Begum, R (on the application of) v. Headteacher and Governors of Denbigh High School

The House of Lords allowed the school's appeal against the Court of Appeal. The central legal issues were whether the school's refusal to admit the claimant while she wore a jilbab engaged or interfered with her rights under Article 9 of the European Convention on Human Rights and, if so, whether any interference was justified under Article 9(2). The Lords considered Strasbourg jurisprudence on when a restriction on manifestation of religion amounts to an "interference", the appropriate intensity of domestic proportionality review under the Human Rights Act 1998, and the relevance of alternative schooling and parental choice. The House concluded that, on the agreed facts, the school’s uniform policy was within the area of judgment accorded to local school authorities and, even where an interference might be arguable, was objectively justified as proportionate to protect the rights and freedoms of others and to promote cohesion. The House also held that Article 2 of the First Protocol (the right to education) was not infringed and that the school had not effected a statutory exclusion in the sense pertinent to the exclusion regime. The Court of Appeal's emphasis on the decision-making process rather than the substantive proportionality of the outcome was rejected.

This was an appeal from the Court of Appeal ([2005] EWCA Civ 199) against a declaration that Denbigh High School had infringed a pupil's Convention rights. The claimant, a Muslim schoolgirl, sought judicial review challenging the decision of the head teacher and governors not to admit her to the maintained school while she wore a jilbab. She relied on Article 9 (freedom to manifest religion) and Article 2 of the First Protocol (right to education). At first instance Bennett J rejected her claims; the Court of Appeal reversed and found an Article 9 violation.

The House of Lords reviewed agreed facts: the school was a diverse maintained community school with a carefully designed uniform policy (including an approved shalwar kameeze and a permitted headscarf), substantial Muslim representation among staff and governors, extensive prior consultation with local mosques, and active steps taken by the school and the Education Welfare Service to secure the pupil's attendance or alternative placements. The claimant had worn the shalwar kameeze without complaint for two years but, on reaching adolescence, asserted a sincere religious belief that only the jilbab satisfied her religious obligations; she and family representatives insisted on immediate admission in the jilbab and thereafter did not return to the school.

The issues before the House were: (i) whether the school's stance amounted to an interference with Article 9 rights; (ii) if so, whether any interference was "prescribed by law", pursued a legitimate aim and was "necessary in a democratic society" (proportionate); (iii) whether the school had denied her the right to education under Article 2 of Protocol 1; and (iv) whether the facts amounted to an unlawful school exclusion under domestic education law. The Lords analysed Strasbourg authorities (for example Kalaç, Sahin, Jewish Liturgical Association and Ahmad) on when institutional rules produce interference, emphasising that choice of institution and availability of alternatives are relevant. The House rejected the Court of Appeal's procedural approach that would invalidate decisions simply because the decision-maker had not followed a judge-like sequence of proportionality questions; instead proportionality is a substantive, value-laden judgment to be made by the court but with recognition of the practical area of judgment afforded to school authorities.

Applying these principles the House held that the school’s uniform policy had been developed to reconcile inclusion, cohesion and reasonable religious accommodation, that alternative local schools existed which would permit a jilbab and that the school’s insistence on its uniform was objectively justified and proportionate to protect the rights and freedoms of others and to preserve communal cohesion. The Article 2 Protocol 1 claim failed because there was no denial of education as a whole. The Court of Appeal's declaration was set aside and the judgment below restored. The House also briefly addressed the statutory concept of "exclusion" and concluded the school had not effected a statutory exclusion in the relevant sense.

Appeal allowed. The House concluded that, on the agreed facts, the school's decision did not unlawfully interfere with the claimant's Convention rights; even if an interference were arguable, the school’s uniform policy was objectively justified and proportionate under Article 9(2). Article 2 of the First Protocol was not breached. The Court of Appeal had erred in prioritising a formalistic procedural test of decision-making over substantive proportionality and the appropriate margin of judgment afforded to school authorities.

Permission granted to appeal following the Court of Appeal decision [2005] EWCA Civ 199 (which had reversed the Administrative Court). At first instance Bennett J dismissed the claimant's challenge: [2004] EWHC 1389 (Admin). The House of Lords allowed the appeal: [2006] UKHL 15.