R (SB) v. Headteacher and Governors of Denbigh High School [2006] UKHL 15

Facts:

• The appellant school (D) appealed against the decision that the respondent (B) had been unlawfully excluded from school for failure to comply with her school’s dress code, and that her rights to education and to manifest her religion under the Human Rights Act 1998 Sch.1 Part II Art. 2 and Sch. 1 Part I Art. 9 had been violated.
• B was Muslim and wished to wear a jilbab to school, rather than a shalwar kameeze as dictated by D’s uniform policy. The uniform had been designed to serve the needs of a diverse community.
• For two years, B had worn the shalwar kameeze without objection. D had refused to allow B to attend school in a jilbab. B maintained that the shalwar kameeze did not comply with the requirements of her religion.
• D’s complaints committee decided that the uniform policy satisfied the requirements of the Islamic dress code.
• There were three other schools in B’s catchment area at which the wearing of the jilbab was permitted but B’s application for admission to one of those was unsuccessful and it was maintained that the other two were more distant.
• B lost nearly two years’ schooling before accepted by a different school.

Issue:

• Whether B’s freedom to manifest her religious belief by her dress was subject to limitation within the meaning of Art.9(2) of the Act and, if so, whether such limitation or interference was justified?
• Whether B had been denied access to education in breach of Sch.1 Part II Art. 2 of the Act?

Ratio:

• Appeal allowed.
• What constituted interference depended on all the circumstances of the case, including the extent to which an individual could reasonably expect to be at liberty to manifest his beliefs in practice. In this instant case B’s family chose for her a school outside their own catchment area. There was no evidence to show that there was any real difficulty in her attending one of the three schools in her catchment area that permitted the wearing of the jilbab. It was of course open to B to modify her beliefs, but she did so against a background of free and informed consent by her and her family. On the facts, there was no interference with B’s right to manifest her belief in practice or observance.
• The CoA had erred in its approach under Art. 9. The focus at Strasbourg was not and had never been on whether a challenged decision or action was the product of a defective decision making process, but on whether, in the case under consideration, B’s Convention rights had been violated. The court’s approach to an issue of proportionality under the 1998 Act had to go beyond that traditionally adopted to judicial review in a domestic setting. Proportionality had to be judged objectively. It was therefore necessary to consider the proportionality of D’s interference with B’s right to manifest her religious belief. On the facts, D was fully justified in acting as it had done. It had taken immense pains to devise a uniform policy that respected Muslim beliefs but did so in an inclusive, unthreatening and uncompetitive way. The rules laid down were as far from being mindless as uniform rules could ever be. The rules were acceptable to mainstream Muslim opinion. It would be irresponsible of any court, lacking the experience, background and detailed knowledge of the head teacher, staff and governors of D, to overrule their judgement on a sensitive matter. The power of decision had been given to them for the compelling reason that they were best placed to exercise it, and there was no reason to disturb their decision.
• B had not been denied access to education in breach of Art.2. The two year interruption in her education was the result of her unwillingness to comply with a rule to which the school were entitled to adhere and of her failure to secure prompt admission to another school where her religious convictions could be accommodated.