religion:

"In 1995, the Supreme Court surprised many (including Justice Souter) by ruling (in Rosenberger v. Rectors) that the University of Virginia must grant financial support to an evangelical magazine, on the reasoning that to deny it money would be to commit the First-Amendment sin of viewpoint discrimination. A more recent decision (2002) opened the way to vouchers for church-supported schools so long as the money is funnelled through parents and not given directly. ...In every sector of American life, religion is transgressing  the boundary between private and public and demanding to be heard in precincts that only a short while ago would have politely shown it the door." (7 January 2005: One University under God?)

Fish predicts that it will be religion that will succeed high theory and the triumvirate of race, gender, and class as the centre of intellectual energy in the academy; this prediction may well apply just as cogently to the law courts. Hence the importance of the discussion that took place in the House of Lords occasioned by this debate on corporal punishment.

The manner in which children should be brought up is a subject on which religious teachings - and not only Christian ones - are particularly vigorous. In this case, the claimants' beliefs regarding the use of corporal punishment by both parents and teachers were based on their interpretation of certain passages in the Bible, such as the saying, 'He who spares the rod hates his son, but he who loves him is diligent to discipline him': Proverbs 13:24. Had these convictions had Koranic rather than Biblical origins the outcome of this litigation may well have been different, given the Court of Appeal's approach to the jilbab issue (see R (On the Application of SB) v Headteacher and Governors of Denbigh High School).

At least the House of Lords had the gumption to acknowledge that the Convention was engaged. The Secretary of State argued that the claimants' beliefs were not "sufficiently cogent, serious, cohesive or important" to attract the protection of either Convention articles 2 or Protocol 1. Such a contention, had it been accepted, would have created a precedent which courts would have found very difficult and impolitic to apply to minority religions in this country. 

It is therefore a welcome sign of their Lordships' even-handedness on the religious rights issue that they go to such lengths in this judgment to delineate the scope of Article 9 in such a way that it may not be used as the exclusive preserve of religious fundamentalists; in paras  16 - 35 Lord Nicholls accords the appropriate level of Convention protection to strongly held beliefs, whether or not these are backed by a supernatural hierarchy of Supreme Beings, prophets and messiahs.

Baroness Hale was of the view that the discussion should have focussed on the justification for the ban, rather on the scope of Article 9.  But opinions on corporal punishment are strong and irreconcilable, and there is no reason to believe that the debate would have been resolved in the House of Lords any more decisively than anywhere else, as is amply demonstrated by her extensive citations from high-sounding but unhelpful sources like UN Committee and Council of Europe Recommendations, government and Commission of Inquiry reports and conclusions of various Working Groups, all of which add much heat, but no light to this controversial matter.

Lord Walker maintains that it is "unnecessary for the House to grapple with the definition of religion", which is right, lest the debate fall into the very solecisms that lead to religious intolerance and conflict in the first place. As he says, the very notion of religious belief in the past (and in the present, though happily not in the West) has justified killings and torture on an extensive scale, and "by comparison with these horrors a belief in a scriptural basis for smacking children is fairly small beer"

But it is still necessary  to lay down specific minimal requirements for a "belief" to qualify for protection under Article 9, and this judgment contains some very useful guidance on this subject for future battles under this Convention provision. Turning to Thomas Jefferson again, he remarked in a letter to Dr. Thomas Cooper, (February 10, 1814) that Christianity "neither is, nor ever was a part of the common law." Now that the law has expressly incorporated the notion of religious freedom in its protective ambit, it is vital to maintain a level of equality between religious beliefs and principles that have their roots in secular ideals, lest the former overwhelm the spirit of liberty which the Convention and other rights instruments like it were designed to inspire in society.

Rosalind English, 1 Crown Office Row

 

Williamson v Secretary of State for Education and Employment

[2002] EWCA Civ 1820

CA (Buxton LJ, Rix LJ, Arden LJ) December 12 2002

ABSTRACT

A belief in the efficacy of corporal punishment in schools did not constitute a philosophical or religious conviction for the purposes of Articles 9 or 2 Protocol 1

SUMMARY

As a result of s. 548 of the Education Act 1996 corporal punishment by teachers in schools was rendered illegal. The Appellants included Christian parents who asserted that corporal punishment was part of their faith and that the effect of the 1996 Act was to breach their right to freedom or religion under Article 9 and their freedom to have their children educated in accordance with their religious and philosophical convictions in accordance with Article 2 of the First Protocol.

Held: (Rix LJ, Arden LJ - Buxton LJ dissenting)

(i) The Appellants' beliefs in corporal punishment were religious beliefs that engaged Article 9 and Article 2 of the First Protocol.

(ii) The Appellants' beliefs were not infringed by the Education Act 1996 because it did not prevent the children's parents applying corporal discipline themselves at home.


COMMENT (January 2003)

The case therefore provides strong positive authority for the engagement of the Convention in respect of a wide and varied range of beliefs. However, the Court limited the scope of protection by emphasising the Convention doctrine of non-interference. It was ultimately on this latter doctrine that the Appellants' case foundered.

Consistency and Cogency

Following Williamson it is clear that it is not part of a Court's function in assessing whether the Convention is engaged under Article 9 or the Protocol to undertake an intensive review of the consistency and cogency of a belief claiming protection. This applies both to the internal consistency of an individual's belief and the relative consistency of the beliefs of a number of adherents.

In his dissenting judgement, Buxton LJ held on the evidence that there was too much inconsistency and incoherence in the Appellants' beliefs for them constitute religious beliefs for the purposes of the Convention. A key point was that there was a very large gap between strict biblical injunctions relied upon by the Appellants and their actual moderate practice. This approach was strongly rejected by the majority. Arden LJ stated that it was not the function of the court to judge whether beliefs are fairly based on the passages or sources said to support them. Rix LJ agreed that the gap between scripture and practice was not important because the function of the Convention was not only to protect literalist religions: religion was commonly about interpretation. Further, variations in practice were not held to be sufficient to defeat the argument that individual beliefs engaged the Convention. Rix LJ emphasised that one of the problems of religion is the diversity of belief even within the umbrella of  a single faith.

However, it is submitted that cogency/consistency must remain a threshold criterion if a belief or faith is to engage protection under the Convention. Under Campbell and Cosans v. UK (1982) 4 EHRR 293, the Strasbourg Court had to consider what constitutes a philosophical conviction for the purposes of Article 2 of the First Protocol and concluded that it must attain a certain level of "cogency, seriousness, cohesion and importance". At a very basic level the same must surely be true of religious belief claiming protection under Article 9. For example, it must be doubtful whether someone claiming to be a religious Jew could claim protection for his individual belief in eating pork. The applicability of this basic threshold to Article 9 is indeed accepted by Arden LJ (at paragraph 258).

Content of Beliefs Claiming Protection

The majority affirmed the importance of the values of pluralism and diversity underlying the Convention. It followed that it was not the court's function, in assessing whether the Covention was engaged, to evaluate minority convictions through the lens of majoritarian beliefs. That is, a court should not ask itself whether it approved of beliefs seeking protection. In this connection the majority cited the European Court's judgment in Kokkinakis v. Greece 17 EHRR 397:

"As enshrined in Article 9, freedom of thought conscience and religion is one of the foundations of a 'democratic society' within the meaning of the Convention. It is, in its religious dimension, on of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has clearly been won over the centuries, depends on it."

However, it is to be noted that Convention jurisprudence does require certain minimum standards of content for beliefs claiming protection. In Campbell and Cosans v. UK (ibid) the Court stated that for a conviction to qualify as a "philosophical" conviction for the purposes of the Article 2 of the First Protocol it had to be "worthy of respect in a democratic society and not be incompatible with human dignity". Despite the pluralistic tenor of the majority judgements it is also noteworthy that the same basic threshold test is assumed to apply to religious beliefs under Article 9 by Rix LJ (at para.168) and by Arden LJ (at para. 258).

Article 9: Practice must be a Manifestation of Genuinely Held Religious Belief

If content and cogency are of limited relevance in assessing whether a belief engages article 9, the question arises how a court is to go about assessing whether a belief is a religious belief for the purposes of the Convention.

According to Arden LJ (who addresses the question most fully) the first task of the court is to ascertain the beliefs for which protection is claimed. This was a question of fact. The second question was whether the beliefs are genuinely held, also a question of fact. The third question was to ask whether the belief was religious. For this purpose, Arden LJ states that beyond the threshold criteria (consistent with ideals of a democratic society and human dignity, serious, important, cogent and coherent) the belief must:

"?at minimum be a system of beliefs relating to the divine, or to spiritual matters, which has a point of reference or values outside those of civic society".

It might be argued that this is a somewhat restrictive definition to put on religion. It would seem to exclude for example humanistic beliefs. In Arrowsmith v. United Kingdom (1978) 3 EHRR 218, whilst the Appellant' complaint was ultimately dismissed, the Commission accepted that pacifism was capable of being a belief meriting protection under the Convention (also see  X v. UK (1984) 6 EHRR 558). It is also unclear where Arden LJ's definition would leave non-theistic beliefs such as Scientology.

The Court also reaffirmed the Convention principle that in order for a practice to engage the protection of article 9 a practice must be a manifestation of religious belief as opposed to being merely motivated by such belief (see Arrowsmith v. UK (above), X v. UK (above), Kalac v. Turkey (1997) 27 EHRR 522, Jewish Liturgical Association v. France (2000) 9 BHRC 27) However, the majority affirmed that this doctrine was not to be over extended so as to deprive religion of protection under the Convention.  Buxton LJ drew a distinction between acts which were obviously religious in character and acts which were, on their surface, neutral as to the religion of the performer. On this basis he reasoned that the act of corporal punishment said nothing about the religion of the person performing it. Accordingly, corporal punishment could not be said to be a manifestation of religious belief. However, the majority rejected such a characterisation of the motivation/manifestation dichotomy. The true distinction was between acts which a person is required to perform by their religion and those which one is simply motivated to perform by religion. In the present case corporal punishment was believed to be a religious requirement by the Appellants.


The Principle of Non-Interference

The rock on which the Appellant's case ultimately foundered was the principle of non-interference relied upon unanimously by the Court of Appeal. The principle applies to both to claims under Article 9 and to those under the Protocol. It is expressed in a number of important Convention cases: eg. Kalac v. Turkey (above), Stedman v. UK (1997) 23 EHRR CD 329).

In summary, the principle is that there will be no breach of the Convention unless there is a material interference with the Appellant's ability to practice their religion or belief. There will be no such material interference if there is a way of properly and effectively practicing one's religious belief in a manner which does not conflict with national law. It follows that there will not be a material interference where the restriction arises from a set of circumstances which the Appellant has voluntarily accepted. Thus the complaint was ultimately dismissed by the Court on the basis that the Appellants were not prevented by the law from disciplining their children at home.

Robert Kellar, 1 Crown Office Row

QBD Administrative Court (Elias J) 15/11/2001

SUMMARY:

The claimants were head teachers, teachers and parents of children at certain Christian Schools. They argued that Section 548 Education Act 1996, as amended by s.131 School Standards & Framework, which abolished corporal punishment in all schools including independent schools, offended against their right of freedom of conscience and thought under Article 9 and interfered with the right of parents to have their children educated in conformity with their religious and philosophical convictions.

Held:

No such interference was disclosed by the legislation. A belief that corporal punishment should be imposed could not properly be described as a philosophical or religious conviction. It was merely a belief that one measure was more effective than another, albeit a belief supported by a religious text. It was not an article of faith. As far as Article 2 Protocol 1 was concerned, it could not be said that the state had failed to respect the right for the parents to have their children taught in an environment that would inculcate their Christian values. It did not require the children to do anything that was offensive to their religious beliefs, nor did it deny the school the right to impose a disciplinary regime to achieve that objective. It simply refused the right of teachers to impose a particular sanction which the parents considered was necessary to secure that discipline. The refusal to permit the sanction of corporal punishment could not fairly be described as an act of indoctrination.

COMMENT (November 30 2001)

It is significant that the claimants in this case did not choose to rest their challenge on Article 10, which might, one thought, have been a more appropriate basis for their notions of discipline in schools. This may have been because in Campbell and Cosans v United Kingdom (1982) 4 EHRR 293 the Strasbourg Court had said that "convictions" are not synonymous with "opinions" or "ideas" as referred to by Article 10, but were more akin to "beliefs" in Article 9. That puts the claimants in a difficult position because if a conviction does not fall fairly and squarely into some religious doctrine or other, it is hard to convince a tribunal that it deserves the protection of Article 9, even though that Article has been carefully configured to cover the convictions not only of believers but of agnostics and atheists as well. This case demonstrates the slippery nature of Article 9, as well as the broad reference to "philosophical convictions" in Article 2 Protocol 1, because of course absent some religious framework a court can decide which "convictions" it thinks deserving of protection, and which convictions should be left out in the cold. Corporal punishment is just one of those unfashionable ideas. But in order to have taken this challenge so far, it might be thought that the claimants had demonstrated that their beliefs fulfilled the very criteria that the Strasbourg Court had set out for Article 9 protection: convictions, said the Court in Campbell and Cosans, should denote "views that attain a certain level of cogency, seriousness, cohesion and importance".

Rosalind English, 1 Crown Office Row

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