Following Clive’s interesting and informative post just now, a word or two more. The highly fact sensitive approach adopted in R ota X v Y School is also apparent in the employment case of Azmi v Kirklees BC [2007] IRLR 434. Here a primary school teaching assistant wished to wear the niqab in the classroom. The school declined her request. Many of her pupils had English as a second language and the school believed that they should be able to see the teacher’s face as she spoke, so as to increase their proficiency. Applying the same sort of approach that Silber J applied in R ot a X v Y School, the employment tribunal rejected her claim that the school had discriminated against her on grounds of her religion or belief in declining to let her wear the niqab in the classroom. The Employment Appeal Tribunal upheld the ET’s decision.

Peter Oldham QC – Peter appeared in both Azmi v Kirklees BC and R ota X v Y School

Last week the Prime Minister entered into the debate on the wearing of veils by Muslim women in schools (http://www.independent.co.uk/news/uk/politics/cameron-will-back-uk-muslim-veil-bans-as-he-announces-new-measures-to-tackle-segregation-a6820491.html). This week, it is the turn of the Chief Inspector of Schools, Sir Michael Wilshire. The Chief Inspector has said that:

“The Prime Minister and Secretary of State are right to give their backing to schools and other institutions which insist on removing face coverings when it makes sense to do so.

I am concerned that some heads and principals who are trying to restrict the wearing of the full veil in certain circumstances are coming under pressure from others to relax their policy. I want to assure these leaders that they can rely on my full backing for the stance they are taking.

I have also made clear to my inspectors that where leaders are condoning the wearing of the face veil by staff members or by pupils when this is clearly hindering communication and effective teaching, they should give consideration to judging the school as inadequate.

I am determined to ensure that discrimination, including on the grounds of gender, has no place in our classrooms. We want our schools, whether faith schools or non-faith schools, to prepare their pupils equally for life in 21st century Britain. We need to be confident our children’s education and future prospects are not being harmed in any way.”

https://www.gov.uk/government/news/statement-by-hm-chief-inspector-on-the-wearing-of-the-full-veil-in-schools

The legal issues for schools are interesting, and require careful thought.

The starting point is Article 9 of the European Convention of Human Rights which provides that:

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

 Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Where a student wishes to wear the niqab (the veil that covers a female’s face), this will amount to the manifestation of her religion. Whether or not this freedom has been interfered with, or limited, will depend firstly on whether or not she is able to attend a different school at which wearing the niqab is permitted.

In the leading case dealing with Article 9 and school uniforms — R (Begum) v. Governors of Denbigh High School [2006] UKHL 15, the majority of the House of Lords held that there was no limitation or interference with a student’s Article 9 right to wear the jilbab (a body length dress), where it was possible for her to attend other local schools and wear the jilbab. See, in particular, paragraph 23 of Lord Bingham’s speech:

“The Strasbourg institutions have not been at all ready to find an interference with the right to manifest religious belief in practice or observance where a person has voluntarily accepted an employment or role which does not accommodate that practice or observance and there are other means open to the person to practise or observe his or her religion without undue hardship or inconvenience.”

Similarly, in R(X) v. HeadTeacher of Y School [2007] EWHC 298 (Admin), a case which concerned a female student who wished to wear the niqab at school, but this was refused. In that case, Silber J. held at paragraph 40 that:

“I therefore conclude that the claimant’s article 9 rights have not been interfered with as she could have accepted the offer of a place at school Q which achieved good academic results and which is easy for her to get to and most significantly where she could wear her niqab. I add that the claimant has not adduced any evidence or made any submission to indicate that this school is an unacceptable school for her.”

If there are no other schools that the student could attend that would permit her to wear the niqab, the prohibition could interfere with her Article 9 rights, and the analysis would then turn to what the rationale was for the prohibition. Article 9 allows for justification where the aim of the interference with the freedom to manifest religion is “in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” This requires the prohibition to further a legitimate aim, and for the prohibition to be proportionate.

If the argument being forward by the school for the prohibition on wearing the niqab is ‘educational’, that may be difficult to sustain. How, for instance, are the ‘rights and freedoms’ of other students affected by the wearing by the student of a niqab? Indeed, that was the view (obiter) of Silber J. in the X v. Y case. In that case, a number of reasons were put forward by the school for why the niqab could not be worn. One of the reasons was the educational one: see paragraph 84:

“The case for the school is that by wearing the niqab, the claimant would hamper her learning and the ability of the school to teach her for the reasons which I have explained in paragraph 64 (f) to (i) above. The head teacher explains that effective learning depends on pupils being able to interact with each other and in particular with the teacher. She says that effective teaching depends on the teacher being able to see if the pupils understand what she is being taught and if she is paying attention as well as discovering if she is distressed or enthusiastic.”

At paragraph 90, Silber J. stated that:

“There is no evidence that the learning by the claimant’s classmates has been impaired or adversely affected by a girl in their class wearing a niqab. In consequence, the school cannot rely on this ground relating to educational factors under article 9(2).”

There may be other reasons, however, that could justify the interference.

In X v. Y, the Court held that interference would have been justified for other reasons: e.g. pressure on other Muslim girls. Similarly, in Begum, where this was a particular concern that would have justified the interference. This approach is supported by the Grand Chamber of the European Court of Human Rights in the case of SAS v. France (2015) 60 E.H.R.R. 11 (the prohibition on concealing one’s face in public was held to be justified and proportionate insofar as it sought to guarantee the conditions of “living together”).

Before, therefore, schools rush to follow the approach suggested by the Prime Minister, and now supported by the Chief Inspector, they should think carefully. Schools should consider the availability of other schools in the area that the student could attend and would allow her to wear the veil. Schools should ask themselves why the prohibition is required, and see how this fits with the potential justifications afforded by Article 9(2). Otherwise, they run the risk of a successful human rights challenge.

Clive Sheldon QC

Since my last update on 21 October 2015, the Education and Adoption Bill has been through the committee and report stages in the Lords. The next step will be Lords third reading, on a date to be confirmed.

After the committee stage, Lord Nash wrote to the Delegated Powers and Regulatory Reform Committee about the proposed powers in respect of coasting schools and explained that the Bill would be amended as follows:

1. the Bill will require the Secretary of State to make regulations about the definition of a coasting school (rather than just giving the SoS the power to do so);
2. “it may be unintentionally misleading to suggest that the Secretary of State will notify a school when she
   “considers” it to be coasting and we will therefore amend the Bill to be clear that a school will be notified when “it is coasting” as per the definition set out in regulations“;
3. the Bill will “allow the Secretary of State, through regulations, to disapply the coasting definition to certain types of schools“. The SoS intends to disapply the definition to maintained nursery schools and at the time it was consulting on other types;
4. the coasting regulations will be subjected to the affirmative procedure when they are first laid (but not for subsequent versions); and
5. “we will continue to consider whether it is appropriate to amend primary legislation [to include more detail on the coasting criteria] following the conclusion of the consultation“.

These amendments were introduced at the Lords report stage and agreed.

The consultation on coasting schools ended on 18 December 2015 and the Government’s response is awaited.

Rachel Kamm, 11KBW, @kamm11KBW

by Peter Oldham QC

A Social Market Foundation report entitled “Educational inequalities in England and Wales” has just been published and it’s available here. It contains a great deal of fascinating information, though quite of a lot of it (as you might expect) is not great news.

The SMF looked at inequalities in educational attainment at ages 11 and 16 and how changes in patterns of inequality have evolved over time, by reference to the influence of region, family income, gender and ethnicity.

Regional inequalities are reported to have “remained stubborn and in some cases worsened”, with London and the South East out-performing the rest of the country in GCSEs. The difference in achievement between the richest and the poorest stayed “persistently large” between the 1980s and the 2000s. Patterns of ethnic inequality have greatly changed but a “similar level of unevenness” between ethnic groups remains. Girls outperform boys, and the gender gap has widened.

Peter Oldham QC

Last November I did a blog post about the case of R (Fox) v Secretary of State for Education [2015] EWHC 3404 (Admin) in which the High Court found that government guidance about religious education was in one respect unlawful.

The DfE has now issued a “guidance note” to take account of that decision.  It is very short, just 2 pages long.  The first page describes the court’s decision as having been on a “narrow, technical point” and reiterates government’s policy on the teaching of RE which it says remains unchanged.  The second page then sets out its response to the High Court’s decision as follows (footnotes removed):

“The judgement identifies a technical, legal concern with paragraph 2 of the introduction to the Religious Studies (RS) GCSE subject content:
“By setting out the range of subject content and areas of study for GCSE specifications in religious studies, the subject content is consistent with the requirements for the statutory provision of religious education in current legislation as it applies to different types of school.”
The Court concluded that this amounted to an assurance to all schools without a religious character that they could always wholly rely on any and all possible routes through the RS GCSE to ensure compliance with their statutory responsibilities.
This was not how the paragraph was ever intended to be read. We intended it simply to reflect that the subject content is not incompatible with those statutory responsibilities and may act as a possible element in complying with those responsibilities.
Paragraph 2 is now to be understood and applied in the sense set out in the previous two paragraphs.
The Government’s clear view is that schools following this approach will be fully in line with their statutory requirements.”

According to a statement issued by the British Humanist Association, which had supported the judicial review claim, this new guidance “makes the situation worse” and it is consulting its lawyers so this may not be the end of the matter.  But whatever its rights or wrongs, one can’t help thinking how nice it would be if all government guidance were as short as this.  Happy New Year!

Paul Greatorex

In 2013 I did a blog post about the case of Duke v University of Salford [2013] EWHC 196 (QB) which concerned a defamation claim by Salford University against a Dr Duke for blog postings which (inter alia) made unfavourable comparisons between the university and the leadership of Hezbollah, a suggestion that it was “adopting some of the more odious policies of the great Chinese bureaucratic dictatorship”, and allegations of secretive behaviour.  I’m sure you recall it as if it were yesterday.

Anyway, a recent decision of the European Court of Human Rights in Kharmalov v Russia (Application no. 27447/07) concerns a similar spat in Russia and is a reminder that such dissent, if not an inherent part of academic life, is at least not confined to these shores.  More relevantly from a legal point of view, it illustrates the freedom of speech protection afforded by the European Convention on Human Rights and makes some important points about universities’ reputations and debates of public interest.

The applicant was Mr Kharmalov, a tenured professor in the physics department of the Orel State Technical University in Russia.  Unhappy about the lack of consultation regarding candidates for the academic senate, he made a speech at the university’s public conference which included the following:

“… the elected academic senate may not be considered a legitimate body and its decisions likewise cannot be considered legitimate. All of them can be challenged in courts. The problem is that the staff or departments did not know anything about the candidates to the academic senate or of their academic achievements; no one nominated those candidates. This is some kind of a private party that is going on, some people have gathered and elected themselves. My rights have been violated: I, as a member of the faculty, have been excluded from the procedure which is of great importance both for me and for the university as a whole – the election of the academic senate. My rights have been breached, and I will complain to courts about the breaches of my rights. The rights of ordinary university employees, ordinary lecturers, have been breached, too: they were removed from the election to the academic senate, this is discrimination. Any discrimination is a form of war; you have declared war to the people, and sooner or later you will get the results of this war in some way or another, in your own families.”

The university sued him for defamation and the claim was upheld, the Russian court holding that he had done more than express an opinion and had publicly accused the university of a violation of applicable laws and the commission of a dishonest act.  The university was awarded 20,000 roubles in damages (approximately £200).

The ECtHR held that this amounted to a violation of the applicant’s right to freedom of expression under Article 10 of the Convention, the interference not being necessary in a democratic society, and awarded him EUR 7,500 (approximately £5,400).  It said the domestic courts had:

• failed to perform a balancing exercise between the need to protect the University’s reputation and the applicant’s right to impart information on issues of general interest;
• wrongly equated the “dignity” of an institution with that of human beings, a mere institutional interest of the University not necessarily being of the same strength as “the protection of the reputation or rights of others” within the meaning of Article 10(2);
• failed to establish a “pressing social need” for putting the protection of the university’s reputation above the applicant’s right to freedom of expression;
• overstepped the narrow margin of appreciation afforded to them in matters of debate of public interest.

The domestic courts’ decisions had been based on the finding on the evidence that the elections had been run in full compliance with the relevant regulations, but the ECtHR said that was irrelevant as there had been a factual basis for the concerns expressed.

The Court also noted the applicant had used “a certain degree of hyperbole in his address” but said that employees engaging in a debate of public interest are entitled to have recourse to exaggerations as long as they do not overstep the limits of admissible criticism.  The court did not consider the language in this case to be offensive or intemperate or to go beyond “the generally acceptable degree of exaggeration”.  Sadly no guidance was given as to what might constitute an unacceptable degree of exaggeration.

As a final note on this subject, attention is drawn to a recent House of Lords Library Note on “Freedom of Speech in Higher Education Institutions”, available here.

Paul Greatorex

Hot on the heels of my post last week about religious education and state impartiality comes the publication today of the 104-page report of the Commission on Religion and Belief in Public Life entitled “Living with Difference”.

Made up of 20 commissioners, including adherents of the main religious and belief traditions in the UK  (including humanism) and chaired by former Court of Appeal judge Baroness Butler-Sloss, the commission took two years to prepare its report and received more than 200 submissions during the public consultation process.

Chapter 4 of the report (pages 30-39) is devoted to education and includes the following suggestions and recommendations:

• that rather than promoting greater cohesion, faith schools have been socially divisive and led rather to greater misunderstanding and tension, and selection of pupils and staff on the grounds of religion be reduced

• the requirements for schools to hold acts of collective worship or religious observance be repealed and replaced with inclusive assemblies and times for reflection that are appropriate for pupils and staff of all religions and beliefs

• a new subject be created with the same status as other humanities subjects which deals with religious and non-religious worldviews and with content that is broad and inclusive in a way that reflects the diversity of religion and belief in the UK

• state inspectorates should be concerned with every aspect of the life of faith schools, including religious elements currently inspected by denominational authorities

• the attention given in teacher training to religion and belief should be of a similar level to that which is given to reading and maths, so that every primary class teacher is confident and competent in this curriculum area and all secondary and FE teaching staff have general awareness of relevant sensitivities

As exam question writers like to say – discuss.

Paul Greatorex

In R (Fox) v Secretary of State for Education [2015] EWHC 3404 (Admin), Warby J held that guidance issued by the Secretary of State for Education was unlawful because it contained a statement (referred to in the judgment as “the Assertion”) that delivery of Religious Studies GCSE content consistent with subject content prescribed by the Secretary of State would in all cases fulfil the state’s legal obligations with regard to religious education.  In fact, the judge held, relying exclusively on such GCSEs could be enough to meet those obligations but would not necessarily be so and some additional educational provision may be required.

For such an esoteric conclusion, the case got a surprising amount of coverage in the mainstream media (see here) but this probably reflects the high levels of interest and sensitivity surrounding the role of religion in schools.  Leaving the headlines aside, the judgment repays consideration for its analysis of the law governing the teaching of, and curriculum-setting for, religious education in schools and academies.  It is important to note, however, that the position in faith schools and academies is different: see [82].

So far as domestic law is concerned, the judgment reminds us at [17] that section 375 of the Education Act 1996 requires religious education to be taught according to an “agreed syllabus” which must “reflect the fact that the religious traditions in Great Britain are in the main Christian whilst taking account of the teaching and practice of the principal religions represented in Great Britain”.  At [69] is a reminder of the 2011 Census results underpinning this, which show that 59.3% of people answered the question “what is your religion?” by saying “Christian”.  (At [77] some other answers that were given are recorded – none (25.1%), no answer (7.2%), Muslim (4.8%) and Buddhist (0.4%)).

The process by which the agreed syllabus is drawn up by the Agreed Syllabus Conference (ASC) and subject to ministerial control is explained at [15-19].

Crucially, the judge then considered Article 9 and Article 2 of Protocol 1 of the European Convention of Human Rights and the (almost exclusively Strasbourg) case law in this area .  The judge said at [39] that the jurisprudence established the following propositions:

• In carrying out its educational functions the state owes parents a positive duty to respect their religious and philosophical convictions.
• The state has considerable latitude in deciding exactly how that duty should be performed, having regard among other things to available resources, local conditions and, in particular, the preponderance in its society of particular religious views, and their place in the tradition of the country.
• As such, the state may legitimately give priority to imparting knowledge of one religion above others, where that religion is practised or adhered to by a majority in society, but the state has a duty to take care that information or knowledge included in the curriculum is conveyed in a pluralistic manner
• Subject to certain threshold requirements, the state must accord equal respect to different religious convictions, and to non-religious beliefs, it is not entitled to discriminate between religions and beliefs on a qualitative basis and its duties must be performed from a standpoint of neutrality and impartiality as regards the quality and validity of parents’ convictions.

The judgment does not record any consideration of (or even submissions on) section 2(1) of the Human Rights Act 1998 and the extent to which this Strasbourg case-law should be followed, which is perhaps surprising given the current debate (both judicial and political) on this point, and it was on the basis of the ECHR and Strasbourg case law that the claim succeeded.

At [74] the judge said there was no problem with section 375 and suggested the state’s duty is best described as “due impartiality”, but went on to identify the problem in this case as follows:

“74…The complete exclusion of any study of non-religious beliefs for the whole of Key Stage 4…would not in my judgment be compatible with A2P1″

75.  It is not of itself unlawful to permit an RS GCSE to be created which is wholly devoted to the study of religion.  That is not the claimant’s case.  But The Assertion tells its readers that such a GCSE will fulfil the entirety of the state’s RE duties…[T]his is a proposition that is likely in practice to be accepted and acted upon by ASCs and schools.  The Assertion thus represents guidance under challenge wrongly suggested that the provision of such a GCSE would in and of itself meet the state’s obligations with regard to religious education.”

Also of interest is how the judge dealt with two other points which arose, about looking at a child’s education more widely than just their GCSE years, and the parental right in section 71 of the SSFA 1998 to withdraw a child from RE:

“78.  I have not overlooked [the Secretary of State’s] submission that the two years of Key stage 4 should not be considered in isolation, but within the context of the RE curriculum as a whole. I accept the point, but it is obvious that GCSE is a vitally important stage in the development of a young person’s character and understanding of the world. I do not consider it could be said that a complete or almost total failure to provide information about non-religious beliefs at this stage could be made up for by instruction given at earlier stages. Nor do I overlook [the Secretary of State’s] final point: that if it turns out that the schools attended by the Children adopt a GCSE specification as the entirety of RE provision at Key stage 4, and the Parents do not want this form of RE for their children, they have the unqualified right to have their Children excused from that education. This point fails on the ground identified above: it would deprive the Parents and Children of rights they enjoy, which the state is bound to deliver.

79. This is not to say that the state is obliged to provide a particular form of teaching, dictated by the Parents. It is to say that an opt-out is not an adequate substitute for the provision of an educational programme which accords the Parents their right to respect for their convictions. The need to withdraw a Child would be a manifestation of the lack of pluralism in question.”

Paul Greatorex