COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
Strand, London, WC2A 2LL
B e f o r e :
Vice-President of the Court of Appeal (Civil Division)
LORD JUSTICE MUMMERY
LORD JUSTICE SCOTT BAKER
| The Queen on the application of SB
|- and -
|Headteacher and Governors of Denbigh High School
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
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Official Shorthand Writers to the Court)
Simon A Birks (instructed by Head of Legal Services, Luton BC) for the Respondents
Crown Copyright ©
Lord Justice Brooke:
This is an appeal by SB against an order made by Bennett J in the Administrative Court on 1st June 2004 whereby he dismissed her application for judicial review of a decision of the Headteacher and Governors of Denbigh High School, Luton ("the School"), who had refused to allow her to attend the School if she was not willing to comply with their school uniform requirements. The same judge refused to grant her permission to apply for judicial review of the local education authority's actions in the matter, and she has not been granted permission to appeal against that refusal.
"Shalwar: tapered at the ankles, not baggy.
Kameeze: between knee and mid-calf length, not gathered or flared. Fabric must be cotton or poplin, not shiny, silky or crinkly."
i) Was the claimant excluded from the school?
ii) If "Yes", was it because her rights under ECHR Article 9(1) were being limited?
iii) If "yes", were they being justifiably limited pursuant to Article 9(2)?
(I should note here that she also claims that her right to education under Article 2 of the First Protocol to the ECHR was violated in the course of this dispute).
ii) No (on the premise that the first answer had been "Yes").
iii) Yes (on the premise that the first two answers had been "Yes").
"6.4 Exclusion should not be used for breaching school uniform….
6.5 The law allows head teachers to exclude a pupil for up to 45 days in a school year. However, individual exclusions of more than a day or two make it more difficult for the pupil to reintegrate into the school….
6.8 The Government is committed to ensuring that by 2002 all pupils excluded for more than 15 school days at a time receive full-time and appropriate education whilst excluded."
"22. If the head teacher is satisfied that, on the balance of probabilities, a pupil has committed a disciplinary offence and the pupil is being removed from the school site for that reason, formal exclusion is the only legal method of removal. Informal and unofficial exclusions are illegal regardless of whether they are done with the agreement of parents or carers.
21. Exclusion should not be used for:
(c) breaches of school uniform rules, except where these are persistent and in open defiance of such rules."
As soon as a pupil has been excluded for more than 15 days, the local education authority is responsible for ensuring that he/she receives suitable full-time education (DfES Circular 11/99 para 5.1).
"The Department does not consider it appropriate that any pupil should be disciplined for non-compliance with a school uniform policy which results from them having to adhere to a particular cultural, race or religious code."
"The Claimant had a choice, either of returning to school wearing the school uniform or of refusing to wear the school uniform knowing that if she did so refuse the Defendant was unlikely to allow her to attend. She chose the latter. In my judgment it cannot be said the actions and stance of the school amounted to exclusion, either formal, informal, unofficial or in any way whatsoever."
"(1) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom….in public or private to manifest his religion or belief….
(2) 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 the protection of the rights and freedoms of others."
"31. 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, one 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 been dearly won over the centuries, depends on it.
While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to 'manifest [one's] religion'. Bearing witness in words and deeds is bound up with the existence of religious convictions.
33. The fundamental nature of the rights guaranteed in Article 9 para 1…is also reflected in the wording of the paragraph providing for limitations on them. Unlike the second paragraphs of Articles 8, 10 and 11…which cover all the rights mentioned in the first paragraphs of those Articles, that of Article 9 refers only to 'freedom to manifest one's religion or belief'. In so doing, it recognises that in democratic societies, in which several religions co-exist within one and the same population, it may be necessary to place restrictions on this freedom in order to reconcile the interests of the various groups and ensure that everyone's beliefs are respected."
i) The current school uniform policy was concluded after consultation (which included local mosques) had found it to be acceptable;
ii) The policy was reviewed regularly, and this was the first complaint that had ever been made about its compatibility with the requirements of the Islamic dress code;
iii) Since the complaint had been made, the School had consulted various authoritative bodies and received the following advice:a) The Islamic Cultural Centre in Regent's Park had confirmed that the shalwar kameeze constituted appropriate Islamic dress;b) The Muslim Council of Britain had confirmed that the dress code prescribed by the School was in accordance with the tenets of Islam.
iv) The committee took note of the fact that the Imams of two local mosques had given the Claimant's solicitors different advice from the advice they had previously given to the School, but they could see no good reason for this change of mind;
v) The committee also took into account a written reply from the London Central Mosque Trust on these matters.
i) A Muslim woman's dress should be strictly modest in public;
ii) It should cover all her body with the exception of her face and hands;
iii) It should not be tight or revealing but must be loose and thick enough in order to maintain complete modesty in public.
The committee concluded:
"The committee decided that the shalwar kameeze of the design illustrated as part of the school uniform policy….satisfied all those requirements of the Islamic dress code. Whilst accepting that the jilbab such as [SB] wishes to wear constitutes proper Islamic dress for adult Muslim women in a public place, the evidence presented to the committee does not suggest that it is the only form of dress that meets these requirements. Indeed, the evidence in the form of the letter from the Islamic Cultural Centre….specifically refers to the fact that a wide variety of garments are found throughout the Muslim world that meet those requirements."
"And tell the believing women to lower their gaze and guard their sexuality, and to display of their adornment only what is apparent, and to draw their head-coverings over their bosoms…."
"O Prophet, tell your wives and daughters and the believing women to draw their outer garments around them when they go out or are among the men."
A Hadith of the Prophet states:
"Whenever a woman begins to menstruate, it is not right that anything should be seen except her face and hands."
So much is common ground. What I will describe as the mainstream modern view among Muslims in England today was expressed by Dr Anas Abushudy, the deputy director-general of the London Central Mosque Trust, and chairman of its Religious Affairs Department. He told the School that "looking around the Muslim world" there was an amazing variety of garments which met the requirements in these writings. The clothes worn by Muslim women differed from country to country, and sometimes in different regions in the same country. He did not see any anti-Islamic act in wearing a shalwar kameeze. The important thing was that the dress of Muslim women must be within the Islamic guidelines, and that whatever was worn should be a full and honest Islamic hijab (veil) which clearly reflected the wearer's identity.
"[W]e can confirm that with respect to the dress code of the female in Islam is the fact that Hijab is the minimum required dress. The traditional dress, be it Pakistani or Egyptian…etc., that some females wore are not enough if they do not meet the required conditions of the dress code as laid down in the teaching of the Quran and the Sunnah of the Prophet."
i) The whole body except for the exempted parts [face and hands] should be covered;
ii) Any veil, which itself becomes an attraction, is to be avoided;
iii) Garments should not be semi-transparent;
iv) Dress should not be tight-fitting;
v) Garments should not be perfumed;
vi) The form of dress should not in any way resemble that of a man;
vii) It should not resemble that of non-believers;
viii) Garments should not reflect worldly honour.
"It is related from the son of Abbas…that the definition of Jalbaab is that it be a long cloak in which a woman be covered from head to toe."
(Commentary of Huwair in refce from Al Quran, vol 7, p 217)
"[The court] recalls that, but for very exceptional cases, the right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate."
It follows that her freedom to manifest her religion or belief in public was being limited, and as a matter of Convention law it would be for the School, as an emanation of the state, to justify the limitation on her freedom created by the School's uniform code and by the way in which it was enforced.
"Several staff have been approached by non-Muslim pupils saying that they are afraid of people wearing the jilbab, as they perceive this form of dress to be associated with extreme views. This makes them feel vulnerable. Whilst I would not consider it right to pander to the prejudices or fears of some pupils, I think it would be most unfortunate if some pupils were to be held in fear by others, or regarded as in some way separate, because of the clothes they wear.
Similarly this view has also been reflected by some Muslim girls who have indicated to staff that they do not wish to wear the jilbab, as this would identify them as belonging to extreme Muslim sects. They do not wish to be identified with such people.
In a recent pupil survey, not connected with wearing of the jilbab, there was a space for further comments. Many pupils indicated how much they liked Denbigh High School and the uniform in particular. One pupil suggested that the school introduce the jilbab. She did not suggest that she wanted to wear one. As she wears trousers to school and not the shalwar kameeze, I think it unlikely that she would wish to adopt the jilbab. There have been no other suggestions from pupils, parents, governors or teachers that we adopt the jilbab.
At the Appeal hearing the Claimant indicated that although she does not regard Muslims who wear the shalwar kameeze as bad people, she does think better Muslims wear the jilbab. I would not wish to see the introduction of two classes of Muslim, the inferior class that wears the shalwar kameeze and the better Muslim who wears the jilbab. In my view that would lead to real risk of pressure being brought upon Muslim girls to wear the jilbab or be regarded as religious inferiors. I would fear that this could lead to some girls feeling pressured into wearing the jilbab when they would prefer to wear the shalwar kameeze and might wish to avoid being classified with the kinds of people they believe wear the jilbab."
He ended by expressing a concern that if the school uniform was changed in the way the claimant suggested, this would lead to divisiveness within the school and would threaten the cohesion within the school.
i) The School is a multi-cultural, multi-faith secular school;
ii) The school uniform policy clearly promoted a positive ethos and a sense of communal identity;
iii) There was no outward distinction between Muslim, Hindu and Sikh female students, and the shalwar kameeze also satisfied the right of Muslim female students to manifest their religion;
iv) Any distinction between Muslim students who wore the jilbab and those who wore the shalwar kameeze was avoided;
v) The present policy protects the rights and freedoms of not an insignificant number of Muslim female pupils who do not wish to wear the jilbab and either do, or will feel pressure on them to do so from inside or outside the school;
vi) If the choice of two uniforms were permitted for Muslim female pupils, it could be readily understood that other pupils of different or no faiths might well see this as favouring a particular religion.
"In my judgment the school uniform policy and its enforcement has, and continues to have, a legitimate aim and is proportionate. The legitimate aim was the proper running of a multi-cultural, multi-faith, secular school. The limitation was also proportionate to the legitimate aim pursued. The limitation was specifically devised with the advice of the Muslim community. Although it appears that there is a body of opinion within the Muslim faith that only the jilbab meets the requirements of its dress code there is also a body of opinion that the Shalwar Kameeze does as well. In my judgment, the adoption of the Shalwar Kameeze by the Defendant as the school uniform for Muslim (and other faiths) female pupils was and continues to be a reasoned, balanced, proportionate policy."
"The Court's task is to determine whether the measures taken at national level were justified in principle – that is, whether the reasons adduced to justify them appear 'relevant and sufficient' and are proportionate to the legitimate aim pursued… In order to rule on this latter point, the Court must weigh the requirements of the protection of the rights and liberties of others against the conduct of which the applicant stood accused. In exercising the supervisory jurisdiction, the court must look at the impugned judicial decisions against the background of the case as a whole..."
"In a country like Turkey, where the great majority of the population belong to a particular religion, measures taken in universities to prevent certain fundamentalist religious movements from exerting pressure on students who do not practise that religion or on those who belong to another religion may be justified under Article 9(2) of the Convention."
"104. It must first be observed that the interference was based, in particular, on two principles – secularism and equality – which reinforce and complement each other….
105. In its judgment of 7 March 1989, the Constitutional Court stated that secularism in Turkey was, among other things, the guarantor of democratic values, the principle that freedom of religion is inviolable – to the extent that it stems from individual conscience – and the principle that citizens are equal before the law….Secularism also protected the individual from external pressure. It added that restrictions could be placed on freedom to manifest one's religion in order to defend those values and principles.
106. This notion of secularism appears to the Court to be consistent with the values underpinning the Convention and it accepts that upholding that principle may be regarded as necessary for the protection of the democratic system in Turkey."
i) The impact which wearing a headscarf, which is presented or perceived as a compulsory religious duty, might have on those who chose not to wear it;
ii) The fact that Turkey was a country where the majority of the population, while professing a strong attachment to the rights of women and a secular way of life, adhered to the Islamic faith;
iii) In such a context, imposing limitations on freedom in this sphere might be regarded as meeting a pressing social need by seeking to achieve those two legitimate aims, especially since the Muslim headscarf had taken on political significance in Turkey in recent years;
iv) The fact that there were extremist political movements in Turkey which might seek to impose on society as a whole their religious symbols and conception of a society founded on religious precepts: a Contracting State was permitted, in accordance with the ECHR provisions, to take a stance against such political movements, based on its historical experience.
1) Has the claimant established that she has a relevant Convention right which qualifies for protection under Article 9(1)?
2) Subject to any justification that is established under Article 9(2), has that Convention right been violated?
3) Was the interference with her Convention right prescribed by law in the Convention sense of that expression?
4) Did the interference have a legitimate arm?
5) 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?
6) Was the interference justified under Article 9(2)?
i) That it unlawfully excluded her from school;
ii) That it unlawfully denied her the right to manifest her religion;
iii) That it unlawfully denied her access to suitable and appropriate education.
i) Whether the members of any further religious groups (other than very strict Muslims) might wish to be free to manifest their religion or beliefs by wearing clothing not currently permitted by the school's uniform policy, and the effect that a larger variety of different clothes being worn by students for religious reasons would have on the School's policy of inclusiveness;
ii) Whether it is appropriate to override the beliefs of very strict Muslims given that liberal Muslims have been permitted the dress code of their choice and the School's uniform policy is not entirely secular;
iii) Whether it is appropriate to take into account any, and if so which, of the concerns expressed by the School's three witnesses as good reasons for depriving a student like the claimant of her right to manifest her beliefs by the clothing she wears at school, and the weight which should be accorded to each of these concerns;
iv) Whether there is any way in which the School can do more to reconcile its wish to retain something resembling its current uniform policy with the beliefs of those like the claimant who consider that it exposes more of their bodies than they are permitted by their beliefs to show.
Lord Justice Mummery :
B. The Role of the Court
Lord Justice Scott Baker: