REGINA (SB) v THE GOVERNORS OF DENBIGH HIGH SCHOOL

A difference of opinion regarding school uniform found itself thrust into judicial review, when a Muslim pupil refused to follow school policy, but insisted freedom to choose under the terms of the Convention.

However, when the claim was counter-challenged, the courts fell into conflict as to procedural requirements, and that of continued mediation between parties.

Seventeen year-old Shabina Begum commenced legal proceedings against Denbigh High School, after the Headmaster refused to let her wear a religious garment known as a ‘jilbab’ because it was not in accordance with existing school uniform policy; a policy which had been sensitively implemented through consultation with the local Muslim community several years prior to the incident.

The respondent had been aware of this policy for two years, and had worn the approved uniform during school without protest; however, when advised to go home and change or risk staying away from the school, the respondent claimed that such a refusal to let her ‘manifest’ her religious beliefs and removal from school, directly violated articles 8 (Right to respect for private and family life), 9 (Freedom of thought, conscience and religion) and 14 (Prohibition of discrimination) of the European Convention on Human Rights; and that denying her access to an education was also a breach of article 2 (Right to life) of the Convention.

After numerous solicitors failed to sway the school’s decision, and despite every effort being made on the part of the school to help bring the respondent back to her classes, receive home teaching, or move to an alternative school that would allow her to wear her jilbab, the case eventually went to court where the original judgment was found in favour of the appellants.

When subject to the Appeal Court, the residing judges reversed the decision back in favour of the respondent; after which, the school sought leave to appeal to the House of Lords.

Here, after lengthy exploration of the manner in which the Appeal Court approached the case, the House found by majority that while deprivation of the right to observe and manifest article 9 of the Convention prima facie warranted a claim for judicial review, it was equally important to note that article 9(2) gave express terms as to when an institution or local authority policy is deemed to have interfered with that right.

On this occasion, such a claim was simply untenable given the thorough attention to detail shown by the school when designing and approving the uniform worn at the time the respondent sought action; and so, for this reason (and many more besides) the appeal was upheld and the original judgment restored, while the House remained mindful of the errors shown by the lower courts throughout the trial when holding that:

“Article 9 does not require that one should be allowed to manifest one’s religion at any time and place of one’s own choosing.”