What not to wear and other stories: addressing religious diversity in schools

Abstract

This article considers the position of religion in schools in England and Wales in light of the recent decision in The Queen on the application of SB v Headteacher and Governors of Denbigh High School. This held that the refusal to allow a pupil to wear the jilbab was a breach of her rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and the Human Rights Act 1998. It contrasts approaches based on human rights principles with those based on discrimination law principles, highlighting overlap and inconsistency between both the definitions applicable to different forms of discrimination and the position of teachers and pupils. It concludes that the law is in urgent need of rationalisation to provide consistency.

Notes

1. This article develops the ideas first published in Ann Blair (2004), ‘A lesson in religious (in)tolerance’, 154(7121), NLJ, 449–450.

2. This was provided for in the 1944 legislation, repealing the ‘Cowper–Temple Clause’. This was an amendment introduced into the second reading of the Education Bill of 1870, that no catechism nor denominational teaching of any kind should be included in the religious instruction given in schools that received funds via the rates.

3. Under S69(3) School Standards and Framework Act 1998 (SSFA). The following orders have been made under S69(3), the Designation of schools having a religious character (Wales) Order 1999, SI 1999/1814; the Designation of schools having a religious character (England) Order 1999, SI 1999/2432 (amended by SI 2000/3080); and the Designation of schools having a religious character (England) Order 2000, SI 2000/3080.

4. Section 394 Education Act 1996 and paragraph 4, Schedule 20 School Standards and Framework Act 1998.

5. S375 and Sections (SS) 390–398 Education Act 1996 (EA 1996).

6. Building on success: diversity and autonomy in the state school system, DfEE Green Paper. http://www.dfee.gov.uk/buildingonsuccess/

7. S71 SSFA.

8. [1995] FCR 212.

9. Under S6 of the Education Act 1980, now S86 School Standards and Framework Act 1998.

10. Confirming the earlier case of Cumings v. Birkenhead Corporation [1971] 2 WLR 1458.

11. SS58(2)–(6) SSFA.

12. S60 SSFA.

13. S60(5) SSFA.

14. Board of Governors of St Matthias Church of England School v. Crizzle [1993] IRLR 472. Berrisford v. Woodard Schools [1991] IRLR 247, cf. O'Neill v. Governors of St Thomas More RCVA Upper School [1996] IRLR 372.

15. S59(3) SSFA.

16. SS59(2) and 58(4) SSFA.

17. SI 1661/2003.

18. SI 1660/2003.

19. [2004] ELR 311.

20. For an excellent discussion of the implications of a wider range of human rights instruments see Craig, 2003.

21. As the great majority of readers will be aware, the term incorporation is too simple to convey the delicate balance between protecting convention rights and preserving parliamentary sovereignty achieved by the HRA. Courts must interpret legislation so as to conform to the ECHR wherever this is possible without undue strain. Where this is not possible and legislation is incompatible, a declaration can be made to this effect and a ‘fast track’ procedure for amending the legislation is invoked (S3). In addition, all public authorities are bound to act in accordance with the convention principles. This includes the private functions (including employment functions) of ‘pure’ public authorities and in the case of hybrid bodies, their public functions (S6). Courts and tribunals as public authorities are bound by the duties in S6 and it is becoming clear that this will mean the gradual development of common law principles so as to ensure conformity with the ECHR even in disputes between private individuals (Douglas v. Hello! Ltd. [2003] 1 All ER 1087, X v. Y [2004] ICR 1634).

22. We leave aside the finding that the right to education is not a civil right and therefore not protected by the right in Article 6 that: ‘In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’ R. (on the application of B) v. Head Teacher of Alperton Community School [2001] ELR 359.

23. See Campbell and Cosans v. UK (1982) 4 EHRR 293, Costello Roberts v. UK (1995) 19 EHRR 112 and R. on the Application of Williamson v. Secretary of State for Education and Employment [2003] QB 1300 on human rights, corporal punishment and parents’ philosophical beliefs.

24. (1979–80) 1 EHRR 711.

25. Although the issue seems not to have been discussed at the ECHR level a controversial issue relates to the presence of religious symbols in the classroom. It was raised in a case in Germany where all Bavarian schools were required to have a crucifix on display in the classroom (BverfGE 93, 1).Here it was accepted by the Federal court that this was not consistent with the principle of religious neutrality in German Basic law (Avenarius, 2002). This would be consistent with the modern approach taken to separation of church and state in publicly funded schools in the USA (Stone v. Graham 449 US 39 (1980), discussed in Mawdsley, 2002).

26. (1979–80) 1 EHRR 252.

27. See Part II schedule 3 HRA.

28. [2002] ELR 91.

29. [2002] ELR 390.

30. In Valsamis v. Greece (1997) 24 EHRR 294 the ECHR considered the decision of a school to suspend a child from school for a day because her parents, Jehovah's Witnesses, had refused to allow her to participate in a parade to celebrate a national holiday. This holiday in part commemorated the outbreak of war between Greece and Italy and the parents argued that this offended against their pacifist principles. The court held that in this instance the nature of the celebration served both pacifist objectives and the public interest, notwithstanding military presence at some of the parades that would take place that day. As such it could not be found to offend against the parent's pacifist principles and, furthermore, did not interfere with the parents’ right to enlighten and advise their child. Equally there was no breach of Article 9. The only breach was the lack of an effective remedy.

31. [2004] ELR 293.

32. A claim against the LEA was ruled inadmissible.

33. R. (on the application of Begum) v. Headteacher and Governors of Denbigh High School [2004] ELR 374.

34. There was no very detailed discussion of the issue of uniform and exclusion. Spiers v. Warrington Corporation [1953] 2 All ER 1052, where a parent was prosecuted for the child's non-attendance because she was prevented from attending unless she was dressed in the school uniform, was not considered.

35. Sahin v. Turkey case 44774/98 [2004] ELR 520.

36. [2005] 2 ALL ER 396.

37. Brooke LJ noting at paragraph 73 that ‘[i]n England and Wales express provision is made for religious education and worship in schools in Chapter VI of the 1998 Act. Schools are under a duty to secure that religious education in schools is given to pupils, and that each pupil should take part in an act of collective worship every day, unless withdrawn by their parent. Sections 80(1)(a) and 101(1)(a) of the 2002 Act require the inclusion of religious education in the basic curriculum.’

38. At para. 75.

39. At para. 81.

40. [1983] 2 AC 548.

41. Seide v. Gillette Industries [1980] IRLR 427, CRE v. Dutton [1989] IRLR 8 and Dawkins v. The Department of the Environment [1993] IRLR 284.

42. [1996] IRLR 11.

43. Council Directive 97/80EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex, OJ L 14, 20.1.1998. Implemented by the Sex Discrimination (Burden of Proof) Regulations 2001 SI 2001/2660.

44. Council Directive 2000/78EC establishing a general framework for equal treatment in employment and occupation, OJ L 303/16, 2.12.200, pp. 16–22, Article 2(b); Council Directive 2000/43EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ L 180/22, 19.7.2000, pp. 22–26, Article 2(b).

45. In most cases the employer, but in the education cases this will be the school or the LEA.

46. In the SDA, the wording is adjusted slightly in cases under the RRA.

47. S1(1)(b) SDA 1975. The definition within the RRA 1976 is to all intents and purposes the same.

48. This definition applies only to sex discrimination in employment.

49. Regulation 3(1)(b) of both the Sexual Orientation and the Religion or Belief regulations.

50. The approach to identifying indirect discrimination in the Disability Discrimination Act 1995 (DDA) as amended by regulations to implement the framework directive follow a different model and are not discussed here. In any event the difference in approach between the education and employment provisions of the DDA make simple comparisons between teachers and pupils an impossibility (Blair & Lawson, 2003).

51. EU member states are required to implement a new definition by 5 October 2005. Directive 2002/73EC amends Directive 76/207EC: the ‘equal treatment’ directive. The aim of the directive is to achieve consistency of definition of indirect discrimination, and mirrors the language of the Race and Framework directives. At the time of writing, however, the transitional definition still applies.

52. To confuse the picture further, the traditional definition continues to apply to discrimination based on nationality or colour.

53. These provisions do apply to HE.

54. Jones v. University of Manchester [1993] IRLR 218.

55. S1(1)(b) SDA; see S1(1)(b) for the comparable nationality and colour provision.

56. ICR [1983] 428.

57. Per Ralph Gibson LJ, Jones v. University of Manchester [1993] IRLR 218 at 226.

58. S5(3) SDA 1975.

59. ‘Plainly, a percentage difference of no more than 5% or thereabouts is inherently unlikely to lead an industrial tribunal to the conclusion that the requirements of s. 1(1)(b) have not been made out …’, per Potter LJ, London Underground v. Edwards (No. 2) [1998] IRLR 364, para. 30.

60. [1995] IRLR 234.

61. [2000] IRLR 263 (HL).

62. Mandla v. Dowell Lee (supra).

63. [1998] IRLR 364.

64. Nelson v. Carillion Services Ltd [2003] IRLR 428 and London South Tribunal in Waterfield v. CMU 2302246/03, December 2003.

65. The modern definition is based on the decision in Case 237/94; O'Flynn v. Adjudication Officer [1996] 3 CMLR 124.

66. See also Constable of Avon & Somerset v. Chew [2002] CLY 1139.

67. S66A SDA 1975; S54A RRA 1975; Regulation 32 of the both the Sexual Orientation and the Religion or Belief regulations.

68. SS1(1)(b)(ii); 1(2)(b)(ii) of the SDA as amended.

69. S1(1A)(a) RRA 1975; Regulation 3(b)(iii) of both the Sexual Orientation and Religion and Belief regulations.

70. By virtue of S17 it is unlawful for an educational establishment to discriminate against a person:

• in the terms on which it was offers to admit him to the establishment as a pupil

• by refusing or deliberately omitting to accept an application for his admission to the establishment as a pupil.

Where the applicant is already a pupil, he must not be discriminated against in terms of:

• the way [the establishment] affords him access to any benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or

• exclusion from the establishment or being subjected to any other detriment.

71. [1992] 2 AC 182.

72. [1994] ELR 299.

73. As thought of in terms of British ‘collar and tie’ for men and skirt for women.

74. S1(2) SDA 1975 as amended.

75. s. 1(2) RRA 1976 as amended.

76. This was achieved through the Special Educational Needs and Disability Act 2003.