QUEEN'S BENCH DIVISION
Strand,London WC2A 2LL
B e f o r e :
(Sitting as a Deputy High Court Judge)
| THE QUEEN on the application of LYDIA PLAYFOOT (a Minor) (by her father and litigation friend Philip Playfoot)
|GOVERNING BODY OF MILLAIS SCHOOL
JONATHAN AUBURN (Instructed by Legal Services, West Sussex
C.C.) for the Defendant
Hearing Date 22nd June 2007
Crown Copyright ©
The Deputy Judge:
"This is not part of school uniform and MUST NOT BE WORN.
Girls with pierced ears may wear one pair of plain ear "studs" - which must be removed for P.E.
Other studs including nose and tongue studs are not permitted."
The School has had the same dress code since the early 1990's.
"Following confirmation in your letters of 18 and 23 October that you had nothing further to submit, nor did you wish to address the Governors directly, the full Governing Body met on two occasions, on 30 October and 20 November, to review and discuss the issues fully and make a considered, final decision.
The Governing Body has decided not to grant an exemption to the uniform policy for Lydia in this matter. "
The letter then identified the matters that were considered by the Governors in their decision-making process.
Article 9 of the Convention
"Freedom of thought, conscience and religion
1. 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 and observance.
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 .... for the protection of the rights and freedoms of others."
Article 9 protects both the right to hold a belief, which is absolute, and a right to manifest a belief, which is qualified (see R (Williamson) v Secretary of State for Education and Employment  2 AC 246 at para 16, ( Lord Nicholls)).
(1) 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. (Begum at para 50, (Lord Hoffmann)).
(2) Article 9 does not protect every act motivated or inspired by a religion or belief (Williamson at para 30, (Lord Nicholls); and Sahin v Turkey at para 66).
(3) In deciding whether a person's conduct constitutes manifesting a belief and practice for the purposes of Article 9 one must first identify the nature and scope of the belief. (Williamson at para 32, ( Lord Nicholls)).
(4) If the belief takes the form of a perceived obligation to act in a specific way, then, in principle doing that act pursuant to that belief is itself a manifestation of that belief in practice. In such cases the act is "intimately linked" to the belief, in the Strasbourg phraseology: see Application 10295/92 v United Kingdom  6 EHHR 558; and Hasan and Chaush v Bulgaria  34 EHRR 1339, 1358, para 60,  34 EHRR 55. (Williamson at paras 32 (Lord Nicholls) and 63 (Lord Walker)).
(5) By the time that the Court has reached the stage of considering the manifestation of the belief, it must have regard to the implicit (and not over-demanding) threshold requirements of seriousness, coherence and consistency with human dignity (Williamson at paras 23 (Lord Nicholls) and 64 (Lord Walker)).
"The essence of the parents' beliefs is that, as part of their proper upbringing, when necessary children should be disciplined in a particular way at home and at school. It follows that when parents administer corporal punishment to their children in accordance with these beliefs they are manifesting these beliefs. Similarly, they are manifesting their beliefs when they authorise a child's school to administer corporal punishment. Or, put more broadly, the claimant parents manifest their beliefs on corporal punishment when they place their children in a school where corporal punishment is practised. Article 9 is therefore engaged .... in respect of the claimant parents". ( para 35; and see Baroness Hale at para 78).
On a similar analysis in Arrowsmith v UK  3 EHRR 218 Article 9 was not engaged. Miss Arrowsmith distributed leaflets to soldiers, urging them to decline service in Northern Ireland. This was dictated by her pacifist views. The contents of the leaflets did not express pacifist views, nor did the act of distributing the leaflets do so. She was not thereby manifesting her pacifism. (Williamson at para 31 (Lord Nicholls)).
"...found no evidence or explanation linking the belief in sexual abstinence to wearing the ring to the extent that [they] could conclude that wearing the ring was a manifestation of her belief."
The Claimant was under no obligation, by reason of her belief, to wear the ring; nor does she suggest that she was so obliged.
"23. The Strasbourg institutions have not been at all ready to find an interference with the right to manifest religious belief in practice or observance where a person has voluntarily accepted an employment or role which does not accommodate that practice or observance and there are other means open to the person to practise or observe his or her religion without undue hardship or inconvenience......
24. This line of authority has been criticised by the Court of Appeal as overly restrictive (Copsey v WWB Devon Clays Ltd  ICR 1789, paras 31-39, 44-66), and in Williamson's case  2 AC 246, para 39, the House questioned whether alternative means of accommodating a manifestation of religious belief had, as suggested in the Jewish Liturgical case, para 80, to be "impossible" before a claim of interference under Article 9 could succeed. But the authorities do in my opinion support the proposition with which I prefaced para 23 of this opinion. Even if it be accepted that the Strasbourg institutions have erred on the side of strictness in rejecting complaints of interference, there remains a coherent and remarkably consistent body of authority which our domestic courts must take into account and which shows that interference is not easily established."
"I say nothing about such cases because Shabina's family had chosen to send her to a school which required uniform to be worn and her wish to manifest her religious belief could not have been accommodated without throwing over the entire carefully crafted system". (Para 54).
(1) the School is a non-denominational girls secondary school (para 2);
(2) the School's uniform policy, which includes a prohibition on the wearing of jewellery, has been in operation since the early 1990's (paras 5 and 6);
(3) the uniform policy is publicised to all prospective pupils and their parents in a prospectus before children start school. The Claimant's older sisters also attended the school (para 8);
(4) before children start at the School the Head of Year explains the dress code to them in a detailed speech given at the induction evening when the uniform is shown to parents and the dress standards explained (para 9);
(5) the dress code is also referred to in the Code of Conduct which is contained in all pupils' homework diaries (para 9);
(6) in September 2002, at the time the Claimant started at the School, she and both her parents signed the Home-School Agreement, in which the Claimant agreed to adhere to the Code of Conduct and her parents agreed to encourage her to do so. The Code of Conduct stipulates that pupils are required to comply with the School uniform, (para 20);
(7) the School was the Claimant's first preference. She could have chosen to list other schools as her first preference, such as Holy Trinity Church of England School in Crawley which is a secondary school with a specifically Christian character and ethos (although it also appears to have a ban on jewellery for pupils in Years 7-11) or Thomas Bennett Community College (which does allow the wearing of rings), (paras 7 and 19).
Mr Diamond accepted that the uniform policy is lawful. He did submit that the ring is not jewellery because it is not designed to be decorative. It was, he submitted, a religious artefact and as such not covered by the uniform policy. I reject that submission. Whatever the ring is intended to symbolise, it is a piece of jewellery.
(1) the Governors said in the meeting held on 20 October 2005 and in a letter dated 10 February 2006 that the Claimant could attach her ring, or a keyring or other visible sign, to her bag, (para 44). There is no evidence that her belief can only be expressed by the wearing of a ring. Mr Nettley states: "It is not a Christian symbol, and is not required to be worn by any branch within Christianity. It is regarded by other pupils merely as jewellery, and there are alternatives within the School rules", (para 42);
(2) the SRT group itself offers other options which are acceptable to the School, such as keychains, badges and stickers (para 44);
(3) the School has encouraged the Claimant to make a contribution in her PSHE or other classes by sharing her views with other pupils and generating an open discussion of these issues and also in conversation outside lessons (see letters dated 10 November 2005 and 10 February 2006 from Mrs Barnes to Mr & Mrs Playfoot, and para 45 of Mr Nettley's Witness Statement);
(4) the Claimant could have sought transfer to another school, such as Thomas Bennett Community College, which would allow her to wear the ring, (para 46).
"To be justified under Article 9(2) a limitation or interference must be (a) prescribed by law and (b) necessary in a democratic society for a permissible purpose, that is, it must be directed to a legitimate purpose and must be proportionate in scope and effect" (para 26).
(1) in Begum Lord Bingham said (at para 29):
"....the focus at Strasbourg is not and has never been on whether a challenged decision or action is the product of a defective decision-making process, but on whether, in the case under consideration the applicant's Convention rights have been violated. In considering the exercise of discretion by a national authority the court may consider whether the applicant had a fair opportunity to put his case, and to challenge an adverse decision ... But the House has been referred to no case in which the Strasbourg court has found a violation of Convention rights on the strength of failure by a national authority to follow the sort of reasoning process laid down by the Court of Appeal. This pragmatic approach is fully reflected in the 1998 Act. The unlawfulness described by section 6(1) is acting in a way which is incompatible with a Convention right, not relying on a defective process of reasoning, and action may be brought under section 7(1) only by a person who is a victim of an unlawful act".
(Cited with approval recently by Lord Hoffmann in Miss Behavin' Ltd v Belfast City Council  UKHL 19 at para 14);
(2) the intensity of review is as described by Lord Steyn in R (Daly) v Secretary of State for the Home Department  2 AC 532, paras 25-28. The court must make a value judgment, an evaluation by reference to the circumstances prevailing at the relevant time (Wilson v First County Trust Ltd (No.2)  1 AC 816, paras 62-67). Proportionality must be judged objectively (Williamson at para 51 (Lord Nicholls); and Begum at para 30 (Lord Bingham)).
(i) firsts on health and safety grounds, in particular where there is a specific medical need. This exception has no application in the present case.
(ii) second, where enforcing the policy would be likely to result in an unlawful breach of the pupil's human rights. The School has permitted a Muslim girl to wear a headscarf where it was considered by her to be a requirement of her faith; two Sikh girls have been allowed to wear a Kara bangle on a similar basis; and a pupil was allowed to wear a headscarf as it was believed that this form of dress was required as part of her faith as a member of the Plymouth Brethren. By contrast there is no evidence in the present case that the Claimants religious belief required her to wear the ring and she did not suggest that it did;
(iii) third, where there are exceptional and compelling grounds. There are no such grounds in the present case. The Claimant was not obliged by her religious faith to wear the ring and the School offered her other means by which she could express her belief (see para 30 (i-iii) above).
Section 13 of the Human Rights Act 1998
"If a court's determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right".
Article 14 of the Convention
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
The Claimant alleges that she was being discriminated against because Muslim girls wear Islamic headscarves and Sikh girls can wear the Kara bangle. (First Witness Statement, para 14). She says that she believes "Christianity is singled out for adverse treatment" (para 35). In my judgment there is no evidence that the School has unlawfully discriminated against the Claimant in breach of Article 14. The evidence before me supports the submission made by Mr Auburn that the School reached carefully considered decisions on each occasion it has been called upon to permit exceptions to the uniform policy. (See first Witness Statement of Mr Nettley at paras 38-43). In particular, as summarised in para 38 (ii) above, the School has permitted a Christian girl to wear a headscarf as it was believed that this form of dress was required as part of her faith as a member of the Plymouth Brethren; a Muslim girl to wear a headscarf as it was understood this was considered by her to be a requirement of her faith and, at the time the decision was taken, the School believed that to do otherwise might unlawfully breach her human rights; and to allow two Sikh girls to wear a Kara bangle on a similar basis. I note that the draft DfES Guidance to Schools on School Uniform Related Policies (see para 37 above) sets out in Appendix 1 a summary of religious clothing requirements. The decisions of the School in relation to the Plymouth Brethren (described as a Christian sect) and Muslim pupils referred to above appear to be consistent with the views expressed therein. The Guidance does not refer to the Sikh practice of wearing Kara bracelets, but the School, on the information it had at the time, formed the view that this was a requirement of Sikhism.