R (Begum) v Denbigh High School

Facts

Shabina Begum was a Muslim pupil at Denbigh High School in Luton, where most pupils were Muslim. The school had adopted a uniform policy after consulting parents, pupils and local mosques, which allowed Muslim girls to wear a shalwar kameez and a headscarf. When she was 14 she told the school she wished to wear a jilbab, which she regarded as required by her religion. The school refused and sent her home when she attended in a jilbab. She stayed away from school for an extended period and then moved to another school where she could wear it.

History

The Administrative Court (Bennett J) dismissed her claim. The Court of Appeal allowed her appeal, holding that the school had interfered with her right to manifest her religion and had not justified the interference because it had not approached the question in the right way by considering her Convention rights. The governors appealed to the House of Lords.

Issue

Whether the refusal to allow the jilbab interfered with the right to manifest religion in Article 9 of the European Convention, or with the right to education in Article 2 of the First Protocol; if so, whether the interference was justified; and whether the school had to follow a particular decision-making process in addressing Convention rights.

Held

Appeal allowed. All five Lords held that the claim failed. Lords Bingham, Hoffmann and Scott held that there was no interference with Article 9 in the circumstances, because she could have attended a school which allowed her form of dress; Lord Nicholls and Baroness Hale proceeded on the footing that there was an interference. All held that any interference was justified, and there was no breach of Article 2 of the First Protocol.

Ratio

• Article 9 does not give a right to manifest religion at any time and in any manner, and a school uniform rule does not necessarily interfere with the right where the pupil can readily go to another school that accepts her form of dress.
• If there is an interference, a uniform policy adopted after consultation to promote inclusion, protect pupils from pressure and maintain harmony is a proportionate means of pursuing legitimate aims.
• Under the Human Rights Act 1998 the court decides whether the Convention right has been infringed by the outcome of the decision; a public authority is not required to follow a prescribed process or to show that it considered the Convention, and failing to do so does not itself make the decision unlawful.

The judgments

Key reasoning

• The school had developed its policy after wide consultation, and it was one which the local Muslim community regarded as acceptable; the claimant's family had accepted the uniform when she joined and she had been free to attend a school where a jilbab was permitted.
• The legitimate aims of the policy included promoting cohesion in a diverse school, avoiding differences of dress that could mark out and pressure pupils, and protecting pupils who might be subjected to pressure to adopt a stricter code.
• The Court of Appeal's model required a decision-maker to work through the structure of Article 9 before deciding; but the legal question for the court is whether the right was infringed and whether any interference was justified on the facts, and the court can decide that itself.

Where it fits in the module

On the FHS Administrative Law list under proportionality. Begum is the standard point of reference for the debate whether proportionality review is concerned with outcomes or with process: the House rejected the Court of Appeal's view that a decision-maker must itself analyse the Convention in a structured way. It also shows the degree of weight courts give to the judgment of the school and its local context. It is usually read with Huang v Secretary of State for the Home Department [2007] UKHL 11 on the court's role in deciding proportionality, with Belfast City Council v Miss Behavin' Ltd [2007] UKHL 19, which applied the same approach, and with Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 on the structured proportionality test.

Criticisms

• Treating the availability of another school as removing any interference makes freedom to manifest religion depend on an alternative being available, which sits uneasily with the principle that an interference is not avoided because the claimant could choose to leave.
• Rejecting the process model gives public authorities little incentive to reason in terms of rights, and leaves the courts to decide proportionality without the benefit of the decision-maker's reasoning; the Lords also relied on the school's consultation, which blurs process and outcome.
• Accepting the aim of protecting other pupils from pressure on the basis of general assertion, without evidence specific to this school, gives wide deference to the school and treats the claimant's own conviction as less important than its policy.