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