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September2006,pp.131

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Schooluniformrevisited:procedure,

pressureandequality

DamianCarney*andAdeleSinclair

UniversityofPortsmouth,UK

TheHouseofLords’decisionin

R.(ontheapplicationofBegum)v.TheHeadteacherandGovernorsof

DenbighHighSchool

consideredwhetheraparticularschooluniformpolicyinfringedastudent’s

righttomanifestherreligionunderArticle9.Thispaperanalysesthecontentofthisdecision,and

exploreshowschoolsshouldapproachtheissueofbalancingregliousrightswithotherinterestsin

designingtheiruniformpolicy.

Introduction

TheHouseofLordshasgivenjudgmentforDenbighHighSchoolinthecaseof

R.(on

theapplicationofBegum)v.TheHeadteacherandGovernorsofDenbighHighSchool

1

reversingtheCourtofAppeal’sdecision,

2

andrestoringtherulingofBennettJ.atfirst

instance.

3

TheCourtofAppealhadruledthattheschoolhadactedincontravention

ofShabinaBegum’srighttomanifestherreligionunderArticle9oftheEuropean

ConventionofHumanRightsbyunjustifiablyrefusingtoallowhertowearthejilbab

atschool,andconsequentlyhadalsodeniedherrighttoeducationinbreachofArticle

oftheFirstProtocoltotheConvention.Itwasfoundthattheschoolhadexcluded

2

herandhadactedillegallyinnotfollowingthecorrectstatutoryproceduretoexclude

students.Incontrast,theLordsfoundthattheschoolhadnotbreachedthe

Conventionintheparticularcircumstances,and,becauseitwasherdecisionnotto

returntoschoolunlessshewasallowedtowearthejilbab,shehadnotbeenexcluded.

ThisarticlereviewsthiscaseinthelightoftheAppellateCommittee’sjudgment.It

considershowbothinlawandinpracticethedecisionwillimpactontheabilityof

schoolstodictateschooluniform.

Theimportanceofthefacts

LordBingham,intheHouseofLords,beginshisjudgmentbystating:

Itisimportanttostressattheoutsetthatthiscaseconcernsaparticularpupilanda

particularschoolinaparticularplaceandataparticulartime.

...

TheHouseisnotand

*Correspondingauthor.PortsmouthBusinessSchool,RichmondBuilding,PortlandStreet,

Portsmouth,HampshirePO13DE,UK.Email:[email protected]

ISSN0953-9964(print)/ISSN1469-5774(online)/06/02/30131-18

#

Taylor&FrancisLtd

2006

DOI:10.1080/09539960600919829

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.4

It was clear therefore that the Lords did not believe that their decisions would lay down any general policy applicable throughout the state schooling system.

The claims

Under Article 9(1) of the Convention everyone has an unqualified right to freedom of religion or belief including the freedom to change his or her religion or belief. By contrast, the freedom to manifest his or her religion or belief is qualified under Article 9(2) as ‘subject only to such limitations as are prescribed by law and are necessary in a democratic society ... for the protection of the rights and freedoms of others’.

There are therefore two essential questions: Was the imposition of the school uniform an interference with the right to manifest her religion? And if so, was such interference justified in terms of Article 9(2)?

Interference

The Governing Body of Denbigh School, after consultation with various Muslim representatives and authorities, had approved a uniform that accommodated the need for Islamic girls from the age of menstruation to be covered except for their face and hands.5 This is also a requirement for some other religions, such as Hinduism and Sikhism. The school uniform was intended to respond to these religious groups by specifying a headscarf and shalwar kameeze as an alternative to the more traditional form of uniform. This was acceptable to the majority of Muslims consulted but it did not conform to the requirements of those who consider that an outer coat must be worn to avoid a woman’s body shape showing in public. The specified shalwar was not permitted to be baggy and so separate legs could still be discerned below the mid-calf kameeze.

The Court of Appeal, in finding that the imposition of the uniform interfered with Shabina’s right under Article 9, focused on the way the school had addressed the problem. The school should have recognized that the claimant had a right and that the school bore the burden of justifying any interference with that right. Instead they had established a uniform policy to satisfy the majority and had demanded that she conform to the policy without considering her individual beliefs and any justification for denying them.6

The House of Lords attacked this judgment both on the issue of whether there was any interference, and because of the emphasis placed in the Court of Appeal on the process adopted by the school.

The majority of the Lords found that there was no interference and that she had not been denied the right to manifest her religion in this way. Lord Hoffmann commented: ‘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’.7

Lord Bingham pointed to the evidence that Shabina’s parents had placed Shabina and her elder sister in the school, outside the normal catchment area for where they lived, in full knowledge of the uniform policy.8 In addition, both Shabina and her sister had worn the school uniform without complaint (in Shabina’s case for two years) and there were other schools in the area which allowed the jilbab to be worn.9 She was not being denied the opportunity to practice or demonstrate her faith in a state school.

Although of note that she had made a new request, having previously complied with the uniform, i.e. the uniform policy was already in existence and she had previously accepted it, this is a subsidiary matter when considering the question of choice. The right to change belief is clearly protected by Article 9 and thereby her wish to manifest it.10 The key issue was whether Shabina’s right to manifest her religion was satisfied by the availability of other schools permitting the jilbab.

The European Court of Human Rights’ case-law, relied upon by the majority of their Lordships, reflects a very simple set of principles: namely that there is no interference with religious belief if the person in question either voluntarily entered the relationship where his religious beliefs were being compromised,11 or had the opportunity to practice their religious beliefs elsewhere or despite the state’s restriction.12 Where there is no real choice, such as in Buscarini v. San Marino13 where the law required the atheist members of the San Marino legislature to swear an oath on the Holy Gospels, the Court has been willing to find an infringement of Article 9 (Edge, 2000).

The Court of Appeal in Begum had sought to distinguish employment cases like Stedman v. United Kingdom from Shabina’s situation.14 They claimed, that unlike Shabina, employees in Stedman-like cases had voluntarily entered contractual situations. The possibility of Shabina being accommodated in an alternative state school was irrelevant,15 as the state had a statutory duty to provide education for its pupils. In the House of Lords, Lord Hoffmann expressed the view that this ‘contractual choice’ argument was confusing,16 and that the only obligation upon the state was a statutory duty to provide an education, not an education in a particular school. This conclusion accords with the European Court of Human Rights’ judgment in the Belgian Linguistics Case (No. 2)17 where a claim, under Article 2 of Protocol 1 by French speaking parents that their children should be taught in French in their local schools, failed because the Court held they had no right to be taught in a particular school. This also accords with the decision of the House of Lords in Abdul Hakim Ali v. Head Teacher and Governors of Lord Grey School decided on the same day as Begum.18

Both the voluntary and alternative lines of argument were used to support the majority’s findings in the Lords that no interference had occurred. The majority’s approach is reflective of the Strasbourg jurisprudence which gives the state a wide margin of appreciation in placing restrictions on the manifestation of religion without a finding of there to be ‘an interference’. Lord Hoffmann accepted that cases such as Jewish Liturgical Association Cha’are Shalaom Ve Tsedek v. France,19 which require that manifestation of the religion be impossible before an interference is found,20 may be setting the requirement too high,21 but he still felt on the evidence that ‘there is nothing to show that Shabina would even have found it difficult to go to another school’.22

However, the existence of alternative schools in the area that permitted their female pupils to wear the jilbab failed to convince either Lord Nicholls or Baroness Hale that there was ‘no interference’. The majority were in the words of Lord Nicholls ‘over-estimat[ing] the ease with which Shabina could move to another, more suitable school and underestimate the disruption this is likely to cause her education’.23

These two judges thought that there was a need for the school to explain and justify their decision in such cases. They thought that in any case of this type there needs to be an explanation of how the school applied the balancing test between the individual’s religious rights and the competing ‘public interests’, which takes into account the impact on the student’s religious practice (including

‘practicalities’).24

This minority view has considerable merit. Whilst on the facts it certainly was not impossible for Shabina to practice her religion whilst attending a state school, the refusal of the majority to acknowledge that a restriction, albeit a justified one, had been placed on her beliefs, creates the opportunity in other scenarios for judges to ignore an interference with an essential requirement of a faith without requiring it to be justified. Strasbourg’s willingness to do this has been criticized by Overy and White, who claim it ‘demonstrates a certain lack of empathy for the believer, and has appeared only to pay lip-service to the commitment to religious freedom’ (Overy & White, 2002, p. 275).

In the Court of Appeal, Brooke LJ claimed that once the theological validity of a position on school dress is established then the school would have to take this into account. Here the school had only taken steps to establish uniform choices which satisfied ‘mainstream’ religious views. However, as the Court of Appeal focused on the faulty process followed by the school, it did not find it necessary to rule on justification as can been seen by the comments made by Scott Baker LJ, who said:

What went wrong in this case was that the School failed to appreciate that by its action it was infringing the claimant’s Article 9(1) right to manifest her religion. It should have gone on to consider whether a limitation of her right was justified under Article 9(2) in the light of the particular circumstances at the School. As it did not carry out this exercise it is not possible to conclude what the result would have been.25

Furthermore Mummery LJ stated:

As already explained, this does not mean that it would be impossible for the School, if the matter were approached from the right direction, to justify the school uniform policy with regard to another pupil adopting the same position as the claimant.26

By contrast all five Law Lords, having ruled that process was not the key to human rights, went on to consider whether the school’s decision was justified.

Justification

This is where the details of this case are particularly significant. The school was made up predominantly of Muslim children. The headmistress had a good understanding of the requirements of Muslim dress as she herself was from a Bengali Muslim background,27 and there was significant representation on the Board of Governors from the Muslim Community. Lord Bingham comments that the school ‘went to great trouble to devise a uniform policy which respected Muslim beliefs but did so in

an inclusive unthreatening and uncompetitive way’.28 Article 9(2) states that:

... the 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 or freedoms of others.

There could be a general challenge to this interference on the basis that there is no justification for school uniform at all. Regulated dress not only raises issues under Article 9 but also under Articles 8 and 10 (right to a private and family life and freedom of expression) where it acts as a restriction upon a person’s self-expression of their lifestyle and dignity. However, the case law shows that Strasbourg takes a very unsympathetic approach to claims based on dress codes.29 The head teacher’s view that ‘school uniform plays an integral part in securing high and improving standards, serving the needs of a diverse community, promoting a positive sense of communal identity and avoiding manifest disparities of wealth and style’,30 seems to have been accepted by both Appellate Courts, and there is little evidence from its previous judgments to suggest that the European Court of Human Rights would take a different view. Yet none of the reasons, as stated by the head teacher, articulates a justification explicitly recognized in Article 9(2) and there would have been strong criticism of their Lordships’ position if they had not gone on in their judgments to expand the basis for their finding that the school’s policy on uniforms was justified within the terms of Article 9(2).

When considering the proportionality of the school’s action, credence was given to the claim that the uniform was necessary for the protection and freedom of others. Reference was made to the finding of Bennett J that ‘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’.31

The Lords accepted that these girls needed protection from external pressure having heard strong evidence that there was a need in this school to promote social cohesion and avoid cliques. There was additional evidence before the Lords that a number of Muslim girls had indicated, after the judicial review, that they were frightened that they might be pressured into wearing the jilbab.32 In addition, there had been evidence from the Deputy Head of previous trouble where pupils had begun to identify themselves on racial grounds,33 and from the headmistress, a reference to a picket ‘by groups of young men who did appear to be from the more extreme of Muslim traditions’ protesting against the education of Muslims in secular schools.34

Miss Booth QC, representing Shabina, pointed to the inconsistency of permitting the hijab and other clothing which identified religious groups, whilst banning the jilbab. This can be contrasted with the position put by the French Government that its ban on the hijab was part of the total ban on the wearing of all significant religious clothing and symbols. Lord Nicholls said that this discrepancy was addressed by the apparent perception of some Muslims that adherence to the jilbab was an extremist version of their religion.35 There was also some evidence that some non-Muslim pupils were afraid of people wearing the jilbab as they associated this with people holding extreme views.

The Lords referred to the case of Sahin v. Turkey36 in which it was stated that justification must be judged in the local context allowing for a margin of appreciation. Arguments for justification would vary with the local circumstances. Baroness Hale, drawing from an article by Professor Radnay (Radnay, 2003), said that in this case the school was trying to balance the conflicting policy priorities of respect for individual autonomy and cultural diversity with the promotion of respect for female equality and freedom (see also Knight, 2005).37 She concluded that the balance the school had drawn between these competing agendas and rights: ‘was indeed a thoughtful and proportionate response to reconciling the complexities of the situation’.38

The Lords therefore unanimously concluded that if there was interference it had been justified.

Issues solved and raised

In many ways there are no winners in this case. Someone of sincere belief has been deprived the right to wear clothes which conform to that belief. The school has been justified in its decision but at the same time has attracted the sort of publicity that any school would shy away from, particularly one keen to foster and value pupils from a variety of backgrounds.

Various arguments were propounded to justify the limits on the right to manifest one’s religion or belief through dress. Several relate specifically to the Begum case. Lord Bingham, near the beginning of his opinion, stated in the clearest terms his belief that the courts were not setting a precedent but dealing with a specific set of facts.39 So how are schools and governing bodies to address the question of school uniforms post-Begum? Amongst a plethora of policy and practical issues of particular interest are their Lordships’ discussion of the relationship between human rights and judicial review in terms of correct procedures and their acceptance that some uniform could be imposed without breach of human rights. It is necessary to consider the parameters for this acceptability and with this the unique position of schools and Baroness Hale’s comments on the conflict between female and religious discrimination.

The nature of human rights and judicial review: the right procedural approach

The House of Lords objected to the mechanistic approach of the Court of Appeal, where Brooke LJ found that the school was in breach of the Human Rights Act 1998 because it failed to ask itself the right questions namely:

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

. Subject to any justification that is established under article 9(2), has the Convention right been violated?

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

. Did the interference have a legitimate aim?

. 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?

. Was the interference justified under article 9(2)?40

To observers of human rights, this set of questions is an obvious unwrapping of the contents of Article 9 and an incorporation of the principle of proportionality, and reflects the approach the judges have taken in a number of post-Human Rights Act cases.41 However, this approach has been criticized as placing too much emphasis on the procedure that has been followed rather than the outcome of the decision-making process.42 As Thomas Poole (2005, p. 690) points out:

... proportionality is a test to be applied by the court when reviewing decisions of public authorities after they have been made (ex post). It is not a test which ought to mean that public authorities should themselves adopt a proportionality approach to the structuring of their decision-making ex ante.

Had the Court of Appeal considered the outcome rather than the process they would most likely have found the interference justified. The Lords’ conclusion that if the outcome is ‘not wrong’ there is no breach of Article 9 makes sense. However, doubt must be thrown on Lord Hoffmann’s contention that: ‘Head teachers and governors cannot be expected to make such decisions with textbooks on human rights law at their elbows’.43

Like Poole (2005, p. 693), Lord Hoffmann is of the opinion that the Court of Appeal’s approach is a recipe for a ‘legal formalism’ approach that if public administrators follow the legal tests developed by the courts they will be less likely to breach the law. Neither Lord Hoffmann nor Poole believe that educationalists are able to apply these complex tests properly. However, head teachers and governors, are already aware, and show the competency to understand, a mass of legal rules from employment law, to health and safety regulations to school discipline. This is often distilled to them through the increasing number of education law textbooks available, and they may be able to use the guidance offered by these texts in the designing of a Convention-compliant policy. Indeed, while it may be difficult for head teachers to be aware of the most recent case on the issues, or understand the finer points of detail in court judgments, they are obliged by the Human Rights Act, as a public authority, to be ‘Convention compliant’.44

To ensure that this happens there needs to be a distillation of the essence of what ‘Convention compliance’ means. The most obvious way of doing this would be via some clear Government guidance translating, if necessary, the relevant case into clear language understood by the layperson (Poole, 2005, p. 693), although a clear court judgment may also offer help. Neither has been forthcoming.

Matters of policy: state, courts and schools

The Court of Appeal’s guidelines may have been found to be too mechanistic, however, it should be noted that much of the approval given to this school’s decision was based upon the process they followed prior to the imposition of the school uniform. The courts will look at each case on its own particular merits including such considerations. Where schools do not follow arbitrary procedure what general principles should dictate their approach to the subject? What guidance is there at state level and what can be gleaned from the judgments in Begum?

The state level ‘total ban’ approach

Many religions have groups within them that require modest dress for women. This is the case with many Christian and Islamic groups. Other religions have dress requirements relating to men. Islamic men are required to cover their bodies whilst Sikhs and orthodox Jewish men must cover their heads.

If rights are to be denied, it may seem the fairest approach is to deny all rights. Miss Booth QC raised this issue when asking ‘why the hijab and not the jilbab?’. Some states have implemented a total ban on ostentatious religious symbols or dress,45 and in certain circumstances the European Court on Human Rights has approved the complete ban approach.

In Sahin v. Turkey,46 which their Lordships regularly referred to in this judgment on the basis that it permitted states a wide margin of appreciation which would take into account the local context of any Article 9 dispute, the case involved whether a female Muslim woman’s Article 9 rights were infringed by her being denied access to lectures, courses and examinations at the University of Istanbul because she wore an Islamic headscarf prohibited by university regulations. The Grand Chamber by 16 to 1 adopted the reasoning of the Chamber that:

... when examining the question of the Islamic headscarf in the Turkish context, there must be borne in mind the impact which wearing such a symbol, which is presented or perceived as a compulsory religious duty, may have on those who choose not to wear it .... The issues at stake include the protection of the ‘rights and freedoms of others’ and the ‘maintenance of public order’ in a country in which the majority of the population, while professing a strong attachment to the rights of women and a secular way of life, adhere to the Islamic faith. Imposing limitations on freedom in this sphere may, therefore, be regarded as meeting a pressing social need by seeking to achieve those two legitimate aims, especially since ... this religious symbol has taken on political significance in Turkey in recent years.

... The Court does not lose sight of the fact that there are extremist political movements in Turkey which seek to impose on society as a whole their religious symbols and conception of a society founded on religious precepts.

... The regulations concerned have to be viewed in that context and constitute a measure intended to achieve legitimate aims referred to above and thereby to preserve pluralism in the university.47

There can be no doubt that the position of the Turkish state is threatened by Islamic fundamentalism, and therefore measures to restrict this threat, including restrictions on the manifestation of support for this cause by wearing the stricter forms of Islamic dress in public institutions, are perhaps needed. However, such threats to societal cohesion are less obvious in the UK, although they may exist in the particular circumstances. The restriction on the wearing of the jilbab by Shabina in this case was ultimately justified by the need for a degree of social cohesion within the school, it was essentially accepted that without a uniform school dress policy divisions could be forthcoming as past experience had shown.

Furthermore, the rigid policies of Turkey and France at state level are justified by each state’s adherence to a constitutional guarantee of secularism.48 Where claims have been brought before the Strasbourg Court about constitutional secularism interfering with the right to manifest one’s religion,49 the Court has accepted such interferences as necessary*/reflecting the wide margin of appreciation which is necessary to reflect the divergent positions that signatory states have on the issue of state and religion (see Knight, 2005, pp. 502!505).

UK governments have never regarded it as appropriate to adopt the type of bans imposed in Turkey and France. This is because there is an affiliation between church and state in this country, and there has been a more proactive approach in Britain in the areas of sex, race and disability discrimination than there has been in many other European countries.50 Whilst the UK may have an established Church, it also has a long history (on the mainland at least) of religious tolerance, stemming from the repeal of most of the anti-Catholic legislation in the late eighteenth/early nineteenth century.51 It is willing not only to finance religious schools that adhere to the state religion, but also education provided by other religions (see Blair, 2005, pp. 6!16). Therefore, unlike in France, religious expression in schools is tolerated, but difficulties arise where the school is, like Denbigh High School, a non-voluntary aided school where their pupils may hold many divergent religious views. In such circumstances, potential conflicts may arise between different groups, and between individual groups and the school’s disciplinary structure. What is to be done when such issues arise?

Policy setting is for Parliament not the courts

In Begum their Lordships showed considerable deference towards Parliament and the administrators.52 Parliament had allowed schools to decide policy without any detailed national policy,53 and the courts felt that it was inappropriate to secondguess the school which had considered all the evidence.54 The evidence in the appeal had shown the school was aware of the potential cultural difficulties (if not human rights implications) of a school uniform policy. The school had consulted widely, had not arbitrarily adopted a policy, and were able, as the judgment shows, to justify the adoption of the policy. Denbigh High School was unusual in that its teachers and governors had more than average knowledge, and access to advice, about the requirements for religious dress, in that the request was made after the dress code had become established and because there was evidence of potential problems from cliques and pressure on other pupils. Whilst the House of Lords may have felt in the circumstances unable to criticize the decision of the school in this case, it is clear that their Lordships felt they retained a discretion to intervene when the policy adopted is clearly in breach of the Convention.

So, in the absence of ‘detailed national policies’, can any broader policies be discerned to assist schools?

The limits of discrimination and justification: the Equality Act 2006

In February 2006, the Equality Act received the Royal Assent making religious discrimination in state education unlawful (s.49). Previously, only employment and allied matters were covered by religious discrimination law.55 This legislation could give an indication of how schools should approach the boundaries of school uniform as there have been several cases based on sex and race discrimination and dress codes.56

Section 45 of the Equality Act defines both direct and indirect discrimination. Unlike disputes concerning sex-based dress codes where direct discrimination is usually the issue,57 but similar to race discrimination, it will usually be indirect discrimination that will form the basis of a claim based on dress associated with religion. The definition of indirect discrimination is contained in Section 45(3) which reads as follows:

(3) A person (‘A’) discriminates against another (‘B’) for the purposes of this Part if A applies to B a provision, criterion or practice*/

(a) which he applies or would apply equally to persons not of B’s religion or

belief,

(b) which puts persons of B’s religion or belief at a disadvantage compared to some or all others (where there is no material difference in the relevant circumstances),

(c) which puts B at a disadvantage compared to some or all persons who are not of his religion or belief (where there is no material difference in the relevant circumstances), and

(d) which A cannot reasonably justify by reference to matters other than B’s religion or belief.

This provides that the claimant must show that there is a provision, criterion or practice, such as school uniform, which places a religious group at a particular disadvantage compared with other groups, and that disadvantages that individual. This part of the definition should be relatively easy to satisfy (see recent discussion by Blair & Aps, 2005, pp. 11!13). It is clear that Shabina would be able to show under this section that she is at a disadvantage because the school uniform policy prevents her from wearing the clothes associated with her religious beliefs.

However, it will only be indirect discrimination where the school cannot reasonably justify the requirement by reference to matters other than the pupil’s religion or belief.58 Discrimination case law has shown that this justification must generally be one which is objectively justified.59 The stringency of the justification test has been the subject of much debate, hinging on the particular discriminatory grounds,60 whether the justification is one based on state policy,61 and whether the particular provision is reflecting applicable provisions of EC law.62 This part of the definition differs from other similar provisions. The word ‘reasonably’ is not present in the corresponding provision of the Sex Discrimination Act 1975 nor has Parliament adopted the phrase ‘a proportionate means of achieving a legitimate aim’*/key criteria for religious indirect discrimination in employment which unlike discrimination in education derives from an EC Directive,63 and where the groups affected are categorized by race or of a particular sexual orientation.64 ‘Reasonably justify’ adopts the approach of cases which allow a wide margin of discretion in the setting of rules, such as school uniform.65 It would seem that whilst displaying the Government’s commitment to non-discrimination, the new law may not promote a materially different approach to that taken in Begum. The Denbigh governors would probably be able to satisfy this test because of the argument based on ‘inclusiveness’ and giving the children a sense of shared identity.

Another significant change to the law is contained in s.44 of the Equality Act. This broadens the definition to ‘religion and belief’ to cover specifically ‘a lack of religion and belief, reflecting Strasbourg jurisprudence on this issue.66 Indirect discrimination will protect a person who wishes to ‘manifest’ religion or belief (and non-belief) unless there is justification. The balancing of belief and non-belief is therefore most relevant and may lend support and justification to a school that tries to find the middle ground.

Acceptable standards

The adoption of an ‘acceptable standard’ of dress whether at state, region or school level, would be in line with how courts have approached the problem of dress codes and sex discrimination. By adopting a ‘swings and roundabouts’ approach to ‘less favourable treatment’ the courts have allowed employers to impose ‘socially acceptable’ dress codes upon their employees, even where the ‘equality of dress requirements’ in practice reinforces sexual stereotypes and still impacts more upon a man and his freedom to dress as he chooses than upon his female counterpart.67 This approach has similar plusses and minuses when applied to religious dress but may give a more acceptable solution than the total ban.

One immediate problem in finding what is ‘acceptable’ is the nature of belief and non-belief. One person may believe it is a sin to uncover her head, showing her hair, and ‘sin’ is a very powerful and controlling message. Another will reject this assertion as untrue and psychologically harmful. The atheist may hold as strong an opinion as the theist. As indicated above national law seeks to protect both from discrimination.

A simple solution would be the ‘all’ rather than the ‘nothing’ approach and permit religious dress and practices in schools unless they constitute a breach of criminal law or health and safety regulations*/for example the smoking of cannabis, female circumcision or violent exorcisms. This is the position for dress, jewellery, etc, in other aspects of life. This would end discrimination and it would be in line with those proponents of ‘freedom in the absence of law’. However, this approach was not supported in the House of Lords. The majority did not consider the imposition of the uniform in schools was necessarily an interference at all with the Article 9 right and in any case was justified on the facts. Specific support was given for the rationale of school uniform as well as reasons for controlling certain forms of religious dress.

Alternatively, the law might reflect the overall majority opinion or respond to the central tenets of each main religious grouping, i.e., Christian rather than Anglican, Catholic, Methodist, Jehovah’s Witness, Plymouth Brethren, etc. The merit and failing of this is that most ‘dress’ issues will arise outside the acceptance level of the moderate majority and the more particular the religious group (whether regarded as ‘unusual’ or ‘extremist’) the more their requirements will depart from the norm. ‘Moderate opinion’ is a simple way of dealing with the matter, but human rights are usually attempting to protect minority individual liberties from the controlling group. There needs to be something more than a wish for individuals to conform when a deeply held conviction is at stake. However, any attempt to accommodate all beliefs in relation to school uniform policy would lead to a dress code that could hardly be said to be uniform. A justification that a dress code based on ‘moderate opinion’ is the only one that is acceptable, can also lead down the slippery slope of the state characterizing the non-moderate views as less acceptable. This gets very close to saying certain ‘views or beliefs’ lack merits or are less valid, and Strasbourg has sent clear signals that the state should never decide its ‘religious policies’ on this basis.68

The House of Lords found the additional reasons present in the Begum case because of facts pertaining to that particular school, but one Law Lord went further and suggested that certain forms of dress could conflict with national policy and, although an overall ban was not suggested, a school could justifiably take the view that religious requirements, such as the jilbab, were in conflict with the rights of women.

Equality of women

Of all the Law Lords only Baroness Hale confronted head on the problematical issue which attaches to any dress requirements imposed solely on women. As already mentioned, some Christian and most Islamic groups have dress requirements for women that are more significant both in appearance and meaning than they do for men. Baroness Hale recognized the right of a woman to adopt religious clothing and that there could be many reasons for doing so. These included empowerment as well as submission. She stated that: ‘the sight of a woman in 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’.69

But she goes on to say that ‘schools are different’.70

She argued that schools should provide the opportunity for pupils to choose the part they wish to play in society and that a school uniform can smooth over ethnic, social and religious divisions.

Like it or not, this is a society committed in principle and law, to equal freedom to men and women to choose how they live 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 distance themselves from the dominant culture. A good school will enable and support them.71

She suggests, relying on Radnay (2003), that schools should give girls the opportunity to choose feminist freedom not enjoyed within their home. This resistance to pressure goes beyond that mentioned by the other judges who refer to other pupils and external groups. This is promoting the idea that a girl should be exposed to the potential for women within this country which may not be part of the traditional role that a woman plays within her family home.

Genuine consent

Quoting Professor Frances Radney (2003), Baroness Hale drew attention to the dilemma that if there is not true consent where there is patriarchal family control then there may be the response of Turkey or France where the state is sending a clear message that women’s rights must be recognized. However desirable this message may be, whether delivered nationally or at individual school level, this may represent an untenable interference with a parent and child’s freedom of choice or lead to further segregation by families opting to send their children to independent schools. There is not much room for compromise where the policy of protecting the manifestation of religion is in direct conflict with other equal opportunity policies. Some choice has to be made.

Emphasis was laid on the ability of adolescents to give true consent. Two issues of consent were present in this case. The first was that although their Lordships did not doubt Shabina’s wish to wear the jilbab, there are many statements made about the involvement of her brother in initially confronting the school and in bringing her case forward, which suggest she may have been influenced or pressurized to wear the jilbab.72 She did not protest alone. Secondly the issue of peer pressure was treated very seriously. It should be noted that many people would consider modesty to be most desirable especially when considering the peer pressure placed on the average teenager to partake in sex, drugs and ‘Ibiza’ style behaviour! Few children would consent to wear school uniform, yet it is imposed on them by school and parents. However, the requirements under scrutiny relate only to girls and in a discussion focusing on rights and freedoms both the nature of the ‘consent’ and the ‘meaning’ of what is being consented to have significance.

Meaning

‘Meaning’ is another very difficult matter. Is the jilbab sex discriminatory? Sikhs, Hindu and Jewish boys may be required to wear a specific form of headwear. How different is this from the requirement of Muslims that girls should cover their hair? Should schools be required to ask*/what do these forms of dress mean? Is it a mark of privilege or enforced modesty? It is clear that the hijab may be different things to different people and indeed may be a political as well as religious statement. In which case should other political emblems be allowed? Such debates are beyond the scope of this article other than to indicate that once the concept of a uniform is accepted, lines must be drawn.

‘Meaning’, however relevant, is a dangerous area and may be as impossible to fathom as the genuineness of an individual’s belief. Clearly schools cannot be required to test such matters. Some ‘general acceptance’ test is clearly desirable. The jilbab whatever its meaning to a particular individual seems outwardly to be in conflict with the state’s promotion of equality for women. It forbids any of the female body shape to be shown and it restricts movement without imposing similar limitations on men. The same cannot be said of most headwear. For this reason there is a strong argument, taken up by Baroness Hale, that the state should not participate in its promotion within their schools.

Conclusion

The House of Lords have denied any general guidance to schools in considering the appropriateness of religious dress other than that contained in Article 9. However, some guidance may be drawn from this decision despite the specificity of its facts. Despite the Lords’ criticism of the mechanistic approach of the Court of Appeal, schools would do well to adhere to such recommended procedures since the ‘All’s well that ends well’ approach to Begum may not be supported by the facts of their particular case. The individual should be considered and his or her rights only overridden to meet other clear and justifiable factors.

Baroness Hale suggests that a school is in a particular position to influence young people and as such should not support anything that might limit the prospects of its pupils. In particular it should promote equal freedom to men and women. In suggesting that wearing of the jilbab goes against this overriding aim, it would seem that, although the House of Lords has not ruled that it should be banned in schools, it is likely that state schools which follow the Court of Appeal’s advice, will be able to make a case for banning it on sexual equality grounds. If not, remembering that only Baroness Hale expanded on this point, then particular note should be taken of the facts of Begum. Considerable emphasis was placed by their Lordships upon the make-up of the school and the school authorities and the acceptance that there might be undesirable pressures and the forming of religious subgroups. Without recognition that the sexual equality issue may amount to justification on its own, the law might appear curious indeed. Could it be that the courts may be prepared to uphold a ban on the jilbab in a predominantly Muslim school where there is more risk of pressure to wear it, but find such a ban is in breach of Article 9 and Section 49 of the Equality Act 2006 where a lone or small group of Muslim pupils wish to wear the jilbab in a predominantly secular or Christian school!

Notes

1. (2006) UKHL 15.

2. (2005) EWCA Civ 199.

3. (2004) EWHC 1389 (Admin).

4. Supra Note 1 at (2).

5. Ibid. at (7).

6. Supra Note 2 at (78).

7. Supra Note 1 at (50).

8. Ibid. at (8).

9. Ibid. at (16).

10. See Article 9(1).

11. See Kontinnen v. Finland (1996) 87 DR 68, Stedman v. United Kingdom (1997) 23 EHRR CD 168.

12. See Sahin v. Turkey (2005) 41 EHRR 8, Jewish Liturgical Association Cha’are Shalaom Ve Tsedek v. France (2000) 9 BHRC 27.

13. (2000) 30 EHRR 208.

14. Stedman, supra Note 11.

15. Supra Note 2, Mummery LJ at (84).

16. Supra Note 1 at (57).

17. (1979!1980) 1 EHRR 252.

18. (2006) UKHL 14 at (24).

19. Supra Note 12.

20. Supra Note 1 at (51)!(52). See also Buscarini, supra Note 13.

21. See also Lord Nicholls in R. v. Secretary of State for Education and Employment ex parte Williamson (2005) UKHL 15 at (39).

22. Supra Note 1 at (52).

23. Ibid. at (41).

24. Ibid., per Lord Nicholls at (41), per Baroness Hale at (98).

25. Supra Note 2 at (94).

26. Ibid. at (88).

27. Supra Note 1 at (5).

28. Ibid. at (33).

29. Sahin, supra Note 12; Karaduman v. Turkey (1993) 74 DR 93; Dahlab v. Switzerland (App.

42393/98).

30. Supra Note 1 at (6).

31. Ibid. at (58).

32. Ibid. at (18)

33. Supra Note 2 at (53)

34. Supra Note 2 at (56), supra Note 1 at (18).

35. Supra Note 1 at (65).

36. Supra Note 29.

37. Supra Note 1 at (98).

38. Ibid.

39. Ibid. at (2).

40. Ibid. at (75).

41. See R. (Daly) v. Secretary of State for Home Department (2001) 2 AC 532 at (27).

42. Supra Note 1 at (28) to (29) and (68).

43. Ibid. at (68).

44. Section 6(1) of the Human Rights Act 1998.

45. See Law 2004!228 of 15 March 2004 in France which banned ostensible religious symbols and dress in state schools this reads: ‘141!5!1 in the Education Code which provides: ‘‘In State primary and secondary schools, the wearing of signs or dress by which pupils overtly manifest a religious affiliation is prohibited. The school rules shall state that the institution of disciplinary proceedings shall be preceded by dialogue with the pupil’’’.

46. Supra Note 29.

47. Ibid at (115) adopting the reasoning in paras. 107!109 of the Chamber’s judgment.

48. See Article 1 of French Constitution 1958; Article 2 of the Turkish Constitution 1982.

49. See Sahin, supra Note 29; Karaduman v. Turkey (App No.16278/90), 74 DR 93).

50. See for example Act of Settlement 1707.

51. Catholic Relief Act 1778, Catholic Relief Act 1791 and Catholic Emancipation Act 1829.

52. Supra Note 1 at (64).

53. Supra Note 2 at (22) where the vagueness of DfES Circular 0264/2002 is described by Brooke LJ in CA as being ‘advice at a high level of generality’.

54. Supra Note 1 at (34) and (64).

55. Employment Equality (Religion or Belief) Regulations 2003, SI 2003/1660.

56. For example, Schmidt v. Austick Books Ltd (1976) ICR 85, Smith v. Safeway plc (1996) ICR 868 Dawkins v. Department of Environment (1993) ICR 517 (a case brought under the Race Relations Act 1976 prior to Employment Equality (Religion or Belief) Regulations 2003), Department for Work and Pensions v. Thompson (2004) IRLR 248.

57. This is because dress codes are often set on the grounds of sex. For example, short hair for men, hair tied back for women. See Schmidt and Safeway, supra Note 56 above.

58. See Section 45(3)(d).

59. Bilka-Kauffhaus GmbH v. Weber von Hartz Case 170/84 (1987) ICR 110, Hampson v. Department of Education and Science (1989) IRLR 69, Webb v. EMO Air Cargo (UK) Ltd (1993) ICR 175.

60. For example, sex, race or religion in employment or otherwise.

61. R. v. Secretary for Employment, ex parte Seymour-Smith and Perez (1995) ICR 995.

62. Ibid. and Allonby v. Accrington and Rossingdale College (2001) ICR 1189. For a full discussion of related issues, see Connolly, 2001, pp. 313 to 318.

63. See the Council Directive 2000/78/EC for equal treatment in employment and occupation OJ L 303/16. 2.12.2000 pp. 16!22

64. See Section 1(1)(b)(ii) and S.1(2)(b)(iii) of the Sex Discrimination Act 1975, S.1(b)(ii) and S1A(c) of the Race Relations Act 1976 (both amended in compliance with EC Directives), Regulation 3(1)(b)(iii) of the Employment Equality (Religion or Belief) Regulations 2003, and Regulation 3(1)(b)(iii) Employment Equality (Sexual Orientation) Regulations 2003 SI 2003/1661. Note that s1A of the amended Race Relations Act 1976 applies to entrance and other policies of educational establishments (see s1B(b) as inserted by Regulation 3 of Race Relations Act 1976 (Amendment) Regulations SI 2003/1626).

65. The definition therefore moves far away from the Bilka test that a discriminatory provision should represent ‘a real need on the part of the undertaking, are appropriate with a view to achieving the objective in question and are necessary to that end’. Supra Note 59 at para. 37. 66. See Kokkinakis v. Greece (1994) 17 EHRR 397.

67. This consideration of social expectations permits an employer to dictate dress according to the sex of the individual provided that both genders have some dress code to conform with, i.e., the concept of ‘less favourable treatment’ is viewed very broadly. See Schmidt and Safeway supra Note 56.

68. See Metropolitan Church of Bessarabia v. Moldova (2002) 35 EHRR 306, 335, para. 117.

69. Supra Note 1 at (96).

70. Ibid. at (97).

71. Ibid.

72. For example, see (80).

Cases

Allonby v. Accrington and Rossingdale College (2001) ICR 1189.

Belgian Linguistics Case (No. 2) (1979!1980) 1 EHRR 252.

Bilka-Kauffhaus GmbH v. Weber von Hartz Case 170/84 (1987) ICR 110.

Buscarini v. San Marino (2000) 30 EHRR 208.

Dahlab v. Switzerland (App. 42393/98).

Dawkins v. Department of Environment (1993) ICR 517.

Department for Work and Pensions v. Thompson (2004) IRLR 248.

Hampson v. Department of Education and Science (1989) IRLR 69.

Jewish Litrugical Association Cha’are Shalaom Ve Tsedek v. France (2000) 9 BHRC 27.

Karaduman v. Turkey (1993) 74 DR 93.

Kokkinakis v. Greece (1994) 17 EHRR 397.

Metropolitan Church of Bessarabia v. Moldova (2002) 35 EHRR 306.

R. (on the application of Begum) v. The Headteacher and Governors of Denbigh High School (2006) UKHL 15; (2005) EWCA Civ 199; (2004) EWHC 1389 (Admin). R. (Daly) v. Secretary of State for Home Department (2001) 2 AC 532.

R. v. Secretary of State for Education and Employment ex parte Williamson (2005) UKHL 15.

R. v. Secretary for Employment, ex parte Seymour-Smith and Perez (1995) ICR 995.

Sahin v. Turkey (2005) 41 EHRR 8.

Schmidt v. Austick Books Ltd (1976) ICR 85.

Smith v. Safeway plc (1996) ICR 868.

Stedman v. United Kingdom (1997) 23 EHRR CD 168. Webb v. EMO Air Cargo (UK) Ltd (1993) ICR 175.

References

Blair, A. (2005) Case commentary: R(SB) v. Headteacher and Governors of Denbigh High

School*/human rights and religious dress in schools, Child and Family Law Quarterly, 17(3), 399!413.

Blair, A. & Aps, W. (2005) What not to wear and other stories: addressing religious diversity in schools, Education and the Law, 17(1/2), 1!22.

Connolly, M. (2001) Discrimination law: justification, alternative measures and defences based on sex, Industrial Law Journal, 30, 311!316.

Edge, P. (2000) Religious rights and choice under the European Convention on Human Rights, Web Journal of Current Legal Issues, 3, internet.

Knight, S. (2005) Religious symbols in the school: freedom of religion, minorities and education, European Human Rights Law Review, 5, 499!516.

Overy, C. & White, R. (2002) Jacobs and White European Convention on Human Rights (3rd edn.) (Oxford, Oxford University Press).

Poole, T. (2005) Of headscarves and heresies: the Denbigh High School case and public authority decision-making under the Human Rights Act, Public Law, Winter, 685!695.

Raday, F. (2003) Culture, religion and gender, International Journal of Constitutional Law, 1(4), 663!715.

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