School Uniforms, Religious Freedom and the Human Rights Act

In a recent, highly publicised decision of the House of Lords, the panel considered the difficult balance to be struck between multiculturalism and respect for an individual's right to manifest their religious beliefs; and the rights of  schools to impose and maintain a uniform code.

4 May 2006

In a recent, highly publicised decision of the House of Lords, the panel considered the difficult balance to be struck between multiculturalism and respect for an individual's right to manifest their religious beliefs; and the rights of  schools to impose and maintain a uniform code.

Shabina Begum, a Muslim girl who was 14 years old at the beginning of proceedings, attended Denbigh High School in Luton. The school had a dress code, which offered three choices for girls. One such choice was the shalwar kameeze, a combination of loose trousers and a long tunic. Shabina had worn the shalwar kameeze without complaint for her first two years at high school, as had her older sister for her whole period of attendance at the same school.

However, on the first day of her third year, Shabina turned up at school with her brother, who was the head of their family following the death of their father, and another man. She was wearing a jilbab, an all-encompassing garment, and she and her brother made it clear to the deputy head teacher that she would wear this from then on, notwithstanding the school's dress code. It was contended that Shabina's religious beliefs prevented her, as a maturing girl, from wearing the shalwar kameeze any longer. She was asked to go home and return to school in proper uniform.

Instead, she went home and never returned.  This marked the start of a lengthy battle which pitted the school and the Educational Welfare Service—both of whom were keen for Shabina to resume her schooling at Denbigh, provided that she comply with the uniform policy—against Shabina, her brother and their solicitors, who insisted that Shabina's human rights, to manifest her religious beliefs and not to be deprived of an education, were being violated.

It was noted at all stages in the legal proceedings that the uniform policy at Denbigh had been created following extensive consultation with pupils and parents, and the Imams of three local mosques. The consultation specifically with local Imams reflected the fact that approximately 80% of pupils at the school came from Muslim backgrounds. The prescribed shalwar kameeze had been confirmed as consistent with the Islamic dress code for young women.

The case reached the House of Lords after a first instance judgement that Shabina's rights had not been infringed, and a Court of Appeal judgement that overturned this ruling. Of the speeches delivered by the five Law Lords who heard the case, Lord Bingham's is probably the most interesting in terms of its analysis of the Human Rights Act and its effect. Lord Bingham criticised the Court of Appeal judgment for drawing too heavily on domestic judicial review principles: whereas the court in a judicial review is concerned with the way in which a decision has been made, rather than the substance of the decision, the court in a human rights case should be concerned with the effect of a decision, rather than the procedure by which it was taken. Although Denbigh High might not have arrived at its decision not to allow Shabina to attend in non-uniform in the way a judge would, it was the practical outcome that must be examined.

The right to manifest one's religion may be subject to interference, unlike the right to freedom of thought, conscience and religion, which is unqualified. However, such interference must be prescribed by law, and necessary in a democratic society. Lord Bingham considered that there had not, in fact, been an interference with Shabina's right to manifest her religion, and two other Law Lords concurred. This was on the basis that she had chosen to attend Denbigh in full cognisance of the uniform policy, and that there were two other schools in the area which allowed the jilbab and to which she could have transferred. Shabina could therefore have manifested her beliefs elsewhere.  In the words of Lord Hoffman, "Article 9 does not require that one should be allowed to manifest one's religion at any time and place of one's choosing."

Baroness Hale and Lord Nicholls, on the other hand, considered that there had been an interference with Shabina's right, but that the interference had the legitimate aim of protecting the rights and freedoms of others. The school had the valid intention of maintaining a sense of social cohesion and community spirit by enforcing a dress code without exceptions. There was also the risk that by allowing the jilbab, which many perceived as being linked to extremist Islamic movements, pupils at the school would segregate into groups according to the strictness of their religious beliefs, as marked by their dress. Further, many girls at the school had expressed the desire not to wear the jilbab, and their fear of being pressured to wear it if it were permitted.

The judges were therefore agreed that there had not been a breach of Article 9, whether because there had been no interference with Shabina's right to manifest her religion or because such interference had been justified. All five of the Law Lords also agreed that there had been no breach of Article 2 of Protocol 2, which protects the right to education. It is widely accepted that this provision is designed to prevent situations where access to the education system as a whole is denied; there is no right to attend any particular school. Shabina had opted, by remaining at home for two years, rather than transferring to another local school, to interrupt her education; as such, there had been no breach of Article 2.

Shabina, who did eventually transfer to another school, responded to the House of Lords' decision by saying that she would now drop the case and get on with her life.