A dressing down

R (Shabina Begum) v Head teacher and Governors of Denbigh High School [2006] UKHL 15


This case has been widely reported (see [2006] Gazette, 21 April, 14). Shabina Begum brought an application for judicial review claiming, among other things, that the refusal of Denbigh High School in Luton to allow her into the school wearing a jilbab infringed her freedom to manifest her religion and her right to education.


Mr Justice Bennett rejected her claim but the Court of Appeal allowed it. In particular, dealing with freedom of religion, the Court of Appeal considered that the school had not asked itself the right questions when considering whether refusal to allow Ms Begum to wear the jilbab would interfere with her freedom of religion and, if so, whether it was justified. While quashing the decision, the Court of Appeal had recognised that the school might well reach the same conclusion after following the proper decision-making process. The House of Lords unanimously allowed the appeal.


Lords Bingham and Hoffmann were particularly critical of the Court of Appeal's strictures about the decision-making process. This approach, they said, was appropriate to judicial review reliant on domestic law but did not apply to Human Rights Act (HRA) cases. In such a case, according to Lord Bingham 'what matters ... is the practical outcome, not the quality of the decision-making process'. Section 6 of the HRA made it unlawful to act in a way which is incompatible with a convention right, not to rely on a defective process of reasoning; and the purpose of the HRA 'was not to enlarge the rights or remedies of those in the UK whose convention rights have been violated, but to enable those rights and remedies to be asserted and enforced by the domestic courts of this country and not only by recourse to Strasbourg'. The Court of Appeal's approach was unduly formalistic and a school should not be expected to follow it.


Lords Bingham, Hoffmann and Scott considered that the school's decision had not interfered with Ms Begum's freedom to manifest her religion at all. There is substantial Strasbourg authority to the effect that there is no interference where, as Lord Bingham summarised the position, 'a person has voluntarily accepted an employment or role which does not accommodate that practice or observance and there are means open to the person to practise or observe his or her religion without undue hardship or inconvenience'. There was some authority that interference would be found only where the prohibition in question made practice or observance impossible. But it was not necessary to determine that issue in this case. Lord Nicholls and Baroness Hale held that there had been interference that needed to be justified, and Lords Bingham and Hoffmann were prepared to address the issue of justification. Only Lord Scott rested his decision solely on the absence of interference.


On the substance, Lords Bingham, Hoffmann and Nicholls, and Baroness Hale, agreed that if there was an interference, it was justified for the protection of the rights and freedoms of others and proportionate to that aim. It was intended to foster a sense of community and cohesion within the school, smoothing over ethnic, religious and social divisions while at the same time respecting cultural and religious diversity, but relieving other Muslims from feelings of pressure to conform. For Baroness Hale, these considerations justified restrictions on freedom of choice in schools that would not be justified among adults.


Lords Bingham and Hoffmann laid particular emphasis on the need to leave the decision to schools and not to interfere. Lord Bingham said it would be 'irresponsible for a court, lacking the experience, background and detailed knowledge of the head teacher, staff and governors, to overrule their judgment on a matter as sensitive as this. The power of decision has been given to them for the compelling reason that they are best placed to exercise it'. For Lord Hoffmann, Parliament had decided to allow individual schools to make their own decisions about uniforms, and an area of judgment, or margin of appreciation, had to be left to them. They could not be expected to make such decisions with textbooks on human rights law at their elbows.


While many commentators criticised the decision of the Court of Appeal, the present decision has some troubling features.


The first is the insistence, by Lords Bingham and Hoffmann, that when considering an HRA point, the courts are not concerned with the decision-making process but only with the substantive decision at the end of the process. This seems to set convention rights apart from any other legal provisions that a public law body has to apply. In 'domestic' cases, a body must ask itself the right questions, take account of relevant factors and exclude irrelevant ones. And it must give proper weight to such factors. If it does not, then the decision must be quashed if it is possible that a different result might have been reached.


Why should authorities be judged by a different standard when they are giving effect to convention rights? If they adopt a wrong approach, they may fall into error. In the present case, the school had to ask itself whether the uniform policy interfered with a convention right and, if so, what was the legitimate aim it pursued. It should also have borne in mind that where, as here, the legitimate aim is 'the rights and freedoms of others', then where those rights of others are not convention rights, 'only indisputable imperatives can justify interference with enjoyment of a Convention right' (see Chassagnou v France (2000) 29 EHRR 615, paragraph 113).


Lord Hoffmann suggested that the approach of the Court of Appeal meant that schools would have to make such decisions with human rights textbooks at their elbows. But schools must make many decisions that require an appreciation of the law; indeed, its uniform policy, as it affects Sikhs and Jews, is subject to the Race Relations Act. Other provision is subject to the Disability Discrimination Act or to the legislation relating to exclusion, parental preference and special educational needs.


The need to subject the decision-making process to strict scrutiny becomes more important where, as here, the court is prepared to afford a large measure of deference to the decision of the school. Lords Bingham and Hoffmann went out of their way to emphasise that the school was best placed to make a judgment, Parliament had left the school to do so and the judges were poorly placed to substitute their own views. Indeed so, but where a wide margin of appreciation is to be left to the decision-maker, when reviewing the substance it is vital that the courts ensure that the decision-maker has applied the right principles in reaching its decision; for otherwise, the court has no role to play at all. In such a case, the individual falls between two stools: the court declines to look at the decision-making process, but only the result; and it declines to interfere with the result on the basis of deference.


Lords Bingham and Hoffmann said they had been referred to no European Court of Human Rights decision in which a violation had been found because the national authorities had not adopted the correct decision-making process. Yet, when it considers questions of justification, the Strasbourg court adopts a standard formula - it considers whether a restriction is 'proportionate to the legitimate aims pursued' and whether the reasons adduced by the national authorities to justify it are 'relevant and sufficient'. In doing so, the national authorities have to satisfy the court that they applied standards which were in conformity with the principles embodied in the convention and, moreover, that they based themselves on an acceptable assessment of the relevant facts. If the national authorities did not apply the relevant standards, then they would be unable to justify the restriction, because they would be unable to demonstrate that they have adopted the proper balance between, on the one hand, a fundamental right guaranteed by the convention and, on the other, a much vague concept of 'the rights and freedoms of others'.


The result in this case was predictable. The Lords might have disposed of the appeal on the simple basis that there had been no interference with Ms Begum's freedom to manifest her religion. That was the inclination of Lords Bingham, Hoffmann and Scott; and, on the authorities, that is likely to be the result if the case goes to Strasbourg.


However, four of the judges considered the merits of the justification for any interference that there might be - what they saw was a school apparently doing its best to devise a uniform policy which struck a fair balance between its desire, on the one hand, to foster a sense of community and relieve young girls from parental or community pressure to adopt certain norms and, on the other, to allow a degree of religious freedom and diversity. The school had clearly made significant efforts to achieve this balance, but it is not inevitable that the same balance would have been struck if it had asked itself the right questions: what were the rights of others which were to be protected? Did those rights justify interference with a fundamental right 'in a democratic society', namely, one characterised by 'pluralism, tolerance and broadmindedness', which 'ensures the proper treatment of minorities and avoids any abuse of a dominant position' (see Chassagnou, paragraph 112)?


Why were the uniform rules necessary in this school when other state schools in the area did not apply them? Was a ban on such uniforms proportionate to the aim identified by the school? Unless the school was in a position to show that it had addressed these questions, it could not satisfy the court of the justifiability of its interference with a convention right.


Clearly, all the judges thought that the school had done more than most to strike a balance and that it was unfair that it should find itself in court. But even the best of intentions are no substitute for a principled approach to novel questions to which the answer may not be self-evident.


By Stephen Grosz, Bindman & Partners, London