Freedom of Dress..

[liadnan]

Judgment has come down from the Lords in the Begum case: whether it is a disportionate interference with the right to freedom of religion for a state school to ban wearing the jilbab (though not less extreme forms of Islamic dress)

(per Bingham)

1.The respondent, Shabina Begum, is now aged 17. She contends that the appellants, who are the head teacher and governors of Denbigh High School in Luton ("the school"), excluded her from that school, unjustifiably limited her right under article 9 of the European Convention on Human Rights to manifest her religion or beliefs and violated her right not to be denied education under article 2 of the First Protocol to the Convention. Bennett J, ruling on the respondent's application for judicial review at first instance, rejected all these contentions: [2004] EWHC 1389 (Admin); [2004] ELR 374. The Court of Appeal (Brooke, Mummery and Scott Baker LJJ), reversing the judge, accepted each of them: [2005] EWCA Civ 199; [2005] 1 WLR 3372. The appellants, with support from the Secretary of State for Education and Skills as intervener, submit that the judge was right and the Court of Appeal wrong.

2. It is important to stress at the outset that this case concerns a particular pupil and a particular school in a particular place at a particular time. It must be resolved on facts which are now, for purposes of the appeal, agreed. The House is not, and could not be, invited to rule whether Islamic dress, or any feature of Islamic dress, should or should not be permitted in the schools of this country. That would be a most inappropriate question for the House in its judicial capacity, and it is not one which I shall seek to address.

Rather to my surprise, they overturned the CA and restored the trial judge's dismissal of the case.

[Bingham] 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.

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[Hoffman] 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.

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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.

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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.

I think it's the right decision, (there were three other schools in the area she could have gone to where she could wear the jilbab) but I really didn't expect the appeal to succeed.

I have a vague personal interest in the case in that one of the junior counsel being led by Ms Cherie Booth QC for the applicant throughout the case was a friend at Corpus: one of the most brilliant people I have ever met.

Comments

[kittenexploring.livejournal.com]

Our occasional uniform-free days were a hellish torment as I struggled to find something suitable other than my school uniform to wear.

It was really more of a duoform since there were separate uniforms for male and female. I've always found that odd.