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WILLIAMSON v. SECRETARY OF STATE FOR THE EDUCATION & EMPLOYMENT [2001] EWHC Admin 960 (15th November, 2001)

		Neutral Citation Number: [2001] EWHC Admin 960
		Case No: CO/1762/01

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINSTRATIVE COURT

Royal Courts of Justice
Strand,
London, WC2A 2LL

15th November 2001

B e f o r e :

THE HONOURABLE MR JUSTICE ELIAS
____________________

WILLIAMSON
Claimant

- and -

SECRETARY OF STATE FOR THE EDUCATION & EMPLOYMENT
Defendant

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Mr John Friel
(instructed by Fiona Bruce & Co for the Claimant)
Mr. Hugo Keith
(instructed by The Treasury Solicitors for the Defendant)
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

MR JUSTICE ELIAS:

This case raises an issue of some importance. It is whether Section 548 of the Education Act 1996, as amended by Section 131 of the Schools Standards and Framework Act 1998, completely abolishes the use of corporal punishment in independent schools. The Claimants submit that it does not do so even when read without any reference to their human rights. But they also say, in the alternative, that if the effect of the section would be to prevent them from sending their children to schools which practice corporal punishment, then it would infringe certain of their human rights. Accordingly they submit that the provision would need to be construed, if possible, to give effect to those rights: see section 3 of the Human Rights Act 1998. The defendant concedes that it could be so interpreted if it were necessary to do so to respect their Convention rights. Given the very broad interpretative power conferred upon the court to achieve that objective (see the decision of the House of Lords in R v A [2001]UKHL25), I consider that the concession was rightly made. Accordingly, there is no question in this case of the court having to consider making a declaration of incompatibility pursuant to Section 4 of the Human Rights Act.

The facts.

The Claimants in this case are respectively head teachers, teachers and parents of certain Christian schools. They submit that the imposition of physical discipline by teachers, administered in accordance with the law, is part and parcel of their Christian belief. In order to further those beliefs, they have set up and supported various Christian schools in the independent sector, which are conducted in accordance with this view of Christian education.

The Secretary of State does not question the genuineness of the Claimants’ beliefs, nor the fact they are motivated by their religious views. Certain Biblical passages are relied upon by the claimants in support of their stance, particularly from the Book of Proverbs. For example in Chapter 13, verse24 it states:

“He who spares the rod hates his son,

but he who loves him is diligent to discipline him”.

Plainly not all Christians – I suspect not many – would consider that this and other such texts require corporal punishment to be an integral part of the child’s education. But that is how the Claimants interpret them.

I should add, as Mr. Friel, counsel for the Claimants, has been at pains to emphasise, that the Claimants are asserting no more than that the teacher should be allowed to administer reasonable chastisement. To describe this form of corporal punishment as “beating”, with its overtones of cruel Dickensian schoolmasters inflicting punishment with malicious glee, is as tendentious as it is inaccurate. “Smacking” is closer to the mark. The Claimants perceive the need for corporal punishment as a way of ensuring a system of discipline which they consider to be conducive to the moral well-being of the child and necessary to inculcate a proper respect for Christian values.

Of course, the Claimants accept that any discipline should not be such as to contravene Article 3 of the Convention, which forbids the imposition of inhuman or degrading treatment or punishment. However, the European Court of Human Rights has accepted that the infliction of corporal punishment does not necessarily infringe that Article. It all depends on the circumstances, including the nature and severity of the punishment and its manner of execution: see the judgments of the Court in Costello-Roberts v U.K. 19 E.H.R.R.112 and Tyrer v U.K. 1978 2 E.H.R.R.1. The Claimants say that provided the punishment is lawful and does not infringe Article 3, it is their human right to have their children taught in a school in which discipline of that kind is imposed. (They accept, as I understand it, that the teachers would have to be willing to impose such punishment where necessary, and that the state would not be obliged to require it of them.)

Two preliminary observations.

Before analysing the arguments, I make two preliminary observations. First, it is important to emphasise at the outset that the wisdom of the legislation is not in issue in these proceedings. It is not the role of the court to question legislation on the grounds that it is foolish, unfair, discriminatory or illiberal. The Claimants say that it all of these things. No doubt many parents who do not share the Claimants’ Christian convictions also take the view that the legislation is misguided. They may consider that alternative disciplinary sanctions such as detention or the withholding of privileges (e.g. banning the child from games or other activities) can often be, and seem to a child to be, a harsher punishment, potentially psychologically more damaging, and possibly even more degrading than the instant administration of reasonable chastisement. But these are considerations that are to be taken into account when the proposed legislation is under discussion; they are irrelevant to the proper construction of the Act once it is passed. Unless the Claimants’ human rights are engaged, the courts must give effect to Parliament’s intentions as embodied in the language of the legislation. It is only if the Claimants can show that they are entitled to send their children to schools which administer corporal punishment as an exercise of their human rights that the legislation should, where possible, be construed so as to give effect to those rights even if that is plainly at odds with Parliament’s clearly expressed intention. As I have said, such a construction would be possible here.

The second preliminary point is this. It is a trite but none the less important observation that the court is not concerned with the merits of the dispute. In this case, for example, it is not concerned to ask whether it considers corporal punishment to be desirable or undesirable. Of course, judges are not robots and they will have their fair share of values and assumptions, passions and prejudices, some of them deeply rooted. But they must try as strenuously as they can to ignore entirely their own personal views and assumptions and to determine the case strictly according to the legal merits: this is what the concept of judgment according to law means. It was, of course, ever thus; but I hope I am alive to the fact that the court must be particularly vigilant to prevent personal values and attitudes from insidiously tainting the process of judgment when Convention rights are under consideration. This is because the Convention rights are framed in broad terms; the alleged protected acts are often, in a broad sense, political, and not infrequently controversial; and the scope for judicial lawmaking is generally greater than would be afforded to judges deciding traditional common law disputes.

The meaning of the section 548.

I first consider the meaning of the provision wholly independently of any human rights considerations.

The first piece of legislation restricting the right of teachers to inflict even moderate chastisement was section 47 of the Education (No.2) Act 1986. Subsection (1) was as follows:

“Where, in any proceedings, it is shown that corporal punishment has been given to a pupil by or on the authority of a member of the staff, giving the punishment cannot be justified on the ground that it was done in pursuance of a right exercisable by the member of staff by virtue of his position as such.”

By subsection (5), a pupil was defined in a way which excluded, broadly, children in the independent sector of education. It was therefore plain that the abolition was not complete.

This section was reproduced in almost identical form by section 548 of the Education Act 1996. That in turn was amended by section 131 of the School Standards and Framework Act 1998. This substitutes a new section 548 into the 1996 Act. The relevant provisions are as follows:

Subsection (1) provides:

“Corporal punishment given by, or on the authority of, a member of staff to a child-

(a) for whom education is provided at any school, or

(b) for whom education is provided, otherwise than at school, under any arrangement made by a local education authority, or

(c) for whom specified nursery education is provided otherwise than at school

cannot be justified in any proceedings on the ground that it was given in pursuance of a right exercisable by the member of staff by virtue of his position as such.”

Some assistance as to what acts of corporal punishment are caught by the section is provided by subsection (2):

““Subsection (1) applies to corporal punishment so given to a child at any time, whether at the school or other place at which education is provided for the child, or elsewhere.”

The concept of corporal punishment is defined by subsection (4):

“Any reference to giving corporal punishment to a child is to doing anything for the purpose of punishing that child (whether or not there are other reasons for doing it) which, apart from any justification, would constitute battery.”

There is a wide definition given to “member of staff” in subsection (6):

“Member of Staff, in relation to the child concerned, means-

(a) any person who works as a teacher at a school or other place at which education is provided for the child, or

(b) any person who (whether in connection with the provision of education for the child or otherwise)

(i) works at that school or place, or

(ii) otherwise provides his services there (whether or not for payment)

and has lawful control or charge of the child.”

Subsection (7) defines a child as a person under the age of 18.

The Secretary of State considers that the effect of this section is unambiguous and plain. It is to render unlawful any corporal punishment administered by a teacher, even in an independent school. The section does not achieve this by making corporal punishment unlawful in terms. Rather it simply removes the defence of justification which is necessary if the intentional infliction of physical harm is not to be considered unlawful. Accordingly, no member of staff of any school can set up the defence of reasonable chastisement because he will perforce be relying upon his position as such.

The Claimants submit that although it may well have been Parliament’s intention to achieve this objective, in fact the relevant statutory provision, when considered in its context, does not achieve that result.

In order to analyse the relative arguments in more detail, it is necessary to examine the position leading up to the enactment of Section 131.

The position at common law

At common law parents are entitled to administer physical punishment to a child provided it does not extend beyond reasonable chastisement. Historically, teachers could do the same thing when disciplining children for misbehaviour at school. Teachers were treated as being “in loco parentis”. Accordingly the defence of reasonable chastisement was equally open to them.

.

The common law sometimes describes the power as being delegated by the parent to the teacher. In Cleary v Booth [1893] 1Q.B.465 a head teacher was prosecuted for assault for caning a boy because of his unacceptable conduct on the way home from school. The court held that his authority to administer such punishment extended to such conduct. In the course of giving judgment Lawrance J said this:

“The cases cited to us show that the schoolmaster is in the position of the parent. What is to become of a boy between his school and his home? Is he not under the authority of his parent or of the schoolmaster? It cannot be doubted that he is; and in my opinion among the powers delegated by the parent to the schoolmaster, such a power as was exercised by the appellant in this case would be freely delegated.”

Collins J observed to like effect:

“It is clear law that a father has the right to inflict reasonable chastisement on his son. It is equally the law, and it is in accordance with very ancient practice, that he may delegate this right to the schoolmaster. Such a right has always commended itself to the common sense of mankind. It is clear that the relation of master and pupil carries with it the right of reasonable corporal chastisement.”

A similar analysis was made by Tucker J in Ryan v Fildes and others [1938] 3 All E R. 516 when he said this:

“……by the law of England, when a parent sends his child to school, he delegates to teachers at the school the power to inflict moderate punishment in the same way as he, as a parent, would have power to inflict moderate and reasonable corporal punishment in a proper case, and that he delegates to the teacher the taking of such steps as are necessary to maintain discipline with regard to the child committed to the teacher’s care. I think that that is the general position with regard to parents and schoolteachers.

Accordingly, when a parent sends his child to school, I think that the performance of reasonable and moderate punishment is, prima facie, part of the teacher’s duties which he may be called upon to perform from time to time, and I think, prima facie, when a school teacher inflicts corporal punishment, he is doing something as a schoolteacher. He is not going outside his position or duties as a schoolteacher, but he is acting within the scope of his employment as a teacher.”

. It is not entirely clear in what sense the powers have been delegated. It seems plain, for example, that it was not open to a parent to withdraw the power from the teacher. In my view “delegation” is not an entirely appropriate term to adopt in this context. It seems to me that the term is simply being used to describe the situation where the children are being placed in the care of the teacher. It is not the act of the parents in actually delegating the specific power to punish that confers the right to administer corporal punishment on the teacher, but rather the act of placing the child under the teacher’s care. It is the relationship of teacher and child that confers the power, as both the judgments to which I have referred make clear.

Mr. Friel, as I understand it, accepts that analysis. He says that it is precisely that situation, but only that situation, which the law is seeking to regulate. It is removing a defence where the teacher is acting qua teacher but he is only so acting when he is then acting “in loco parentis”. He submits, however, that the parent still retains the liberty expressly to delegate the function of administering corporal punishment to the teacher, and that where that occurs the power is no longer being exercised by virtue of the relationship between the teacher and child but rather by virtue of the express delegation. The teacher is not then exercising the power by virtue of his position as such.

Mr. Keith, for the Secretary of State, denied that there is a liberty to delegate the power in the manner claimed at all. He submits that no parent can simply confer a defence of justification for assault on another. That would be to enable a parent to place third parties outside the control of the criminal law. All the parent can do is to permit the child to be subject to the control of another such as a child minder, grandparent or teacher. That will effectively transfer (albeit temporarily) some of the rights attached to parenthood.

In my judgment Mr. Keith is right. There is no power to delegate the authority to administer corporal punishment save by placing the child into the care of another. The section removes the defence of reasonable chastisement from any teacher whose powers were conferred by virtue of a child being placed in his control. There is no other way in which power can be acquired.

Even if Mr. Friel were right, I still do not see how the argument helps him. It would still be the case that the parent would be expressly delegating the power only because the recipient was a teacher. It is only because of his office that the parent wishes him to be able to impose the sanction. In administering the punishment, the teacher would therefore still be exercising the power by virtue of his position as such. He would, therefore, fall firmly within the terms of the section.

Accordingly, in my judgment, when construed in the ordinary way the section removes entirely the defence of reasonable chastisement from the teacher when he is acting in his capacity as a teacher (as opposed to, say, in his capacity as a parent). This is so irrespective of the method whereby the power to administer corporal punishment is conferred upon him.

Two further arguments.

The Secretary of State submitted that this construction was supported by two further matters. First the side heading of the section, on the introduction of the restriction in 1986, described its scope as “Abolition of Corporal Punishment”. I accept that I can have regard to it and it provides some confirmatory support for the construction which I have reached in any event. It is, however, only of a limited support since the side heading is perforce brief and is not the subject of amendment by Parliament: see Bennion, Statutory Interpretation (3rd. edition) p.574.

Second he submits that if the provision is ambiguous then I should have resort to certain Ministerial statements made in Parliament when the amendments were made in 1998, in accordance with the principles enunciated in Pepper v Hart [1993]A.C.593. He submits that this makes clear the purpose of the section. Given that I do not find the provision to be ambiguous, it is both inappropriate and unnecessary to look into the Parliamentary history. But even had I been entitled to do so, I would not have thought it right to consider what the Ministers were saying in 1998. That was when the restriction on the use of corporal punishment was being extended to all schools. The provision now under consideration was not introduced for the first time at that stage, but merely extended. Accordingly, statements by Ministers or anyone else at that time could only be statements as to what they assumed or understood to be the effect of the provision which Parliament had previously enacted. A Minister’s understanding of how previous legislation should be interpreted is irrelevant to the question of construction. That is a matter for the courts and not the executive. Such a statement is quite different from a Ministerial statement made during the course of enactment as to what a provision was intended to achieve.

The human rights claim

I now turn to consider whether the Claimants can pray in aid Convention rights and thereby require a different construction of the legislation.

The Claimants based their claim principally under Article 9 of the Convention, and Article 2 of the First Protocol. These provisions are as follows:

Article 9 states

(i) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice or observance.

(ii) Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as 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 and freedoms of others.

Article 2 of the First Protocol provides –

No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the rights of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”

The rights arising out of Article 9 and Article 2 of the First Protocol are closely inter-related in circumstances where a parents are claiming the right to have their child educated in accordance with their religious beliefs. In each case the applicant must establish that he or she is asserting a religious belief or conviction, and that there is an unlawful interference with the manifestation of that belief or, under Article 2 of the First Protocol, with the right to adopt educational practices in conformity with the conviction.

Article 8 was also relied upon. This requires that the State should not interfere with, inter alia, private and family life. In this case there is no denial of the parents’ rights reasonably to chastise the child in the home. Nonetheless, Mr. Friel submits that insofar as the legislation could affect the relationship between parent and child, it is not wholly irrelevant to this case. However, he realistically accepted that if he were to fail under his primary two provisions, he could not succeed under this Article. On any view this Article is engaged only in the most indirect way. I will therefore not deal separately with it.

Article 12 was also relied upon in a general way. This protects the right to marry and found a family. Mr Friel made no formal submissions about this Article but contended that in some way it supported his argument. In my judgment it has absolutely no relevance to the issues in this case whatsoever.

Are the Claimants victims?

In order to sustain any of these claims, the Claimants must demonstrate that they are victims within the meaning of Section 7 of the Human Rights Act. This in turn requires that they should be victims as that term is understood in the Convention jurisprudence. I will not devote much time to this issue. The Secretary of State accepts that someone potentially has standing in relation to each of the human rights provisions relied upon. He accepts, as I understand it, that parents are potentially victims in relation to each of the claims. It seems to me that they plainly are in relation to Article 2 of the First Protocol and, insofar as the restriction on giving corporal punishment can be said to affect the relationship of parent and child, Article 8 also. I have some reservations as to whether they could count as victims within Article 9 but on balance I am inclined to think that they can, even although they are not themselves facing sanctions if the law is broken. They claim that they are deprived of putting their religious beliefs into practice and that they are directly denied their rights as a consequence. That seems to me to engage Article 9 even although they are not directly involved in the application of the corporal punishment themselves. . (Strictly it seems to me that the child would be the more appropriate claimant, the argument being that he is being directly denied the benefit of a sanction which his religion dictates is appropriate).

I have doubts whether the teachers or head teachers can properly be described as victims under any of the Articles. They clearly cannot bring themselves within Article 2 of the First Protocol since they are not parents; nor in my view can it sensibly be said that being deprived of the right to administer corporal punishment to children other than their own amounts to an interference with their private or family life under Article 8. Arguably they can bring themselves as victims within Article 9, on the grounds that they are prevented from practising their religious beliefs under threat of sanctions if they do. Given the concession that there is a victim for each of these claims, I need not resolve that issue.

The issues.

In my view in analysing this case it is helpful to disentagle two interrelated issues. First, is the desire to have one’s child potentially subject to corporal punishment properly described as a religious belief (Article 9) or conviction (Article 2 of the First Protocol)? Second, if not, is it in any event the manifestation of a belief or a practice which is in conformity with the conviction and which has unlawfully been interfered with?

Are the parents asserting a religious belief or conviction?

The high watermark of the Claimants case was the decision of the ECHR in Campbell and Cosans v the U.K. 4 EHRR 293. In that case two Scottish parents alleged that the imposition of corporal punishment by a school against their wishes constituted a breach both of Article 2 of the First Protocol and also Article 3, which forbids the infliction of cruel and inhuman treatment. The Article 3 allegation failed but the challenge relating to Article 2 of Protocol Number One was upheld by the court.

The court first rejected an argument advanced by the Government that the disciplinary function was merely ancillary to “education” and “teaching” and was therefore not caught by the provision. As to that argument the court said this:

“It appears to the court somewhat artificial to attempt to separate off matters relating to internal administration as if all such matters fell outside the scope of Article 2. The use of corporal punishment may, in a sense, be said to belong to the internal administration of the school, but at the same time it is, when used, an integral part of the process whereby the school seeks to achieve the object for which it was established, including the development and moulding of the character and mental powers of its pupils.”

The court then considered whether objections to a particular form of disciplinary sanctions could constitute a “philosophical objection” within the meaning of the provision. The court noted that the term “convictions” is not synonymous with “ideas” or “opinions” as used in Article 10 but was more akin to the concept of beliefs used in Article 9. The court then held that this particular belief could properly be described as “philosophical”:

“Having regard to the Convention as a whole, including article 17, the expression “philosophical convictions”, in the present context denotes, in the courts opinion, such convictions as are worthy of respect in a “democratic society” and are not incompatible with human dignity; in addition, they must not conflict with fundamental right of the child to education, the whole of article 2 being dominated by its first sentence. The applicants’ views relate to a weighty and substantial aspect of human life and behaviour, namely the integrity of the person, the propriety or otherwise of the infliction of corporal punishment and the exclusion of the distress which a risk of such punishment entails. They are view which satisfy each of the various criteria listed above: it is this that distinguishes them from opinions that might be held on other methods of discipline or on discipline in general.”

Mr. Keith, for the Secretary of State, submits that the beliefs relied upon here do not meet these criteria. They do not respect the integrity of the person, nor do they exclude distress. On the contrary, they create it. The Claimants submit that they fall precisely into the defined category. They allege that they are concerned with something more important than the physical integrity, namely the moral integrity of the child; that modest chastisement does not offend the child’s dignity; and that any distress is justified by the objective.

There is some attraction in this argument, but ultimately I reject it. It is seeking to equate the non-administration of corporal punishment with its administration and to say that both constitute a philosophical or religious conviction. In my judgment, as the European Court of Human rights appears to have thought, the two cannot simply be equated in that way since the law is not neutral about the imposition of physical force. The law has always shown a respect for the physical integrity of the individual: any intentional assault is unlawful unless there is a defence of justification. Accordingly, it requires a stronger case to justify the right to inflict physical injury than to justify a right not to have it inflicted.

In my view this reflects a more deep seated distinction between the two positions. The belief that no corporal punishment should be imposed can properly be described as a philosophical or (in some cases) religious conviction. It is a belief that in principle no one should be so punished. By contrast, I do not consider that a belief that corporal punishment should be imposed can properly be so described. This has got nothing to do with the genuiness of the belief or its intrinsic merits. Rather it has to do with its nature or character. Nobody suggests that the corporal punishment should automatically be applied to all children as a matter of principle. For some children it may never be necessary. It is envisaged that it will be needed only for rare cases of relatively serious indiscipline. The parents wish it to be administered in such circumstances because they consider it to be a more efficacious method of securing appropriate discipline. I do not think that it is appropriate to describe a belief that one measure is more effective than another as a philosophical or religious conviction even if the reason for holding that belief is that it is supported by a religious text. It is not one of the articles of faith. It may be accurate to say that someone has a religious conviction that everything in the Bible is true, but it would surely be odd to describe, say, a belief in angels as a religious conviction or as itself constituting an article of religious faith. It is a belief which is in accordance with the religious faith, but it does not embody of define the belief or conviction itself.

Even if the parents believe that effective discipline cannot be secured in any other way, that still does not, in my judgment, convert the belief in its value as more than a belief – albeit genuinely and strongly held – as to its efficacy. Corporal punishment is not being invoked for its own sake but in order to help secure the religious convictions that underpin the Christian convictions of these families. Accordingly I do not accept that the belief in the desirability of corporal punishment, even although it is derived from the Christian convictions held by these parents, can properly be defined as a religious conviction in its own right.

Is it the practical manifestation of a belief or a practice in conformity with a religious conviction which has been unlawfully interfered with?

Even if the Claimants cannot say that the desire to impose corporal punishment is not itself a religious belief or conviction within the meaning of Article 9 or Article 2 of the First Protocol, can it be described as the manifestation in practice of such a belief or conviction? It may be argued that practices may be in conformity with a conviction, or be a manifestation of a belief, even although it may be wrong to describe it as constituting a religious belief itself.

The Claimants have relied on two cases in particular in support of the proposition that there is an interference with the practice of their religion. In Kokkinakis v Greece 17 E.H.R.R.397 the applicant was a Jehovah’s witness who was arrested for proselytising when he entered the home of an orthodox Christian and sought to discuss religion with him. Under Greek law, proselytism was a criminal offence. Broadly this covered certain conduct amounting to a direct or indirect attempt to intrude on the religious beliefs of a person of a different religious persuasion with the aim of undermining those beliefs. The applicant had in fact been arrested on over sixty occasions. He successfully contended that the State had interfered with his Article 9 rights. The Court accepted that improper proselytism would not be protected under the Article but that true evangelism was. Similarly, Mr. Friel says that since the practice of the Claimants is not improper and is derived from their religious beliefs, it should fall within the protection.

In my view the decision in Valsamis v Greece 24 EHRR 294 is of more relevance. The child of parents who were Jehovah’s witnesses was suspended from school for a day refusing to attend, during her holidays, a parade celebrating the Greek National Day. This is the day when Greece commenced the war with fascist Italy in 1940. The school parade was held the same day as a military parade but independently of it. The child sought permission to be excused attendance on the grounds of her religious beliefs. She alleged that pacifism was a fundamental tenet of her religion. Her request was refused; she nonetheless refused to attend the parade, and was suspended. The parents alleged that their rights under Article 2 of the First Protocol had been infringed and the child that her Article 9 rights had been breached.

The court rejected both these applications. As to the former, the court emphasised that “the two sentences of Article 2 [Protocol One] must be read not only in the light of each other but also, in particular, of Articles 8, 9 & 10 of the Convention.” Later in the judgment, at paragraph 27, the court reiterated that

“Article 2 of Protocol No.1 enjoins the State to respect a parent’s convictions, be they religious or philosophical, throughout the entire State education programme. That duty is broad in extent as it applies not only to the content of education and the manner of it provisions but also to the performance of all the “functions” assumed by the State. The verb “respect” means more than “acknowledge” or “take into account.” In addition to a primarily negative undertaking, it implies some positive obligations on behalf of the State.”

At paragraph 28 the court reiterated an approach to this provision which it had adopted in the earlier case of Kjeldsen, Busk, Madsen & Pederson v Denmark 1 EHRR 711:

“…..the setting and planning of the curricula fall in principle within the competence of the Contracting States. This mainly involves questions of expediency on which is not for the court to rule and whose solution may legitimately vary according to the country and the period. Given that discretion, the Court has held that the second sentence of Article 2 forbids the State to pursue an aim of indoctrination that might be regarded as not respecting parents’ religious and philosophical convictions. That is the limit that must not be exceeded.”

In Valsamis the court concluded that there had been no breach of either provision. The court noted that the child had been permitted to be exempted from religious education lessons and the Orthodox Mass. Moreover, it concluded that there was nothing either in the purpose of the parade or in the arrangements for it, which would offend the applicants’ pacifists convictions to the extent rendered unlawful by Article 2 of the First Protocol.

For similar reasons the court also held that there had been no infringement of Article 9 in respect of the child. She had asserted that she had the right to the negative freedom not to manifest, by suggestion or support, any convictions or opinions contrary to their own. This was rejected. The child had not been required to do anything which offended her religious convictions.

In my judgment the parent Claimants are in a similar position to the parents in that case. The State does not fail to respect the right for the parents to have their children taught in an environment which will inculcate their Christian values. It does not require the children to do anything that is offensive to their religious beliefs, nor does it deny the school the right to impose a disciplinary regime to achieve that objective. It simply refuses the right of teachers to impose a particular sanction which the parents consider is necessary to secure that discipline. In my view the refusal to permit the sanction of corporal punishment cannot fairly be described as an act of indoctrination that fails to respect the parents’ religious and philosophical convictions. The children are in no sense being indoctrinated; their beliefs remain untarnished. Even in relation to the imposition of corporal punishment itself, the children are not being indoctrinated in the sense that they are being told that it is wrong for it to be used.

In my view this case shows that not every interference to which religious objection can be made will amount to an infringement of the Convention. Moreover, I would not describe the imposition of corporal punishment as a manifestation of the belief within Article 9, nor as being a practice which is in conformity with a religious conviction within Article 2 of the First Protocol. I don not consider that all actions which are motivated by, or are in accordance with, a particular belief or conviction can be said to constitute a manifestation of it. In my judgment this conclusion is supported by the decision of the European Court of Human rights in Arrowsmith v UK 3 EHRR 218. In that case a pacifist distributed leaflets which sought to persuade soldiers to desert from the Army and to refuse to serve in Northern Ireland. She was arrested and charged with a criminal offence. The leaflets themselves were not advancing pacifist views and in the circumstances the court held they did not constitute a manifestation of belief within the meaning of Article 9. The action was motivated by, and consistent with, the pacifist belief, but it was not a manifestation of it. Similarly here: sending ones child to an environment in which corporal punishment is permitted for disciplinary misdemeanours is an action which is motivated by the belief but it is not in my judgment a manifestation of the belief itself. It is not the outward manifestation in observance or practice of the fundamental tenets of the religion such as will occur during religious services or even when seeking to convert others to one’s beliefs. It is an action which, put at its highest, is designed to reinforce a respect for the religious values involved rather than being a manifestation of those values.

Accordingly, I do not consider that the Claimants’ human rights are engaged in this case. It follows that there is no reason to give an artificial meaning to section 548 on the grounds that this is necessary in order to give effect to Convention rights.

Three further submissions of the Secretary of State.

I should record three further submissions made by the Secretary of State. The first two were adopted to support the argument that there had been no breach of any Convention rights.

First, Mr. Keith submitted that it is highly unlikely that the European Court of Human rights would consider that the Claimants’ human rights were infringed in this case. He relied upon the fact that in the case of Costello v Roberts 1993 EHRR 112, in which they held in the circumstances that there had been no infringement of Article 3, the court nonetheless added that (at paragraph 36):

“[It did not] wish to be taken to approve in any way the retention of corporal punishment as part of the disciplinary regime of a school.”

In my judgement this observation is quite irrelevant. As I have said, the court’s own views ought to be of no significance whatsoever in determining whether the Claimants can rely on their human rights. The fact that the ECHR or any other court disapproves of what someone is saying is no justification for refusing to extend to that person the freedoms afforded by Article 10. Indeed it is precisely when the views expressed are unpalatable that the protection afforded by the law is particularly important. Similarly, the courts personal lack of sympathy for a particular religious practice is not a justification for refusing to respect a Claimant’s Article 9 rights. Human rights would hardly be worth the paper they are written on were it otherwise. No doubt some judges are opposed to religion, or atheism, or pacifism. That is hardly a reason for refusing to apply Article 9 to individuals who possess those beliefs.

Second, reliance was placed on the decision of the European Commission of Human rights in the case of Seven Individuals v Sweden, Application no.8811/79. In that case the Swedish government had passed a law which purported to make all corporate punishment of a child unlawful. Some parents alleged that this was a breach of their rights under the same provisions as are relied upon in this case. The Commission in fact noted that “parental rights and choices in the upbringing and education of their children are paramount as against the state” but on the facts it found that the application was inadmissible being manifestly unfounded. However, in that case it was plain that there were no sanctions for breach of the provision, as the government itself admitted. Moreover, not every corporal rebuke would have infringed the law. In my view, therefore, there is no assistance to be derived from that case. The Secretary of State accepts that he will be monitoring this law and would take action to remove a teacher who flouted it even if no other proceedings were taken by the child concerned or its parents. Indeed, in a sufficiently extreme case a school which permitted the policy to continue could even be closed down.

Finally, Mr. Keith for the Secretary of State contended that even if I were to find an infringement of Article 9, I should nonetheless find the provision justified under Article 9 (2). Had I found against the Secretary of State under Article 9(1), I would have been unwilling to take that step. It may be that in exceptional cases the potential harm resulting from the manifestation of a belief will be so plain that it is obvious on what grounds the state has banned it. However, that is not the case here. It is not even as if all corporal punishment is being treated as unlawful, only that practised in schools. I have no evidence that it was ever appreciated that the banning of corporal punishment might conflict with the parents’ human rights. Moreover even if that were appreciated, I have no evidence before me as to why it was felt justifiable to interfere with such rights. Without such evidence, it is impossible to say whether the response was a proportionate one. The court cannot find justification simply on the basis of counsel’s assertion as to possible grounds which a state might be able to rely upon to justify the provisions in question.

Conclusions.

In my judgment section 548 of the Education Act, as amended by the School Standards and Framework Act, gives effect to a clear Parliamentary intention to abolish corporal punishment in all schools, including all independent schools. This legislation does not infringe the human rights of any of the Claimants. Accordingly, the principle that the court should give the provision a different construction so as to give effect to their human rights does not come into play.