Home > Public space > England and Wales > 2006-03-22 - House of Lords, R (on the application of Begum) v. Headteacher (...)

2006-03-22 - House of Lords, R (on the application of Begum) v. Headteacher and Governors of Denbigh High School [2006] UKHL 15, [2007] 1 A.C. 100, [2006] 2 W.L.R. 719

Public space · England and Wales · Dress code · School

Key facts of the case - The respondent, a Muslim school girl, attended a mixed-sex school outside her family’s catchment area. A majority of the pupils at the school were Muslims, with others from a wide range of faiths.
The school regarded a school uniform policy as being in the best interests of the school and as contributing to social cohesion and harmony among the pupils. Female pupils were offered three options for the school uniform. One of those options, which had been devised after consultation with parents, pupils, staff and the local mosques, was the shalwar kameez, a combination of a sleeveless smock-like dress with a square neckline revealing the wearer’s shirt collar and tie, and loose trousers tapering at the ankles. Girls were also permitted to wear blue head scarves. The school’s dress code was explained to all prospective parents and pupils.
During her first two years at the school the claimant wore the shalwar kameez but she then decided that it did not comply with her religious beliefs. One day she arrived at school wearing a “jilbab”, a long coat-like garment which effectively concealed the shape of the body and which the respondent considered to adhere to the tenets of Islam. She was accompanied by her brother and another young man and they insisted that the claimant be allowed to attend school wearing the jilbab. She was not permitted to attend school dressed in a jilbab and was asked to go home and return wearing a school uniform. Attempts were made to provide the claimant with some form of education, but she lost nearly two years of schooling. There were other schools in the area where the wearing of the jilbab was permitted, and she eventually enrolled at one of them.
In an application for judicial review of the decision of the school governors, she claimed declarations that her exclusion was unlawful because of the limitation of her right to manifest her religion under article 9(1) of the ECHR, and because of a violation of her right to education to under article 2 of the First Protocol to the ECHR. The judge dismissed the claim on the ground that she had not been excluded from school, that even if she had been excluded there was no limitation of her right under article 9(1), and that any such a limitation would have been justified under article 9(2). Allowing her appeal, the Court of Appeal granted a declaration that her exclusion from school had occurred without the appropriate procedures being followed and that her rights under article 9(1) had been violated.
The school appealed against that decision.

Main reasoning of the court - The school’s appeal was allowed on the following grounds:

(1) Article 9(1) ECHR was engaged since the wearing of a jilbab was a sincere manifestation by the claimant of her religious belief. However, article 9(1) did not require that people should be allowed to manifest their religion at any time and place of their choosing; that what constituted interference with the manifestation of a religious belief depended on all the circumstances of the case. Interference would not readily be established when a person had voluntarily accepted a role which did not accommodate his right to manifest his religious belief in practice or observance and there were other means open to that person to practise or observe those beliefs without undue hardship or inconvenience. The claimant’s family had chosen for her a school outside their catchment area after having been informed of the school’s policy in regard to uniforms and there was no evidence to indicate that the claimant would have had difficulty in attending another school where pupils were permitted to wear the jilbab. In all the circumstances of the claimant’s case, the refusal to allow her to attend school wearing a jilbab did not amount to an interference with her right to manifest her religious beliefs in practice or observance.

(2) The school’s rules about uniforms had been made for the legitimate purpose of protecting the rights and freedoms of others. Since the school had gone to great lengths to devise a school uniform policy which respected Muslim beliefs in a way which was inclusive, unthreatening and uncompetitive. The school had been entitled to conclude that the shalwar kameez was acceptable to mainstream Muslim opinion and that allowing the claimant to wear a jilbab could have significant adverse repercussions for other pupils. Parliament had given the defendants the power to make their own decisions about uniforms. The school’s insistence on its uniform policy was a limitation prescribed by law which was proportionate to its purpose and objectively justified under article 9(2) even if it had interfered with the claimant’s right to manifest her religion under article 9(1).

(3) The right to education under article 2 of the First Protocol did not confer a right to attend any particular school, and the right was infringed only if the claimant was denied access to the general educational provision available from the system as a whole. The claimant’s failure to attend school was the result of her unwillingness to comply with a rule to which the school was entitled to adhere and she could have found another school which allowed her to wear the jilbab if she had notified the local education authority in time of her requirements.
The claimant had therefore not been denied access to the general education system and there had been no infringement of her right to education.

Comment - This type of school uniform case may not arise frequently in other European legal systems given that British schools tend to have uniform policies which do not exist widely elsewhere in Europe. This widely commented case appears to turn very much on its facts and circumstances, as with the several other British cases concerning non-compliance by pupils with school uniform policies.
Given the efforts made by the school to accommodate Muslims pupils, and the availability of other schools in the area which allowed the wearing of the type of dress the respondent wished to, appear to be significant factors in motivating the finding of no violation of the ECHR by the House of Lords in this case.