House of Lords
|Session 2005 - 06|
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R (on the application of Begum (by her litigation friend, Rahman)) (Respondent) v. Headteacher and Governors of Denbigh High School (Appellants)
LORD BINGHAM OF CORNHILL
1. The respondent, Shabina Begum, is now aged 17. She contends that the appellants, who are the head teacher and governors of Denbigh High School in Luton ("the school"), excluded her from that school, unjustifiably limited her right under article 9 of the European Convention on Human Rights to manifest her religion or beliefs and violated her right not to be denied education under article 2 of the First Protocol to the Convention. Bennett J, ruling on the respondent's application for judicial review at first instance, rejected all these contentions:  EWHC 1389 (Admin);  ELR 374. The Court of Appeal (Brooke, Mummery and Scott Baker LJJ), reversing the judge, accepted each of them:  EWCA Civ 199;  1 WLR 3372. The appellants, with support from the Secretary of State for Education and Skills as intervener, submit that the judge was right and the Court of Appeal wrong.
2. It is important to stress at the outset that this case concerns a particular pupil and a particular school in a particular place at a particular time. It must be resolved on facts which are now, for purposes of the appeal, agreed. The House is not, and could not be, invited to rule whether Islamic dress, or any feature of Islamic dress, should or should not be permitted in the schools of this country. That would be a most inappropriate question for the House in its judicial capacity, and it is not one which I shall seek to address.
The agreed facts
3. The school is a maintained secondary community school taking pupils of both sexes aged 11-16. It has a very diverse intake, with 21 different ethnic groups and 10 religious groupings represented. About 79% of its pupils are now Muslim, the percentage having fallen from 90% in 1993. It is not a faith school, and is therefore open to children of all faiths and none. Its high percentage of Muslim pupils is reflected in its exemption from the ordinary duty of maintained schools to secure an act of collective worship each day wholly or mainly of a broadly Christian character.
4. The governing body of the school always contained a balanced representation of different sections of the school community. At the time of these proceedings, four out of six parent governors were Muslim, the chairman of the Luton Council of Mosques was a community governor and three of the LEA governors were also Muslim. The school makes a significant contribution to social cohesion in a catchment area that is racially, culturally and religiously diverse.
5. The head teacher, Mrs Yasmin Bevan, was born into a Bengali Muslim family and grew up in India, Pakistan and Bangladesh before coming to this country. She has had much involvement with Bengali Muslim communities here and abroad, and is familiar with the codes and practices governing the dress of Muslim women. Since her appointment as head teacher in 1991, when it was not performing well, the school has come to enjoy an outstanding measure of success.
6. The head teacher believes 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. The school offered three uniform options. One of these was the shalwar kameeze: a combination of the kameeze, a sleeveless smock-like dress with a square neckline, revealing the wearer's collar and tie, with the shalwar, loose trousers, tapering at the ankles. A long-sleeved white shirt is worn beneath the kameeze and, save in hot weather, a uniform long-sleeved school jersey is worn on top. It has been worn by some Muslim, Hindu and Sikh female pupils.
7. In 1993 the school appointed a working party to re-examine its dress code. The governors consulted parents, students, staff and the Imams of the three local mosques. There was no objection to the shalwar kameeze, and no suggestion that it failed to satisfy Islamic requirements. The governors approved a garment specifically designed to ensure that it satisfied the requirement of modest dress for Muslim girls. Following the working party report the governors, in response to several requests, approved the wearing of head-scarves of a specified colour and quality.
8. The school went to some lengths to explain its dress code to prospective parents and pupils. This was first done in the October of the year before a pupil would enter, and again at an open evening in the July before admission. A letter written to parents reminded them of the school's rules on dress.
9. The respondent is Muslim. Her father died before she entered the school, and at the material times she lived with her mother (who did not speak English and has since died), a sister two years older, and a brother (Rahman), five years older, who is now her litigation friend. The family lived outside the school's catchment area, but chose it for the respondent and her elder sister, and were told in clear terms of the school's uniform policy. For two years before September 2002 the respondent wore the shalwar kameeze happily and without complaint. It was also worn by the respondent's sister, who continued to wear it without objection throughout her time at the school.
10. On 3 September 2002, the first day of the autumn term, the respondent (then aged nearly 14) went to the school with her brother and another young man. They asked to speak to the head teacher, who was not available, and they spoke to the assistant head teacher, Mr Moore. They insisted that the respondent be allowed to attend the school wearing the long garment she had on that day, which was a long coat-like garment known as a jilbab. They talked of human rights and legal proceedings. Mr Moore felt that their approach was unreasonable and he felt threatened. He decided that the respondent should wear the correct school uniform and told her to go home, change and return wearing school uniform. His previous experience in such situations, with one exception, was that pupils always complied. He did not believe he was excluding the respondent, which he had no authority to do, but did not allow her to enter the school dressed as she was, this being (it was said) the only garment which met her religious requirements because it concealed, to a greater extent than the shalwar kameeze, the contours of the female body, and was said to be appropriate for maturing girls. The respondent then left with her brother and the other young man. The young men said they were not prepared to compromise over this issue.
11. On the same day the head teacher, who had been informed of the incident, wrote to the respondent's mother and brother. After setting out an account of the incident, she stated that the uniform had been agreed with the governing body, and that it was her view, and that of the LEA, that the school's uniform rules were more than reasonable in taking into account cultural and religious concerns. She noted that the respondent had not attended school because she had been removed by those representing her and stated that the respondent was required to attend school dressed in the correct uniform. She further stated that the matter would be referred to the Education Welfare Service (the "EWS") should the respondent fail to attend. The letter concluded by inviting the respondent to raise the issue with the chair of the governors if the family had any further concerns. The school was anxious to establish contact with the respondent's guardian and accordingly, on 4 September 2002, a member of the support team telephoned her house and spoke to a male member of the family who said that the respondent had seen her solicitor and was going to sue the school. On 5 September 2002 Mr Moore telephoned and spoke to the respondent's brother. Mr Moore inquired why the respondent was not in school. The respondent's brother told Mr Moore that he (the brother) was not prepared to let the respondent attend school unless she was allowed to wear a long skirt. On 11 September 2002 the school sent a letter concerning the respondent's non-attendance to the family and on 27 September 2002 the school referred the matter to the EWS.
12. On 22 October 2002 solicitors on behalf of the respondent wrote to the head teacher, the governors and the LEA, contending that the respondent had been "excluded/suspended" from school "because she refused to remove her Muslim dress comprising of a headscarf and long over garment". The letter contended that the respondent believed that it was an absolute obligation on her to wear that dress and she was not prepared to take it off. It also alleged that the school's decision to exclude the respondent breached her human rights under UK and European human rights law. Articles 9, 8 and 14 and Article 2 of Protocol 1 of the Convention were set out and reasons given explaining why the school's actions had breached the respondent's human rights. On 23 October 2002 Mr Ahmed of the EWS met the respondent and her brother and emphasised the importance of the respondent attending school. Other attempts were made by the EWS to get the respondent back into the school.
13. In December 2002 the appellants and the LEA sought independent advice on whether the school uniform offended against the Islamic dress code. Two mosques in Luton, the London Central Mosque Trust and the Islamic Cultural Centre advised that it did not. On behalf of the latter two institutions Dr Abushady wrote, in a letter of 18 December 2002, that although there were many schools of thought the views he had expressed reflected the general consensus of opinion among the vast majority of Muslim scholars. The appellants' solicitor informed the respondent's of this advice, said that the respondent's religious views had been considered and provision made to accommodate them and strongly urged that she return to school. In February 2003 the EWS further sought to persuade the respondent to attend the school. Between March and June 2003 various attempts were made to find her a place at another school. A meeting was held at the school on 16 May 2003 between the respondent, her brother and two members of the EWS, in order to persuade her to return to the school, but she insisted that she would not return unless the school changed its position.
14. The respondent instructed new solicitors. On 31 May 2003 Mr Basharat Ali of Messrs Adams (later Aman) wrote to the Islamic authorities previously consulted by the appellants, seeking their advice on the respective merits of the shalwar kameeze or the jilbab from an Islamic perspective. He also wrote to the LEA contending that the shalwar kameeze contradicted Islamic dress rules. He asserted that the respondent had been constructively excluded from the school and sought to initiate the complaints procedure. The suggestion that the respondent had been constructively excluded was rejected by the appellants' solicitor: she remained on the school roll, she had throughout been able to attend but had preferred to absent herself. Various compromises were discussed in June and September 2003, but were rejected by one or other party.
15. The respondent's solicitor obtained opinions from three sources (two of them Imams previously consulted by the appellants) to the effect that the jilbab was the appropriate dress for mature Muslim women. This advice was passed on to the appellants, who did not accept it but repeatedly urged the respondent to return to school. The chairman of the governors reviewed the matter and supported the action of the head teacher. The appellants reiterated that the respondent had not been excluded, that she had a place at the school but that she must wear one of the school's approved uniforms. The EWS met the respondent in September 2003 and offered her their help in getting a place at another school if that was what she wanted. In the same month there was forwarded to the school a statement made by the Muslim Council of Britain on the "Dress code for women in Islam": there was no recommended style; modesty must be observed at all times; trousers with long tops or shirts for school wear were "absolutely fine".
16. In October 2003 a committee of the governors met and considered this matter. It gave a lengthy decision upholding the head teacher's decision. The respondent was urged to return, or to seek a place at another school. The EWS again offered help in making a transfer if that was what the respondent wanted. She made an application to one school, but it was full. She was told of two other schools where she could wear the jilbab, but she did not apply to them. An approach by her solicitor to the DfES for a direction under sections 496-497 of the Education Act 1996 was fruitless.
17. During this period, according to the school, work was set by the school for the respondent to do at home and when returned by her was duly marked and sent back to her. But it was said that she returned little. There was some dispute about this evidence, which was never explored in the courts below and no finding can accordingly be made.
18. The respondent issued her claim for judicial review on 13 February 2004. Since then, according to the appellants, a number of Muslim girls at the school have said that they do not wish to wear the jilbab and fear they will be pressured into wearing it. A demonstration outside the school gates by an extreme Muslim group (unconnected with the respondent) in February 2004, protesting against the education of Muslim children in secular schools, caused a number of pupils to complain to staff of interference and harassment. Some pupils were resistant to wearing the jilbab as unnecessarily restrictive and associated with an extremist group. The head teacher and her assistant, and also some parents, were concerned that acceptance of the jilbab as a permissible variant of the school uniform would lead to undesirable differentiation between Muslim groups according to the strictness of their views. The head teacher in particular felt that adherence to the school uniform policy was necessary to promote inclusion and social cohesion, fearing that new variants would encourage the formation of groups or cliques identified by their clothing. The school had in the past suffered the ill-effects of groups of pupils defining themselves along racial lines, with consequent conflict between them. The school uniform had been designed to avoid the development of sub-groups identified by dress.
19. In these proceedings the respondent sought leave to challenge (1) the decision of the head teacher and governors not to admit her to the school whilst wearing the jilbab, and (2) the decision of Luton Borough Council not to provide her with education whilst she was denied access to education by the head teacher. She was granted leave to pursue the first of these claims but not the second. She renewed her application to pursue the second claim before Bennett J, but leave was refused for reasons which he gave in para 107 of his judgment.
Article 9 of the Convention
20. So far as relevant to this case article 9 provides:
The fundamental importance of this right in a pluralistic, multi-cultural society was clearly explained by my noble and learned friend Lord Nicholls of Birkenhead in R (Williamson) v Secretary of State for Education and Employment  UKHL 15,  2 AC 246, paras 15-19, and by the South African Constitutional Court in Christian Education South Africa v Minister of Education  1 LRC 441, para 36. This is not in doubt. As pointed out by my noble and learned friend in para 16 of the passage cited, article 9 protects both the right to hold a belief, which is absolute, and a right to manifest belief, which is qualified.
21. It is common ground in these proceedings that at all material times the respondent sincerely held the religious belief which she professed to hold. It was not the less a religious belief because her belief may have changed, as it probably did, or because it was a belief shared by a small minority of people. Thus it is accepted, obviously rightly, that article 9(1) is engaged or applicable. That in itself makes this a significant case, since any sincere religious belief must command respect, particularly when derived from an ancient and respected religion. The main questions for consideration are, accordingly, whether the respondent's freedom to manifest her belief by her dress was subject to limitation (or, as it has more often been called, interference) within the meaning of article 9(2) and, if so, whether such limitation or interference was justified under that provision.